M (A Child) [2005] EWCA Civ 1696

Case No B4/2005/1756[2005] EWCA Civ 1696
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MILTON KEYNES COUNTY COURT
(HIS HONOUR JUDGE SEROTA QC)
Venue Royal Courts of JusticeDate Tuesday, 6th December 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE WALL
LORD JUSTICE LLOYD
M (A CHILD)
(Computer-Aided Transcript of the Palantype Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR FRANK MOAT (instructed by Messrs Gorvins Solicitors, Milton Keynes MK5 8NL) appeared on behalf of the Applicant Mother
MISS DIVYA BHATIA (instructed by Messrs Ray, Borley & Dunkley, Milton Keynes MK11 1AU) appeared on behalf of the Respondent Father
J U D G M E N T
Between
Applicant MotherApplicantRespondent FatherRespondent

LORD JUSTICE WALL:

[1]This is an application by MM for permission to appeal against orders made by His Honour Judge Serota QC, sitting in the Milton Keynes County Court on 1st July 2005. Before him he had an application by Mrs M for residence of her son, JDM, who was born on 4th July 2001. The respondent to the application was J's father, KM.[2]The application in fact was to vary a previous order made by the same judge on 14th September 2004, in which residence of J had been awarded to his father. The judge dismissed Mrs M's application. He re-crafted an order for contact which had been made on the previous occasion, and he made an order under section 91(14) of the Children Act 1989 preventing Mrs M from making any application in relation to J without the leave of the court, and he further directed that any application for such leave was to be reserved to himself. He refused permission to appeal and made no orders for costs, apart from a detailed assessment of Mrs M's public funding certificate.[3]The application for permission was renewed in court before me sitting on my own on 12th October 2005. On that occasion Mr Moat -- who appeared then and who appears for the appellant today -- persuaded me that there might be an arguable point in relation both to the residence appeal and the section 91(14) order. In those circumstances I directed that the matter should be listed for oral hearing on notice to Mr M, with appeal to follow if permission was granted. That is the application we have been hearing this morning.[4]In order to understand it, it is necessary to go only briefly back into the history of the matter. The mother is Serbian by origin, and at the time of the hearing before the judge she was 33. She is apparently a graphic designer and children's author of some ability. The father has experience, extensive according to the judge, in "the telecommunications industry". It was a mature marriage. The parties met through an advertisement. Unfortunately, the marriage was of short duration and did not long survive J's birth. For a period of time the parties, though estranged, appear to have lived in the same house. They both appear to have come to Milton Keynes, although living separate and apart. The matter first came before the court in the latter part of 2003, when the father proposed to move to Wales and wished to take J with him. That led to an application before His Honour Judge Tyrer, who decided, until the matter could be fully investigated, that there should be a shared arrangement, with the consequence that J spent one week with his father in Wales, followed by a week with his mother in Milton Keynes. That arrangement continued until the matter came before Judge Serota in September.[5]We have a transcript of Judge Serota's judgment given on 12th March 2004. He appears to have examined the case with some care. He had the advantage of a CAFCASS report prepared by an experienced CAFCASS officer. The CAFCASS officer recommended residence to Mr M, and the judge agreed. It seems that the essential basis of the judge's reasoning was his assessment of the two parents. In particular, his finding was that if J lived with his father he would stand a much better prospect of retaining a proper relationship with his mother and a positive image of his mother: whereas, on the other side, if he were to live with his mother, the mother's emotions and her expressions of her views about the father would render it quite likely, in the judge's view, that J would end up with a distorted view of his father, which could, under the mother's influence, become hostile and negative. In those circumstances, the judge made a residence order in favour of the father, but at the same time made a very generous contact order, with the father's full agreement, to the mother. Indeed, the judge was slightly concerned about the contact arrangements because he said (in paragraph 24 of his judgment):
"I have considered very carefully indeed whether in fact it is right to allow such generous contact, because I have real and genuine concerns about the mother's inability to control her impulsiveness and to control her emotions. It would be tragic, particularly for the mother, if this was to reflect itself in her contact with J. I hope the mother understands how important it is to keep J completely insulated from her feelings towards Mr M. If she is unable to do so, she may find, because there is every justification for doing so in those circumstances, that her contact with J is significantly reduced and controlled. Equally, Mr M will understand that questions of contact and residence are not set in stone for ever, and will be re-visited if circumstances change. I can only express the hope for J's well being, because as I said at the outset of this judgment, he is a delightful little boy, that the parents will both be able to settle their differences and insulate J from their previous dispute. It would be tragic and certainly contrary to J's interests, if this did not take place."
[6]It is I think right to say that in reaching his conclusion the judge formed a clear view of both parties, as indeed he was not only entitled but bound to do. In relation to Judge Tyrer's judgment he made one substantive comment only, in paragraph 11 of his judgment, namely:
"I need to say something about the judgment of His Honour Judge Tyrer. He described the mother as excitable, grossly over-dramatic, with an element of obstinacy ,strong-willedness and prone to exaggerate in her responses. My own perception of the mother is the same as His Honour Judge Tyrer's."
[7]So that was the order to govern residence and contact, and it was not long before Mrs M sought to change it. Her notice of application is dated as being received on 28th September 2004. The judge, in the judgment which is under attack, cites extensively from the notice of application as it was drafted. It is I think fair to say that at this point the mother did not have legal representation, and therefore the notice of application was, it can be said, home made. But the nature of the way in which the application was being put is, in my judgment, nonetheless significant. I quote from it:
"My ex-husband ... obtained residence of our young son on total fiction, false allegations, acting and deception in order to get 'divorce of an intelligent man' (his words) and to punish me for 'destroying his career'. Deception is his lifestyle and being very presentable and skilled at extreme untruthfulness and lack of any scruple in reaching a goal, he manages to add three judges to a long list of people he 'played' with including myself, my family, many policemen, his own legal team, girlfriends, the Inland Revenue, DVLA, 75 guests at our wedding, 30 of my relatives at our wedding in Serbia, his former secretary for 10 months and many more. He was extremely untruthful in his divorce papers, solicitor's letters, court statements and in the witness-box. Most were not 'white lies', mistakes or truth distortions, but sheer inventions like my 'having a factory' even. He completely swapped our roles and acted he was a good, responsible father when in truth he was very negligent, selfish, irresponsible party-animal who cared mainly for himself and his ample entertainment leaving [J] and myself on our own most of the time. His abuse of us to 'build a case' is beyond comprehension of an average parent. Nothing about [J's] life in Wales can be totally trusted, if anything."
[8]This view of the father was supported in the mother's witness statement, which again the judge cites and which I need not read but which is in once again in extreme terms in its descriptions of the father. Perhaps one phrase will suffice:
"He was abusing me and [J] so much I went to my MP, directed to the police, contact women's aid and no one would help. Psychologically a very dangerous man for women. Unscrupulous, selfish and signally immoral."
[9]It will immediately be apparent that Mrs M firstly had not heeded the judge's words in the first judgment, but that her assessment was wholly contrary to the findings of fact made by the judge. When one comes to look at the preparations for trial, it is I think worth bearing in mind that that was the basis upon which the mother was inviting the judge to vary the order. In effect, her case was that the judge had been completely misled by an unscrupulous father; his findings of fact about the father were wholly incorrect and J had been placed quite inappropriately who a man had no qualification for caring for him at all.[10]It is I think against that background that one has to look at the important hearings in the case, the first of which for our purposes is 14th March 2005. I preface this by saying that a principal plank of the application for permission is that the judge entered the hearing under appeal with a totally closed mind, having already decided to refuse Mrs M's application and that he was, in short, biased against her. The allegation starts with the hearing on 14th March, which was effectively a directions hearing. We have a transcript. Of course in a case of this nature one is always cautious about reading too much into a transcript. However, it is plain that the judge had set aside half an hour for the directions application at 10.00am before starting another case. He was therefore not best pleased by the fact that the parties (he thought) were negotiating outside the door of the court, whereas that does not appear to have been the case. In any event, they seem to have come in nearer half past ten than ten, and the judge had a full day case waiting. In those circumstances, it is plain that Miss Smith, who appeared on that occasion for Mrs M, got what can be described as pretty short shrift from the judge. When Miss Smith attempted to open the matter briefly to the judge, his response was:
"I don't think there's anything in this application at all and what I'm going to do is, it's going to be heard 30th June and 1st July, two days. Do we need any further witness statements?"
And he then turned to Miss Bhatia, who represented the father before the judge, as indeed she did at the main trial and before us.[11]The judge had read the evidence put forward by the mother, amongst which was a series of letters which she had written to various bodies, all of which the judge plainly thought were inappropriate because his next statement, after a very brief exchange with Miss Bhatia, was to say:
"I also propose to make prohibited steps orders today against your client [that is the mother], with penal notices attached, precluding them from contacting the child's school. Take instructions, please."
[12]When, slightly later on, there was a reference to writing to a Member of Parliament, to which the judge had no objection, he again asked Miss Smith was there any reason why he should not make a prohibited steps order with a penal notice attached. Miss Smith attempted to offer an undertaking on her client's behalf, and the judge robustly said (three times) that it was not acceptable and went on to say:
"Your client's behaviour is way, way beyond what is acceptable and it's just going to stop."
Miss Smith said:
"Well, your Honour, she does have parental responsibility."

