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ER (A Child) Re (No 2) [2017] EWHC 2033 (Fam)

Application by a father for permission to appeal against various orders made in proceedings concerning contact between the father and his daughter.

The parties were married in 2010, thereafter separating in 2013. E, their daughter, was born in 2011. Initially, following separation, care of E was substantially shared, with E spending 5 days in every fortnight with Father. This was subsequently reduced, and reduced again when Mother and E, and Father and his partner, moved to different parts of the country.

Mother first issued proceedings in July 2014 seeking permission to take E abroad. What followed was a series of applications and hearings, including (i) two applications by Mother following Father's failure to return E to her care after contact in September and December 2014, (ii) a substantive hearing in October 2014, at which a Child Arrangements Order was made providing that E should live with Mother and have defined contact with Father (two weekends out of three and one half of the school holidays), and (iii) an unsuccessful application by Father for change of E's residence (February 2015). A costs order was made against Father in February 2015, in respect of the September, December and February matters.

Between October 2016 and April 2017 the matter came before the court on many more occasions, the pertinent dates for the purpose of this judgment are as follows:

Father sought permission to appeal five of Judge Tolson's decisions. Baker J considered each of Father's complaints in turn:

(a) Appeal against the costs order made on 5th February 2015 – Father argued that he was not present, had limited notice of the hearing and had IT issues. Baker J concluded that Judge Tolson was plainly entitled to make costs orders as a result of Father's misconduct in retaining E without agreement. The fact of an ex parte hearing or limited notice did not preclude the making of costs order. The decision was manifestly in Judge Tolson's discretion and proportionate.

(b) Appeal against the decision on 27th October 2016 to reduce contact to every fortnight – This decision was made on the basis of the Father's oral evidence, which did not cover all the issues, and detailed submissions from counsel, without Father having the opportunity to file written evidence. Baker J, pointing out the well recognised case management powers, including in appropriate cases confining the scope of proceedings by limiting the evidence (whilst also ensuring that each party receives a fair trial), found that the course taken by Judge Tolson was not wrong or procedurally irregular.

(c) Appeal against decision of 17th March 2017 – Suspension of contact was ordered without hearing oral evidence, although Judge Tolson had considered Father's lengthy written statement and had heard his submissions. Judge Tolson concluded that, on the evidence available at that point, the current contact was of no advantage to E and was in fact a significant detriment. Rejecting the submission that Judge Tolson had insufficient evidence upon which to suspend contact, Baker J concluded that he had no alternative but to do so and that he was entitled to take that step without conducting a full hearing. Father's 17-page statement constituted evidence, which was plain to see.

(d) Appeal against Judge Tolson's refusal of Father's recusal application 22nd March 2017 – Father asserted that a study of the various transcripts demonstrated bias. Baker J, having read the transcripts, rejected this suggestion, describing Father's argument as 'fallacious.' Baker J noted that the fact of a judge making a decision which one party does not like does not mean that he is biased.

(e) Appeal against Judge Tolson's order of 21st April 2017 – Judge Tolson summarily refused Father's renewed application for staying contact. Having carefully read the documents filed by Father in support of his appeal, and all the transcripts, Baker J was entirely satisfied that Judge Tolson was fully entitled to take this course. Father was only seeking to re-litigate issues which had been decided on an earlier occasion and the decision to continue with same supervisor was plainly within his discretion.

Baker J concluded that although Judge Tolson elected to deal summarily with the applications put before him at a number of the hearings, he was entitled to do so, noting that:

"While all judges have to be careful when taking this course to ensure that the parties receive a fair hearing, I find that in this instance the judge's approach on each occasion was both proportionate and fair."

