W (Children) [2007] EWCA Civ 786

[2007] EWCA Civ 786Case No B4/2007/0682
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HHJ McFarlane on 7th March 2007
High Court Family Division (PRFD)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/07/2007
Before
LORD JUSTICE WALLMR JUSTICE BENNETT
W (Children)
GW (The Father) Litigant in Person- - for in person
Hearing Hearing date : 6th July 2007
JudgmentLord Justice Wall :Introduction
[1]This is the judgment of the court and thus represents the joint view of both its members. Although it is a public document and is being handed down in open court, the applications with which it deals relate to a case which is active, and which concerns two children. We have, therefore, decided to write this judgment anonymously in order to protect their identities. It follows that nothing must be published which would have the effect of identifying the children concerned.[2]The two children are W, a boy, born on 4 March 2002 and L, a girl, born on 11 July 2003. Their father, whom we shall call GW, made two applications to us on 6 July 2007. Both relate to an order made by McFarlane J on 7 March 2007 at the conclusion of a three day hearing of private law family proceedings relating to the two children between GW and his former wife, the mother of the two children, whom we will call “PB”. The first application was for permission to appeal against the[3]As Wall LJ stated in Re Bradford; Re O’Connell[2006] EWCA Civ 1199, [2007] 1 FLR 530,without notice oral applications for permission to appeal made by litigants in person are not the stuff of which reserved judgments, law reports or publicity in the media are made. In the instant applications, however, GW’s case before us was not merely that was he the victim of serious injustice brought about by the conduct of PB - in particular by her alleged perjury and deliberately flouting of court orders - but that the court itself, by ruling against GW and his parents, had, in GW’s words, committed “unlawful, inhumane perverse state-sanctioned child abuse”. Such allegations are extremely serious, and go to the root of family justice. We decided, accordingly, that we needed to examine them in detail, to see if they had any foundation.[4]The family justice system is frequently, and in our view quite unfairly, accused of administering “secret justice”. In the instant case, as is customary, the hearing before McFarlane J took place in private, and the judgment in respect of which GW seeks permission to appeal was also given in private. The reason hearings relating to children take place in private is, of course, to protect the privacy of the children and their families. However, the fact that such hearings are held in private, and the fact that judgments at their conclusion are also given in private are both capable of being misunderstood. We have, accordingly, decided that in this case as much as possible of what has occurred should be made public.[5]We are confident that McFarlane J would agree with us that this case raises no particular point of law or practice which would warrant its inclusion in the specialist family law reports. At the same time, however, it throws up the sort of issues which the family justice system has to address day in and day out in courts at different levels up and down the country. In our judgment, therefore, when the outcome of such a case is criticised as being both unlawful and corrupt, the opportunity arises for this court to examine it in public and to decide whether or not there is any substance in GW’s attack upon it.[6]On 6 July 2007, we were, of course, sitting in open court, and it would have been possible for us to have given short, extempore judgments dealing with GW’s applications. There is, however, a substantial amount of reading in this case. As is customary, one half hour was allowed for each of GW’s two applications. The court had not had the time fully to pre-read all the documents. Accordingly, we informed GW at the outset of the hearing that he could address us for an hour, and that at the conclusion of his argument, we would reserve judgment, both so that we could consider what he had had to say at better leisure, and also so that we could complete our reading of the documents.[7]Having done so, we have been confirmed in our view that the case – whilst existing, of course, in its unique factual matrix – does indeed throw up many of the features which the family justice system has to address on a regular basis. Thus although GW’s principal argument on his first application for permission to appeal is effectively limited to his assertion that the hearing before McFarlane J was unfair and in breach of GW’s rights under article 6 of the European Convention on Human Rights (ECHR) we have decided to address a number of the other issues he has raised.[8]We do so primarily for the two reasons we explained to GW. However, as will be already apparent, there is a further reason for reserving judgment. It is so that our decision can be given publicly in writing, and thus be available to any member of the public who chooses to read it. The public will thus be able to decide for themselves whether or not GW is a genuine victim of “state-sanctioned child abuse” or whether, as the judge found, the fault lay with GW himself.[9]In summary, therefore, this is one of those cases in which a parent – in this case, a father - claims that the reasons he is not having contact with his children are a combination of maternal deceit, the deliberate alienation of the children from him by their mother, and a gullible and corrupt family justice system which has dishonestly and deliberately taken the mother’s part. The result, GW argues, is an unlawful denial of his application for the shared residence of his children between himself and their mother, and an attempt by both the children’s mother and the family justice system to write him out of the children’s lives.[10]The obverse side of that coin is the finding by the judge that the reason GW is not seeing his children is entirely attributable to his own behaviour; that this is not a case of parental alienation; that the mother remains anxious that the children should have a relationship with their father; and that the system has been neither corrupt nor gullible. To the contrary, this argument runs, the system has attempted to accommodate the father. It has made an order for contact in his favour which he refuses to take up. Supervised contact is necessary because the father’s hatred of the mother is such that he cannot be trusted not to express it to the children. In short, as the judge found, the father is the sole author of his own misfortune and that the court, anxious to further the best interests of his two children, has been frustrated at every turn by his irrational behaviour.[11]These are the rival propositions which we have to examine. The way we propose to do it is as follows. We will firstly set out the order made by the judge. We will then explain the role and powers of this court when hearing applications for permission to appeal. We will then go through the judge’s judgment, setting out his findings in some detail, and giving extensive citations from it. We will then examine the merits of GW’s application for permission to appeal. We will then examine other aspects of GW’s conduct, and conclude with our view on his application to adduce fresh evidence.

The order made by the judge on 7 March 2007

[12]The order made by McFarlane J was in the following terms: - 1. The applicant father’s and applicants paternal grandparents’ applications for residence, share residence and prohibited steps order do stand dismissed. 2. There be supervised contact between the children, W and L and the applicant father at (named) Contact Centre or at such other contact centre as may be nominated by the children’s guardian, to take place once every fortnight for 2 hours. The paternal grandparents shall be at liberty to attend one of these contact sessions every 4 weeks. Contact is to start after there has been a meeting between the guardian and each of the parents. 3. The cost of the contact centre are considered to be a proper and reasonable disbursement to be borne by the children’s public funding certificates. 4. There be a hearing to review the progress of contact on 13th July 2007 with a time estimate of 2 hours, reserved to McFarlane J., at which hearing consideration will be given to whether a final order should be made. 5. Leave is given to the children’s Solicitor to disclose the following documents to the contact centre provided for in paragraph 2:(a) the judgment on Her Honour Judge Hallon dated 27 October 2004;(b) the report of Dr B (an adult consultant psychiatrist)(c) the report of Dr A (also an adult consultant psychiatrist)(d) the guardian’s report of 26 February 2007;(e) judgment of McFarlane J dated 7 March 2007;(f) the orders made on 7 March 2007. 6. The address of the respondent mother and the children be kept confidential to the court and the guardian until further order and the mother and guardian have leave to omit the mother’s address from any subsequent documents filed within these proceedings. The mother also has permission to withhold the details of the children’s general practitioner. 7. The Tipstaff do release the children and mother’s passports to the respondent mother. 8. The children’s guardian do file and serve an updating report on contact by 4.00 pm on Friday 29 June 2007. 9. The applicant father and applicant paternal grandparents are prohibited from making any section 8 applications concerning W and L without the leave of the Court, pursuant to s.91 (14) of the Children Act 1989 until 7 March .2009. Any such application for leave is to be considered by McFarlane J if available. 10. In the event that the applicant father agrees, there be a psychiatric assessment of both parents (the respondent mother having indicated her agreement to this assessment). The psychiatrist is to be nominated by the guardian and costs of any assessment to be borne by the children’s public funding certificates, the court considering such an assessment to be a necessary and proportionate disbursement. 11. There be a transcript of today’s judgment prepared urgently at public expense. 12. The applicant father’s application for the respondent mother’s committal to prison does stand adjourned generally, with liberty to restore. If the application has not been restored for hearing by 30th June 2007 it is to stand dismissed. 13. No order for costs save that there be a detailed assessment of the respondent mother and children’s publicly funded costs.

The role and powers of the Court of Appeal in cases relating to children

[13]As will be apparent from a simple reading of the order, there is a substantial history to this case. However, before examining it, we propose to explain to GW (and to other applicants who, like him, appear in this court as litigants in person) the limited role which this court has to play in applications for permission to appeal against orders for residence and contact made under Part II of the Children Act 1989 in proceedings between the children’s parents or other family members.[14]Many applicants for permission to appeal come to this court in the belief that it has much wider powers than it actually enjoys. GW is no exception. At many places in the documentation before us, GW repeats the relief which he seeks. He says:- The way forward –Shared Residence W (children) The court is invited to  grant FATHER permission to appeal against the orders of 7th March 2007  set aside Mr. Justice McFarlane’s unlawful orders and erred judgment of 7 / 03/ 07  set aside Mother’s resident unlawful order of HHJ Hallon of 27 October 2004  grant W (Children) SHARED Residence Order to both parents[15]GW continues: - I (GW) respectfully remind the honourable Court of Appeal of LJ WARD finding “as I listen to Mr W, that there may have been a Serious injustice done is this case,Both regard to the making of the section 91(14) order [HHJ Hamilton QC, 01/02/2005] and the Contact Order (Mothers W (Children) (Residence) Ordered by [HHJ Hallon on 27/10/2004]. I respectfully ask the honourable Court of Appeal to revoke, set side the respondent Mothers section 8 residence order of 27th October 2004 and to grant both parents a JOINT SHARED RESIDENCE ORDER and restore my children W & L lives, back in their devoted Father and Paternal Grandparents life and restore our family home life.[16]These extracts demonstrate that GW, in common with many other litigants in person, appears to think that this court has powers on an application for permission to appeal which it simply does not have. The only matter for this court on GW’s application for permission to appeal against the order made by McFarlane J on 7 March 2007 is whether or not GW has an arguable case, fit to present to the full court on appeal, that McFarlane J’s order was plainly wrong. We simply do not have the jurisdiction to deal with the remaining three matters he identifies.[17]The phrase “plainly wrong” derives from the speech of Lord Fraser of Tullybelton in the decision of the House of Lords in G v G [1985] 1 WLR 647. Although the case is well known to lawyers, it does not appear to so well known to litigants in person, even those with a knowledge of the English and European jurisprudence such as GW displays. The relevant part of the headnote to that case reads as follows:- ….. an appellate court reviewing the decision of a judge in the exercise of his discretion relating to the custody and welfare of children, was bound by the principle applicable to any appeal from the exercise of a judicial discretion, namely that before it could intervene, it had to be satisfied, not merely that the judge had made a decision with which the court might reasonably disagree, but that his decision was so plainly wrong that the only legitimate conclusion was that he had erred in the exercise of his discretion; and that, accordingly, the Court of Appeal had applied the correct principle in declining to interfere with the decision of the judge who had heard the witnesses and considered all the evidence.[18]G v G was, of course, decided before the passing of the Children Act 1989, and the Human Rights Act 1998. It was also passed at a time when litigants did not need permission in order to appeal to this court in cases relating to children. There is, however, no doubt that it remains the law, and has frequently been cited. As a decision of the House of Lords, it is binding on us.[19]It is plain from the documents he has supplied that GW has access to the Law Reports, and we will, therefore, only give one short extract from the case in which Lord Fraser, [1985] 1 WLE 647 at page 651 cited and approved the following extract from a judgment, equally well known to lawyers, namely that of Cumming-Bruce LJ in the case of Clarke-Hunt v Newcombe (1982) 4 FLR 482. In that case, Cumming-Bruce LJ compared the functions of the judge at first instance with the judge in the Court of Appeal. This is part of what he said:- Whether I would have decided it the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer? I emphasise the word “plainly“. In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong.[20]GW, therefore, and others in his position must understand that our function in the present case is very limited indeed. Our task is to review the decision made by McFarlane J on 7 March 2007. We have to put to ourselves the proposition set out in the second sentence of paragraph 16 above. That question itself can be broken down to the following;(1) Did the judge arguably make any error of law in reaching his conclusion?(2) Was there, arguably, insufficient material on which the judge could properly make the findings of fact and the assessments of the witness which he did make?(3) Is it arguable that the order he made was not properly open to him in the exercise of his judicial discretion?(4) Is there, arguably, any error in the exercise of that discretion which enables us to say that his order was, arguably, plainly wrong?[21]It is only if the answer to any one of these questions is “yes” that we can give GW permission to appeal. We are thus considering only the first of the four points identified by GW as set out in paragraph 14 above. We stress that this is not a matter of choice. The Court of Appeal, as GW himself points out in the papers presented to us, is a court created by Parliament, and governed by Act of Parliament, currently the Supreme Court Act 1981. Under that Act and the Civil Procedure Rules 1998, the only points we have jurisdiction to consider are whether or not GW should be granted permission to appeal against McFarlane J’s order of 7 March 2007, and whether, in so doing, he should be permitted to adduce fresh evidence.[22]GW (and others in his position) must also understand that because the only order which we can consider is that made by McFarlane J on 7 March 2007, we cannot go behind any of the earlier orders made in this case. We do not propose to identify each and every order made. It is sufficient for this purposes if we simply record that some have not been appealed; in relation to others permission to appeal has been refused. In two instances, to which we shall come, permission to appeal was granted and GW’s appeals allowed.[23]We will, accordingly, need to look carefully at the effect of those grants of permission and the subsequent orders made by this court.[24]This is of particular importance in the present case, because - as this judgment will make clear - GW has throughout submitted, both in the papers and in oral argument before us on 6 July 2007, that the question of his contact with the children was finally determined by an order made in this court on 13 September 2005 by Ward. Rix and Moore-Bick LJJ. All subsequent orders, he argues, are, as a consequence, invalid. McFarlane J did not agree with that analysis. He attempted to explain in his judgment that GW was simply wrong in taking that view. We will, accordingly, need to decide whether or not it is arguable that the judge fell into error in this respect.[25]Furthermore, as GW’s submission set out in paragraph 15 above shows, GW relies strongly on what Ward LJ said when hearing an application by GW for permission to appeal against an order made by HH Judge Hamilton on 1 February 2005. McFarlane J took the view that what Ward LJ said on that occasion had no relevance to his task in dealing with the applications before him. Once again, we shall have to decide whether or not it is arguable that the judge was in error in so concluding.

