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Lady Justice Hale - Court of Appeal - 19 March 2002

1. LADY JUSTICE HALE: This is an application for permission to appeal from the order of His Honour Judge Milligan, made on the 8 December 1999 in the Southampton County Court, refusing the applicant leave to make an application for contact with his child, E. E was born on the 29 December 1997, and so at that stage he was not yet two. He is now two and a half. The application is dated the 25 February 2000; and so the applicant also requires an extension of time.

2. E's parents were not married to one another and never lived together. The applicant is E's father. They are both teachers. Quite clearly the applicant has considerable skills in research and writing. The mother has said in the course of these proceedings that their relationship ended before E was born. Certainly E has lived with his mother for all his life. As far as I am aware his father has never applied for a residence order, although he has applied for contact in circumstances which indicate a desire to establish a relationship which would eventually become one of equality with that of the mother.

3. The father's first application is dated 27 January 1998 and was for a parental responsibility order. On the 13 March 1998 he also made an application for contact. On the 19th March 1998 District Judge Naylor ordered one hour's contact each Sunday between 11.00 and 12.00 and each Wednesday between 6.00 and 7.00 in the evening. The mother was able to have a third party present.

4. On the 28 May 1998 a parental responsibility order was made by consent, and the matter was listed for a formal hearing in August. On 11 August 1998 Deputy District Judge Codlin-Tate extended the time on Sundays to two hours, from 10.00 until 12.00, and continued the one hour on Wednesday evenings. The proviso for a third party to be present was deleted, but the father was to notify the mother of his proposed whereabouts during the contact. On the 3 December 1998 District Judge Naylor varied the contact to two hours on Sundays from 10.00 until 12.00 and on Thursdays also from 10.00 until 12.00.

5. The father appealed against that order to the Circuit Judge. He also applied for a variation. It was directed that the two be heard together. The mother applied for an order under section 91(14) of the Children Act 1989 to restrict further applications by the father.

6. Those matters came before His Honour Judge Milligan on the 7 April 1999. He varied the contact time on Sundays to 9.30 until 11.30 in the morning, because he thought that that would make it easier to accommodate contact with E's breast-feeding schedule. Otherwise he dismissed the appeal. He made an order under section 91(14) prohibiting the father from making further applications without leave for a period of one year. He reserved the matter to himself and later refused permission to appeal.

7. The father made an application to this court for permission to appeal against that order; this came before Thorpe LJ and Chadwick LJ on the 8 October 1999 and was refused. Thorpe LJ in his judgment quoted what His Honour Judge Milligan had said at page seven of his judgment:
"...in a case where a child is still breast-feeding and, therefore, takes a feed every four hours, it seems to me that it would be quite inappropriate to suggest that any individual contact visit should be of greater than two hours' duration, given that the child has to be collected and returned. I see no basis upon which the District Judge could be said wrongly to have exercised his discretion. There has been a steady increase in the question of contact."

8. Thorpe LJ himself observed:
"It is quite plain on any objective judicial review that the conclusion reached by Judge Milligan was not only plainly within the discretionary band, it was the sort of inevitable conclusion to which the majority of judges of the court would have come."

9. By the time of that hearing in this court, the father had issued other applications in the county court. On 7 September 1999 he made an application alleging that the mother was frustrating contact by not feeding E before his arrival. His Honour Judge Milligan found that there was no substance in that allegation and he made no order.

10. On 15 September 1999, however, the father was given leave to make a further application. This was for an extension of contact and also for the handover to be by a mutual third party because of the father's allegations of the mother's interference with his contact. His Honour Judge Milligan gave that leave.

11. On 29 October 1999, therefore, the matter came on again for a hearing between the parties before His Honour Judge Milligan. There had been no contact since August 1999. The father complained that contact was being withheld, but His Honour Judge Milligan found that there was no substance in those complaints. The father had, effectively, withdrawn from contact because of his views about the mother's behaviour. His Honour Judge Milligan dismissed the father's application. He also made another order under section 91(14) for two years. He refused permission to appeal. The reasons given were that there had been 12 applications in 22 months, and that the current one had followed hard on the previous application made without referring to the section 91(14) order and an unsuccessful application to the Court of Appeal.