Summary by Emily Ward, barrister, Broadway House Chambers

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of her family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

Case No: 2017/0073
Neutral Citation Number:
[2017] EWHC 2033 (Fam)

On appeal from Central Family Court
HH Judge Tolson QC


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 1st August 2017

Before :

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Between :

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MR Respondent
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The Appellant appeared in person, assisted by a McKenzie friend
Hearing date: 8th June 2017
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1. This is an application by a father for permission to appeal against various orders made by HH Judge Tolson QC in the Family Court, initially in Oxford, latterly in Central London, in proceedings concerning the father's daughter, E, now aged 6. The respondent to the proceedings is the child's mother.


2. The parties were married in 2010 and E was born in 2011. According to the father, by this point the parents' relationship was in difficulties and in 2013 they separated. Initially, care of E was substantially shared, with E spending 5 days in every fortnight with the father. Subsequently that was reduced and reduced again when the mother and E moved to London and the father and his new partner moved to Gloucestershire.

3. Proceedings were then initiated under the Children Act 1989 by the mother in the Family Court in Oxford. In July 2014, it was alleged that the father failed to make plain his agreement to the mother taking E abroad on holiday. The mother applied to the court and permission was granted. In September 2014, the mother applied to court again when the father failed to return E after a contact visit. The court ordered the father to return the child.   On 3 October 2014, a substantive hearing took place at which District Judge Jenkins made a child arrangements order that E should live with her mother and should have defined contact with the father which, at that stage, was on the basis that E should spend two weekends out of three with her father together with one half of the school holidays under a detailed defined order for holiday contact. In December 2015, the father again failed to return E after a contact visit, and the mother applied ex parte and was granted an order for her immediate return.

4. In February 2015, the matter returned to court on the father's application to change the child arrangements so as to provide that E would live with him. The limited grounds on which he sought to justify this change included an allegation that E had been scratched by the family cat, which he claimed had threatened her sight. The judge observed that three-year-olds interfere with the family cat to their own detriment on occasions and this could not possibly be a basis upon which the arrangements for E's care could be changed. He concluded in his judgment:

"This application is unreal. It is all part of what appears to be [the father's] continuation of a battle which should have been resolved in October 2014. It is to be seen as part of his failure to return E just before Christmas to the mother's care, an action in respect of which I had to make urgent orders on the previous occasion when I dealt with this case. As I seem to recall saying on that occasion, [the father] simply has to appreciate that a court order is a court order. It is there to be obeyed and it is not be changed unless circumstances have changed radically." 

The judge was invited to make orders in respect of the costs not only of that hearing but of earlier hearings when costs had been reserved. He decided to reserve again the costs of the hearing in July 2014, but ordered the father to pay the costs of the proceedings in September and December 2014 which arose out of incidents when he had failed to return E after contact. He stated that it was plain that in principle the father should pay the costs of those hearings, although he reduced the sum claimed in respect of the hearing in December. The costs of the hearing in February were again reserved, although the judge observed that in principle the father should pay the costs. He directed the father to pay £2000 within twenty-eight days but suspended the balance for a period of one year.

5. On 27 October 2015, the matter came before Judge Tolson on an application by the mother to reduce staying contact to two weekends in four, and to make other adjustments to the contact arrangements, including the location of the handover at the beginning and end of contact which was moved to the Beaconsfield Services on the M40, having previously been at the Chievely services on the M4. Both parties were represented by counsel. The judge agreed with the mother's proposals. The order recorded that the court heard oral evidence from the father about referrals he had made to social services in London and Gloucestershire, the Metropolitan Police, and the NSPCC, and about his allegations relating to the mother's care of the child and her mental health issues, including what he described as her narcissistic personality disorder. The order further recited that the court found that there was no substance in any of the father's allegations. The father's application for permission to appeal the order was refused by the judge.