The judgment of McFarlane J given on 7 March 2007

[26]What follows is our summary of the judgment. As we have already indicated, it contains a substantial number of direct quotations of what the judge said. We recognise, however, that citations, however, carefully chosen, remain citations, and that the objective reader may well wish to read the whole judgment in order to form his or her own opinion of it. We have, accordingly, invited the judge to place an anonymised transcript of the judgment on the British and Irish Legal Library Institute website (www.Bailii.org) so that it can be read in full by anybody who wishes to do so. The neutral citation number is [2007] EWHC 649 (Fam) and the date of the judgment is, of course, 7 March 2007.[27]After two introductory paragraphs, the judge comments on the volume of the documentation in the case:- 3. The bundle of applications and orders takes up an entire loose leaf ring binder. The total number of pages in that binder is over 430 and, whilst there is some duplication, the scale of this litigation can perhaps be physically measured by that reference. Equally, there is a separate equally full ring binder of transcripts of judgments that have been given on earlier occasions. It is not necessary for this court slavishly to rehearse the litigation history, but it is appropriate for me to indicate, first of all, that the keystone judgment in this structure of judicial intervention is the judgment of HHJ Hallon, given on 22nd October 2004 in the Bromley County Court. I will turn to that judgment in a moment, but since that judgment, which made a residence order at its conclusion in favour of the mother and set up a programme of supervised contact for the father, there has been litigation. There have been, I am told, 11 appeals against various orders since that order was made, and there have been some eight or more applications made by the father for orders under s.8 of the Children Act.

The judge then identifies the issues which are before him:

[28]- 4. The proceedings that are currently before this court are for the following orders. First of all, an application by the father made on 28th July 2006 together with his parents for a shared residence order sharing residence between the mother and the father. That application also included applications for contact and a prohibited steps order. The grandparents themselves then applied for residence orders on 9th January and the father applied again in January for a committal order alleging that the mother was in contempt of court because she had moved her address without informing him of that move. Fourthly, there is an application by the mother for a direction that she be entitled to maintain her current address as confidential in the sense that it should not be disclosed to the father. There is already an interim order made by Black J. to that effect which is to be reviewed in this hearing. Fifthly, the mother applies for an order under s.91(14) of the Children Act. On paper it is an application to restrict simply the father, but orally that is extended now to include the grandparents, from making any further applications under the Children Act in relation to these children. Next, there is an application by (GW) to re-open the ancillary relief proceedings which have been adjourned generally following the couple’s divorce. The final application relates to a further direction sought by the mother that the children’s passports, which are currently held by the Tipstaff, should be released to her.[29]The judge then spends some time examining the judgment of Her Honour Judge Hallon on 27 October 2004. He makes it clear that it is not his function to reopen any of Judge Hallon’s findings. The question for him is whether or not there has been any substantive change in circumstances since Judge Hallon’s order.[30]McFarlane J records Judge Hallon’s summary of GW’s case in the following way:- The father’s case in relation to residence and contact is that he says that he is the perfect parent and it is his right to be involved in the children’s upbringing. He said the children are at risk in the mother’s care, although the nature of that risk has not been formulated. He says the mother has conspired maliciously with various people to engineer his removal from the home and his wrongful detention under the Mental Health Act. The grandparents’ case in relation to contact is that they just want to see their much loved grandchildren and they feel strongly that the mother has not been acting in the children’s best interests.[31]McFarlane J then records that, prior to the hearing before HH Judge Hallon, there had been a number of directions relating to the provision of psychiatric evidence in relation to GW. He records Judge Hallon’s finding that that GW instructed Dr. B without the PB’s agreement, but that PB had accepted Dr B as a suitable expert. As it turned out, Dr. B took the view that GW was suffering from a paranoid personality disorder. GW thereupon repudiated Dr. B’s report and accused him of bias, prejudice and of conspiring with PB’s solicitors. He then sought a second opinion. There was, therefore, also before Judge Hallon a recently obtained report from a locum consultant psychiatrist, Dr A. Judge Hallon had heard evidence from both. Her conclusion, as recorded by McFarlane J was in the following terms:- 13. The learned judge, having rehearsed the evidence at some length, indicated that she found Dr. B to be an impressive witness and, where he differed from Dr. A in relation to these matters, she plainly preferred his evidence. She quoted a number of examples given by Dr. B which demonstrated, he said, the various categories or characteristics that I have already listed. Then just before the end of para.39 on p.161 she says this:
“My conclusion, having read and heard all of the medical evidence, is that Dr. B has investigated and considered the problem very thoroughly and has reached a balanced decision. In other words, it is his conclusion and his opinion which I prefer. In other words, I accept the father is suffering from paranoid personality disorder but that does not mean that he should play no part in the children’s lives. What it does mean is that there need to be safeguards and concerns for the views generally expressed that the mental state may deteriorate if not treated.”
[32]Having recorded Dr. B’s opinion that the paternal grandparents were to be classed as involved in the equivalent of a “folie a trios” in the extent to which they embraced GW’s delusional beliefs, McFarlane J summarised HH Judge Hallon’s conclusions in the following way:- 17 Drawing those various findings, and indeed others which I have not quoted, together, the learned judge concluded that the only possible way forward was for there to be supervised contact and at that stage, as I have already indicated, the plan was for the supervised contact venue to be the TCF premises here in London. Thus the order was made in those terms.[33]McFarlane J then proceeds to describe the inter-related applications which GW made both to this court, and to Judge Hamilton, sitting at first instance. 18 Following that order, the father appealed promptly to the Court of Appeal and made two fresh applications for unsupervised contact in December and January. Those two latter applications came on for hearing before a different circuit judge prior to the matter being dealt with in the Court of Appeal. HHJ Hamilton by that stage had information that the TCF did not feel able to put themselves forward as supervisors for contact because of reasons connected with the father. The judge therefore, knowing that the father had applied twice for s.8 orders since Judge Hallon’s order, made a s.91(14) order against the father and dismissed his applications for contact. 19 Two days later, on 3rd February 2005, the matter came before the Court of Appeal on a leave to appeal application and was heard by the single judge, Scott Baker LJ. The application was for permission to appeal the judgment and decision of Judge Hallon to which I have already made extensive reference. Scott Baker LJ at para.1 indicates that the father appeared before him in person and says this:
“It is his case that he has suffered an horrendous injustice and he is desperately trying now to obtain justice, that the state has assisted his wife in achieving her aims with regard to the termination of their relationship and the relationship between the father and his two children.”
Later the judge indicates that the real complaint that the father had was that the hearing was not a fair hearing before an impartial and independent tribunal. 20 At para.13 of the judgment Scott Baker LJ says this:
“The fundamental point of this application relates to what the father says was not a fair hearing before an independent and impartial tribunal. The father goes into some detail into the basis of his complaint both in his grounds of appeal and in his skeleton. He asserts that because Judge Hallon had already had dealings with his case she was in no position to give him a fair hearing on 22nd October. He also contends that she got the case hopelessly wrong, that she should not have believed the mother and that she should not have accepted the medical evidence from Dr. B about his psychiatric state.”
The Lord Justice understandably had no trouble in holding that the fact that the same judge dealt with the case was not a matter of complaint. 21 At para.15 he says this:
“This is a distressing case. It is always sad when relationships break up, and of course the children’s welfare is the first and paramount consideration. It very much looks as if the father’s erratic and irrational behaviour has been caused as a result of his mental condition. This in all probability is no fault of his, but at the end of the day the judge had to consider the interests of the children. It is only the order of 22nd October against which permission to appeal is sought. All the earlier orders stand unchallenged, with the findings of fact that the court made on each occasion, in particular the earlier findings of Judge Hallon on 8th October. I cannot find a shred of evidence to support the contention that the father did not have a fair hearing before an impartial and independent tribunal. Judge Hallon plainly went into this distressing case with the greatest care and consideration. A good deal turns on the fact that she accepted Dr. B’s evidence. She had the benefit of hearing all the witnesses. I have carefully read the report of Dr. B and it is plain that Dr. B went into the background of this case and to the father’s history with a good deal of care. I am very sympathetic to the father’s position and also to that of his parents, who have been dragged into this distressing situation through no fault of theirs.”
Scott Baker LJ held that there was no possibility of the father persuading the court that he had a real prospect of success on the appeal, and so permission to appeal was refused.[34]So, GW’s application for permission to appeal against Judge Hallon’s order was refused. That, in legal terms, means that Judge Hallon had not made any error of law and that the decision which she had made in the exercise of her discretion was and remains incapable of challenge.[35]As McFarlane J records, however, the progress of applications before the Court of Appeal did not end with Scott Baker LJ’s dismissal of GW’s application for permission to appeal against Judge Hallon’s order. GW sought permission to appeal against the order made by Judge Hamilton on 1 February 2005. The judge, it will be recalled, had dismissed GW’s application for contact and had made an order under section 91(14) of the Children Act 1989, preventing GW until further order – that is indefinitely – from making any further application.[36]Here, in our judgment, GW was on firmer ground. Dismissing a parent’s application for contact is always a matter of last resort, and there is abundant authority for the proposition that a section 91(14) order should not be of indefinite duration. GW’s application came before Ward LJ sitting alone on 1 June 2005. In a nutshell, as McFarlane J records, Ward LJ took the view that Judge Hamilton’s order had been premature, and that the question of whether supervised contact at another agency might be pursued needed to come back before the court.[37]McFarlane J records what Ward LJ said on that occasion in the following terms: - 23 At (paragraph .12 of his judgment) Ward LJ says this, and it is important to stress this paragraph because this is the one and only quote that the father can rely upon in terms of any suggestion that there has been a serious injustice done at all during any of these proceedings. It is a quote to which, in isolation, he refers to often. Ward LJ says this:
“But I have become aware, as I listened to Mr. W, that there may have been a serious injustice done in this case both with regard to the making of the s.91(14) order and the contact order (our emphasis). Firstly, my concern is this. Dealing with the contact applications, I am not at all satisfied that Judge Hamilton dealt with this properly. If, on her own judgment, it was premature to return to the Bromley County Court to seek contact orders before this court had dealt with the application for appeal that was to be heard by Scott Baker LJ, then she should have adjourned the matter.”
He then, having indicated that that may be a technical point, turned to the point of substance and said this at para.13:
“I said then and I repeat that I am a little troubled that after TC had found supervision unsatisfactory, the case should be left hanging in the air without further consideration as to what should happen in the light of the rejection by them of the opportunity to supervise.”
Later:
“It seems to me Mr. W is perfectly entitled to approach Bromley County Court for further directions following TC’s assessment. That at least seems to me to be highly arguable as a matter which merited consideration on its merits. If not TC, was there anything else? If so, what? If so, who? If so, how? If nothing, then it ought to be dealt with by way of a separate consideration that the father is now to have no contact whatsoever. So I do not think at the moment it is clear enough to this court today that his case has been looked at on the merits.”
[38]So it was that GW’s application for permission to appeal against Judge Hamilton’s order came on for hearing before the full court on 13 September 2005, with the appeal to follow if permission was granted. As this is a hearing upon which GW relies heavily, it is, we think, necessary to set out in full how McFarlane J approached it. This is what he says: 24 That hearing came on on 13th September. However, by that time the mother had agreed to a referral to a second contact centre, the TCCC, and indeed three supervised contact sessions had taken place, the first being on 6th August 2005. So by the time the matter came on for hearing before Ward LJ, Rix LJ and Moore-Bick LJ, not only had supervised contact started but the mother was consenting to it continuing and therefore the appeal was effectively compromised by that measure of agreement. I have read the transcript of the Court of Appeal hearing which appears at part C of the bundle at p.240. That is an important document, as indeed is the order that flowed from that hearing. The importance of it is that time and again the father refers to the order made on 13th September 2005 by the Court of Appeal. The reason he does so is because at para.7 of that order, which is to be found at A290 of the bundle, the order says this: “The appellants [that is the father and the grandparents] shall have contact with the children at the TCCS or any other contact centre venue that the appellants and respondent may agree upon on such dates and such times as shall be agreed between them.” 25 The father relies upon that order of the Court of Appeal which says “The appellants shall have contact” as being, as it were, a trump card in any subsequent litigation. For example, he asserts that this court is still bound by that order some 18 months later. It is therefore important to look at the discussion in the Court of Appeal between counsel and the court that led up to the making of the order. I do not read out the transcript but the purport of it is that Miss Lucy Stone QC for the father indicated that there had been agreement, and at p.243 at letter D says that the supervising officer in charge of the centre has said that she is content that the children are at no risk in the centre and that she feels that supported, rather than supervised, contact is suitable. It was therefore on that basis that there would be contact at a contact centre, but at that stage that it would be supported rather than supervised, that the matter went forward. 26 The other point to be taken from the transcript of the Court of Appeal hearing is that it was very much a hearing looking to get the matter back before a first instance court, the High Court Family Division, for further directions at an early stage for the applications (which were by then to be reinvigorated by the setting aside of Judge Hamilton’s orders) to proceed on the merits before the first instance court, and there is discussion about whether there should be a one-day hearing fixed or an earlier one-hour directions hearing. Thus it is that the rest of the Court of Appeal order which was drafted by consent by the parties is to the effect that the matter should come before the High Court for an early hearing. 27 I am going to grasp the issue of the Court of Appeal order of September 2005 firmly at this stage. All that the Court of Appeal order does on its face and, having looked at the transcript of the hearing, was it intended to do, was to provide a bridging position until the matter could come back before the High Court. All that the Court of Appeal order provided for was for there to be contact at a contact centre, either the one named or another one agreed, and I stress “agreed”, between the parties at such times and dates as shall be agreed, and again I stress “agreed”, between them, to cover that bridging period. Thereafter, the Court of Appeal in accordance with its ordinary practice will have anticipated that the matter would proceed before the first instance court and that the detail of the interim contact order that they had made would, of course, be subject to change if necessary, week by week or month by month, by the first instance court. To hold otherwise would mean that any change would have to go back to the Court of Appeal and that they would be the court dealing with the first instance welfare issues from then on. For example, if the father had been awarded a residence order in due course, on his argument, the Court of Appeal would have had to sanction a departure from the order. Equally, if the contact was to move away from a contact centre altogether and simply be at his house, he would have to go to the Court of Appeal to get them to change the order would be required. As a matter of law, the father’s argument, based upon the Court of Appeal order still being in force requiring the mother to give him general “contact” at any time of his choosing is, with respect to him, a nonsense and cannot be sustained. It is regrettable that that matter has not been nipped in the bud before as an argument, because it has enabled the father throughout this hearing, and no doubt at every other opportunity, to brandish the Court of Appeal order as if it is some general authority for him to have contact to these two children, and to assert that whenever the mother refuses contact in accordance with his requests, she is in breach of the order. In parenthesis, of course she would not be, even on the terms of that order, because it requires her agreement as well as his to any proposed detailed contact arrangements.[39]Following this court’s order, the question of GW’s contact with the children came before the High Court once again. The first order was made by the late Bracewell J on 6 October 2005. That order, which McFarlane J noted was by consent, provided for supervised contact on the basis of fortnightly visits for a period increasing in duration to up to three hours, and the matter was to be re-listed for a review in December and a full one-day hearing in the early spring. McFarlane recorded what happened next :- 29 Unfortunately, the contact which had been continuing at the contact centre ended on 19th November 2005. At p.B740 of the bundle a report dated 22nd November from that agency raised a number of issues and suggested that the father should accept some counselling as to the most appropriate approach to contact and that the contact visits should be shortened to allow him to receive feedback and counselling from the workers at the end of each session. That letter which was sent to the father led swiftly to the contact centre withdrawing from further contact. They did so formally by a letter of 2nd December 2005 at p.B799A of the bundle. They indicated in that letter that they were withdrawing from further contact as a result of complaints that had been made by the father about the centre and which had been published generally, and in particular to various professional bodies. 30 The issue of contact therefore was reconsidered by the parties and a new contact centre, the F Centre, was chosen and contact was commenced there on 8th January 2006. In all, there were three visits there in January and February. 31 The matter came on for full hearing before Kirkwood J. on 17th February 2006. This was, as I read the papers, the hearing that the Court of Appeal had set up by the order that they had made. The judgment of Kirkwood J. is in the bundle at p.C270. In the course of his summary of matters, he referred to the very robust advice that the father had been given by Ward LJ in the course of the Court of Appeal hearing. It is plain that Kirkwood J. endorsed the advice that Ward LJ had given, which was for the father, in effect, to look to himself and see what help and assistance he might benefit from in order to allow matters to move on. With regret, Kirkwood J. noted at para.9 that the father had not taken the advice of Ward LJ and had not moved on. He particularly noted that the father seemingly had continued his campaign of “vitriol” in relation to the system, the state, the court, the professionals and the mother, and that this was, as the judge observed, very much the sort of material that Ward LJ had hoped would stop. 32 At para.9 Kirkwood J says this five lines down:
“So long as he carries on as he still does, he cannot, it seems to me, allay the fears that he may conduct himself in respect of the children in breach of court orders. In short and not mincing words, that he may take them from their mother’s care. The grandparents remain totally enmeshed with the father, at least the grandmother does.” 33 That being said, the learned judge at para.13 noted that the progress of contact, still in its early days, was good. At para.14 he says this: “I have reached the conclusion that the court would be greatly assisted by a psychiatric report of the type suggested this afternoon by [and he names the expert] which would address two things: One, the make-up of each parent in the context of establishing communication between them for the benefit of the children, and the other is an up-to-date assessment of the father’s own wellbeing and of any risk that he poses to the children of impulsive action of the kind I have referred to this afternoon.” 34 Having approached the matter in that way and looking to progress matters with a psychiatric referral of that sort, and also looking to find in due course an amelioration of the father’s approach, the learned judge felt it was not right to move to unsupervised contact at that hearing. He therefore made an order for the fortnightly supervised contact to continue and for the grandparents to have contact once a month by coming along to the contact session that the father would otherwise be having. 35 Again for the record, on 27th March the Court of Appeal, Ward LJ and Bennett J., allowed permission for the father to appeal an order of HHJ Hamilton of the previous October which had dealt with an injunction order. 36 The next significant event is the beginning of the breakdown of the father’s relationship with the F Centre. A letter was sent on 10th April 2006 by the centre, and it is to be found at p.788 of the bundle. In that letter, which is detailed, the centre set out some ten matters of concern about how the father had conducted himself at the various contact sessions, and balanced against that at p.790 they also record that the children appear to have enjoyed the contact that they had had with the father. The author of the letter, who is the managing director of the centre, then says this: “I would strongly suggest that you [that is the father] undergo a psychiatric assessment immediately. I am of the professional opinion that F Centre cannot offer you supported contact until a full and clear psychiatric assessment is conducted, which the F Centrewould wish to consider. The F Centre is prepared to offer supervised contact to ensure the continuing protection and supervision of the children whilst at the centre. This will of course be subject to your conduct at the centre. Any other action that we become aware of which in our professional view impacts directly on the children and is assessed not to be in the children’s best interest, will also be reviewed. “I would like you to consider this letter as an official warning.”
There was one further contact session on 16th April but the F Centre, in the light of the father’s reaction to their letter, withdrew from contact on 24th April. 37 I pause there to note that by that stage the two contact centres and Kirkwood J. had each strongly advised the father to seek the advice of a psychiatrist. The matter came back before Kirkwood J. on 26th April and directions were given for finding yet a further contact venue.[40]There was then an attempt at mediation, which was short-lived, although McFarlane J records that it included within its compass two sessions, if not three, on which the children attended at the mediation centre and had contact with their father.[41]The judge rightly states that it is not the business of this court to enquire into the details of the mediation. The whole point of mediation is that what is said by the parties during mediation sessions is confidential. The judge takes up the story again with the next hearing, which took place on 17 July 2006. 39 The matter came back before Kirkwood J. on 17th July for what was the final hearing before that judge. He continued the order for fortnightly supervised contact. He expressed his regret that the father had not taken up what had been agreed to be a joint referral for a psychiatric intervention, and he raised the question of whether the children should be separately represented. The order made then was for continuing supervised contact for the certainly short, if not medium, term. The father did not accept that outcome. Eleven days later, on 28th July, he and the grandparents issued fresh s.8 applications for a shared residence order and contact. The reasons given in the application at p.A212 are that Kirkwood J. had given liberty to apply and that they were seeking the enforcement of the Court of Appeal’s order of 13th September, and that the mother had consistently disobeyed and flouted orders. 40 Pausing there, the “liberty to apply” that Kirkwood J. had given was in relation to the working out of his order. If there was to be any application about that order, then it should have come to Kirkwood J. and not be the subject of a fresh residence order application. I have already made my observations about the validity of the father’s second argument based on the Court of Appeal order. The whole basis of the father issuing fresh applications so soon after the order made by Kirkwood J. was therefore totally erroneous. At subsequent hearings other judges of the Division have allowed the applications to continue and I have now hard them. The fact that this process has taken place is, however, relevant to the mother’s s.91(14) case. 41 At the same time as starting fresh s.8 applications, the father also lodged an appeal against the decision of Kirkwood J. On 4 October before the Court of Appeal at p.A266 Ward LJ dismissed or refused all applications made by the father for permission to appeal and there was a limited allowance in relation to one minor part of the injunction orders made by Judge Hamilton for which permission to appeal had earlier been given. 42 Pausing there, the result of that decision was that the father’s challenge to Kirkwood J.’s order and process ended there. If the father’s point about the Court of Appeal order of September was correct, then one would have expected the Court of Appeal to have agreed with him on 4th October and set aside the supervised element of the contact orders made by Bracewell J. and Kirkwood J. Ward LJ did not do that; he refused permission to appeal. This outcome underlines the conclusion to which I have already come, namely that the father is totally wrong to continue to rely upon the September 2005 order from the Court of Appeal.[42]McFarlane J then records that GW’s applications came before Black J on 14 November 2006. She directed that the children be joined as parties and that CAFCASS be appointed to act as their rule 9.5 guardian. That has led to the children now being represented by an independent guardian appointed by CAFCASS and by a solicitor. Black J. set up the hearing which took place before McFarlane J and also legislated for a hearing on 12 January 2007 at which further directions were to be given.[43]In fact what occurred was that PB moved addresses without informing GW. This led to the father seeking orders to locate PB and the children, and on 12 January 2007, at the directions hearing previously referred to, Black J permitted the mother to keep her whereabouts and the whereabouts of the children confidential from the father until the hearing before McFarlane J on 5 March 2007. We will return to what happened at that hearing in due course.[44]McFarlane J also refers to the fact that on 18 December 2006 the father issued a wide-ranging claim form in civil proceedings in the Queen’s Bench Division. In it he claims damages against the Prime Minister, the Lord Chancellor, the Lord Chief Justice, and others, for unlawful acts with regard to his family law proceedings. Those proceedings have, we think, been struck out as an abuse of process.[45]This recital of the history brought McFarlane J to his analysis of the hearing he had conducted between 5 and 7 March 2007. He emphasised it had not been rehearing of the entirety of the issues in this case; that the findings made by HHJ Hallon stood and had not been overturned. There had, however, been no new psychiatric evidence commissioned or produced. Because there had been no rehearing of the original factual evidence, McFarlane J directed himself, as a matter of law, that the decisions he made had to be founded upon the original findings that were made by HHJ Hallon and Kirkwood J. Those findings were, however, subject to any evidence of subsequent events and an evaluation of the current welfare needs of the children. In our judgment, that was, as a matter of law, an entirely appropriate direction for the judge to have given himself.[46]Having directed himself appropriately as to the law, the judge proceeded to set out GW’s case. As GW asserts he did not have a fair hearing before McFarlane J, we propose to set out the judge’s summary of GW’s case in full, together with the findings which the judge makes about it. The father’s case 47 The father makes a number of points both in his paper contributions and orally. The first is that the Court of Appeal order of 13th September governs the determination of any contact issue and that this court has no business in looking at the issue of contact which has already been adjudicated upon by a higher court and three Lords Justices of Appeal. He also relies upon the fact that Ward LJ said that there had been, in the father’s words, an injustice here. I have already dealt with those arguments; they have no value at all. 48 Secondly, the father says, more generally, that there has indeed been a great injustice here, and it has been compounded time and again by the courts and the other authorities. In particular, he says this: that Judge Hallon took an unlawful and biased view. Her decision was a grave error of law. The mother lied repeatedly and the judge wrongly accepted what she said. Dr. B made false allegations. Dr. B’s instruction was not a joint instruction. Pausing there, I have already made reference to the fact that it was not initially, it was the father’s instruction to Dr. B with which the mother had eventually joined in. The court did not give leave, says the father, to Dr. B to see the court papers. Again, pausing there, under the rules [FPR 1991, r.4.23 applied at this time] there was no need for the court to give leave for an instructed expert to be given the court papers. Finally, he says that Dr. B deliberately came to a diagnosis of paranoid personality disorder in order to fuel the case and for he personally, Dr. B, to make money out of the system. 49 Thirdly, the father, again more generally, says that all the relevant agencies are in conspiracy with the mother in order to prevent contact. This is due(a) (A) to the mother lying but also(b) (B) due to the state having a policy aimed at destroying families and preventing contact. The organs of the state, be it the court, contact centres, CAFCASS or central government, are to be seen, he says, as assassins who have sought to kill his family life and his relationship with his children. 50 Fourthly, he asserts that there have been a number of conspiracies. For example, firstly, all three firms of solicitors who have acted for the father, he claims, have deliberately fuelled the litigation in order to make money for themselves rather than to further his or the children’s interests. Secondly, he claims that contact broke down at the two agencies because of the father’s solicitors having sent the court bundle to these contact centres and that they changed their approach to him and to contact itself after they had read that. Thirdly, he claims that there have been judicial miscarriages of justice and an abuse of judicial power. Fourthly, the family court, he says, is a form of state-sanctioned child abuse. Fifthly, he claims that legal aid fuels proceedings and creates a self-serving and self-perpetuating system. Lastly, he makes allegations against contact centres in general and believes that they fuel litigation and work against families, and in particular he asserts that it is quite wrong for the President of the Family Division, Sir Mark Potter, to be the patron of the Contact Centre Organisation because of this state of affairs. 51 The father intends to contact the police with the plan of giving chapter and verse about these various conspiracies to the police which he considers to be criminal. He anticipates the police will prosecute all of the professionals involved and that there will be, to that extent, he anticipates justice for his claim. 52 The sixth element of the father’s case is that he accepts that he has said in the past that he has always been right since he was a teenager. He went on to tell me that the only mistake that he has ever made in his life was to marry the children’s mother. 53 Seven, he claims that the mother is in breach of the Court of Appeal order for contact. I have already made observations about the Court of Appeal’s order. In terms of the breaches that he relies upon, I asked GW this morning to assist the court by giving details of precisely when it is said that the mother has failed to produce the children for contact. The result of that process is that there are but two occasions when he claims she failed to facilitate contact. The first is that she failed to attend on 24th September 2005 at the first contact centre. The mother’s case, and she was asked about this in evidence, was that she was asked to facilitate contact on that date at very short notice, less than 24 hours. She had already arranged to take the children away for the weekend and she said that she was not able to comply at such short notice, but she did readily agree to an additional contact session being added the following week. The father accepts that contact was replaced the following week and it took place. 54 The second allegation of breach is that contact did not take place on 22nd October. The mother agrees that it did not take place but relies upon the fact that at a court hearing on 20th October, two days before, the father had faxed a note to the court, and it is at B447 of the bundle, indicating that he was exhausted, that he was ill and that he had “flu”. In the knowledge that that was what the father was saying on the Thursday, the mother contacted the contact centre and they indicated that they did not want someone who was ill attending the centre. Contact was therefore cancelled but rearranged for the following week. That is both the beginning and end of the father’s detailed case on the mother being in breach of contact orders. In due course I will turn to any findings I make in that regard. 55 Secondly, in terms of breach, the father says that the mother moving house without telling him is a breach of any contact order that he may have. The argument is that if he does not know where she is, contact cannot take place. 56 The eighth element of the father’s case is that this is a case of parental alienation syndrome, with the mother saying to the children that the father is not a good parent. I can deal with that shortly. There seems to me to be no evidence that this is a case of parental alienation syndrome. Rather, the evidence is to the contrary. The children go to contact with the father without any difficulty, and when they are with him in contact, all the reports are that they are relaxed and settled with him, have an easy relationship with him and enjoy being in his company. Secondly, if this is a case of parental alienation syndrome, it is very odd, particularly given the long history of this case, that the mother even now is still in favour of there being continuing contact and is willing to contemplate various options to develop it and move it forward. I reject the father’s suggestion that this is a case of parental alienation syndrome. 57 Nine, the father does not accept that he has ever threatened or been violent to the mother. He does not accept Judge Hallon’s findings. I, as I have already indicated, am bound by those. He was taken to p.C226 of the bundle, which is part of a transcript of a hearing, I think before Judge Hallon herself, in the Bromley County Court. There is a short staccato stage of the transcript where the judge, Mr. GW and his father are all making observations. It starts with Mr. GW, the father in this case, saying that “Every person is on a list and I will hound them into the ground, and that’s a fact.” The judge then seeks to intervene and make one or two comments. The father then says to the judge:
“You had better get yourself a bodyguard, judge, because I think you will probably need it.”
The transcript goes on with GW saying:
“Her days are numbered”, and then saying: “The one with wigs on, their days are numbered as well.”
Later, at the very end of the transcript, GW is quoted as saying this:
“Get yourself an armed guard.”
Mr. W Senior says:
“You will have to, all of you.”
GW says:
“A machine gun. You’re going to need it. Don’t.”
The grandfather says:
“Oh, watch out, got it.”
Then GW says:
“You will have sleepless nights now”, and that is effectively the end of the transcript. 58 Presented with that evidence, the father’s only recourse was to say that some of those observations were made by his father. I accept the transcript as being accurate. It is difficult to understand how the transcriber can have failed to differentiate between the two voices, and in particular the last comment I have quoted: “You will have sleepless nights now” is immediately followed by the same voice saying: “Go, mother.”
It seems to me that it is impossible, having read that, for the father to assert that he has never been threatening in any manner. He also asserts that he has never been hostile or threatening to the mother. 59 I make five observations. The whole tenor of his evidence is to express revulsion to the mother and overt and direct hatred of her and what he perceives that she has done over the years. In particular, secondly, when asked if he wanted to cross-examine the mother yesterday afternoon he said this:
“Just looking at her makes me feel repulsively sick as she’s lying again.”
Thirdly, he accepts that at court on the directions hearing on 14th November he said to the mother:
“Because she’s not complying with the Court of Appeal order I would take her back to court and if she’s still not complying I would need to keep on going back to court.”
Fourth, he accepts that he has threatened to take away, as he calls them, the W children, and he explained that he said that in order to protect his children. Fifthly, he explained how easy it would be for him to find out where the mother now lives via the internet or by what he called “influential friends”, and that, no matter what any order may say, he will find out where she is living. 60 Going back to the main points of the father’s case, the final five can be dealt with shortly. Point ten: he says he will not give up until justice is done, and by that he means when he gets a residence or shared residence order. Eleven, he has drawn the court’s attention to the fact that he has two applications pending before the Court of Appeal for a second appeal against a number of these substantive orders. In that regard, I have taken the view that it is right for this court to proceed with this substantive hearing today. If, in the light of any further appeal process in relation to orders upon which I have relied, this has to be re-opened, then that is a matter that will have to be looked at then. 61 Point 12: GW is, as we shall see in a moment, extremely scathing of the role of CAFCASS and in particular the guardian. He indicated at the beginning of the hearing that he wished to apply to have the guardian dismissed from the proceedings; however, he did not prosecute that application at all and the hearing has carried on with The guardian playing an ordinary and full role in the case. 62 The last two points he makes were to do with conflict of interest, and I caused investigations to be undertaken in relation to each of them. He asserted that there was a conflict of interest between the solicitors acting for the mother, the name of the firm being Thackeray Williams, and the solicitors acting now for the children, Bindmans, because, having been to the internet, he had found that one of the members of family law team at Bindmans had the surname Thackeray. He therefore asserted to me that it was obvious that there was a conflict of interest between the two firms. I caused enquiries to be made and a short statement was produced by Miss Thackeray of Bindmans indicating that she was not related to anybody who might be connected with the Thackeray Williams firm and had no knowledge of them or dealings with them. That, for my part, was the end of the matter. It did not stop GW continuing to assert that simply the coincidence of surnames raised a conflict of interests that should be addressed. 63 The final point that he made in connection with his case, and with an allegation of conflict, was that the mother’s solicitors, Thackeray Williams, had a conflict of interest because at an earlier stage he had instructed a firm of solicitors which had subsequently merged with Thackeray Williams. Again, I caused enquiries to be made and I was assisted by a letter from the mother’s solicitors indicating that GW had approached a firm called Lee Williams in the early 1990s seeking advice as to whether he could sue the government for stealing one of his ideas in relation to a computer program. The partner who dealt with that claim, Mr. John Lee, died in 1996. The firm have no records of the proposed claim against the government on their files. It seems to me that GW must have known the age of the potential conflict and that it related to Mr. John Lee. Whether he knew that Mr. Lee had died or not is another matter. I am satisfied there is absolutely nothing in this suggested conflict of interest which has been raised, as I understand it, at least once, if not twice, at earlier hearings. Thus the case proceeded with the legal representation in place.[47]In our judgment, these paragraphs speak for themselves. They represent a full, clear and accurate summary of GW’s position. Furthermore, we regard the judge’s comments and findings on GW’s case as wholly open to him.

