B (a child) O (children), Re

Without notice oral applications for permission to appeal made by litigants in person in family proceedings are not the stuff of which reserved judgments, law reports or publicity in the media are made. The reasons for this are self-evident. Whilst the applications are, or course, important to those who make them, and whilst they represent a significant proportion of the Family Lord Justices’ workload, the views of the Single Lord Justice hearing them are of limited importance. Many such applications have no merit, and if permission to appeal is refused, that is the end of the matter: the appeal to this court is stopped in its tracks. No further appeal lies to the House of Lords from a refusal by this court to grant permission to a litigant to appeal from the High Court or the County Court: - see section 54(4) of the Access to Justice Act 1999 and CPR Part 52 PD 4.8. If, on the other hand, an application has any merit, either permission to appeal will be given, or the application will be listed with the appeal to follow if permission is granted. What then matters, of course, is the decision of the full court hearing the appeal after argument from both sides.

A Single Lord Justice dismissing an application for permission to appeal must, of course, give reasons for so doing. Judgments on such applications, however, are nearly always extempore, and have a very limited legal status. They are, like every other judgment of the Court of Appeal, delivered in open court and in public, although the subsequent transcript of the court’s judgment will frequently be anonymised to protect the privacy of any children concerned in the case.

This judgment will follow that pattern, although in this instance I propose to identify the adults, since Mr. O’Connell’s name, in particular, is already in the public domain in the context of the proceedings in which he has been engaged: - see the case incorrectly reported as In re O (children) [2005] EWCA Civ 759, [2006] Fam. 1 (hereinafter Re O). This judgment will, of course, be handed down in public, but I do not propose to reveal the names or precise whereabouts of the children in the two cases which form the subject matter of the two applications.

On 7 July 2006, there were two without notice applications for permission to appeal by litigants in person in my list, both of which I heard sitting on my own. Both were by fathers who had been denied contact with their children. The first was an application by Mr. David Bradford for permission to appeal against a decision made by His Honour Judge Hunt on 6 February 2006, by means of which the judge had dismissed a number of applications made by Mr. Bradford, which I shall detail later in this judgment. The second was an application by Mr. Shaun O’Connell, who, along with two other applications, sought permission to appeal against an order made by Coleridge J following a hearing on 29 March 2006 in the High Court, whereby the judge had dismissed a number of applications made by Mr. O’Connell (including applications for contact, residence and shared residence) and had also made an order under section 91(14) of the Children Act 1989 (a section 91(14) order) stated to last until 8 October 2009, when the elder of Mr. O’Connell’s two children will be 18, and the younger 16.

Despite the limited legal importance of these two cases, they are, as I have already indicated, of importance to the parents of the children concerned, and, of course to the children themselves. They also seem to me to be typical of a type of application regularly made in this court, particularly by fathers who have been refused orders for residence and/or contact with their children. I therefore decided, most unusually, to reserve judgment on both. I have now, with the intervention of the first fortnight of the long vacation, had the opportunity to re-read the papers in each case, having, of course, listened to argument from both Mr. Bradford and Mr. O’Connell on 7 July. When I have given the reasons for my decision in each of the two cases, I will explain why I think the two cases, despite their minimal legal importance, are nonetheless of relevance for estranged parents in general, and particularly for fathers.

The only child directly concerned in Mr. Bradford’s case is his son, K, who will be 11 later this month. The case was heard by His Honour Judge Peter Hunt, who is the Designated Family Judge for Leeds, a post he has held since 2000. For the purposes of this case, he was sitting as a Deputy High Court Judge of the Family Division. Judge Hunt is an experienced family lawyer, and is held in high respect both on the North Eastern Circuit and elsewhere.

I would not normally begin a judgment in a case in these terms. I do so, however, because throughout his written submissions, Mr. Bradford, when referring to Judge Hunt, put the word “judge” in inverted comments. He explained that, in his opinion, the phrase “Judge Hunt” is an oxymoron, or, in more common language, a contradiction in terms. In his grounds for appeal, he asserts that the judge “was not a fit or proper person to conduct the hearing”, and that the judge had failed to respect Mr. Bradford’s Human Rights and the rights of K. In his skeleton argument he states that the judge “cannot even feign impartiality”, and he describes the judge as a “clown”. He asserts that Judge Hunt’s reason for making an order for supported contact in a contact centre was “in retaliation” for Mr. Bradford making formal complaints against the judge to the Lord Chancellor’s Department and the Department of Constitutional Affairs. There are other derogatory epithets which I need not set out.

It is, of course, quite common for disappointed litigants to attempt to shift the blame for their lack of success in the litigation onto the judge. As will be clear in my discussion of Mr. O’Connell’s case, this court is astute to ensure that litigants in person are treated courteously and fairly by judges at first instance. This court does not hesitate to criticise judges who behave badly towards litigants in person, whether the judges in question are members of the Circuit or the High Court bench. Mr. O’Connell, in particular, knows this because he acted as a McKenzie friend in an application for permission to appeal in which I was critical of a High Court Judge. My response to Mr. Bradford’s attack on Judge Hunt is not, therefore, an automatic, knee jerk reaction. If I thought that Judge Hunt (or, for that matter, Coleridge J) should be criticised, I would not hesitate to do so.

Mr. Bradford, however, like other litigants in his position (including, I have to say, Mr. O’Connell), seems unable to understand that an intemperate and wholly unwarranted attack on the integrity of a judge – for which there is no evidential basis and which derives only from the fact that the judge has rejected the applicant’s case - tells me much more about the litigant than it does about the judge.

Apart from repeated assertions by Mr. Bradford, there is absolutely nothing in the papers made available to me by Mr. Bradford which would even begin to warrant the criticisms of the judge which Mr. Bradford makes. His decision to place the word “Judge” in inverted commas each time he refers to Judge Hunt, therefore, is not only discourteous, it is both immature and counter-productive. In combination with the other aspects of the case, to which I will now turn, it demonstrates that Mr. Bradford has completely lost sight of the principal focus of the case – the welfare of his son - and has become wholly preoccupied with what he regards as an ongoing battle with mother of his child, based on the erroneous premise that it is she, aided and abetted by the judge, who is responsible for the fact that he is not seeing his son. In reality, the fact that he is not having contact with his son is entirely due to Mr. Bradford’s conduct. Thus the case, viewed from Mr. Bradford’s perspective – and indeed as he accepts in his written argument - now has very little to do with son’s welfare, and everything to do with Mr. Bradford’s preoccupation with the alleged behaviour of his former partner and the judge.

Mr. Bradford is English, and a practising member of the Church of England. K’s mother comes from Mauritius, and Mr. Bradford describes her in the papers as a ”non-practicing Hindu” (sic). It does not appear that K’s parents ever married, and since the breakdown of their relationship, Mr Bradford appears to have married an Englishwoman who is a Roman Catholic, by whom he has a daughter, G.

Although I am, of course, only concerned with the order made by Judge Hunt on 6 February 2006, my starting point has to be a judgment of Ward LJ given in this court on 19 October 2005. From this it is apparent that proceedings between K’s parents have been ongoing for a very long time. The only objective evidence about the earlier proceedings supplied to me by Mr. Bradford in the court bundle comprises (1) a copy of an order made by Judge Hunt on 29 June 2005, and (2) Ward LJ’s judgment. Ward LJ, sitting alone, refused Mr. Bradford’s application for permission to appeal against Judge Hunt’s order of 29 June 2005. Mr. Bradford did not attend before Ward LJ, but the latter’s judgment is, nonetheless, illuminating.

The order made by Judge Hunt on 29 June 2005 had directed contact between Mr. Bradford and K on alternate Sundays at a local contact centre between the hours of 2.00pm and 4.00pm. Other applications made by Mr. Bradford were dismissed. The judge imposed an indefinite order under section 91(14) of the Children Act 1989 (a section 91(14)order), and directed that all future applications were to be reserved to himself. He would consider any such applications “on a paper review” before directing whether the application should be dismissed or that it should be served on K’s mother and / or her solicitors. He directed a transcript of his judgment at public expense. A copy of this judgment does not, however, appear in my papers.

Having recited the terms of the order, Ward LJ in his judgment of 19 October 2005 continued: -

“3.

I have looked carefully at the written material placed before the court.  This is a passionate father, one described by the judge as obsessive and I begin to see why.  He complains bitterly about many things, going back over years.  For example, he complains about the order made by Charles J.  He complains about maladministration and misconduct by the immigration service.  He complains about the welfare officers.  He complains about legal aid.  He complains about the respondent's solicitors.  What he cannot concentrate on is the order which he seeks to appeal, and that is the only matter which I can deal with today.

4.

His Honour Judge Hunt is familiar with this case.  There is a complaint that the trial was unfair because Mr. B was stopped from asking the several hundred questions he planned to ask.  There is nothing to support that allegation before me.  The management of the hearing was for the judge to control.  He was perfectly entitled to prevent unnecessary and oppressive questioning, and nothing in the papers before me suggests that this trial was in any way unfair.  The judge addressed the correct principle.  He made findings of fact well within his power to make, such as in paragraph 14 of his judgment his saying:

"The statement, I am afraid, reveals completely the father's total inability still to accept the past decisions of the courts.  As a statement in these Family proceedings, it makes only fleeting reference to [K's] welfare.  The content of that statement and the content of many of the father's questions of the witnesses today, amount to proof positive that the father remains, in my judgment, obsessively locked in to his distorted view of the mother as a person.  He maintains an obsessively distorted view of the mother's qualities as a parent to [K]."

