N (A Child), Re

I handed down judgment in relation to what I will call the disclosure issue on 8 July 2009: Re N (A Child), A v G [2009] EWHC 1663 (Fam). I handed down judgment in relation to what I will call the section 8 issues on 17 July 2009: Re N (A Child), A v G [2009] EWHC 1807 (Fam). I do not repeat or even attempt to summarise those judgments. I take them as read. Anyone who may hereafter need to consider this judgment should first read them.

At my invitation Dr Pelling has helpfully provided drafts of two orders to give effect to those two judgments. The first is in the following terms:

The second reads as follows:

I do not understand anyone to object to the drafting of these orders, which seem to me properly to give effect to my two judgments.

I have now to deal with (1) the question of costs, (2) the applications by the mother and the guardian for an order pursuant to section 91(14) of the Children Act 1989 and (3) the question of leave to appeal.

First, however, I need to describe events since I gave those two judgments.

The judgment in relation to the disclosure issue was handed down on 8 July 2009. The following day I received from Dr Pelling a communication indicating that the father was seeking an order for costs in his favour in relation to the disclosure issue in the sum of £1,260, to be paid as to 90% by the guardian and as to 10% by the mother. The following day (10 July 2009) the mother invited me to give directions for submissions in relation to costs and indicated that her stance in relation to seeking permission to appeal in respect of the disclosure issue might be affected by the father’s response to my judgment (not yet given) in relation to the section 8 issues.

The judgment in relation to the section 8 issues was sent to the parties on 17 July 2009. Later the same day I sent the following message to the parties:

Dr Pelling responded on 20 July 2009, indicating, in relation to the judgment on the section 8 issues, that the father would be seeking an order that there be ‘no order for costs’ and that he would be seeking to appeal “at least some parts” of my decision, adding that they needed time to consider this and take further advice. He drew my attention to the procedural difficulties arising out of CPR 52.3(2) and 52.4(2) and referred me to the notes in the 2007 Green Book to CPR 52.4. He continued:

The mother responded the next day (21 July 2009) indicating that she was seeking an order that the father pay the costs. She invited me to give directions in relation to her application for a section 91(14) order.

The guardian’s solicitor responded the following day (22 July 2009):

The guardian’s submissions in response to the father’s application for the costs in relation to the disclosure issue followed on 24 July 2009. Dr Pelling’s submissions in reply followed on 26 July 2009.

On 27 July 2009 my clerk sent the following message to the parties:

The mother and Dr Pelling responded the same day agreeing in essence with what I had proposed. The guardian responded the next day (28 July 2009) indicating that she was not seeking permission to appeal but inviting me to give directions in relation to her application for a section 91(14) order.

Accordingly on 28 July 2009 I made an order in the following terms:

On 29 July 2009 Dr Pelling gave notice of his intention to apply on behalf of the father at the hearing on 5 August 2009 for leave to appeal against paragraphs 1 and 2 of the draft order as set out in paragraph 3 above. The next part of Dr Pelling’s document is so extraordinary that I should set it out in full:

The mother’s response to this was to accuse Dr Pelling of flouting the rules and rewriting the CPR. She said: “I always understood that the appropriate course of action is to apply to the Judge at first instance for permission to appeal. The reasons provided by Dr Pelling cannot be right”. Dr Pelling’s response the same day (29 July 2009) was as follows:

On 31 July 2009 the mother provided her submissions in relation to costs. She failed to provide her skeleton or submissions in relation to leave to appeal as required by 3 August 2009; apparently Mr Holden was ill. They arrived, late, on 4 August 2009.

On 2 August 2009 Dr Pelling provided his submissions in response to the mother’s submissions in relation to costs. In defiance of the direction I had given that such submissions should be confined to 4 sides of A4, the document submitted by Dr Pelling ran to 10 pages. He “sincerely apologise[d]” and claimed that it had “proved simply impossible to adequately reply to the [mother’s] submission in … 4 pages”. Be that as it may, Dr Pelling seems to have thought it useful to take up time in this document, for example, in explaining, with autobiographical details, why he differed from the views I had expressed in paragraph [183] in relation to testamentary guardians and, another example, in opining that:

It is correctly common ground that as these applications arose within family proceedings the general rule that costs follow the event does not apply, for FPR rule 10.27(1)(b) disapplies CPR 44.3(2). This reflects the principle which had previously grown up, where the general practice had been to make no order as to costs in children’s cases: see Gojkovic v Gojkovic (No 2) [1991] 2 FLR 233, London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569 and Keller v Keller and Legal Aid Board [1995] 1 FLR 259.