The judge then goes on to consider the relief which GW seeks:

[48]64 What does the father seek at this hearing? He seeks for both of these children’s parents to be fully involved in their care. He seeks disclosure of the mother’s address, but if she will not disclose the address he seeks a sole residence order in his favour, saying that if he does not know where she lives there cannot be a shared residence order. If there is to be further contact at a contact centre before the children move to him, he has found (another) Contact Centre and puts that forward because, as he says, it is an open centre with an relaxed approach to contact and, in particular, I note it has no facilities for formal supervision of contact. On that issue, the father says this:
“There will never be another contact centre in this case as long as I am breathing. Contact centres are part of the corrupt system.”
He confirmed that if a further supervised contact centre was put forward, he would not go there. 65 So far as his residence claim is concerned, he seeks a move of the children to him as soon as possible after this judgment is given. He does not think that they would be unsettled because they have so recently moved house with the mother. He made it plain that if he thought the children were suffering harm he would remove them from the mother. He went on to confirm that the children are indeed in need of being removed from the mother because both she and the state are abusing them. In any event, he considers that it would be beneficial to the mother to forfeit the right to be a residential parent because of how she has behaved in the past three years, and he seeks the mother’s committal to prison for contempt. He told me it would do the mother and the court an awful lot of good for her to go to prison to show that she should not flout a Court of Appeal order, and also because she disappeared soon after the hearing before Black J. He felt it was in the best interests of the children for her to go to prison.[49]Once again, we find that to be an entirely accurate description of the father’s position. GW did not contend otherwise during the hearing before us. The judge then turns to the interests of the two children. 66 So far, I have not mentioned the children very much in the course of this judgment. I turn to do so now. The guardian’s intervention in this case has included arranging two contact sessions for the children with their father and, on one occasion the grandmother, at the CAFCASS facility at First Avenue House. The guardian’s report describes the two contact sessions, and it seems that the children went relatively easily to these sessions, despite the fairly long passage of time since they last saw their father, and that, subject to comments which I will turn to from the guardian in a moment, they were basically good and enjoyable sessions of contact. The father is at pains to stress how well he gets on with the children, and I too have made it plain to him that on the papers that I have read describing past contact, a beacon, as I call it, in this case is that when he sees the children it goes well. At his invitation, I have watched a short clip of video film of a contact session with him in 2005, and again any viewing of that clip shows two happy children playing well with the father doing his best (and indeed doing fairly well) to engage with both of them in different activities at the same time. I declined his invitation to look at what would have been an hour and a half, if not two hours, of other video contact records. 67 The problem for the court and the family and the children is how to build on the beneficial relationship that the children seem to have with the father for these short bursts of contact. The mother wants contact to take place. That is the other extremely positive feature in this case. On the first day of the case in colloquial terms I put the question to the father in this way, given the goal of moving to more easy contact:
“How do we get there from here?”
A number of options have been put to him by various professionals and indeed by the court during the hearing. I asked him in terms how he would look to build up trust with the mother and his immediate response was to say she should be in prison for breach of the contact order. He was asked whether he would agree to a referral now to a psychiatrist for both parents. His response was:
“She certainly needs one but I don’t.” 68 In the light of those answers and indeed others, I formed the view that the father was totally deaf and blind to any view of any way forward other than his own. For example, he would not accept guidance from the guardian during the recent contact visit to the effect that he should not tell the children that there were bunk beds for them at his home, and that it was wrong for him to reply with the word “Soon” when W asked if they were coming to see their father. He accepted that saying these sorts of things would be confusing to the children, but he told me that was the state’s fault for abusing his children. 69 The guardian considers that there is a need for the father to discuss the children’s needs around contact before and after the contact sessions in order, no doubt, that there can be a learning process and an improvement in what takes place. The father was asked about this in cross-examination on behalf of the guardian and I was struck by the extremely animated and exercised nature of his immediate reaction. He said: “This level of abuse must stop” and that “CAFCASS is paid £100 million a year to assist in the disruption of families and has taken thousands of children off their families.”
He therefore, he said, did not need third parties telling him what was in the best interests of his children, and he concluded this response (to the seemingly modest suggestion that a professional might discuss his children’s needs with him to assist in the contact sessions) by telling me that he agreed with his father, who had said that an army should be formed to bring to book all those who have perpetuated this abuse on children. 70 Another way of moving matters forward that has been considered and discussed during the hearing is to involve some of the large number of family members in the father’s family. I am not going to go into the detail of the various options that might or might not be available. To virtually all of the ones that the mother or the guardian thought were possibilities, in particular that of S, the father took some exception or expressed a contrary view. I make no findings in that regard. There may well be a resource or resources in terms of individuals within the father’s family who might assist, but I have in my mind the letter that was before Judge Hallon, to which I have already made reference, as to how polarised the family were in 2004 and the view they had of matters at that stage. In the course of evidence – and it was either the father or his mother – this observation was made:
“This injustice has caused a major swathe down the middle of my family.”
It therefore seems to be that the question of family involvement needs to be addressed very carefully if they are to be drawn in in any way to mediate and move forward with contact in the future. 71 At the close of the hearing on the second day I invited the parties to consider options for moving forward. That invitation was particularly aimed at the father, as the other parties had already acceded to a number of the suggested strategies. Sadly, when the court convened on the third morning, the father did not indicate any change in his position.[50]The judge then considers the position of the paternal grandparents. Whilst appreciating that the paternal grandmother was “plainly greatly saddened by the disintegration of a number of family relationships” he also noted that she sided absolutely squarely alongside GW in every respect. She told the judge that there was nothing wrong with GW, and this was an answer that she repeated on more than one occasion. She considered that he had always been right to come back to court when he had done so and that her aim for him was to get justice. He had been, she considered, treated “worse than a murderer” by the court system. That being said, she wanted to put all this bickering in the past and let the mother and the children come to visit the family at one of the family homes with the contact building up from short meetings to a longer period of a day or so. In this regard, what she was proposing, the judge found, was far more modest than the father’s immediate move of the children to live with him and his parents at their home.[51]The judge also found, however, that the paternal grandmother, like the father, considered that the State and the mother were to blame for what had happened. In particular, she described CAFCASS as having an attitude to children akin to that of “the workhouse of a hundred years ago and more”. She was plain that she, even if offered contact on her own at a contact centre, would not attend unless the father was also attending. The judge also considered the position of the paternal grandfather, who, sadly now appears to be terminally ill.[52]The judge then turned to his assessment of PB. Once again, we propose to set this out in his own words: - 75 The mother, PB, gave short evidence on the third day of the hearing. In the course of that she endorsed the guardian’s recommendation and confirmed that she would take the children to contact if arrangements for supervised contact were made. She was clear that she would not agree to unsupervised or simply “supported” contact at this stage. She was also willing to take part in a family meeting with various key members of the paternal family, provided that it was professionally co-ordinated. She totally agreed with the involvement of a psychiatrist now, who would assess both parents and advise on the way forward. She asked for the release of the passports so that she, from time to time, could go abroad with the children, but had no firm plans to do so on any particular date. 76 She described to me how intimidated she felt by the father and his manner, and particularly told me that outside the court on 14th November he had approached her and said:
“You stupid, stupid woman. I will take you to court every day of the week.”
She then went on to tell me of another allegation to the effect that the father had made a direct threat to another family member who was there, but I have not heard direct evidence about that. The father was not asked about it and the individual concerned has not filed a statement or given evidence, so I make no finding about that matter. 77 She asked the court to make a s.91(14) order, firstly on the important but practical basis that, as the case has gone on and on, she has used up all her holiday entitlement by attending court and is now taking unpaid leave to be here. That situation is causing financial difficulties for her with the consequent impact on the children. But perhaps of far more importance, she also says that she needs a breathing space now away from the intense cockpit of these proceedings. 78 She was cross-examined, largely through me, by the father. She explained that she had moved home without telling him to her new address because initially there were no alarms on the new property. She had told her solicitors and the court of the new address but had instructed her solicitors not to disclose that to the father. The father, having heard this, immediately announced that he would be suing the solicitors. 79 She then went through the two dates upon which contact is said to have not taken place and upon which the father relies. I have rehearsed that evidence.

