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Lord Justice Scott-Baker - Court of Appeal - 4 November 2004

B 1/2004/1870
Neutral Citation Number: [20041 EWCA Civ 1495]
Royal Courts of Justice Strand London. WC2
 4th November 2004
JUDGMENT (As Approved by the Court)
Thursday, 4th November 2004
1. LORD JUSTICE SCOTT BAKER: C will be 7 this year. The applicant is his father and there has, regrettably, been a great deal of litigation about C. It is unnecessary for present purposes for me to recite it.
2. On 28th July of this year there was a hearing before His Honour Judge Milligan in the Southampton County Court. Judge Milligan has had considerable prior involvement in the litigation, and it is plain from his judgment that he was particularly well placed to deal with the applications that were before him on 28th July. His judgment shows that he has a good understanding of the family dynamics and, in particular, the applicant's actions in relation to C.
3. The applicant has drawn my attention to a judgment of this court given by Thorpe LJ on 30th July of this year, that is just two days after Judge Milligan's decision. The applicant says that this shows that in the eyes of the courts there are two very different applicants; there is the applicant as envisaged by Thorpe LJ, and there is the applicant as envisaged by Judge Milligan.
4. The thrust of what the applicant is submitting to me is that Judge Milligan has his assessment hopelessly wrong and that I should proceed on the basis of Thorpe LJ's assessment of him. The particular paragraph of Thorpe LJ's judgment, with which Clarke LJ agreed, upon which the applicant relies is paragraph 5 and it says this:
"I would indeed, given [the applicant's] history of responsible campaigning and writing on issues relating to family relationships, go further and ensure that the prohibition distinguishes between evidence in those proceedings and judgments in those proceedings. In my view, given the noticeable trend towards reduction in privacy, that would be appropriate in the circumstances of this case."
5. The matter came before Thorpe LJ in the context that this court has recently taken a rather more relaxed attitude about the publication of judgments in child proceedings. The present position being that the court looks carefully at the particular circumstances of individual cases. In consequence the applicant was permitted to publish judgments in his litigation about C, albeit not the evidence, with, of course, the proviso that nothing should be published that might lead to the identification of the child.
6. It does not seem to me that there is the great divergence between the two judgments that the applicant suggests. Thorpe LJ was dealing with an entirely different situation from that with which Judge Milligan was dealing. Thorpe LJ was concerned, and concerned only, with a publication of material. Judge Milligan was concerned with specific questions in relation to the welfare ofC.
7. Let me explain in a little more detail how matters are at the present time. C presently lives with his mother in New Zealand. The applicant gave his written consent to C going to New Zealand for 4 months, from December 2003 to April 2004. In the event the mother jumped the gun and went earlier than the applicant had agreed. She should not have done so. The applicant sought to make a lot out of this, saying that he had agreed to the four month visit on the express basis that he would have contact with his son, C, before he went. He had not in fact seen C at all for a substantial period of time, that being at his own choice. The judge rejected his assertion, pointing out that he never shared his supposed motives with the mother who was entitled to accept his consent at face value.
8. The applicant, through the police, sought to have C treated as though he had been abducted. The father's behaviour was, in my judgment, and the judge below took entirely the same view, completely inappropriate. It seems to me that it is an illustration of his lack of judgment as to how to approach the delicate subject of establishing some relationship with his son.
9. There is no doubt that the applicant is a genuine and honest campaigner with regard to issues relating to fathers having a proper role in the upbringing of their children, but unfortunately it seems to me that he has allowed his involvement in that regard to cloud his judgment and approach as to how to deal with the delicate subject of establishing his own relationship with his own son.
10. C is still in New Zealand. The applicant's consent to his being there ran out last April. The mother sought the leave of the court for C to stay. Her case was, and is, that it is in his interest from a medical point of view. She put before the court a great deal of information as to professional involvement in C's life since his arrival in New Zealand.
11. It is plain that there have been behavioural problems, but by the hearing in July C had become much more settled than was the case when they first arrived in that country. He was doing well at school. His reports indicated this. He was happy and settled in class. He had made a number of friends. His paternal grandparents, to whom he is very close, were making visits, and they stayed for just over two months at the beginning of the year. Further visits are planned and the paternal uncle has been making annual trips over the last 6 years and apparently intends to continue to do so. C has access to free school, free hospital treatment, and access to health care. There are regular dental checks. There are other good features about his life at school.