5.

There are other important findings, such as in paragraph 18:

"... I find that the risk of [K] being harmed emotionally by the father perhaps behaving irresponsibly with [K] continues to be a risk of overwhelming proportions."

6.

In the light of that finding it is not surprising that the judge ordered that supported contact should continue to take place.

7.

I see no real prospect of successfully appealing that order and I would dismiss this application.  Given the flurry of applications that were before the court then, there was every justification for making an order under section 91(14).  I know, however, that a transcript of this judgment will find its way to Judge Hunt.  The order he made is without limitation of time.  That is an unusual order and one which might in other circumstances be subject to a limited appeal on that point.  I will not give permission to do so because I am confident that Judge Hunt will keep this matter under review, having retained it to himself, and can, if and when the circumstances justify it, remove the unlimited restriction and allow things to return to normal when they can and as soon as they can.

8.

So that is the postscript to the judgment to which I invite the judge's attention.  The postscript to the judgment to which I invite the father's attention, though with no great confidence that he will take any notice of it, is to urge upon him to reflect again that the child's guardian, who earlier in these proceedings was supportive of the father, has changed his mind because he fears that the father's attitude to the mother, bristling with hostility as it is, risks the misfortune of driving a wedge between K and his father.  The father would do well to read paragraph 22 of the judgment, which I will quote again:

"By his obsessive, blinkered and distorted views of the mother, the father is now not only putting the quality of his contact at the margins, he is in fact now running the grave risk of losing [K's] sympathy, love and respect altogether.  This risk may develop to a point where there is a risk that [K] opts out of the contact and declines any longer to see his father.  He is certainly rapidly reaching the age where he will tire of conflict at this level."

9.

So the tragedy is that this father runs the risk of losing contact altogether, notwithstanding the fact, as he knows, that this little boy loves his father, but he also loves his mother and being put into the middle of a conflict of this sort will run the risk of his preferring his mother and losing respect for his father.  Mr. B should reflect upon it and should moderate his behaviour.  He can make a noble and easy gesture by arranging to provide this boy with a British passport, and so take some steps to mend the fences which he has broken.  But his application is hopeless and I dismiss it.

10.

A copy of this judgment should be prepared at public expense and sent to him and, of course, to the court.”

Ward LJ’s refusal to grant Mr. Bradford permission to appeal against Judge Hunt’s order of 29 June 2005 is a matter of record, and his conclusions are binding on me. I cannot go behind them. That means, of course, that Judge Hunt’s order of 29 June 2005 was properly made, and stands.

I have to approach Judge Hunt’s order of 6 February 2006 in that light. I note, in passing, that on 16 December 2005, when refusing Mr. Bradford permission to pursue any or all of the applications he had issued, and dispensing with service of each of them on K’s mother, Judge Hunt nonetheless afforded Mr. Bradford the opportunity of an oral hearing to review any part of the order made on the papers on that day. In my judgment, this was the correct procedure. It mirrors that which obtains in this court when, following a refusal of permission to appeal on paper, an applicant for permission to appeal is entitled to an oral hearing. The same procedure in relation to applications for permission to apply for an order during the pendency of a section 91(14) order was recently approved in this court in the cases of Everett and Stringer [2006] EWCA Civ 1190, judgment in which was handed down on 18 August 2006.

I also note in passing that the decision to grant Mr. Bradford an oral hearing (something which, strictly speaking Judge Hunt was not required to do) does not seem to me the action of a judge who is said to have the attributes attributed to him by Mr. Bradford and identified in paragraph 7 of this judgment.

The applications which Mr. Bradford sought to advance before Judge Hunt on 1 February 2006 are accurately recorded by the judge in his reserved judgment given on 6 February 2006. They are as follows: -

(a)

a contact order by which K’s mother would be required to allow K to attend the baptism of K’s half sister who lives with the Applicant and his wife …. ;

(b)

a specific issue order requiring that K attend a secondary school with a Church of England foundation;

(c)

a specific issue order requiring that K be taken to a Church of England service on Easter Day;

(d)

a direction that the Applicant should be provided with a transcript of his cross examination of K’s guardian in the hearing last year at which I made a defined contact order and the order under section 91 (14).

The judge explains that the reason he reserved judgment on 1 February was because Mr. Bradford had told him that Ward LJ’s judgment of 19 October 2005 (which was not before the judge at the hearing on 1 February 2006) lent some support to Mr. Bradford’s application under (d) above. Between 1 and 6 February 2006, the judge obtained a copy of Ward LJ’s judgment and concluded, correctly in my view, that there was nothing in it which was capable of adding to the merit of the application under (d) above. The judge then continued: -

“I have on more than one occasion in the recent past delivered judgment in which I have explained why the court must continue to regard the Applicant as someone whose behaviour with and towards K and his mother is highly likely to be affected by a grossly distorted and unreasonable feeling of hostility that he holds towards the mother. The risks are so real and significant that I have taken the unusual and regrettable step of directing that K’s contact with his father must continue for the foreseeable future to be in the context of supported contact at the (location omitted) contact centre. I made the orders of 29^th June 2005 well aware that they precluded K from being with his father and his father’s new family even on important and happy occasions such as a baptism. I am not able to regard as sincere the applications that K’s mother should be required to take him to a Church of England service at Easter, or on other festivals, or that she must enrol him in a church maintained school. The Applicant conceded that he had made no particular issue about these matters at the hearing in June 2005. Unfortunately the Applicant’s history of issuing flurries of applications all at once counts against him. I had in the end to treat the many applications issued prior to the 2005 hearing as frivolous and mischievous. Nothing said by the Applicant to me on 1^st February 2006 causes me to take a different view of any of these applications. I am left with the clear impression that the Applicant continues to be motivated to cause more anxiety and distress to K’s mother by forcing her into litigation about K. I found in June that K’s mother had been significantly harmed emotionally by the stress of repeatedly having to respond to the litigation, most of which has been prompted by the Applicant’s numerous applications to the court, these having come frequently, and over a period of many years now, throughout K’s life.

My order therefore is to dismiss all of the applications take out by the Applicant on 9^th December 2005”.

The reference to Mr. Bradford’s cross examination of K’s guardian apparently relates to questions which Mr. Bradford put, and which were designed to elicit information as to the means whereby K could be supplied with a British passport. There is, of course, a reference to this in paragraph 9 of Ward LJ’s judgment. Mr. Bradford’s case appears to have been the K’s mother was frustrating the obtaining of a passport for K by refusing to complete and sign the appropriate documentation.

Whatever the rights and wrongs of this point, Mr. Bradford informed me on 7 July 2006 that the passport issue had been resolved. K either now had, or was in the process of obtaining a British passport. The issue thus departs from the case, and any appeal against Judge Hunt’s refusal to grant relief under (d) becomes academic.

In my judgment, there is no realistic prospect of Mr. Bradford being successful in challenging Judge Hunt’s refusal to allow Mr. Bradford to pursue the applications identified as (a) to (c) in paragraph 18 of this judgment. If I needed confirmation of Judge Hunt’s accurate assessment of Mr. Bradford, I find it in his skeleton argument and the other documents (limited as they are) which he has placed before this court.

Leaving on one side his attacks on the judge, Mr. Bradford’s references to K’s mother amply justify Judge Hunt’s conclusion that he has a “grossly distorted and unreasonable feeling of hostility” towards her. He accuses her several times of criminal acts involving fraud and perjury. He discloses a communication with her in which he threatens an application to the court “if Hindu (mother’s name) does not consent to K attending G’s christening”. He says that “if you had not abducted K and made a fraudulent application for a residence order, K would now be attending a church school”. He makes one quite extraordinary statement, which I recite without further comment: -

“There is a law going back to Edward the Confessor that everyone must walk to church on Christmas day. I require observance of the law!”

Mr. Bradford’s hostility to K’s mother emerges very clearly from everything he says. One passage occurs a number of times, and warrants repetition: -

“The history of the case contains fraudulent applications for court orders and public funding of the mother’s advocates; the concealment of / failure to obtain key evidence by the mother and officers of the court; contempt of courts by officers of the courts; wilful neglect to public duty; perversion of the course of justice. The criminal offences have been formerly reported to the Police. Two inspectors, each from a different station, have indicated their inability to investigate unless / until invited to do so by a court. ‘Judge’ Hunt has reserved the case to himself and has refused my application for a lateral transfer. Accordingly, there has been no investigation of the allegations. Even when I made a specific order application for a review of the misconduct / criminal conduct of named officers of the courts, ‘Judge’ Hunt did not even bother referring to such serious matters in his ruling – presumably because he did not even bother considering them. ‘Judge’ Hunt denied me the right to a fair hearing.”

It is also to be noted that Mr. Bradford discloses an exchange of Emails between himself and the solicitor whom he wished to instruct to argue the applications before Judge Hunt. That solicitor advised him strongly (and in my view correctly) against the prosecution of an appeal against Judge Hunt’s order of 29 June 2005, That advice concludes with these words: -

“Further I must advise you that potentially you are running the risk of the court considering whether or not to make a “vexatious litigant” order against you. It is likely that the Court of Appeal will be very concerned by both the history of the litigation and the number of applications you had made, which were before Judge Hunt on the 29^th June 2005.”

