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: -

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: -

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: -

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: -

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: -

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: -

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

‘Judge’ Hunt was not a fit or proper person to conduct the hearing.

‘Judge’ Hunt failed to respect my rights under the Human Rights Act and the rights of my daughter. ‘Judge’ Hunt is not entitled to ban K from being exposed to organised Christian influences.

‘Judge’ Hunt failed to comply with the law.

‘Judge’ Hunt is strongly and adversely influenced by the knowledge that I have made formal complaints against him, with regard to his conduct of this case, to the Lord Chancellors’ Department and the Department of Constitutional Affairs.

‘Judge’ Hunt failed to comply with an earlier Court of Appeal ruling.

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: -

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: -

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: -

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: -

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: -

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: -

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: -

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: -

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

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: -

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

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: -

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: -

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 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.

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.