England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PORTSMOUTH COUNTY COURT
(His Honour Judge Milligan)

		Royal Courts of Justice Strand London WC2 Friday, 19th April 2002

1. MR JUSTICE SUMNER: This is an application by Mr O for leave to appeal against the judgment of His Honour Judge Milligan given on 22nd February 2002 at the Portsmouth County Court. The learned judge had been involved in this matter, Mr O tells me, since 1997. I have read, not only his judgment of February 2002, but an earlier judgment that he gave (part of which he quotes in his more recent judgment) in April 2000.
2. The application by the father was originally for permission to have contact to his two children: M, born on 25th August 1991, who is ten, and A, born on 8th October 1993, who is eight. The background history is that the parties were married in August 1990. The mother comes from Spain. They lived in Spain between August 1994 and November 1995. They separated in May 1995. It has always been the father's case that the cause of that separation was threats by the mother and a prolonged period when he was a victim of domestic violence at her hands. There was contact thereafter, but it was difficult. Since then, the father has made a series of applications for contact to the two children. Following the last hearing, when he was once more refused even permission to make an application for contact, he now applies for the first time for permission to appeal to this court.
3. There are just under 1100 pages of documents before me, all of which I have gone through. I have not read them all, but I am aware of their content in general terms and I believe that I have a grasp of the background. At the heart of this appeal is the father's deep sense of injustice about what has happened to him and, in particular, his belief that the mother is mentally unstable and has failed to provide appropriate child care. There are relevant incidents in the past which would shed light on that and on his positive features as a father which have never been investigated.
4. He has raised a whole series of reasons why an appeal should now be allowed. I will enumerate them for the record. He says that his human rights have been denied; there has been no fair hearing; the judge was not impartial; there has been no study of the mother's emotional instability; the court welfare officer's reports were ill-informed; there has been no investigation of his daughter's urinary tract infection or the cause of his son's sleep disturbance; there has been no understanding of the fact that it is not just women but men as well who can be victims of domestic violence; a whole series of professional people - court welfare officer, social workers, general practitioners, health visitors, child guidance team, psychiatrist, teachers - have all been misled and manipulated by the mother; there has been no proper investigation by the court welfare officer and the judge was hostile. He says that the only way forward, therefore, is for there to be meaningful shared residence.
5. There are a series of other matters raised by Mr O, and I have referred to the voluminous papers. Those papers are amazingly wide in their scope, from articles on attachment from the University of Otago to articles on child-centred policies in the US. There are detailed submissions which he has prepared for various hearings. There is a moving letter from his daughter, saying how much she misses him and loves, which he tells me was written in April 1999. I have seen doctors' reports on the children and school reports. I have seen the results of complaints against the court welfare officer. I have seen his parents' accounts of matters. I have been referred to a whole series of Court of Appeal decisions. I have seen statements from the mother and from her present friend, Mr L. I have seen psychiatric reports on the mother. I have seen complaints about her psychiatrists. I have seen transcripts of evidence; further skeleton arguments; articles on parent alienation syndrome and on growing up in a violent family. I have read a detailed refutation of the judgment of Judge Milligan over some 19 closely typed pages. I have read statements made by the father about an incident at Southampton Railway Station in January 1998. I have read complaints about the general practitioner.
6. It is not without interest that there is hardly anybody who has been involved in this case professionally who has not been referred by way of complaint, whether it is the general practitioner or the court welfare officer; and indeed, so far as the doctors and the psychiatrists are concerned, matters have been ongoing in March of this year.
7. I said to Mr O in the course of his submissions, having read the detailed judgments, that at the heart of this was not the question whether an injustice had been done to him on one or more matters; at the heart of this was not, I am afraid, whether there was violence to him, though I in no way underestimate the considerable importance that that could have in an appropriate case. I am aware of the allegations that the mother smacked M. I have read all about the reference to child guidance. I have seen the deep concern that Mr O understandably has for the fact that his son was, so it appears, either put in or locked in his room over a period of perhaps two or three years, between the ages of about two and five, he now being eight years of age.