12. The mother's case was that it would not be in C's interests for the sophisticated arrangements, which had been designed to give him support and improve his health, to be disrupted. The judge saw a number of documents and medical reports. These indicate the problems that C has had and the success that there has been in beginning to overcome them, 
13. Part of the mother's case was supported by the professional information put before the court. The other part of her case was this: that some 6 years had passed over which there was rarely a period when a hearing in the courts was not either taking place or pending, whether in the Southampton County Court or in the Court of Appeal. The mother says that this is getting her down. She says that it is having a knock-on effect, or may be, on C, and that staying in New Zealand will give her some closure to these problems. She pointed out to the judge (but the judge was well aware anyway) that the father had refused contact for many years, and to that extent there is no denial created by C's absence abroad.
14. The judge concluded that these were salient features of the applications before him. The father had, by his own actions, withheld from C the chance of a father/son relationship developing. The judge pointed out that he agreed with the applicant that on all ordinary criteria children need relationships with both of their parents, particularly when the parents have separated.
15. In general terms, and on general principles, it would plainly be in C's interests to have an ongoing relationship with the applicant. Sadly, the judge said, it is the action of the father, firstly by not seeking to take up a contact order, and, secondly, thereafter having to be ordered not to have contact, that has meant that if C is suffering from a lack of relationship with his father then this cannot be said to be the mother's fault. It has to be recognised that it is the direct result of the father's approach to these matters. The judge said, and I agree, that the father's approach has been contradictory, in that on the one hand C needs a relationship with him, a proposition with which nobody would disagree, but on the other hand:
"Because my status, my importance, as a father is not being given proper recognition by the courts the appropriate response is for me to simply withhold myself from him."
16. The judge said that he was satisfied, on the mother's evidence, that C was receiving all appropriate care and support in New Zealand and was leading the happy, settled and productive life for which the mother was contending. The judge concluded that it would be inappropriately disruptive to throw away all the good work by requiring C's immediate return.
17. He agreed with the mother's argument that 6 years of persistent litigation was undermining her health and either had, or was liable to have, an adverse impact on C. He made a residence order in favour of the mother and gave the mother leave to keep C out of the jurisdiction until the 31st August 2005, with liberty to apply for an extension. That was rather less than the mother was seeking because she was anxious to keep C out of the jurisdiction permanently, but the judge felt that it was desirable that the court should maintain some supervision over this delicate situation.
18. The order that the judge made was, first of all, that there should be a residence order in favour of the mother; second, that the mother should have leave to keep the child out of the jurisdiction until 31st August 2005 with liberty to apply for further leave; third, that the mother was to arrange an address for service in New Zealand, that was not to be her residential address, provided that the father contributed no less than 50 per cent of its cost. The judge further ordered that there should be a transcript provided to both parties at public expense. 
19. The grounds of appeal advanced by the applicant are as follows. First, that the father had not seen the applicant's statement of evidence until the hearing and that Judge Milligan was therefore wrong not to allow an adjournment for such a serious hearing. Consequently, submits the applicant, he did not get a fair hearing.
20. If there was any real substance in that point it seems to me that the applicant would have taken steps in the intervening period to set about showing precisely what new material he would have sought to put before the judge to answer the points made in the mother's statement. He has not done so. There is no submission that the court ought to hear fresh evidence, and although the matter has not been gone into at all, it seems to me obvious that the judge was faced with a difficult situation in which he had to exercise his discretion. With the mother in this country from New Zealand, and with the desire to have the case heard on the date that it was listed, there was obviously a strong reason for going ahead on that day. I am not persuaded that there was any unfairness occasioned to the father.
21. Second, it is said that the order flew in the face of the Children Act 1989 because, as I read this ground, the judge did not treat the welfare of C as being the first and paramount consideration. Having read carefully the judge's judgment on more than one occasion, it is perfectly plain that he did treat C's welfare as the overriding consideration.
22. Third, it is contended that the judge's order legalises abduction. I have already covered the circumstances in which the mother took C to New Zealand before the period for which the father had given consent. It is plain on the judge's findings that that was not abduction in the ordinary sense of the term. Any criticism of the mother can only fall into the mildest or lowest category. The judge heard both sides and there is no way in which it would be appropriate for this court to interfere with his findings.
23. Fourthly, it is said that Judge Milligan was wrong to treat the father's applications for contact as harassment. Again, the judge had an unrivalled overview of the history of this case. He heard both parties and, in my judgment, was fully entitled to reach the conclusion that he did.
24. The test for deciding whether or not to grant permission to appeal is whether an appeal would have a real prospect of success. For the reasons that I have outlined, in my judgment, the prospects of an appeal succeeding are zero and in these circumstances it would not be appropriate to grant permission. Accordingly this application is refused.
25. As far as reporting restrictions are applied, nothing should be published that might lead to the identification of C. But I am not going to put this judgment in any different category from that of Judge Milligan which is now covered by Thorpe LJ's order.
ORDER: application refused; identification restrictions to be applied; applicant and respondent to be supplied with copies of judgment at public expense.