Political Commentary and Opinion
---------- Forwarded message ----------
From: Shaun O'Connell < justjesting@gmail.com>
Date: 25-Aug-2006 11:43
Subject: With attachments Wall paper
To: justjesting@gmail.com
Lord Justice Wall this morning showed the benevolence of an Iraqi dictator. He said 'Anything which shows the proper working of the family justice system is, in my view, to be welcomed'
The law was ignored, fact was ignored and judicial arrogance came to the fore.
Most of the Judgment woffles on previous Appeal, another case and lip service to the legal and factual argument put to the Court.
An open letter was sent to Lord Justice Wall [attached] and it would be appreciated if requests could be sent to him for my committal for perjury/ perversion of the course of justice, contempt of Court proceedings and for bringing the administration of justice into disrepute. Please feel free to forward and to put onto websites this email and the attachments.
Lord Justice Wall has been put on notice that this cannot continue as it is bringing the administration of Justice into disrepute and creating a minefield of problems for the future generations.
More detail had previously been put onto the link below:
There is no point in fathers arguing for Family Law reform and new laws when the judges can cherry pick, ignore their own precedents, and specific case laws from ECtHR.
The judicial abuses of power are the biggest factor in the destruction of Family life in the western industrialized world.
In order to help expose this, we have been preparing a campaign to the United Nations on the abuses destroying the strong families that used to exist.
We are preparing a campaign to the United Nations under 1503 procedure of persistent, systematic and widespread abuses of human rights in the western world. This involves all western industrialized countries abusing families.
We are seeking bodies to support and help jointly and to put their names and/ or group logos onto the petition.
The first stage of the campaign is to get at least ten thousand signatures to the petition. The second step is to amass prima facie evidenced cases and submissions showing the failures of western Governments and Judiciary in the destruction of families.
If you are interested please get back to us.
Shaun O'Connell
--
Destruction of the Family issues
http://www.familieslink.co.uk/
PAS destroys children
http://www.parental-alienation.info/
UK Only non-Govt Law Centre
http//www.elc.org.uk
No safe place for biased judges in Family Law:
http://www.bailii.org/ew/cases/EWCA/Civ/2005/573.html
http://www.bailii.org/ew/cases/EWCA/Civ/2005/759.html
OPEN LETTER RIGHT TO REPLY
Dear Clerk to LJ Wall;
This is for the personal attention of Lord Justice Wall;
I note that the formal hand down of the judgment is to take place on August 25th 06. I do not believe in attending as this will only give pretence and precedence to an otherwise flawed judicial system of protecting one’s own kind as the judgment ignores the truth, the law and the facts of the case. Furthermore it is a deliberate act of judicial abuse of power.
I may as well have read nursery rhymes in Court perhaps that would impress LJ Wall. My children’s welfare has not been paramount as ever and judicial analysis of the factual and legal argument was once again lacking.
I also sent the school report on my son which shows very different behaviour to that which the school and/ or CAFCASS Guardian reported to Court. It has also now come to light that not only were there two bundles before the court which were never served on me but also that there was a witness bundle.
As you expected and rightly so in last paragraph;
‘’ 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.’’
You do so by your own actions in this judgement. I couldn’t have described it better myself.
The public cannot judge themselves without seeing the evidence and argument which was before the courts involving – HHJ Milligan, Mr. Justice Sumner, HHJ Bond, Lord Justice Wilson, Mr. Justice Coleridge and LJ Wall and therefore ask for permission for the public to see the evidence against them and the State bodies when you are going public with such self-serving diatribe and trite and I have the right to defend myself against libel, slander and falsehoods. My children’s welfare has never been paramount only the continued cover-up of wrongs by not only the State bodies but also the Judiciary themselves.
In your own words; ‘’Anything which shows the proper working of the family justice system is, in my view, to be welcomed.’’
I have provided three affidavits and insist that I be prosecuted for perjury.
I have provided factual and legal argument, evidence, statements and addendums and insist I be prosecuted for contempt of court as I must have been lying.
I also note the blinkered attitude to Parental Alienation Syndrome and ask you again how can I have changed the children’s memories, blanked their memories, and instilled hatred in my children when I have not seen them since October 26th 1999? How can they hate their father for ‘making things look so good?’ Should I have abused them as the mother aided and abetted by the stepfather has? Should I have lied to them?
You are creating a dysfunctional future generation and this vile system abusing the law and human rights shall be brought back to a just administration; as we, the public, whom you serve have the right to expect.
I request permission to appeal to the House of Lords on the following grounds;
- Do Lord Justices as well as other Judges have to obey the law?
- Is a Judge permitted to ignore pertinent evidence and fact before them?
- Are state bodies under a duty to obey the law and act honestly and openly within Family proceedings?
- Is there not a right to justice within family proceedings?
- Can Judges at whatever level ignore Human rights case law?
- Do parties in Family Court Private law proceedings not have the right to pursue Application for damages and redress under sections 6, 7 and 8 HRA 1998 equally as in public law?
- Can Judges make section 91(14) orders to last until a child is over 18?
- Can judges select and ignore facts and/ or law as they see fit after it is brought to their attention?
- Is CAFCASS a body fit for purpose given that like local Authority social services there is a history of misleading the court, perjury, perversion of the course of justice and other unlawful acts?
- Is the UK Family Court sitting in secret able to deliver justice such as in this case when Judges deliberately mislead themselves and make astonishing assertions against litigants who speak protesting at the abuses of human rights and common law?
- If State bodies and Judiciary can behave in such manner as I can show, why should anyone in UK obey the law?
- Are judges permitted to abuse their power?
- Is the children’s welfare paramount in such circumstances as mentioned above?
- Should Parental Alienation Syndrome be investigated and assessed by a specialist child and adult psychologist trained in such matters when Judges have no training in child welfare as is evidenced in this case and in case law.
Obviously now I only have one further route; recusal of Mr. Justice Coleridge and any future Appeal cannot be heard by yourself for promulgating the abuses.
I repeat below that which was said in open Court and has simply been brushed under the carpet;
"Blackstones" Constitutional law and human rights volume 8 on Judicial Functions states The principal functions of the judiciary may be described as follows:
To provide for the orderly resolution of disputes, whether between private individuals or bodies, or involving public bodies or the exercise of public or governmental functions by public or private bodies;
To uphold the principle of legality or the rule of law;
To protect the individual against unlawful state activity;
This is an Appeal against the following orders:
Order of February 22nd 2006 made by the Courts own motion
An order of March 29th 2006 by Mr. Justice Coleridge.
It is history repeating again, the only difference is that had the Appellant been from Turkey or of former Eastern Europe Countries there would be massive public and Government outcry. Sadly the Appellant is a British, Caucasian and a male who have lesser rights than illegal asylum seekers who have the Court’s sympathy.
Law bidding families are being disfranchised by biased decisions solely based on CAFCASS or similar agency officers despite the finding of Lillie & Reed v Newcastle City Council & Others [2002] EWHC 1600 (QB).
In the case of Re J (Care Proceedings: Disclosure) [2003] 2 FLR 522 FD where there was concealment and an attempt to mislead a parent and the court. Circumstances surrounding this case are no different.
Last year the Court of Appeal removed HHJ Milligan from further conduct of this case due to his gratuitous words ‘Come to me in a different frame of mind and anything may be possible.’
The Court of Appeal kindly stated that there must be great progress in this case. I come before you to say there has been none to date. I did not pursue HHJ Milligan doggedly to have a better class of bias. I did it to protect my children’s my rights and rights of any citizen under articles 6 and 8 of the Human Rights Act 1998.
Article 6 rights are fundamental and not to be offset or balanced against anyone else’s rights under article 8. Article 17 clearly states that no one in power least the Judge has the power to act which will violate the rights of the citizen. This is further protected by article 13 of the European Convention on human rights.
Yet the manner in which I have been treated to date makes me believe that I am a victim of an politically correct institution – Jews in the WW2 were better treated and put out of their Misery but I am persistently being tortured – something even ECtHR accepts as a violation of Article 3 of the Convention e.g. Tekin v Turkey where mental torture is recognized.
The respondent mother locked my son in the bedroom from the age of 2.5 to 5, she has lied to child welfare person including health visitor, GP, counselor, schools, her solicitor, social services AND she is rewarded by all.
Aided and abetted by the State institutions, respondent and her husband believe they are above the law, unlawfully changing my children’s surnames, telling false stories to my children and alienating them, misleading the Court, and with such confidence that they arrive at Court without lawyers knowing their acts will be blessed by CAFCASS and Mr. Justice Coleridge with impunity.
If a third party abused my children I would be supported by the State in pursuing them for redress and to help my children. Just because the abuser is my ex-wife, it is covered up and even a Guardian who is supposed to represent the children independently turns blind eyes and deaf ears.
In the words of Lord Laming, - “the professionals involved were ready to accept the excuses of the primary carer and abuser” – and – “too often it seemed that too much time was spent deferring to the needs of the mother and not enough time was spent on protecting vulnerable and defenceless children”. In the Climbie Inquiry the main abuser Marie Therese Kouao made sexual abuse allegations about Carl Manning to the social workers to cover up her abuse.
Para 15.10 Lord Laming in the Climbie enquiry said :- The basic requirement that children are kept safe is universal and cuts across cultural boundaries. Every child living in this country is entitled to be given the protection of the law, regardless of his or her background.
I had Appealed the involvement of HHJ Milligan on the grounds that he was a biased judge as he has invented hearing that had never taken place, denied daytime wetting in my daughter despite being given the pediatric notes, made judgment on evidence he had refused to be allowed in Court and abused his power and acted against the children’s best interests even accepting a one and a half page letter to the mother’s solicitors as a ‘report on the mother’s fitness for residence having seen her medical records’ as the Court had ordered.
The truth was the mother’s solicitors did not inform the psychiatrist of the Court order, the letter was based on only two meetings with her in the UK for postnatal depression not emotional instability, and borderline personality disorder and he took into account no evidence, no statements, neither carried out any psychiatric or psychological testing and simply repeated whatever the mother told him.
The facts, symptoms and issues relevant to the welfare of the children still remain uninvestigated on behalf of the children. In volume five, section L page 7A it is clearly stated that ‘the outcome of investigations and assessments carried out by Social Services did not indicate the need to invoke Court proceedings that would in turn have led to a much more detailed assessment i.e. a comprehensive assessment.’ That form of assessment is more in-depth and takes a wider view of all significant factors including if necessary parental Alienation or psychological abuse.’ 5L7A.
Yet the Social worker Maggie Smith had previously stated in her report and under oath that she had carried out a comprehensive assessment.
Judge Milligan was a biased Judge; this can be seen by the statements he made e.g.
‘She (the mother) started by using the sock in the door idea that she got from father to restrain him from leaving his room and also taking the handle off. Again that is an idea that came from father.’ 2L8[3-7]
‘This is a man to whom I think it has never occurred that there might be another view that might be as good as or better than his and I have to consider his evidence in the light of that assessment.’ 2L(16)[3]
‘Father says that she is a manipulative liar. I do not believe this for a second. I thought that this was a truthful lady whose evidence I accept and in so far as it conflicts with the father’s evidence I have no hesitation in preferring what mother had to say to me.’2L9[9]. (I was only allowed the last ten minutes of the hearing to cross-examine the mother).
‘Social services report that there had been many complaints by the father to them that the mother was unfit, so much so that they were in the view of social services, bordering on harassment and had given rise to investigations from the period of June 94 to August 97 and these investigations had thrown up no child protection issues or concerns’. 2L12[15].
This is contrary to the facts; the Community Psychiatric nurse reported concerns to social services in June 1994; we had moved to Spain from August 1st 1994 until November 1995 and the Social Worker Neil Toyne only made a single house visit on 8th July 1996. Further, Social Services had set-up a care package at the mother’s request. All of course missing from their investigations and reports.
Social services carried out the assessment of risk 5D1 without meeting me, taking into account evidence and interviewed only the judge and CWO. I was also informed in the report that I had no right to make a complaint about the report, 5D5 [6-8]. Could not call HHJ Milligan to give evidence and despite statements under oath and in reports the GP 4H10 and 44 para 11, health Visitor 3B(3) and school 3E14(3) all deny any involvement in the assessment of risk.
When questioned regarding the locking in of my son she said 5G13G ‘’I’ve checked with the health visitor as well about the locking in the bedroom and that was dealt with a long-time ago and ‘’It was admitted between the health visitor and the mother and it doesn’t happen now.’’ This is contrary to the truth. The health visitor notes 3B4-11, senior nurse managers confirmation 3B3 and the child and family guidance notes 3B12-22 show this to be untrue.
When challenged on the health visitor’s involvement and pointing out the Health Visitor had no involvement with the my son since October 1998 and my daughter since 1996, the social worker changed her argument ‘’okay then there’s currently no concern.’’ 5G9. It beggars belief how a person who has not seen my daughter for four years and my son for one and a half years could have any concern for them.
She stated under oath ‘’I have worked with thousands of families and I can tell you I can sense without even knowing when a mother’s emotionally unstable I don’t even have to look at them I can sense it a mile off.’’ 5G9B I have suggested to the director of social services the social worker be employed by the Police forensic dept to prevent cases such as that of Dr. Shipman.
‘’I have every confidence that what his mother tells me is true or else he wouldn’t be able to concentrate at school and he wouldn’t be putting on weight.’’ ‘’I am sure that this can be clarified through the mother. There are no problems with his eating and sleeping.’’ 5G5/6 Again such reliance on the mother’s words alone is biased and unprofessional.
Describing my son under oath she said ‘’You’ve got one child that is actually a little bit disruptive and all over the place’’. This is contrary to the Social work addendum describing him as a delightful typical 6 year old boy. He has now been referred for a full assessment. 5G14B
She said ‘’The fact that he gets a tap on the mouth for spitting or swearing I do not believe to be inappropriate’. Most six year olds spit and swear.’’ My son has never spat or sworn in my presence. 5G17B.
Describing my son’s aggression to his sister; she said ‘’He will hit Xxxxxxxx – if he doesn’t hit Xxxxxxxx I’d be very worried. He will learn not to hit Xxxxxxxx when she slugs him back one day he’ll stop.’’5G17F.
Article 6 rights are fundamental and not to be offset or balanced against anyone else’s rights under article 8.
In recent case heard by this Court Neutral Citation Number: [2006] EWCA Civ 6, it was stated;
Para 6; Inconvenience, costs and delay do not, however, count in a case where the principle of judicial impartiality is properly invoked. This is because it is the fundamental principle of justice, both at common law and under Article 6 of the European Convention for the Protection of Human Rights. If, on an assessment of all the relevant circumstances, the conclusion is that the principle either has been, or will be, breached, the judge is automatically disqualified from hearing the case. It is not a discretionary case management decision reached by weighing various relevant factors in the balance.
Maggie Smith Social worker under oath stated that she wished all fathers were as caring as I 5G13G and that the reason my children behaved appropriately when with me was associated with the way in which I treated them. 5G4B.
LJ Wilson last November described me as highly intelligent. Mr. Justice Coleridge even stated in his judgement that I gave a lucid and articulate presentation.
The respondent mother’s full diagnoses of emotional instability after a battery of psychological tests with the risk of psychological abuse of the children, her borderline personality disorder and manipulative personality have never been assessed or investigated which may well be related to the symptoms of Parental Alienation Syndrome and psychological abuse.
