Publication of judgments from the 'Family Court'
Transparency in family proceedings
Shared Parenting and the 'Tender Years' doctrine
On 30 July 2004 Lord Justice Thorpe and Lord Justice Clarke heard an application from the author for permission to appeal an Injunction Order made by His Honour Judge Milligan in the Southampton County Court.
Yet despite this judgment the author did indeed face a criminal prosecution in the Southampton County Court on 8 December 2004. However His Honour Judge Milligan was not aware of the 'variation' to his original Injunction Order and when he was informed made a Court Order for 'no punishment'.
According to Statute Law which is made in the UK Parliament there should be no distinction between either parent on the basis of their gender in family proceedings because in any civilised country all people should be treated the same. But in an exclusive interview with Families Need Fathers FNF (22 May 2014) concerning the Children and Families Act 2014 Baroness Butler-Sloss outlined the 'Tender Years' doctrine which favours mothers in UK family proceedings.
"I would like to see I must say, mothers who flout contact orders required to do all sorts of things that don’t actually send her inside. I can see absolutely no reason why she shouldn’t do community service. I should like to see her penalised in all sorts of inconvenient ways as long as it doesn’t have any impact on her care of the child. So as long as the child is over 5 or goes to a child minder, then there is no reason why she shouldn’t be required to go and clean the streets, whatever it may be. I would make her do something really unpleasant so that she understands the consequences of this. But to send her to prison is counter productive, because the child will not want to know the man who has sent his mother to prison, particularly when she comes back and tells him about it".
In these judgments you can read how the father tried to challenge this unofficial doctrine which is based on the flawed theory of 'maternal deprivation' developed by Dr John Bowlby. The 'Tender Years' doctrine is not grounded in any legitimate theory of child development but Case Laws perpetuated by judges which you can read on the next page called, The 'Tender Years' doctrine as applied through Case Laws in UK Family Proceedings - Baroness Richmond, Deputy President Supreme Court.
His Honour Judge Milligan - Southampton County Court - 7 April 1999
JUDGE MILLIGAN: This is the father's appeal against the order of District Judge Naylor of 3 December of last year directing that there should be contact between E, who was born in December 1997 and who is now, therefore, 16 months old, the child of these parties, such contacts to take place on Sundays between ten and twelve and Thursdays between ten and twelve. Mr Miller, the father, appeals against that order on the basis of the frequency of contact which it provides and the duration of each of the two visits.
It is his case on this appeal that the District Judge wrongly exercised his discretion in two regards. Firstly, he used the wrong procedures in deriving guidance from unofficial guidelines called A Child's Contact with a Non-Residential parent which is based on the theory of maternal deprivation which he says has been discredited. So far as this first point is concerned, that the District Judge derived guidance from this document which caused him wrongly to exercise his discretion, it appeared on cross-examination that so far as the hearing on 3 December was concerned Mr Miller did not see any such document, did not see the District Judge refer to any such document. He described these guidelines as artificially depressing the contact ordered but his case is that it is clear the District Judge was guided by them because of his decision as to the frequency and duration of contact against which Mr Miller today appeals. As further evidence of that he says that the District Judge referred to the age of the child.
So far as this aspect to the appeal is concerned, I see no substance in it. True it is that Mr Miller has put before the court a compendious bundle of material relating to this whole question of the contact between a child and a parent with whom it no longer lives but perhaps it is right that I should remind him that the courts approach these questions on the basis that generally speaking such contact is for the benefit of the child and that it should only be withheld where there are cogent or compelling reasons to that effect so that the approach always is that such contact should be sustained, that such contact is in the interests of the child and that, as I have said, there should only be no contact where there are cogent and compelling reasons to that point of view.
I cannot reach a conclusion that the District Judge was wrongly guided by any written material in circumstances where Mr Miller is unable to say that he saw the District Judge refer to any material and it seems to me that his complaint generally is this, that courts do not generally speaking order sufficient contact of very young children with the non-residential parent and that that being the case, the amount of contact between him and young E should be increased. He accepts that the present contact is typical of cases with a child of this age. He knows that from reading the guidelines but says that because courts make these orders, that does not make them right. The father is entitled to a fair share of seeing his son. The child needs to see his father especially when young. It is not possible that the District Judge made his decision on the material before him in the present case. He says that from nearly 20 years' experience as a professional teacher and 17 years of working in that capacity. There are a number of threads here.
As I have indicated, the appeal cannot succeed on the basis that the District Judge was wrongly guided by material that Mr Miller concedes was not before him and has no means of saying or knowing that the District Judge was even familiar with. The District Judge in question is an experienced family judge. I have little doubt that he is familiar with the great amount of literature and research that is available as to where the best interests of children lie with separated parents and I have little doubt that he would have been aware of and indeed derived the guidance he thought appropriate from any such material, but I say again that his duty was to decide the case on the evidence before him. Mr Miller concedes that the order made is, as it was said, typical of cases with children of this age and effectively says to me that these orders are inappropriate. They are too little and too seldom and that in the present case I should allow the appeal and greatly increase the contact. So as to the first ground of appeal that the District Judge was wrongly guided by material I make this finding. Firstly, there is no evidence that he was guided by the material to which Mr Miller refers or indeed, secondly, that if he was guided by any written material he failed to exercise his discretion in the circumstances of the case in question.
I should say in passing that the suggestion that Mr Miller makes that 20 years as a qualified teacher and 17 years working in that capacity would make him a better judge of where the best interests of young children lie as compared with an experienced Family District Judge of this group strikes me as absolute nonsense.
The second ground of appeal is essentially this, that the contact order on 3 December is insufficient both in terms of frequency and duration. Mr Miller opened his appeal on the basis that the appropriate contact would be three sessions per week, two of six hours, one of three hours and one overnight stay, moving towards shared care. So far as the latter is concerned, I should say to him that shared care orders are not often made but there is much research suggesting that they can be very successful. The essential ingredient, if such an order is to be made and has any chance of success, is 'that the parents should be on very good terms with each other and that both of them believe it to be the best arrangement and both of them are prepared to work to that end. It seems to me unlikely, to put it no higher, that any such agreement could possibly exist between the parents in the present case
Giving evidence, the father did not repeat his opening suggestion that I have just referred to but simply said that the contact was insufficient in duration and length but did not feel able to say what he thought was appropriate. The decision made was a mistake, he said, and unjust. As I have already indicated, much of his thinking revolves around the suggestion that although courts frequently make orders of this kind they are erring in so doing and that generally speaking contact should be much more frequent and of much greater duration between children of this age and a non-residential parent. The mother has anxieties about that. "He still brings E home wet and cold without his nappy having been changed. He seems ignorant of his needs or he ignores my concerns. I accept he loves his son and has parental responsibilities for him. I have never been hostile to contact. I worry about E and want to protect him. Additionally, the father brings him back late after contact visits, so much so that I have had to instruct my solicitors to write to him on 30 March saying that this had occurred consecutively on the last eight contact visits". So she considers the father unreliable in time-keeping, is not aware of the needs of a child of this young age, raises questions such as his disinclination to use a car seat and puts it generally that he has little relevant caring experience. still breast-feeding. He comes to mother when he wants feeding on average every four hours.
The brief history of the contact ordered in this case is that on 19 March last year contact was ordered to take place on Sundays and Wednesdays, Sundays between eleven and twelve but Wednesdays between six and seven. On 11 August the Sunday visit was extended to ten to twelve. By the order appealed against, the Wednesday visit was changed to Thursday but made for two hours in the same way as the Sunday visit so one sees that there has been a steady progression in terms of contact ordered. It is the father's case that the 3 December order was too little and too infrequent. That contact of this nature and duration is frequently ordered in cases of where there are very young children is no coincidence, not because courts are particularly minded or moved by written material when they are aware of it but that experience shows that very small children relate very heavily both physically and emotionally to their mother and 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. The child, as I have said, is still only 16 months old, he relates very strongly and closely to his mother and is still breast-feeding. He sleeps morning and afternoon. Accordingly, I find no basis upon which the District Judge could be said wrongly to have exercised his discretion and in that regard the appeal is dismissed. In my judgment, the contact ordered on 3 December was entirely appropriate in all the particular circumstances of this case.
Mr Burge, or the mother, makes an application under section 91(14) for an order that there be no further applications without leave for a period of twelve months. He accepts properly that such orders are used sparingly and essentially in cases where the continual making of applications could be said to amount to conduct that is close to being vexatious or frivolous or indicative, as he puts it in the present case, of a campaign by the father overlooking the interests of the child.
This is the ninth hearing. The child, he says, needs stability. Whether at 16 months the child has any great appreciation of what is going on I have some doubt, but he goes further and says that mother and child need to be able to sleep free of the stress that has been associated with the repeated making of these applications. The mother puts it this way,
"This is the ninth hearing. I feel it is always hanging over me. I have lost much sleep worrying over the cases. I saw the doctor and he said I will sleep better when things are sorted out".
Father opposes the making of an order under section 91(14) referring again to his status and experience as a teacher saying that that gives him a view that children always come first, that they are the most important and that he considers that these applications have been made in E's best interests. I do not agree with him. The father is suffering from, in my judgment, some form of mental block over these proceedings. He has a view as to how often he should be seeing his son. He takes that view from his own point of view. I do not accept his suggestion that in that regard he sees these matters from the child's point of view. The father is entitled to a fair share of seeing his son, especially when young, and like many fathers in other cases coming before these courts he has taken a view as to what he considers to be the appropriate amount of contact and has gone through the literature seeking support for such a view and where the literature is against him he dismisses it, as he does, for instance, the guidelines that he says the District Judge relied upon but is quite unable to satisfy me to that effect.
Much harm is done where a man believes that he is acting for the best all round but he in fact is promoting his own view of the case. That, in my judgment, is what is happening here. Mr Miller has a fixed view of what ought to be happening. He is disinclined to consider any alternative view. He is certainly disinclined to consider the mother's view and feelings about this matter and he simply takes the view that contact is right, that he knows what is right in that regard, that because courts frequently makes orders in line with the current case does not make them right, and I make the point again that I make the order on what I consider to be the facts of this case, but, sadly, this is a father who has his own pre-conceptions and is, in my judgment, insistent upon seeing them come into effect and has, therefore, made repeated applications to that effect.
When he opened this appeal he proposed that contact should be increased from two hours twice a week to two six hour visits, one three hour visit and an overnight stay. Anybody with experience of working with children would say that moving from the present order to that type of order would be utterly inappropriate and how he thinks a 16 month boy would cope with six hours with his father away from his mother or indeed how he thinks he would cope with the requirements of that time he was not able to say. Mr Miller does not strike me as an insensitive man in the sense of simply wanting to impose his will but he has got it into his head that the courts are wrong, that more contact is appropriate and that he will continue to make applications until courts and all concerned come round closer to his way of thinking.
In those circumstances, I accept Mr Burge's submission that there has been something of a campaign by the father to achieve his own view of what ought to be happening and I accept the mother's evidence that this has had a thoroughly unsettling effect upon her. I find that there has already been some resultant knock-on effect upon the child, E. Accordingly, in those circumstances I think it appropriate to make the order that Mr Burge seeks.
I am going to allow the appeal to this extent that instead of ten to twelve on Sundays and Thursdays the future time would be --- Mr Miller would you prefer 9.00 to 11.00 or 9.30 to 11.30?
MR MILLER: Nine-thirty to eleven-thirty, your Honour.