But that principle had always been subject to exceptions, importantly for present purposes where a party has behaved unreasonably in relation to the litigation: see R v R (Costs: Child Case) [1997] 2 FLR 95 and Re G (Costs: Child Case) [1999] 2 FLR 250.

Both the father and the mother have appeared as litigants in person but with the assistance of McKenzie friends (Dr Pelling and Mr Holden) to each of whom I granted leave to address me pursuant to section 27(2) of the Courts and Legal Services Act. As Dr Pelling points out, CPR 48.6(2)(3) entitles a litigant in person to claim his costs at the full rate for “disbursements” and “payments reasonably made by him for legal services relating to the conduct of the proceedings.”

The father seeks an order for the costs of the disclosure issue on the simple basis that he succeeded. He seeks a summary assessment of his costs in the sum of £1,260, that being the amount of Dr Pelling’s fee (the word used by Dr Pelling in his communication of 9 July 2009). As I have already mentioned, Dr Pelling seeks an apportionment of this amount as to 90% to the guardian and 10% to the mother, as the majority of the work undertaken was, he says, responding to the submissions of the guardian’s counsel.

Dr Pelling points out that on 5 May 2009 he was granted a right of audience under section 27(2)(c) of the 1990 Act and that the order I made on 6 May 2009 directed that “Dr Michael Pelling do file and serve on behalf of the Father ... his written submissions in reply.” As he also points out, section 27(10) of the 1990 Act expressly removes prohibitions in the Solicitors Act 1974 on unqualified persons doing certain categories of legal work for fees in regard to “any act done in the exercise of a right of audience.” Accordingly, the father claims as a disbursement, alternatively as a payment reasonably made by him for legal services relating to the conduct of the proceedings, Dr Pelling’s full fee on the disclosure issue for acting as advocate on 5-6 May 2009 and for drafting the written submissions I had ordered. The latter, Dr Pelling says, required careful and in-depth consideration of the submissions and authorities of the guardian’s counsel and the mother, and of the effect of the completely new legislation comprised in FPR Part XI. It was also, he says, necessary to advise the father and assist in drafting correspondence with the GMC to obtain information about their complaint procedures.

Dr Pelling’s invoice (his word) is headed ‘ALIP (Assistance to Litigants in Person)’ and gives Dr Pelling’s name and address. Dated 9 July 2009 and addressed to the father it is described as being “For Advocacy Services Provided in Connection with High Court case FD03P02333 re Disclosure of Documents to GMC for Complaint Purposes.” It identifies a rate of £140 per hour and claims for one hour’s “Preparation & advocacy at Court on 5-6 May”, one hour’s work on 5 June 2009 “Researching GMC Complaints procedure, advising client and assisting in drafting of correspondence with GMC” and seven hours’ work also on 5 June 2009 “Considering submission with authorities of Guardian’s counsel, and Respondent’s submission, and the new Part XI FPR 1991, and drafting Reply thereto.” The total, being nine hours at £140 per hour, thus comes to £1,260. (Dr Pelling is not registered for VAT, so there is no claim for VAT.)

In answer to the father’s claim for the costs of the disclosure issue (the only matter which affects her) Ms Farror on behalf of the guardian essentially takes three points:

First, she submits that the guardian’s conduct on behalf of the child in contesting the issue of disclosure was wholly reasonable and justified having regard to (a) the possible effect on the welfare of the child if disclosure was ordered and the reaction of the mother were adversely to affect the child and (b) the fact that the subject of the application involved completely new and important legislation as to which there was as yet no authority, or judicial guidance or interpretation.

Secondly, she submits that the amount claimed is excessive in all the circumstances of the case. Observing that under CPR 48.6(4)(b) the amount that can be claimed by a litigant in person for doing work is set at £9.25 per hour, she submits that whilst Dr Pelling is not the litigant in person, neither is he legally qualified as an advocate. So, it is said, the amount claimed is not proportionate.