Mr. Bradford’s grounds for appeal read as follows: -

I have no hesitation in rejecting all five grounds. Judge Hunt was right not to recuse himself following Mr. Bradford’s unfounded allegations against him. A litigant cannot elect a different tribunal by making wild and unfounded allegations against a judge who had found against him. Sadly, the only insight which Mr. Bradford shows in the documentation before me is his recognition at page 23 of the bundle that “the present situation has far more to do with the relationship between the “judge” and me than it does with the relationship between my son and me”. This is one of the few statements which Mr. Bradford makes with which I agree. But he mistakes the cause. The reason Mr. Bradford is now seeing K is not either K’s mother or Judge Hunt: it is Mr. Bradford’s behaviour.

I will return to the implications of this type of application at the end of my judgment. In the meantime, I will simply say that Mr. Bradford’s application for permission to appeal against Judge Hunt’s order of 6 February 2006 stands no prospect of success whatsoever, and is refused.

I should perhaps add that when reserving judgment, I invited Mr. Bradford to send to me copies of the various Welfare / CAFCASS reports, of which he was critical. He has not done so.

Mr. O’Connell is the father of two children, a girl (M) who was 14 and a half at the date of the hearing before Coleridge J and a boy (A) who was then approximately 12 and a half. The order which Mr. O’Connell seeks to appeal was made by the judge following a hearing on 29 March 2006. It records that it was made after hearing counsel for the children’s guardian, and the parents in person, although Mr. O’Connell had the assistance of a McKenzie friend. The order also records that Mr. O’Connell left court before final submissions and judgment, and without an application for permission to appeal against the judge’s order having been sought.

The order itself dismisses Mr. O’Connell’s applications (1) for the removal of the children’s guardian from the proceedings; (2) to instruct a child psychologist; and (3) for contact, residence and shared residence. As I have already recorded, it makes a time-limited, but effectively permanent order under section 91(14). It directs the preparation of a transcript of the judge’s judgment at public expense, and it gives the children’s guardian permission to serve a copy of the transcript on the proper officer of the local authority, on the head teachers of the children’s schools and on the children’s general practitioner.

How did the case reach Coleridge J? In this regard, I can speak with personal knowledge as I was a member of the constitution of this court which remitted the case to him. The two judgments by which this court did so are recorded at [2005] EWCA Civ 573 and [2005] EWCA Civ 759. The second is these is reported as Re O. As I have already pointed out, this designation is incorrect, as we did not impose any reporting restrictions, and the case should have been reported using the names of all three fathers. The O was, of course, Mr. O’Connell.

There is, I think, a danger of what we said in these two cases being misunderstood. I therefore begin my analysis of Mr. O’Connell’s current applications for permission to appeal by re-visiting them. It will be remembered that in the reported judgment, this court was hearing three cases together, in two of which (the cases of Mr. O’Connell and of Mr. Watson) the trial judge had refused to allow the two fathers the presence and assistance of a McKenzie friend.

In Mr. O’Connell’s case, we began the reported judgment by setting out our understanding of the history. This is what we said: -

“12.

Although we do not have all the papers, it is clear that Mr. O'Connell has been engaged in litigation about his two children (now aged 13 and 11) in the Southampton County Court for a very long time. The first substantive hearing, in which Mr. O'Connell sought residence orders in relation to the children, concluded with a judgment given by HH Judge Milligan on 1 December 1997. The judge made residence orders in favour of the children's mother, granted Mr. O'Connell staying contact every alternate weekend, and reserved any further applications to himself. ”

13.

Judge Milligan formed an unfavourable view of Mr. O'Connell in 1997. He described him as conducting a campaign against the children's mother and said he was blind to the children's needs insofar as they came second to his own plans.

14.

On 12 April 2000, HH Judge Milligan gave judgment on Mr. O'Connell's second application for residence of, alternatively contact with, the children. By this time, contact had ceased. On this occasion the judge's criticisms of Mr. O'Connell were even stronger. He recorded that Mr. O'Connell had made numerous complaints against the professionals in the case and had refused to accept the outcome of those complaints. The judge made the same assessment of the parties that he had made in 1997: he found that Mr. O'Connell remained obsessed with his unfounded view that the children's mother was abusively mistreating them. He found that Mr. O'Connell had manipulated the children by inappropriate questioning. Nothing, he held, had changed since 1997. The judge concluded his judgment with these words: -

"Does the father do this deliberately or unwittingly? The mother feels that he is motivated by revenge. I think this is possible. I think it also possible that he has such a low opinion of her that he is determined that his opinions and views shall prevail over hers. It is in my judgment equally likely that he has some mental or psychological block that simply prevents him from considering any other point of view. But for these unfortunate children the result is the same. When I identify the seriously abusive conduct of this father towards his children, in manipulating them to speak ill and falsely of their mother for his own ends, or inducing them to a state of confusion and anxiety placing an enormous strain upon them, for the reasons and in the circumstances which I have indicated, I am left in no doubt that for the present time any further contact between this man and his children is strongly contrary to their interests."

15.

The judge then made an order under section 91(14) of the Children Act 1989 without limit of time. It is fair to say that in doing so he was encouraged by counsel for the mother, who when asked by the judge whether she was asking for a given period, replied: "Your Honour, I do not. I leave it open".

16.

On 22 January 2002, the judge refused an application by Mr. O'Connell for permission to bring proceedings for shared residence and / or contact. Once again, he found nothing had changed. Giving leave at the present time, he said, would be to expose the children to considerable emotional risk and would be an act almost of irresponsibility. He refused permission to appeal and kept the indefinite section 91(14) embargo in place.

17.

Mr. O'Connell unsuccessfully sought permission to appeal against the order of 22 January 2002 from this court. At an oral hearing on 19 April 2002, Sumner J refused the application. Expressing himself in more moderate language than that used by Judge Milligan, Sumner J nonetheless took the view that the application for permission to appeal was doomed to failure. At paragraph 10 of his judgment, he said: -

"I am left with the clear impression that Mr. O has within him the potential to be a caring and concerned father. Of his love for his children I am in absolutely no doubt; it is clear and genuine. But reading the judgments and the papers, it is apparent that what has happened now is that either the injustices or the perceived injustices – the lack of investigation, the poor quality of all the professionals and the misleading of them – has become a matter of obsession. The difficulty with that is the reaction it has had on the children. I would invite Mr. O’Connell to go back and read the earlier judgment of Judge Milligan and note the physical effects that it has had on the children. It is set out, as I recall it (and I am speaking from memory now) on page 1, and it is repeated later. The children have at various times expressed their own feelings for their father, but have asked that he does not behave in this way."

18.

That is the background against which, on 29 September 2004, Mr. O'Connell issued a further application for permission to apply under section 8 of the Children Act 1989 for a shared residence order relating to his children. He also sought an order transferring the proceedings to the High Court and for Judge Milligan to recuse himself. In order to assist him make those applications, Mr. O'Connell made a preliminary application for the assistance of a McKenzie friend.

19.

On 5 October 2004, HH Judge Milligan directed that Mr. O'Connell's application be listed without notice to the children's mother on 1 November 2004 with a time estimate of one hour. Although Mr. O'Connell asked for the application to be listed before a different judge, Judge Milligan took the view, correctly in our judgment, that an application for him to be recused from the case could not be made to another judge.”

Our judgment then records that Judge Milligan delivered a short judgment identifying the applications Mr. O’Connell was making, and explaining why he was refusing them. Our judgment continues: -

“22.

Having concluded his short judgment, the judge remarked, it seems to us without any provocation from Mr. O'Connell: "I remain hopeful, Mr. O' Connell, that one of these days you will find it possible to put your children first". When Mr. O'Connell protested that he was, the judge delivered a homily, which the transcript records as follows:-

"JUDGE MILLIGAN: No, put them beyond your consuming view that you have been mistreated, and misunderstood, and everybody has ganged up against you, and all the professional agencies, and your wife, and everybody you can think of, and you are a misunderstood man. Please, Mr. O'Connell, ask yourself just once perhaps they might have got it right and you might have got it wrong.

MR O'CONNELL: I have evidence of perjury and the perversion of the course of justice and misfeasance in public office.

JUDGE MILLIGAN: You must adopt whatever position you think is appropriate, Mr. O'Connell. I simply make that appeal to you. You have heard it before. Out of fairness to your children I make it again today. You come to me in a different frame of mind and anything might be possible. I have no wish, ambition or desire to keep you from your children, Mr. O'Connell. I only do so because in my judgment you are an emotional danger to them. You know what that is. We have been round the course a number of times. You are entitled to your view and I respect it. One of these days I hope you will have the humility to reconsider. You do not have to respond. I am simply telling you what is in my mind."

23.

We bear very much in mind that the judge had dealt with Mr. O'Connell over a period of some seven years, and had formed the clear view that his obsessional behaviour had caused serious damage to his children's emotional well-being. For the purposes of this judgment, we are prepared to accept that the judge is right about that. Mr. O'Connell also may well have tested the judge's patience in court on a number of occasions. We understand that. But we do not think that either the history of the case or Mr. O'Connell behaviour on 1 November 2004 warranted the judge addressing Mr. O'Connell in the terms set out above. The judge's use of the phrase "You come to me in a different frame of mind and anything might be possible" seems to us unfortunate.

In a section of the judgment headed Judicial treatment of litigants in person, we repeated that we were prepared to accept that Mr. O’Connell had all the attributes Judge Milligan found him to have. The point we were making, however, was that this fact did not, in our view, justify Judge Milligan’s refusal of the assistance of a McKenzie friend, or warrant gratuitous remarks (however well intended) from the bench; nor, of course, did it warrant the denial of a fair hearing, to which the refusal of the McKenzie friend lent some colour. Nothing on the transcript of that hearing indicated that Mr. O’Connell had misbehaved in any way. Our judgment was not, however, concerned with the merits of Mr. O’Connell’s applications, as paragraph 23, set out at paragraph 35 above, makes clear.