JUDGE MILLIGAN: That it should be 9.30 to 11.30 to fit in with E's sleeping patterns. So the order I make is hearing the father Appellant in person and solicitors for the mother Respondent it is ordered (1) that the appeal be allowed to the extent that the contact ordered on 3 December 1998 shall take place between 9.30 and 11.30 instead of between ten and twelve; (2) in all other regards the appeal shall stand dismissed; (3) by virtue of section 91(14) of the Children Act there shall be no applications without leave for a period of twelve months from today; (4) the case shall stand reserved to me. Costs, Mr Burge?
MR BURGE: The Respondent mother is legally aided, your Honour. I ask for the usual order.
JUDGE MILLIGAN: Mr Miller, in view of the view I have taken of the nature and frequency of these applications and the section 91(14) order that I have made, it follows that I generally speaking consider that you have pursued these applications beyond what is right for E and in those circumstances the question would arise whether you ought to pay the costs of this appeal. Given that Ms C is legally aided, what do you say about that? Is it right that the public should stand the expense of this appeal that has failed? Or do you think you should be called upon to pay it?
MR MILLER: Obviously I would prefer not to pay, your Honour.
JUDGE MILLIGAN: In my judgment, you ought to pay something, Mr Miller. I think this was an inappropriate application, putting it no higher than that, and I am not persuaded that it should be entirely at the public expense. I think you should make a contribution. What figure do you propose and then I will tell you what figure I consider appropriate? What is the position? You are working part-time?
MR MILLER: That is right, your Honour.
JUDGE MILLIGAN: Mr Burge, what would have been the costs of the appeal? Can you give me a general guideline figure for instructions, preparation, appearing today?
MR BURGE: Your Honour, I would think £1,000.
JUDGE MILLIGAN: Are you working at the present?
MR MILLER: I am working part-time.
JUDGE MILLIGAN: I think you should make some contribution. What do you say?
MR MILLER: Is it all right to pay in instalments?
JUDGE MILLIGAN: Indeed.
MR MILLER: Well, £500, your Honour?
JUDGE MILLIGAN: I think that is entirely appropriate.
MR MILLER: Could you make the payments as small as possible as I am paying the CSA at the moment.
JUDGE MILLIGAN: I order that the Appellant do pay a contribution of £500 towards the Respondent costs of the appeal payable at --- What would be your proposal?
MR MILLER: Your Honour, I am at the moment paying £250 to the CSA. I am living with my mother. That means they do not recognise my living costs.
JUDGE MILLIGAN: After the CSA and your living costs, what is your disposable income, Mr Miller?
MR MILLER: There are none, your Honour, because of the CSA and I have living costs which the CSA do not take into account when they make the assessment, your Honour, as a result of living with my mother.
JUDGE MILLIGAN: What is your proposal? How much per month?
MR MILLER: £10 a month, your Honour.
JUDGE MILLIGAN: I think you can do better than that, Mr Miller.
MR MILLER: Your Honour, honestly and truthfully £10 a month given that I am going to pay £500 I would appreciate it if you would make it £10 a month.
JUDGE MILLIGAN: The order I make is that you do make a contribution to the Respondent costs limited to £240 payable at the rate of £20 a month.
MR MILLER: Is your Honour lowering it to £240 in all?
JUDGE MILLIGAN; Yes, I am because I want it payable over a year and I consider that that is long enough. If you can pay it sooner than that all well and good.
MR BURGE: Would your Honour order legal aid taxation?
JUDGE MILLIGAN: Yes, legal aid taxation of the Respondent's costs.
Lord Justice Thorpe and Lord Justice Chadwick - Court of Appeal - 8 October 1999
LORD JUSTICE THORPE: Mr M has advanced his application with great courtesy and moderation. The application is for permission to appeal the order of His Honour Judge Milligan in the Southampton County Court dated 7 April 1999. The background is briefly stated.
Mr M is the father of a child born in January 1997. At the date of the proceedings that child was about 16 months of age and still breast-feeding. The extent of contact between Mr M and the child had been determined at an earlier hearing before the district judge who had said, in effect, that Mr M should have contact with his son, E, for two periods a week each of two hours duration. Mr M exercised his right of appeal within the county court and it was that appeal which Judge Milligan determined in April.
Mr M, who is a father of considerable intelligence, has very strong views on the extent to which both parents should be involved in the nurture of their child, despite the fact that they cannot live together as a couple. He has read extensively the specialist mental health literature. He is very familiar with the work and theories of Dr Bowlby. He has followed closely the important subsequent analysis of Dr Rutter. He accordingly feels that Dr Bowlby's attachment theory has no remaining value in any assessment of the capacity of a very young child to be separated from his mother to enable the father's experience of this stage of nurture to be if not equal with that of the mother, certainly of a very significant level.
Mr M became familiar in his researches with a paper that was written by the Chief Welfare Officer in the Swindon court, Mr Alan Sealey. Mr Alan Sealey impressed Mr M, understandably since he writes on the writing paper of an association which is termed the "Association of Family Court Welfare Officers" which has some very influential and highly respected patrons and vice-presidents. But, as the correspondence with Mr Sealey reveals, this association, certainly by late 1998, had only about five members and was then in a state of terminal decline. Obviously, if there were to be guidelines issued by that profession, they would not come from this small association, but from the national representation of the profession, possibly from the Association of Chief Officers of Probation.
However, as Judge Milligan found, the overwhelming probability is that the guidelines were not before District Judge Naylor when he made his determination. There was no evidence that they were and, as Judge Milligan found, even if the guidelines were known to the district judge, he, as an extremely experienced district judge, would have undoubtedly exercised his discretion in relation to the circumstances of the case before him and not applied the guidelines. Judge Milligan went on to reach the discretionary conclusion that the level of contact ordered by the district judge was about right; certainly the level was in line with the "forensic norm". As the judge said at page 7 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."
There is one last word that must be said. Mr M has felt the unfairness of the imposition of a section 91(14) order, which the mother's solicitors sought to be heard and determined at the same time as his appeal. He has put before the court the judgment of this court in 1995 but, as I have sought to explain, the judicial barometer has moved a little since then. Within the relaxed guidelines given to judges in the county court the determination of the judge to give the mother 12 months' respite was manifestly open to him. It was a time limited prohibition and the order will be time spent in only six months. In any event, Mr M tells us that he has already obtained from the judge leave to issue an application within the prohibition period. There is, therefore, a pending application to be heard by Judge Milligan. I hope that sufficiently explains to Mr M the reasons why, in my opinion, his application for permission must be dismissed.
LORD JUSTICE CHADWICK: I agree.
Order: Application dismissed. Leave to appeal to the House of Lords refused.
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.
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.
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."
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.
Lady Justice Hale now the Baroness Hale of Richmond - Court of Appeal - 8 June 2000
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."
"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."
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."
"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."
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)  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",
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.
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-Schloss, 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.
Lord Justice Thorpe - Court of Appeal - 8 November 2001
Order made by the Rt. Hon. Lord Justice Thorpe on consideration of the appellant's notice and accompanying documents, but without an oral hearing, in respect of an application for permission to appeal, and for an extension of time
Reasons - The application for permission to appeal is totally misconceived, as was the application to Judge Milligan to recuse himself. Such decisions are peculiarly ones for the discretion of the individual judge. "Far from the transcript revealing any evidence of misdirection it demonstrates that the judge determined a bizarre application unerringly. There are no prospects of success on appeal.
Order: Application dismissed.
His Honour Judge Milligan - Aldershot County Court - 6 December 2001
JUDGE MILLIGAN: This is the application of Mr Miller for an order for shared residence, by which I think he means joint residence, of the child E who was born in December 1997 and who is now therefore nearly four years old. This case has a sad history. There was an order by the District Judge for defined contact. Mr Miller, as he was perfectly entitled, took the view that the defined contact was too limited and appealed the matter to me. I dismissed his appeal, taking the view that the contact ordered was appropriate in all the circumstances, the child then being then - how old, Mr Burge, two?
MR BURGE: Your Honour, yes, I think.
JUDGE MILLIGAN: The child being then some two years of age.
MR MILLER: Slightly less, your Honour.
JUDGE MILLIGAN: I understand that that order was the subject of a further appeal but the Court of Appeal did not rule in Mr Miller's favour. But there was a complaint on his account, as I recall on one occasion, that the mother was withholding the feed from the boy E so that the child would come to associate the father's visits with being kept from his food. I recall regarding such a suggestion as perfect nonsense.
In the events as they have turned out, Mr Miller has not taken advantage of the contact ordered since 24 December 2000. On that occasion he tells me there was an expedition to London involving himself and E and E's mother. He tells me that that outing took place on the condition, so far as he was concerned, that he was not limited to two hours twice a week, as had been the order of the Court. He takes the view that such an order is worthless and does not allow any opportunity for him to bond with his son. I am aware that the mother does not accept that any such condition was imposed upon that visit, or if it was in the father's mind, it was certainly not accepted by her.
It is my judgment that this mother has consistently sought to support the question of contact between E and his father. There is no suggestion in my mind that she has done anything other than promote it on the basis of it being in E's best interests.
So we have a father, Mr Miller, who feels that the contact ordered has been too little, who has exhausted the appeal process, but remains of the view that the contact ordered was too little but, as far as I can see quite irrationally, takes the view that that being the case he should not take advantage of the contact ordered at all. He complains on the one hand of no proper opportunity to form a bond with his son in the context of a developing mutually beneficial relationship and on the other hand says that because the contact that was ordered was so insufficient, despite two failed appeals, as to give him no such opportunity. This is a contradictory and I have to say irrational view.
Against a background of not having seen E since December 2000, this father today applies for a shared residence order and he refers me to the Court of Appeal authority in D v D  1FLW 495, a decision which modified to some extent the previous thinking as to joint residence orders which was that in general terms unless the parents were on good, easy terms with each other and able to cooperate constructively in the children's arrangements, such an order was inappropriate. The President, as she now is, in D v D explained that such a view was too narrow, that what was required was the application, as with all children's matters, of the requirements of section 1 of the Act by which the Court should ask itself whether such an order was in the interest of the child.
Unhappily Mr Miller has plucked from the headnote to that case a reference to the argument put forward by the father that he was being treated as a second class parent by the authorities with whom he had to deal regarding the provision of information about the children. Plainly that was a reference to difficulties with such as the surgery, the school and other similar bodies, about his being given information and allowed to participate in such matters. Part of the concept of parental responsibility of course is to address such difficulties. But Mr Miller has transposed this proposition into a suggestion that he is being treated as a second class parent by the Court and that because he is being so treated, as he puts it, no parity of esteem is being given to these two parents. He argues that E's best interests are not being served.
In my judgment E's interests are not being served by a father who complains of contact being too restricted but responds by refusing to take it up at all. By way of illustration, the parties saw each other accidentally some six weeks ago. Mr Miller tells me that E's mother suggested that they had coffee together. He indicated that he did not wish to talk to them. I can see no possible motive behind such an inappropriate stance save for a consuming obsession with legal technicalities, procedures, parenting theories and literature on the subject, which has characterised Mr Miller's complete inability to focus on what might be best for E because he is utterly obsessed with the matters to which I have referred.
I join with him in expressing anxiety as to E's future development, not because I have the slightest anxiety but that his mother will give him all appropriate love, care and attention, but because he is being deprived by Mr Miller's obsessional stance of any chance of developing a relationship with his father, and that may well come to trouble him as he grows up and develops the maturity to understand these things. So that when Mr Miller complains that contact is so limited that E is not being given the opportunity to form a relationship with his father, the reverse in fact is the case: it is Mr Miller who is depriving him of that opportunity. Had he, as I suggest any responsible father would have done in the circumstances, taken up the contact defined, despite his view that it was insufficient, and used it to lay the foundations of a developing relationship between father and son, the probability is that contact by now would have been extended, either by agreement of the mother, which I think is likely, or by the Court if necessary.
