1. LADY JUSTICE HALE: On 19 March 2002, I heard an application by the father for permission to appeal against various orders made by His Honour Judge Milligan in the Southampton County Court in proceedings about his son E, who is now nearly 5 years old. I dismissed most of those applications, but I granted permission to appeal against the discharge of a parental responsibility order. I was not thereby saying that the judge was necessarily wrong, merely that it was arguable that he was; in other words, that there was a more than fanciful prospect of a success, not necessarily a better than evens chance of success. I indicated that if the mother agreed, the appeal could be allowed by consent without the need for a hearing. I did so because it is always open to a mother to agree that a father should have parental responsibility, so there was no point in a court hearing if the mother did so.
2.
The appeal was listed for 15 May, but the mother's solicitors
indicated her consent by a letter to the Court of Appeal dated 13
May. The case was therefore taken out of the list and an order
allowing the appeal was made on 28 May.
3. The mother's solicitors wrote to the father also on 13 May, telling him about this but complaining that his booklet entitled "Even Toddlers Need Fathers", and his website www.kipmiller.fsnet.co.uk contained information identifying the child as the subject of court proceedings, which was a contempt of court. They said that if he was not prepared to remove the details, they would apply to the court for his committal. They followed that up with a further letter on 14 June.
4. Meanwhile, on 16 May the father wrote to the County Court, applying for His Honour Judge Milligan to recuse himself from the case. At that stage there was no live application currently before the court in any event. The case has been reserved to His Honour Judge Milligan for some considerable time and all the substantive orders in it have been made by him. The father's ground was that a judge who does not believe in the principle that a child has a right to know both his parents has no business hearing family cases; he is not therefore an impartial tribunal for the purpose of Article 6 for the European Convention on Human Rights. The court replied on 24 May that the judge saw no grounds to remove himself from the case.
5. On 28 May the father wrote again, repeating his application on the same ground, but also asserting that it was clear that the judge did not believe that he had been wrong to discharge the parental responsibility order. The court replied on 27 June that the judge had refused his application to release the case to another judge.
6. On 2 July the father wrote again, asking for the court to impose an order under section 91(14) of the Children Act 1989 upon the mother and her solicitors, and also for the judge to recuse himself from the case unless he was prepared to state for the public record that it was wrong to take away a child's right to know his own father. On 15 July His Honour Judge Milligan made an order that the father's application be dismissed. On 29 July the father wrote again, asking for permission to appeal against that order, which was refused on 7 August.
7. On 13 August the mother applied for an order that the father be restrained from disclosing or communicating details of the proceedings or the proceedings in the Court of Appeal, other than to his own legal adviser or with the permission of the court, and in particular to restrain the father from publishing any such information on the internet, and an order that he should forthwith take steps to remove from the website all photographs and written material identifying or leading to the identification of the child. That application was listed for 12 September. The father did not attend court on that occasion and the order was made. He has subsequently been in correspondence with the mother's solicitors about what he should do in response to it.
8. This application relates only to the order of 5 July. His Honour Judge Milligan's reasons for declining to recuse himself were that this was not the first application of this kind that the father had made. He had given an earlier judgment refusing it; that had been upheld by the Court of Appeal, and no new arguments were raised.
9. In relation to the application for the judge to recuse himself, the father repeats essentially the same arguments to me. He quotes from Sir William Utting, a former Chief Inspector of Social Services, about the importance of contact between fathers and their sons, given the increased likelihood of poor behavioural outcomes if there is no such contact. He shows me his submission to a call for papers for the Fifth National Congress of the British Association for the Study and Prevention of Child Abuse and Neglect to be held next year dealing with a paper which he would like to present entitled "Fifty Years of 'Maternal Deprivation' Re-assessed".