The judge replied:

"She has parental responsibility which she's abusing at present."
[13]Miss Smith's attempts to put forward an explanation on her client's behalf, once again, were met with very short shrift and with the judge asking counsel a direct question as to whether she thought the letters were appropriate. Miss Smith managed an explanation as to her client's highly-strung state, and her belief that she would be vindicated if she got answers to her letters. But that cut no ice with the judge at all who said:
"She's riding for a fall."
Miss Smith said:
"Your Honour, we have certainly explained the difficulties ----"

The judge interrupted to say:

"She's riding for a fall. She may find that I come to the conclusion that contact will have to -- will have to be severely regulated if this conduct continues. That's why I've reserved this matter to myself and I propose to deal with it once and for all."
[14]The judge later describes the mother's conduct as obsessive. Then at page 6 of the transcript there is the first reference to the hearing and the judge who is likely to take the hearing. The judge at this point says:
"... look, the alternatives are this: the -- the 30th July and 1st July are the first available dates that I can do it. If you want to make your application in front of another judge ----"
When Miss Smith said something which the tape did not pick up,

the judge went on:

"No, no, if you want to make your application to have this -- to have this dealt with in -- in some other way, in front of another judge, I'll give you permission to do so, but I don't think you're going to save any time."
[15]It is plain to me, on a second or third reading of this transcript, that at this point the judge was not thinking of recusing himself because of his views of the case, but simply because the matter might get on quicker before someone else. This is a point to which I will return, because the question of the judge's attitude to hearing the case becomes critical to the argument at a later point.[16]Mr Moat also makes the point in relation to this hearing in March that

the judge (at page 7) says this:

"Look, I can't prevent the mother making her application. On the next occasion, I can. I can make -- I can consider whether to invoke the powers under section 93 [I interpolate I think the judge plainly means there section 91(14)], but at present I can't. I have to deal with the matter. I don't propose to order another report, but as -- I'm afraid there's very little I can do. I think the matters will have to be considered. I've already indicated that I don't think very much of the mother's case but I'm allowing two days to make absolutely sure there's sufficient time to deal with it. Miss Bhatia, what are the alternatives?"
[17]I should have made the point from the transcript that there was an attempt at that hearing by Miss Smith to obtain a report from CAFCASS. There appears to have been a short break for Miss Smith to take instructions. When the parties returned, Miss Smith said to the judge that she had no further instructions, save that mother, Mrs M, would like a further CAFCASS report. The judge immediately responded:
"There's not going to be another CAFCASS report."
When Miss Smith attempted to reply,

the judge cut in to say:

"It's out of the question."