8. I am not making the assumption that there are not genuine concerns that have been held in the past by Mr O. He may have been the victim of violence. Certain it is that M's birth was a profoundly difficult one and that the mother suffered post-natal depression as a result. I have seen and read the reports on all of that. I hope, therefore, that Mr O will understand that I have, I believe, an understanding of the background to this case.
9. It causes me the most profound sadness, because what is quite apparent is that, whether they were injustices or were perceived as injustices, they have become the focus of Mr O's attention. There are all sorts of examples of the lengths to which that has driven him at times: for example, taping answers from the children (the transcripts of which I have seen and some of which I have read) to what Judge Milligan describes as "highly manipulative questioning" by him.
10. 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 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.
11. So when these matters came up and were carefully considered by the learned judge in the course of two full judgments that I have read, he was looking, as I have said, for a sea change. He was looking for some hope and something that he could focus on and say that, whatever has happened in the past and however hard done by Mr O feels, he can now see that he should not be troubling the children with that; that he knows that it is damaging to the children if he cannot separate the intensity of his own feelings from their needs.
12. As I have listened to Mr O this morning, I have seen history repeating itself again. I expressed to Mr O the belief that the court, both in the judgment of the learned judge and now this court, want him to play a part in his children's lives. He is entitled, as I said in the course of our few words, to be obsessional; to behave as he wishes, within the law. But where it affects the children, as it plainly and obviously has done, and where it amounts to emotional harm to them, the court must, in respect of its duty to them, protect them from being further damaged by it.
13. I recognise fully Mr O's rights as a father, both within our domestic law and as set out under article 8 of the European Convention. He is right to draw attention to that and to emphasise it. But unless there is a sea change, whatever his deep feelings may be about the mother and her inadequacies, he cannot progress with the children and form a part of their lives. 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.
14. There is much said in the school reports and others reports I have seen about how well these children are doing. That comes from two sources: it comes from the input of their mother and it comes from the input no doubt that Mr O made at an earlier stage in their lives. But I see no hope for future contact with their father (which will be for their benefit, if he can make it for their benefit) unless he understands what their essential needs are. I see no hope if he just harks on about the injustices of all the professionals; the inadequacy of the hearing; the problems of the mother. I have seen telephone calls between her and Mr L, and I have read a lot of it with utter despair.
15. I would allow this application only if I thought there was a reasonable prospect of success. I am afraid to say I see no prospect of success at all. His application for permission to appeal is doomed to failure. But I would not want him to go away from this court without seeing that there is hope. I started to suggest - and I will finish in the last few minutes by indicating - what I see as the hope there is for the future. The hope is not that suddenly next week he is going to be seeing the children, or even necessarily that he will be seeing them by the end of this year. He has to demonstrate that he has understood what I have been talking about. He has to be able to demonstrate that he can write sensible, helpful, good letters to the children, expressing interest in what they are doing; not harking on about the past and the injustice of that, but looking to the future and explaining what he has been doing; and doing it in child appropriate terms. I have no doubt that he is capable of doing it. He was deeply affected (and, if I may say so, most understandably) by that delightful letter from his daughter. This is what I want to start. It can then progress from there. If he thinks there is going to be contact without someone else being there to begin with, then I am afraid he again simply does not understand. He has to be able to demonstrate that he can converse with the children in terms which does not undermine their mother, which is helpful to them and which does not expose them to the intensity of the feelings he has. You cannot love children too much, but you can expose them too much to emotions which they are not capable of dealing with and to which they should not be exposed.
16. I am trying, at an awful time for Mr O, to throw him a lifeline. He can reject it, as he is perfectly entitled to do. I believe that these two children are too important for him not to go and seek help and assistance from somebody who can demonstrate to him (in terms which I am not capable of doing, and for which I lack the expertise) how he can progress. If he cannot do that, or if he cannot demonstrate a change, or if he does not have the patience, then he will, I am afraid, lose. My greatest worry is that these children will lose a contribution which I believe he is capable of giving and without which they will suffer a harm, but, sadly, not as great as the harm that they have already suffered by the obsessional way that these proceedings have been conducted.
17. Accordingly, for the reasons which I have endeavoured to give, with I hope an understanding of the matter, I have to refuse this application for permission to appeal.
Order: application for permission to appeal dismissed; transcript of this judgment to be supplied to applicant father at public expense.