12. The father made a further application to this court for permission to appeal against that order. That application came before Ward LJ on the 28 January 2000. He found that it was impossible to attack the learned judge's conclusion on contact; and on section 91(14) he again quoted the words of His Honour Judge Milligan as follows:
"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 court, 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."

13. Ward LJ observed that that was a completely unappealable direction as to the appropriate law; indeed it is a rather more restricted view of the use of these orders than has been sanctioned quite recently by this court. He went on to make the following observation:
"I have explained to the father that he is barred from making an application on notice to the mother. He may, if he is anxious to do so, approach the court without notice to the mother to seek permission to make an application. I urge him very strongly to resist the temptation to go back to Judge Milligan too soon because he will do his cause more harm than good. I have urged him to take up the contact that he has on offer and once that is restored, is up and running and the benefits of it are obvious to all, and obvious even, I dare say, to the mother, then, failing her agreement to extend contact, then - but only then - may it be appropriate for him to seek the permission."

14. Meanwhile, however, on 5 December 1999 the father had already written to His Honour Judge Milligan requesting leave to make a further application relying upon the correspondence and the photographs which had been before him on the previous occasion. On the 8 December 1999, in the order against which the father now wishes to appeal. His Honour Judge Milligan refused that application.

15. The father has placed before the court a skeleton argument in which he repeats arguments which he has previously put before this and the lower court. As might be expected, he expresses himself and the arguments very well. They are to this effect. Firstly, His Honour Judge Milligan relied throughout on a "dependency theory", which he also refers to as a "maternal preference theory", when the judge should have been guided by the work of Professor Sir Michael Rutter. The father had put before the court, for the purpose of the April hearing, a sizeable bundle of writings on child psychology and development; but he has been principally informed by Sir Michael's work entitled "Maternal Deprivation Reassessed". That is a very well-known work of scholarship in which Sir Michael qualified the original theory of maternal deprivation which had been developed by John Bowlby and expressed for popular consumption in a book called "Child Care and the Growth of Love". That theory was that children were damaged by separation from their mother or mother figure. Sir Michael pointed out that children were not invariably so damaged and that, in any event, other people, including their fathers, are also very important to children.

16. The father argues that the learned judge's reliance upon the maternal deprivation principle led to a circular "deception", as he terms it, consisting of a "set-up" based on that theory; a "hook" on which the mother was able to postpone breast feeding and blame the problem on stress; a "tale" whereby the mother could blame the father for problems with contact; and ending in a "shut-out" in which it would be hoped that the father would accept this interpretation and the consequently small amount of contact which he was allowed. The father therefore argues that His Honour Judge Milligan should be removed from the case and replaced by a different judge who did not hold such theories. He emphasises again in his skeleton argument the importance of a child's early years in forming bonds and, for the child's social development, the importance for a child of knowing both sides of his family and feeling a part of both families and the problems which may later be experienced if a child does not do so. He emphasises all of those things.

17. He appends to his skeleton argument a document entitled "Disputes in One of Fact which Involves Legal Authorities". This is so well written that it could almost be an academic article. In this the father argues that the courts themselves have adopted some sort of maternal preference, and that in doing so they have failed to have proper regard to the more recent psychological literature and that, in any event, they are wrong: gender is not an appropriate guide as to who is the most suitable parent or as to how a child should be parented.

18. He also makes reference to the European Convention on Human Rights. He refers to Article 5 of Protocol 7, relating to equality between spouses, and argues that, insofar as the courts do adopt some early years maternal preference, they are acting in breach of that article. As to that I should point out, firstly, that the United Kingdom is not a party to that protocol and that, in any event, the article in question refers to equality in marriage. There is a considerable line of cases in the European Court and Commission of Human Rights which has upheld the present position of English law which distinguishes between unmarried fathers and married fathers, and indeed between unmarried fathers and unmarried mothers, for the purposes of parental responsibility; but in any event the father has parental responsibility for his child.