Thirdly, she submits that it would be inequitable for the guardian to bear 90% of any costs awarded. She points out that it was at the direction of the court that the guardian’s counsel filed submissions first, on the basis that it would assist the court and the mother, as the mother was not legally represented. Had the mother been legally represented the guardian would have been in the position of supporting the mother’s case, and the submissions of counsel on the guardian’s behalf would consequently have been shorter and less time consuming for the father to reply to.

All in all, says Ms Farror, taking into account all these matters it would not be reasonable, just or equitable for the court to make any order for costs against the guardian, let alone an order in the amount or the proportion claimed.

The guardian also took a point founded on section 11 of the Access to Justice Act 1990. This prompted a detailed response by Dr Pelling but there is, in the circumstances, no need for me to pursue the point any further.

So far as concerns the father’s application for the costs of the disclosure issue, the mother’s stance is that it was not unreasonable for her to oppose the application.

In relation to the section 8 issues, as I have said, the mother seeks an order that the father pay her costs. She claims a total of £6,415.50 calculated as follows (in her written submission she claims £6,488 but this would seem to be an arithmetical error):

Loss of wages: four days at £38.25 per day – £153.

Time spent on preparing case: 650 hours at £9.25 per hour – £6,102.50 (in her written submission she claims £6,175 but this would seem to be an arithmetical error). In justification of this figure, she says that as the father was clearly attempting to re-open the case, effectively challenging the validity of the consent order, all the earlier documentation pre the consent order had to be revisited. The amount of time she spent, she says, can only be assessed, as she did not keep time sheets, but she asserts that 14 hours a week on average would be “very conservative”, so given the time which has elapsed since the father first began to have second thoughts, the total number of hours spent would be in excess of 650.

Cost of car-parking while attending court: 4 days at £40 per day – £160.

Fundamentally, the mother’s case is that the father should pay her costs, consistently with the authorities to which I have already referred, because of the unreasonable way in which he has conducted the litigation since I made the consent order in July 2008. Furthermore, and referring to the point made by Wilson J in London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569 at pages 570-571, that the effect of an adverse costs order may be to exacerbate rather than calm down the tensions between the parties, she says that in this particular case it is unlikely that the existing tensions could be further exacerbated.

The mother seeks to derive assistance from what she says is the “uncanny resemblance” between the present case and R v R (Costs: Child Case) [1997] 2 FLR 95, where the Court of Appeal held that His Honour Judge Goldstein was entitled to find that the father there had acted unreasonably and should therefore pay the costs. Thus she compares Judge Goldstein’s findings, as set out at page 97, with my findings at paragraphs [83], [182]-[184].

More generally, the mother asserts that “with regard to unreasonableness, the list is endless”. She draws attention in particular to paragraphs [35], [51], [56]-[57], [82], [149], [173]-[175], [181]-[184], [213] and [216] of my judgment and quotes paragraph [175] in full:

She says it is apparent that before the ink was dry on the consent order, the father wanted to resile from his agreement. He has, she says, spent an enormous amount of wasted energy in pursuing his goal, without caring about the collateral damage he was causing, in particular to his son. Furthermore, not only has he abdicated his responsibilities as a father, by his actions he has diminished the quality time that N could spend with his mother, causing what she calls “untold torment”. She adds: “Not only did N not have a father; the father did not want N to have a mother.”

She says that it is also clear from his conduct that the father will not stop “and, as he does not have to pay for losing, he gets away with it relatively cheaply.” She, for her part, had solicitors in the past but could no longer afford them. She has, she says, lost money and time which could have been better spent on her son. The costs became astronomical because the father would send volumes of what she calls “useless material” which had to be read by her solicitors and she had to be pay for this.

In summary, she says, the father’s 30 applications failed resoundingly and he should be ordered to pay, as she puts it, for the horrendous amount of time wasted. Her own applications, she says, were never pursued. She had always stated that she wanted the litigation to stop, but unless she totally capitulated the father would not stop. Little or no time, she says, was spent on her applications.

The father’s reply is two-fold: first, his reply to the guardian’s response to his application that she pay 90% of the costs in relation to the disclosure issue; second, his response to the mother’s application that he pay the costs in relation to the section 8 issues. It is convenient to take them in turn.