Similarly the symptoms in the children – my son’s sleep disturbances, anxiety, referrals to child and family guidance every year since 1997 barring 2003, his counseling for low self esteem and lack of confidence in 2004 and referral to psychiatrist in 2005 or my daughter’s daytime wetting and UTIs since 1997 neither have been investigated.
As a result the children have been placed at risk of harm, yet the judicial comments I personally have evidenced couldn’t be invented;
HHJ Milligan ‘This is a man to whom I think it has never occurred that there might be another view that might be as good as or better than his and I have to consider his evidence in the light of that assessment.’
‘’This is a man, in my judgement, who is pursuing his own interests which is completely different thing to standing back and taking a serious view as to what may be in the best interests of the children themselves...This is a man who is blind to the children’s needs insofar as they come second to his own plans’’
Mr. Justice Sumner in April 2002 said in this Court ‘If he is unable to separate his own intense feelings about the injustice to him and the poor care that this mother gives, the children will not have a proper relationship with their mother if there is the risk that her standing with them will be undermined.’ 2N14[13].
Mr. Justice Coleridge in his judgement of March 29th this year stated ‘What the father seems quite unable to appreciate is that the ongoing proceedings are doing much more harm to the prospects of his seeing the children than if he desisted.’
I refer the Court to Raja V Austin Gray (a firm), [2002] EWHC 1607 (QB) 31st July 2002 and in particular paragraph 12 where it states; It seems to me that it is reasonable and in the public interest to expect professionals, and indeed anyone else offering particular skills for reward, to exercise them with reasonable competence. This includes the Judiciary with their ample pensions, lawyers, barristers, Guardians, Social workers, CAFCASS officers.
LORD DENNING SAID: “Whoever it be, no matter how powerful, the law should
provide a remedy for the abuse or misuse of power, else the oppressed
will get to the point when they will stand it no longer. They will find their
own remedy. There will be anarchy.”
I am now at that point.
Appeal of February 22nd 2006 order
The first Application arises from an order dated 22nd February 2006 of the Courts own motion that has been unfortunately delayed as Bournemouth Registry informed the Court of Appeal that there had been a hearing behind the order.
The Appeal from the order of the Courts own motion on February 22nd 2006 was outstanding and to preserve my position I had no choice but to walk out after informing the Judge of the reasons before the hearing and at the end, contrary to the order which states that I did not give notice, Mr. Justice Coleridge rose and gave me five minutes to pack the voluminous papers.
It is unfortunate that the Appeal of the order dated February 22nd 2006 has been delayed beyond my control due to Bournemouth Courts informing the Court of Appeal that there had been a hearing that day when there had been no hearing and no Judgement.
Mr. Justice Coleridge made an order on January 31st 2006 for a half day directions hearing after he had requested the directions that I sought.
Mr. Justice Coleridge then made an order of the Courts own motion. I was unaware of any written request. I was unaware of the making of the order until it was received on February 27th 2006.
Family proceedings rules 4.14 state —(1) In this rule, "party" includes the guardian ad litem. (2) In proceedings to which this Part applies the court may, subject to paragraph (3), give, vary or revoke directions for the conduct of the proceedings, including-
the timetable for the proceedings;
the service of documents;
Directions under paragraph (2) may be given, varied or revoked -
of the court's own motion having given the parties notice of its intention to do so, and an opportunity to attend and be heard or to make written representations,
I am unaware of or had any notice to parties being given, pursuant to 4.14 (3) a, or of any written request 4.14 (3) b or 4.14 (3)c, have not had the opportunity to be heard or to make representations. Therefore the Court is in breach of the above rule in making the order of the Court’s own motion.
I did not have the right to put my case on the making of that order. I took the appropriate step and Appealed.
The rules were not complied with. The order was in breach of article 6.1 HRA 1998 and Family Proceedings rules 4.14. Either the rules and due process exist and should be followed or they do not. In this case they do.
Due process had not been complied with. I had not even had the right to disclosure of documents known or that should exist pursuant to Civil proceedings rules and for which I had supplied a detailed statement and list of documents to be disclosed dated September 9th 2005.
It has never been addressed other than Mr. Justice Coleridge simply stating on March 29th 2006 ‘I’m not ordering disclosure.’ without giving any reasons.
The order of February 22nd without my input, knowledge or any right to give argument whether in writing or orally reduced the full complex case from a half day hearing for directions ONLY to a half day final hearing for hearing of removal of the Guardian, appointment of child and adult psychologist Dr. Lowenstein the other 16 directions sought along with the Guardian’s Application for a section 91(14) order when she has not done any effective or otherwise investigation, without the right to due process and in breach of article 6.1 and 8 HRA 1998.
A half day hearing was insufficient time for the matters to be heard and these had unilaterally been condensed by the Judge sitting showing Mr. Justice Coleridge was operating with a closed mind as was shown by his giving defences on behalf of the Guardian and refusing argument from me on disclosure simply stating ‘I am not going to order disclosure.’
He had also ordered the Guardian to prepare a report on contact. I have not made an Application for contact. The only contact that may have been considered was interim contact until expert had reported as to the abuse of my children and their current psychological state as well as thta of the mother who has never been investigated and the issue of alienation whether described as PAS or PA.
He also ordered any skeleton arguments to be filed the day before the hearing. This did not give any time for a litigant in person to consider whatever argument may be given.
If the Applications that I sought were refused it is obvious that I would appeal.
Disclosure had not even been addressed. The order also gave directions for the Guardian to file a report on contact.
My Application was for residence or shared residence which has not to date been addressed.
This order to file a report on contact was no doubt explained by the Guardian’s Application for a section 91(14) order.
What Mr. Justice Coleridge was no doubt unaware of and yet ignored in it’s totality when raised in Court is that she had not met parties, and had carried out no investigation of medical or behavioural concerns, contacted the children’s school or GP to get the medical files, paediatrician, checked the social services files or had investigated my son’s counselling for low self esteem and lack of confidence and his referral to psychiatrist and the reasons for it.
The order of January 31st had set the hearing for directions only.
I therefore submit that the order was unlawful, unfair and had an unfair effect on the hearing set for March 29th 2006 to which my only response could have been to put my case on the three most urgent matters for removal of the guardian, appointment of child and adult expert psychologist Dr. Lowenstein and disclosure and to preserve my position by leaving Court after the blatant bias shown to me and when the Appeal had not been heard against the order of February 22nd.
The Guardian’s solicitors notes
I have also requested for release of the solicitors notes of the meetings and conversations with my children prior to the hearing.
It has been delayed beyond my control. I have the right to the notes since the Guardian’s solicitor cannot usurp the role of the Guardian and she was not giving legal advice but as she clearly stated in her letters to was carrying out the role of the Guardian in understanding the wishes and feelings of the children.
There has been no assessment of Gillick competence in my children. If my children are sufficiently aware and able to understand and make decision on their own behalf then they should have been shown the papers concerning them before Court.
I tried to inform my children on December 2nd 2005 of the truth but Mr. Justice Coleridge closed me down when I did so.
The solicitor for the Guardian has been regularly in contact with the children. These notes have not been released and has been requested after Mr. Justice Coleridge refused by way of Court order dated 21st November 2005 to have them released. I did not Appeal directly at the time as after meeting my children and witnessing Parental Alienation Syndrome as the Court had consistently been warned was signed of sick by my GP.
The Solicitor cannot undertake the role of the Guardian. It usurps the role of the Guardian who is supposed to have specialist training in questioning children. If the Guardian’s solicitor can carry out the role of the Guardian CAFCASS could be scrapped.
Volume 1 H 16 letter dated 15th September Guardian’s solicitor stated that my daughter no longer had utis, yet this is not in the Guardians notes and could only have been told to the Solicitor direct. My daughters UTIs were ongoing but the guardian had not sought the medical notes GP letter dated 9th September 2005 Vol 1 K 12]
Guardian’s solicitor met my children to prepare statements [letter dated 20th September 2005 vol 1 H 28 para 2/3 ] ‘I interviewed the children because it is part of my job.’ Yet the Court had not been notified my children were instructing the solicitor direct.
In letter dated 13th October 2005 [vol zero, K 1] ‘I have also spoken with the children directly and communicate with them regularly. A lot of what the children have said they have repeated both to the Guardian and myself but some of the things they have said to me alone. Consequently the children’s wishes and feelings will not always be fully expressed in the Guardian’s contemporaneous notes.
In vol 1 H 38A letter dated 9th November 2005 Solicitor stated ‘My role at present is to build a relationship with the children so that I can fully understand their wishes and feelings.’
If the children were being represented by the Solicitor to be legal advice then FPR 4.11 applies—(1) In carrying out his duty under section 41(2), the guardian ad litem shall have regard to the principle set out in section 1(2) and the matters set out in section 1(3)(a) to (f) as if for the word "court" in that section there were substituted the words "guardian ad litem".
where it appears to the guardian ad litem that the child-
is instructing his solicitor direct, or
intends to, and is capable of, conducting the proceedings on his own behalf, he shall so inform the court and thereafter-
shall perform all of his duties set out in this rule, other than duties under paragraph (2)(a) and such other duties as the court may direct,
shall take such part in the proceedings as the court may direct, and
(iii) may, with leave of the court, have legal representation in his conduct of those duties.
The Court was not informed.
Since these communication had been made from the respondent mother’s house, all parties except myself would be aware of the contents of the communications. They were not to give legal advice as the Court was not informed pursuant to FPR.
I have the right to know what has been said as she was not giving legal advice but according to her own words carrying ou the role of the Guardian.
The children’s words have not been based on the facts of the case and with allegations of psychological abuse and Parental alienation syndrome would be very important in evidence and argument for appointment of child and adult psychologist Dr. Lowenstein and the behaviour of the Guardian for her removal. I therefore submit that these notes should be disclosed.
This brings me to the issue of the Guardian’s notes and her failure to prepare contemporaneous notes. The Court ordered that the Contemporaneous notes be released to me after CAFCASS had tried to argue they could only be disclosed after proceedings had ended in breach of article 6.1 HRA 1998. The Guardian’s solicitor stated they were contemporaneous notes yet the Guardian under stated they were only an aide memoir.
The Guardian stated that her notes were an aide memoir and not contemporaneous notes under oath to try and justify matters appearing in her report that were not in her notes. It should also be remembered that the Guardian’s solicitor was also interviewing and communicating with my children.
I draws the Court’s attention to the CASE OF T.P. AND K.M. v. THE UNITED KINGDOM (Application no. 28945/95)
The local authority, which is charged with the duty of protecting the child and is a party in the court proceedings, may reasonably not be regarded by a parent as being able to approach the issue with objectivity. The question whether crucial material should be disclosed should therefore not be decided by the local authority, or the health authority responsible for the medical professional who conducted the interview.
The same principle applies to CAFCASS officers.
The Guardian’s notes are not full or contemporaneous. Her excuse was that they are an aide memoir. Allegations of a serious nature have been made. The notes should be full and contemporaneous. The Guardian under oath cannot remember the date she told me she would first see the children and introduces matters not in her notes into her final report.
Notes must be contemporaneous and full. This would then comply with the duties of a registered social worker, working together under the Children’s Act, and Police and Criminal evidence Act 1984.
In the Report of the Inquiry into Child Abuse in Cleveland (1987). At para. 12.34, it is to be noted that unanimity was recorded among the experts who had given evidence to the inquiry in relation to a number of matters. Those were endorsed by the inquiry team:
All interviews should be undertaken only by those with some training, experience and aptitude for talking with children.
The need to approach each interview with an open mind.
The style of the interview should be open-ended questions to support and encourage the child in free recall.
The interview should go at the pace of the child and not of the adult.
The setting for the interview must be suitable and sympathetic.
There must be careful recording of the interview and what the child says, whether or not there is a video recording.
It must be recognised that the use of facilitative techniques may create difficulties in subsequent court proceedings.
The great importance of adequate training for all those engaged in this work.
In Lillie and Reed v Newcastle City Council, a libel case heard in open Court at paragraph 405 it is stated: what I derive from the expert evidence generally (and indeed from the Cleveland Report, the Memorandum of Good Practice and the recent judicial pronouncements on the subject) may be shortly and simply stated:
Young children are suggestible.
Great care is required in analysing and assessing the weight to be given to statements from young children.
It is important to take into account the context of any such statement and how it was elicited (for example, whether any pressures, rewards or leading questions were used).
It is necessary to focus also on the wider circumstances of the child’s life in the period leading up to any such "disclosure" that might explain or colour what the child is saying.
It is vital to take into account delay between any event recounted and the statement itself.
One should take into account carefully any bias or pre-conceived ideas in the mind of an interviewer.
It is desirable to have in mind throughout any scope for contamination by statements from others, whether children or adults.
Similarities between what one child is saying and the statements of another may be two-edged, in the sense that they might tend to corroborate one another’s accuracy or merely reflect a common source.
One should be wary of interpreting childish references to behaviour, or parts of the body, through the distorting gauze of adult learning or reading
And in paragraph 406 ‘the Review team’s own expert Professor Bull told them that " the way in which a child is interviewed/ questioned will have a profound effect on the accuracy of a child’s testimony, especially if the child is very young and the event(s) in question are in the distant past". The general thrust of the research carried out in recent years by Professor Bruck and her colleagues is well known. Indeed... anyone nowadays looking into allegations of child abuse would be "mad" not to take it into account. .... What the research has thrown into stark relief is quite simply that very young children do not appear to have the same clear boundary between fact and fantasy as that which most adults have learnt to draw.
and in paragraph 408 At the risk of over-simplification, it is possible to highlight some of the propositions thrown up by the research that need to be addressed. ...It is important, first, to recognise that, although such obvious factors as leading questions, repetition, pressure, threats, rewards and negative stereotyping can fundamentally undermine the evidential worth of a child’s account, it may well be that a child will tailor his or her account in response to more subtle and less easily detected influences. In particular, there is (or may be) a tendency to say what the child perceives the questioner would like to hear. Moreover, it may not be as easy to spot that a child is adopting such an approach, as it would be to identify a leading question. What had, I believe, not been generally appreciated prior to the recent research was that children do not merely parrot what has been suggested to them but will embellish or overlay a particular general theme with apparently convincing detail. This can be very difficult to detect, even for those who are experienced in dealing with children.
CAFCASS clearly are not following good practice in questioning children and arriving at results which are predictable given the lack of objective, impartial and knowledgeable procedure and research being used or is that CAFCASS’s intention to use it in reverse just as the methodology of PAS investigations.
The need for notes to be contemporaneous and full are also noted in guidance given in Working together under the Children Act and supplements from the Department of Health. The Guardian was plainly wrong to not keep contemporaneous notes and as ever Mr. Justice Coleridge ignored the facts of the hearing before him.
Meeting with my children
The meeting with my children on December 2nd 2005 was very revealing. Mr. Justice Coleridge had stated that it may raise a whole raft of issues yet he ignored them despite bringing them to his attention.
It was clear that the respondent mother and stepfather have manipulated them. 1AC5A…Their hostility was illogical and at times severe manifesting many of the features of parental Alienation Syndrome.
I was accused by my daughter of manipulating them for giving them a good time, 1AC7 and 1AC what am I supposed to do? Abuse them as the mother has done and then attempt to cover it up? Would I be rewarded with residence if I had so behaved?