Mr Miller is right when he says that the Children Act recognises that there is no reason why both parents should not be involved in the upbringing of their children. It is Mr Miller's unilateral decision that has prevented this from occurring. He is right also that Courts make no distinction between male or female parents when deciding in any individual case what arrangements can best be made for the children in question.
As to the present application, I think it inappropriate, from E's point of view, to suggest that a joint residence order with a parent he has not seen for nearly a year can possibly be in his best interests. Further, I am plain that such an order would leave the mother with some extremely-difficult, if not impossible, difficulties and complications in her day-to-day management of E's upbringing. I cannot imagine anything less calculated to be in E's interests than to permit this father to exercise joint responsibility with this mother for every aspect of E's day-to-day life and upbringing. It would be a recipe for disaster of which E would be the principal victim. If this father is serious in his wish to promote his son's best interests and to develop the sort of naturally productive father and son relationship for which he says he longs, and which if achievable would clearly be in E's interests, then his way forward is plain: he takes up the contact that has already been offered and through it he builds, as time goes by, the foundations of a real relationship which can then be looked at on an expanding basis as E grows up and as his understanding and needs change as the years go by. If this father persists in his obsession that it is his legal rights that are being obstructed, to E's disadvantage, he is merely clinging to the obsession which has bedeviled these proceedings over some two or three years now and resulted in nothing but expense and dissatisfaction, not least to the child's mother.
Accordingly, I reach the view, in E's best interest and without any difficulty at all, that this application is entirely misconceived.
What do you want to say about section 91(14), Mr Burge? Is that mother's application? (The proceedings continued)
JUDGMENT JUDGE MILLIGAN: The mother applies for orders under section 91(14) to terminate the father's parental responsibility and the contact order made in his favour. She does so on the principal ground that this father has shown no commitment to his son in the way of taking up the contact ordered and that his general course of conduct has been to do nothing in that regard but to make periodic applications which cause her, as these things inevitably do, a certain amount of anxiety and distress. Plainly such anxiety and distress on the mother's part may be communicated to E, however hard she may try to ensure that that is not the case.
When asked the straight question, the father indicates that because he considers the present contact order to be inappropriate and insufficient he has no intention of taking it up, this against the background to which I have already alluded of a father who has exhausted the appeal procedures and because he takes a different view has, in my judgment, taken it out on his son by simply refusing to see him at all.
One of these days E is going to wonder why his father played no part in his upbringing. That is likely to cause him considerable pain and distress. It may certainly single him out from his peers at school, who are ever ready, of course, to notice differences such as that, and it may cause E, as he grows up, to be so angry about his father's apparent disinterest that he may never wish to see him. Such an outcome would be extremely bad for E. These are matters that the Court must hope the father will ponder. Given his express position that he does not propose to take up the contact that has been ordered, I propose, as mother asks, to put an end to the order. The same considerations must apply so far as parental responsibility is concerned. Although E is Mr Miller's natural son, his motivation throughout these proceedings has been to justify his own view, which is quite different, and indeed hostile, to what is in E's best interest.
As to commitment, he shows great commitment to his own views and theories, but alas no parallel commitment to his son. In those circumstances, I consider it appropriate also to terminate the order for parental responsibility.
There is the further welfare aspect, that given that E has not seen his father save on 24 December 2000, to which I have already referred, since August 1999, it seems to me that any reintroduction of contact would need to be carefully and sensitively handled and would benefit from professional input.
In all those circumstances, I am going to make an order that this father make no further section 8 applications without leave of the Court. I say to him that if he comes to this Court saying that what he wishes to do is to build a relationship with his son, then this Court will welcome him with great enthusiasm, if such a position is genuinely and sincerely held. But I say to him that for so long as he is consumed with what he sees as his rights and the way in which the courts mistreat him, it is most unlikely that any application he makes under section 8 is going to be successful. I say to this father plainly that what he has to do is to put aside his obsession with being treated, as he calls it, as a second class citizen and get himself into a frame of mind where what matters to him is a developing relationship with his son for E's benefit, and plainly as a result of that for his own. If he is prepared to focus on what is good for his son, then future applications for leave and the consequent section 8 applications will receive the most sympathetic consideration. If he persists in his position that he is being unfairly treated, and therefore, like a small child whose toys have been taken away, he will have nothing to do with it and will take no steps to build a relationship with his son, then any future applications he makes are likely to be as unsuccessful as was his application today.
So I shall say upon hearing the father, applicant in person, and the solicitors for the respondent mother it is ordered:
(1) That the father's application for a joint residence order is dismissed;
(2) That upon the application of the respondent mother, the orders for parental responsibility and contact herein do stand dismissed and that by virtue of section 91(14) of the Children Act 1989 there be no further applications under that Act without leave of the Court, reserved to me.
MR BURGE: Before I address you in relation to costs, I have two observations. Firstly, I do not whether your Honour intended to put a duration on the section 91(14) order or not. It is a matter for your Honour.
JUDGE MILLIGAN: What do the authorities say? I think there should be some time.
MR BURGE: I think there should be in fact. Two years was the previous order.
JUDGE MILLIGAN: (To his Clerk) Could you add for a period of two years.
MR BURGE: The second point concerns an application which Mr Miller made under section 38 of the Children Act. I take it it is completely misconceived, with the greatest respect to him, because -——
JUDGE MILLIGAN: What is that application?
MR BURGE: It is in his letter to the Court, your Honour. I have a copy of it here, if it is not immediately to hand. Your Honour will recall section 38 in fact concerns only cases in which the Court is contemplating making a care order in relation to the child, which is why I say it is completely misconceived.
JUDGE MILLIGAN: Yes, it is. What do you say about that, Mr Miller?
MR MILLER: It is completely misconceived, your Honour.
JUDGE MILLIGAN: Very well. Next paragraph: Father's application under section 38 is dismissed upon his acceptance that it is completely misconceived. What is the position as to costs, do you say, Mr Burge?
MR BURGE: Mother is publicly funded. I simply ask for the usual order, detailed assessment.
JUDGE MILLIGAN: Mr Miller, it seems you are not being asked to pay any costs for this application, which strikes me as a concession. I am not sure I see why the taxpayer should pay for it. Do you?
MR MILLER: I do, your Honour, and I feel as though your judgment has reinforced my request to have the decision handed down because I think it is a ground breaking decision to take away | parental responsibility, your Honour.
JUDGE MILLIGAN: You know about your rights of appeal, Mr Miller.
MR MILLER: Well, you were asking me about costs and so I was saying to your Honour that it is in the public interest to hear your reasons for taking away my parental responsibility or the child's right to know his father.
JUDGE MILLIGAN: It is a narrow issue as to that, Mr Miller.
MR MILLER: I beg your pardon, your Honour?
JUDGE MILLIGAN: It is a narrow issue as to that, Mr Miller. You have brought an application that has failed. The mother has brought applications which have succeeded. In those circumstances the general rule would be that the costs would follow the event, in other words, you would have to pay them. What do you want to say about that?
MR MILLER: I would say I disagree with that entirely, your Honour. I think it was brought according - as the correspondence shows, no regard for the actual law - as the correspondence with Mr Seeley shows, clearly demonstrates, I was unaware of any law.
JUDGE MILLIGAN: What is the figure, Mr Burge?
MR MILLER: It is the principle involved, your Honour.
MR BURGE: Your Honour, I have not prepared an estimate because as I understand it Mr Miller is unemployed and frankly the costs of enforcing any order against him would make it --—-
JUDGE MILLIGAN: Is that right, Mr Miller? Are you without means?
MR MILLER: No, I paid £300. I pay 30 per cent of my income to the CSA, in fact, your Honour. I live with my mother and ----
JUDGE MILLIGAN: Have you got any income?
MR MILLER: -- I work three days a week as well. That is at the
present moment, your Honour.
JUDGE MILLIGAN: Next paragraph: No order for costs, save public funding assessment of the mother respondent's costs. I am not going to order you to pay costs.
MR MILLER: Thank you, your Honour, thank you very much.
JUDGE MILLIGAN: Mr Miller, have I got through to you?
MR MILLER: You have, your Honour, you have - well, may I ask permission to appeal, please, your Honour? Is this the time to do it?
JUDGE MILLIGAN: Next paragraph:
Leave to appeal is refused.
MR MILLER: Can I ask you for the judgment to be handed down as you have in fact withdrawn my parental responsibility order and I think it is in the public interest to know the reasons for that, your Honour?
JUDGE MILLIGAN: The reason is very plain, because you say you are not going to take advantage of any of the orders made.
MR MILLER: Right, therefore I think it is right that the public should be aware of that and I think it is in the public interest to know that, your Honour.
JUDGE MILLIGAN: As long as it is not done outside my house, Mr Miller, that is reasonable.
MR MILLER: Yes, your Honour.
JUDGE MILLIGAN: Mr Miller, can we get this down to essentials. What I would like you to do ———
MR MILLER: I understand you.
JUDGE MILLIGAN: Is to go away ————
MR MILLER: Yes, I understand.
JUDGE MILLIGAN: - and ask yourself whether you are doing E any favours by refusing to see him.
MR MILLER: I understand, your Honour, you have made that very clear. You have made that very clear.
JUDGE MILLIGAN: And the risk as to what he may think about you if he grows up thinking he has a dad who does not care about him.
MR MILLER: I understand. Do you mind handing down that decision, that judgment?
JUDGE MILLIGAN: If you come back to me with an application to reopen all this on the basis that you want to put E first, and even if you think the contact is too little, you want to make a start on it and see if you can build on it, then I assure you, you will receive the most sympathetic consideration.
MR MILLER: I understand, you have been sympathetic, your Honour.
JUDGE MILLIGAN: For E's sake I am asking you to give this some serious thought.
MR MILLER: I understand.
JUDGE MILLIGAN: Very well.
MR MILLER: Is it handed down, your Honour, the judgment?
JUDGE MILLIGAN: What is the position about transcripts? I never know.
MR MILLER: I think you can give me permission, your Honour, you can do it.
JUDGE MILLIGAN: Very well, let us put another paragraph. The costs one should be last. The pre-penultimate is leave to appeal refused and then the ultimate is: leave to the father applicant to obtain a transcript of today's judgments (plural).
MR MILLER: May I thank you again, your Honour. Is it right, your Honour, you appear in Northern Ireland as well? Do you sit in Northern Ireland as well?
JUDGE MILLIGAN: No, what gave you that idea?
Lady Justice Hale - Court of Appeal - 19 March 2002
1. LADY JUSTICE HALE: This is a fathers fourth application for permission to appeal to the Court of Appeal in relation to his son, E, who was born on 29 December 1997 and so is just four years old. The history was set out in some detail in my own judgment in this court on 8 June 2000 in case number PTA/2000/5527 and need not be repeated today.
2. The relevant essentials today are that the proceedings were first begun in January 1998 with an application for a parental responsibility order, followed by an application for contact. A parental responsibility order was made by consent on 28 May 1998. Various orders were made for contact, culminating in an order for two hours contact twice a week made by District Judge Naylor on 3 December 1998. The father appealed against this to the circuit judge. In April 1999 His Honour Judge Milligan varied the timing but otherwise dismissed the appeal. He also made an order under section 91(14) of the Children Act prohibiting further applications without leave for a period of one year. He did so because there had been twelve applications to the court within 22 months.