The judge then gave his assessment of PB’s conduct:

[53]- I find that what the mother did on those two occasions is entirely reasonable and explicable by the explanation that she gives. There was no defined contact order requiring her to provide contact on any particular date or time. The order was for supervised contact sessions at dates and times “to be agreed” between the parties. On the first occasion, the moment she was asked to agree to the proposed date at short notice, she indicated that she could not, so there was no agreement and so there was no breach. On the second occasion, it was the father who indicated that he had flu’ and that he failed to attend an important hearing two days before in the divorce case as a result. All she did was simply report that that was the case to the centre, and it was the centre that decided, in view of what the father himself had said about his own health, that it was not right for contact to take place. I therefore absolve the mother of any breach of any contact order, having now heard from the father in terms what it is that he alleges. 80 The mother was cross-examined on behalf of the children’s guardian. She confirmed the details of the recent contacts, so far as she had knowledge of them, and then – and it is important to rehearse this in some short detail – she was asked if she accepted a move from once a fortnight contact to once every three weeks, which is the guardian’s suggestion. She indicated that she thought this was a good plan. The immediate reaction of the father and the grandmother in court was to make loud comments about the mother’s observation to the effect that:
“You would, wouldn't you?” to the mother. That caused me to give a warning to the father and the grandmother that they should be quiet while the evidence was given. It is right to record that the court has given considerable latitude during this hearing to the father and the grandmother, who have from time to time made observations when it was not strictly their turn within the proceedings. I understand how high the tension rides in this case and I have been keen to be fair to allow them latitude in that regard. 81 The questioning went on straightaway to ask the mother about attending a family meeting with members of the paternal family if there was a professional present, and she replied that she would like a professional present if she were attending a meeting with a number of members of the father’s family, as she did not want to feel that she was “like a lamb going to the slaughter”
. This led to an immediate loud verbal reaction from both the father and the grandmother. I indicated that I would rise for a short time to enable them to decide whether they were prepared to take part in the proceedings on the basis that they remained composed and quiet when it was not their turn to address the court, and, if not, that they should remain outside the courtroom. I am told that the father and the grandmother then left the court after I had risen, and they have made no further appearance at this court during the rest of the hearing.[54]The judge the records the evidence given by the children’s guardian, both in her report and orally. He describes her as “an extremely experienced guardian and is an independent guardian instructed by CAFCASS for this case.” He reports that in the course of her oral evidence, she had raised one or two concerns about the quality of contact: In short, they were that the contact had a sense of busyness and that there was almost a slightly manic approach to contact, with the children being given many different items as presents on a rapid basis. This was a feature both of the first and of the second sessions. Secondly, she observed that the children are quite creative and play well and wanted to put on a bit of a show for the father which they had prepared, but he was not prepared to allow that to happen and was very directive and prevented it taking place. What the guardian said was that the father was so busy intervening all the time that he did not take on board that the children themselves wanted to have the contact develop in a particular way. She said: “All the time he’s intervening, intervening, intervening”, and she worries that if the children were spending longer periods of time with him, they would find that difficult to cope with.[55]The judge then summarised the guardian’s position. Once again, we use his own words: - 84 The guardian favours continued supervision of contact, firstly because of the father’s untreated medical diagnosis of paranoid personality disorder. Secondly, she believes that there is value for the children in an observer watching contact and then discussing the progress of contact and his approach to the children with the father. Thirdly, she draws attention to the extremely antagonistic attitude that the father has to the mother. (I say “draws attention to it”; it has in fact been obvious to all who have been in this courtroom for the last three days). Her concern is that it would be impossible for the father over an extended period of time to avoid “leaking”, to use her word, his attitude to the children so that they became aware of it. She accepted that it is probably true that he has not said any express words during supervised contact that fall into this category, but, she says, children are subtle in what they observe, and they would pick up on signs and the odd comment and the general attitude of the father, and that would seep through to the children over time, and that if it did so it would be extremely damaging for them, in particular because, as is plainly recorded everywhere, they have such a strong, beneficial and stable relationship with their mother, who is the very focus of the father’s venomous attitude. The guardian said this: “His level of rage is so strong that he couldn’t hold on to it, that is keep quiet or subdue it, for a lengthy period of time.” 85 The guardian therefore sees the way forward as being by supervised contact less frequently, that is now once every three weeks, at a venue, either the Brixton Contact Centre which has been selected, or another one if the paternal family are particularly concerned about the geographical location of (the contact centre), which she can approve. I asked her whether the reality of the case was that, until the father’s paranoid personality disorder is addressed directly, any further attempts at contact would meet the same outcome of those that have taken place hitherto. The guardian understood my reasoning in that respect and in effect had at an earlier stage come to the same view. But she took the view that it was at this stage nevertheless better to capitalise on the children’s enjoyment of contact and the mother’s willingness to co-operate with it, to see whether, this hearing having taken place, contact could, despite the pessimistic messages from recent history, be beneficial.[56]The judge then articulated his findings. Consistent with our approach throughout, we cite his actual words:- 86 Drawing matters to a close, I make the following various findings. 87(1) First of all, as I have indicated, these findings are based upon those made previously by HHJ Hallon and Kirkwood J. 88(2) I have looked at the matter, however, from that base point afresh and heard and seen the material that has been presented to the court. Nothing that I have seen or heard during this hearing causes me to doubt the soundness of those earlier conclusions. On the contrary, and sadly, a very great many of Judge Hallon’s observations would apply to the more recent evidence and to the father’s presentation at this hearing without changing but a word or two of her judgment. 89(3) It is a fact that the father, as found by Judge Hallon, suffers from mental health disability in the form of paranoid personality disorder. 90(4) Both he and his mother totally refute that finding and indicate that there is absolutely nothing wrong with the father; indeed, their case is that he is totally right in all respects and is justified in his sustained and multi-faceted fight for justice. 91(5) The father’s view is that all the professionals that have been involved with him and his family, be they lawyers, judges, social work professionals or others, and all of the relevant agencies, and indeed the state itself, are involved in a sustained campaign designed to oust him from his family and ensure that he is not reunited with his children. In doing so, the agencies and the professionals are accepting the many lies that he says the mother has told and are actively conspiring with her to do him down. 92(6) This, if true, would be an awesome and astounding situation, yet it is this belief that is sustained and built upon by the father and his parents to the extent that, on the presentation in court, it pervades every syllable that he utters and every sinew of his body as he utters them. 93(7) The question has to be asked whether there may be something amiss with the system, or something amiss with the man. The paternal family parties do not for one moment contemplate the second altogether or more understandable option that it might be the man who has something amiss. This is despite the clear diagnosis and the findings of Judge Hallon and despite all of the other evidence in the case, for example (A) his claim about parental alienation syndrome which bears no resemblance to what is actually happening with respect to his relationship with the children. (B), the mother’s positive attitude to him having contact. (C) his alleged breaches of the order which, on consideration, are, even at their height, minimal and, on close inspection, have no validity to them. (D) his blinkered holding on to the Court of Appeal order without any understanding of what has transpired since then. 94(8) I find that the mother is an impressive individual in the circumstances that she finds herself, both in life and in these court proceedings. It would be entirely understandable for a mother in a case such as this, facing the relentless venom directed at her by the father, to walk away and seek an order that there should be no contact. But that is not what PB does. She has continued to offer to bring the children for supervised contact, in the hope that it will develop. She, as far as can be seen, rather than giving the children negative information about the father, has brought two balanced children up in a way that when they go and see their father in these rather strange surroundings, are happy to leave her and go to him, and happy to be with him. She says that she has at home, out in the open, a photograph of the father with the two children. I accept that that is the case. That is another example of how big a personality she has been able to be in relation to this highly taxing and emotionally demanding issue. Her good faith, so far as this court is concerned, is not in doubt. 95(9) Nothing has changed, sadly, in the circumstances of the case since they were before HHJ Hallon or Kirkwood J. Indeed, in my view matters have become more entrenched so far as the father is concerned, and the options for moving forward are running out. The tragedy of this is that GW has much to offer as a father to his children. In the same way, so do his parents as caring grandparents. 96(10) On the first day of the case I explained to the father that this was, as it clearly is, a court of law and that the problems in this family were largely problems of personality and human relationships and that therefore, rather than court orders sorting matters out and talk of prison and enforcement, a way forward might be to look to resolve matters outside the court by professional help from psychologists, psychiatrists or social workers. 97(11) The father is totally unwilling to contemplate any of the possible strategies that might normally be employed to assist a family that is stuck and unable to move on. 98(12) The father’s reaction to each and every person who has been engaged in attempting to move maters on and establishing contact can be seen to fit the behavioural criteria of paranoid personality disorder described by Dr. B. I am not a psychiatrist; I simply make the observation that what is described in the psychiatric diagnosis seems to find a clear echo in much of the father’s behaviour since then. 99(13) It seems to me to be highly unlikely that the father is capable of engaging in any repeat of the supervised contact process, were it to be set up. He is a victim of the personality disorder from which he suffers, rather than being a victim of some elaborate and sustained global conspiracy. Psychiatric intervention may well provide a way of breaking the current circle of behaviour in both sides of this family. The father may well feel that he ha been banging his head against a brick wall in trying to achieve ordinary time with his children; the assistance of a psychiatrist could well help to show him a doorway in this wall through which the family can pass and move forward in a much more constructive manner. As long as he carries on without any form of treatment, or psychiatric challenge or other intervention, the result of further attempts at contact seem doomed to failure. GW needs professional psychiatric help to understand his condition and to learn to modify his reaction to events. 100(14) I have considered whether or not it is in the children’s interests to require GW to obtain an up-to-date psychiatric evaluation and advice as to treatment options before ordering any further contact. The time must come when, sadly, that will be the only option available. To do otherwise is to ignore the root cause of all that has gone on, and by that I mean the father’s paranoid personality disorder, and simply make arrangements around the edges in the hope that things will move forward of their own accord. 101(15) I have, however, been persuaded by the guardian and the mother that it is right to try to set up contact again. Both of them, and indeed the court, are driven by the fact that if at all possible this father and his parents should have contact. The children enjoy seeing him and in a supervised setting he manages the contact well. 102(16) For the reasons expressed by the guardian, any contact at the moment must continue to be supervised. It is, I agree with the guardian, impossible, having encountered GW at this hearing, to envisage him in any lengthy period of unsupervised contact being able to hide or subdue his feelings and opinions about the mother and her activities over recent times. 103(17) The question of the frequency of supervised contact is one that has caused me concern. I agree with the guardian that, given the emotionally charged situation in this case, contact at a level of once a fortnight was perhaps ambitious and inappropriate in the early stages, and that a level of once every three weeks would be more appropriate. It also allows the children more flexibility at the weekends. What the court does not want to do is, on the other hand, take a step that the father is bound to see as retrogressive at this stage and, as it were, adding and compounding by addition on the injustice that he wrongly perceives has taken place. I therefore envisage that the contact shall carry on at the rate of once a fortnight until the matter is further reviewed.[57]The judge then debated when the review should take place. He concluded that it should be before the end of July. He reached that conclusion, of course, on the basis that contact would be taking place. As we have seen, however, it is not. The judge correctly then reserved the case to himself. If ever there was a case for judicial continuity, this is that case. He thus dismissed GW’s and the grandparents’ applications.[58]On the question of PB’s application for a section 91(14) order, the judge directed himself as follows: - 108 So far as the mother’s application for a s.91(14) order is concerned, I have been referred to the leading decision in the case of Re P [1999] 2 FLR 573. That decision is well known to the court, and at this late hour I am not going to read out the details of the well known guidance given by Butler-Sloss LJ, setting out eleven factors that must be borne in mind. 109 It will follow from all that I have said about the previous litigation history that this father has brought applications to the court on a regular basis. It is striking to this court that, less than a fortnight after his case was determined by Kirkwood J., he was able to issue fresh applications which now come on for hearing afresh before a new judge at a three-day hearing. But that is what has taken place. That takes place after the process before Kirkwood J. and after the earlier process before the Bromley County Court. The father has had ample opportunity to litigate these matters before the court and it seems on the information that I have that nothing has changed in the circumstances of the case in his favour since the hearing of 2004. 110 The effect of continued litigation in any case is known not to be beneficial to the parties who are engaged in it. In this case, where it is so highly charged and the father’s attack on mother is so vigorously sustained, the emotional effect on her is plain to understand. She needs a break from this process. It is also impinging in a practical way on her ability to provide financial care for the children. She needs time out from the court process. 111 I therefore take the view that it is in the children’s best interests for there to be an embargo on further applications. I consider that the father has repeatedly made applications to the court which are in effect the same application that he has made before, which has been turned down by judges after a full hearing. This is the third such juncture within the proceedings and the time has come when an imposition on his ability to come to the court without the court’s leave should be imposed. The reason for setting aside the earlier s.91(14) order when Judge Hamilton had imposed it in 2005 was that the matter was left in the air and unresolved. The Court of Appeal rightly set aside that decision. Those circumstances have now changed. An order under s.91(14) does not shut the father and his parents out from the court; it simply provides a filter through which any applications they wish to make can be looked at. 112 The father and his parents stand, as I have indicated, shoulder to shoulder on all these matters. It would be artificial to impose a s.91(14) order against the father and yet leave his parents free to make applications. They would undoubtedly use that facility to prosecute the father’s case. The s.91(14) order will relate to all s.8 orders, including applications to vary the contact order, and will relate to the father and both grandparents and will run for a period of two years in the first instance.