Dr Pelling’s response to Ms Farror’s submissions is to point out, correctly, that in relation to the disclosure issue the child’s welfare is not the paramount consideration. On the contrary, he says, it was hardly likely to be affected. So, he submits, there is no reason why costs should not in fact follow the event. His response to Ms Farror’s three points as I have summarised them above can be summarised as follows:

First, he submits that it was patently obvious (as, he says, the judgment makes clear) that the welfare of the child was never going to be affected and the ‘reaction of the mother’ argument was not supported by any medical evidence. It was in truth, he says, “a pathetic argument.” Moreover, he submits, the novelty of the point is not something that has ever been accepted as a valid reason not to pay the successful party’s costs. “Those who want to fight to make a point of law must still be prepared to pay the costs if they lose.”

Secondly, he disputes that the amount claimed is excessive. One has, as he points out, to distinguish, as Parliament has done, between work done by the litigant in person himself (where the pecuniary loss factor, the ⅔rds rule and the £9.25 per hour rate all apply as appropriate) and disbursements and payments reasonably made for legal services relating to the conduct of the proceedings (where the full cost is claimable). Dr Pelling accepts that he has no formal legal qualifications but says so what? He submits that, unless the court is to indulge in discriminatory practices without any rational foundation, why should not the principle of equal pay for equal work apply? One should rather, he says, examine the merit of the work done, not the paper qualifications. He accepts of course that an advocate’s expertise and experience is reasonably taken to be reflected in the merit of his work (QCs are paid more than juniors), which is why, as he puts it, his rate is somewhat lower than Ms Farror’s. Likewise he accepts that it is of course open to the court to tax his bill down if the rate is considered too high, but says it should be on proper grounds.

As to Ms Farror’s third point, he observes pithily that one has to take the facts as they were, not as they might have been.

Taking everything into account, he submits that it would be reasonable, just and equitable for the court to make an order for costs against the guardian (the form of the order, he says, may more correctly be one against the child with a proviso that the liability be met by the guardian) in the reasonable amount claimed and in the proportion sought.

Dr Pelling adds that the father’s submission in reply on costs has itself occasioned considerably more work than originally expected, so if successful the father asks also for payment by the guardian at the same rate of the additional 1½ hours work undertaken by Dr Pelling.

Dr Pelling’s response to the mother’s application, although lengthy, can I think fairly be boiled down to the following essential propositions:

First, and fundamentally, he disputes that the father has been guilty of the kind of unreasonable conduct in the course of the litigation which alone is relied upon as justifying an order for costs against him. In support of this contention Dr Pelling analyses in turn each of the father’s applications with a view to demonstrating that each of them was in fact reasonable and that the mother’s characterisation of the father’s litigation conduct is unwarranted. He emphasises that the father was not acting mischievously or selfishly, being motivated only, he says, by his genuine concerns for his son’s welfare. And he stresses what he says were, from the father’s perspective, two key provisions in the consent order: one was the review to take place in the following year; the other, without which, he says, the father would never have consented to it, was the curb on the mother moving to live by herself with N away from her own parents. He submits that it can hardly be said to be unreasonable for the father to object to that key safeguard being removed without a proper investigation.

Secondly, he makes the point that in any event it cannot be said that the father was acting unreasonably in relation to either (a) the matters which in the event were dealt with by consent or (b) the matters where I made no order (rather than an order dismissing the application) or (c) the matters where the father’s application, even though in the event unsuccessful, was responsive to the mother’s inappropriate actions or (d) the matters which arose out of a shared experience of difficulties in making the consent order work or (e) the matters where the guardian herself recognised that some adjustments to the consent order might be appropriate. So the mother’s broad brush approach cannot, he says, be justified. Each of the various applications must be examined carefully in order to determine which were, and which were not, unreasonable.

Thirdly, he disputes that the mother’s applications were not pursued and says that, since my approach in relation to them mirrored my approach in relation to the corresponding applications made by the father, it hardly lies in the mother’s mouth to accuse the father of being unreasonable: “If the father is guilty of unreasonable conduct of litigation then so equally is the mother. That should reflect in any costs order. Of course, [the father’s] position is that neither were unreasonable.”

Fourthly, he disputes that there was any need for the mother to undertake all the work she says she did in respect of the earlier documentation.

Dr Pelling makes a large number of other points which I decline to rehearse, though emphasising that in coming to my decision I have had them all very much in mind.

Dr Pelling’s concluding submissions merit citation at some length:

It is I think convenient to consider first the costs of the section 8 issues.