Our conclusion, in accordance with the submissions made to us by the advocate to the court, Mr. Robin Spon-Smith, was that the judge had been wrong to refuse Mr. O’Connell the assistance of a McKenzie friend, however hopeless the judge perceived Mr. O’Connell’s substantive applications to be. Furthermore, having made contact with the solicitors acting for the children’s mother, who was, of course, not present, we were able to reach the following conclusions: -

“76.…..We need to point out, of course, that in Mr. O'Connell's case there was no representation or appearance on behalf the children's mother since, somewhat unusually, Ward LJ had directed that the appeal should be heard without notice to her. No doubt this was because the order under section 91(14) of the Children Act 1989 in Mr. O'Connell's case required any application for permission to be made initially to the judge without it being served on his former wife.

77.

We were, however, able to make arrangements for her solicitors to be contacted, and they made it clear that were their client offered the opportunity to appear, it was highly unlikely that she would wish to do so. She was content for Mr. O'Connell's application for permission to apply for a shared residence order to be dealt with in this court. The solicitors acknowledged that permission to appeal might well be granted by this court, and that their client's position was fully protected since she would be able to deal with the application for shared residence/contact in the trial court on its merits.

78.

We decided to proceed both with Mr. O'Connell's appeal against Judge Milligan's refusal to allow him the assistance of a McKenzie friend, and with his appeal against the judge's adjournment of his application for permission to make an application under section 8 of the Children Act 1989. Whilst against the background we have described, it may be that Mr. O'Connell's application for shared residence has little prospect of success, we took the view in the light of the judge's remarks post judgment that we had no alternative but to extend the limited permission to appeal given to Mr. O' Connell by Ward LJ in order to allow him to challenge the judge's section 91(14) embargo. We then allowed Mr. O'Connell's appeal, and directed that his application under section 8 of the Children Act be listed before Coleridge J, the Family Division Liaison Judge for the Western Circuit, for directions, with a view to Coleridge J either hearing the application himself, or allocating it to a different circuit judge. In making that application, Mr. O'Connell will, of course, be allowed the advice and assistance of a McKenzie friend.”

In a separate judgment, given on 28 April 2005, Thorpe LJ (with whom I agreed) had explained our reasons for permitting Mr. O’Connell to make a further application to Coleridge J: -

“2.

The points are really threefold.  What the applicant sought from the judge on that day at a without notice hearing was a direction that the case should be transferred to the High Court, and separately that Judge Milligan should recuse himself from further sitting.  Lastly, the applicant sought permission to issue an application for a residence or shared residence order. That was necessary since there was in place an order made under section 91(14) prohibiting issue without the permission of the court.

  
3. The applicant informs us that the restriction under section 91(14) was imposed by Judge Milligan five years ago or thereabouts, and was of indefinite duration.  That is a form of order the propriety of which has been frequently questioned in appeals to this court.  Accordingly, I would take the unusual course of saying that the judge should have addressed the application and decided it on 1 November.  Had he done so, he would properly have perceived the need at least to grant it rather than to adjourn it indefinitely.  There needs to be real progress and we have the assurance that the solicitor for the respondent has accepted that permission might be granted by this court this afternoon.  He accepts that his client is fully protected since she will be able to deal with the application in the trial court on its merits.

4.

Accordingly, all we need do is to say today that the application for permission to issue is granted.  The applicant is therefore at liberty to issue in the Southampton County Court his application for either a residence or a shared residence order.

5.

It is abundantly plain to me that Judge Milligan must part from this case permanently.  We have had the opportunity of reading what I think may not unfairly be described as gratuitous observations by Judge Milligan to the applicant on 1 November, and I can well understand how a litigant would feel that justice would not be forthcoming for him before that judge in the light of those observations. 

6.

So the application when listed will be referred to Coleridge J, who will either take it himself or will arrange for it to be heard by another judge of his choosing, excepting of course only Judge Milligan.

7.

Paragraph 1 of the order will in due course be set aside and an order granting permission to the applicant to disclose the papers in the case to a McKenzie Friend for the purpose of the proceedings only, and to have the assistance of a McKenzie Friend at any hearing until further order, will be dealt with in our judgments which we have reserved and will emerge in the orders which flow from those judgments.  All we have done this afternoon is to validate the applicant’s desire to issue in the county court.

8.

We have provided that future proceedings should not be listed in front of Judge Milligan, and we have laid upon Coleridge J the burden of either hearing the application to be issued, or alternatively making arrangements on the circuit for it to be heard by another judge.”

I do not resile from anything which either I said or to which I agreed in either of these two judgments. The points this court were making were simple. The judge had been wrong to refuse to allow Mr. O’Connell the assistance of a McKenzie friend. The judge had also been wrong, however great the provocation, to address to Mr. O’Connell the gratuitous remarks which we recorded. The judge may well have been right in his overall assessment of Mr. O’Connell, but even if he was, there was a question mark over any indeterminate section 91(14) order, and we would well understand how a litigant in Mr. O’Connell’s position “would feel that justice would not be forthcoming” in the light of what the judge had said. In the trite but valuable phrase, the case was not about justice being done, but about it being seen to be done.

So, what this court offered Mr. O’Connell was a fresh hearing in front of a different judge; moreover a judge, who would come to it with an open mind and who would make his own assessment of Mr. O’Connell and the children’s welfare. This was the best he could have achieved in this court. We could not adjudicate on the merits of Mr. O’Connell’s claims. This court does not hear evidence or find facts: it reviews.

In the event, that judge turned out to be a High Court Judge of the Family Division, and the Family Division Liaison Judge for the Western Circuit. Mr. O’Connell thus achieved his ambition for the matter to be heard in the High Court. There was a full hearing before Coleridge J, in relation to which both of the children’s parents were in person (although Mr. O’Connell had the assistance of a McKenzie friend) and the children, through their guardian, were represented by counsel. As the judge records, Mr. O’Connell did not remain for the whole of the proceedings, and, in particular, was not present for judgment.

Against this background, Coleridge J’s judgment is all the more devastating for Mr. O’Connell, since it amply confirms the analysis previously provided by His Honour Judge Milligan. In crude, non-judicial language, Mr. O’Connell, in the judge’s eyes, plainly “blew” the chance we gave him. Instead of persuading Coleridge J that he had a case which had been misunderstood by Judge Milligan, the judge found that Mr. O’Connell had clearly demonstrated that everything Judge Milligan had said about him was correct.

Coleridge J begins his judgment by reference to the decision of this court on 28 April 2005. He then identifies the main relief sought by Mr. O’Connell, and in paragraphs 6 to 8 identifies the additional relief also sought, the reaction of the other parties to it, and what happened: -

“Ancillary to the main applications for residence and contact, the following applications are also before the Court now. Firstly, by the Father, that the Guardian should be removed. Secondly, that a psychologist should be appointed to assess the children, in particular, a Dr Lowenstein, the American exponent of that much questioned theory ‘parental alienation syndrome’, and if not that expert then another. He also alluded to the possibility of seeking disclosure of further documents but that application never proceeded.

The Guardian on behalf of the children also applies for the re-imposition of the Section 91(14) restriction on the Father’s ability to make further applications without the leave of the Court. The Father advanced his applications this morning in relation to the removal of the Guardian and the appointment of the psychologist, at great length, and with his customary articulate and, if I may say so, lucid presentation. At 2 o’clock, he, having presented his applications throughout the whole of the morning and referred me to a number of documents, and indeed played me a tape of events now some ten years old, I indicated that I was not going to accede to these two applications and that I would give judgment on all applications at this conclusion. I therefore moved on to the third application, namely the substantive application for residence, shared residence or contact and the Guardian’s application under section 91(14).

At that point without warning the Father indicated that he wished to take no further part in these proceedings and left the Court. Accordingly, he has not been in Court this afternoon to hear any further submissions put to me by the Mother and the Guardian. However, he is not at a real disadvantage so far as that is concerned, because I have scarcely called upon the Guardian, in the light of the fact that the Guardian produced a most helpful and succinct skeleton argument setting out the Guardian’s position in relation to all the applications in advance of this hearing. That was available yesterday. The Father protests that he only received that this morning, but I find that unlikely, given that he is in e-mail communication with all the parties in this case, including my Clerk, and I am assured that this was e-mailed to him yesterday evening. I too received it yesterday. So the Father has had the whole morning to advance his two main applications, and has chosen to take no further part this afternoon in relation to the remaining applications of which he had good notice and which he knows I was about to deal with. ”

The judge then returns to the history, and having summarised it, proceeds to explain his decision over the following 13 pages.

Coleridge J’s judgment is, in my view, all the more difficult for Mr. O’Connell to challenge for three particular reasons. Firstly, of course, the judge had the opportunity to form assessments of both Mr. O’Connell and the children’s mother (a task which is uniquely for the trial judge and not for this court). Secondly, the issues before him were largely matters of fact and not of law. The judge thus made findings of fact (again, a function of the trial judge, and not of this court). Thirdly, and as importantly, he took an innovative and imaginative step in an attempt to break the deadlock. He arranged a meeting between Mr. O’Connell and the children, at which both the judge and the guardian were present, and which he describes in his judgment in the following way: -

“Following the Court of Appeal’s decision that the Father should have leave to proceed again, I wanted to try a fresh approach, given the total lack of any progress over the previous nine years. Accordingly, at my suggestion, and with the parties’ agreement, last November, by order, I set up a meeting at Bournemouth Crown Court in a room away from the Court where the Father and children could meet in a neutral environment, observed by me and the Guardian. The reasons for my taking that approach are set out in a Judgment which I gave at the time. It has been transcribed and it is in these papers. I do not propose to repeat the reasons that drove me to take that particular course. I am conscious that it was a bold and unusual step. Deliberately so, I was determined to try again for the children’s sake.