The judge expressed the remaining orders he was minded to make in the following terms:

[59]- 113 I give the mother leave and make a direction to the effect that she can have the children’s passports back. She has a residence order and, subject to her complying with any requirements to provide the children for contact, she must be free under the ordinary terms of a residence order, to take the children out of the jurisdiction from time to time. 114 I also direct that the mother is entitled to have her current address kept confidential from the father. His manner is intimidating and in direct evidence he has indicated that, given that he thinks the children are at risk of harm, he would consider himself to be entirely justified in removing them from her care. She is fearful of him and wishes to have the reassurance that, at the moment, so far as she is aware, her address is confidential. That form of direction is in the children’s best interests as it provides reassurance to their primary carer. It is also in my view proportionate in that it does not impede the father’s ability to have the contact that I have ordered, given that the court and the father are able to communicate with her through her solicitors. She has indicated through her actions via the guardian the fact that her address is confidential does not mean that she will not turn up to contact, as indeed she did in January. 115 The only matters that are left outstanding therefore are the father’s application to commit the mother to prison for breach of court orders. The findings that I have made, both in terms of the Court of Appeal order and the mother’s order for contact, may cause the father to reconsider his position in that regard, but he is not here. That application was always going to be heard after this judgment, and it is now half past six in the evening. I propose to adjourn generally the application to commit the mother and give liberty to the father to restore it should he wish to do so. Again, at this stage I reserve the matter to me. If it is to be prosecuted, there may well have to be consideration given to a different judge hearing the application to commit, given the findings that I have already made. 116 Finally, the father wishes to reopen the ancillary relief proceedings. Those, because of pressures of time, have not featured at all. There is no ancillary relief order. It is submitted by the mother that any application is empty because there is no money. The mother herself does not seek an order. I adjourn the ancillary relief application to be listed again for directions before me when the matter comes back at the end of July.

The judge then concluded his judgment with what he described as a final plea to GW:

[60]117 At the conclusion of this judgment I make one final plea to this father that, for the sake of the children, he asks himself the question that I posed earlier, namely:
“Is there something amiss with the system, or may there be something amiss with the man?”
I would urge both the father and the mother to give the option of psychiatric advice and intervention a try. It is unlikely to do any harm and may open up t he way to contact.[61]That, therefore was the judge’s judgment. The reader must judge for him or herself whether it represents a conscientious assessment of the best interests of the two children, or whether, as GW would argue, it is the product of a corrupt, unlawful system of state sponsored child abuse. In our judgment it represents the former. We will, however, ourselves now address a number of issues which arise from it. G W’s argument that the hearing before McFarlane J breached his rights under ECHR Article 6[62]As it turned out, GW in argument before us on 6 July 2007 frankly acknowledged that his main and substantive criticism of the hearing before McFarlane J which resulted in the order made on 7 March 2007 was that the hearing was unfair and breached his rights under ECHR Article 6 because he was improperly denied access to the court bundles prepared for that hearing. The judge, accordingly, had been wrong to go ahead with it, and should have adjourned the proceedings to enable GW to familiarise himself with the documentation. This is a complaint which clearly falls within our remit, and we turn to it at once. GW’s application for permission to adduce fresh evidence raises other issues, with which we will deal later.[63]As applicable to the instant case, the relevant part of ECHR Article 6 reads as follows: - In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.[64]Nothing, of course, turns on the fact that the hearing before McFarlane J was held in private, or on the fact that his judgment was given in private. It is well established in the European jurisprudence that the practice in England and Wales of hearing cases under the Children Act 1989 in private is lawful and in accordance with ECHR Article 6: - see the decision of the European Court of Human Rights in B v United Kingdom; P v United Kingdom (Cases 36337/97 and 35974/97) [2001] 2 FLR 261.[65]In order to examine the allegations that GW was denied access to the court bundles. it is necessary to look at the orders which immediately preceded the hearing before McFarlane J on 5 March 2007. In this respect we are fortunate, because we not only have copies of the relevant orders, but a transcript of what occurred before Black J on 12 January 2007, when she gave directions which led to the hearing which started on 5 March 2007.[66]On 14 November 2006, both parties had appeared in person before Black J. On that occasion, the judge very sensibly joined the children as parties to the proceedings, and invited the Children and Families Court Advisory and Support Service (CAFCASS) to appoint a guardian to represent them in the proceedings. She set up the final hearing for 5 March 2007, and also ordered a directions hearing to take place on 12 January 2007. She further made a direction to the following effect: - The Court Bundles which should include all relevant court orders and transcripts of judgments for the hearings listed above be provided by the Applicant Father GW.[67]It will be recalled that Mr. W was the principal applicant for relief in the hearing fixed for March 2007. The burden of preparing the court bundles usually falls on the applicant. However, on 12 January 2007, as Mr. W was in person, Black J decided to relieve him of that burden. Paragraph 6 of the order which she made on 12 January 2007, and which governs the preparation of the bundles for the March hearing, thus reads as follows:- Guardian’s solicitor is to prepare the principal bundles for the final hearing.(a) The index is to be circulated by 20.2.07 of the bundle the guardian is intending to file.(b) The father shall be entitled to provide a supplementary bundle for the court if he considers the guardian’s bundle incomplete. He shall notify all parties by 26th February of the contents of this bundle and may either file it with the court directly in accordance with the Practice Direction of July 2006 or forward copies of the documents (paginated) to the guardian in time for her to file the bundle on his behalf with her bundle.(c) All bundles to be prepared and filed in accordance with the President’s Practice Direction.[68]In our judgment, nothing could be clearer. We will return to examine the balance of Black J’s order in a moment.[69]On 16 February 2007, the solicitor instructed by the guardian wrote to Mr. W in response to his request that the guardian arrange an additional contact visit prior to the hearing on 5th March. The final three paragraphs of that letter read: - Thank you for confirming that you are gathering together the documents I requested. Just to remind you, I do not have a copy of your application for a residence order or the application for committal that I believe you formally issued after the hearing on 12th January. I would be grateful if you would let me have copies of these applications. As you know, one of the directions made by the court on the 12th January was that I should circulate a draft index to the bundles for the final hearing by 20th February.[70]We do not appear to have the actual letter attached to which were the draft indices (unless they were attached to the letter of 16 February). However, on 27 February 2007, the guardian’s solicitor sent Mr. W a copy of the guardian’s report, which bears the date 26 February 2007. On 2 March 2007, the guardian’s solicitor wrote again to Mr. W. We propose to set out this letter in full: - I write following my previous letter in which I enclosed a copy of the draft indices. I now enclose the final indices to the bundles, which have now been lodged with the court. I also enclose copies of the following: - 1. Case summary 2. Position statement on behalf of the guardian. 3. Recommended reading list I believe that you were given a copy of the bundle headed Applications, Orders and Transcripts, by the solicitors for (PB) at the last hearing. As you will see from the enclosed indices, I have updated these. Bundle B is, in effect, a new bundle with statements / reports. Please let me know if you would like me to bring a paginated Bundle B for you at court.[71]On 2 March 2007, three days before the hearing before McFarlane J was due to commence, the guardian’s solicitor sent GW a letter, expressed to be both “by Email and Post”. This is a very important letter, and we propose to set it out in full. It is headed with the names of the children, the number of the case and the date of the hearing, that is to say 5-7 March 2007. The body of the letter reads:- I write following my previous letter in which I enclosed a copy of the draft indices. I now enclose the final indices to the bundles, which had now been lodged with the court. I also enclose copies of the following: 1. Case Summary 2. Position statement on behalf of the guardian 3. Recommended reading list. I believe you were given a copy of the bundles headed Applications, Orders and Transcripts, by the solicitors for MB at the last hearing. As you will see from the enclosed indices, I have updated these. Bundle B is, in effect, a new bundle with statements / reports. Please let me know if you would like me to bring a paginated Bundle B for you at court. Yours sincerely[72]We have in our papers the enclosures to that letter. They are as set out. They are pellucidly clear. The indices are immaculate and set out all the relevant documents. There does not appear from the papers before us to have been any response of this letter, or, indeed, to the previous correspondence.[73]In our judgment, the correspondence from the guardian’s solicitors which we have set out completely destroys any suggestion that GW did not have access to the relevant documentation, or did not know the case he had to meet. Furthermore, as the voluminous papers before us demonstrate, GW is highly computer literate, and regularly sends Emails and Faxes to numerous people. In addition, in paragraph 16 of the guardian’s report of 26 February 2007, there is a telling reference the home of the paternal grandparents having become “fairly overwhelmed by the massive amount of paperwork generated by GW’s tireless campaign and quest for justice”. Any suggestion that GW was not on top of the paperwork can be dismissed out of hand. Furthermore, the paperwork we have set out demonstrates very clearly that GW was fully aware of the documentation to be placed before the court on 5 March 2007.[74]The reader will have noted that the judge makes no reference to any complaint by GW about his failure to be alerted to the documentation. Our reading of the judgment persuades us without difficulty that GW manifestly had a fair hearing, and was able to put all his points to the judge. The order made by Black J on 12 January 2007 and the guardian’s actions as a consequence of it demonstrate that GW was in possession of all the necessary paperwork. He was not put at any disadvantage. If the judge was asked to adjourn (and we have no record of the actual hearing before him) he was right to refuse.[75]There is, accordingly, no merit whatsoever in GW’s Article 6 point. An appeal against McFarlane J’s order based upon it would have absolutely not prospect of success whatsoever. The argument that McFarlane’s judgment was unlawful because it was delivered in the absence of GW and the paternal grandmother[76]There is, however, a subsidiary ECHR Article 6 argument advanced by GW. This is that the judgment given by McFarlane J on 7 March was unlawful because “Appellants were NOT IN COURT when McFarlane J gave his Unlawful Perverse Bias ex-parte W(Children) Order and Judgment”. GW says this was because he and his mother had left court in order to tend to GW’s terminally ill father.[77]McFarlane J’s judgment tells a quite different story. It is set out at paragraph 81 of the judgment, which we have set out at paragraph 53 above. We have no hesitation in accepting what the judge says in that paragraph, and it is self-evident, in our judgment, that a litigant cannot walk out of court and then complain that the hearing was unfair because he was not present.[78]For all these reasons, GW’s application for permission to appeal McFarlane J’s order on the ground that he was denied proper access to the documentation is manifestly unmeritorious, and will be dismissed. The argument that this courts order of 13 September 2005 governs GW’s contact with his children[79]It remains a constant theme for GW that his contact with the children was finally determined in the order which this court made on 13 September 2005. We have set the order out at paragraph 38 above, and we have the judge’s response to it at paragraphs 25 to 27 of his judgment in the extract set out in paragraph 38 of this judgment.[80]We wish to say to GW as clearly and as simply as we can that he is wrong on this point and that the judge is right. The order made by this court on 13 September 2005 does not govern current contact, and has never done so. All that the order of 13 September 2005 did was to permit the parties to agree contact – if they could – between 13 September 2005 and the next substantive hearing before a judge at first instance.[81]GW is simply wrong on this point. He has completely misunderstood this court’s order. His insistence that the permissive holding order made by this court on 13 September 2005 governs all future contact is not only wrong: it damages his case. Future judges will be bound by what McFarlane J said, and what this court has said about it. The order made on 15 September 2005 is in the past, and is spent. It has no current force. GW must accept this: the judge was right in law when he so interpreted it.