19. He also refers to Article 6 of the European Convention on Human Rights. Here again it has to be pointed out that, on the whole, the authorities under the European Convention allow the national courts to adopt their own procedures and, where there is good reason to do so, to impose a barrier such as a requirement of leave to make applications to the court, provided that the very essence of the right of access to a court is not thereby impaired. It is open to this father to make applications for leave to bring further cases before the court, and so the very essence of his right has not been impaired.

20. The difficulty with the application before me today is twofold. The first is that the law governing all matters about the upbringing of children which are in dispute is contained in the Children Act 1989, principally in section 1(1). This provides that the welfare of the child should be the paramount consideration. If there is a dispute about the matter, the court is required by section 1(3) to have regard to what is usually known as the check-list of factors which are relevant in helping the court to determine what will be in the best interests of the child. That is a list of factors which contains no value judgments as to what would be best for the child; it simply says what the court is to take into account. These cover such things as the wishes and feelings of the child; the needs of the child in the broadest possible sense; the capacity of all of the people around the child to meet that child's needs; the effect on the child of any change in circumstances; the age, sex and any special characteristics of the child; any harm the child has suffered or is at risk of suffering; and the range of options available to the court in the proceedings in question. But, as His Honour Judge Milligan has observed in this case already, the courts do approach that check-list from the assumption that it is, indeed, in the best interests of a child to grow up, not only in the knowledge of, but with as good a relationship as possible between himself and each of his parents. There are numerous decided cases in this court to that effect. Perhaps the leading case is Re: 0 (A Minor) (Contact: Imposition of Conditions) [1995] 2 FLR 124, CA, in which the principles governing the question of contact were laid out in some detail.

21. It is the function of the judge to resolve a dispute, and to do so on the basis of the evidence and argument before him. It is not his function to do so on the basis of any particular theory; he is guided by the law as explained in the authoritative cases. Sometimes he does have expert evidence to assist on the psychological and other factors relevant in the particular case, but otherwise he has to do his best with what is before him.

22. I note that on the 7 April 1999 His Honour Judge Milligan said:
"Experience shows that very small children relate very heavily both physically and emotionally to their mother",

23. and this was in the particular context of a case where the child was still breast-feeding. He went on to make the observations I have already quoted, which were cited earlier by this court. But also in that judgment His Honour Judge Milligan had referred to evidence that shared care could succeed, and could succeed very well, but only if the relationship between the parents was good and enabled them to co-operate happily in the interests of their child.

24. It is difficult, therefore, to find any evidence that His Honour Judge Milligan approached this case in any way other than is required by the law and the decided cases; and I see no basis at all for suggesting that he should be removed from the case. It is very important in a long running situation such as this for there to be as much judicial continuity as is practical.

25. There is a second problem. This court has already found that there is nothing appealable in the decision of His Honour Judge Milligan on the 7 April, or, indeed, in his later decision of the 29 October. There is a general principle that there must be an end to litigation. Once a decision has been made on the merits of a particular order, as it has been here, and the avenues of appeal have been exhausted, a litigant should not be able to try again without further developments. The father has told me that, other than his further researches into the law and the passage of time, there have been no new developments since the decision of the 29 October of last year. It is clear that he has not taken the very wise advice of Ward LJ, which I have already quoted, and I myself very much regret that.

26. Finally, I have tried to make it clear that this court looks at the interests of a child in the round, without preconceptions or prejudgments, but on the basis of the evidence in a particular case. Insofar as there is guidance given in existing case law of this court, it is of course binding on this court.

27. For all those reasons, I see absolutely no prospect whatsoever of an appeal against the order under appeal being successful, and I have to refuse this application.