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Lord Justice Thorpe - Court of Appeal - 18 February 2004

1. LORD JUSTICE THORPE: Mr M has two applications for permission before the court today. I am going to take them in the order in which they are filed. No. 2003/2447 is an application which, for me, is undated which was probably sealed on 17 November 2003. By this application he seeks to appeal the order of His Honour Judge Milligan of 28 October 2003 which simply states that -

"Upon hearing the applicant, Mr M in person the court orders that the application be dismissed."
2. So what was the application? Mr M today tells me that the only application before the judge is to be found in his letter of 1 August 2003 (page 35 in the bundle). That letter says that he requires the application for contact made on 28 February restored and he wants to have the committal order application of 1 May dismissed. That second paragraph is to be understood by lawyers as an application for the variation of the injunction made by Judge Milligan on 12 September 2002 (pages 11 and 12 of the bundle). The relevant paragraphs are 1, 2 and 3. No exception can be taken to the form of paragraph 3. What is open to question is the wording of paragraphs 1 and 2 which read as follows:
"1 From disclosing or communicating details of those proceedings or any details of proceedings in the Court of Appeal..... to any third party other than
(i) any legal adviser he may consult or instruct
(ii) any other person with leave of the Court
2 In particular and without prejudice to the generality of the foregoing that he be restrained from publishing any such information on the internet in booklets or pamphlets or otherwise howsoever."

3. The width of that wording had subsequently been considered by Lady Justice Hale in her judgment in this court of 28 July 2003. She had said in paragraph 3 of her judgment:
"It is fair to say that if the applicant father had wished to avail himself of the opportunity to apply to vary or even discharge the order, he might have had some very good points to make. His best point would be that proceedings in the Court of Appeal are in public, although it is routine to prohibit any identification of any child involved. Therefore he might have argued that the order went too far and should not have prohibited communication of details of proceedings in the Court of appeal, save in so far as that publication might lead to the identification of the child concerned."

The judge, in concluding her judgment, at paragraph 15 said:
"I do urge the father to take advantage of the permission that he was given to apply to vary the order of 12 September, or even to discharge it, and to work out those ways in which it might be too wide or may be objectionable and make that application."

4. So it was in response to the judgment of Lady Justice Hale of 28 July that the father made his application of 1 August. In the second paragraph, to which I have already alluded, Mr M drew the judge's attention to Lady Justice Hale's pronouncement. He said:
"It may help the court to know that in her judgment Lady Justice Hale made a personal suggestion that His Honour Judge Milligan possibly consider that a different judge might hear one of these applications."

Although that was only an oblique reference, Mr M tells me he took the trouble of sending the judgment of 28 July to Judge Milligan and the judge had that before him when he determined the application of 1 August at the hearing on 28 October. I have not other than a partial transcript of that hearing, but it is perfectly plain from the submissions and the judge's response that the points raised by Lady Justice Hale were not directly considered. All that the judge said in refusing the application was:
"Mr M you've got it completely back to front. You are applying to have this order discharged. I am saying that it was soundly based, it was properly made and I consider that it should remain in force. Of course you have freedom of speech but everyone has certain curtailments on that right, one of them is that none of us may put into the public domain information concerning or tending to identify children in children proceedings because it is thought by Act of Parliament that the anonymity of children is necessary to protect them. I see no basis for the report discharge of this order. Do you want to say anything further?"

5. It is plain from that citation that the judge nowhere considered the lesser question, not of discharge but variation of the order, so it more actually defined the boundary between what Mr M is entitled to do and what he is not. 

6 For all those reasons Mr M's application to the court today seems to me to have potential merit. I will say it stands adjourned for oral hearing on notice with appeal to follow if permission granted. Given the mother's absence in New Zealand, it seems to me possible that she may not attend the oral hearing. I reflect that in saying that there be a time estimate of one hour.

