Lord Justice Thorpe and Lord Justice Chadwick - Court of Appeal - 8 October 1999

LORD JUSTICE THORPE: Mr M has advanced his application with great courtesy and moderation. The application is for permission to appeal the order of His Honour Judge Milligan in the Southampton County Court dated 7 April 1999. The background is briefly stated.

Mr M is the father of a child born in January 1997. At the date of the proceedings that child was about 16 months of age and still breast-feeding. The extent of contact between Mr M and the child had been determined at an earlier hearing before the district judge who had said, in effect, that Mr M should have contact with his son, E, for two periods a week each of two hours duration. Mr M exercised his right of appeal within the county court and it was that appeal which Judge Milligan determined in April.

Mr M, who is a father of considerable intelligence, has very strong views on the extent to which both parents should be involved in the nurture of their child, despite the fact that they cannot live together as a couple. He has read extensively the specialist mental health literature. He is very familiar with the work and theories of Dr Bowlby. He has followed closely the important subsequent analysis of Dr Rutter. He accordingly feels that Dr Bowlby's attachment theory has no remaining value in any assessment of the capacity of a very young child to be separated from his mother to enable the father's experience of this stage of nurture to be if not equal with that of the mother, certainly of a very significant level.

Mr M became familiar in his researches with a paper that was written by the Chief Welfare Officer in the Swindon court, Mr Alan Sealey. Mr Alan Sealey impressed Mr M, understandably since he writes on the writing paper of an association which is termed the "Association of Family Court Welfare Officers" which has some very influential and highly respected patrons and vice-presidents. But, as the correspondence with Mr Sealey reveals, this association, certainly by late 1998, had only about five members and was then in a state of terminal decline. Obviously, if there were to be guidelines issued by that profession, they would not come from this small association, but from the national representation of the profession, possibly from the Association of Chief Officers of Probation.

However, as Judge Milligan found, the overwhelming probability is that the guidelines were not before District Judge Naylor when he made his determination. There was no evidence that they were and, as Judge Milligan found, even if the guidelines were known to the district judge, he, as an extremely experienced district judge, would have undoubtedly exercised his discretion in relation to the circumstances of the case before him and not applied the guidelines. Judge Milligan went on to reach the discretionary conclusion that the level of contact ordered by the district judge was about right; certainly the level was in line with the "forensic norm". As the judge said at page 7 of his judgment:

"....in a case where a child is still breast-feeding and therefore takes a feed every four hours, it seems to me that it would be quite inappropriate to suggest that any individual contact visit should be of greater than two hours duration, given that the child has to be collected and returned. I see no basis upon which the district judge could be said wrongly to have exercised his discretion. There has been a steady increase in the question of contact."

It must be emphasised that the primary order was made by the district judge and there has already been one appeal. The practice direction that regulates the grant of permission in this court emphasises that, where there has been one appeal in the court of trial or in the system below, permission should not be granted unless there are quite exceptional circumstances. There are none in this case. It is quite plain on any objective judicial review that the conclusion reached by Judge Milligan was not only plainly within the discretionary band, it was the sort of inevitable conclusion to which the majority of judges of the court would have come.

There is one last word that must be said. Mr M has felt the unfairness of the imposition of a section 91(14) order, which the mother's solicitors sought to be heard and determined at the same time as his appeal. He has put before the court the judgment of this court in 1995 but, as I have sought to explain, the judicial barometer has moved a little since then. Within the relaxed guidelines given to judges in the county court the determination of the judge to give the mother 12 months' respite was manifestly open to him. It was a time limited prohibition and the order will be time spent in only six months. In any event, Mr M tells us that he has already obtained from the judge leave to issue an application within the prohibition period. There is, therefore, a pending application to be heard by Judge Milligan. I hope that sufficiently explains to Mr M the reasons why, in my opinion, his application for permission must be dismissed.

LORD JUSTICE CHADWICK: I agree.

Order: Application dismissed. Leave to appeal to the House of Lords refused.