3. The father's application to the Court of Appeal for permission to appeal was dismissed in October 1999. The father's subsequent attempts to have the contact order varied failed. In October 1999 His Honour Judge Milligan dismissed an application and made a further section 91(14) order for two years. The father's application to the Court of Appeal for permission to appeal against that order was dismissed by Ward LJ in January 2000. A further application for leave to make an application was refused in December 1999 and the father's application for permission to appeal against that order was dismissed by myself in June 2000.
4. From August 1999 the father has declined to take up the contact as ordered. His Honour Judge Milligan later that year found that there was no substance in his complaints that the contact was being withheld. All the judges who have heard this case have attempted to persuade the father to take up that contact, even though in the father's view it is quite inadequate. There have, therefore, only been very occasional contacts between the father and his son, mostly initiated by the mother, since then. The mother visited the paternal grandmother's home in August 2000 and again in December 2000, and the last time the father saw E was on 24 December 2000 when all three of them made an expedition together to London. It appears that those contacts have gone remarkably well from E's point of view, and that he recognises his father and is glad to spend time with him.
5. The father's view throughout has been that that order is too little. Children need a relationship with both of their parents. There should not be any preference in favour of the mother. The relationship with the father should not be built up gradually by an ascending ladder of contact in the way in which that is commonly done in the courts.
6. The section 91(14) order expired in October 2001. The father promptly applied for a shared residence order and also for an increase in contact. The mother responded by an application to discharge the existing contact order and the parental responsibility order, and for a further order under section 91(14). Those applications came before His Honour Judge Milligan, technically in the Southampton County Court, on 6 December 2001. It is against the orders which he made on that occasion that the father wishes to have permission to appeal today.
7. First the shared residence application was refused because the father had not taken up the contact ordered. He had even refused the mother's suggestion of their all having coffee together when they had met accidentally six weeks previously. As the judge said:
"... when Mr Miller complains that contact is so limited that E is not being given the opportunity to form a relationship with his father, the reverse in fact is the case: it is Mr Miller who is depriving him of that opportunity. Had he, as I suggest any responsible father would have done in the circumstances, taken up the contact defined, despite his view that it was insufficient, and used it to lay the foundations of a developing relationship between father and son, the probability is that contact by now would have been extended, either by agreement of the mother, which I think is likely, or by the Court if necessary.”
9. However, a shared residence order is still a residence order. It is not a purely symbolic grant of rights or status. A residence order is defined in the Children Act as an order settling the arrangements as to the person with whom the child is to live. It therefore contemplates that the child lives with each parent. It cannot be made where the child is not spending some time in each household, as the children were in D V D, still less where the child is not even seeing that parent, as in the more recent case of Re A (Children) (Shared Residence)  1 FLR 177 in the Court of Appeal. It is impossible for this court to say that the judge was plainly wrong to decline to introduce a shared residence order, settling the arrangements as to where E is to live, which contemplates that E should begin living with the father who has refused to see him for more than a few occasions for the last two and a half years. I cannot therefore grant permission against that decision.
10. Secondly, the existing contact order was discharged by the learned judge for the same reason. The father had plainly indicated that because he considered the present order inappropriate and insufficient, he had no intention of taking it up, even though he had exhausted his appeal possibilities against that order, thus discovering that, however misguidedly (and I do not of course indicate that it is necessarily misguided), the courts considered that the order had been an appropriate and unappealable order at the time when it was made. It was most unfortunate from E's point of view that the father was taking this stance and depriving him of any relationship with his father, but as the father had made his position plain, there was no point in continuing the existing order. That too, given the stance taken by the father, is a completely unappealable decision. There is no point in maintaining the existence of an order with which the father so disagrees that he is not prepared to take advantage of it for the benefit of his son.
11. Thirdly, as far as the parental responsibility order is concerned the judge took the view that this should now be discharged. He did so for essentially the same reason: that is, that the father had shown no genuine commitment towards his son. Instead he had shown commitment to his own particular view of what the approach of the courts should be and if he could not have that view prevail, well then he was not going to play any part in his son's upbringing. Generally speaking, there are three factors which are taken into account in granting a parental responsibility order: the attachment or relationship between the child and the parent, the parent's commitment towards the child and the parent's reasons for applying. That is why the judge referred to the fact that this father had not shown such commitment to his son and that was why he thought it appropriate to discharge the parental responsibility order.
12. The father argues that it is very rare for the court to discharge such an order. The reported cases suggest that this would only be done in a case of serious abuse of the child, of which there is no question in this case; or an inability to meet parental responsibility: see Re P: (Terminating Parental Responsibility)  1 FLR 1048 and M v M (Parental Responsibility)  2 FLR 737. He argues therefore that he must have been being punished for having written a booklet critical of the courts' approach to these cases called "even Toddlers Need Fathers". He further argues that the discrimination between married and unmarried fathers, and between fathers and mothers, is contrary to the European Convention on Human Rights. In fact, so far, the jurisprudence of the European Court of Human Rights indicates that the present discrimination in English law is not contrary to the Convention as it has a legitimate aim and is proportionate to that aim.
13. Nevertheless, this is the aspect of the case which concerns me the most. The criterion for making, and therefore for discharging, a parental responsibility order must be the welfare of the child, but that also includes the question of whether making any order is better than not doing so. The courts should be slow to end a parental responsibility order, not least because they can only do so in the case of unmarried fathers, and the Children Act clearly indicates that a parental responsibility order is independent of the other orders about the care and upbringing of the child.
14. This case is somewhat different from the other cases. It could be argued that it is akin to the case of M v M (above) in that a father who is wilfully refusing to meet his responsibilities towards his child by refusing even to have a cup of coffee with the child is in the same position as a father who is unable, through disability, to meet his responsibilities. However, this aspect of the matter is one in which it seems to me it is possible that this court might find that the judge fell into error, and I would therefore grant permission to appeal on this point. I should add that it would, of course, be open to the parties to agree that the appeal would be allowed by consent and thus to avoid a full hearing in this court.
15. Finally, he wishes to appeal against the further section 91(14) order. His Honour Judge Milligan made another such order for a period of two years, but he made it quite clear to the father that the door was not closed. If the father could put aside his obsession with being treated as a second-class citizen and get himself into the frame of mind where what matters to him is the developing relationship with his son for his son's benefit, then future applications for permission and future applications for orders under section 8 "will receive the most sympathetic consideration". On the other hand:
"If he persists in his position that he is being unfairly treated, and therefore, like a small child whose toys have been taken away, he will have nothing to do with it and will take no steps to build a relationship with his son, then any future applications he makes are likely to be as unsuccessful as was his application today."
17. The father also applies for E to be a party to this appeal. E was not a party to the proceedings below and it would not be appropriate for him to be made an independent party to these proceedings, which are to go ahead on the single basis which I have indicated.
ORDER: Application to appeal against the discharge of the parental responsibility order allowed. A copy of the transcript of this judgment to be provided to each party at public expense.
(Order not part of approved judgment)
His Honour Judge Milligan - Southampton County Court - 12 September 2002
JUDGE MILLIGAN: This is the application of the mother of E, born in December 1997, for an injunction restraining the child's father, Mr Kingsley Albert Miller, from publishing by any means material likely to lead to the public identification of the child the subject of these proceedings, or of documents and papers prepared for the purposes of and filed in these proceedings, without leave of the court.
It is the mother's case that Mr Miller is conducting a politically motivated campaign for what he sees, or claims to see, as an infringement of the right of his son E to take part in a continuing and developing relationship with his father.
The brief background to that is that an order was made by the District Judge in December 1998, when E was one year old, that there be two two-hourly sessions every week of contact, on a Thursday and a Sunday, the District Judge considering such order appropriate, given in particular the age of the child. The matter came before me on appeal in April 1999, the father arguing (as he has since argued against my decision) that both courts were applying discredited child rearing theories in derogation of the child's rights. There being no evidence of any such thing, and applying usual welfare principles, the appeal was dismissed, save for some variation in the times of day.
Later that year, Mr Miller applied to the court on the basis that contact was being deliberately frustrated by the mother by withholding E's feed before contact visits so that the child would identify contact visits with not being fed, to the prejudice of the development of an appropriate father and son bond. There was an application in August of the following year for indirect contact and to receive photographs, which was dismissed on the mother's indication that she was perfectly willing so to agree. By this time there had been no direct contact since August 1999 (and this remains the case), the father's position being that the contact ordered was insufficient so that the right of the child for a developing relationship with his father was not being respected, nor was his standing as the child's father, so that there was unilateral rejection by the father of taking up any further contact.
Because by 6 December 2001, the father had not taken up contact for over two years, an order was made putting an end to direct contact. No application has been made for its reinstatement, to which the mother, as has always been her position, would offer no objection in principle.
Accordingly, this father, who has not taken up contact that was ordered, but has chosen to pursue a political campaign as though his rights and those of the child are being infringed, has pursued his campaign in public with the publication of a pamphlet entitled 'Toddlers Need Parents' and by placing a considerable amount of information and documents concerning the case upon his website, including photographs of the child, orders of the court, and correspondence with the mother's solicitors.
I have been helpfully referred to the case of 'A' v. 'M'  1 FLR 562, a case where a mother, who had failed to obtain the orders she sought, made allegations to the press, including some relating to matters which the court had rejected, and it was held that the repetition of material about a child, albeit already in the public domain, could be damaging to a child, that there was a substantial risk that the mother would continue to act in the same vein, and that weighing the factors to be taken into account, including the welfare of the children, it was one of those rare occasions where, notwithstanding the existence of powerful contrary public interests, the balance pointed clearly in favour of the injunction being granted.
I have considered the matters identified in Re: ' W'  1 FLR 99 recited in Re: ' A v. M', have borne in mind freedom of expression and of the press, that this is a case where publication is by a dissatisfied father in matters upon which court rulings have been made, but I identify no public interest in favour of publication in all the circumstances of this case or none such as would justify the further harm that would be done to this child by the repeated identification of it in pursuit of a purely political and dishonestly based campaign.
Accordingly, I shall grant the injunctive relief for which the mother prays. I shall make the following order:
'Upon hearing solicitors for the mother Applicant, and upon the Respondent father having been served, but twice indicating by letter that he would not be attending, and having been reminded that orders might therefore be made in his absence, it is ordered
(1) that he, Mr Kingsley Albert Van Miller, be restrained, and an injunction is hereby granted restraining him, whether by himself, his servants or agents, or otherwise howsoever, from disclosing or communicating details of these proceedings or the proceedings in the Court of Appeal (reference 2001/2837) to any third party other than
(i) any legal adviser whom 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) he shall forthwith take all necessary steps to remove from his website ...' the remainder of Mr Burge's para
Lady Justice Hale - Court of Appeal - 19 November 2002
1. LADY JUSTICE HALE: On 19 March 2002, I heard an application by the father for permission to appeal against various orders made by His Honour Judge Milligan in the Southampton County Court in proceedings about his son E, who is now nearly 5 years old. I dismissed most of those applications, but I granted permission to appeal against the discharge of a parental responsibility order. I was not thereby saying that the judge was necessarily wrong, merely that it was arguable that he was; in other words, that there was a more than fanciful prospect of a success, not necessarily a better than evens chance of success. I indicated that if the mother agreed, the appeal could be allowed by consent without the need for a hearing. I did so because it is always open to a mother to agree that a father should have parental responsibility, so there was no point in a court hearing if the mother did so.