There is, in my judgment, some force in many of the points Dr Pelling makes, in particular his contention that a much more discriminating approach to the father’s various applications is required than the ‘all or nothing’ broad-brush approach adopted by the mother. And it is a fact that, even if only responsively to the father’s many applications, the mother did make and pursue – unsuccessfully – some applications of her own. Furthermore I do take leave to wonder whether the mother is really justified in saying that she spent, or that if she spent she reasonably spent, as many as 650 hours in preparing her case.

As against that the father’s approach, in my judgment, was unreasonable: unreasonable both in parts, though not, I emphasise, in every respect, and also, given the sheer number and reach of his applications – no fewer than 30 applications arising out of what was after all a consent order – unreasonable in its scale and overall effect.

That said, the fact that a parent has litigated in an unreasonable fashion may open the door to the making of an adverse costs order; but it does not of itself necessitate the making of such an order. There is, at the end of the day, a broad discretion to be exercised having regard to all the circumstances of the case. And a judge must be careful not to fall into the trap of simply assuming that because there has been unreasonable behaviour in the conduct of the litigation an order is therefore to be made without more ado. Careful attention must be paid to all the circumstances of the case and to the factors which, on the authorities I have referred to, indicate that normally it is inappropriate to make such an order – factors which do not simply disappear or cease to have weight merely because the litigation has been conducted unreasonably.

I have to say plainly that the father’s litigation conduct has, in my assessment, come very close indeed to justifying the order the mother seeks. But I am persuaded, on balance, that it would not be fair, just or reasonable to make that order, not least – and this is an important factor in my thinking – because of the likely effect the making of such an order will have on relations between the parents and thus, and crucially, on N.

There is, if I may say so, much wisdom in what Wilson J said in London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569 at pages 570-571:

Or, as Hale J put the point in R v R (Costs: Child Case) [1997] 2 FLR 95 at page 97, where she referred to:

I do not take so bleak a view as the mother’s when she suggests that matters are already so bad that they can get no worse. Moreover, it needs to be remembered that the mother is not blameless in all this: see, in particular, what I said in Re N (A Child), A v G [2009] EWHC 1807 (Fam) at paras [46] and [202]. There is, I fear, a very real risk that were I to make the order the mother seeks she would treat it as a complete vindication of every negative view she has about the father – an outcome that would assist neither the parents nor their son.

For all these reasons I have concluded that notwithstanding the way in which the father has chosen to conduct this litigation, the proper order to make is that there should be ‘no order’ in relation to the costs of the section 8 issues. I make it clear, however, that if there is any further continuation of the litigation by the father making any further unsuccessful applications, a very different order may very well have to be made.

I turn to the costs of the disclosure issue, where I accept that somewhat different considerations apply.

I make clear that, despite Ms Farror’s submission to the contrary, I take no issue in the particular circumstances of this somewhat unusual case with the quantum of the costs being claimed, whether in respect of the quantum of Dr Pelling’s hourly charging rate or in respect of the number of hours he worked. Dr Pelling may be unqualified but he is plainly highly knowledgeable and experienced in such matters and he is entitled to charge, if he can find clients willing to pay his fees, at an hourly rate which can hardly be said to be extravagant when contrasted with the fees one frequently finds being charged to privately paying clients in family cases.

The real question, to my mind, has nothing to do with the quantum of the costs being claimed, but rather with whether, in all the circumstances, it is appropriate to make any order at all.

In my judgment it is not. I appreciate that, from one perspective, the child is less directly implicated in the disclosure issue than in the section 8 issues, and that the dispute here is not so much between the father and the mother as between the father and the guardian, but one cannot ignore the fact that but for the happenstance of litigation (which led to the disclosure issue being ‘hived off’ as a separate issue at the hearing on 5 May 2009) the disclosure issue would have been dealt with as part of the overall litigation. Nor can one ignore the fact that the guardian participated in this issue in accordance with directions that I had given.

In my judgment, the appropriate order to make in all the circumstances is that there be ‘no order’ as to these costs.

The mother and the guardian invite me to give directions. The father submits that their applications should be adjourned to a date to be fixed after the conclusion of all proceedings in the Court of Appeal.

I do not agree. Irrespective of the merits or otherwise of any proposed appeal, whether by the father or by the mother, there is no justification for any further delay in bringing the proceedings at first instance to a conclusion. On the contrary, there is every reason – not least the compelling demands of N’s welfare – not to permit any further delay.