At that time the Father was again seeking the raft of orders for disclosure and the orders that he sought today, but all in the context of the children repeatedly and forcefully asserting to anyone they came across that they wanted nothing more to do with the Father at any price. It therefore was an unorthodox course which I deliberately adopted. It seemed to me to be necessary to see if the impasse between the children and their Father could be somehow breached. What I hoped essentially was to see if there was even the smallest glimmer of a possibility that, if all the parties, and in that respect I mean the children and the Father, could put the past behind them, then perhaps some tentative steps in the rebuilding of the relationship with the Father might be possible. I did not expect miracles. I hoped, perhaps naively, that the Father might ameliorate his adversarial approach in the interests of trying to get things started by one means or another.

The meeting took place on 2^nd December 2005 and, at the Father’s suggestion, and it was a good one, it was recorded. There is a transcript in the papers today of that meeting. Sadly my hopes were completely ill founded. Within seconds of the Father appearing in the room with the children, he was referring to past events and criticising the past behaviour of all and sundry. The children’s reaction was, in those circumstances, predictable. They were absolutely adamant when talking to him that they wanted nothing to do with him or the Court process, or indeed psychologists, or anything else. They wanted to be left in peace to get on with their young lives, which are self evidently and despite everything progressing very successfully.

However, I should mention two things which struck me from the meeting. Firstly, the children were truly impressive, people. Both of them were highly intelligent and very articulate. M in particular is described by the Guardian as mature for her years. I also found that. The second aspect is in relation to the transcript itself. I would wish to underline that it gives no impression of the vehemence with which these children expressed their views. They are truly fed up that they are still the subject of these applications. And I felt, more than that there was real anguish in them over the possibility of their continuation. The adults have created this mess, was the impression I got from them, and it is time for the adults to stop the mess continuing.

I do not propose to read sections of the transcript, which needs to be read in its entirety, but the following small extracts emphasise the point. On page 8 of the transcript the daughter, M, says this: “I don’t want to go with you. I don’t know why it is so hard for everybody to understand that. Finally somebody’s actually asking us what we want because we have always had people speak to us”. I quote that extract because it reminds me that one of the factors which drove me to set up the meeting was that the Guardian had reported on more than one occasion that M, in particular, wished herself to be part of the process and not merely have others report on her behalf.

Again, on page 14, the daughter emphasises this: “We’re just fine the way we are. We don’t want to change it. We just don’t want to change it”. And later on A says this: “We would have to go to the station every week to see you”. And I intervened to say, “Well, leave aside every week, but what about from time to time?” A replied, “I’d hate to do that. I’d absolutely hate it”. Again, real vehemence, which was apparent to me. On page 15, Mr O’Connell said and I quote, “I would like a psychological report”. And M replied, “We’re not going to go and see a psychologist. You always boss everybody about”.

The final extract which I would draw attention to is A saying on page 19 (and in a sense it sums up what was said through the meeting) I quote, “But whatever happens after all this, still, I don’t want to see you. Whatever happens, whatever you say, whatever, we don’t want to see you. So get that, get that in your head and we don’t want to see you and that’s it”. It was truly an impressive meeting and it is one which certainly affects my views of how to proceed. ”

The meeting itself is, of course, a matter of record. The judge was present at it. He records his clear impressions, back up by the transcript. There can, in these circumstances, in my judgment, be no challenge to what happened, or to either the judge’s analysis of what happened and why, or to his assessment of the children. These were all matters for him, not for this court.

In his judgment, Coleridge J then gives his response to Mr. O’Connell’s applications. He comments firstly on the volume of the documentation produced by Mr. O’Connell, which he describes as “nine bundles, containing literally thousands of pages of documents”. He records the fact that Mr. O’Connell’s position statement ran to 263 closely typed pages. The judge described it as “a general treatise of family law and practice with excursions into human rights and child psychological theory”.

The judge had read much of the documentation, but did not pretend to have read every document that Mr. O’Connell had put before him. Mr. O’Connell seeks to rely on that statement by the judge as evidence that he did not give Mr. O’Connell a fair hearing. I do not agree. Given that much of the documentation is manifestly irrelevant both to the question of the children’s welfare and to the outcome of the case, a decision not to read and respond to every piece of paper Mr. O’Connell chose to place before him is not something for which the judge can be criticised.

The judge then cited from the statement filed by the children’s mother. Having given a description of the two children, she stated: -

“Later in the statement she says this “The harmony in this family often gets broken by a kind of ghost, a ghost with a name, Sean O’Connor. He is the man I married first, many years ago, and he is the natural father of my children. Things did not work out and I started a new life with my two little ones, but he did not. Sean got stuck in the past, never moved on and started this campaign against me first, and then against every single professional who got involved in the case, including social workers, doctors, health visitors, welfare officers etc. Sean O’Connell does not really want the children. He just wants revenge. He cannot accept that he failed as a husband and as a father”. And she concludes her brief and carefully statement with these words, “Finally, please, somebody has to stop this man harassing my family and myself”.”

The judge then records that he had heard from the children’s guardian at some length, as Mr. O’Connell wished to cross-examine her. He had been afforded every opportunity by the judge to do so. The judge also listened to a tape recording produced by Mr. O’Connell “from way back in the past” – part from 1995 and nothing later than 1998. I have also listened to the same tape.

The judge then recorded the following: -

“So the position on the evidence today, as affirmed by the Guardian both in her report and in evidence to me today, is that the children are extremely well settled, developing as sensible and balanced adults and they want to be left alone to get on with their lives. In addition to the evidence, I have had skeleton arguments, as I have indicated, by the Guardian and a very lengthy statement by the Father, running, I think, to some 59 paragraphs over six pages. It is his arguments in support of his applications today. The essence of the Father’s stance is that he wants the entire past to be re-opened and re-investigated from first to last. Every previous report which has been produced he wants re-examined. He will never be content until he has achieved that.”

The judge then proceeded to give his reasons for the decisions to which he had come. He dealt firstly with Mr. O’Connell’s application for the removal of the guardian. This is what he said: -

“The first application is by the Father that the present Guardian should be removed. He says in written and oral submission that she is not impartial and she is not acting for the children. He says she has not been professional and she has failed to investigate properly a whole raft of concerns which he has. Most of them go back many, many years and relate to the children’s presentation at a time, no doubt, when they were deeply embroiled in the immediate aftermath of the parties’ separation.

The full extent of his arguments is set out, as I say, in the document he has filed. But essentially it is that if the Guardian has not herself re-investigated all those matters which were in fact investigated at the various times by the Social Services, the schools, the doctors, then she has failed in her duty. The first thing to be said about an application to remove a Guardian is that it is a power that has to be exercised with great care and exceedingly sparingly. Litigants cannot pick and choose a Guardian. To allow that to happen would gravely undermine their ability to operate throughout the case fearlessly and with independence in the children’s interests.

I have no hesitation in saying there is not one scintilla of evidence to support or justify the Father’s application. On the contrary, I have found this Guardian has performed her function extremely professionally. She has, within a short time, become a real friend to the children and a help to them through these difficult times. She has represented their interests extremely efficiently and sensitively, as is her task. She is not there to be particularly even handed between the parties for its own sake; she is there to support and represent the children’s interest. Far from criticising her, I would indeed commend her for her excellent work and her work directly with the children. To dismiss her in the face of that work would be a slap in the fact so far as her support and representation of these children is concerned.

The guardian’s own Counsel, as I have indicated, has produced a brief argument in support of the retention of the Guardian. He says that the criticism of Mrs Evans in reality amounts to a complaint that she fails to agree with him. I agree that is really what it amounts to. Accordingly, I would not accede to that application and it will be dismissed.”

The judge then turned to Mr. O’Connell’s second application, namely that a psychiatrist should be appointed to carry out an assessment of the children. He deal with this in the following paragraphs: -

“The second application by the Father is for the appointment of a psychiatrist to carry out an assessment. The Father’s point is that whatever the children may say, however vehemently they may be saying it, their views cannot be accepted. What they say is not what they mean. Accordingly, the only way in which it would be possible to be certain that their expressed views were indeed their real views would be to appoint a psychologist to carry out in-depth assessment of the children, and report to the Court.

The application is opposed by the Mother and the Guardian. It is misconceived, in my judgment. The Father is convinced that the children’s views are planted by the Mother. It is far more likely, in my judgment, that the children’s views are the result of the Father’s actions and behaviour. Whether one describes their attitude to their Father as alienation or not, they certainly are vehemently expressing their views at the moment, and what I saw in my meeting with them, were two children who knew exactly what they were saying and why they were saying it.

It would be wrong to believe that this is one of those cases where the children’s views have been bent by the Mother’s own hostility to the Father. I do not find that to be the case. As the Guardian has pointed out, there has never been a difficulty about the children talking about happy events in their past, when the Father took part in their care. There are photographs of the Father freely available to the children in the home, and indeed the Guardian told me, in evidence this morning, that the children showed her pictures of the Father from a photograph album kept in the house. So, there is no particular warrant for the assertion that these children’s views are not their own, but the product of warped brain washing.