6. On 17th March 2016, the matter returned to court before Judge Tolson again, this time on the mother's further application to reduce contact. She alleged that the father was undermining her relationship with E by saying inappropriate things to her, talking to E about the proceedings, and making E feel responsible for how he felt. On that occasion, the father represented himself, as he has done at all subsequent hearings. The father filed a document at court on the morning of the hearing, running to some 17 closely-typed pages, expanding at length on his contention that the mother was suffering from a narcissistic personality disorder, denying the mother's assertion that he was giving instructions to E, accusing the mother of alienating E from him, setting out his further concerns about E's behaviour, and asserting that E wanted to live with him and his partner. He referred to an incident when E had alleged that scratches on her face had been caused in a scooter accident when, according to the father, they had again been caused by the mother's cat and E had been encouraged by the mother to lie to the father because she feared that he would take the cat away. Having considered the document, and listened to submissions from the mother's counsel and the father in person, the judge decided to suspend the previous order and replace it with an order under which E would continue to live with her mother and spend time with her father at a contact centre under the supervision of an experienced supervisor once a fortnight, each visit to be limited to one hour. He directed Cafcass to prepare a s7 report addressing the mother's concerns about the father's parenting and its impact on the child's emotional wellbeing, whether or not the child's emotional needs were being met by the father, whether the child had suffered or was at risk of suffering any emotional harm as a result of the father's conduct, and whether the father had the capacity to promote a positive image of the mother, and to make recommendations as to future child arrangement orders. He listed the matter for a further hearing in June. The father again applied for permission to appeal and, again, the application was refused.

7. On 7th June 2016, following the filing of the report, the matter returned to court before Judge Tolson. I do not have a transcript relating to this hearing which is not part of the appeal in this case. It seems, however, that there may have been some minor adjustment in the contact arrangements on this occasion. In addition, as emerges from the transcript of the judgment delivered on 7th October, the judge in June also considered the possibility of instructing a child and family psychiatrist. That proposal, however, foundered, apparently on the grounds of cost. Thereafter, contact continued during the summer on the same supervised basis.

8. On 7th October 2016, the matter returned to court before Judge Tolson again. The judge considered the evidence, including a report from a consultant adult psychiatrist, whom the father was consulting with a view to obtaining some therapeutic assistance. The judge also had evidence of the mother that, on a visit to a museum, the father had whispered to his daughter that he was feeling depressed, and that she had subsequently repeated this to the mother. The father strongly denied that any such incident had taken place and relied on the fact that the contact had been supervised by an independent social worker who gave evidence that she did not observe or overhear the father make any inappropriate comments. The judge concluded, however, that the incident had happened, saying:

"I accept the mother's evidence that E has told her that during a trip to a museum, notwithstanding close professional supervision, the father was able to whisper into E's ear the fact that he, the father, was feeling depressed. This, I think, was an action by the father which he could not control in his desire to let his daughter know his anxieties"

9. The judge also observed of the father that he:

"allows his anxiety to spill out, both in his conduct of the proceedings in court and in his behaviour towards his daughter."

The judge found support for this assessment in the report of the psychiatrist who had spoken of the father's "marked anxiety with respect to the court proceedings, his interaction with his ex-wife and the fear of ceasing to have contact with his daughter".

10. At the conclusion of the hearing in October 2016, the judge made an order that the father's contact with E should continue to be supervised (as it had been for some months); that it should take place once per fortnight for two hours on a Sunday; that alternative arrangements should be made if for any reason contact had to be cancelled; and that the father, who by this stage was in a relationship with another woman with whom he has a two year old daughter, could be accompanied on alternate contact visits by his partner, daughter, and her two older children. The judge also ordered that the mother should make sure that E spends such further or other time with the father as maybe agreed in writing between the parties and that "the development of the contact to unsupervised visiting and/or staying contact shall be determined by the mother in the first instance after giving due consideration to the progress made by the father as a result of his ongoing therapy". The judge further ordered that, in the event that either party make any further applications in relation to the care of the child, they shall be allocated to and heard by himself.