The applications for a section 91(14) order will accordingly be listed for hearing on the first available date on or after 5 October 2009. I would propose that the mother and the guardian file skeleton arguments, setting out precisely what orders they are seeking and the grounds for their applications, together with details of the authorities upon which they rely, and that the father then files a skeleton argument in response. I invite the parties to formulate an appropriate timetable and draft any necessary directions.

The directions I gave on 27 July 2009 contemplated that although the parties should serve skeleton arguments or written submissions beforehand, they would have an opportunity at the hearing on 5 August 2009 to “amplify these arguments orally”, albeit “briefly”. I shall accordingly defer the final part of this judgment until I have heard those further submissions.

Thus far this judgment is in the form in which it was handed down at the beginning of the hearing on 5 August 2009.

At the hearing Dr Pelling confirmed the father’s stance as set out in the document sent to me on 29 July 2009, save that the father now wished to appeal also against my refusal to give him his costs of the disclosure issue. Mr Holden for his part addressed me briefly in support of the mother’s application for leave to appeal in relation to the disclosure issue. Dr Pelling indicated that the father opposed the mother’s application. I indicated that I did not need to hear any further from him since I was not going to accede to the mother’s application. I announced that I was going to refuse both applications for leave for reasons which I would put in writing. This I now do.

So far as concerns the father’s application for leave to appeal I can be brief.

I have already set out the document that Dr Pelling sent me on 29 July 2009. In relation to this document I make only the following observations.

First, this is yet another example of the father, aided and abetted by Dr Pelling, choosing to defy decisions of or directions given by the court – a matter on which I have previously had occasion to comment: see, for example, Re N (A Child), A v G [2009] EWHC 1807 (Fam) at paras [57]-[58], [246]-[249], and, for the latest example, paragraph [19] above.

Secondly, this is yet another example of the father, through the mouth of Dr Pelling, expressing his disdain, indeed his contempt, for the judicial system and for the judges: see, for previous examples, Re N (Payments for benefit of Child) [2009] EWHC 11 (Fam), [2009] 1 FLR 1442, at paras [63], [66], [86], [112], [114], Re N (A Child), A v G [2009] EWHC 1807 (Fam) at para [240] and, for the latest example, paragraph [19] above. I do not wish to be misunderstood. I stand by every word I said in Harris v Harris, Attorney-General v Harris [2001] 2 FLR 895 at para [372]:

But there is a place for all this, and the court-room is not such a place: cf Harris v Harris at para [366]. And those who choose to use language of the type which, too frequently, the father and Dr Pelling have chosen to use throughout this litigation – not on the spur of the moment or in the heat of forensic battle, but in carefully drafted written documents – misunderstand the proper role of the advocate and abuse the privileges conferred upon them whether as litigant or, in Dr Pelling’s case, as advocate.

Thirdly, the contentions put forward by Dr Pelling defy and deny what everyone knows is the everyday practice of the courts. Judges at first instance who are asked to give leave to appeal routinely ask for, and are routinely given, at least in outline, the reasons why it is being said that leave ought to be granted. My direction was carefully drafted and quite limited in what it required: “a brief skeleton or written submissions (no more than 4 sides of A4) identifying precisely the issues on which and summarising briefly the grounds on which permission is being sought.” I vigorously dissent from Dr Pelling’s proposition that my power is limited, as he would have it, to requiring him to identify the parts of the order against which he is asking for leave to appeal. The proposition that “beyond that the Judge cannot go” is not merely absurd; it is disproved by the daily practice of the courts.

Finally, the contentions put forward by Dr Pelling simply fly in the face of CPR 52.3(6), which provides that:

How is a judge to assess whether an appeal would have a real prospect of success if the would-be appellant refuses to tell him what his proposed grounds of appeal are or to tell him why he says the judge has erred in some way which entitles the Court of Appeal to interfere? How is the judge in such a situation to complete that part of Form N460 which requires him to set out the “reasons” for his decision, as the case may be, either to give or to refuse leave to appeal? Dr Pelling’s riposte, as we have seen, is simply to assert that “the introduction of Form N460 was wrong.” He may choose to ignore it. I may not. My duty is to do justice according to law; not to do justice according to what a litigant thinks the law ought to be when in fact it is not.