10. It has been a recurrent theme through all the father's applications and submissions to this court and below, and it is the theme of his booklet 'Even Toddlers Need Fathers', that these courts have been traditionally too influenced by the theory of maternal deprivation articulated and popularised by John Bowlby principally in the 1950s, and have not re-assessed that theory in the light of more recent research findings and in particular the work of Professor Sir Michael Rutter. The father tells me — and in fact it was clear from his approach to the appeal for which I gave permission earlier this year — that he would like this court to make a thorough re-assessment of those theories, hearing evidence and using that hearing to make progress towards a different approach in family law.
11. The difficulty with that is that that is not the role of this court. This court hears appeals from particular orders made by particular courts in particular cases. It does not subject psychological theories to that sort of close examination. A further difficulty is that this court regularly and frequently emphasises the importance for children of knowing both of their parents and so far as that is possible maintaining a relationship with them both. The father cannot expect this court to conduct the sort of hearing that he would like us to conduct.
12. In asking for this judge to recuse himself he relies simply upon the fact that I gave permission to appeal against one aspect of an order he made. That is not a sufficient reason for a judge to recuse himself. There is nothing in all the papers that I have read, having now considered applications in this case on three occasions, to suggest that His Honour Judge Milligan is anything other than an impartial tribunal in dealing with it. He has been urging the father to take up that contact which has been ordered for him in the past — in effect to swallow his pride, accept and make the most of what he considers to be a bad job for the sake of his son. It is regrettable to the judge, and it is regrettable to me, that the father has not found it possible so to do.
13. The application for a section 91(14) order was not properly constituted. It is of course possible for the father to make such an application at some subsequent hearing in relation to this case. He believes that the mother's solicitors at least have been vexatious in various respects. He refers to their application for an undertaking way back in 1998 about the proper fitting of a car seat. He refers to their continued desire to remove his parental responsibility until just before the hearing fixed in the Court of Appeal next May and to their allegations that he has been guilty of contempt of court.
14. Those were not in themselves sufficient to justify the making of such an order. The car seat matter was a long time ago. For the reasons I have already given, the parental responsibility matter was one in which there was something to argue about, which is why I gave permission. As far as the contempt allegations are concerned, it is the right of a party who believes that there has been a contempt of court to draw the matter to the attention of the court. It is then for the court to decide what, if anything, to do with it. Those would not amount by themselves to good reasons for making such an order. In any event the order relates only to applications under the Children Act 1989.
15. For all those reasons I must refuse these applications. I will make the usual order that the father is to receive a transcript of this judgment at public expense.
3. The mother's solicitors wrote to the father also on 13 May, telling him about this but complaining that his booklet entitled "Even Toddlers Need Fathers", and his website www.kipmiller.fsnet.co.uk contained information identifying the child as the subject of court proceedings, which was a contempt of court. They said that if he was not prepared to remove the details, they would apply to the court for his committal. They followed that up with a further letter on 14 June.
4. Meanwhile, on 16 May the father wrote to the County Court, applying for His Honour Judge Milligan to recuse himself from the case. At that stage there was no live application currently before the court in any event. The case has been reserved to His Honour Judge Milligan for some considerable time and all the substantive orders in it have been made by him. The father's ground was that a judge who does not believe in the principle that a child has a right to know both his parents has no business hearing family cases; he is not therefore an impartial tribunal for the purpose of Article 6 for the European Convention on Human Rights. The court replied on 24 May that the judge saw no grounds to remove himself from the case.
5. On 28 May the father wrote again, repeating his application on the same ground, but also asserting that it was clear that the judge did not believe that he had been wrong to discharge the parental responsibility order. The court replied on 27 June that the judge had refused his application to release the case to another judge.
6. On 2 July the father wrote again, asking for the court to impose an order under section 91(14) of the Children Act 1989 upon the mother and her solicitors, and also for the judge to recuse himself from the case unless he was prepared to state for the public record that it was wrong to take away a child's right to know his own father. On 15 July His Honour Judge Milligan made an order that the father's application be dismissed. On 29 July the father wrote again, asking for permission to appeal against that order, which was refused on 7 August.