7. I turn to Mr M's application no. 2003/2574. I have not a file for this. Apparently the file has been mislaid but at least I have a bundle which was received in the office on 27 November, and I assume that was the date upon which his application was lodged. The application at page 2 states it seeks to appeal the order of Judge Milligan of 28 October. Mr M has today agreed with me that that should be amended to 19 November. The order of 19 November is to be found at page 9 in the second bundle. It states:
"1 The applicant father do file and serve a statement in response by 28 November 2003.2 Paragraph 2 of the order dated 2 October 2003 herein, forbidding the respondent mother from removing the child ..... from the jurisdiction of the Court without leave of the Court do stand suspended ....."

8. In order to understand that it is necessary to track back to the order of 2 October 2003 which is to be found at page 13 in this bundle. The order of 2 October was made on an ex parte application by Mr M in person. Paragraph 2 provided that the mother is forbidden from removing the child from the jurisdiction without leave. All that stems from the agreement made between the parties in May 2003 to the effect that the mother might remove E from the jurisdiction to New Zealand from December 2003 to April 2004. By 2 October Mr M was apprehensive that the mother's real intention was to go for good and he had reason to think that she might go prematurely. Accordingly he applied to Judge Milligan and obtained the ex parte order I have cited. Unfortunately he did not serve that order on the mother. She removed with E on a date unknown, a date prior to November 2003. So Mr M thinks she is in breach. I cannot persuade Mr M that she is not in breach of an order not served on her. What I can accept is that she was in breach of what was an agreement that her departure should commence in December 2003.

9. What then was before the judge on 19 November? Again he heard only from one side, namely the mother, and all he had from her was a letter marked "strictly private and confidential" and "urgent". By the terms of that letter the mother seeks permission to retain E in New Zealand for a period of 18 months beyond the 4 months agreed to by Mr M in May 2003. The judge has not ruled on that. He has by paragraph 1 of his order of 19 November directed that Mr M serve a statement in response by 28 November. What the judge intended was to conduct a proper investigation on evidence, treating the mother's undated private and confidential letter as a statement in support of her application and giving Mr M the opportunity to file his statement in response. That would no doubt have led to a hearing in the County Court.

10. But Mr M has not followed that route. He has, alternatively, applied for permission to appeal on grounds that the judge should not have made any such order on a letter application by the mother without any notice to him.

11. The difficulty in Mr M's path is that the suspension of the order of 2 October is only a recognition of the reality that the mother had departed with the child despite the making of that order. In a sense once the mother has gone there is little point or purpose in maintaining an order forbidding her from going. The order was only going to be effective if served. Post the mother's departure there was very little point in maintaining the order. "Suspension" was the judge's word. He might just as well have discharged that order for all the worth it held.

12. So I have to ask, is this business for the Court of Appeal at this stage? I have considerable sympathy for Mr M who does seem to have been led into agreeing to something completely different to what the mother is now proposing. That plainly requires judicial investigation to determine whether there has been a wrongful removal or retention and whether the mother's present proposals are in conformity with E's welfare. But that task would be inappropriately addressed by the Court of Appeal. It is essentially a task that must be addressed in the Southampton County Court, and only once that court has pronounced might there be business for the Court of Appeal. Whether Judge Milligan is the right judge to hear the case, given the observations of Lady Justice Hale, or whether the principle of judicial continuity should be upheld is something that will be considered no doubt by Judge Milligan.

13. For the moment although I have considerable sympathy with Mr M, although I think he has a meritorious point that needs judicial investigation, I have to say today that he is knocking on the wrong door. Despite his disinclination to risk a determination in Southampton by Judge Milligan, he nonetheless has gone down that road by filing his statement in opposition and complaint. It is open to him to issue application in that court for an order that the mother return E to this jurisdiction in April 2004 in accordance with the agreement. All that said, the second application for permission, that is to say 2003/2574, is dismissed.

Order: Application no. 2003/2447 adjourned for oral hearing on notice with appeal to follow if permission granted.