11. On 21st October 2016, the father filed a notice of appeal against Judge Tolson's order of 7th October. On 16th December, having received the transcript, I directed that the application for permission to appeal be listed for an oral hearing. On 26th January 2017, I dismissed the application for permission to appeal. In my judgment, I concluded that the judge's findings – and his analysis of the mother and father – were  manifestly within his discretion. At paragraph 25, I observed;

"[The judge] saw the parties over several hearings and was therefore fully able to reach an assessment of their evidence. That is essentially a matter for the judge at first instance. The father may not like the judge's conclusions, but it is inevitable after the hearing that one party or another – or both – is likely to disagree with some or all of the judge's analysis. Having looked carefully at the documents, and in particular the transcripts, I can see no reason for an appellate court concluding that this judge's assessment of the parties was outside the ambit of his discretion, nor anything to indicate the judge was prejudiced or partial, or that there was any other irregularity in the process."

At paragraph 27, I added:

"I can see no evidence that Judge Tolson was prejudiced against the father. The fact that the judge has repeatedly made findings against the father does not amount to evidence of prejudice. Equally, I am satisfied that this judge was fully aware of the potential disadvantage that the father was in as a litigant in person, and made all allowances for that fact in carrying out his assessment."

12. Meanwhile, the proceedings were continuing at first instance and there were further hearings before Judge Tolson. A number of supervised contact visits took place. It seems that there were a number of difficulties. According to a document which the father has filed, before one visit was due to take place in January 2017 he informed the supervisor that he would be reading E "The Boy Who Cried Wolf" and "talking with her about lying in reference to the scooter accident in the hope that the truth of the matter will then be on the record". The contact supervisor wrote to the judge expressing concern about the father's behaviour during contact.  On 7th March, the father applied for a further child arrangements order, seeking staying contact. At a hearing on 10th March before Judge Tolson, the father informed the court that the contact supervisor had resigned. The judge made an order that the court would consider the appointment of a new supervisor by email. He directed the parties to submit their choice of candidate. He further stated that he would not be re-opening the question of other child arrangements.

13. On 14th March, the father applied to the judge to recuse himself. The application was refused. The judge recorded in the order:

"I can see no rational basis on which it might be argued that I am, or appear to be, biased, especially given this very narrow remaining issue and my order on the subject. I have decided important issues against [the father] in the past, but that does not amount to bias or even an appearance of bias. The father's statement in support boils down to the contention that I was against him, and the contention that I was rude to him. I was against him (on the issues) but I was not rude to him. Should any further appeal process result in fresh hearings then I can see that it would be desirable for the matter to be heard by a different judge, but that is another matter. To the extent that [the father's] application is for me to recuse myself from any wider consideration of his case now or in future, I refuse that also on the same basis."

14. On 21st April 2017, the matter returned to court before the same judge. A transcript of the hearing has been produced. At the outset of the hearing, the judge indicated that the only issue was the identity of the supervisor. The father immediately raised an objection, saying that he had filed a C110 application asking for staying contact but the application had been "vacated" without his being given an opportunity to make a submission. The judge indicated that he was not prepared to revisit the issue saying that there was "nothing fresh in the circumstances". The father retorted that "there is a great deal fresh in the circumstances" and referred to having obtained a further report. He also claimed that the "whispering" allegation was "a fairy tale". He reiterated his request for a different judge to take over the case, stating that "a fresh pair of eyes on this case are crucial on my daughter". The judge maintained his position that he would not reopen the issues, save for the identity of the supervisor. After further exchanges, the father suggested the name of an alternative supervisor and gave some details about that person. He then repeated his contention that supervised contact should never have been started and that the judge had been wrong to allow the mother to make the arrangements because she had proved that her aim was to alienate the child. He asserted that the supervisor's report about contact was "an outrageous piece of fiction". Counsel appearing for the mother was then invited to make submissions on the identity of the supervisor and pointed out that this was not the first time that the father had taken exception to someone in the proceedings and that this pattern would continue. For that reason, he submitted that there should be no change of supervisor (the existing supervisor having indicated that she was willing to continue). When the judge indicated to the father that he was minded to agree with this course, the father strongly objected, stating that the supervisor had lied in her reports, that the supervisor was "ultra-conservative" and "not right" and that E had demonstrated "a downward spiral in terms of her behaviour" and was "becoming feral on your watch".