They hated their then six year old, now seven-year-old cousin. 1AC9A-B.
They had been given false information regarding material on websites that they claimed to have seen but could not since it did not exist. The Guardian’s solicitor had threatened me with applying to Court for publishing material the Guardian admitted under oath that she had not checked f to see if it was true. 1AC15-17.
On November 10th 2005 my son had requested help for his behavioural problems yet at that meeting he stated they had ended six months previously. 1AC12E/G.
My daughter had memory blocks of violence by the mother which Mr. Justice Coleridge heard on the tape. 1AC9/10.
My daughter accused me of inventing my son being locked in the bedroom by the mother and stepfather. 1AC11B.
My daughter did not know if I had made hundreds of Applications or a couple. 1AC4E.
Yet my son stated that the stepfather admitted he knew he was doing wrong but blames my son. My son now believes that he used to beat people up. 1AC11.
My son had memories from when he was two and a half, which is psychologically impossible. 1AC11F
Both children bluntly refused Christmas presents. 1AC.
This was all false information fed by the mother and stepfather. All of this need proper input as my son has had behavioural problems with the mother from 1997. My daughter has had daytime wetting and urinary tract infections since 1997 for which there is no physical cause and daytime wetting lasting over three months is indicative of emotional abuse, never mind seven years.
My daughter sent a loving letter in April 2001 4(O)1-4.
I refer the Court to Sommerfeld v Germany whereby it states:
42. ‘‘it must determine whether, having regard to the particular circumstances of the case and notably the importance of the decisions to be taken, the applicant has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests.
43. ..Correct and complete information on the child’s relationship with the applicant as the parent seeking access to the child is an indispensable prerequisite for establishing a child’s true wishes and thereby striking a fair balance between the interests at stake.
44. In the Court’s opinion, the German courts’ failure to order a psychological report on the possibilities of establishing contacts between the child and the applicant reveals an insufficient involvement of the applicant in the decision-making process. ’’
In the case of CASE OF GÖRGÜLÜ v. GERMANY (Application no. 74969/01) 26 February 2004 it is stated that ‘‘Although the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in an effective “respect” for family life. Thus, where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited
In the case of ELSHOLZ v. GERMANY (Application no. 25735/94) 13 July 2000; The Court, having regard to its findings with respect to Article 8 considers that in the present case, because of the lack of psychological expert evidence and the circumstance that the Regional Court did not conduct a further hearing although, in the Court's view, the applicant's appeal raised questions of fact and law which could not adequately be resolved on the basis of the written material at the disposal of the Regional Court, the proceedings, taken as a whole, did not satisfy the requirements of a fair and public hearing within the meaning of Article 6 § 1. There has thus been a breach of this provision.
Yet my children have not been able to tell fact from fiction, truth from falsity and unless an expert independent and impartial child psychologist is brought in the children will not have their psychological integrity respected, their voice will not be heard or their medium and long term best interests or their welfare respected.
If after the meeting with my children Mr. Justice Coleridge had any real concern that there was no problem with them, he would not have made the order dated 31st January for a half day hearing for directions.
The Guardian had sought three experts as of 17th November but the person who thought an expert was not so urgent was Charles Hale QC after reading the Guardian’s initial core bundle which did not include the evidential material necessary only the orders and judgments and the social worker’s flawed and invented investigations.
Coleridge’s judgment
Mr. Justice Coleridge said in the hearing ‘I’m not reinvestigating ..subjecting court proceedings and funds.’ His only concern has been with cost and the judge offered no guarantee sufficient to exclude any legitimate doubt in this respect as afforded by Article 6 of the ECHR. (De Cubber v. Belgium, Publ. Court, Series A, vol. 86, pp. 13-14, § 24).
The Applicant feared that his submissions and evidence would not be given a fair hearing, not only before the hearing but also during the hearing when subsequent behaviour further proved the matter.
It must be remembered that I did not know what was said in the Judgement as 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 February 22nd 2006 was awaited to be heard.
The skeleton argument for the Court of Appeal was provided on the basis of the facts of the case and also on the facts of what had happened in Court.
The Judgement is date stamped 1st June. I did not receive it until 4th June 2006. Despite an email from Mr. Justice Coleridge’s clerk that they thought the reel had left Portsmouth, I discovered that neither Mr. Justice Coleridge or his clerk had ordered the transcript at Public expense and the order was in Bournemouth County Court without any instructions on implementation.
As I suspected Mr. Justice Coleridge would ignore relevant matters, ignore the children’s welfare, and ignore anything I said and misled himself and further he introduced matters he never raised in Court.
Mr. Justice Coleridge states he does not believe that I did not receive the emailed skeleton argument of Charles Hale, I do not have email at home and did not even know it was being sent and never have been asked or consented to service by e-mail as is required by FPR.
I did not receive it until half an hour or so before the hearing. He invents matters in his Judgement as he never raised this in Court. Charles Hale stated in Court that it was unfortunate that I had not received it.
If Mr. Justice Coleridge had raised this in Court I would have disabused him. Charles Hale or the other parties did not raise this. I had thought that my opponents were the other parties but turned out to be Mr. Justice Coleridge by inventing his judgement after the event.
The judge ordered a report on contact in his own motion order dated February 22nd 06 and then in his Judgement [para 7 page 4] he states that he moved onto the third Application for residence, shared residence or contact. The Guardian’s report was only on contact. I was unprepared for such a change but this has only appeared in the Judgement – in Court he stated contact .
I had not applied for contact. I disabused the Judge when he stated he was going to hear my Application for contact in that, until an expert is involved even interim contact was premature. The blame for any suffering of my children [and there is a long history of problems, resides entirely with the mother, stepfather and the State bodies and biased Judges.
Mr. Justice Coleridge knew that I was appealing the order. [Page 18E of the Judgement]. I had notified all parties and the Court not only prior to the hearing but at the beginning of the hearing. Knowing that I was appealing his order of February 22nd and he refers to Applications for appointment of child psychologist, removal of Guardian and disclosure (although he denies in his judgement and simply misleads himself [Page 3 para 6]).
It was pursued when he himself refused it after lunch with out permitting any argument or giving any reasons.
I was not given the Appeal on April 28th 2005 by the Court of Appeal because the previous section 91(14) order was time unlimited [Para 4 and 39] but because HHJ Milligan had the appearance of bias for the gratuitous words ‘come to me in a different frame of mind and anything may be possible.’
I appealed on his bias and the hearing before him was for his recusal for being a biased judge. I had not Appealed the section 91(14) order since it was given by fraud and by a biased judge who gave me a homily as I was leaving Court. Mr. Justice Coleridge is merely protecting the lower Court judges he is responsible for. He cannot change the basis or the grounds upon which the previous Appeal heard on April 28th 2005 was made or given.
Mr. Justice Coleridge states para 3 that only one hearing was heard by HHJ Bond and all other by himself. This is untrue. There was only one hearing on November 21st 2005 heard by Mr. Justice Coleridge. HHJ Bond heard matters on July 1st, August 1st, and September 9th 2005.
I have not made an Application for contact – Mr. justice Coleridge ordered a report on contact in his order of February 22nd 2006 of the Courts own motion. (para 4). The Application before the Court was for residence/ shared residence after the system sorts out its own mess.
There is no analysis or mention of the argument that I put to Court.
There is no mention of the case law that I raised.
Whilst Charles Hale refers to the mother and stepfather being heard; there is no mention whatsoever of their argument. The stepfather had not even given a statement so could not give evidence in Court.
There is nothing on the issue of the children’s surnames unlawfully changed by the mother.
There is nothing on the failure of the Guardian to check the websites before instructing her solicitor to threaten me, when there was nothing to see on fathers4justice and only my name on men’s hour.
There is nothing on the perjury of the social worker. There is nothing on bias of HHJ Milligan or the fact that there is no estoppel and the welfare of the children has not been paramount.
He states Para 42 ‘The system cannot be used by litigants to fight campaigns against the statutory services for its own sake.’ I would remind the Court that the Judiciary should not be protecting criminal and unlawful acts of the State bodies. Their acts have perverted the course of justice and misled the Court and been against the best interests of the children and their welfare.
There is no analysis or even comment on the decision making process of the Guardian.
I do not need leave to Appeal from Mr. Justice Coleridge. Page 19. No Jugde is going to give permission to Appeal when he himself refuses the Applications, he would be admitting that he was plainly wrong.
The Judge refers to two bundles from the Guardian I was never served with these. I was only sent an up-dated index, which appears to be for one bundle which I neither received.
I did not have the whole morning as Mr. Justice Coleridge states we did not go into Court until 11am.
Mr. Justice Coleridge did not use or consider the welfare checklist.
Mr. Justice Coleridge stated that there are no concerns of the children and deliberately ignored my son’s regular referrals to child and family guidance, counselling for low self-esteem and lack of confidence, and referral to psychiatrist. My daughters maturity which is a factor for child protection where children are not permitted to be children. My daughters ongoing urinary tract infections and daytime wetting since 1997. The mother’s emotional and psychological history and my daughter describing the mother’s behaviour as being the same as my son.
Mr. Justice Coleridge has the temerity to state that I am abusing the family Justice system (para 42) and the system is itself in serious danger of abusing the children. He is misleading himself. No wonder he did not want to read all the documents before the Court. He then will have realised that the children have already been abused by the mother and stepfather, under the noses of the child protection system.
The case law referred to Mabon was not used in the skeleton argument and never served on me. Mr. Justice Coleridge ignored the case law that I provided for parties and the Court. This seems common practise throughout his judgement and in his behaviour in Court.
Mr. justice Coleridge stated (Para 42) ‘The father has been warned and counselled by judges over and over again, that he will not achieve his aim by endless forensic brute force.’
I do not know where this comes from. Again matters raised in the Judgement were not raised in Court or I would have disabused him. Perhaps applying an agile brain to the actions and omissions of the state Authorities and what she be good practice is uncomfortable rather being led by the nose with State controlled lawyers.
The tape he refers to in Para 7 and 26 is evidence from 1995 to October 1999, shortly before the mother stopped all contact in breach of Court order. It was evidence of what the children have been subjected to by the mother, her violence, instability, punishment of my daughter for disclosing the locking in of my son, and evidence of alienation in that the children’s memories have been altered, and my daughter had memory blocks.
Sara McCartney MP heard the same tape. Her reaction was instantaneous: ‘it sounds like the mother is unstable.’ Mr. Justice Coleridge states that ‘The mother sounds, on occasions, to be completely besides herself and at the end of her tether.’ Para 26. This is untrue. She was having psychiatric and psychological therapy for problems of personal origin with the risk of psychological abuse of the children.
That tape must be played in open Court. It contains selected material to show that after the psychiatrist had signed the mother off simply for postnatal depression her behaviour was the same. As proof that I was the victim of violence at her hands. To show the extent to which the mother went including punishing my daughter for disclosing the locking in of my son to the class teacher and to the CWO Linda Middleditch. Her unlawful threats to kill me and that I would never see the children again.
It is also proof that on January 3rd 1998 my daughter did say ‘Daddy I don’t want her to hit you’ on another occasion of violence by the mother and also that her solicitor was behind her actions forcing her to do things that she did not want to do and not acting on her instructions as he should be.
This is clear evidence that Mr. Justice Coleridge should not act as child psychologist. The mother was fully diagnosed as being emotionally unstable after a battery of psychological tests.
In Para 27 Mr. Justice Coleridge refers to ‘a very lengthy statement by the father running I think to some 59 paragraphs over six pages.’ I never submitted any skeleton argument for the hearing.
In Paragraphs 33 to 37, Mr. Justice Coleridge addresses the issue of appointment of child psychologist. Mr. Justice Coleridge does address any arguments presented. He states that ‘The father is convinced that the children’s views are planted by the mother. It is far more likely in my Judgement that the children’s views are the result of the father’s actions and behaviour.’ This is trite.
How can a person who has not been in contact with their children from October 26th 1999 be blamed for the children’s changes of memory, memory blocks, the hostility to the whole of his family including grandparents and seven year old cousin as evidenced in the meeting with the children and when the children admit they have been told all of this by the mother and stepfather. This is not just father blaming. This is arrant nonsense.
The Guardian never pointed out that there has never been a difficulty with the children talking happily about happy events in the past. The Guardian admitted that the only photo the children had was from 1995 or beforehand when I had a beard. There were no photos of me after. I had long hair and no beard from 1996.
The mother’s hostility and psychological/ emotional problems and the admittals by my daughter that the mother’s behaviour is similar to that of my son in being unable to control herself. There can be no evidence for concern for a psychological report if the Judge and Guardian act partially and ignored the evidence. Mr. Justice Coleridge made no mention in his judgements of my son’s referral to child and family guidance after 1997 every year barring 2003, his referral to a counsellor for low self esteem and lack of confidence and his referral after to a psychiatrist.
Mr. Justice Coleridge ignored the ongoing daytime wetting and related urinary tract infections in my daughter.
Mr. Justice Coleridge ignored the fact that the mother has never been investigated for the diagnosis of emotional instability and borderline personality disorder which despite Court order in 1997 has never been investigated and is most probably linked to the mother’s behaviour.
Mr. Justice Coledridge ignored the fact that it is proven in the words of the children that the mother and stepfather have told false stories to the children which is typical of alienation.
Mr. Justice Coleridge stated that a large degree of co-operation is needed for a psychological assessment. If that is the case; no child would ever go to the dentist, GP or school. Alienation would never be addressed or psychological difficulties. My son happily wanted help on November 10th 2005. He asked for help, and he wanted to go to a psychiatrist. I asked the Court if necessary to make the children wards of Court. Time and time again Mr. Justice Coleridge has bent over backwards for the mother/ Guardian and ignored the children’s welfare in the process.
In Para 21 he refers to my position statement of 362 pages. This was not my position statement but an addendum to remind the Court of the law and child psychology. My Position statement was not put in the Guardian’s bundle. She deliberately misled the Court and has refused to amend it.
In Paragraph 37 Mr. Justice Coleridge refers to the third and main application for contact. I have never made an Application for contact. Mr. Justice Coleridge invented this in his order dated February 22nd 2006.
Mr. Justice Coleridge stated in paragraph 41 that ‘the father is on a crusade in relation to the past.’ Mr. Justice Coleridge ignores the past and present, as the Guardian; the welfare issues for which there has been no investigation such as UTIs/ daytime wetting from 1997 to at least February 2005, my son’s regular referrals to child and family guidance, counselling for low self esteem and lack of confidence, referral to psychiatrist and the mother’s psychological and emotional history and diagnoses with the risk of psychological abuse of the children which is inconsistent parenting which seems to be ongoing and has never been investigated in the UK.
Mr. Justice Coleridge as the Guardian ignores the fact that my son had been referred to a psychiatrist in 2005 which I had stopped because it had to be a report from the Court due to PAS and/ or alienation and psychological abuse which is inconsistent parenting typified by the on-going problems that Guardian and Mr. Justice Coleridge have all ignored.
In Para 11 Mr. Justice Coleridge states that ‘The father has always maintained that the children are at risk with their mother, in the face of the clearest evidence that this was not so; that evidence has been produced by a number of statutory services.’ I don’t believe Mr. Justice Coleridge has even bothered to look at the evidence or factual arguments in the various submissions. It has never been investigated. The only investigation by Statutory body involved social services who never met me, invented their report, and interviewed the Judge and CWO as the sole bodies contacted.