2. The appeal was listed for 15 May, but the mother's solicitors indicated her consent by a letter to the Court of Appeal dated 13 May. The case was therefore taken out of the list and an order allowing the appeal was made on 28 May.
3. The mother's solicitors wrote to the father also on 13 May, telling him about this but complaining that his booklet entitled "Even Toddlers Need Fathers", and his website www.kipmiller.fsnet.co.uk contained information identifying the child as the subject of court proceedings, which was a contempt of court. They said that if he was not prepared to remove the details, they would apply to the court for his committal. They followed that up with a further letter on 14 June.
4. Meanwhile, on 16 May the father wrote to the County Court, applying for His Honour Judge Milligan to recuse himself from the case. At that stage there was no live application currently before the court in any event. The case has been reserved to His Honour Judge Milligan for some considerable time and all the substantive orders in it have been made by him. The father's ground was that a judge who does not believe in the principle that a child has a right to know both his parents has no business hearing family cases; he is not therefore an impartial tribunal for the purpose of Article 6 for the European Convention on Human Rights. The court replied on 24 May that the judge saw no grounds to remove himself from the case.
5. On 28 May the father wrote again, repeating his application on the same ground, but also asserting that it was clear that the judge did not believe that he had been wrong to discharge the parental responsibility order. The court replied on 27 June that the judge had refused his application to release the case to another judge.
6. On 2 July the father wrote again, asking for the court to impose an order under section 91(14) of the Children Act 1989 upon the mother and her solicitors, and also for the judge to recuse himself from the case unless he was prepared to state for the public record that it was wrong to take away a child's right to know his own father. On 15 July His Honour Judge Milligan made an order that the father's application be dismissed. On 29 July the father wrote again, asking for permission to appeal against that order, which was refused on 7 August.
7. On 13 August the mother applied for an order that the father be restrained from disclosing or communicating details of the proceedings or the proceedings in the Court of Appeal, other than to his own legal adviser or with the permission of the court, and in particular to restrain the father from publishing any such information on the internet, and an order that he should forthwith take steps to remove from the website all photographs and written material identifying or leading to the identification of the child. That application was listed for 12 September. The father did not attend court on that occasion and the order was made. He has subsequently been in correspondence with the mother's solicitors about what he should do in response to it.
8. This application relates only to the order of 5 July. His Honour Judge Milligan's reasons for declining to recuse himself were that this was not the first application of this kind that the father had made. He had given an earlier judgment refusing it; that had been upheld by the Court of Appeal, and no new arguments were raised.
9. In relation to the application for the judge to recuse himself, the father repeats essentially the same arguments to me. He quotes from Sir William Utting, a former Chief Inspector of Social Services, about the importance of contact between fathers and their sons, given the increased likelihood of poor behavioural outcomes if there is no such contact. He shows me his submission to a call for papers for the Fifth National Congress of the British Association for the Study and Prevention of Child Abuse and Neglect to be held next year dealing with a paper which he would like to present entitled "Fifty Years of 'Maternal Deprivation' Re-assessed".
10. It has been a recurrent theme through all the father's applications and submissions to this court and below, and it is the theme of his booklet 'Even Toddlers Need Fathers', that these courts have been traditionally too influenced by the theory of maternal deprivation articulated and popularised by John Bowlby principally in the 1950s, and have not re-assessed that theory in the light of more recent research findings and in particular the work of Professor Sir Michael Rutter. The father tells me — and in fact it was clear from his approach to the appeal for which I gave permission earlier this year — that he would like this court to make a thorough re-assessment of those theories, hearing evidence and using that hearing to make progress towards a different approach in family law.
11. The difficulty with that is that that is not the role of this court. This court hears appeals from particular orders made by particular courts in particular cases. It does not subject psychological theories to that sort of close examination. A further difficulty is that this court regularly and frequently emphasises the importance for children of knowing both of their parents and so far as that is possible maintaining a relationship with them both. The father cannot expect this court to conduct the sort of hearing that he would like us to conduct.
12. In asking for this judge to recuse himself he relies simply upon the fact that I gave permission to appeal against one aspect of an order he made. That is not a sufficient reason for a judge to recuse himself. There is nothing in all the papers that I have read, having now considered applications in this case on three occasions, to suggest that His Honour Judge Milligan is anything other than an impartial tribunal in dealing with it. He has been urging the father to take up that contact which has been ordered for him in the past — in effect to swallow his pride, accept and make the most of what he considers to be a bad job for the sake of his son. It is regrettable to the judge, and it is regrettable to me, that the father has not found it possible so to do.
13. The application for a section 91(14) order was not properly constituted. It is of course possible for the father to make such an application at some subsequent hearing in relation to this case. He believes that the mother's solicitors at least have been vexatious in various respects. He refers to their application for an undertaking way back in 1998 about the proper fitting of a car seat. He refers to their continued desire to remove his parental responsibility until just before the hearing fixed in the Court of Appeal next May and to their allegations that he has been guilty of contempt of court.
14. Those were not in themselves sufficient to justify the making of such an order. The car seat matter was a long time ago. For the reasons I have already given, the parental responsibility matter was one in which there was something to argue about, which is why I gave permission. As far as the contempt allegations are concerned, it is the right of a party who believes that there has been a contempt of court to draw the matter to the attention of the court. It is then for the court to decide what, if anything, to do with it. Those would not amount by themselves to good reasons for making such an order. In any event the order relates only to applications under the Children Act 1989.
15. For all those reasons I must refuse these applications. I will make the usual order that the father is to receive a transcript of this judgment at public expense.
Lady Justice Hale - Court of Appeal - 4 February 2003
1. LADY JUSTICE HALE: This is an application for permission to appeal against an order of His Honour Judge Milligan dated 12 September 2002. By that order the applicant father was forbidden (whether by himself or by instructing or encouraging any other person):
" 1. From disclosing or communicating details of these proceedings or details of proceedings in the Court of Appeal (2001/2837) to any third party other than
(i) Any legal advisor who 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. He shall forthwith take all necessary steps to remove from his website www.kipmiller.fsnet.co.uk all photographs and/or written material which identifies or could reasonably lead to the identification of the said [child]"
3. I should say at the outset that the fact that frequent applications are made to this court does not mean that they are always misconceived. The father knows that on one occasion I did give him permission to appeal against part of the order which the judge in the court below had made.
4. The question, however, is whether this particular order was justified. There is no doubt that the judge had power to make such an order. Family proceedings are heard in private and that is expressly permitted under Article 6(1) of the European Convention on Human Rights in relation to the welfare of children. Therefore, the court is in charge of what can be made public about it. Proceedings in this court are held in public, but it is routine to prohibit the publication of any information which might identify or lead to the identification of a child who is concerned in these proceedings.
5. There is also a jurisdiction in the courts to grant orders between parents for the purpose of protecting the welfare of children. In making those orders, the court of course has to conduct a balancing exercise. On the one hand, there is the need to protect the welfare of children. This can arise in a variety of ways. Children can be directly affected by the publication of material about them. If this comes to the notice of their school friends or others, then they may be the subject of jokes, teasing, bullying, and worse. Children, particularly of primary school age, are greatly susceptible to embarrassments of this sort. The other way in which it can be harmful to children is if it serves to undermine the confidence and the ability to cope of the person who is looking after the child. That is part of the balancing exercise.
6. The other side of the balancing exercise, of course, is freedom of speech and expression. That is one of the most important of freedoms which are protected under the European Convention on Human Rights. Usually, however, there is absolutely no need for anybody who wishes to publish views and opinions, or academic arguments, research, and discourse about a particular issue, to do so in terms which could lead to the identification of a particular child who has been the subject of proceedings in these courts.
7. The father has a point of view which he wishes to advocate. His Honour Judge Milligan described it as a political point of view, but it is not political in a party-political sense. There are many people who might call it political in the gender political-sense for there are many ways in which that word can be used. He has the view that the courts and the law have been too respectful of the relationship between mothers and their children to the detriment of the importance of the relationship between fathers and their children. He argues that one of the purposes of the Children Act 1989 was to redress the balance: to promote a more equal sharing of responsibility for children between mothers and fathers and to promote the maintenance a good relationship as possible between children and each of their parents should, unhappily, their parents not be living together.
8. The father is correct that that was one of the principles behind the Children Act 1989, in which I take a certain amount of pride. The father points out that he has a certain amount of pride, so I make that comment in response. He also argues that his views are not politically motivated, but they arise because of his qualifications and experience as a teacher with a professional interest in child development, child psychology and the welfare of children.
9. There is nothing in the order that prevents him from expressing or promoting his views in whatever medium he wishes to do, provided that he does not do so in a way which discloses the confidential material in the proceedings or leads to the identification of his son.
10. I have re-read the booklet for the purpose of this application. I notice that it contains now some very old and fuzzy photographs, which are unlikely to lead to the identification of the child. In section 8 it contains some specific examples coming from the proceedings, which again are unlikely to lead to the identification of the child, but could have been stated in a way which did not refer to particular proceedings. That is a good example of the sort of balance that his publications ought to seek to achieve.
11. I have no knowledge at all of the publications and, in particular, the website which prompted the mother's application. But it is clear to me that the judge had the power to make the order that he did and that when he did it he conducted the balancing exercise which I have described.
12. There is a further consideration. That is that the father deliberately did not attend the hearing at which the application for the order was made and the order was made. The judge did give him liberty to apply to discharge it on seven days' notice. No doubt that liberty could also be used to apply to vary it if there are particular aspects in which the father wishes to change the order. It would be quite wrong to allow permission to appeal against an order which the court had power to make, on material which is not fully before this court, where the judge conducted the correct balancing exercise, where the applicant father was not present, and where he does have liberty to apply to discharge the order. It would be wrong for this court to subject the other party to the proceedings to an appeal when, in fact, there has not been a contested hearing in the lower courts.
13. So for all of those reasons, I have to refuse permission to appeal. I am sure Mr Miller understands. I will make the usual order that he be provided with the transcript of this judgment at public expense.
ORDER: APPLICATION FOR PERMISSION TO APPEAL REFUSED
His Honour Judge Milligan - Southampton County Court - 1 May 2003
JUDGE MILLIGAN: On 12 September 2002 an order was made in this court forbidding Mr Miller from disclosing or communicating details of the proceedings either in this court or in the Court of Appeal to any third party other than legal advisers or any other person with the leave of the court:
"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 ... that he take all necessary steps to remove from his website there set out all photographs and/or written materials which identifies or could reasonably lead to the identification of the said E."
On 4 February of this year the Court of Appeal in their turn refused permission to appeal. Reference has been made by Mr Miller to the judgment of Lady Justice Hale in that court. I quote also from it:
"There is jurisdiction in the courts to grant orders between parents for the purposes of protecting the welfare of children. In making those orders the court has to conduct a balancing exercise. On the one hand, there is the need to protect the welfare of children. This can arise in a variety of ways. Children can be directly affected by the publication of material about them. If this comes to the notice of their school friends or others then they may be the subject of jokes, teasing, bullying and worse. Children, particularly of primary school age, are greatly susceptible to embarrassments of this sort. The other way in which it can be harmful to children is if it serves to undermine the confidence and the ability to cope of the person looking after the child. That is part of the balancing exercise.The other side of the exercise is freedom of speech and expression. This is one of the most important freedoms protected under the European Convention on Human Rights. Usually, however, there is absolutely no need for anybody who wishes to publish views and opinions or academic arguments, research and discourse about a particular issue to do so in terms which could lead to the identification of a particular child who has been the subject of proceedings in these courts."
