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Lord Justice Ward - Court of Appeal - 28 January 2000

1. LORD JUSTICE WARD: The applicant is the father of E, who was two at the end of December last year. He seeks permission to appeal the orders made by His Honour Milligan in Southampton County Court on 29 October 1999. The judge dismissed the father's application for a variation of the contact order that had been earlier made, whereby the judge had in April 1999 dismissed the father's appeal from the district judge's order save in one relevant respect. The district judge had ordered two hours' contact to E on Thursdays and Saturdays, directing that the contact should take place between the hours of 10.00 am to 12 noon. The judge said it should happen from 9.30 am to 11.30 am. The reason for the change was because at that stage the baby was being breast-fed and it was thought that the change in hours would make it easier to accommodate the breast-feeding and the contact. 

2. The father's appeal against that order was dismissed by the court. He soon applied again and his application was dismissed, as I have indicated. This time, however. Judge Milligan imposed a restriction under section 91(14) to the effect that the father should not make any application without permission of the court for a period of two years from October 1999.
3. The father is aggrieved because he is convinced that the mother deliberately set out on a course of conduct designed to reduce the value of his contact. She was postponing breast feeding with the result, the father believes, that the child was coming under stress and would associate stress with the need to see the father. Indeed, it was for the father such a breach of trust that, most unfortunately in my view, he simply stopped seeing the boy altogether and has not seen him now since about August 1999. The father is disturbed that the mother's solicitors and their references to the child kicking and crying and so forth exacerbate that unhappy situation. He complains that the judge has failed in his duty to protect the child from the harmful consequences of that behaviour. The father is mindful of the importance of regular contact (and, he would say, increased contact) in order to establish the attachment between father and son.

4. The judge dealt with the case quite shortly. There were, in addition to the matters I have referred to, two other causes of difficulty. One was the mother's appearance on television on behalf of the National Council for Single Parents showing E on that programme, part of which dealt with the irresponsibility of those fathers who fail to support their children and are therefore pursued by the Child Support Agency. The mother did, however, satisfy the judge that nothing in either of the programmes identified the father or was in any other sense derogatory of him. It is difficult to see how the father can go behind that finding.

5. The second matter relating to breast feeding was that father felt that the "breast-feeding deception" - that is to say the passing of blame away from the mother who was abusing the situation on to the father, who was coming for his entitled contact - would be avoided if a third party was involved in the handover. But the mother said she saw no need or purpose in that because she is supportive of contact and wishes it to continue. The judge agreed with her. Again, it is difficult to see how the father can ever show that that was a plainly wrong conclusion.

6. Finally, the judge relied upon the fact that no contact had taken place since early in August. The judge held that since the father had unilaterally missed 24 contact sessions, then until he indicated a willingness to take up the contact he was offered there was little point in giving him any extended contact. Again, it is a conclusion impossible to attack.

7. The father makes the point, which has logical appeal, that if two hours was sufficient when the baby was being breast-fed, now that he is not a longer period can be allowed. The answer to that is that at two years of age two hours is still a long time, and for the time being well within the ordinary range of order that a judge could make, as Judge Milligan did. It is not outside the generous ambit within which there is room for reasonable disagreement. I see therefore no reasonable prospect of successfully appealing the order in respect of contact.

8. As for the section 91(14) direction, the judge was of the view that the frequency of the applications coming before the court were having an adverse effect on the mother and through her on the child, and he was of the opinion that (page 49):
"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 are 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."

9. That, as it seems to me, is a direction as to the appropriate law which is unappealable and in so far as the judge exercised the discretion he was well within his entitlement to do so, given the frequency of the applications that were coming before the court. There again I see no reasonable prospect of success in the appeal.

10. 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.

11. I see the force of the argument that to wait until the boy is four before going back to the court is harsh but the judgment is beyond appeal. Accordingly I dismiss both applications.

ORDER: Applications dismissed.