Mr. Justice Coleridge states that the ‘battle over the children has waged ...over an astonishing nine years.’ Para 10. He forgets that I was banned by virtue of the section 91(14) order from April 2000 until April 2005. A total of five years! There have only been 10 hearings up this Application on 27th February 1997, December 1st and 2nd 1997, 1st May 1998, 17th August 1998, 23 rd September 1998, 27th October 1999, January 13th 2000, 11th April 2000, 17th December 2001, 22nd January 2002. I was subject to a section 91(14) order wrongly imposed by HHJ Milligan from April 2002 to April 2005. Plenty of time for the mother and stepfather to cover up their abuse and to alienate the children further as this case shows.
Mr. Justice Coleridge stated in para 6 of his Judgement ‘in particular, a Dr. Lowenstein, the American exponent of the much questioned theory ‘parental alienation syndrome.’ He ignores the fact that Battered women’s syndrome accepted in the Criminal Courts is not in DSM 1V and was refused for inclusion, that Parental Alienation Syndrome is accepted in Germany, Holland, Spain, Israel, passed two Frye tests in the USA and a Mohan test in Canada. There is also a PAS file set up for the DSM Committee meeting this year and reporting in 2010. I raised in Court that the recognition of PAS in the UK appears to be a political problem.
Having training in anger management and special needs it is obvious that PAS exists. The transcript of the children clearly shows factors of PAS from memory blocks, new memories, lies from the stepfather that my son used to beat children up, my son having memories from two and a half years old, hostility of the children’s own volition, extension of the hostility to the whole of the father’s family including a seven year old cousin, and extreme hostility because ‘you made it look so good.’
What was I supposed to do? Abuse the children like the mother? Would I have been given residence if I had behaved in the manner that she has done?
When challenged on findings of HHJ Milligan as a biased judge Mr. Justice Coleridge stated ‘She’s bound to rely on his findings.’ Yet there is no estoppel the children’s welfare cannot be paramount if biased, and fraudulent and untrue material is relied upon.
The decision that the Court makes will also be based on wrong facts, not be in the best interests of the children, against their welfare and medium and long-term best interests which is allegedly the courts paramount consideration and simply promulgate the abuses experienced to date.
When challenged on the biased and perjured evidence of Maggie Smith Social worker Mr. Justice Coleridge said that he would not re-open social services enquiries and it would be extremely abusive of the children. He then said If the children have problems – then I’d try to discover more regarding the past... your daughter is an extremely pretty young lady. Do only ugly children need help?
He ignored my son’s referrals to child and family guidance, for counselling and to a psychiatrist, his request for help on November 10th 2005 and my daughter’s daytime wetting and urinary tract infections which are clear indicators of concern as well as the fact that they were lying in Court before him.
I have already mentioned that the Guardian’s solicitor has already admitted in writing that Mr. Justice Coleridge did not hear from the other parties when I have the fundamental right to adversarial process as recognised in European jurisprudence.
A judge has no locus standi to raise the defence of fact for a party! He thus became the Defendant! And, he ceased to be a judge! In other words, he was, in law, a biased judge( See: Langborger v. Sweden (1990) 12 EHRR 416 at para 32). This is a blatant breach of article 6.1 HRA 1998.
Similarly it has also been admitted that I did proceed with my Application for disclosure contrary to the words in his judgement stating that I did not proceed. A further breach of article 6.1 especially when he just said I’m not ordering disclosure and refusing further argument.
A litigant is entitled to a reasoned decision in order to understand why he lost and in order to prepare an Appeal if necessary. I have been given no reasons.
Mr. Justice Coleridge was not acting independently or impartially.
The Courts are now a public Authority and cannot behave in such manner yet that is exactly what he did.
When a person claims that a public authority has acted (or proposes to act) in a way incompatible with a Convention right, and where that person is, or may be, a victim of such action, he may rely on Convention rights in existing court proceedings (s.7(1)(b)). I invoke those rights now.
It is a well-established principle of national law and Authority, in Lazarus Estates ltd v Beasley (1956) 1 All ER 341 Lord Denning: ‘no judgement of a court, no order of a minister can be allowed to stand if it has been obtained by fraud – fraud unravels everything.’ The Authorities, the Court have all acted fraudulently and unlawfully.
The hearing was a sham. In the case of Nideröst-Huber v. Switzerland ECtHRit is stated ;
24. ....the concept of fair trial also implies in principle the right for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed (see the Lobo Machado v. Portugal and Vermeulen v. Belgium judgments of 20 February 1996, Reports 1996-I, p. 206, para. 31, and p. 234, para. 33, respectively).
I never received copies of the two bundles from the Guardian that are referred to in the judgement of Mr. Justice Coleridge.
I never received the skeleton argument of Charles Hale until half an hour before the hearing.
I never received the decision making material namely letters to and from the Guardian to the children’s schools, and the GP requested well in advance of the hearing until I was leaving the hearing. Mr. Justice Coleridge refused to order that it be disclosed leaving it to the discretion of the Guardian.
In O & Others 2005 EWCA 1759 LJ Wall stated in para 87 that ‘In the same way that we have been critical of Judge Milligan and Judge Norrie for the manner in which they respectively treated Mr. O and Mr. Watson, we are equally critical of those members of the legal profession who do not obey the rules when dealing with litigants-in-person, and who do not extend to them the normal courtesies they extend to professional opponents.
Under Civil Jurisdiction and Judgments Act 1982, Article 27
A judgment shall not be recognised (2) where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to argue for his defence.
Guardian’s decision making process
In Paragraph 29/30 he refers to written submissions from me. I never made any written submission for removal of the Guardian. He states there is not one scintilla of evidence to support or justify the Father’s application. I don’t think Mr. Justice Coleridge and I were at the same hearing. Nothing I said in Court, proved or argued is mentioned, although I gave a lucid and articulate presentation.
Section 91(14) orders are made at the conclusion and no evidence has been submitted to Court by the Guardian to the children suffering or to the alleged witnesses to this referred to in the Application.
She was given legal aid for a section 91(14) order on February 2nd 2006. She then applied for section 91(14) on 13th February prior to having received replies from the schools, GP or done any investigation etc etc.
When requesting disclosure of the Guardian’s decision making process, Mr. Justice Coleridge stated – she can if she wants. Ignoring the role of a judge and the rights of the Applicant under article 6 and 8 HRA 1998.
When asked under what section of the Children’s Act the written report is written he stated it was prepared by Guardian pursuant to appointment and as such to provide to the Court. I have the right to know if it is a section 7 or 37 report.
When asked for Mr. L to make statement on November 21st this was refused on the grounds that he would say the same as the mother, when revisiting the matter on March 29th 2006 he said ‘If I think appropriate’ Yet he had already reduced the hearing and I have the right to have the stepfather who is a party to the case, to justify his abuse of my children and then covering up after the event aiding the alienation.
Mr. Justice Coleridge ignored the signs and symptoms, the fact that my children have been taught to lie in Court and the evidence of Parental Alienation Syndrome and psychological abuse.
When questioning on how the Guardian knows that they are the children’s real wishes and feelings she said ‘ I don’t know – its part of my assessment skills.’ I stated ‘it doesn’t sound very factual.’ ‘ She replied that it is not a science.
When pointing out that the Guardian had already admitted she had not investigated alienation. Mr. Justice Coleridge stated ‘She has given a view.’ How can anyone give a view on a matter when they have not investigated. It beggars belief and would be ridiculed in an open Court.
Mr. Justice Coleridge said ‘We have ample powers and the question is do we exercise them. I am not prepared even if thought helpful to allow a psychologist.’
On November 21st 2005 Mr. Justice Coleridge stated that he would be happy to hear from Dr. Lowenstein after meeting me with the children. Then he denies this right. His word is not to be believed. Clearly his word is to be taken with a pinch of salt.
When mentioning the relevance of daytime wetting Mr. Justice Coleridge stated that anything could be the cause and later that there is a whole range of possible explanations. Yet this is not true. Daytime wetting lasting over three months is indicative of emotional abuse. Is he really a Family Court High Court judge?
In this case it began in 1997 and is probably ongoing since the last reported UTI was on February 17th 2005.
When questioned on whether the words of the children were true the Guardian stated she the believed the children believed the words to be true and that it came from their hearts. Mr. Justice Coleridge then stated ‘The question is whether it came from their hearts.’
In open Court the Public would sit with open mouths aghast. If the children are stating things that are untrue this needs to be investigated and is highly indicative of PAS.
The Guardian had not carried out any investigation and reported partially and even denied me the decision making process which Mr. Justice Coleridge refused to order her to release.
She had prejudged the situation applying for a section 91(14) order without further investigation than the children’s words at the mother’s house and one meeting on December 2nd 2005 after over five years of no contact for no good or proper reason by biased Judges and corrupt court reporters from CAFCASS and Local Authority social services.
The guardian had not investigated any further after a meeting with my children on December 2nd 2005 with the children except had a meal at a restaurant with the children. She then Applied for a section 91(14) order being given legal aid on February 2nd 2006 without any other investigation. She has blindly relied on the children’s words and nothing else. She has relied on the children’s untruths even when evidence exists that their words are untrue.
Mr. Justice Coleridge in defending her stated that she was obliged to follow the findings of HHJ Miligan and Mr. Justice Sumner, in which case the children’s welfare has not been paramount. I have abundant evidence of bias and abuse of power by oth Mr. Justice Sumner and HHJ Milligan.
I refer the Court Re B Children’s Act Proceedings issue estoppel [1997] 1 FLR 285 beginning Letter D page 295. Hale J:
It seems to me that the weight of Court of Appeal Authority is against the existence of any strict rule of issue estoppel, which is binding upon any of the parties in Children’s cases. At the same time the Court undoubtedly has discretion as to how the enquiry before it is to be conducted. This means that it may on occasions decline to allow a full hearing of the evidence on certain matters, even if the strict rules of issue estoppel would not cover them.
There are no doubt many factors to be borne in mind, among them the following:
The Court will wish to balance the underlying considerations of public policy:
that there is a public interest in an end to litigation. The resources of the courts and everyone involved in these proceedings are already severely stretched, and should not be employed in deciding the same matter twice, unless there is good reason to do so.
That any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child: but
that the welfare of any child is unlikely to be served by relying upon determination of fact, which turn out to be erroneous; and
The court’s discretion, like the rules of issue estoppel...must be applied, as to work justice and not injustice.
The priority is the children’s welfare. The guardian’s role is to represent them independently of both other parties and the stepfather yet did not do so.
Eric Pickles MP said : ‘There is almost a process of Chinese whispers whereby that noble concept becomes bastardised onto an unwillingness to disclose, to justify, to listen to arguments, or even to see a need to explain decisions.’
He also stated that ‘the Guardian is there to look after the interests of the children and to be impartial in the process.’ Obviously he has not met Mr. Justice Coleridge who in his judgement stated that she is not there to be independent of parties.
Eric Pickles also said ‘ Although some Guardians may exist who are prepared to stand up to social services departments and act as bastions of freedom, they are very hard to find. Generally speaking Guardian’s act as cheerleaders for social services departments. They are entirely compliant and seem incapable of doing much more than being a cheer leading section.’
The same applies to Alison Evans. She has aided and abetted the cover up for which reason I have sought her removal.
Guardian Ad-litem has not investigated the credibility of the mother and husband Mr. L.
Mr. L has not even provided a statement or response to the C1 and C1A served on both the mother and stepfather.
The Guardian admitted in her report paragraph 4.1 ‘I confirm that the many other issues raised by Mr O, relating mainly to past proceedings, domestic abuse and Mrs L’ psychiatric history have not been addressed nor indeed investigated.’ This obviously includes psychological and emotional issues and under oath she admitted that she had not investigated alienation. The whole matter has not been investigated at all.
The Guardian as with Mr. Justice Coleridge rely on fraudulent reports, judgements and untruths without examination even on paper of the issues. Therefore the welfare of the children has not been paramount as required by section 1 of the Children’s Act 1989.
A Guardian Ad-litem/ Family Court advisor trained on convergence does not have the in-depth training and experience of a real Guardian Ad-litem and her actions to date have breached articles 6 and 8 HRA 1998.
The Guardian had not carried out sufficient investigation to protect the rights of the children, as is her role.
She solely relied on the children’s words when she had not investigated the factual or truthful basis.
I submit that the Guardian has not been acting independently on behalf of the children but closed her eyes and ears acting on behalf of the mother.
She quotes the mother in her report for contact, when I have not even applied for contact and states that she has not had a meeting with any of the parties.
I have refused to meet her with my children and the solicitor to have the children tell me they don’t want to see me and I have refused to discuss matters with the guardian’s solicitor prior to Court hearings.
I would have welcomed being offered a meeting which the protection of a recorded meeting to discuss the facts of the case as they truly are and not as the Guardian wishes to present them. I would have welcomed an opportunity to show her the relevant facts and evidence before the Court, yet was given no such opportunity.
My complaint to the parliamentary Ombudsman covered this. Yet it was yet again refused on the grounds that the matter was up to the Judge sitting.
The Guardian’s decision making process was fatally flawed. Her role is to represent the children independently of both parties.
She did not meet (allegedly) with the mother or father, yet she quotes the mother.
Her notes were not contemporaneous.
She did not investigate the facts of the case or the evidence before the Court on behalf of the children.
She relied on the biased Judgements of HHJ Milligan, Mr. Justice Sumner and the corrupt social worker Maggie Smith. yet she should have done a forensic examination to make sure that the behaviour of the Social Services dept and the Court served the children’s welfare and their best interests.
She did not investigate why my son was having counselling.
She did not investigate my son’s regular referrals to child and family guidance.
She did not investigate my son’s referral to a psychiatrist.
She did not investigate the children’s medical files.
She did not investigate social services file.
she did not speak to, meet or check up on potential witnesses.
She did not meet family members.
she did not investigate the children’s words at the meeting with them when there is ample evidence of alienation. It is trite to say under oath that I believe the children believe that they are telling the truth.
She did not investigate the children’s welfare other then repeat the words of alienated children.
She did not take any advice on the medical conditions such as urinary tract infections or daytime wetting.
She did not analyse the previous decision making process.
She did not investigate the missing Court file.
She did not investigate the mother’s emotional and psychological history.
She ambushed the father with Dr. bentovim.
She ambushed the father with Charles hale skeleton argument.
She did not correct the fact that I never said that’s the thing I am fighting for Justice.
She applied for a section 91(14) order before investigating the school and GP.
She asked limited questions of the school and GP after she had applied for a section 91(14) Application not beforehand.
Her notes were awful with seemed, presented, appeared, and I felt.
There was no separation of fact from fiction.
She has misled the Court with her chronology and statement of issues.
She has deliberately provided a misleading core bundle which has never been served on me, yet according to the Judgement there were two budnels before the Court!
She has not (allegedly) had meeting with the mother, the stepfather has not provided a statement yet reports glowingly on their care of the children when this has not been investigated.
She has not assessed psychological abuse or parental alienation (syndrome).
she has with-held from Court the fact that the mother is in contempt of Court and in breach of section 13 of the Children’s Act 1989.