She went on to make the point that the father deliberately did not attend the hearing at which the application for the order was made and the order was made. He had been given liberty to apply to discharge it on seven days notice, and she continued:
"It would be quite wrong to allow permission to appeal against an order which the court had the power to make, where the judge conducted the correct balancing exercise, where the father was not present and where he had liberty to apply to discharge the order. It would be wrong for this court to subject the other party to the proceedings to an appeal when in fact there has not been a contested hearing in the lower courts."
On 4 October, permission to appeal having been refused by me, they wrote again, reminding him that the injunction remained in force. They gave examples of the offending material and repeated the requirement of the order that this material should be removed from the public domain.
On 14 October they wrote on the basis that he was using a new website and reminded him that the order applied to all or any means of public communication.
On 8 January of this year they wrote to him via Freeserve, who were then his internet service provider, who locked his website - this had previously been linked to many others - pending confirmation that he would remove all offending material, and were given an undertaking that there would be no further breach. I have seen the relevant documents. Mr Miller's response was to seek help as to ways round this apparent difficulty, including the question of locating an internet service provider outside the jurisdiction.
On 4 February, as I have indicated, the Court of Appeal refused permission to appeal. Thereafter, Mr Miller found a new internet service provider, publishing the same information and publication of his booklet continues to take place. One website was enlarged to include more recent photographs of E - ironically supplied by this mother, who, as I have found in a number of previous proceedings, has consistently supported the question of contact between E and his father, Mr Miller - contact, as I have said, not taking place because Mr Miller has chosen not to take it up, believing that the contact that was ordered following a full hearing was, in his view, insufficient.
I am satisfied on the documents that I have seen that there has been by Mr Miller widespread discussion of these proceedings, of findings and orders and judgments, both of this court and of the Court of Appeal. This is mirrored in his extracts from the European Court. What in fact is going on here is that Mr Miller is using the public domain for a full exposition of his view of the case and his response to the view that has been taken in various legal proceedings. Therefore, I am satisfied not only that he has failed to comply with this order, which is of itself a contempt, but he has thoroughly aggravated his contempt by responding in the way of continuing the conduct previously ordered to desist and seeking ways round the various restrictions that have been placed upon him.
In those circumstances, I am satisfied, without any shadow of doubt, that on the basis of Mr Miller's admissions as to the matters set out in the notice to show cause as to the ways in which he has disobeyed this order, I am satisfied on his admissions that those matters have been persisted in, in breach of this order, and I am further satisfied that no attempt has been made to remove any of the offending material from the public domain. Mr Miller, I find you plainly in contempt of the order of last September. Is there anything that you want to say to me before I proceed to sentence?
MR MILLER; If the other side would specify exactly where -the precise nature of the offending material, I will be only too willing to ...
JUDGE MILLIGAN: Mr Miller, the examples are far too numerous to be identified individually. I have given my judgment as to the way in which this order has been breached. Do you want to say anything to me as to sentence?
MR MILLER: I apologise to the court if you feel as though I have been in contempt, and I do mean that, your Honour, at any point whatsoever.
JUDGE MILLIGAN: Do you want to say anything to me as to whether you intend to take this material off the ...
MR MILLER: I will, certainly. I have just said, your Honour, if they specify ... I am sorry, but you did say there were too many.
JUDGE MILLIGAN: That is not good enough, Mr Miller. It is for you to go through and to remove from all your public websites, pamphlets, booklets - remove all references to E. It is a perfectly simple proposition.
MR MILLER: I can do that, your Honour.
JUDGE MILLIGAN: Very well. Then this is my decision, Mr Miller. You will come here in three weeks time, Thursday the 22 of May, at 10 o'clock. If all the offending material has been removed and you give me an undertaking not in the future to put any material in any public domain tending to identify E, if those two things are present - if you remove it and you give me an undertaking - then you will hear no more of this. If you fail in either of those two regards you will go straight to prison.
MR MILLER: I think you have been extremely generous, if I may say that, your Honour.
JUDGE MILLIGAN: That is the order I make. Thursday the 22 of May, 10 o'clock. Be in no doubt. If you can tell me that all the offending material has been removed and you give me an undertaking that there will be no further reference to E in any of your public activities, then there will be no more of this. If you are unable to satisfy me as to both of those, you will go to prison. Do you clearly understand that?
MR MILLER: I do, your Honour. Is there any chance of the other side giving me a list or not, your Honour?
JUDGE MILLIGAN: No, Mr Miller, because you can perfectly well go through ----
MR MILLER: Can I ask for a transcript of this hearing please, your Honour?
JUDGE MILLIGAN: For what purpose?
MR MILLER: Possibly appeal, your Honour.
JUDGE MILLIGAN: You will have to put in a notice seeking permission to appeal, and then I will consider it.
MR MILLER: Thank you very much, your Honour. I do really appreciate that.
(The proceedings continued)
Lady Justice Hale - Court of Appeal - 28 July 2003
1. LADY JUSTICE HALE: On 12 September 2002 His Honour Judge Milligan made an order prohibiting the father from publishing material about proceedings relating to his son, E, who is now aged five and has been the subject of a longstanding dispute between his parents. The relevant parts of that order read as follows:
"That [the father] is forbidden (whether by himself or by instructing or encouraging any other person)
1. From disclosing or communicating details of those proceedings or details of proceedings in the Court of Appeal (2001/2837) to any third party other than
(i) Any legal advisor who 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. He shall forthwith take all necessary steps to remove from his website www.kipmiller.fsnet.co.uk all photographs and/or written material which identifies or could reasonable (sic) lead to the identification of the said EJC."
3. 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. However, the father chose not to avail himself of that opportunity, even after my judgment, because he wished to protest against the whole idea that publication of this material might be a contempt of court.
4. At some later date unknown to me, the mother served a notice to show cause why the father should not be committed to prison for breaking that order in number of respects. These are listed at page 27 of the appeal bundle:
"a) Contrary to paragraphs 1 & 2 thereof, the Respondent has published a booklet entitled 'even Toddlers Need Fathers' which contains numerous photographs of the said [EJC], extracts from the Skeleton Argument that he submitted to the Court of Appeal during the course of these proceedings, and quotations from the Judgement of Lady Justice Hale in the Court of Appeal.
b) Contrary to paragraphs 1 & 2 thereof, private correspondence between the Applicant's solicitors and the Respondent regarding the proceedings has been made accessible to the general public via the Respondent's website.
c) Contrary to paragraphs 1 & 2 thereof the applications and Court Orders made during the proceedings are reproduced and can be accessed by members of the general public visiting the Respondent's website.
d) Contrary to paragraphs 1 & 2 thereof, the Respondent has published on the internet a copy of his Application to the European Court which contains extracts of Judgements made by His Honour Judge Milligan and Lady Justice Hale and gives details of the proceedings both in the County Court and in the Court of Appeal.
e) Contrary to paragraph 3 thereof, the Respondent has added to his website a recent photograph of [EJC] and he has failed to remove from his website written material which identifies or could reasonably lead to the identification of the said child."
6. On 1 May 2003 His Honour Judge Milligan found that the contempt was proved. In his judgment he says that that was on the basis that the father had admitted that he had disobeyed the order in the ways set out in the notice to show cause, and that was therefore a contempt of court. He decided to order the father, by 15 May, to:
"remove from any booklet, pamphlet, letter, card, website or other means of public communication any reference whatsoever to his son [EJC] for clarity photographs and of the proceedings concerning him and going on in this Court or the Court of Appeal."
"... shall attend Court at 10.00am 22 May 2003 for the purposes of satisfying the Court that he has fully complied with the terms set out in paragraph 1 of this order and will give an undertaking that nothing tending to identify the child [EJC] will be thereafter placed in the public domain in default of either of these requirements, he has today been warned that he will be sent to prison for his contempt today established."
8. I am told that by 22 May the father had complied with the order of 1 May. He had removed the material from the web site and other means of public communication. There may have been a residual complaint made on behalf of the mother, but the judge did not regard that as being the responsibility of the father. The father tells me therefore that the application to commit him for contempt was dismissed. He also tells me that he does not wish to appeal against the orders made on 22 May. I have not therefore been shown a copy of those orders and I am relying on what he tells me took place. He does, however, want to appeal against the order of 1 May, despite the fact that nothing very serious has happened to him as a result.
9. This leaves the court in something of dilemma, because it is quite clear that the reason why he wishes to appeal is that he wishes to mount an argument that the publication of material of this sort in support of a campaign on behalf of fathers is not in principle a contempt of court. He makes various points. The first is that the Circuit Judge should have separated the two issues of his contempt of court and his application for permission to make another application for contact with his son, and that the contempt application should have gone to a different judge. In that respect he relies upon the decision of this court in the case of G  EWCA Civ 489, and in particular the remarks about going before a different judge which are made by the President of the Family Division at paragraph 21. Those remarks were in the context of a case which concerned an alleged contempt for breach of the general rules of law, not an alleged contempt for breach of a particular order of the court. In those circumstances, one can see why it may be particularly important to separate off the contempt issue and have that dealt with differently. This was a contempt application relating to a particular order. The question whether it is better dealt with by His Honour Judge Milligan or some other judge is a different matter. I cannot say that it was so improper for His Honour Judge Milligan to consider this particular application, given his familiarity with the case, that that would amount to a ground of appeal. I would ask His Honour Judge Milligan to consider whether or not, if there are further applications to commit for contempt in the context of this case, it might not be preferable for those applications to go before a different judge in the light of the repeated requests of the father to have the matter dealt with by a different judge. It is important that the father feels that he has been treated properly.
10. The second point made by the father is that he wrote to the judge in advance of the hearing and asked to be allowed a McKenzie Friend and to call witnesses. He has not shown me a copy of that letter, but he tells me that the witnesses that he wanted to call included Professor Sir Michael Rutter, Sir Bob Geldof and a Mr O'Connell, who was present at court on 1 May. There are possibly two reasons why he wanted to call these witnesses. They were all in basic support of his proposition that his campaign is not politically or dishonestly motivated, as His Honour Judge Milligan had described it in his judgment on 12 September 2002. I made it clear in my judgment on 4 February that I did not consider that his campaign was politically motivated in the normal sense of the word "political". Nor have I any reason to suppose that it is dishonestly motivated. His desire to call Professor Sir Michael Rutter as a witness is because of his desire to obtain that very distinguished child psychiatrist's evidence, in support of his view that the courts' approach to the care of very young children is not in accordance with modem thinking on their psychological needs. His desire to call Sir Bob Geldof is no doubt associated similarly with his desire to show the courts that there is a strong view that their approach to applications by fathers is unfair and misconceived.
11. The judge did not allow these witnesses to be called. In so far as Professor Sir Michael Rutter and Sir Bob Geldof are concerned, there is absolutely nothing in the material before me to indicate that either of them would have been ready and willing to come and give evidence on the behalf of the father on this application. Mr O'Connell was there, but the question of course is whether his evidence would have been relevant to this application. I can see circumstances in which it might have been relevant to whatever disposal the judge might have been contemplating. It might have been relevant, I know not, his witness statement is not so particularly, but it might have been there to show that the father is not politically or dishonestly motivated, but is behaving in this way out of a genuine concern, firstly, for the welfare of his son and, secondly, for the position of children and fathers situated as he is. But of course the question for the judge was whether or not the breaches of the order of 12 September had in fact been made out. The judge says in his judgment that the father accepted that he had done those things. In interchanges in this court it appeared to me also that the father accepted that he had done those things. What he does not accept, necessarily, is that they are breaches of the order, still less does he accept that they are contempt of court. I cannot see a material irregularity in the judge not hearing the witnesses, at least the witnesses as has been explained to me that the father wished to call.
