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His Honour Judge Milligan - Southampton County Court - 29 October 1999

JUDGE MILLIGAN: This is an application by the applicant father in respect of the contact arrangements with his son E who was born in December 1997 and is today therefore 22 months old. He applies on a number of grounds concerning the contact arrangements that have been put in place by this court. 


The very brief recent history is that in December 1998 there was an order of the District Judge directing that there be two 2 hour contact sessions weekly on Thursdays and Sundays. The applicant father, Mr Miller, appealed that order to me on 7 April 1999, when I heard his appeal and dismissed it, save for varying the time for the two weekly 2 hour sessions from 10 to 12 as it had been to 9.30 to 11.30, to accommodate some concerns of Mr Miller as to the juxtaposition of E's feeding times with the general nature and purpose of his, the father's, contact visits.

On 7 September 1999 the father made application to me saying that contact was being frustrated by the mother, who was not feeding E before his arrival and that this was being done deliberately so that the child should link in his mind the withholding of his morning feed with the arrival and presence of his father, thus acting, he says, deliberately to prejudice the proper development of a father and son bond.

I heard that application and came to the conclusion that there was no substance in it and made no order.

Today he applies again on a number of grounds which I will deal with individually.

He says that he understands from others that E has been on television with his mother in circumstances that associate he, the father, with absent fathers and those who fail to provide support (described as "feckless" fathers) on the basis that the mother puts forward that she is obtaining insufficient support through the CSA. His complaint, as I have said, is that he is being shown in some derogatory light by the mother and the child appearing on television and that I should make an order restraining that.

I am told on the mother's behalf that she belongs to the National Council for Single Parents. In that capacity she has twice been on television in circumstances where she was filmed at home and E was present. The first was on the ITN News and concerned the reforms then proposed to the Child Support Agency. She says through her solicitor, and I accept, that the father was not named or identified and that there was nothing that took place during her part in that programme that could be considered in any sense derogatory of him. The other was an interview for the programme On the Record about mothers who do not go to work but who stay at home with their children. Again, the matter was filmed at home, again she was appearing in her capacity as a member of the National Council for Single Parents and again she says that there was nothing in the programme that identified this father or was in any other sense or in any way derogatory of him. I am satisfied that there is no ground for this complaint. The father persists in his allegation that mother is deliberately acting to obstruct or to interfere with the bond that should be developing between him and E by what he calls the "breast feeding deception" and seeks in that context an arrangement whereby contact would take place through the medium of a third party who would occupy themselves with the hand over of E from mother to father and back again. This would have the advantage, he says, of avoiding father/mother contact and would disrupt the mother's deception or the mother's conspiracy to interfere with the proper development of his bond with E in the way in which I have described.

The mother says through her solicitor that there is no difficulty with mother receiving the father at her home, and indeed on a recent occasion it was her suggestion that he came half an hour earlier so as to be present when E was given breakfast. She sees no need or purpose in hand over being through a third party. She always has, she says, and continues to support contact. I see no useful purpose being gained by this proposal on the father's behalf. Claims to damages in respect of alleged improper conduct by the mother's solicitor and for leave to appeal in respect of my previous finding on 7 September are not pursued.

However, the father raises two further matters. He says, firstly, that there has been no contact since August, in these circumstances; that after the offer put forward of the contact starting half an hour earlier, he arrived at 9 o'clock on 5 August, he was present while E was breast fed at 9.20, took him out until 11.30, and that seems to have been a successful visit. He was told, he says, that the 9 o'clock start time had been a mistake and, accordingly, he says, on the next occasion, 8 August, he arrived at 9.30 but he was refused contact. He says he has not attended since. He believes that he has a good way with children generally, he is in the teaching profession and puts forward that he deals constantly with children and has a good way and manner with them. He says, as I have indicated, that the mother is acting deliberately to obstruct the proper development of the father/son bond by this conspiracy or deception in the means of postponing breast feeding so that the child shall associate the question of hunger or food deprivation with the presence of the father. He has not, as I have indicated, attended contact since then on the basis that I have just been describing.

The mother's position is that the refusal of contact is simply untrue, that the additional half hour was offered and that the father's allegation that she is acting to obstruct the bond between the father and son is nonsense. The child, she says, is now being weaned off the breast; he is breast fed at 6.30 in the morning and 7.30 in the evening and given cows' milk between times. She does not accept that the 9 o'clock start (the extra half hour that was offered) was in any sense a mistake. She says there was no question of contact being refused on 8 August. Her position is that the father has simply decided unilaterally not to attend.

