B
1/2004/1870
Neutral
Citation Number: [20041 EWCA
Civ 1495]
IN THE SUPREME COURT
OF JUDICATURE
IN THE COURT OF APPEAL
(CIVIL DIVISION)
ON APPEAL FROM
SOUTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE
MILLIGAN)
Royal Courts of
Justice Strand London. WC2
4th
November
2004
BEFORE:
LORD
JUSTICE SCOTT BAKER
RE: C (A CHILD)
THE APPLICANT FATHER
APPEARED IN PERSON
THE RESPONDENT MOTHER
DID NOT APPEAR AND WAS NOT
REPRESENTED
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.