But quite apart from that, the application by the Father is hopeless for two other reasons. Firstly, there is no evidence that they need any assessment at all. They are happy and well adjusted children, doing well at school. That is not the basis upon which the Court orders psychological assessments. Finally, and as if it was not enough, to make such an Order would be completely pointless because the children have indicated, both to the Guardian and to me at the meeting, that they would not take part in any further assessments. Accordingly, it would not be possible even to achieve an assessment of the children. It is impossible to carry out a psychological assessment without a very large measure of cooperation by the person being assessed. I am satisfied that these children would refuse to take part and if they did take part, I would also be satisfied that they would not be prepared to co-operate to the extent necessary. Accordingly, I will not involve these children in any further psychological assessment or assessment of any kind.”

The judge then dealt with Mr. O’Connell’s application for contact. This is what he said: -

“Which brings me to the third and main application, which is, in the first place for contact, although the Father ideally seeks residence or shared residence. He seeks that in the face of the children’s clear wishes and whatever may be the reasons from the past as to why they are saying it. It is an Order which I would not contemplate making at present. I have seen them. I have heard them and I propose to listen to them. I respect their wishes. If I made an Order now they would not obey it, and no Court would enforce it. It would be utterly counter-productive so far as the possibility might remain that the children one day might resume a relationship with the Father. At the present time, I am afraid to say that the application by the Father for contact, much less residence or shared residence, is hopeless.”

The judge then dealt with the guardian’s application for the re-imposition of the order under section 91(14). Here, he correctly directed himself in accordance with the judgment of Dame Elizabeth Butler-Sloss P in the leading case of Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 at 592. The judge implicitly criticises this court for its criticism of Judge Milligan’s decision to impose an order under section 91(14) unlimited in time. This is, I think, a misunderstanding of the two judgments by this court from which I have cited extensively earlier in this judgment, but nothing turns on the point. The judge dealt with the application in an extended and important passage in the judgment, which warrants citation in full: -

“The Guardian against sets out in written argument the reasons why she wishes this restriction to be put in place. And it is, of course, relevant remind oneself that this is not the first time such a restriction has been put in place. It is in relation to this Father and these children, I think, the third such application. The Guardian relies on these factors, set out in paragraph 30 of the skeleton: “(a) the repeated failures of the Father is his applications to the Court; (b) the Father’s repeated desire to re-open matters covered in previous litigation; (c) his total disregard for the children’s wishes and feelings; (d) the Father’s lack of insight or empathy; (e) his inappropriate application for an expert to report on the children (and I would add to that and his application without serious cause for the Guardian to be removed); (f) his inability to accept the past has little or no relevance now on any application brought in respect of the children; (g) the Father’s relentless appetite for litigation in justification of his skewed view of justice”. And in paragraph 31, Counsel’s argument says, “Above all it is clear that the Father still has no conception of what is in the children’s best interests.”

I am urged further by Mr Hale, on behalf of the Guardian, having heard the Father give evidence this morning, that insofar as there could be any doubt in my mind about this matter, having seen Mr O’Connell advance his applications this morning, the Guardian is even more fortified in her concern to achieve such an Order. The Father is on a crusade in relation to the past, and the Guardian says to me that in her opinion there is a very real risk of emotional harm to these children if this litigation goes on any longer.

The Father, in my judgment, is abusing the family justice system and the system itself is in serious danger of abusing the children if these proceedings are not ended here and now and for good. The Father has been warned and counselled by Judges over and over again, that he will not achieve his aim by endless forensic brute force. He has been invited to step back and look again. But he knows better and heeds no such warnings or advice. The system cannot be used by litigants to fight campaigns against the statutory services for its own sake. I have to have well in mind, particularly nowadays, the children’s wishes and feelings. Mr Hale referred me to the case of Marbon in 2005, where the Court of Appeal once again underlined and reiterated the importance of the Court taking full account of children’s wishes, particularly children of this kind of age.

In my judgment, having seen the children myself, they have come to the end of their tether. The continuation of these proceedings in the teeth of their opposition is a gross invasion of their human rights, their rights to a reasonable private and family life. Those of us who work in the Family Courts day in and day out are apt to forget the terrible stress and pressure that is visited on a family by relentless court process, making incursions into their lives at regular intervals during the course of a year. This has been going on for nine years. The Father has been subject to a Section 91.14 Order before. He cannot but have realised that if he persisted, he would be likely to be visited by such an Order again. The Guardian applies to protect these children. She is right to do so. It is most certainly in their interests that they should receive that protection from the Court.

What the Father seems quite unable to appreciate is that the ongoing proceedings are doing much more harm to the prospects of his seeing the children that if he desisted. However, that he has totally lost sight of the real purpose of these applications. The Order will run until 8^th October 2009, when M is 18 and A is 16. Mr Hale, is there anything else?”

From this particular passage, I extract the following conclusion reached by Coleridge J, for which I largely use the judge’s own words: -

“(1)

Mr. O’Connell was abusing the family justice system and the system itself was in serous danger of abusing the children if these proceedings were not ended “here and now for good”;

(2)

The children had come to the end of their tether, and the continuation of the proceedings in the teeth of their opposition was a gross invasion of their ECHR Article 8 rights;

(3)

The proceedings had been going on for nine years, and the children needed to be protected;

(4)

Mr. O’Connell had totally lost sight of the real purpose of the applications.”

The simple questions for this court are (1) whether or not there was material upon which the judge could properly reach these conclusions in order to make the orders he made; and (2) if there was such material, whether or not the judge can be said to have been plainly wrong in doing so. These are the questions which any attack on the judgment must seek to address.

Before I turn to examine Mr. O’Connell’ attack on the judgment, however, I need to remind myself that, although the application for permission to appeal against Coleridge J’s order of 29 March was undoubtedly, in my view, the most important of Mr. O’Connell’s applications, there were in fact three matters before me on 7 July, comprising two applications for permission to appeal (Court of Appeal reference numbers B4 / 2006 / 0522 and 0931), and an application notice seeking a stay of the order of 29 March 2006 (also given the Court of Appeal reference number B4 / 2006 / 0931 / A). In these circumstances, Mr. O’Connell asked that each be allotted one half hour. In the event, Mr. O’Connell addressed me, without any substantial interruption from myself for the best part of one and a half hours. Furthermore, after I had reserved judgment, he sent me a copy of the “actual oral argument”, which has been very helpful. The same document records that the hearing began at 10.57 am and ended at 12.36pm. Mr. O’Connell thus had slightly more than his hour and a half in which to put his case.

Plainly, the third application, for a stay of Coleridge J’s order, stands or falls with the outcome of the application for permission to appeal the order of 29 March 2006, If Mr. O’Connell’s application for permission to appeal against the substantive order fails, there will be no prospect of it being stayed.

I will therefore deal firstly with the application made by Mr. O’Connell for permission to appeal against an order for directions made by Coleridge J of his own motion on 22 February 2006. This fixed the hearing of the guardian’s application for an order under section 91(14) for 29 March 2006 (time estimate one half day) and directed the filing of evidence by the parties and a report from the guardian setting out her position on all the various applications before the court. The guardian was directed to prepare a court bundle and any skeleton arguments were to be filed by 27 March.

It is, I think, self-evident that the order made by the judge on 22 February has been overtaken by and subsumed in the substantive order made on 29 March. Thus, even if there were any merit in Mr. O’Connell’s application for permission to appeal against it, the application would be academic. I propose, nonetheless, to examine it on its merits.

The principal objections to the order of 22 February which Mr. O’Connell advances in his grounds of appeal are that (1) on the date the order was made, he had not received any application by the guardian under section 91(14); (2) that Coleridge J’s order was premature and in breach of Mr. O’Connell’s ECHR Article 6 rights; (3) that there was outstanding an application by Mr. O’Connell for no less than 18 different directions which had not been heard; and (4) that it was not open to the guardian to apply for an order under section 91(14) when she had not carried out her statutory duty properly to investigate the issues in the case.

I do not think there is any substance in any of these points. Mr. O’Connell’s own revised chronology shows that the guardian issued her application for a section 91(14) order on 15 February 2006. Even if Mr. O’Connell did not receive a copy of that application by 22 February, what the judge was doing by his order of 22 February was giving sensible case management directions, designed to ensure that the section 91(14) application was duly heard on 29 March, and that proper evidence would be available from the parties to enable the application to be determined on that day. There is abundant authority in this court for the proposition that a litigant in person is not to be taken by surprise by an application under section 91(14): - see, for example, Re M (minors) (contact: evidence) [1998] 1 FLR 721.

Rather than breaching Mr. O’Connell’s Article 6 rights, therefore, the judge was ensuring that M O’Connell had proper notice of the application, and could deal with it on its merits. Whether or not it had any merit was to be determined at the final hearing, not in advance. It was a matter entirely for the guardian as to when she made the application, and what enquiries she undertook prior to doing so. If the application was premature, or if the guardian did not have sufficient information on which to make it, or if it was to be argued that she had not carried out adequate investigations, the time to raise those issues was at the final hearing – as, indeed, Mr. O’Connell did.

The order of 22 February was a straightforward case management decision well within the discretion of an experienced High Court Judge. The length of time allowed to the application under section 91(14) is a matter for judicial discretion, and in allotting half a day to it, the judge was properly exercising a wide judicial discretion with which it is impossible for this court to interfere. The fact that Mr. O’Connell produces a 271 paragraph skeleton argument in support of his application for permission to appeal against this straightforward and sensible case management decision is in my judgment, disproportionate. Any attack on this order had to be made at trial, and not in this court.