She did not check Gillick competence before sending the children to the solicitor after the initial meeting or since.
She admits that she never investigated any of my concerns or alienation. So what use was her report except to promulgate the wrong-doing.
The Guardian’s role is to represent the children. To look into matters on their behalf and to investigate forensically.
She blindly accepts the Social services and CAFCASS previous involvement as being adequate to protect the children yet ignores the evidence of perjury, perversion of the course of justice, misfeasance and/ or malfeasance and bias.
She ignores alienation and evidence of concern for the children and the wrongdoing of the Family Justice System on their behalf.
Her report has been praised by Mr. Justice Coleridge yet he in his Judgement ignored the facts of the case as argued in Court, acted on behalf of the Guardian in giving defences and promulgated the situation.
Both children now hate the whole of the father’s family on spurious grounds and have symptoms fully reminiscent of Parental Alienation Syndrome. Congratulations to CAFCASS.
It was by the simple act of writing a letter that I discovered why my son had been having counselling, that the missing Court file existed, that emails from me to FNF were in the Court file which should not have been and that a whole host of other matters were not as the Court had been informed in reports subject to the perjury Act of 1911.
The Guardian has stated on the phone to me that there is no evidence of alienation, and that she believed what the children were saying was true. This is appalling.
I did not know that the Guardian was meeting with the children on 29th November or before the meeting with their father on December 2nd 2005. The mother would certainly be aware. Yet another ruse to cook up some evidence against the father.
It is noted [1 H 50 ] children were anxious that they would be safe and that their father would not take them away. When they spoke of their father having a beard – this is another strange comment given that I removed the beard in 1996 and the main point they would have properly remembered was that until they last saw me I had long hair in a ponytail and was clean shaven. Guardian admitted she did not see any such photos.
The Guardian [ 1 H 50 ] told the children that the most important thing was for them to be totally honest with the judge and father. The Guardian noted [1 H 51 that she felt the children were speaking the truth.
Yet what transpired was solid prima facie evidence of Alienation. She has not even checked on the evidence before her. The Guardian clearly is here for the mother .
I preserved my position on why I agreed to that meeting in the fax 1 D 37]. When I saw the hostility in the children, I then asked questions to elicit responses in support of alienation, a matter raised previously in the Court but was ignored by HHJ Milligan refusing a family therapist, psychological expert input etc.
Nowhere before the Court was it ever argued that I manipulated the children by giving them a good time. If there is any objectivity in this Court it is obvious that the children are not thinking straight themselves. How can being a caring, sensitive parent and being child friendly possibly equate with manipulating them? Should I have abused them as the mother and stepfather have?
That would make an excellent media headline; ‘father denied contact for six years with his children for giving them a good time.’ Father fails to abuse his children. CAFCASS have run out of ideas so please fathers feel free to abuse your kids.
It is clear that in a complex case such as this with intermingled allegations of psychological abuse and Parental Alienation Syndrome, the symptoms in the children, their untrue words, the hatred to the whole of my family and the ongoing behavioural problems in my son that an expert child and adult psychologist trained in such matters would assist the Court.
Should Judges interview children?
Judges are not trained in child or adult psychology or analysing children’s words. It is not their remit. CAFCASS have little training in this, as is evidenced in the manner in which the Guardian has approached this case. I have just received a letter from CAFCASS. I was hoping to have answers to the questions in advance of today’s hearing but they are treating it as a request under the freedom of information act. I very much doubt that CAFCASS have policies or procedure on questioning children as is evidenced by this case. [Copy handed over to LJ Wall].
In F-K (A Child) 24 February 2005 Neutral Citation Number: [2005] EWCA Civ 155
- …Mr. Horrocks accepted that a judge is entitled to depart from the evidence of an expert. However, he must give reasons for doing so. Furthermore, Mr. Horrocks acknowledged, a judge may decline to follow the combined evidence of a number of experts, so long as there is other available evidence upon which the judge may properly rely. Mr. Horrocks cited the decision of this court in Re B (Care: Expert Witness) [1996] 1 FLR 667, and the judgment of Ward LJ at p.670 C-E:
"The court invariably needs and invariably depends upon the help it receives from experts in this field. The court has no expertise of its own, other than legal expertise… By their special allocation to this work, they [i.e. Judges] acquire a body of knowledge which, strictly speaking, cannot be substituted for the evidence received, but which can be deployed to spot any weakness in the expert evidence. That is the judicial task. The expert advises, but the judge decides. The judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the court which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it. There is, however, no rule that the judge suspends judicial belief simply because the evidence is given by an expert."
Mr. Horrocks also pointed out that in the same case Butler Sloss L.J.(as she then was)had
said at p.674 F:
"Family judges deal with increasingly difficult child cases and are much assisted in their decision-making process by professionals from other disciplines: medical, wider mental health and social work among others. The courts pay particular attention to the valuable contribution from paediatricians and child psychiatrists as well as others, but it is important to remember that the decision is that of the judge and not of the professional expert. Judges are well accustomed to assessing the conflicting evidence of experts. As Ward, LJ said, Judges are not expected to suspend judicial belief simply because the evidence is given by an expert. An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be. It is, however, necessary for a Judge to give reasons for disagreeing with experts' conclusions or recommendations."
Judge Allweis giving evidence to the Select Committee enquiry on CAFCASS on 8th April 2003, stated in paragraph 76; ‘How the voice of the child is heard is actually quite a complex matter. There are some who say that the child should come and speak to the Judge; I have my skills – such as they may be- but I am not necessarily skilled as interviewing children to ascertain their wishes and feelings.’
Mr. Justice Coleridge is not a child or adult psychologist. His decision to see the children with me was protected by his words on November 21st 2005 when he said that he would hear from Dr. Lowenstein after the meeting with the children. It appears that the words of even a High Court Judge are worthless.
The training and education on Parental Alienation or I should say PAS is lacking in UK State Authorities.
Sir Mark Potter stated on 2nd May 2006 whilst giving evidence to the Select Committee that the work of CAFCASS is absolutely essential to the successful operation of the Family Justice System.
During that meeting Keith Vaz stated to Sir Mark Potter ‘you are finding excuses for Politicians which you are not supposed to do as a judge.’
In this case Mr. Justice Coleridge found excuses on behalf of the Guardian from CAFCASS, which he neither should he do so.
Even though I took Mr. Justice Coleridge through an analysis of the children’s words showing where their memories had changed, they had memory blanks, the hostility had extended to all the fathers family, where the memories had been altered and the admittals of the lies by the mother and stepfather, he decided to ignore the issues in his judgement and in Court paid lip service.
All that the Court and CAFCASS have done is to repeat the children’s words without one iota of thought behind it. My daughter was punished severely in the past by the mother for disclosing the abuse of her brother, yet no assessment or investigation has been carried out into the matter.
The interviews with the children took place at the mother’s house. This was true for the meetings on August 25th 05, November 10th, November 29th, 21st December 05 [then going to restaurant], and 15th February 06. Both the meetings with the Solicitor which should not have taken place were also at the mother’s house.
In Re N Ward L.J. expressed agreement with a passage in the judgment of Wall J in Re and B ( Minors) (No.1) (Investigation of Alleged Abuse) [1995] 3 F.C.R. 389,409:
"From a forensic view point para. 12.35 of the [Report of the Inquiry into Child Abuse in Cleveland (1987) (Cm 412) the unsuitability of having a parent present at an interview] remains a correct statement of the proper practice, particularly in a case where the only evidence of abuse up to the date of the first interview was what the mother has said the child has said to her. Quite apart from any pressure which the mother’s presence may place on the child, the golden rule is that each interview is to be approached with an open mind: such a rule is in my view immediately broken if the mother is present at the interview".
Attention is also drawn to the words of Morritt L.J. In Re F.S. (Minors) (Care Proceedings) [1996] 1 F.C.R. 667, 676-677:
"The use of child psychiatrists is obviously of the greatest assistance to the court in many cases. In some instances that will extend to pointing out features of the child’s evidence which tend either to support or undermine its credibility. But it is usurping the function of the judge to give an opinion directly on whether the man did that of which he is accused. In this case three of the experts stated their respective beliefs that the father had sexually abused N in the way of which she complained, not because of the results of medical examination, but because they believed what she said in the video interview. Not only was such evidence inadmissible, it was capable of being highly prejudicial. Though judges are often required to put out of their mind inadmissible and prejudicial matters they are entitled to expect the parties and their representatives to use care to see that they are not faced with it in the first place. Moreover, not only may the wrongful admission of such evidence cause problems for the judge, it is also susceptible to giving the accused person the impression that he is being tried by the experts and not the judge".
All the Guardian could do in Court was to say ‘I believe that the children believe what they are saying is true.’ and then this was followed by Mr. Justice Coleridge stating ‘All that matters is does it come from their hearts.’ This is trite.
The Judicial studies board advises against Judges hearing children. The role of interviewing children is that of the Guardian not the Solicitor or the Court. It is not to be missed that the Guardian and Solicitor have refused to show the children any of the paper before the Court or to correct their impressions.
It is noted in Elholz v Germany (13th July 2000) that
“a fair balance must be struck between the interests of the child and those of the parent (see e.g. Olsson v Sweden No 2 (27 November 1992) and that in doing so particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In particular the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development (see Johansen v Norway para. 78)”. This principle must apply a fortiori to Article 6.
In T. v U.K. (16 December 1999) and V. v U.K. (16 December 1999), cases concerning murder charges against very young children, the Court noted that Article 6 , read as a whole guarantees the right of an accused to participate effectively in the trial. The Court noted
“The formality and ritual of the Crown Court must at times have seemed incomprehensible and intimidating for a child of eleven … the applicant states that he was unable to follow the trial or take decisions in his own best interests.” (para. 86, T. v U.K.)
Importantly the Court added “… the Court does not consider that it was sufficient for the purpose of Article 6(1) that the applicant was represented by skilled and experienced lawyers.” (para.88, T. v U.K.).
In Niemietz v Germany10 the Strasbourg Court indicated that private life includes at least two elements. The first is the notion of “an “inner circle” in which the individual may live his own personal life as he chooses”; the second is “the right to establish and develop relationships with other human beings”. The Court developed this in Botta v Italy- What the Court said was this: “Private life, in the court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.” This has been elaborated by the Court in further cases12 where it was pointed out that: 10 (1993) 16 EHRR 97 at para [29]. 11 (1998) 26 EHRR 241 at para [32]. 12 Bensaid v United Kingdom (2001) 33 EHRR 205 at para [47], Pretty v United Kingdom (2002) 35 EHRR 1, [2002] 2 FLR 45, at para [61].
“Article 8 … protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world.” In Pretty v United Kingdom the Court stressed that: “The very essence of the Convention is respect for human dignity and human freedom.” It follows from this, that included in the private life respect for which is guaranteed by Article 8, and embraced in the “physical and psychological integrity” protected by Article 8, is the right to participate in the life of the community and to have access to an appropriate range of social, recreational and cultural activities. The Strasbourg jurisprudence recognises that the ability to lead one’s own personal life as one chooses, the ability to develop one’s personality, indeed one’s very psychological and moral integrity, are dependant upon being able to interact and develop relationships with other human beings and with the world at large.
While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life.
Central to one’s psychological and moral integrity, to one’s feelings of self–worth, is the knowledge of one’s childhood, development and history. So amongst the rights protected by Article 8, is the right, as a human being, to share with others – and, if one so chooses, with the world at large – one’s own story, the story of one’s childhood, development and history.”
In Gaskin v UK 1989 (Series A no 159 p16 §39) the Court (ECtHR) found that it was the State’s positive obligation in seeing that the child’s right to establish details of his/her family heritage is not denied.
The importance of maintaining contacts between parents and children who had been taken into public care was underlined in Scozzari and Giunta v Italy 13 July 2000 (applications no 39221/98 and 41963/98). The Court said that a measure as radical as the total severance of contact can be justified only in exceptional circumstances (B v UK series A no 121 para 77).
An often invoked argument from Governments is that the parents do not co-operate with the authorities. This does not however dispense the authorities from making serious efforts to facilitate the contact between the child and the parent.
Yet in this case my children have been abused by the mother and stepfather, put in their sole care, the father denied all contact and as a result the children have not been able to tell fact from fiction, truth from falsity and unless an expert independent and impartial child psychologist is brought in the children will not have their psychological integrity respected, their voice heard or their medium and long term best interests respected.
All that the Court and the Guardian are doing is using PAS in reverse to justify mother custody with a known violent and abusive mother and the Court justifying the lies by my children on absurdities.
PAS or Parental alienation of the form in this case is a very severe form of emotional abuse. It will have a long term impact on the children’s development psychologically and affect how they behave themselves as parents and in relationships.
The alienation was so severe I could not return to the classroom and gave up teaching. The shock to see my own children lying in the Jury room was beyond me. What sort of person could do that to their children and what system ignores the evidence before them?
I had raised the Alienation and psychological abuse in 2000 and also in my statement for September 23rd 1998. The only response from the State after the event is to admit In volume five, section L page 7A it is clearly stated that ‘the outcome of investigations and assessments carried out by Social Services did not indicate the need to invoke Court proceedings that would in turn have led to a much more detailed assessment i.e. a comprehensive assessment.’ That form of assessment is more in-depth and takes a wider view of all significant factors including if necessary parental Alienation or psychological abuse.’
Yet the Social worker Maggie Smith stated in her report and under oath that she had carried out a comprehensive assessment.
The Guardian admitted under oath that she had not investigated Alienation. In her report in Paragraph 4.1 she stated
‘As directed by the Court, the issues including the removal of the Children’s Guardian; the appointment of a psychologist; contact and an application for a bar on Mr O making further applications, without leave of the Court, are addressed within this report.
I confirm that the many other issues raised by Mr O, relating mainly to past proceedings, domestic abuse and Mrs L’ psychiatric history have not been addressed nor indeed investigated.
Parental alienation Syndrome exists even if this Court denies it exists. It is not sufficient for the Court to act Ostrich like and to hide behind the fact as children’s welfare is being destroyed. Already in the UK we have the greatest amount of teenage pregnancies which is directly related to fatherlessness, the worst ever mental health of teenagers, increasing teenage delinquency, rape, drug and alcohol abuse, self harming and poor behaviour in the countries schools. Is someone trying to destroy the fabric of a civilised society?
I was informed that Charles Hale had drawn up the order. The order is erroneous.
My McKenzie friend’s name was Mr. Bannon not Banner.
The Court and all parties were fully aware that I had Appeal number B4/2006/0522 outstanding.
I did not leave before final submissions. I had put three Applications to Court for removal of the Guardian, appointment of child psychologist and disclosure. All three Applications were refused without reasons and without hearing from any other party.
I do not need permission from Mr. Justice Coleridge to Appeal and all knew that I was going to Appeal the refusals.
There was no Application before the Court of to disclose transcript and order to Hampshire Social Services dept, the children’s school, my son’s ex-school and the GP.
The section 91(14) order is to last to October 8th 2009 which is my son’s 16th birthday but my daughter would be 18 on 25th August and the Court has no jurisdiction once she is 18, Thank God.
I requested a stay on the order well in advance of this hearing, yet the judgement and order have been sent to the children’s schools, GP and Hampshire corrupt social services department already, I require an order that he bodies destroy copies pending hearing of the Appeal.