The judge then plainly reconsidered the position and said to Miss Smith:

"I mean, I'll hear why you say -- why you say there should be one."
Miss Smith then attempted an explanation as to why there should be a further report, at which

the judge said:

"Well, I can see no basis I'm afraid for ordering a further CAFCASS report. These matters as to whether Mr M is working and neglecting the child can be dealt with in evidence ..."
That again was taken up by the judge at page 87 of the bundle, page 3 of the transcript of 30th June, to which I will come in due course.[19]Mr Moat makes the point that from the mother's point of view the hearing by the judge in March effectively meant that his client could not have a fair hearing of her application for residence. The judge, he submits, had plainly made up his mind. He thought the application hopeless. He was not prepared to have a CAFCASS report. He was prepared to investigate, but on a basis which was plainly contrary to his client because the judge said:
"I can't stop her making the application. I have got to set aside two days. I'll set aside two days."
But the sub-text of what he was saying was that that would be effectively simply going through the motions, a waste of time and there was no merit in the mother's case.[20]I have, I hope, read out the relevant sections of the hearing of 14th March. Again, if that hearing stood on its own, I would, speaking for myself, be extremely troubled by it because it is reasonably clear the judge was expressing forthright views about the nature of the application. It may be, given the manner in which the application was being put before the court (namely an attempt to reopen factual issues clearly resolved, based on a series of wholly inappropriate and sometimes intemperate correspondence), that the judge had justification for taking that view. But he certainly expressed it very robustly. If there was nothing more, as I say, I, speaking for myself, would be very troubled about what happened on 14th March. I bear in mind of course this was a short interlocutory appointment, and that the judge was anxious to get on with the rest of his list. But, on the other hand, both parties were present and it seems to me that the judge was conveying a very clear impression to the mother that he did not think her case had any substance.[21]There was a further application before the judge in June much nearer to the trial, in which the mother's advisers renewed their application for a CAFCASS report. That application was, again, refused. The order made on 16th June is very terse. It simply deals with the filing of evidence, updating and written openings. But we are told by counsel that the application was made for a CAFCASS report once more unsuccessfully.[22]At the beginning of the substantive hearing a number of issues were canvassed before evidence was called. Two of them have featured in the argument which we have had this morning. The first is the judge's recognition that he could not effectively, as he says -- whether he is right or not -- order a transfer of residence without a CAFCASS report, and the second issue goes to the question of bias.[23]I will briefly discuss, firstly, the judge's reference to the CAFCASS report. Mr Moat makes the obvious point: the judge, back in March and again in June, had refused to order a CAFCASS report and here he is saying he could not possibly change residence without having one. That is a further indication, Mr Moat submits, of the judge having made up his mind. But perhaps the most significant exchange for these purposes comes shortly before Mr Moat called Mrs M to give evidence, because the judge referred to correspondence in the bundle between solicitors, which it has to be said in somewhat Delphic terms suggests, or may suggest, that the judge was biased. The allegation in the correspondence is that Mr M had told his wife that the judge was on his side. But whichever way it came about, the judge picks up the reference because he says (page 9 of the transcript):
"And if you are kind enough to turn to page 250 of the bundle, I rather gather that your solicitors seem to be suggesting either they or your client feels I'm somehow biased, that I've already decided the matter."
[24]There is then a reference to the specific letter, and

the judge says:

"JUDGE SEROTA: I mean, that's a serious matter. Is that something you stand by, Mr Moat? MR MOAT: Your Honour, I'm in some difficulties, because I wasn't here then, and I haven't actually taken instructions on whether I think -- whether my client thinks your Honour's biased. JUDGE SEROTA: Well, I mean, are you asking me -- if you think I'm biased, are you asking me to recuse myself? MR MOAT: No, I'm not. No. I hadn't asked my ---- JUDGE SEROTA: But I don't find it particularly comfortable when I'm told that I'm biased. MR MOAT: No. When a solicitor writes that, effectively. JUDGE SEROTA: Very well. MR MOAT: Well, Your Honour, I hadn't taken express instructions on that. I mean, there have been lots of documents in this case, and I didn't feel that that was something ---- JUDGE SEROTA: Well, I don't want to make your already difficult job even more difficult. MR MOAT: Well, your Honour's not. But I'm not sure where we go from here. As I understand it, your Honour's hearing this case today and I was going to call my client next. JUDGE SEROTA: Well, I'm somewhat concerned to see that. I can assure you that I have not come to any conclusions about the matter, other than what I've said having read the papers. MR MOAT: Yes. JUDGE SEROTA: And I have an open mind in relation to dispute issues of fact. MR MOAT: Yes. But, your Honour, if I am to put the question to my client, I will do that. JUDGE SEROTA: Well, it's a matter for you. I am just somewhat surprised to see that. MR MOAT: Yes. JUDGE SEROTA: Anyway, I'm in your hands, Mr Moat. If you want to call your client. MR MOAT: I do. May I call her now, your Honour? JUDGE SEROTA: Yes, certainly."
And Mrs M was duly called.[25]We have I think to consider the allegation of bias in the round. As I indicated, if one looks at the hearing of 12th March one raises a number of question marks, irrespective of how inappropriately the mother's case had been put on paper. But in my judgment if an appeal is to be allowed and an order set aside and a retrial directed on an allegation that the judge was biased, certain precautions are undoubtedly necessary and would have been appropriate.[26]In my judgment what should have happened, if the mother was to raise the allegation of bias, was that the solicitors should have applied to the judge, at or shortly after the hearing on 14th March, and invited the judge to recuse himself on the basis that he had expressed views indicative to the mother that he had prejudged the issue and had already made up his mind. The judge could then have considered the matter and may well have recused himself. That was not done, and I appreciate that to some extent it is a counsel of perfection. But nonetheless a suggestion of bias against a judge is a very serious matter. If, as I say, a judge is to be invited to recuse himself, he should be given a proper opportunity to consider his conduct and make a decision about whether or not his position has been compromised.[27]But what is ultimately fatal to Mr Moat's argument on this point is what happened at the trial itself. Because although the matter arose -- not because of what happened on 12th March, Mr Moat was not there on 12th March and so had no knowledge of what happened on 12th March -- but because an allegation of bias had emerged from the papers, the judge took the opportunity to raise the matter and put the point fair and square to Mr Moat. Mr Moat, as the judge pointed out, had a difficult application to conduct and obviously, as the judge says, conducted it with great skill and with great care. Nothing I am about to say is remotely critical of Mr Moat, who was faced on his feet with a direct question from the judge, knowing that he was on the first day of a two-day hearing with his client very anxious to get into the witness box to explain to the judge why she was correct. But what happens before the judge at that hearing is that the judge puts the point fair and square to Mr Moat, Mr Moat does not have instructions which enable him to say "Yes, your Honour, we are inviting you to recuse yourself", and the judge then goes on to say -- and this I regard as of particular importance -- and it is the judge perhaps recognising that the allegation has been made and perhaps casting his mind back to 12th March (although that is entirely speculation), but the judge does say in terms:
"... I have not come to any conclusions about the matter, other than what I've said having read the papers. ... And I have an open mind in relation to the dispute issues of fact."
