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His Honour Judge Milligan - Southampton County Court - 28 September 2000

JUDGE MILLIGAN: In this application Mr Miller, the respondent father in section 8 proceedings concerning contact with the child E born in December 1997, makes an application for myself to be disqualified from any further hearings in the case that may arise, the case having hitherto been reserved to me in accordance with general principles, to which I will return.

Mr Miller bases his application upon two grounds. He firstly says that I, in my professional capacity, have received ongoing training from the Judicial Studies Board in Family Law under the auspices of the Lord Chancellor's Department and that that training has perpetuated legal precedent that is faulty; it has perpetuated general principles as to the welfare of children that are faulty; and it therefore follows that my approach to the question of children's welfare and the orders to be made in family proceedings has been flawed. Mr Miller cites firstly, the proposition that children are better off with their mother, for which he says there is precedent; secondly, what he calls the "tender years theory", that young children are better with their mother; and, thirdly, a decision of Dame Butler-Sloss, the President as she now is, who opined that it was natural for young children to be with their mother but, if the matter was in dispute, this was a consideration and not a presumption.

I say to Mr Miller that he has a fundamental misunderstanding, as he always has had, as to how Courts approach section 8 applications in family proceedings. The cardinal first and guiding principle of all private family law applications is that each case turns on its own facts and circumstances and that the welfare of the child is paramount. In addition, there is a welfare checklist set out in section 1(i)(3) of the 1989 Act directing the Court to have regard to a number of matters in reaching decisions in private family law proceedings.

It is my belief that the requirements of the Act have been applied by me in this matter as in others. I can say to Mr Miller plainly that in reaching the decisions that I have in previous hearings, I have not been guided by any of the principles that he says are now discredited. Certainly there is no presumption that children should be with one parent or the other. There are certainly general guidelines that children of tender years may be better off with their mother, but this is in no sense an irrebuttable presumption or, indeed, a presumption of any kind. As I have indicated, each case turns on its own facts.

These Courts approach each case according to the overriding principle that the welfare of the children is the paramount consideration. I do not, therefore, accede to his suggestion that I have approached earlier hearings in this case in the light of faulty precedents, or training made faulty by such faulty precedent.

He, secondly, says under Article 6 of the European Convention of Human Rights that the reservation of a case effectively means that he receives no fair hearing by an independent or impartial judge. He argues, I think, that each hearing should come before a different judge. He misunderstands the principles under which cases are reserved. This is done because the judge is proceedings earlier events and decisions necessarily impinge upon later events and decisions. The view is that one judge is best placed to take an overall view of the issues arising in sensitive family proceedings such as these; that if each hearing were to go to a fresh judge a great deal of time would be wasted, a great deal of unnecessary fresh application would arise, and the reality being nowadays that all Courts have to have an eye to the best use of resources, this is a valid consideration along with the others going generally to the view that one judge reserving the case gives proper continuity of decision and means that proceedings come at each occasion before someone fully aware of the facts and circumstances of the case. It is difficult for me to rule as to whether I have behaved in a properly independent or impartial fashion. I can say that I believe that I have. I can say, as I do, that I find nothing in the suggestion that reserving a case necessarily infringes Article 6. Indeed, in my judgment, it is a process designed to uphold and perpetuate the principles of proper independence and impartial judgment bought to bear on the circumstances of each case by one judge in the full knowledge of all the circumstances in the case.

Accordingly, this application is dismissed.

MR MILLER: Your Honour, may I have permission for leave to - - -

JUDGE MILLIGAN: Leave to appeal is refused.

MR MILLER: - - - to the Court of Appeal?

JUDGE MILLIGAN: Leave to appeal is refused.