The GP now refuses to respond further, my children’s school refuses via the Chair of governors to address the unlawful change of my children’s surname and by virtue of the order, I am stopped from suing the bodies for their unlawful and criminal acts, denied any information on my children and treated worse than a child abuser, which was the mother and not me.
I cannot Appeal the section 91(14) order as the whole point of the two Appeals is that I have not been permitted a fair hearing in either the decision making process or the manner in which Mr. Justice Coleridge or the Guardian and her entourage have addressed matters and justice to the children requires psychological input for the benefit of the children’s medium and long-term best interests.
A section 91(14) order requires cogent evidence. The Guardian provided none.
The Guardian has acted to continue the cover up and her sole investigation was to repeat whatever the children said at the mother’s house.
The Guardian herself has not carried out investigation on behalf of the children.
She quite happily admitted she has not investigated my concerns in her report, the abuse of the children through alienation or psychological abuse, the failures of the State bodies on behalf of the children or even the alienation prevalent from the meeting on December 2nd 2005.
She repeats the words of alienated children verbatim regardless of whether they are true or not simply stating ‘I believe that the children believe their words are true’ parroted by Mr. Justice Coleridge who said ‘it only matters if it comes from the children’s hearts.’
I CANNOT ARGUE ON the SECTION 91(14 ) ORDER GIVEN WITHOUT the Appeal being heard for the Guardian’s removal, appointment of psychological expert and disclosure and I would remind the Court that contrary to the words in the Judgement I did pursue my Application for disclosure but it was refused without reason by Mr. Justice Coleridge, not as he states that I did not pursue it and no parties were heard contrary to the right to adversarial proceedings. Mr. Justice Coleridge’s judgement does not resemble the hearing I was present at and he has shown clear bias.
In Re S [2004] 1 FLR 1279 at paragraph 46 it is stated ‘Whatever the difficulties, however scant the prospects of success, the Courts must not relent in pursuit of what had been a natural relationship between father and daughter, absent compelling evidence that the welfare of the child requires respite.’’
Yet none of the welfare concerns for the children: emotional and psychological have been investigated to-date and the Guardian had done no investigation or had even received the responses from the schools or GP. My son’s behaviour was allegedly improving at school, my son stated that he was getting better although on November 10th 2005 he requested help for his behavioural problems which the Guardian never investigated namely and unsurprisingly lack of confidence and low self esteem.
Whilst the GP had no concerns but he provided a partial and incomplete report and the Guardian did not inform him of the facts of the case. Neither had the Guardian carried out any investigation in order to further cover up. Despite being told that there was no other contact with the GP I have just received a letter refusing copy of the communications between GP and Guardian on legal advice.
I refer the Court to Re M 21st June 2005 another Appeal against the learned Judge HHJ Milligan:
para 26 True it is that these are children whose views ordinarily carry great weight but we have to bear in mind not only their age but also their understanding. Their understanding in this case is corrupted by the malignancy of the views, with which they been force fed over many years of their life.
Para 41 In my view the judge was plainly wrong in making the order that he did. He should have transferred the seemingly intractable dispute to the High Court and directed a psychiatric or psychological assessment from an expert experienced in dealing with families with children with problems of this kind. Where as, in this case the Court has the picture that a parent is seeking, without good reason, to eliminate the other parent from the child, or children’s lives, the Court should not stand by and take no positive action. Justice to the children and the deprived parent, in this case the mother, require the Court to leave no stone unturned that might resolve the situation and prevent long term harm to the children.
In Re C (a child) 16th February 2005;
paragraph 27: In my view where there is an Application of this kind by a devoted and deserving parent, of whose conduct no reasonable criticism can be made, and the child concerned evinces dislike or distrust of the parent for no explicable reason other than it is a by product of a psychiatric disorder present in the child, it must, in principle, be wrong for the judge to proceed to make an order, the effect of which is to cut off contact with that parent, without first obtaining the guidance of an expert in the effects of that disorder with a view to obtaining advice on the best way of persuading the child to resume a relationship with that parent.
Paragraph 37 I would set aside the order of the Judge dismissing the Application and make the following directions for its disposal, namely that being staisfied pursuant to 5.2 of the President’s direction there is a special reason for the appointment of a Guardian other than a CAFCASS Officer....Paragraph 40 I am satisfied that ..the CAFCASS reporting officer, has reached the limit of what he can achieve with R, and that further intervention by CAFCASS might well prove counterproductive.
K (children) [2005 EWCA Civ 1094 21st July 2005 LJ Wall stated This is one of those most unfortunate cases where there is an extremely long history of involvement by the Courts, and where, at the end of that process, the Court has failed to arrange contact between a father and his children (para 2), the gravity of the outcome, both for the children and for Mr. K, and the circumstances in which the children have come to be alienated from him both seem to me to be factors which entitle Mr K to address the full Court on an Application for permission to Appeal with Appeal to follow (para 4).
I therefore request permission to Appeal the orders of Mr Justice Coleridge of February 22nd 2006 of the Courts own motion and of March 29th 2006 flowing from that order and a stay of the order dated 31st March 2006 with the bodies already in receipt of the order and judgement namely the children’s school, the GP, Hampshire social services all be ordered to destroy their copies and to disclose any other individuals, or other bodies in receipt to do likewise.
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Neutral Citation Number: [2006] EWCA Civ 1199
Case No: B4/2006/0785/PTA; B4/2006/0522PTA; B4/2006/0931/PTA; B4/2006/0931(A)/SLJ
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
HIS HONOUR JUDGE HUNT
and BOURNEMOUTH HIGH COURT
MR JUSTICE COLERIDGE
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 25/08/2006
Before :
LORD JUSTICE WALL
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B (A child)
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O (Children)
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Mr David Bradford - litigant in person
Mr Shaun O'Connell - litigant in person
Hearing dates : 7th July 2006
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Approved Judgment
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
Mr Bradford’s case
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
The facts in Mr. Bradford’s case
11. 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.
12. 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.
13. 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.
14. Having recited the terms of the order, Ward LJ in his judgment of 19 October 2005 continued: -
“3. I have looked carefully at the written material placed before the court. This is a passionate father, one described by the judge as obsessive and I begin to see why. He complains bitterly about many things, going back over years. For example, he complains about the order made by Charles J. He complains about maladministration and misconduct by the immigration service. He complains about the welfare officers. He complains about legal aid. He complains about the respondent's solicitors. What he cannot concentrate on is the order which he seeks to appeal, and that is the only matter which I can deal with today.
4. His Honour Judge Hunt is familiar with this case. There is a complaint that the trial was unfair because Mr. B was stopped from asking the several hundred questions he planned to ask. There is nothing to support that allegation before me. The management of the hearing was for the judge to control. He was perfectly entitled to prevent unnecessary and oppressive questioning, and nothing in the papers before me suggests that this trial was in any way unfair. The judge addressed the correct principle. He made findings of fact well within his power to make, such as in paragraph 14 of his judgment his saying:
"The statement, I am afraid, reveals completely the father's total inability still to accept the past decisions of the courts. As a statement in these Family proceedings, it makes only fleeting reference to [K's] welfare. The content of that statement and the content of many of the father's questions of the witnesses today, amount to proof positive that the father remains, in my judgment, obsessively locked in to his distorted view of the mother as a person. He maintains an obsessively distorted view of the mother's qualities as a parent to [K]."
5. There are other important findings, such as in paragraph 18:
"... I find that the risk of [K] being harmed emotionally by the father perhaps behaving irresponsibly with [K] continues to be a risk of overwhelming proportions."
6. In the light of that finding it is not surprising that the judge ordered that supported contact should continue to take place.
7. I see no real prospect of successfully appealing that order and I would dismiss this application. Given the flurry of applications that were before the court then, there was every justification for making an order under section 91(14). I know, however, that a transcript of this judgment will find its way to Judge Hunt. The order he made is without limitation of time. That is an unusual order and one which might in other circumstances be subject to a limited appeal on that point. I will not give permission to do so because I am confident that Judge Hunt will keep this matter under review, having retained it to himself, and can, if and when the circumstances justify it, remove the unlimited restriction and allow things to return to normal when they can and as soon as they can.
8. So that is the postscript to the judgment to which I invite the judge's attention. The postscript to the judgment to which I invite the father's attention, though with no great confidence that he will take any notice of it, is to urge upon him to reflect again that the child's guardian, who earlier in these proceedings was supportive of the father, has changed his mind because he fears that the father's attitude to the mother, bristling with hostility as it is, risks the misfortune of driving a wedge between K and his father. The father would do well to read paragraph 22 of the judgment, which I will quote again:
"By his obsessive, blinkered and distorted views of the mother, the father is now not only putting the quality of his contact at the margins, he is in fact now running the grave risk of losing [K's] sympathy, love and respect altogether. This risk may develop to a point where there is a risk that [K] opts out of the contact and declines any longer to see his father. He is certainly rapidly reaching the age where he will tire of conflict at this level."
9. So the tragedy is that this father runs the risk of losing contact altogether, notwithstanding the fact, as he knows, that this little boy loves his father, but he also loves his mother and being put into the middle of a conflict of this sort will run the risk of his preferring his mother and losing respect for his father. Mr. B should reflect upon it and should moderate his behaviour. He can make a noble and easy gesture by arranging to provide this boy with a British passport, and so take some steps to mend the fences which he has broken. But his application is hopeless and I dismiss it.
10. A copy of this judgment should be prepared at public expense and sent to him and, of course, to the court.”
15. 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.
16. 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.
17. 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.
18. The applications which Mr. Bradford sought to advance before Judge Hunt on 1 February 2006 are accurately recorded by the judge in his reserved judgment given on 6 February 2006. They are as follows: -
(a) a contact order by which K’s mother would be required to allow K to attend the baptism of K’s half sister who lives with the Applicant and his wife …. ;
(b) a specific issue order requiring that K attend a secondary school with a Church of England foundation;
(c) a specific issue order requiring that K be taken to a Church of England service on Easter Day;
(d) a direction that the Applicant should be provided with a transcript of his cross examination of K’s guardian in the hearing last year at which I made a defined contact order and the order under section 91 (14).
19. The judge explains that the reason he reserved judgment on 1 February was because Mr. Bradford had told him that Ward LJ’s judgment of 19 October 2005 (which was not before the judge at the hearing on 1 February 2006) lent some support to Mr. Bradford’s application under (d) above. Between 1 and 6 February 2006, the judge obtained a copy of Ward LJ’s judgment and concluded, correctly in my view, that there was nothing in it which was capable of adding to the merit of the application under (d) above. The judge then continued: -
“I have on more than one occasion in the recent past delivered judgment in which I have explained why the court must continue to regard the Applicant as someone whose behaviour with and towards K and his mother is highly likely to be affected by a grossly distorted and unreasonable feeling of hostility that he holds towards the mother. The risks are so real and significant that I have taken the unusual and regrettable step of directing that K’s contact with his father must continue for the foreseeable future to be in the context of supported contact at the (location omitted) contact centre. I made the orders of 29th June 2005 well aware that they precluded K from being with his father and his father’s new family even on important and happy occasions such as a baptism. I am not able to regard as sincere the applications that K’s mother should be required to take him to a Church of England service at Easter, or on other festivals, or that she must enrol him in a church maintained school. The Applicant conceded that he had made no particular issue about these matters at the hearing in June 2005. Unfortunately the Applicant’s history of issuing flurries of applications all at once counts against him. I had in the end to treat the many applications issued prior to the 2005 hearing as frivolous and mischievous. Nothing said by the Applicant to me on 1st February 2006 causes me to take a different view of any of these applications. I am left with the clear impression that the Applicant continues to be motivated to cause more anxiety and distress to K’s mother by forcing her into litigation about K. I found in June that K’s mother had been significantly harmed emotionally by the stress of repeatedly having to respond to the litigation, most of which has been prompted by the Applicant’s numerous applications to the court, these having come frequently, and over a period of many years now, throughout K’s life.
My order therefore is to dismiss all of the applications take out by the Applicant on 9th December 2005”.
20. 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.
21. 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.
22. 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.
23. Leaving on one side his attacks on the judge, Mr. Bradford’s references to K’s mother amply justify Judge Hunt’s conclusion that he has a “grossly distorted and unreasonable feeling of hostility” towards her. He accuses her several times of criminal acts involving fraud and perjury. He discloses a communication with her in which he threatens an application to the court “if Hindu (mother’s name) does not consent to K attending G’s christening”. He says that “if you had not abducted K and made a fraudulent application for a residence order, K would now be attending a church school”. He makes one quite extraordinary statement, which I recite without further comment: -
“There is a law going back to Edward the Confessor that everyone must walk to church on Christmas day. I require observance of the law!”
24. Mr. Bradford’s hostility to K’s mother emerges very clearly from everything he says. One passage occurs a number of times, and warrants repetition: -
“The history of the case contains fraudulent applications for court orders and public funding of the mother’s advocates; the concealment of / failure to obtain key evidence by the mother and officers of the court; contempt of courts by officers of the courts; wilful neglect to public duty; perversion of the course of justice. The criminal offences have been formerly reported to the Police. Two inspectors, each from a different station, have indicated their inability to investigate unless / until invited to do so by a court. ‘Judge’ Hunt has reserved the case to himself and has refused my application for a lateral transfer. Accordingly, there has been no investigation of the allegations. Even when I made a specific order application for a review of the misconduct / criminal conduct of named officers of the courts, ‘Judge’ Hunt did not even bother referring to such serious matters in his ruling – presumably because he did not even bother considering them. ‘Judge’ Hunt denied me the right to a fair hearing.”
25. It is also to be noted that Mr. Bradford discloses an exchange of Emails between himself and the solicitor whom he wished to instruct to argue the applications before Judge Hunt. That solicitor advised him strongly (and in my view correctly) against the prosecution of an appeal against Judge Hunt’s order of 29 June 2005, That advice concludes with these words: -
“Further I must advise you that potentially you are running the risk of the court considering whether or not to make a “vexatious litigant” order against you. It is likely that the Court of Appeal will be very concerned by both the history of the litigation and the number of applications you had made, which were before Judge Hunt on the 29th June 2005.”
26. Mr. Bradford’s grounds for appeal read as follows: -
1. ‘Judge’ Hunt was not a fit or proper person to conduct the hearing.
2. ‘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.
3. ‘Judge’ Hunt failed to comply with the law.
4. ‘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.
5. ‘Judge’ Hunt failed to comply with an earlier Court of Appeal ruling.
27. 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.
28. 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.
29. 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’s application
30. 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.
31. 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.
32. 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.
33. 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.
34. In Mr. O’Connell’s case, we began the reported judgment by setting out our understanding of the history. This is what we said: -
“12. Although we do not have all the papers, it is clear that Mr. O'Connell has been engaged in litigation about his two children (now aged 13 and 11) in the Southampton County Court for a very long time. The first substantive hearing, in which Mr. O'Connell sought residence orders in relation to the children, concluded with a judgment given by HH Judge Milligan on 1 December 1997. The judge made residence orders in favour of the children's mother, granted Mr. O'Connell staying contact every alternate weekend, and reserved any further applications to himself. ”
13. Judge Milligan formed an unfavourable view of Mr. O'Connell in 1997. He described him as conducting a campaign against the children's mother and said he was blind to the children's needs insofar as they came second to his own plans.