There is, accordingly, neither point nor substance in Mr. O’Connell’s application for permission to appeal against Coleridge J’s order of 22 February 2006, and his application to do so is, accordingly, refused.

This leads me to the substantive application, namely permission to appeal against the order of 29 March 2006. In this instance, Mr. O’Connell’s grounds of appeal run to 113 paragraphs. In addition, I have (1) a skeleton argument dated 25 April 2006 (which runs to what I can only describe as a staggering 1,231 paragraphs over 216 pages); (2) an addendum skeleton argument dated 12 June 2006, which runs to 367 paragraphs over 48 single spaced A4 type-script; (3) a further undated addendum skeleton argument (running to 20 pages and containing substantial citations of the Data Protection Act); and, finally (4), the document to which I have already referred, namely the argument on which Mr. O’Connell addressed me for approximately 90 minutes on 7 July.

I propose to address Mr. O’Connell’s application largely by reference to the argument which Mr. O’Connell addressed to me on 7 July. The problem which I face is that very little of this mass of material (supplemented as it is by several bulging ring binders) addresses Coleridge J’s judgment. Quantity is never a substitute for quality. The issues in this application are, in fact, short and very simple, and I have summarised them in paragraph 57 above. I regret to say that much if not most of the documentation provided by Mr. O’Connell simply fails to address these straightforward issues, and is thus irrelevant for the purposes of the permission application. Furthermore, its very bulk is counter-productive, and tends to lend support to the conclusions which Coleridge J reached about Mr. O’Connell in paragraph 42 of his judgment.

The simple questions at the heart of this case can thus be very simply expressed. Is it in the interests of these two children that they should have contact with their father? Was there material upon which the judge could properly make the assessments and the findings which he made? If there was such material, was Coleridge J plainly wrong in answering the first question in the negative?

The court starts from the premise that, generally speaking, the application of the welfare test in section 1 of the Children Act 1989 means (1) that contact with a non-resident parent is in the bests interests of children, and (2) that it requires compelling evidence for such contact to be refused. That was the test applied by Coleridge J, and it is the test applied by this court.

Much of what Mr. O’Connell writes is, with all respect to him, absurd. Thus on page 2 of the document from which he addressed me, he asserts that his Article 6 rights have been violated, and: -

“… the manner in which I have been treated to date makes me believe that I am a victim of a politically correct institution. Jews in the WW2 were better treated and put out of their Misery but I am persistently being tortured – something even ECtHR accepts as a violation of Article 3 of the Convention e.g. Tekin v Turkey where mental torture is recognised.”

ECHR Article 3 is manifestly not engaged in this case. Furthermore, in my judgment, the argument that Mr. O’Connell did not have a fair trial before Coleridge J, and that his ECHR Article 6 rights have thereby been violated simply does not bear examination. This court afforded Mr. O’Connell the opportunity of a fresh hearing before a judge other than His Honour Judge Milligan. Mr. O’Connell had that hearing, at which he was in person, as was the children’s mother. Mr. O’Connell had the assistance of a McKenzie friend, something which had been denied him by Judge Milligan. Coleridge J heard him fully, and he had every opportunity to advance his case. The fact that he left the proceedings before they had concluded does not mean that his Article 6 rights have been infringed: to the contrary, a litigant who walks out of properly constituted and conducted proceedings before they have been completed is, in my judgment, in difficulties in raising an Article 6 argument.

The “torture” argument is an illustration of Mr. O’Connell misunderstanding of the applicability of ECHR Convention law to the facts of this case. Once again, the law is very simple: all the parties, including the children, have ECHR Article 6 and 8 rights. Every order under section 8 of the Children Act and, in addition, every section 91(14) order, involves an interference by the state with the ECHR Article 8 rights of the parties. The task of the judge, accordingly, is to balance the competing right of the parties (including, of course, those of the children) and to reach a result which it, in the court’s opinion, in their best interests. That, in my judgment, is plainly what Coleridge J did. The question, which I repeat, was whether or not there was material upon which the judge could properly exercise his discretion as he did.

Mr. O’Connell’s difficulty, as, once again, I have already stated, is that the judge was largely dealing with issues of fact. This is particularly the case in relation to the meeting with the children, which was recorded. In the section of his address which deals with this meeting, at which, of course, the judge was present, Mr. O’Connell asserts that “it was clear that the respondent mother and stepfather have manipulated them….. Their hostility was illogical and at times severe manifesting many of the features of parental Alienation Syndrome”. And in a passage which he underlines, he states: -

“Yet my children have not been able to tell fact from fiction, truth from falsity and unless an expert independent and impartial child psychologist is brought in the children will not have their psychological integrity respect, their voice will not be heard or their medium and long term best interests or their welfare respected.

If after the meeting with my children Mr Justice Coleridge had any real concern that there was no problem with them, he would not have made the order dated 31^st January for a half day hearing for directions.

The Guardian had sought three experts as of 17^th November but the person who thought an expert was not so urgent was Charles Hale QC after reading the Guardian’s initial core bundle which did not include the evidential material necessary only the orders and judgments and the social worker’s flawed and invented investigations.”

The difficulty I have with this passage is that the judge’s findings in paragraph 15 of his judgment onwards do not support it. In particular, the judge was very impressed with the two children, and his finding in paragraph 34 was that the attitudes of the two children were far more likely to be the result of Mr. O’Connell’s actions and behaviour than any actions and behaviour by their mother and step-father. In paragraph 35 of the judgment, the judge finds in terms that “it would be wrong to believe that this is one of those cases where the children’s views have been bent by the mother’s own hostility to the father”. The judge backs up that assertion by reference to the children talking about happy events with their father in the past, and the presence of photographs of Mr. O’Connell “freely available to the children in the house”. Indeed, the children had shown the guardian photographs of Mr. O’Connell from a photograph album kept in the house. The judge thus concluded that there was no particular warrant for the assertion that the children’s views were not their own, but the product of “warped brain washing”. These findings were reinforced by the judge’s own assessment of the children. They were, in his view, “happy and well adjusted” and doing well at school.

These are findings of fact made by the judge on the evidence. Was there material on which he could make them? Plainly, there was. Was he entitled to make those findings? Plainly he was. For the purposes of this application for permission to appeal, the fact that Mr. O’Connell does not agree with them and asserts to the contrary is neither here nor there. It was the judge’s task to make his own assessment of the characters and personalities of the children and their parents. Unlike many judges in his position, he had met the children. He was impressed with them as people and as individuals. He found as a fact that their views were their own and not imposed on them by their mother. It was uniquely his task to make those assessments. Unless he has misdirected himself in some way, or unless the evidence simply was not available to make such findings, that is the end of the matter. This court cannot and will not intervene.

The judge was of the view that Mr. O’Connell’s attack on the integrity and competence of the children’s guardian was unwarranted. I have set out the passages from the judge’s judgment in which he deals with this issue. He was manifestly entitled to come to that view. Whether or not the children are Gillick competent is irrelevant to this issue. The idea that they should have been “shown the papers concerning them before court”, as Mr. O’Connell believes, is misplaced. A determination to see the guardian’s notes avoids the real issue, which was the guardian’s relationship with the children and the manner in which she fulfilled her task. The judge found “not one scintilla of evidence to support or justify” Mr. O’Connell’s application. He found that the guardian had performed her function extremely professionally. She had become a real friend to the children and had been “a help to them through these difficult times” To dismiss her would be “a slap in the face” so far as her support and representation of the children in concerned. The judge accepted a submission that Mr. O’Connell’s criticism of the guardian really only amounted to a complaint that she failed to agree with him. There was ample material upon which he could reach that conclusion, and, in my judgment, he cannot be criticised for doing so.

In the section of his argument headed “Coleridge’s judgment”, Mr. O’Connell accuses the judge of wrongly refusing to re-open previous hearings on the ground of cost. He says of the judge: “His only concern has been with cost” and that the judge offered no guarantee sufficient to exclude any legitimate doubt in this respect as afforded by Article 6 of ECHR”. I do not understand that argument, but the suggestion that Coleridge J refused to re-open past issues simply on the ground of costs is plainly untenable. The judge had a wide discretion, given to him by this court, to re-investigate the case in the manner he thought most appropriate. In addition to Mr. O’Connell’s ECHR Article 6 and 8 rights, the judge had to balance a number of factors, including the same rights enjoyed by the children and their mother, the stress on the children and their mother of so doing, and what was likely to be achieved in so doing.

Thus the manner in which the investigation proceeded was pre-eminently a matter for the judge. What he decided to do was innovative and gave Mr. O’Connell a unique opportunity to restore his relationship with his children in a face to face meeting, of which a record was kept. The judge’s assessment of that meeting is, in my judgment, rational and clearly well-observed. There was plainly material of which he could reach the conclusion about it which he did: he was plainly entitled to make his own assessment of the children. Once again, the fact that Mr. O’Connell does not agree and gives a different interpretation to that of the judge is neither here nor there. Moreover, the evidence here is a matter of record, and can be objectively judged.