12. The other main point that the father makes was not in his bundle, but it is in documents that he has handed up to this court today. This is that he wishes the Court of Appeal to commission "an expert's court report on contact and the theory of maternal deprivation or, as it is more commonly applied in family proceedings, the tender years doctrine." He considers that the court should address a range of questions of a very important nature about the basis of the theory of maternal deprivation: how it is usually applied in arrangements for contact between separated parents; the research that indicates that interaction between fathers and their babies or toddlers is just as sensitive as that between mothers and their children; other research about multiple attachments without any adverse affect on mother or father; can the theory of maternal deprivation work in a self-fulfilling way, for example, if fathers are allowed only limited contact with their children? Are there any popular misconceptions associated with this theory? Do mothers believe that they should be naturally good parents and feel guilty when they do not live up to these expectations? If such misconceptions exist, is it possible that the courts may perceive it as their role to try and impose these expectations in the interests of the child, even to the detriment of the other parent or the child? Is there any psychological or emotional reason that shared parenting, i.e. the more equal sharing of contact between parents, should not be accepted as normal for children in family proceedings? Are there any other issues related to this theory of which the court should be aware?
13. In his argument in support of this application, he quotes some remarks of mine in a judgment, on another application of his, which I gave on 19th November 2002, in which I said that:
"This court hears appeals from particular orders made by particular courts in particular cases. It does not subject psychological theories to that sort of close examination."
14. For the reasons that I have given, there is no prospect of an appeal against the substance of the order made by His Honour Judge Milligan on 1 May being allowed. That being the question before me, I have to refuse this application as well.
15. 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 may be too wide or may be objectionable and make that application. That would be a much better use of his time and a much greater safeguard against his being subjected to further applications of this sort than any appeal to this court could ever be.
16. So the application is refused. I will make the usual order about a transcript.
ORDER: Application for permission to appeal refused; the applicant to be provided with a copy of this judgment at public expense.
(Order not part of approved judgment)
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."
"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?"
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.
His Honour Judge Milligan - Southampton County Court - 28 July 2004
JUDGE MILLIGAN: This hearing has concerned two applications by the mother of E born in December 1997, and now, therefore, six and a half years old. He is going to be seven just after Christmas. The application is firstly, for a residence order and secondly, for leave to remove or, more accurately, keep E out of the jurisdiction. The respondent to these applications being E's father, Mr. Kip sic Miller.
The brief factual background is that these proceedings have been ongoing since 1998. They began with an application by this father for contact with E. Contact was ordered by the District Judge. The District Judge's order was appealed to me but upheld. Contact at that time was not taken up by this father, broadly on the basis that he did not believe that his rights, or his importance, as E's father were being recognised or proper regard was being paid to them. Accordingly, for reasons I have never been able to understand, he thought it best, in E's interests, that there be no contact at all. It seemed to me, as it seems to me now, that he was confusing preoccupation with his rights as a father with the need for his son is to have an ongoing relationship with his father.
As he puts it, the father has consistently opposed court orders which do not treat the father in the eyes of the child with parity of esteem. What he has been seeking throughout, as I understand it, is some sufficient equality of care and input to E's life so that E should see that his father is every bit as important as his mother. But plainly, of course, in general terms there can be no doubt that to all children both parents are extremely and broadly of equal importance, even if their contribution and input specifically to a child's life may be of a different nature.
But, as I have said, this father, on the basis that he considered that his role as E's father was not receiving sufficient recognition, decided that the best for E was that he should not see his father at all.
Subsequently, following further hearings, it became appropriate in my judgment that an order should be made formally putting an end to the contact, that this father was not taking up and because there had been a high number of applications of a, in my judgment, harassing and persistent nature, it became necessary for orders to be made under section 91(14).
In May of last year father applied for leave to apply for a contact order. He then sought to defer that application, to which I consented, on the basis that he should apply to reinstate it by the 31 August. It is his case that he applied before then. So far as these applications, however, are concerned, he gave his consent in writing to E going to New Zealand with his mother for a period of four months, between December 2003, and April of this year. He says in evidence, on the one hand, that he knows from his position as a geography teacher that New Zealand is a country having much to offer the visitor so that in that sense he was supportive of what was proposed. But he also says that in his mind he signed it, giving his consent, on the basis that he would have contact with E before the child went. He said: "I thought agreeing to that would sweeten my contact."
Whatever may have been his motives it has not been suggested that they were shared with this mother who, in my judgment, was perfectly entitled to accept at face value father's written consent for her leaving the country with E for the period to which I have referred.
I do not think, and have never thought, that this was a case of wrongful removal, notwithstanding that in the events as they turned out, this mother went earlier than anticipated. Father says this was done to frustrate a contact hearing. I have not heard anything that supports that suggestion.
Notwithstanding the consent that he had given the father then sought, through the police, to have the child treated as though he had been abducted.
Again, as the events have turned out, E has remained in New Zealand and is still there at the present time. Of course it follows from what I have said that father's consent to his remaining there ran out in April of this year.
Mother asks leave that E be allowed to stay out of the jurisdiction in the following way. Firstly, she says that it will be in his interests, from a medical point of view. She has put before this court a great deal of information as to professional involvement in E's life since his arrival in New Zealand. There have been, she concedes, behavioural problems. She says that the early diagnosis was of subtle development and learning delays and possibly dyslexia. She gives information as to their investigation with references to a number of appropriate medical teams, paediatricians, neuro-developmental therapists, child and mental health services, and psychiatric assessment. It is her case that a diagnosis of dyslexia has now been made; that generally speaking the New Zealand professionals have been able to identify the nature of E's difficulties; that as a result of the diagnosis, and the help, and support, that has been given, E is now very much more settled than she accepts was the case when they first arrived. He is doing well at school as his report shows. She says he is happy and settled in class. She says that he has made a number of friends, particularly two children who live next-door. She says his paternal grandparents, to whom he is very close, make visits. They stayed with them for just over two months at the beginning of the year. Further visits are planned. His paternal uncle has been making annual trips for the past six years and is anticipated at the end of this year. So she makes the point that remaining in New Zealand will not prevent E having some contact with his mother's extended family.
She speaks of the activities in which E is involved; that he is entitled to free schooling, free hospital treatment, and access to health care. There is a dentist attached to the school for monthly checks. He walks five kilometres to school. He swims. He is playing tennis and there is soccer coaching. He is having swimming lessons. There are fitness aerobic sessions, such as all children, she says, have every morning at school.
So that it is her case that E has exhibited some behavioural problems since his arrival and she accepts that one element of that may be that he is not seeing his father, but given that he has not done so for such a long time, and that he was so young when lie last did, it may be that he has no great recollection of who his father is. But she concedes that the lack, as it were, of a father figure may be a factor, but she points to the professional diagnosis and the course of treatment that has been embarked upon. It is part other case that it would not be in E's interests for these sophisticated arrangements designed for his health and support to be disrupted.
The documents that I have seen by way of medical reports exhibited to her statement categorise his behaviour problems as including lashing out, becoming very angry, ready to throw objects, inability to reason, appearing to be in a different world, safety issues, running out of the classroom, and kicking and pushing other children.
The neuro-developmental therapist concludes — and this is a report dated March of this year:
"In the light of emotional behaviour and the family history factors E may well benefit from referral to child and family mental health services. This has been done."
The child developmental team speak of the fact that his behaviour problems can become very aggressive, especially if he does not get his own way. This has lasted at least six months including attention seeking in public. Mother has tried behaviour modification but that has been difficult to enforce due to his aggression.
The visiting paediatrician doctor has this view: "I personally think that his social circumstances have played a big part in his behaviour. According to the mother his dad has tried in many court battles to get 50/50 custody of him in the UK and as soon as one court case is finished there will be another. Although he does not have contact with his dad in the last few years I am sure he has been exposed to discussion about mum and dad's relationship. I also think that he picks up on mum's stress about all the court cases. I think as a last resort his mum has decided to return to New Zealand where she was born. I think she is able to provide her son with a more stable, stress free life. I do realise that relocation to a new country can sometimes be very upsetting for a child and this can also contribute to his behavioural problems initially. The fact that he is in year two and might struggle a bit with learning can also put more pressure on him. His next problem is that of learning difficulties, struggling with his reading, and writing. His mother says he really struggles to remember words, although his memory of other things like events are very good."
Plainly, as Mr. Miller has said, and as I recognise, there is a certain amount of supposition in the opinion-expressed in that paragraph, based, as it is, upon what has passed, quite properly of course, between mother and the professional paediatrician on the child's behalf.
I think it likely that the doctor's reference to the fact of the relocation giving rise to some settling in difficulties, is likely to be correct.
Dr. Nellins said: "I do realise things like oppositional defiant disorder and other conditions must come to mind. I think it is a bit early to consider that. I would appreciate a second opinion from the CAP team. As to his learning difficulties, and possible dyslexia, he might need some extra classes for input at school."
As I have said, the school report that he has been identified as making pleasing progress in his first year. He is to have the help of a specially trained teacher, and for eight weeks he will be withdrawn from the classroom to work in a small group for thirty minutes -each day from Monday to Thursday. The date of that report is April 2004.
The school also say he has settled in well to class and school routines. He joins in willingly with all class activities. He concentrates closely and is keen to do his best. He is responding well to praise, and mixes quietly with other children in the class, is beginning to establish friendships and has excellent attendance and punctuality. Homework is completed regularly. He enjoys the company of other children. He has formed friendships with some of the boys. He can work independently, or with teacher guidance, although he still finds it difficult to co-operate in group situations. He needs to focus carefully on classroom routines and boundaries. He must take a more serious approach towards authority if he is to benefit from the school's behaviour management incentives and awards.
I indicate straightaway that I find that that part of the mother's case that is based upon the diagnosis and treatment of E's developmental and behavioural problems is made out as it is fully supported by the professional information that has been put before me. She makes the further point, as is supported in the literature, that there can be no quick fix to problems of this nature. She tells me that resources such as those that I have mentioned will be available to E until the age of fourteen.
The mother's own position is that she has no family now in New Zealand. She had, when the application was made, no intention, she says, to emigrate. She is a New Zealand citizen and a registered teacher there.
The other part of her case is this. As she puts it, in some six years there has rarely been a time when a hearing was not taking place, or pending, whether in this court, or in the Court of Appeal, and whether concerning E directly or the question of the publishing by this father of information concerning private Children Act proceedings in the public domain.
Staying in New Zealand, she says, will give some closure to these problems. She says that they have caused her very considerable anxiety. She points out that father refused contact for many years, so that to that extent he has not been denied by E's absence. She said:
"If he will go on pursuing this litigation it is best for both of us that we stay out of the country. I am in an anxiety state. I am taking sedatives. This is the product of the endless litigation, and fear, and anxiety, as to what father will publish on the internet. I want," she says, "to be well away from it. It is affecting us bo E has a life out there. I am no longer supportive of contact. I think he is a dangerous person. He continually undermines me as a mother. I have never received any support. I think he is a destructive force in E's life."
She further says that she is advised that another major change would not be in his interests by which she means a further relocation. Although her case was that she wished to stay out until September of next year, when it would be time for junior school, if E was in his country, she now wishes her application for leave to be open ended.
As to her application for a residence order she says this reflects the realities. She said:
"E has always lived with me. He has done for the entirety of his life. In the events, as they have turned out, he has not seen his father for some considerable time."