[28]That express declaration of his position on the transcript seems to me one on which this court is entitled to rely. Indeed, Mr Moat makes no criticism of the manner in which the judge conducted the trial. Both parties were given a full opportunity to give evidence and were cross-examined.[29]Mr Moat does at this point throw in the question of the CAFCASS report, because the judge does make the comment that it will be difficult if not impossible for him to vary residence without a CAFCASS report, and Mr Moat is critical of the judge for not ordering such a report or adjourning for such a report to be obtained. Of course on the first morning of a two-day hearing any application of that nature requires an adjournment of some length. The previous CAFCASS officer had retired. There had been an application in June for a CAFCASS report which had been refused, and we do not have the judge's reasons for refusing it. But equally, speaking for myself, I think the judge was entitled to refuse to make a direction for a further CAFCASS report because of the way the matter was being put to him. Of course there will have been some changes by the time it got to July. There were some changes in the parties' respective positions. Mr M had got a job which involved him going to Sweden two or three days a week, and Mrs M was pregnant by a man whose identity she declined to relate. But there were changes. Therefore there were things for the CAFCASS officer to investigate.[30]But essentially in the judge's mind, and rightly in my view in the judge's mind, this case turned on the personalities of the two parents and their attitudes to each other and their attitudes to their son. Those were all matters absolutely and exclusively within the province of the judge. In so far as there was any deficiency in the investigation, Mr M's partner was made available to give evidence and to be cross-examined. As I say, the parties were examined and cross-examined on the day-to-day arrangements they were proposing -- of course in Mr M's case were actually putting in place -- for the little boy.[31]So in my judgment it was not a prerequisite of this hearing that the judge should have a CAFCASS report. That apart, and the bias issue apart, it seems to me that if one was looking at this case without those issues, objectively, it would be very difficult to see on what basis the judge could properly vary the order he had made only a few months before. The evidence was that J was thriving in Wales. He had been at nursery and was shortly going to school. The father had plainly made appropriate arrangements for his care during his absences abroad. He was continuing to have contact with his mother; and the mother's attitude, by correspondence and by her evidence, had not changed -- if anything it had deepened and hardened. So there was, objectively, a very powerful case for leaving J where he was and dismissing the mother's application in any event.[32]If Mr Moat's application is to succeed, it would of course require a retrial. One has to look at that I think proportionately. The costs of this case and the stress of it to the parties are both extensive. The father is not publicly funded and the merits, as one looks at them objectively, are strongly in favour of the status quo.[33]So had it not been for the bias point I do not think this application for permission to displace Judge Serota's orders would stand any reasonable prospect of success. I have come to the conclusion that the allegations of bias are not sufficiently arguable on the facts of this case to enable an application for permission to appeal to succeed. In my judgment the judge has covered the position in the hearing. In any event. He should have been given a proper opportunity to consider the matter at an earlier stage, if the point was to be taken. The CAFCASS point, as I have indicated, was well within his discretion. In those circumstances, as far as the residence order is concerned, I would, speaking for myself, refuse permission to appeal.[34]This leaves the section 91(14) order. Here I immediately recognise that the judge, again, has a very wide discretion. But at the same time section 91(14) is a powerful order and there is abundant authority that it should be used only with care. Mr Moat makes the point, of course, that the judge had already made up his mind to make such an order because he refers to it specifically in the hearing in March, and therefore it was inappropriate. Mr Moat also argues that there had not been frequent abusive applications. This was only the second application, in terms of substance. The first application before Judge Tyrer had been a perfectly proper interim hearing. No criticism can be made of that. The first hearing before the judge which was the subject of variation had once again been a perfectly legitimate exercise in both parties seeking residence, and this was the first application which could possibly be said to have been remotely inappropriate, although Mr Moat of course submits that it is not.[35]Therefore, it is not, Mr Moat submits, a case for section 91(14) at all, and above all it is not a case for an order to be made without limit of time and, Mr Moat says, not an order to be made reserving the matter to the judge himself, because, Mr Moat argues, Mrs M immediately will feel that not only is the judge against her and (whatever this court says of the matter) predisposed against her, but that she will therefore have no prospect whatsoever of seeking to reopen the matter if she has to make an application before Judge Serota.[36]The leading case on section 91(14) is, of course, Re P (Section 91(14) Guidelines)(Residence and Religious Heritage) [1999] 2 FLR 573 CA. Butler-Sloss LJ (as she then was) gives a very careful analysis of the authorities. She reminds practitioners and judges that one must always start with the words of the section itself, which are:
"On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court."
[37]Mr Moat relies on the words of that section because he says that in March Judge Serota was fully aware that he could not make an order under section 91(14) because he was not disposing of the application, but had already made up his mind to make one when he came to the hearing in late June, early July.[38]Given the breadth of the discretion open to the judge, I have come to the conclusion that the judge was entitled, on the facts of this case and given the manner in which the mother had conducted the hearing before him in terms of the allegations raised against the father, to come to the view that J required a period of stability and peace from litigation, and not to be the subject of a further application for residence by his mother in the foreseeable future. What troubles me about the judge's order is that it was made without limitation of time. I have come to the conclusion that despite the allegations of bias, which we have effectively rejected, it was open to the judge to reserve the matter to himself. One has to remember, I think, that Circuit Judges on the ground are dealing with these cases day in day out. Judge Serota had a detailed knowledge of the case which this court, even with its pre-reading and argument from counsel, does not have. Therefore the discretion on the ground to make orders of this nature is very wide, provided the circumstances warrant them. In my judgment, the circumstances here did warrant a limitation on the mother's right to apply unrestrictedly to the court for section 8 orders.[39]I am confident, having seen what the judge said at the final hearing, that if this mother makes a genuine application on appropriate grounds for a variation of any part of the order (it may, for example, be contact) and if there are proper grounds for that to be litigated, the judge will allow it to go through. Section 91(14) is a filter, it is not an absolute prohibition. I am confident that Judge Serota will approach the matter objectively and fairly. What, however, does concern me is that it is without duration of time, as I have said. It is plain from the list of guidelines given by Butler-Sloss LJ in Re P that the restriction may be imposed without limitation of time. But there is clear authority for the proposition that such a limitation, or absence of limitation, in time, if it is to have no time limit, must be proportionate. Speaking for myself, the point which troubles me is that I do not think an indefinite restriction is proportionate.[40]In these circumstances, it seems to us that, rather than go back to the judge and invite the judge to consider an appropriate period, it would be sensible for this court to impose its own temporal limitation. Although of course I accept that we are exercising a discretion normally exercised by the judge, I would, looking at J's position, think that it would be sensible for him to be protected by section 91(14) from any further section 8 applications by his mother for a period of three years. That does not mean either that there will automatically have to be a hearing at the end of three years or that there should be no hearings within the three-year period. But Mrs M must appreciate that J, having now been the subject of three hearings as to residence, with two hearings which have determined his residence with his father, needs time to settle down, free from the prospect of any further litigation about his residence. The parties should, if they humanly can, concentrate on ensuring that contact works smoothly and well. I was very reassured, speaking for myself, to hear Miss Bhatia say that when J's maternal grandmother came over from Serbia, the father was happy to and did facilitate contact. That is precisely the sort of thing that should be happening. This little boy has a dual heritage and needs to grow up into it. But he will grow up into it the better if his arrangements are regulated by his parents in civilised dialogue, rather than by further applications to the court.[41]So in my view, as I say, the judge was entitled to make a section 91(14) order and entitled to reserve the matter to himself, but should not have made it open-ended. I would therefore, speaking for myself, whilst refusing permission in relation to the residence order, I would grant permission in relation to the section 91(14) order and allow the appeal to the limited extent of imposing a three-year moratorium on further applications by Mrs M.