I refuse the father’s application for leave to appeal on two grounds:

First, that he has refused, in terms, to identify either the grounds of his proposed appeal or the reasons as to why leave is being sought. That of itself, in my judgment, justifies – indeed almost necessitates – the refusal of his application. All the more so, it might be thought, where, as here, the father is wholly indiscriminate in his application, seeking, as I understand what is being said, to challenge my decision in relation to every single one of his numerous extant applications.

Secondly, that doing the best I can, despite being deprived of any assistance at all on the point, I do not think that any appeal would have a real prospect of success.

I turn to the mother’s application.

As set out in her written submissions, and supplemented by Mr Holden’s brief oral submissions, the grounds of her proposed appeal in relation to the disclosure issue can be summarised as follows:

First, that my interpretation of rule 11.4(1)(c) was too wide. The mother appreciates, she says, that there should be a loosening of the tight rules governing disclosure of documents, but she does not accept that it should be so wide that a party can send what could be very private documents to anyone by way of a complaint, while the person about whom the documents refer is completely ignorant of the disclosure and impotent to prevent such disclosure before it is too late. The mother points out that if one can complain about anyone concerned with the proceedings, one can therefore complain about the other party – so, purely as a vindictive exercise, one party could complain about the other party and send very private documents, for example, to the child’s school or to an employer. Moreover, she asks rhetorically, ‘How many complaints can a party make?’ Is a disgruntled litigant to be able to complain, as she says the father has done here, about two Cafcass officers, a solicitor, a barrister, a social worker and a psychiatrist, and deploy all the documents in the case in support of each complaint?

Secondly, that rule 11.2(1)(c) does not provide any adequate safeguard unless, as the mother puts it, there are multiple applications by all parties seeking anticipatory orders that there not be any disclosure of documents – for a party will never know whether or not their private documents will be disclosed.

Thirdly, that the safeguards I referred to (for instance in paragraph [50] of my judgment) are not adequate, particularly if the recipient is not a public body and therefore not bound by section 6 of the Human Rights Act 1998. In particular, the mother says, ‘What about the child? What protection is afforded to the child?’

Fourthly, that it is not clear whether the word “necessary” (see paragraphs [65]-[67] of my judgment) imports a subjective or an objective test. As the mother says, clearly the complainant (here the father) would say it is necessary, but ‘Who decides whether or not it is necessary?’

Finally, the mother raises the question – which she accepts and which I emphasise was not raised before me – as to whether rule 11.4(1)(c) is Convention-compliant, being incompatible, she suggests, with Article 8 because it no longer requires the careful ‘balancing exercise’ which, she says, was a feature of the previous regime.

In his oral submissions Mr Holden added that since this was new legislation, and my judgment the first to grapple with it, that might also be a reason for giving leave to appeal

I refuse the mother leave to appeal, in the first place because I am unpersuaded that any of the mother’s identified grounds of appeal have a real prospect of success:

My actual decision was that a complaint to the GMC was within the ambit of rule 11.4(1)(c). I regard the contrary as simply unarguable.

The suggestion that rule 11.4(1)(c) is not Convention-compliant – a point which was not argued before me – is also, in my judgment unarguable: see Re N (A Child), A v G [2009] EWHC 1663 (Fam) at paras [72]-[75].

The remainder of the arguments raised by the mother seem to be more directed to what she asserts are deficiencies in the statutory scheme than to any identified defects in my application of that scheme.

Despite the various points raised, including Mr Holden’s argument that this is new legislation, I am not persuaded that this is a case which properly falls within CPR 52.3(6)(b). In any event, in a case such as this it is, I think, for the Court of Appeal rather than the judge at first instance to decide that leave to appeal should be given on this ground.

In relation to the father’s application for leave to appeal, Dr Pelling seeks a further extension of time from 26 August 2009 until 4 September 2009. The mother indicated at the hearing on 5 August 2009 that she does not oppose this application. I will accordingly extend the father’s time for appealing until 4 September 2009 and extend the mother’s time for appealing likewise.

The father does not need any stay of my order in relation to the section 8 issues pending appeal. The mother, on the other hand, does require a stay of that part of the order in relation to the disclosure issue which releases the father from his undertaking, for otherwise her appeal might be rendered nugatory. I propose to stay the relevant part of the order, initially until 4 September 2009 and then (if, but only if, she has by then filed an appellant’s notice) to extend the stay for a further week to give the Court of Appeal an opportunity to decide whether the stay should be extended any further.