He proposes that E's behaviour problems are due to the absence of contact with his father, or at least a father figure, as he has always maintained. He says that this mother deliberately left to frustrate contact. She knew, he said, that he was applying. If the welfare of the child is paramount then E's interests lie in contact being reinstated and the child returning to this country for that purpose.
This mother, he says, has been keeping the New Zealand professions blind to the fact, as he puts it, that she has been acting from start to finish to frustrate the father/son relationship. In my judgment these are the salient features of the applications before me. This father has by his own actions withheld from E the chance of a father/son relationship developing. I agree with Mr. Miller that on all ordinary criteria children need relationship with both of their parents, particularly when their parents have separated. In general terms, and upon general principles, it would plainly be in E's interests to have an ongoing relationship with his father.
Sadly, it is this father, firstly by not seeking to take up contact ordered, and, secondly, thereafter having to be ordered not to do it, that has meant that if E is suffering from a lack of a relationship with his father, then this cannot be said to be the mother's fault and it has to be recognised that it is the direct result of the father's approach to these matters. That has always been, it seems to me, contradictory in that, on the one hand, he says E needs a relationship with his father – a proposition with which nobody would disagree - but on the other hand he says:
"Because my status, my importance, as a father is not being given proper recognition by the courts the appropriate response is for me to simply withhold myself from him."
The father's opposition to the question of a residence order is plainly unrealistic. What other view could the court take? E has lived with his mother since bir His father is no doubt a stranger to him. Mother has been responsible for all E's day-to-day care and general up-bringing. The father has chosen not to participate. The suggestion that a residence order in favour of any parent but the mother is plainly unrealistic. The making of a residence order in the mother's favour simply reflects the realities of the case when seen from E's point of view. She is the parent with whom he has always lived, who has brought him up, and to whom he relates.
What of the application to stay in New Zealand? As I have said, I do not believe that this mother was at any time motivated by a desire to keep the child away from his father. If that had been her interest she did not have to do anything about it because the father has done it for her.
I think there is much force in her case that E plainly was unsettled by the move to New Zealand; that learning and psychological difficulties have been identified; that appropriate and widespread professional help has been secured; that E is responding well to these efforts being made on his behalf as evidenced by the settled life he is living and the positive nature of the school report.
I agree with this mother that it would be quite inappropriately disruptive for all of this good work to be thrown away by requiring E's immediate return to this country.
At this age the help he receives from his particular problems and difficulties will be crucial in my judgment to his longer term development. All of this is in place and it would plainly not be in his interests for it to be disrupted.
I am satisfied on this mother's evidence that he is receiving all appropriate care and support in New Zealand and indeed the leading the happy, settled, and productive life for which the mother contends.
The more difficult aspect of this case is this. This mother applied on the basis of a limited residence in New Zealand, but has now at this hearing sought to broaden it to an open ended arrangement. She says, quite openly, that the effect of-some six years of litigation has been deleterious. She has suffered because of it. Medical assistance and support has been necessary. The undermining other health and well-being necessarily has or may have had some impact upon E. I have to say that I understand that. I consider this argument to be well founded.
She has had, in my judgment, to wrestle constantly with litigation at the suit of the father who sees matters, not in terms of what might be best for E, -save for the limited point that a father/son relationship is important, but looks at it not, sadly, from E's point of view, but from the point of view of his own status, position, standing, rights, as E's father. The tragedy is that he is not able to see that E's rights, E's interests, are more important than what he regards as recognition of his status.
But the application that he came to meet was not that E should stay permanently out of the jurisdiction. This mother has my full understanding when she says that there has been nothing but court cases and hearings over a six year period. In-between times this father bombards - that is no exaggeration - this court with correspondence and documents. It seems that there is little in his life beyond the pursuit of litigation. It seems that his identity of self is found in his, what I dare say he might call ‘crusading litigation’. There is his membership of various bodies and his production of pamphlets. He speaks of "parental alienation syndrome". He speaks, quite rightly, of the serious effect that can be observed on a child by being kept away from one or other of the child's parents.
I find that this mother has never been motivated by any such desire. I find that she feels bombarded by constant litigation. I understand entirely her case that she would wish to be rid of it. I understand entirely her case that she would like to stay in New Zealand so that she and E would be rid of it. But I -cannot, firstly, because that was not her first application, and, secondly, because I must look at these things from E's point of view and at this time countenance open ended leave.
The order that I am going to make is going to give leave for E to stay out of the jurisdiction until August of next year. I am going to give this mother liberty to apply. What I anticipate she will do is to make that application in the spring or early summer, with appropriate supporting evidence. Notice, of course, must be given to this father. I will say that he should have an opportunity to respond in writing, and any way that he wishes, as to his position at that time.
MR, MILLER: Thank you, your Honour.
JUDGE MILLIGAN: It seems to me that I should then review the matter again as to whether leave should be given for E to stay out of the jurisdiction in the longer term.
MR. MILLER: Thank you. I am overwhelmed, your Honour. Thank you very much indeed.
JUDGE MILLIGAN: I make this further point so that this mother shall understand the reasons why I reached this conclusion. Generally speaking, where an application is made to take a child out of the jurisdiction it is made on the basis that full arrangements have been made, and are in place, that the mother has some reason for the relocation; that a refusal of such an application would resound to the child's disadvantage in terms of the effect on the child and either or both parents. But this case is somewhat different. The mother went for a short visit. She has elected to stay. I understand the effect of all this litigation upon her will have been serious but as things stand today, it seems that E has had problems from the relocation, possibly from the lack of a father figure, although I think this will not be in his conscious mind, or because the poor child is dyslexic. These problems are being addressed. That must be right. It would be wrong to disrupt him in the short term. But if it is the mother's intention to stay out of this country in the longer term then an application will have to be made with a great deal more information about where E lives, where he goes to school, what the daily pattern of his life is, and the reasons for proposing that it is in his interest to stay. This is information that is routinely given in support of applications to remain permanently out of the jurisdiction.
So accordingly this is the order that I make. Upon hearing the mother applicant and the father respondent in person it is ordered one, that there be a residence order-concerning the child, E born in 1997, in favour of the mother applicant.
Secondly, that the mother applicant be at leave to keep the child, E, out of the jurisdiction of England and Wales for a period ending on the 31st August 2005, with liberty to the mother to apply for further leave if required.
So that you both understand what is in my mind in making that order if - because you decide - or if you were to be coming back to this country - he would need to be in school a few days later.
JUDGE MILLIGAN: Therefore, he would need to be back in this country by August. That is why I make that order. If there is to be an application for a further extended period, or for an open ended period, it is going to need to be made in good time because I am going to need to be hearing it realistically in July or August at the latest. You know how long these things take. It will have to be an application with the usual information and Mr. Miller would have to be served with it. The injunction restraining him from putting Children Act confidential material in the public domain remains in force.
So no order for costs. Are there any further applications?
MR. MILLER: Can we have the judgment handed down please, your Honour, at public expense? Please? It is such an important thing. It is not as though I have put them on the web or anything like that. None of your judgments are on the web, your Honour.
JUDGE MILLIGAN: Yes, Mr. Miller, plainly you are entitled to a copy of the judgment. I have to hesitate because transcripts prepared at the Court Service expense simply absorb, I am afraid, scarce resources.
MR. MILLER: Yes, I understand.
JUDGE MILLIGAN: Generally speaking what happens is that one party or the other is legally aided and a transcript is obtained by means of the legal aid certificate.
MR. MILLER: It was a pretty long and complicated judgment and both the mother and myself need a copy.
MOTHER: You should have written it down.
JUDGE MILLIGAN: I probably went too fast for that, did I not? Did you get it all down? Can you type?
MR. MILLER: She was joking, your Honour. She was joking.
JUDGE MILLIGAN: I am looking for economic ways of doing this.
MR. MILLER: I know. I get on really well with the office downstairs.
JUDGE MILLIGAN: He is plainly entitled to - so would you be, (mother) - to have a copy of the judgment. It is only a question of----
MOTHER: Why can Mr. Miller not pay for it?
JUDGE MILLIGAN: Resources.
MR. MILLER: Yes, I am broke basically. I have not got a job.
MOTHER: Are you unemployed again?
MR. MILLER: Yes.
JUDGE MILLIGAN: Because, sadly, he does not spend his time in gainful employment. He spends it in rushing around to various organisations that he thinks have the same views as he has.
MR. MILLER: What makes you think that, your Honour? What makes you think that? You have not seen me at anything, your Honour.
JUDGE MILLIGAN: You make no secret of it, Mr. Miller. Yes, I do not see any alternative.
MR. MILLER: Thank you very much, your Honour.
JUDGE MILLIGAN: I am going to say leave to both parties to obtain a transcript of the judgment at public expense.
MR. MILLER: Thank you very much, your Honour. That includes you (mother).
MOTHER: Do I have to do anything?
MR. MILLER: No, what I was going to say to the court - - - -
JUDGE MILLIGAN: What is the procedure about this?
MR. MILLER: I will go and have a word with them.
JUDGE MILLIGAN: I think we can switch off. We have determined the hearing.
Lord Justice Thorpe and Lord Justice Clarke - Court of Appeal - 30 July 2004
1. LORD JUSTICE THORPE: This is Mr Miller's application for permission to appeal an order made by HHJ Milligan in the Southampton County Court on 12 September 2002.
2. The application was before me on 16 February when I directed an adjournment for oral hearing on notice with appeal to follow if permission granted. In making that order I recognised the likelihood that the respondent mother would not attend since she has, in circumstances that are open to some mild criticism, removed the child C to New Zealand. However, solicitors have written to the court on her behalf. A letter of 9th June refers to this fixture and it says:
"In the circumstances, we are instructed to inform you that our client is prepared to consent to paragraphs 1 and 2 of the Injunction Order ... being varied by removing the prohibition against publication of details of proceedings in the Court of Appeal, save insofar as that publication might lead to the identification of the child concerned."
3. Since that concession was made the practice in this court has moved on in consequence of the challenge that Dr Pelling laid to the court's standard practice, and now each case has to be assessed on its individual facts to determine whether or not it merits prohibition on identification.
4. I see nothing in this case to require any particular prohibition and so, accordingly, I would simply propose that the order below be varied to delete any reference to proceedings in the Court of Appeal and, for the sake of clarity, further varied to ensure that in both paragraphs 1 and 2 there is specific reference to the proceedings in the Southampton County Court with case number S098P00026.
5. I would indeed, given Mr Miller's history of responsible campaigning and writing on issues relating to family relationships, go further and ensure that the prohibition distinguishes between evidence in those proceedings and judgments in those proceedings. In my view, given the noticeable trend towards reduction in privacy, that would be appropriate in the circumstances of this case.
6. So the variation will be that paragraph 1 will now appear as:
"From disclosing or communicating any evidence given in the Southampton County Court proceedings S098P00026 to any third party."
7. And in paragraph 2 of the order, variation 2:
"In particular and without prejudice to the generality of the foregoing that he be restrained from publishing any evidence in the Southampton County Court proceedings S098P00026 on the Internet, in booklets or pamphlets or otherwise howsoever."
8. Mr Miller makes the forceful point that in the course of five years of active public debate in this sphere he has never put into the public arena any of the evidence in the Southampton Court proceedings and has no intention of doing so in the future. So, in a sense, the order that I would now propose is not going to change the future course of his campaign, but it is right that the order should go since the proceedings in the Southampton County Court are subject to the provisions of section 97.2 of the Children Act 1989.
9. LORD JUSTICE CLARKE: I agree.