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O (Children) [2005] EWCA Civ 573

Permission sought to issue an application for a residence or shared residence order. Permission granted.

B4/2004/2341

Neutral Citation Number: [2005] EWCA Civ 573

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM SOUTHAMPTON COUNTY COURT

(HHJ MILLIGAN)

Royal Courts of Justice

Strand

London, WC2

Thursday, 28 April 2005

B E F O R E:

LORD JUSTICE THORPE

LORD JUSTICE WALL

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In the Matter of

O (CHILDREN)

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(Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

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THE APPELLANT APPEARED IN PERSON

MR ROBIN SPON-SMITH (Appeared as Advocate to the Court)

THE REPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

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J U D G M E N T

1. LORD JUSTICE THORPE: This is an appeal directed in by order of Ward LJ on 17 January. It raised an important point, which was also raised by two other cases, as to the proper approach to the determination of an application for the assistance of a McKenzie Friend. That issue has been argued out this morning with the assistance of the advocate to the court, Mr Spon-Smith, and will be the subject of a reserved judgment that will be given by this court in due course. All I do this afternoon is to explain briefly how we deal with the remaining paragraphs of the order of HHJ Milligan, made on 1 November 2004.

2. The points are really threefold. What the applicant sought from the judge on that day at a without notice hearing was a direction that the case should be transferred to the High Court, and separately that Judge Milligan should recuse himself from further sitting. Lastly, the applicant sought permission to issue an application for a residence or shared residence order. That was necessary since there was in place an order made under section 91(14) prohibiting issue without permission of the court.

3. The applicant informs us that the restriction under section 91(14) was imposed by Judge Milligan five years ago or thereabouts, and was of indefinite duration. That is a form of order the propriety of which has been frequently questioned in appeals to this court. Accordingly, I would take the unusual course of saying that the judge should have addressed the application and decided it on 1 November. Had he done so, he would properly have perceived the need at least to grant it rather than to adjourn it indefinitely. There needs to be real progress and we have the assurance that the solicitor for the respondent has accepted that permission might be granted by this court this afternoon. He accepts that his client is fully protected since she will be able to deal with the application in the trial court on its merits.

4. Accordingly, all we need do is to say today that the application for permission to issue is granted. The applicant is therefore at liberty to issue in the Southampton County Court his application for either a residence or a shared residence order.

5. It is abundantly plain to me that Judge Milligan must part from this case permanently. We have had the opportunity of reading what I think may not unfairly be described as gratuitous observations by Judge Milligan to the applicant on 1 November, and I can well understand how a litigant would feel that justice would not be forthcoming for him before that judge in the light of those observations.

6. So the application when listed will be referred to Coleridge J, who will either take it himself or will arrange for it to be heard by another judge of his choosing, excepting of course only Judge Milligan.

7. Paragraph 1 of the order will in due course be set aside and an order granting permission to the applicant to disclose the papers in the case to a McKenzie Friend for the purpose of the proceedings only, and to have the assistance of a McKenzie Friend at any hearing until further order, will be dealt with in our judgments which we have reserved and will emerge in the orders which flow from those judgments. All we have done this afternoon is to validate the applicant's desire to issue in the county court.

8. We have provided that future proceedings should not be listed in front of Judge Milligan, and we have laid upon Coleridge J the burden of either hearing the application to be issued, or alternatively making arrangements on the circuit for it to be heard by another judge.

9. LORD JUSTICE WALL: I agree.

Order: the application for permission to issue is granted. Application when listed will be referred to Coleridge J, who will either take it himself or will arrange for it to be heard by another judge of his choosing, excepting only Judge Milligan. Transcript at public expense.