The argument that GW has suffered an injustice

[82]GW is entitled to point to the fact that in considering Judge Hamilton’s decision to terminate contact and make an indefinite section 91(14) order Ward LJ remarked that GW may have suffered a serious injustice. It was on that basis that Ward LJ adjourned the permission application to the full court. As this court subsequently found on 13 September 2005, Judge Hamilton was wrong to make those orders, and this court set them aside. We have no doubt that this court was right to do so, for the reasons we outlined in paragraph 36.[83]To that extent, we agree with Ward LJ that GW did suffer an injustice. This court, however, has put it right. The indefinite section 91(14) order and the order dismissing GW’s application for contact made by Judge Hamilton on 1 February 2005 were both set aside. Judges do make orders sometimes that are wrong: that is why we have a Court of Appeal. That, however, in our judgment, is the strict limit of the injustice suffered by GW. He is, accordingly, quite wrong to parade Ward LJ’s remark as if it covered every aspect of the proceedings. It does not. It was limited to a comment on Judge Hamilton’s order of 1 February 2005. The allegation that PB lied to Judge Hallon and dishonestly procured GW’s admission to mental hospital[84]This allegation is not strictly within our remit, but as it appears to go to the root of GW’s current feelings about his former wife, we propose to deal with it.[85]As an essential element in the rationale for McFarlane J’s order that GW should have supervised contact to the two children is based on his anxiety (shared by the children’s guardian) that in any unsupervised context GW would subject the children to his distorted view of their mother, it was a necessary part of the judge’s enquiry (and is a necessary part of ours) to decide whether or not GW’s revulsion for his former wife has any legitimate foundation in fact. It is, accordingly, necessary to address the issues which GW prays in aid as justifying his assertions about his former wife. Some if not most of these seem to relate back to the circumstances in which they came to separate.[86]GW and PB were married on 28 August 2000 and separated in January 2004. They are now divorced. The circumstances in which the parties came to separate were as follows. On 25 July 2003, a fortnight after the birth of L, GW was the subject of what he describes, accurately we think, as an unprovoked criminal assault by a gang of youths. He suffered serious head injuries, and was hospitalised for approximately five days. On his discharge from hospital, he went to convalesce at the home of his parents, where he stayed for about three weeks, taking W with him.[87]In the first substantive hearing relating to the residence issue, PB told Judge Hallon, sitting in the Bromley County Court in October 2004 that she had concerns about GW’s behaviour when he returned to the matrimonial home, but that she felt she must do what she could to “make a go” of the marriage.[88]On 4 January 2004, GW overheard a female friend of PB telling her that she should divorce GW. From the Approved Social Worker Report (ASWR) produced by GW, it is clear GW admitted punching the friend in the face. This was the first time, Judge Hallon found, that GW had exhibited actual violence.[89]According to a note in the “Duty Action Sheet” time and dated 10.15 on 8 January 2004, the Health Visitor telephoned to say she had referred the family to social services. The ASWR records that later the same day, there was a multi-disciplinary meeting at which the assault on 4 January was discussed, and at which it was agreed that “GW should be offered an admission for assessment and to expedite further neurological investigations as soon as possible, and that if he refused it might be necessary to implement the MH Act”. The ASWR continues: In the meantime, duty desk received a call from the family health visitor expressing concern about the welfare of the children and informing that she had made a referral to the Children & Families team. Having confirmed it would be quicker to arrange a MRI scan if GW were an inpatient and that a bed would be made available over the coming weekend, Dr. C (GW’s general practitioner) phoned GW to discuss these plans and arrangements, which GW agreed to consider. On the morning of 9.1.04 there was reasonable optimism that GW would be admitted informally but then Dr R (the hospital psychiatrist) received a phone call from his distressed wife (nearest relative) late in the afternoon . Dr C subsequently spoke to GW who confirmed that he had no intention of accepting admission, which prompted Dr. R to make a formal request for an urgent MHAct assessment that was duly undertaken at approximately 5 pm.[90]According to the ASWR, GW was admitted to the ward as an informal patient at about 9.00pm on the evening of 9 January. The admission was arranged by Dr. R and the social worker. A substantial section of the report (under the heading CLIENT INTERVIEW is taken up with an account of Dr. R’s and the social worker’s attempts to persuade GW to a voluntary admission. In the event, he was admitted informally “but with the explicit instruction from Dr R that he should be detained under section 5(2) of the Mental Health Act 1983 in the event of him changing his mind and wanted to leave the ward”. This, we think, explains why Judge Hallon recorded that on 9 January 2004, GW was admitted to hospital under section 5 of the Mental Health Act 1983, that section usually being invoked where the patient is already in hospital. By section 5(2), detention is permitted for a period of 72 hours after the registered medical practitioner in charge of the patient has furnished a report on the patient.[91]In any event, on 13 January 2004, GW was admitted under section 2 of the Act, which permits detention for a period of 28 days for assessment. On 19 January 2004, GW absconded to Jersey, and it was not until 30 January 2004 that he was returned to hospital by the police.[92]GW has produced a letter from PB, which is dated 28 January 2004, in which she makes a number of complaints about GW’s conduct and informs him that she had taken legal advice. That advice led her to make a without notice application to the Bromley County Court for non-molestation and occupation orders, which were granted and then continued on 10 February 2004 to 2 April 2004 when, according to Judge Hallon, GW gave undertakings. He then applied for residence orders in relation to the two children and his parents also obtained leave to make an application for contact with the children. It was those applications which came before Judge Hallon in October 2004, and resulted in what McFarlane J described in paragraph 3 of his judgment as “the keystone judgment in this structure of judicial intervention” given by Judge Hallon on 27 October 2004.[93]An important feature of the hearing before Judge Hallon was the medical evidence about the state of GW’s mental health. In paragraph 11 of her judgment, Judge Hallon explains what happened:- Detailed directions were given at various hearings including a direction that a psychiatrist should be jointly instructed to prepare a report on the father. The father in fact contacted a consultant psychiatrist, Dr. B and instructed him without the agreement of the mother, but subsequently through her solicitors Dr B was accepted as being a suitable person to be jointly instructed. He provided a report on 12 July of this year.[94]We do not have a copy of Dr B’s report in our papers. However, that report and Dr B’s oral evidence was highly damaging to the father’s case, and plainly impressed Judge Hallon, who, as we have already seen, accepted it.[95]We have spent some time setting the scene because GW’s case before us – as it was before Judge Hallon was, as the latter put it, that “the mother has conspired maliciously to have him ejected from the home and wrongly detained under the Mental Health Act”. Judge Hallon continued:- As well as the evidence which he gave orally about the maliciousness of that conspiracy, one sees from the bundle that in writing to the BBC on 20th May 2004 the father referred to the “malicious evil campaign” and “the evil wicked woman”. He says that the conspiracy is that the mother conspired with his general practitioner’s secretary so that the secretary made a referral to the adult mental health services without the general practitioner being involved, and that also that in some way the mother conspired with the sister of her friend, SP (that is the lady who was the victim of the assault in early January), that sister being a pharmacist at the (local) Psychiatric Hospital.[96]The judge was unimpressed by this evidence, not least because GW also accused Dr B of conspiring with the mother’s solicitors to produce a report adverse to the father’s interests. However, the point which GW raises before us is that in paragraph 31 of her judgment, the judge, having recorded what she describes as legitimate concerns on the part of PB about GW’s behaviour, makes the following finding: - I am satisfied that she (that is PB) did not herself approach the mental health team, although she did voice her concern that the father might remove the children from her care when she spoke to the health visitor and that subsequently when she was requested to provide information to social services she did so. Indeed, she had an obligation to because she constitutes the nearest relative under the Mental Health Act.[97]GW submitted to us that there was now evidence which showed that PB was not only responsible for his admission to mental hospital, but that she lied to Judge Hallon about her involvement in the process. He produces a number of documents, including the ASWR, to which we have already referred. He also produces an Email from Dr R, who, as we have already stated, was the consultant psychiatrist responsible for GW during his period of detention in mental hospital to one MP relating to a date protection request made by GW. The Email is dated 20 July 2006, and was received by GW on 2 August 2006. It reads as follows: Hi M, Have reviewed the case notes. Approved Social Worker Report by JK notes (page 6) that I received a phone call from (PB) at approximately 3:30pm on 9 January 2004. She advised that (GW) was refusing admission to hospital that he had previously agreed on voluntary grounds. She was very worried and distressed though anxious not to be implicated in any intervention for fear of reprisals. I personally did not make any entry into (GW’s) case notes on the said date. His case was otherwise under active review and we had had a professionals meeting the day before on 8.1.04. In the context of that meeting, I believe that I reported the telephone call from (the mother) on 9.1.04 to JK without recording the contents of conversation in case notes. ASW report and Core Assessment of 9.1.04 are the only records of this phone call in medical notes. I believe that (GW) has already been given copies of ASW Report that I have quoted from as well as the assessment records. I hope this explanation clarifies the matter. Please do let me know if I can help resolve this matter. Regards, H[98]GW seizes on this Email as evidence that PB lied to Judge Hallon, and that the judge was thus plainly wrong in her finding that PB had not herself approached the mental health team.[99]We do not have a transcript of the hearing before McFarlane J, and we do not know if this allegation was put to PB in cross-examination. Other documentation is, as we have already indicated sparse. There is, however, a further reference to PB’s telephone call in the ASWR, which is in the following terms: - A number of factors contributed to professional opinion that GW was in need of an inpatient assessment which took on a sense of urgency when his assault on his wife’s friend became known and he was offered admission over the weekend of 10/11 January. However, a distressed call from the nearest relative on 9th January significantly heightened concerns and it was felt unsafe to leave the situation without prompt intervention., which is why a MH Act assessment was arranged, even though the GP was unavailable to attend.[100]In our judgment, nothing in the available documentation comes anywhere near establishing the proposition that PB conspired with Dr R and the approved social worker to procure GW’s inappropriate admission to mental hospital. The concerns which were being expressed about GW were being expressed by the professionals – the Health Visitor, Dr. R and the approved social worker. According to the records, it was those professionals who acted to ensure GW’s admission to hospital. The available evidence shows that they had good cause to arrange the admission. The suggestion that they acted wholly unprofessionally at the malicious whom of PB simply does not bear examination.[101]The highest the case can be put against PB is that she may not have told Judge Hallon the truth about her telephone call to Dr R. We do not know what PB would say about this, as we do not have a transcript of the hearing before McFarlane J, and we do not know if the matter was put to her. However, if she did not tell the truth, there is substantial mitigation. She had genuine cause to be concerned about her own safety and the safety of the children given GW’s mental state and the concern about it shared by the professionals. She also had a legitimate fear of reprisals.[102]In our judgment, if GW bases his revulsion for his former wife on the events surrounding his admission to mental hospital on 9 January 2004 this is clear evidence of his distorted thinking, and his incapacity to recognise the genuine concerns about his mental state held by both PB and the professionals at that time. It also takes no account of the opinion of Dr. B, which was accepted by Hallon J.[103]In addition, in our judgment, the case has moved on, and it is now too late to re-litigate his particular issue. Both in the opinion written by junior counsel in support of public funding for permission to appeal to this court against the order made by HH Judge Hamilton on 1 February 2005, and in leading counsel’s skeleton argument for that appeal, GW sought a re-hearing of the section 8 trial held before Her Honour Judge Hallon for which judgment was given on 27 October 2004. In the opinion, junior counsel records Dr R’s diagnosis that GW was suffering from a “paranoid personality”, and Dr B’s opinion that he was suffering from a “personality disorder”. He also records Judge Hallon’s findings on two separate occasions (8 and 27 October) and states:- Subsequent to these two trials under the FLA and CA, (GW) has obtained his Mental Health Services records including an Approved Social Work report that show that (PB) was untruthful in stating that she had not contacted the Mental Health Service and Consultant Psychiatrist Dr. R directly. This evidence may well have affected the outcome of the diagnosis by Dr. B as well as both the FLA and the CA proceedings, including the recommendation of the CAFCASS Officer.[104]In the skeleton argument produced for the Court of Appeal hearing on 13 September 2005, leading counsel for GW took the same point:-23. On 9 January 2004, (GW) was sectioned under section 5 of the MHA, by a Dr R. F alleged throughout the proceedings that this was at the instigation of (PB). (PB) denied this and gave evidence before HHJ Hallon that she had had no contact with the social services or any of the doctors involved [in the section] in the time just before (GW) was admitted to hospital.24. Somewhat bizarrely, despite the fact that the Approved Social Worker’s report of the referral dated 9 January 2004, which was before Judge Hallon records “On the morning of 9.1.04 there was reasonable optimism that (GW) would be admitted informally but then Dr R received a phone call from his distressed wife (nearest relative) late in the afternoon (counsel’s emphasis). HH Judge Hallon found as a fact (paragraph 31 of her judgment):
“I am satisfied that she did not herself approach the mental health team although she did voice her concern to the Health Visitor.”
[105]It follows, in our judgment, that these issues were placed before this court in September 2005. This court did not order a re-hearing of the applications heard by Judge Hallon, and it is now far too late for the question to be resurrected.[106]We have spent some time on this point in order to demonstrate to GW that we have considered it carefully and fully. We are entirely satisfied that even if PB did not tell HH Judge Hallon the truth about her contact with Dr. R on 9 January 2004 it would not have made any difference to the outcome of the case. The Email from Dr. R itself gives a good reason for PB’s reticence. Furthermore, the point has now been ventilated on at least three further occasions – before the Court of Appeal in September 2005, before McFarlane J and before ourselves.[107]In our judgment, McFarlane J was fully entitled to reject GW’s attack on Judge Hallon’s judgment. This court was entitled in September 2005 not to order a re-hearing of the trial before Judge Hallon. The suggestion that Drs R and B were part of a conspiracy to defeat GW’s claim for residence orders in relation to his children is simply fanciful. There is no evidence for it apart from GW’s passionate belief that it is the case, and in our judgment he is simply blind to reason on the point.