The final matter the father raises is an application to extend contact. It has been pointed out that the matter was recently before me, but he nonetheless says that it is now appropriate that the matter should be looked at by way of application under the Act to vary. He seeks extended contact.

The mother's position as to that is that there is a Contact Order in place, the father unilaterally has taken no advantage of it, he has chosen not to come, he has missed the last 24 sessions (or 12 weeks) of his own volition and so that, before there can be any question of contact being extended, the contact provided for under the present order should first be re-established.

So far as that is concerned, I adhere to the mother's view. So far as the father's complaints that contact is being withheld are concerned, I find that there is no substance in them.

Accordingly, so far as all these applications before me today are concerned, they are dismissed.

When the matter was before me in April, to which I have already referred, I have been reminded that a section 91(14) Order was made prohibiting applications without leave of the court for a period of 12 months. I am sorry to say that I have accepted two applications since that time in ignorance of the fact of having made that order or, more correctly, having forgotten and having not been reminded that such an order was in place. That is in no sense a criticism of the mother's solicitors, the position being that they assumed, perfectly properly, when told of the September application and today's application, that ex parte leave must first of all have been obtained.

The basis for that order was set out in the judgment that I gave on 7 April 1999, to this effect: I found that the child needed stability, that the mother had lost sleep and was worried about the case, the constant applications had been unsettling for her and were having an adverse effect on the child, who was having trouble sleeping and was missing his morning sleep during contact visits. I found, as I have indicated, that changing the contact times would avoid this. The applicant opposed that application based on his experience as a teacher. I found that he suffered from a mental block, that he had a view regarding contact with which I did not agree, that he was failing to see it from the child's point of view, that he had trawled through the literature seeking support for his view and dismissing any guidelines that he did not agree wi I found that he had fixed views, would not consider the mother's views or feelings, but was insistent in the view that his position was the right one. He had made repeated applications. On that occasion his proposed increase in contact was utterly inappropriate. I found that he was not insensitive, but simply was of a fixed view that the court's views of these matters were wrong, and that he would continue to make applications until the courts changed their views, there being no question but that his views were correct and appropriate. I found, as I have indicated, that there was an effect on the mother and the child and on that basis I made a section 91(14) Order.

The basis for that order seems to me to have been thoroughly vindicated by the further applications in September and today to which I have referred. Mr Miller urges upon me that today's application is not made lightly, that there is nothing of a vexatious or frivolous nature about it and that it is made only with the interests of his son at heart.

Mr Burge for the mother reminds me of the content of my judgment in April, that there have been two further applications and that there has in fact been a total of 12 applications in 22 months.

In those circumstances, I have no hesitation in reaching the view that the applicant father by his repeated applications is acting in a manner abusive of the right of access to the courts, he is acting in a vexatious, frivolous and, so far as the mother and son are concerned, oppressive manner and that this is a case where I should make a further section 91(14) Order, bearing in mind as I do the injunction in the authorities that such orders are rare and should only be made when, as I have said, abuse of the right of access to the courts is found with a consequent effect upon the mother and son.

It has to be said that, in my judgment, a large measure of the nature of the father's applications and the reasons that he put forward in support are, frankly, irrational and have no possible substance. It is the fact that he persists in them that of itself is the single biggest factor pointing to the desirability to protect this child and the mother from further applications of a similar nature. For so long as Mr Miller has fixed in his mind the insupportable theory that this mother is acting deliberately to obstruct the growth of his bond with his son and for so long as he continues to make applications on that basis he is acting in an irrational and, in my judgment, thoroughly frivolous and vexatious manner.

Accordingly, on that basis and for the reasons that I have given I shall make a further order by virtue of section 91(14) that there be no applications without the leave of the court for a period of two years from today's date.

I should have indicated, finally, when dealing with the brief history of the case that there was an appeal by the applicant father in respect of the order I made on 7 April 1999. That came before the court on 8 October 1999, when the father's application for leave to appeal that order was refused, as was his application for permission to present a petition of appeal to the House of Lords.

Accordingly, I shall say, hearing the applicant father in person and solicitors for the respondent mother, it is ordered: 1. The applicant's applications be dismissed; 2. That by virtue of section 91(14) of the Children Act 1989 there be no applications without leave of the court for a period of two years from today; 3. This matter remains reserved to me.