England and Wales Court of Appeal (Civil Division) Decisions

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

		The Royal Courts of Justice The Strand London Tuesday 19 March 2002

Tuesday 19 March 2002

1. LADY JUSTICE HALE: This is a father's fourth application for permission to appeal to the Court of Appeal in relation to his son, E, who was born on 29 December 1997 and so is just four years old. The history was set out in some detail in my own judgment in this court on 8 June 2000 in case number PTA/2000/5527 and need not be repeated today.
2. The relevant essentials today are that the proceedings were first begun in January 1998 with an application for a parental responsibility order, followed by an application for contact. A parental responsibility order was made by consent on 28 May 1998. Various orders were made for contact, culminating in an order for two hours contact twice a week made by District Judge Naylor on 3 December 1998. The father appealed against this to the circuit judge. In April 1999 His Honour Judge Milligan varied the timing but otherwise dismissed the appeal. He also made an order under section 91(14) of the Children Act prohibiting further applications without leave for a period of one year. He did so because there had been twelve applications to the court within 22 months. The father's application to the Court of Appeal for permission to appeal was dismissed in October 1999.
3. The father's subsequent attempts to have the contact order varied failed. In October 1999 His Honour Judge Milligan dismissed an application and made a further section 91(14) order for two years. The father's application to the Court of Appeal for permission to appeal against that order was dismissed by Ward LJ in January 2000. A further application for leave to make an application was refused in December 1999 and the father's application for permission to appeal against that order was dismissed by myself in June 2000.
4. From August 1999 the father has declined to take up the contact as ordered. His Honour Judge Milligan later that year found that there was no substance in his complaints that the contact was being withheld. All the judges who have heard this case have attempted to persuade the father to take up that contact, even though in the father's view it is quite inadequate. There have, therefore, only been very occasional contacts between the father and his son, mostly initiated by the mother, since then. The mother visited the paternal grandmother's home in August 2000 and again in December 2000, and the last time the father saw E was on 24 December 2000 when all three of them made an expedition together to London. It appears that those contacts have gone remarkably well from E's point of view, and that he recognises his father and is glad to spend time with him.
5. The father's view throughout has been that that order is too little. Children need a relationship with both of their parents. There should not be any preference in favour of the mother. The relationship with the father should not be built up gradually by an ascending ladder of contact in the way in which that is commonly done in the courts.
6. The section 91(14) order expired in October 2001. The father promptly applied for a shared residence order and also for an increase in contact. The mother responded by an application to discharge the existing contact order and the parental responsibility order, and for a further order under section 91(14). Those applications came before His Honour Judge Milligan, technically in the Southampton County Court, on 6 December 2001. It is against the orders which he made on that occasion that the father wishes to have permission to appeal today.
7. First the shared residence application was refused because the father had not taken up the contact ordered. He had even refused the mother's suggestion of their all having coffee together when they had met accidentally six weeks previously. As the judge said:

"... when Mr Miller complains that contact is so limited that E is not being given the opportunity to form a relationship with his father, the reverse in fact is the case: it is Mr Miller who is depriving him of that opportunity. Had he, as I suggest any responsible father would have done in the circumstances, taken up the contact defined, despite his view that it was insufficient, and used it to lay the foundations of a developing relationship between father and son, the probability is that contact by now would have been extended, either by agreement of the mother, which I think is likely, or by the Court if necessary."