LORD JUSTICE LLOYD: I agree. As regards the residence order, Mr Moat put the mother's case extremely eloquently and moderately and he has, as my Lord has said, material on which to base his proposition that there was at least a perception of bias derived from what the judge said, particularly on 14th March. I think what was said on that occasion is to be understood in the context of the unfortunate circumstances of the hearing and, of course, of what Mrs M had committed to writing in advance of the hearing. But, as my Lord says, if there was to be a challenge to the judge's perceived impartiality in hearing the matter, it should have been raised either then or at some point before 30th June. The judge raised the point himself on 30th June. Mr Moat had the disadvantage of not being aware in detail of what had gone on on 14th March. Clearly his instructions, which no doubt were extremely full on the matters that were directly relevant to the substantive hearing, had not gone to the point of saying that the mother felt that the judge had prejudged the case already.

[43]I agree with my Lord that the fact that the point about bias was not taken earlier and was not taken up on 30th June, when the judge raised it himself, is fatal to a challenge by way of appeal. I would also agree with my Lord as to the lack of prospect of success in relation to the point about the absence of a CAFCASS report. The position in that respect seems to be a little unclear and puzzling, because in the transcript of 30th June the judge refers to the hearing that had taken place a couple of weeks earlier at page 87 of the bundle, and says there that he indicated on the earlier hearing that he would deal with the application at the trial. But it seems to me, as to my Lord, that this was not, perhaps unusually, a case which did depend on a further CAFCASS report, inasmuch as the original application was put on grounds that had nothing to do with changes of circumstances and which really attacked the basis of the judge's 2004 judgment. As reformulated deftly by Mr Moat with the benefit of his mature consideration of the matter, it was put on the basis of very late changes of circumstance, as to which the judge, it seems to me, took the reasonable view that that could be dealt with by evidence from the parties.[44]I would therefore agree that permission to appeal should be refused on the residence order.[45]So far as section 91(14) is concerned, again I would agree with my Lord that in this respect permission to appeal should be granted and the order should be varied, but only to the extent of imposing a three-year time limit, which, for my part, I would say should run from today.[46]I can understand why Mr Moat makes the submission that the judge ought not to have reserved applications to himself. In passing, I note that according to the transcript he said he reserved applications to himself if available (that is to say, if sitting at Milton Keynes) because this particular judge also spends part of his time sitting in the Employment Appeal Tribunal. The order does not seem to reflect the words "if available" and ought to be corrected to do so. But on the substantive point, I can understand why Mr Moat should say that it was inappropriate for him to reserve it to himself because of the perceived bias point.[47]But so far as that is concerned, it seems to me that there is, in many cases, a great deal to be said in the exercise of this statutory power, as there is in related jurisdictions (for example, that concerning civil restraint orders), for the judge who has had experience of a case to be the person who, if available, will consider applications of this kind.[48]Like my Lord, I am entirely confident that Judge Serota, with his experience of the case and no doubt with the benefit of seeing what has been said to this court and what we have said in giving judgment on these appeals, will consider openly and objectively any application that is made pursuant to section 91(14) on the part of the mother, to see whether it has such merits that the application ought to be allowed to be made.[49]I agree, therefore, that it was well within the judge's discretion to make such an order, that it was a proper exercise of his discretion to reserve applications to himself, but I would agree with my Lord that, given that J is only some 4½ years old, it is disproportionate to impose the restriction in effect for the rest of the period within which he is amenable to the jurisdiction under section 8, and that it would be appropriate to vary the order only to the extent of limiting it so that it will expire in three years' time.

ORDER

Application for permission to appeal refused permission in relation to the residence order; application for permission to appeal granted in relation to the section 91(14) order and the appeal allowed to the limited extent of imposing a three-year moratorium on further section 8 applications by the mother, such time limit to run from 6th December 2005; no order for costs save for detailed assessment of the applicant mother's public funding certificate. (Order not part of approved judgment)