14. On 12 April 2000, HH Judge Milligan gave judgment on Mr. O'Connell's second application for residence of, alternatively contact with, the children. By this time, contact had ceased. On this occasion the judge's criticisms of Mr. O'Connell were even stronger. He recorded that Mr. O'Connell had made numerous complaints against the professionals in the case and had refused to accept the outcome of those complaints. The judge made the same assessment of the parties that he had made in 1997: he found that Mr. O'Connell remained obsessed with his unfounded view that the children's mother was abusively mistreating them. He found that Mr. O'Connell had manipulated the children by inappropriate questioning. Nothing, he held, had changed since 1997. The judge concluded his judgment with these words: -
"Does the father do this deliberately or unwittingly? The mother feels that he is motivated by revenge. I think this is possible. I think it also possible that he has such a low opinion of her that he is determined that his opinions and views shall prevail over hers. It is in my judgment equally likely that he has some mental or psychological block that simply prevents him from considering any other point of view. But for these unfortunate children the result is the same. When I identify the seriously abusive conduct of this father towards his children, in manipulating them to speak ill and falsely of their mother for his own ends, or inducing them to a state of confusion and anxiety placing an enormous strain upon them, for the reasons and in the circumstances which I have indicated, I am left in no doubt that for the present time any further contact between this man and his children is strongly contrary to their interests."
15. The judge then made an order under section 91(14) of the Children Act 1989 without limit of time. It is fair to say that in doing so he was encouraged by counsel for the mother, who when asked by the judge whether she was asking for a given period, replied: "Your Honour, I do not. I leave it open".
16. On 22 January 2002, the judge refused an application by Mr. O'Connell for permission to bring proceedings for shared residence and / or contact. Once again, he found nothing had changed. Giving leave at the present time, he said, would be to expose the children to considerable emotional risk and would be an act almost of irresponsibility. He refused permission to appeal and kept the indefinite section 91(14) embargo in place.
17. Mr. O'Connell unsuccessfully sought permission to appeal against the order of 22 January 2002 from this court. At an oral hearing on 19 April 2002, Sumner J refused the application. Expressing himself in more moderate language than that used by Judge Milligan, Sumner J nonetheless took the view that the application for permission to appeal was doomed to failure. At paragraph 10 of his judgment, he said: -
"I am left with the clear impression that Mr. O has within him the potential to be a caring and concerned father. Of his love for his children I am in absolutely no doubt; it is clear and genuine. But reading the judgments and the papers, it is apparent that what has happened now is that either the injustices or the perceived injustices – the lack of investigation, the poor quality of all the professionals and the misleading of them – has become a matter of obsession. The difficulty with that is the reaction it has had on the children. I would invite Mr. O’Connell to go back and read the earlier judgment of Judge Milligan and note the physical effects that it has had on the children. It is set out, as I recall it (and I am speaking from memory now) on page 1, and it is repeated later. The children have at various times expressed their own feelings for their father, but have asked that he does not behave in this way."
18. That is the background against which, on 29 September 2004, Mr. O'Connell issued a further application for permission to apply under section 8 of the Children Act 1989 for a shared residence order relating to his children. He also sought an order transferring the proceedings to the High Court and for Judge Milligan to recuse himself. In order to assist him make those applications, Mr. O'Connell made a preliminary application for the assistance of a McKenzie friend.
19. On 5 October 2004, HH Judge Milligan directed that Mr. O'Connell's application be listed without notice to the children's mother on 1 November 2004 with a time estimate of one hour. Although Mr. O'Connell asked for the application to be listed before a different judge, Judge Milligan took the view, correctly in our judgment, that an application for him to be recused from the case could not be made to another judge.”
35. Our judgment then records that Judge Milligan delivered a short judgment identifying the applications Mr. O’Connell was making, and explaining why he was refusing them. Our judgment continues: -
“22. Having concluded his short judgment, the judge remarked, it seems to us without any provocation from Mr. O'Connell: "I remain hopeful, Mr. O' Connell, that one of these days you will find it possible to put your children first". When Mr. O'Connell protested that he was, the judge delivered a homily, which the transcript records as follows:-
"JUDGE MILLIGAN: No, put them beyond your consuming view that you have been mistreated, and misunderstood, and everybody has ganged up against you, and all the professional agencies, and your wife, and everybody you can think of, and you are a misunderstood man. Please, Mr. O'Connell, ask yourself just once perhaps they might have got it right and you might have got it wrong.
MR O'CONNELL: I have evidence of perjury and the perversion of the course of justice and misfeasance in public office.
JUDGE MILLIGAN: You must adopt whatever position you think is appropriate, Mr. O'Connell. I simply make that appeal to you. You have heard it before. Out of fairness to your children I make it again today. You come to me in a different frame of mind and anything might be possible. I have no wish, ambition or desire to keep you from your children, Mr. O'Connell. I only do so because in my judgment you are an emotional danger to them. You know what that is. We have been round the course a number of times. You are entitled to your view and I respect it. One of these days I hope you will have the humility to reconsider. You do not have to respond. I am simply telling you what is in my mind."
23. We bear very much in mind that the judge had dealt with Mr. O'Connell over a period of some seven years, and had formed the clear view that his obsessional behaviour had caused serious damage to his children's emotional well-being. For the purposes of this judgment, we are prepared to accept that the judge is right about that. Mr. O'Connell also may well have tested the judge's patience in court on a number of occasions. We understand that. But we do not think that either the history of the case or Mr. O'Connell behaviour on 1 November 2004 warranted the judge addressing Mr. O'Connell in the terms set out above. The judge's use of the phrase "You come to me in a different frame of mind and anything might be possible" seems to us unfortunate.
36. 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.
37. Our conclusion, in accordance with the submissions made to us by the advocate to the court, Mr. Robin Spon-Smith, was that the judge had been wrong to refuse Mr. O’Connell the assistance of a McKenzie friend, however hopeless the judge perceived Mr. O’Connell’s substantive applications to be. Furthermore, having made contact with the solicitors acting for the children’s mother, who was, of course, not present, we were able to reach the following conclusions: -
“76.…..We need to point out, of course, that in Mr. O'Connell's case there was no representation or appearance on behalf the children's mother since, somewhat unusually, Ward LJ had directed that the appeal should be heard without notice to her. No doubt this was because the order under section 91(14) of the Children Act 1989 in Mr. O'Connell's case required any application for permission to be made initially to the judge without it being served on his former wife.
77. We were, however, able to make arrangements for her solicitors to be contacted, and they made it clear that were their client offered the opportunity to appear, it was highly unlikely that she would wish to do so. She was content for Mr. O'Connell's application for permission to apply for a shared residence order to be dealt with in this court. The solicitors acknowledged that permission to appeal might well be granted by this court, and that their client's position was fully protected since she would be able to deal with the application for shared residence/contact in the trial court on its merits.
78. We decided to proceed both with Mr. O'Connell's appeal against Judge Milligan's refusal to allow him the assistance of a McKenzie friend, and with his appeal against the judge's adjournment of his application for permission to make an application under section 8 of the Children Act 1989. Whilst against the background we have described, it may be that Mr. O'Connell's application for shared residence has little prospect of success, we took the view in the light of the judge's remarks post judgment that we had no alternative but to extend the limited permission to appeal given to Mr. O' Connell by Ward LJ in order to allow him to challenge the judge's section 91(14) embargo. We then allowed Mr. O'Connell's appeal, and directed that his application under section 8 of the Children Act be listed before Coleridge J, the Family Division Liaison Judge for the Western Circuit, for directions, with a view to Coleridge J either hearing the application himself, or allocating it to a different circuit judge. In making that application, Mr. O'Connell will, of course, be allowed the advice and assistance of a McKenzie friend.”
38. In a separate judgment, given on 28 April 2005, Thorpe LJ (with whom I agreed) had explained our reasons for permitting Mr. O’Connell to make a further application to Coleridge J: -
“2. The points are really threefold. What the applicant sought from the judge on that day at a without notice hearing was a direction that the case should be transferred to the High Court, and separately that Judge Milligan should recuse himself from further sitting. Lastly, the applicant sought permission to issue an application for a residence or shared residence order. That was necessary since there was in place an order made under section 91(14) prohibiting issue without the permission of the court.
3. The applicant informs us that the restriction under section 91(14) was imposed by Judge Milligan five years ago or thereabouts, and was of indefinite duration. That is a form of order the propriety of which has been frequently questioned in appeals to this court. Accordingly, I would take the unusual course of saying that the judge should have addressed the application and decided it on 1 November. Had he done so, he would properly have perceived the need at least to grant it rather than to adjourn it indefinitely. There needs to be real progress and we have the assurance that the solicitor for the respondent has accepted that permission might be granted by this court this afternoon. He accepts that his client is fully protected since she will be able to deal with the application in the trial court on its merits.
4. Accordingly, all we need do is to say today that the application for permission to issue is granted. The applicant is therefore at liberty to issue in the Southampton County Court his application for either a residence or a shared residence order.
5. It is abundantly plain to me that Judge Milligan must part from this case permanently. We have had the opportunity of reading what I think may not unfairly be described as gratuitous observations by Judge Milligan to the applicant on 1 November, and I can well understand how a litigant would feel that justice would not be forthcoming for him before that judge in the light of those observations.
6. So the application when listed will be referred to Coleridge J, who will either take it himself or will arrange for it to be heard by another judge of his choosing, excepting of course only Judge Milligan.
7. Paragraph 1 of the order will in due course be set aside and an order granting permission to the applicant to disclose the papers in the case to a McKenzie Friend for the purpose of the proceedings only, and to have the assistance of a McKenzie Friend at any hearing until further order, will be dealt with in our judgments which we have reserved and will emerge in the orders which flow from those judgments. All we have done this afternoon is to validate the applicant’s desire to issue in the county court.
8. We have provided that future proceedings should not be listed in front of Judge Milligan, and we have laid upon Coleridge J the burden of either hearing the application to be issued, or alternatively making arrangements on the circuit for it to be heard by another judge.”
39. 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.
40. 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.
41. 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.
42. 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.
43. Coleridge J begins his judgment by reference to the decision of this court on 28 April 2005. He then identifies the main relief sought by Mr. O’Connell, and in paragraphs 6 to 8 identifies the additional relief also sought, the reaction of the other parties to it, and what happened: -
“Ancillary to the main applications for residence and contact, the following applications are also before the Court now. Firstly, by the Father, that the Guardian should be removed. Secondly, that a psychologist should be appointed to assess the children, in particular, a Dr Lowenstein, the American exponent of that much questioned theory ‘parental alienation syndrome’, and if not that expert then another. He also alluded to the possibility of seeking disclosure of further documents but that application never proceeded.
The Guardian on behalf of the children also applies for the re-imposition of the Section 91(14) restriction on the Father’s ability to make further applications without the leave of the Court. The Father advanced his applications this morning in relation to the removal of the Guardian and the appointment of the psychologist, at great length, and with his customary articulate and, if I may say so, lucid presentation. At 2 o’clock, he, having presented his applications throughout the whole of the morning and referred me to a number of documents, and indeed played me a tape of events now some ten years old, I indicated that I was not going to accede to these two applications and that I would give judgment on all applications at this conclusion. I therefore moved on to the third application, namely the substantive application for residence, shared residence or contact and the Guardian’s application under section 91(14).
At that point without warning the Father indicated that he wished to take no further part in these proceedings and left the Court. Accordingly, he has not been in Court this afternoon to hear any further submissions put to me by the Mother and the Guardian. However, he is not at a real disadvantage so far as that is concerned, because I have scarcely called upon the Guardian, in the light of the fact that the Guardian produced a most helpful and succinct skeleton argument setting out the Guardian’s position in relation to all the applications in advance of this hearing. That was available yesterday. The Father protests that he only received that this morning, but I find that unlikely, given that he is in e-mail communication with all the parties in this case, including my Clerk, and I am assured that this was e-mailed to him yesterday evening. I too received it yesterday. So the Father has had the whole morning to advance his two main applications, and has chosen to take no further part this afternoon in relation to the remaining applications of which he had good notice and which he knows I was about to deal with. ”
44. The judge then returns to the history, and having summarised it, proceeds to explain his decision over the following 13 pages.
45. Coleridge J’s judgment is, in my view, all the more difficult for Mr. O’Connell to challenge for three particular reasons. Firstly, of course, the judge had the opportunity to form assessments of both Mr. O’Connell and the children’s mother (a task which is uniquely for the trial judge and not for this court). Secondly, the issues before him were largely matters of fact and not of law. The judge thus made findings of fact (again, a function of the trial judge, and not of this court). Thirdly, and as importantly, he took an innovative and imaginative step in an attempt to break the deadlock. He arranged a meeting between Mr. O’Connell and the children, at which both the judge and the guardian were present, and which he describes in his judgment in the following way: -
“Following the Court of Appeal’s decision that the Father should have leave to proceed again, I wanted to try a fresh approach, given the total lack of any progress over the previous nine years. Accordingly, at my suggestion, and with the parties’ agreement, last November, by order, I set up a meeting at Bournemouth Crown Court in a room away from the Court where the Father and children could meet in a neutral environment, observed by me and the Guardian. The reasons for my taking that approach are set out in a Judgment which I gave at the time. It has been transcribed and it is in these papers. I do not propose to repeat the reasons that drove me to take that particular course. I am conscious that it was a bold and unusual step. Deliberately so, I was determined to try again for the children’s sake.
At that time the Father was again seeking the raft of orders for disclosure and the orders that he sought today, but all in the context of the children repeatedly and forcefully asserting to anyone they came across that they wanted nothing more to do with the Father at any price. It therefore was an unorthodox course which I deliberately adopted. It seemed to me to be necessary to see if the impasse between the children and their Father could be somehow breached. What I hoped essentially was to see if there was even the smallest glimmer of a possibility that, if all the parties, and in that respect I mean the children and the Father, could put the past behind them, then perhaps some tentative steps in the rebuilding of the relationship with the Father might be possible. I did not expect miracles. I hoped, perhaps naively, that the Father might ameliorate his adversarial approach in the interests of trying to get things started by one means or another.
The meeting took place on 2nd December 2005 and, at the Father’s suggestion, and it was a good one, it was recorded. There is a transcript in the papers today of that meeting. Sadly my hopes were completely ill founded. Within seconds of the Father appearing in the room with the children, he was referring to past events and criticising the past behaviour of all and sundry. The children’s reaction was, in those circumstances, predictable. They were absolutely adamant when talking to him that they wanted nothing to do with him or the Court process, or indeed psychologists, or anything else. They wanted to be left in peace to get on with their young lives, which are self evidently and despite everything progressing very successfully.
However, I should mention two things which struck me from the meeting. Firstly, the children were truly impressive, people. Both of them were highly intelligent and very articulate. M in particular is described by the Guardian as mature for her years. I also found that. The second aspect is in relation to the transcript itself. I would wish to underline that it gives no impression of the vehemence with which these children expressed their views. They are truly fed up that they are still the subject of these applications. And I felt, more than that there was real anguish in them over the possibility of their continuation. The adults have created this mess, was the impression I got from them, and it is time for the adults to stop the mess continuing.