8. The father in seeking permission to appeal against the refusal of a shared residence order relies upon the same general propositions upon which he has relied throughout. That is that each parent should have an equal relationship with the child, the courts should recognise this at the outset and should not seek to build up that relationship gradually in the way forecast by His Honour Judge Milligan in that quotation. He also relies on the comparatively recent case of D v D (Shared Residence Order) [2001] 1 FLR 495, a decision of the Court of Appeal consisting of the President of the Family Division and myself, which indicated that the court should adopt a somewhat less restrictive attitude to making shared residence orders than they had previously been inclined to do.
9. However, a shared residence order is still a residence order. It is not a purely symbolic grant of rights or status. A residence order is defined in the Children Act as an order settling the arrangements as to the person with whom the child is to live. It therefore contemplates that the child lives with each parent. It cannot be made where the child is not spending some time in each household, as the children were in D v D, still less where the child is not even seeing that parent, as in the more recent case of Re A (Children) (Shared Residence) [2002] 1 FLR 177 in the Court of Appeal. It is impossible for this court to say that the judge was plainly wrong to decline to introduce a shared residence order, settling the arrangements as to where E is to live, which contemplates that E should begin living with the father who has refused to see him for more than a few occasions for the last two and a half years. I cannot therefore grant permission against that decision.
10. Secondly, the existing contact order was discharged by the learned judge for the same reason. The father had plainly indicated that because he considered the present order inappropriate and insufficient, he had no intention of taking it up, even though he had exhausted his appeal possibilities against that order, thus discovering that, however misguidedly (and I do not of course indicate that it is necessarily misguided), the courts considered that the order had been an appropriate and unappealable order at the time when it was made. It was most unfortunate from E's point of view that the father was taking this stance and depriving him of any relationship with his father, but as the father had made his position plain, there was no point in continuing the existing order. That too, given the stance taken by the father, is a completely unappealable decision. There is no point in maintaining the existence of an order with which the father so disagrees that he is not prepared to take advantage of it for the benefit of his son.
11. Thirdly, as far as the parental responsibility order is concerned the judge took the view that this should now be discharged. He did so for essentially the same reason: that is, that the father had shown no genuine commitment towards his son. Instead he had shown commitment to his own particular view of what the approach of the courts should be and if he could not have that view prevail, well then he was not going to play any part in his son's upbringing. Generally speaking, there are three factors which are taken into account in granting a parental responsibility order: the attachment or relationship between the child and the parent, the parent's commitment towards the child and the parent's reasons for applying. That is why the judge referred to the fact that this father had not shown such commitment to his son and that was why he thought it appropriate to discharge the parental responsibility order.
12. The father argues that it is very rare for the court to discharge such an order. The reported cases suggest that this would only be done in a case of serious abuse of the child, of which there is no question in this case; or an inability to meet parental responsibility: see Re P: (Terminating Parental Responsibility) [1995] 1 FLR 1048 and M v M (Parental Responsibility) [1999] 2 FLR 737. He argues therefore that he must have been being punished for having written a booklet critical of the courts' approach to these cases called "even Toddlers Need Fathers". He further argues that the discrimination between married and unmarried fathers, and between fathers and mothers, is contrary to the European Convention on Human Rights. In fact, so far, the jurisprudence of the European Court of Human Rights indicates that the present discrimination in English law is not contrary to the Convention as it has a legitimate aim and is proportionate to that aim.
13. Nevertheless, this is the aspect of the case which concerns me the most. The criterion for making, and therefore for discharging, a parental responsibility order must be the welfare of the child, but that also includes the question of whether making any order is better than not doing so. The courts should be slow to end a parental responsibility order, not least because they can only do so in the case of unmarried fathers, and the Children Act clearly indicates that a parental responsibility order is independent of the other orders about the care and upbringing of the child.
14. This case is somewhat different from the other cases. It could be argued that it is akin to the case of M v M (above) in that a father who is wilfully refusing to meet his responsibilities towards his child by refusing even to have a cup of coffee with the child is in the same position as a father who is unable, through disability, to meet his responsibilities. However, this aspect of the matter is one in which it seems to me it is possible that this court might find that the judge fell into error, and I would therefore grant permission to appeal on this point. I should add that it would, of course, be open to the parties to agree that the appeal would be allowed by consent and thus to avoid a full hearing in this court.
15. Finally, he wishes to appeal against the further section 91(14) order. His Honour Judge Milligan made another such order for a period of two years, but he made it quite clear to the father that the door was not closed. If the father could put aside his obsession with being treated as a second-class citizen and get himself into the frame of mind where what matters to him is the developing relationship with his son for his son's benefit, then future applications for permission and future applications for orders under section 8 "will receive the most sympathetic consideration". On the other hand:

"If he persists in his position that he is being unfairly treated, and therefore, like a small child whose toys have been taken away, he will have nothing to do with it and will take no steps to build a relationship with his son, then any future applications he makes are likely to be as unsuccessful as was his application today."

16. I cannot fault that approach by the judge, which makes complete sense in the circumstances which are entirely admitted before this court as well as before His Honour Judge Milligan, so I would refuse permission to appeal against that order.
17. The father also applies for E to be a party to this appeal. E was not a party to the proceedings below and it would not be appropriate for him to be made an independent party to these proceedings, which are to go ahead on the single basis which I have indicated.
ORDER: Application to appeal against the discharge of the parental responsibility order allowed. A copy of the transcript of this judgment to be provided to each party at public expense. (Order not part of approved judgment)