GW’s behaviour on other occasions

[108]This is relevant because GW insisted, throughout the hearing before us, that he was neither violent nor threatening, and that he had “no bad feelings” about his wife “lying in a court of law”. The record, once again, tells a quite different story. We cannot, therefore, leave the hearing before Black J on 12 January 2007 without describing in greater detail what occurred.[109]GW and his mother appeared in person. PB was represented by counsel and the children were represented by their solicitor. This was not, of course, the first time the case had come before Black J. She had previously had the case before her on 14 November 2006 for directions.[110]The primary issue actually before Black J on 12 January 2007 was an application by PB for permission not to reveal her address and the address of the children. In a careful and well reasoned judgment, the judge explained why she had come to the conclusion that, pending the full hearing of Mr. W’s applications in March 2007 (that is approximately two months away) PB should be entitled not to reveal her address or the address of the children. The response from Mr W was extraordinary. He is recorded on the transcript as saying:- Don’t worry. I can take, legally, take this, a two hundred million lawsuit. I can’t understand this, this is crap, unlawful violation of my children’s lives. This is unlawful. It’s inhumane. It’s worse than child abuse. You are denying an innocent father his lawful right to. I have already been unlawfully denied 150 days. The mother has now abducted my children and you are saying to me “go away”. I’m not going away. This place wants renaming because this place, it’s correct, it is a house of Herod, because you are acting unlawfully, you are not upholding the rule of law, you are not enforcing human rights, you are acting as perpetrators, you are acting worse than criminals. I and any rational human being will not stand for this level of abuse, especially when it’s aimed at abusing the children. This is state sanctioned child abuse. My ex wife is using public funding money to assist in fuelling this corrupt inhumane Nazi present system. An innocent father gets kicked out of his marital home because of a simple woman wants to have him terminate it and then the State assists her. Kick me out my home and kick me out my children’s lives. That is unlawful.[111]The judge enquires if Mr W would like her “to take that as an application for leave to appeal”. Mr. W says he is going to appeal. The judge points out, correctly, that he has to ask her for leave to appeal. He then says:
“She’s going to refuse”
. The judge agrees. Mr W then says:- I know the whole score, My Lady. I know how, the whole facility is corrupt from the President down. The House of Lord (sic) is corrupt. This institution will be held accountable. I can guarantee it. I’ve got the blessing of my Mum and Dad and the full weight of my …..[112]When the judge offers to assist Mr W in applying to this court, he replies: “No problem. This is state sanctioned child abuse. State. Unlawful”.[113]This is not the first time that GW has behaved in this fashion. We have already recorded his behaviour (and that of his father) before Judge Hallon (see paragraph 57 of McFarlane J’s judgment set out at paragraph 46 above. We also have in our papers a transcript of what occurred in this court on 4 October 2006. On that day, Ward LJ and a retired Court of Appeal Judge, Sir Martin Nourse, heard GW’s appeal against orders made by HH Judge Hamilton SC in the Bromley County Court. The appeal related to injunctions granted by the judge against GW which were to remain in force until 25 October 2006. Ward LJ recorded in his judgment in that appeal, that although GW had been given a suspended prison sentence for his breach of a previous order, that period had passed. The Court accordingly allowed GW’s appeal to the extent that the injunctions should be deemed to have come to an end on 24 June 2006.[114]That was not the end of the matter, however, because Ward LJ, then sitting on his own, went on to hear five further applications by GW for permission to appeal. These he all dismissed. However, GW frequently interrupted the judgment, so much so that Ward LJ warned him that if he interrupted any more, the would be removed from the court. GW’s mother then interrupted to say that it was PB who needed the psychiatrist and GW said that PB “must go to prison for lying under oath”. After further interruptions, Ward LJ left court, and the Tipstaff had to be summoned to remove GW and his parents from his court so that he could resume his judgment. In the Lord Justice’s absence, GW made a 999 call to the police informing them that “there is a major incident taking place in court 74”. He described what was happening as “Corrupt judges, unlawful corrupt judges, violating human rights beyond belief”. Eventually, GW and his parents were persuaded to leave court, and Ward LJ was able to complete his judgment.[115]We recite these matters because, in our judgment, they demonstrate clearly the reason underlying the order for supervised contact. In certain circumstances, for example when things are not going his way, GW is plainly incapable of controlling himself. He is consumed with hatred for his former wife, and we have little doubt that McFarlane J was right to be concerned that, left alone with the children, he would demonstrate clearly to them his feelings about her.

The application to adduce fresh evidence

[116]In our judgment, this application is misconceived. The principal evidence which GW seeks to introduce are statements from members of his family indicating their willingness to assist in the facilitation of his contact with the two children.[117]The basic rule about the introduction of fresh evidence in this court was laid down in the decision of this court in the case of Ladd v Marshall [1954] 1 WLR 1489. In summary, three conditions have to be fulfilled before this court will allow fresh evidence to be adduce in support of an appeal, or an application for permission to appeal. These are: -(1) that it was not evidence reasonably available at the hearing;(2) that it should be of importance so far as the result of the case was concerned, although it need not be decisive; and(3) it should be credible, although it need not be incontrovertible.[118]The statements in the present case plainly offend against the first of these conditions. For that reason alone, this court would not contemplate admitting them. Secondly, however, GW must appreciate that the reason the judge ordered supervised contact was his entirely justified anxiety that in an unsupervised setting the strength of GW’s feelings about his children’s mother would be communicated to them. Given the attitude displayed towards the mother in at least one of the statements – that from his sister A, we do not think that this evidence, had it been placed before the judge, would have made any difference to the outcome.[119]There is, however, a further and equally compelling reason for refusing GW’s application for permission to adduce fresh evidence in this court. This is that there is nothing whatsoever to stop GW putting forward members of his family as suitable supporters / chaperones of contact when the matter comes back before the judge for review, or when, at the expiration of the section 91(14) order GW makes a further application.[120]It follows that in our judgement an appeal based on GW’s application to adduce fresh evidence would have no reasonable prospect of success, and is, accordingly, refused.

GW’s Fax of 12 July 2007

[121]After we had reserved judgment in these applications, we received a number of documents by Fax from GW, most of which are immaterial to the issues before us. However, attached to one such communication was a document entitled “Psycho-Diagnostic Report dated 5 July 2007. The report described an assessment of GW by a psychologist on 21 June 2007. As this judgment is being written anonymously, we do not propose to identify the author of the report. However, we make it clear to GW that it is of no value whatsoever in the proceedings.[122]The document purports to be a report “prepared for the court”. It is, of course, nothing of the kind. McFarlane J’s direction about such evidence is set out at paragraph 10 of the order he made on 7 March 2007 (see paragraphs 12 above). GW has not obtained permission from the court to disclose court papers to any expert, nor has he sought permission to obtain a report from any expert. It must be said that he had sought permission to instruct this particular expert, it is likely that permission would have been refused.[123]The report is of no forensic value not just because of the source from which it emanates and because no permission has been obtained to instruct the psychologist in question. It is of no value because it is based exclusively on what GW has told the psychologist, and because it has thus been written exclusively from GW’s point of view. We express some surprise that the psychologist in question;(a) should have accepted instructions in a case in which he plainly knows the court is involved and in which he equally knows that there has been no order that he can see the papers in the case and report; and(b) that he should have seen fit to express opinions about GW’s contact with his children without knowing all the facts.[124]Furthermore, the psychologist in question is well know for his views, which are controversial.[125]We do not know why GW sent us this document, and we only comment on it to assist him. McFarlane J, as paragraphs 99 and 100 of his judgment make clear, urges GW to obtain a psychiatric report on himself. By that, however, he plainly meant an objective report, obtained with the court’s permission, and with the psychiatrist in question having had the opportunity to examine the court papers. If GW thinks that the report sent us fits the bill, he is mistaken. We fear that he has simply wasted the large sum of money the report appears to have cost him.

Conclusion

[126]In our judgment, all GW’s applications are without merit and must be refused. Answering the questions we posed in paragraph 20 of this judgment, the answer in each case is clearly and plainly “no”.[127]We cannot, however, leave the case without expressing our complete agreement with the judge that this is not a case of parental alienation. This is not a case of maternal deceit. In our judgment, McFarlane J has striven to achieve the best result he can for the two children whose welfare in the proceedings is paramount.[128]In our judgment, GW sees this case exclusively through his own eyes, and not through the eyes of the children. What he has to try to understand is that whatever his feelings about PB, those feelings are not shared by the children, nor should they be. The Family Justice System operates, as has frequently been stated, on the basis that the children of separated parents have the right to enjoy the society and love of both their parents. This case is no exception. It is quite wrong, however, for one parent to seek to impose his or her views about the other on the children. It is plain that PB has not done this. Had she done so, she would not only have done the children a severe disservice, but the children themselves would now be saying that they hated their father and did not want to see him. They are not doing that. GW needs to ask himself why, and give PB the credit she deserves for maintaining her view that it is in the interests of the children to have a relationship with their father.[129]We repeat: the only reason GW is not seeing his children is his irrational refusal to implement the court’s order. It has nothing to do with the system. We find ourselves in complete agreement with the judgment of McFarlane J and we therefore end this judgment by repeating the words spoken by the judge at the conclusion of his judgment:- At the conclusion of this judgment I make one final plea to this father that, for the sake of the children, he asks himself the question that I posed earlier, namely:
“Is there something amiss with the system, or may there be something amiss with the man?”
I would urge both the father and the mother to give the option of psychiatric advice and intervention a try. It is unlikely to do any harm and may open up the way to contact.

order

the second was an application to adduce fresh evidence. At the conclusion of GW’s submissions to us, we reserved judgment. Why did we reserve judgment?

Cited in 3 later judgments