15. The judge then gave a short judgment. According to the father, he attempted to interrupt and then walked out of court while the judgment was being delivered. The transcript of the judgment records that the judge noted that the history of supervised contact had not been happy because the father had been unable to cooperate with the supervisor's requirements; that, on the supervisor's accounts, he had been abusive towards her and inappropriate towards E; that nonetheless the supervisor was willing, with a degree of reluctance, to continue if the judge so ordered, but only on strict terms, in particular that the father should not have contact with her before or after the sessions; that the father had attempted to litigate again much broader issues, reopening the whole question of child arrangements  but that the judge had ruled that he was not prepared to allow this.

16. At para 6 of his judgment, the judge then observed.

"I am anxious, if I can, to keep some kind of contact going between E and her father, provided it takes place in acceptable circumstances and is of benefit to E. I should emphasise that, for all the heat generated by the father surrounding contact concerning the professionals involved, including the court, there is strong evidence in the form of the reports of [the supervisor] that the father is able to make the contact experience a positive one for E."

17. He decided to make an order simply to reinforce his earlier order of 7th October 2016 so that the father would still have available the facility of contact supervised by the same supervisor. At para 11 and 12, the judge added:

"I should briefly repeat that [the mother] is not someone who is any way alienating the father. She is, so far as she is able, determined to promote a relationship between the father and the child, and she is far better placed to determine in future what the level of contact should be …. In this case it is the father who is, emphatically, the author of his own misfortune. Again, this afternoon, over the course of a hearing lasting some 40 minutes, it has been extremely difficult to concentrate the father's attention on the points in question and to conduct a hearing which permitted both sides to speak. Again, the pressure of speech which [the father] has exhibited as well as the approach which he has taken demonstrate that all the old problems remain. Indeed, my impression is that things have distinctly taken a turn for the worse in that respect in recent months."

18. At the conclusion of the hearing, the judge simply made a small amendment to the order by providing that contact should be "strictly on terms fixed by [the supervisor]".

The father's current appeals

19. On 21st April 2017, the father filed a further notice of appeal seeking permission to appeal against three earlier judgments made by Judge Tolson, namely decisions relating to costs made at the hearing on 5th February 2015 (wrongly identified as November), and the orders dated 27th October 2015 and 17th March 2016. He explained his decision to appeal in these terms:

"It looked last summer as if things were going to improve, or at least I was lulled into a false sense of security. I therefore asked to postpone the appeal. I was only given the option to drop the appeal which I duly did whilst pointing out I may need to re-liven it if the alienation continued. Here we are. None of the following has ever been reviewed at all in respect of permission to appeal. I ask that this be done now. The alienation of E from her father and family has gone on long enough."

20. In respect of the February costs order, he complained that part of the award related to the ex parte application in December 2014 and stated "I am yet to understand how I can be responsible for costs from an occasion I wasn't informed about prior to, or was not present at." As for the September hearing, the father complains that he was informed of the hearing too late to attend, that he had tried to send a written submission by email seeking reconsideration of the order but had been unable to do so because of IT problems, and that he had not acted wrongly because the problems arose out of ambiguities in the child arrangements.

21. In respect of the decision made in October 2015, the father asserted in his grounds of appeal  and skeleton argument that it was not in the child's interest to reduce her weekends with him from 2 in 3 to 1 in 2. He said that this was "effectively sabotaging E's relationship with her stepsisters" and that it "did not uphold her basic human right to the respect for her family life and it did not respect the original separation agreement". In his skeleton argument he explained that, because his partner's children spend alternate weekends with their father, the amended order meant that E either spent every contact weekend with them or alternatively never saw them at all. The previous arrangement had worked well because it meant that on some weekends all the children were together and on other weekends when the older girls were away E was able to be just with her baby sister. The father also raised an objection to the judge's decision in October 2015 to alter the location of the handover at the start of contact to a place closer to the mother's home, arguing that it lengthened E's travel time, increased the risk of being caught in traffic, and reduced the time she spent with his family on Friday evenings.