7. On 13 August the mother applied for an order that the father be restrained from disclosing or communicating details of the proceedings or the proceedings in the Court of Appeal, other than to his own legal adviser or with the permission of the court, and in particular to restrain the father from publishing any such information on the internet, and an order that he should forthwith take steps to remove from the website all photographs and written material identifying or leading to the identification of the child. That application was listed for 12 September. The father did not attend court on that occasion and the order was made. He has subsequently been in correspondence with the mother's solicitors about what he should do in response to it.
8. This application relates only to the order of 5 July. His Honour Judge Milligan's reasons for declining to recuse himself were that this was not the first application of this kind that the father had made. He had given an earlier judgment refusing it; that had been upheld by the Court of Appeal, and no new arguments were raised.
9. In relation to the application for the judge to recuse himself, the father repeats essentially the same arguments to me. He quotes from Sir William Utting, a former Chief Inspector of Social Services, about the importance of contact between fathers and their sons, given the increased likelihood of poor behavioural outcomes if there is no such contact. He shows me his submission to a call for papers for the Fifth National Congress of the British Association for the Study and Prevention of Child Abuse and Neglect to be held next year dealing with a paper which he would like to present entitled "Fifty Years of 'Maternal Deprivation' Re-assessed".
10. It has been a recurrent theme through all the father's applications and submissions to this court and below, and it is the theme of his booklet 'Even Toddlers Need Fathers', that these courts have been traditionally too influenced by the theory of maternal deprivation articulated and popularised by John Bowlby principally in the 1950s, and have not re-assessed that theory in the light of more recent research findings and in particular the work of Professor Sir Michael Rutter. The father tells me — and in fact it was clear from his approach to the appeal for which I gave permission earlier this year — that he would like this court to make a thorough re-assessment of those theories, hearing evidence and using that hearing to make progress towards a different approach in family law.
11. The difficulty with that is that that is not the role of this court. This court hears appeals from particular orders made by particular courts in particular cases. It does not subject psychological theories to that sort of close examination. A further difficulty is that this court regularly and frequently emphasises the importance for children of knowing both of their parents and so far as that is possible maintaining a relationship with them both. The father cannot expect this court to conduct the sort of hearing that he would like us to conduct.
12. In asking for this judge to recuse himself he relies simply upon the fact that I gave permission to appeal against one aspect of an order he made. That is not a sufficient reason for a judge to recuse himself. There is nothing in all the papers that I have read, having now considered applications in this case on three occasions, to suggest that His Honour Judge Milligan is anything other than an impartial tribunal in dealing with it. He has been urging the father to take up that contact which has been ordered for him in the past — in effect to swallow his pride, accept and make the most of what he considers to be a bad job for the sake of his son. It is regrettable to the judge, and it is regrettable to me, that the father has not found it possible so to do.
13. The application for a section 91(14) order was not properly constituted. It is of course possible for the father to make such an application at some subsequent hearing in relation to this case. He believes that the mother's solicitors at least have been vexatious in various respects. He refers to their application for an undertaking way back in 1998 about the proper fitting of a car seat. He refers to their continued desire to remove his parental responsibility until just before the hearing fixed in the Court of Appeal next May and to their allegations that he has been guilty of contempt of court.
14. Those were not in themselves sufficient to justify the making of such an order. The car seat matter was a long time ago. For the reasons I have already given, the parental responsibility matter was one in which there was something to argue about, which is why I gave permission. As far as the contempt allegations are concerned, it is the right of a party who believes that there has been a contempt of court to draw the matter to the attention of the court. It is then for the court to decide what, if anything, to do with it. Those would not amount by themselves to good reasons for making such an order. In any event the order relates only to applications under the Children Act 1989.
15. For all those reasons I must refuse these applications. I will make the usual order that the father is to receive a transcript of this judgment at public expense.