I do not propose to read sections of the transcript, which needs to be read in its entirety, but the following small extracts emphasise the point. On page 8 of the transcript the daughter, M, says this: “I don’t want to go with you. I don’t know why it is so hard for everybody to understand that. Finally somebody’s actually asking us what we want because we have always had people speak to us”. I quote that extract because it reminds me that one of the factors which drove me to set up the meeting was that the Guardian had reported on more than one occasion that M, in particular, wished herself to be part of the process and not merely have others report on her behalf.
Again, on page 14, the daughter emphasises this: “We’re just fine the way we are. We don’t want to change it. We just don’t want to change it”. And later on A says this: “We would have to go to the station every week to see you”. And I intervened to say, “Well, leave aside every week, but what about from time to time?” A replied, “I’d hate to do that. I’d absolutely hate it”. Again, real vehemence, which was apparent to me. On page 15, Mr O’Connell said and I quote, “I would like a psychological report”. And M replied, “We’re not going to go and see a psychologist. You always boss everybody about”.
The final extract which I would draw attention to is A saying on page 19 (and in a sense it sums up what was said through the meeting) I quote, “But whatever happens after all this, still, I don’t want to see you. Whatever happens, whatever you say, whatever, we don’t want to see you. So get that, get that in your head and we don’t want to see you and that’s it”. It was truly an impressive meeting and it is one which certainly affects my views of how to proceed. ”
46. 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.
47. 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”.
48. 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.
49. The judge then cited from the statement filed by the children’s mother. Having given a description of the two children, she stated: -
“Later in the statement she says this “The harmony in this family often gets broken by a kind of ghost, a ghost with a name, Sean O’Connor. He is the man I married first, many years ago, and he is the natural father of my children. Things did not work out and I started a new life with my two little ones, but he did not. Sean got stuck in the past, never moved on and started this campaign against me first, and then against every single professional who got involved in the case, including social workers, doctors, health visitors, welfare officers etc. Sean O’Connell does not really want the children. He just wants revenge. He cannot accept that he failed as a husband and as a father”. And she concludes her brief and carefully statement with these words, “Finally, please, somebody has to stop this man harassing my family and myself”.”
50. 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.
51. The judge then recorded the following: -
“So the position on the evidence today, as affirmed by the Guardian both in her report and in evidence to me today, is that the children are extremely well settled, developing as sensible and balanced adults and they want to be left alone to get on with their lives. In addition to the evidence, I have had skeleton arguments, as I have indicated, by the Guardian and a very lengthy statement by the Father, running, I think, to some 59 paragraphs over six pages. It is his arguments in support of his applications today. The essence of the Father’s stance is that he wants the entire past to be re-opened and re-investigated from first to last. Every previous report which has been produced he wants re-examined. He will never be content until he has achieved that.”
52. The judge then proceeded to give his reasons for the decisions to which he had come. He dealt firstly with Mr. O’Connell’s application for the removal of the guardian. This is what he said: -
“The first application is by the Father that the present Guardian should be removed. He says in written and oral submission that she is not impartial and she is not acting for the children. He says she has not been professional and she has failed to investigate properly a whole raft of concerns which he has. Most of them go back many, many years and relate to the children’s presentation at a time, no doubt, when they were deeply embroiled in the immediate aftermath of the parties’ separation.
The full extent of his arguments is set out, as I say, in the document he has filed. But essentially it is that if the Guardian has not herself re-investigated all those matters which were in fact investigated at the various times by the Social Services, the schools, the doctors, then she has failed in her duty. The first thing to be said about an application to remove a Guardian is that it is a power that has to be exercised with great care and exceedingly sparingly. Litigants cannot pick and choose a Guardian. To allow that to happen would gravely undermine their ability to operate throughout the case fearlessly and with independence in the children’s interests.
I have no hesitation in saying there is not one scintilla of evidence to support or justify the Father’s application. On the contrary, I have found this Guardian has performed her function extremely professionally. She has, within a short time, become a real friend to the children and a help to them through these difficult times. She has represented their interests extremely efficiently and sensitively, as is her task. She is not there to be particularly even handed between the parties for its own sake; she is there to support and represent the children’s interest. Far from criticising her, I would indeed commend her for her excellent work and her work directly with the children. To dismiss her in the face of that work would be a slap in the fact so far as her support and representation of these children is concerned.
The guardian’s own Counsel, as I have indicated, has produced a brief argument in support of the retention of the Guardian. He says that the criticism of Mrs Evans in reality amounts to a complaint that she fails to agree with him. I agree that is really what it amounts to. Accordingly, I would not accede to that application and it will be dismissed.”
53. The judge then turned to Mr. O’Connell’s second application, namely that a psychiatrist should be appointed to carry out an assessment of the children. He deal with this in the following paragraphs: -
“The second application by the Father is for the appointment of a psychiatrist to carry out an assessment. The Father’s point is that whatever the children may say, however vehemently they may be saying it, their views cannot be accepted. What they say is not what they mean. Accordingly, the only way in which it would be possible to be certain that their expressed views were indeed their real views would be to appoint a psychologist to carry out in-depth assessment of the children, and report to the Court.
The application is opposed by the Mother and the Guardian. It is misconceived, in my judgment. The Father is convinced that the children’s views are planted by the Mother. It is far more likely, in my judgment, that the children’s views are the result of the Father’s actions and behaviour. Whether one describes their attitude to their Father as alienation or not, they certainly are vehemently expressing their views at the moment, and what I saw in my meeting with them, were two children who knew exactly what they were saying and why they were saying it.
It would be wrong to believe that this is one of those cases where the children’s views have been bent by the Mother’s own hostility to the Father. I do not find that to be the case. As the Guardian has pointed out, there has never been a difficulty about the children talking about happy events in their past, when the Father took part in their care. There are photographs of the Father freely available to the children in the home, and indeed the Guardian told me, in evidence this morning, that the children showed her pictures of the Father from a photograph album kept in the house. So, there is no particular warrant for the assertion that these children’s views are not their own, but the product of warped brain washing.
But quite apart from that, the application by the Father is hopeless for two other reasons. Firstly, there is no evidence that they need any assessment at all. They are happy and well adjusted children, doing well at school. That is not the basis upon which the Court orders psychological assessments. Finally, and as if it was not enough, to make such an Order would be completely pointless because the children have indicated, both to the Guardian and to me at the meeting, that they would not take part in any further assessments. Accordingly, it would not be possible even to achieve an assessment of the children. It is impossible to carry out a psychological assessment without a very large measure of cooperation by the person being assessed. I am satisfied that these children would refuse to take part and if they did take part, I would also be satisfied that they would not be prepared to co-operate to the extent necessary. Accordingly, I will not involve these children in any further psychological assessment or assessment of any kind.”
54. The judge then dealt with Mr. O’Connell’s application for contact. This is what he said: -
“Which brings me to the third and main application, which is, in the first place for contact, although the Father ideally seeks residence or shared residence. He seeks that in the face of the children’s clear wishes and whatever may be the reasons from the past as to why they are saying it. It is an Order which I would not contemplate making at present. I have seen them. I have heard them and I propose to listen to them. I respect their wishes. If I made an Order now they would not obey it, and no Court would enforce it. It would be utterly counter-productive so far as the possibility might remain that the children one day might resume a relationship with the Father. At the present time, I am afraid to say that the application by the Father for contact, much less residence or shared residence, is hopeless.”
55. The judge then dealt with the guardian’s application for the re-imposition of the order under section 91(14). Here, he correctly directed himself in accordance with the judgment of Dame Elizabeth Butler-Sloss P in the leading case of Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573 at 592. The judge implicitly criticises this court for its criticism of Judge Milligan’s decision to impose an order under section 91(14) unlimited in time. This is, I think, a misunderstanding of the two judgments by this court from which I have cited extensively earlier in this judgment, but nothing turns on the point. The judge dealt with the application in an extended and important passage in the judgment, which warrants citation in full: -
“The Guardian against sets out in written argument the reasons why she wishes this restriction to be put in place. And it is, of course, relevant remind oneself that this is not the first time such a restriction has been put in place. It is in relation to this Father and these children, I think, the third such application. The Guardian relies on these factors, set out in paragraph 30 of the skeleton: “(a) the repeated failures of the Father is his applications to the Court; (b) the Father’s repeated desire to re-open matters covered in previous litigation; (c) his total disregard for the children’s wishes and feelings; (d) the Father’s lack of insight or empathy; (e) his inappropriate application for an expert to report on the children (and I would add to that and his application without serious cause for the Guardian to be removed); (f) his inability to accept the past has little or no relevance now on any application brought in respect of the children; (g) the Father’s relentless appetite for litigation in justification of his skewed view of justice”. And in paragraph 31, Counsel’s argument says, “Above all it is clear that the Father still has no conception of what is in the children’s best interests.”
I am urged further by Mr Hale, on behalf of the Guardian, having heard the Father give evidence this morning, that insofar as there could be any doubt in my mind about this matter, having seen Mr O’Connell advance his applications this morning, the Guardian is even more fortified in her concern to achieve such an Order. The Father is on a crusade in relation to the past, and the Guardian says to me that in her opinion there is a very real risk of emotional harm to these children if this litigation goes on any longer.
The Father, in my judgment, is abusing the family justice system and the system itself is in serious danger of abusing the children if these proceedings are not ended here and now and for good. The Father has been warned and counselled by Judges over and over again, that he will not achieve his aim by endless forensic brute force. He has been invited to step back and look again. But he knows better and heeds no such warnings or advice. The system cannot be used by litigants to fight campaigns against the statutory services for its own sake. I have to have well in mind, particularly nowadays, the children’s wishes and feelings. Mr Hale referred me to the case of Marbon in 2005, where the Court of Appeal once again underlined and reiterated the importance of the Court taking full account of children’s wishes, particularly children of this kind of age.
In my judgment, having seen the children myself, they have come to the end of their tether. The continuation of these proceedings in the teeth of their opposition is a gross invasion of their human rights, their rights to a reasonable private and family life. Those of us who work in the Family Courts day in and day out are apt to forget the terrible stress and pressure that is visited on a family by relentless court process, making incursions into their lives at regular intervals during the course of a year. This has been going on for nine years. The Father has been subject to a Section 91.14 Order before. He cannot but have realised that if he persisted, he would be likely to be visited by such an Order again. The Guardian applies to protect these children. She is right to do so. It is most certainly in their interests that they should receive that protection from the Court.
What the Father seems quite unable to appreciate is that the ongoing proceedings are doing much more harm to the prospects of his seeing the children that if he desisted. However, that he has totally lost sight of the real purpose of these applications. The Order will run until 8th October 2009, when M is 18 and A is 16. Mr Hale, is there anything else?”
56. From this particular passage, I extract the following conclusion reached by Coleridge J, for which I largely use the judge’s own words: -
“(1) Mr. O’Connell was abusing the family justice system and the system itself was in serous danger of abusing the children if these proceedings were not ended “here and now for good”;
(2) The children had come to the end of their tether, and the continuation of the proceedings in the teeth of their opposition was a gross invasion of their ECHR Article 8 rights;
(3) The proceedings had been going on for nine years, and the children needed to be protected;
(4) Mr. O’Connell had totally lost sight of the real purpose of the applications.”
57. 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.
58. 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.
59. 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.
60. 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.
61. 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.
62. 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.
63. 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.
64. 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.
65. 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.
66. 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.
67. 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.
68. 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.
69. 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?
70. 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.
71. Much of what Mr. O’Connell writes is, with all respect to him, absurd. Thus on page 2 of the document from which he addressed me, he asserts that his Article 6 rights have been violated, and: -
“… the manner in which I have been treated to date makes me believe that I am a victim of a politically correct institution. Jews in the WW2 were better treated and put out of their Misery but I am persistently being tortured – something even ECtHR accepts as a violation of Article 3 of the Convention e.g. Tekin v Turkey where mental torture is recognised.”
72. 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.
73. 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.
74. Mr. O’Connell’s difficulty, as, once again, I have already stated, is that the judge was largely dealing with issues of fact. This is particularly the case in relation to the meeting with the children, which was recorded. In the section of his address which deals with this meeting, at which, of course, the judge was present, Mr. O’Connell asserts that “it was clear that the respondent mother and stepfather have manipulated them….. Their hostility was illogical and at times severe manifesting many of the features of parental Alienation Syndrome”. And in a passage which he underlines, he states: -
“Yet my children have not been able to tell fact from fiction, truth from falsity and unless an expert independent and impartial child psychologist is brought in the children will not have their psychological integrity respect, their voice will not be heard or their medium and long term best interests or their welfare respected.
If after the meeting with my children Mr Justice Coleridge had any real concern that there was no problem with them, he would not have made the order dated 31st January for a half day hearing for directions.
The Guardian had sought three experts as of 17th November but the person who thought an expert was not so urgent was Charles Hale QC after reading the Guardian’s initial core bundle which did not include the evidential material necessary only the orders and judgments and the social worker’s flawed and invented investigations.”
75. 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.
76. 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.
77. 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.
78. 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.
79. 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.
80. 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).
81. 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.
82. 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.
83. 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.
84. 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.
85. 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.
86. 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.
87. 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.
88. 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.
89. 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.
90. 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.
Footnote
91. 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.
Some general observations
92. 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.
93. 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.
94. 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.
95. 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.
96. The position of the family courts is clear. I attempted to summarise it in Re O (a child) (contact: withdrawal of application) [20004] 1 FLR 1258. In that case, I made a number of general observations in that case, some of which are, it seems to me, applicable to both of the current applications. At [2004] 1 FLR 1258 AT 1260 I said: -
“The critical role of both parents in the lives of their children post separation
(3) The courts recognise the critical importance of the role of both parents in the lives o f their children. The courts are not anti-father and pro-mother or vice- versa. The court's task, imposed by Parliament in section 1 of the Children Act 1989 in every case is to treat the welfare of the child or children concerned as paramount, and to safeguard and promote the welfare of every child to the best of its ability.
Terminating non-resident parents' contact with their children is a matter of last resort
(4) Unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of both their parents. In particular, the courts recognise the vital importance of the role of non-resident fathers in the lives of their children, and only make orders terminating contact when there is no alternative.
Parental alienation
(5) The father asserts that this is a case in which the mother has deliberately alienated O from him. It is not. The principal reason that that O is hostile to contact with his father is because of his father's behaviour, and not because his mother has influenced O against his father. Unfortunately, the father is quite unable to understand or accept this. The father's reliance in this case on the so called "parental alienation syndrome" is misplaced.
Blaming the system
(6) The court system for dealing with contact disputes has serious faults, which were identified and addressed in Chapter 10 of the report of the Children Act Sub-Committee (CASC) of the Lord Chancellor's Advisory Board entitled Making Contact Work. I discuss these further in paragraphs 83 to 86 of the judgment. In particular, the court process is stressful for both parents and children, it is expensive for those who are not publicly funded; it is slow and adversarial. It tends to entrench parental attitudes rather than encouraging them to change. It is ill adapted to dealing with the difficult human dilemmas involved, notably when it comes to the enforcement of its orders.
Parental responsibility for the failure of contact
(7) Parents must, however, take their share of responsibility for the state of affairs they have created. Blaming the system, as the father does in this case, is no answer. He must shoulder his share of the responsibility for the state of affairs he has helped to bring about. All the evidence is that he has proved incapable of doing so.
97. 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.
98. 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.