It is furthermore nonsense for Mr. O’Connell to rely on the fact, as he does, that he was, initially at least, ignorant of what was said in the judgment because “once the applications for removal of the guardian, appointment of child psychologist and disclosure had been refused, I had no choice but to leave court as the Appeal of the order of 22 February was awaited to be heard”. If Mr. O’Connell thinks he was right to leave the court when he did, he is gravely mistaken. It was not only discourteous of him to do so, it was downright foolish. It makes it very difficult for him to mount an Article 6 argument. Coleridge J did not, as Mr. O’Connell asserts “ignore the children’s welfare, and ignore anything I said and misled himself and further he introduced matters he never raised in court.” It is very plain to me that Coleridge J was motivated throughout, as he himself rightly says, by section 1 of the Children Act 1989 (see paragraph 28 of the judgment).

In my judgment, Mr. O’Connell’s concentration on the past has blinded him to the issues before the judge. The judge was clearly of the view that no further psychiatric examination of the children was called for, and that discovery of additional documentation was a waste of time and did not address the simple issue of what was in the best interests of the children. As I have already made clear, that was an entirely legitimate stance for him to adopt.

The simple fact of the matter is that the judge rejected Mr. O’Connell’s assertion that “the blame for any suffering of my children [and there is a long history of problems] resides entirely with the mother, step father and the State bodies and biased judges”. Coleridge J, as he rejects Mr. O’Connell’s case, appears to join the list. He was, Mr. O’Connell says “merely protecting the lower court judges he is responsible for”. There is no evidence for such an assertion, and as I stated in paragraph 9 of this judgment in relation to Mr. Bradford’s case, an intemperate and baseless attack on the integrity of the tribunal tells me more about Mr. O’Connell than it does about Coleridge J’s judgment.

I both listened to, and have now had the opportunity to read, Mr. O’Connell’s submission. I do not propose to address it line by line, or point by point. To do so is unnecessary, and would be to misapply my own function. Proportionality is important. Had a lawyer produced the volume of irrelevant material produced by Mr. O’Connell, he or she would have been severely criticised by this court. The fact that I have been moderate in my criticism of Mr. O’Connell for the volume of irrelevant material he has produced demonstrates the care with which this court approaches the cases advanced by litigants in person. That care is, in my view, further manifested by the fact that this court gave Mr. O’Connell the opportunity to have his case re-examined by a High Court Judge. There must, however, be a limit to the forbearance which this court can demonstrate. As Coleridge J found, the manner in which Mr. O’Connell has chosen to litigate can easily become abusive of the process.

In my judgment, the length and irrelevance of Mr. O’Connell’s various statements simply serve to reinforce the judge’s conclusions. But I do not have to go so far. All that it is necessary for this court to do is to decide, as I have already now stated several times, whether or not there was material upon which the judge could properly reach the conclusions he expressed.

This is, in essence, a very sad, but simple case. The children’s hostility to their father, the judge found, related directly to his behaviour towards them. They had not been alienated by their mother. They were sensible, well-balanced children whose views were entitled to respect. The fact that Mr. O’Connell was not enjoying contact with them was entirely his own fault, and nobody else’s.

The two questions of the children’s views, and the source of those views, were matters of fact for the judge. They were not matters on which it was either necessary, or in the circumstances, appropriate for the judge to require further expert evidence. For the reasons he gave, he was fully entitled to reject Mr. O’Connell’s application for a further expert’s report, particularly when the expert selected by Mr. O’Connell is well known for his promulgation of a particular, and controversial thesis.

A finding by a High Court Judge that a continuation of the proceedings constitutes a serious danger of abusing the children is a grave finding. No judge reaches such a finding lightly. Coleridge J was satisfied that the proceedings had to be brought to and end “here and now and for good”. That was a conclusion which, on the evidence, he was entitled to reach. Furthermore, I agree with him that the system cannot be used by litigants to fight campaigns against the statutory services for its own sake.

In the first of our two judgments, Thorpe LJ and I were concerned about the indeterminate section 91(14) order made by His Honour Judge Milligan. We wanted it reviewed. It has been reviewed. The review has shown that it was, indeed, warranted. It has been put back in place by Coleridge J. I cannot even begin to say that he was wrong to do so. He has followed the leading case on the subject (Re P) and has applied the correct welfare test. As I have already stated, he was fully entitled, for the reasons he gave, to refuse a further psychiatric or psychological assessment. His findings of fact are all legitimate. His assessment of the children and their parents was one he was manifestly entitled to make.

I am in no doubt at all that the judge went into this hearing with an open mind. The fact that he arranged a meeting between Mr. O’Connell and the children is a clear demonstration of his initial determination to break the deadlock. He found that he was unable to make progress due to Mr. O’Connell’s attitudes and behaviour. As I have now said more than once, his findings were plainly open to him.

An appeal against his decision of 29 March 2006 would have absolutely no prospect whatsoever of success, and Mr. O’Connell’s application for permission to appeal is refused. This is, sadly, one of those cases where the court has, indeed, reached the end of the road. There is nothing more the court can do. The judge was entitled to say so, and entitled to make the section 91(14) orders which he has.

For the avoidance of doubt, I wish to place on record that I have listened to the tape recording which Mr. O’Connell produced. I agree with the judge’s assessment of it in paragraph 26 of his judgment. Save in so far as it reflected on Mr. O’Connell, he did not regard it as having any evidential value in the context of the issues which he had to decide. He was not, in my judgment, wrong to reach that conclusion.

This judgment is being handed down during the period in which the government is consulting on the question of transparency in family proceedings. This is a consultation which I welcome. For too long the family courts have been the subject of the canard that they administer “secret justice”. Anything which shows the proper working of the family justice system is, in my view, to be welcomed.

Amongst the advantages of transparency, it seems to me, is the opportunity to dispel the myth that there is a gender bias against fathers within the family justice system, and that the bias operates, in particular, improperly to deny non-residential fathers contact with their children. I do not doubt that there are cases in which contract between non- residential fathers and their children is not ordered when the principal reason for the breakdown of contact is the attitude of the children’s mother. But in my experience, it is far more common for contact to break down due to the behaviour of the non-residential father.

These two cases are, in my judgment, clear examples of the latter category. The findings of the trial judge in both cases is that the reason these children are not having contact their fathers is exclusively due to the father’s own behaviour. It is idle for either Mr. Bradford or Mr. O’Connell to blame either the system or the children’s mothers. The judicial findings in both cases are clear. These are not cases of parental alienation syndrome on the part of the residential parent, and Mr. O’Connell deceives himself if he persists in believing that his children’s attitude towards him is the responsibility of his former wife and her husband.

I do not either wish or expect either of these cases to be reported. I neither wish nor expect either to receive any form of publicity. But they should be known. And, in addition, it should be known that they form part of a well-recognised body of case law. They are not isolated examples.

The position of the family courts is clear. I attempted to summarise it in Re O (a child) (contact: withdrawal of application) [20004] 1 FLR 1258. In that case, I made a number of general observations in that case, some of which are, it seems to me, applicable to both of the current applications. At [2004] 1 FLR 1258 AT 1260 I said: -

“The critical role of both parents in the lives of their children post separation

(3)

The courts recognise the critical importance of the role of both parents in the lives o f their children. The courts are not anti-father and pro-mother or vice- versa. The court's task, imposed by Parliament in section 1 of the Children Act 1989 in every case is to treat the welfare of the child or children concerned as paramount, and to safeguard and promote the welfare of every child to the best of its ability.

Terminating non-resident parents' contact with their children is a matter of last resort

(4)

Unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of both their parents. In particular, the courts recognise the vital importance of the role of non-resident fathers in the lives of their children, and only make orders terminating contact when there is no alternative.

Parental alienation

(5)

The father asserts that this is a case in which the mother has deliberately alienated O from him. It is not. The principal reason that that O is hostile to contact with his father is because of his father's behaviour, and not because his mother has influenced O against his father. Unfortunately, the father is quite unable to understand or accept this. The father's reliance in this case on the so called "parental alienation syndrome" is misplaced.

Blaming the system

(6)

The court system for dealing with contact disputes has serious faults, which were identified and addressed in Chapter 10 of the report of the Children Act Sub-Committee (CASC) of the Lord Chancellor's Advisory Board entitled Making Contact Work. I discuss these further in paragraphs 83 to 86 of the judgment. In particular, the court process is stressful for both parents and children, it is expensive for those who are not publicly funded; it is slow and adversarial. It tends to entrench parental attitudes rather than encouraging them to change. It is ill adapted to dealing with the difficult human dilemmas involved, notably when it comes to the enforcement of its orders.

Parental responsibility for the failure of contact

(7)

Parents must, however, take their share of responsibility for the state of affairs they have created. Blaming the system, as the father does in this case, is no answer. He must shoulder his share of the responsibility for the state of affairs he has helped to bring about. All the evidence is that he has proved incapable of doing so.

I stand by everything I said in that case. I repeat that the Press, and some parents’ pressure groups need to understand that the reasons fathers in particular fail sometimes to remain in contact with their children is not due to gender bias in the system, but to their own conduct. These two cases give me the opportunity to repeat a message which is inadequately heard, and even if it is not heeded, the judgment in the public domain. Neither of these cases can even remotely be described as “secret justice”, and I have deliberately taken the unusual step of reserving judgment in the two applications so that, in considering the two cases in detail, I could re-examine my own practice thoroughly.

As I said at the outset of this judgment, Mr. O’Connell in particular knows that it is part of the function of this court to scrutinise the work of the judges of the High Court and the County Court exercising its family jurisdiction, and to criticise where necessary. Mr. O’Connell was the beneficiary of that process in his own case. If, in his eyes, I now join the ranks of the biased and the time-serving, the public will, I hope be in a position to judge the fallacy of that approach from the publication of the judgments of this court in his case.