22. In respect of the decision in March 2016 to suspend contact, the father asserted that it was not in E's interest and that the evidence to justify it was "woefully insufficient" and amounted only to the testimony of the mother which he described as untruthful. He repeated his case about the scratches on E's face and asserted that "the scooter accident story is clearly full of holes and yet the judge chose to believe it."

23. Subsequently, the father sought to extend his appeal to cover two more recent decisions made by Judge Tolson, namely his refusal on 22nd March 2017 to recuse himself and the order dated 21st April 2017. The father did not strictly comply with the procedural requirements for appealing these decision, but I agreed that his application for permission to appeal against these two orders should be considered as part of his ongoing appeal.

24. In respect of the judge's refusal to recuse himself, the father put forward a number of grounds, which are encapsulated in the following passage:

"Every single decision, of which there have been many over two and a half years of almost constant litigation in front of this judge, have followed precisely that which the mother asked for regardless of the interests of the child. This alone, to any observer, would present the impression of bias, particularly as the father has made no unreasonable requests …. The judgments of Judge Tolson have done two things: they have alienated E and her father further in their gradual reduction of time and they have supported the mother's projected view of the father presenting mental illness."

Further on in his grounds, he added:

"As this judge has found against me, the father, a litigant in person, in every last decision I now have no confidence to make representations to him. It is difficult enough facing an abuser in court. To have to do this strongly feeling that you are not being listened to is enough to ensure a great difficulty in getting valid points across. I have suffered a great deal of stress and have previously developed an anxiety issue on the back of the judge's judgments and the ongoing resulting alienation. For the reasons of health this case needs another judge, an impartial one."

The father also accused the judge of being rude, openly mocking him, adding

"he also struggles to keep his eyes from rolling when I speak. Being a judge is not a licence to be rude."

25. The father's grounds of appeal against the order of 21st April were set out in an email to the Family Division Appeals Office, and expanded in his skeleton argument for the hearing before me. He described the hearing on the 21st as a "bizarre experience", and stated that the transcript of the hearing would demonstrate that the judge was biased and that he had not been allowed to make a submission. He said that, when the judge continued giving his judgment without allowing him to make his submissions, he had told him that he did not recognise his jurisdiction and had walked out. The father repeated an assertion which he has made previously that the judge did not understand parental alienation, and that he retained the requirement that contact be supervised when there was no necessity for this, and furthermore that he had retained the same supervisor as before even though the father had complained about her to the regulator and was intending to sue her for libel. The mother had insisted on retaining the supervisor who, the father said, had lied about him – "this supervisor is patently working for the millionaire alienating mother". He submitted that the choice of supervisor should be a joint decision and that at the hearing he had "offered him a qualified alternative for his unnecessary supervision and he still went with the proven disruptive liar."

26. I listed the various applications for permission to appeal for an oral hearing on 8th June 2017. The father attended in person, accompanied by a McKenzie friend who had appeared with him on some of the hearings before Judge Tolson, including the hearing on 21st April 2017. In support of his case, the father repeated a number of the arguments which he had put forward in his written document. He also claimed, however, that the transcripts were inaccurate, in particular the transcript of the hearing and judgment on 21st April 2017. I was sceptical about this assertion, but decided to allow him the opportunity to listen to the tapes and make further written submissions. I therefore adjourned the application for permission to appeal and gave directions for the father to file further written submissions by 6th July.

27. The father listened to the tape and then filed written submissions. In the event, he dealt only briefly with the issue of the tapes, the remainder of his document reiterating his wider complaints, in particular that the mother had alienated the child and the judge was biased. So far as the tapes are concerned, he pointed out that the transcript of the judgment delivered on 21st April did not include the interjections which he uttered while the judge was delivering judgment and which were audible on the tape  ("I haven't made my opening statement", "What a cock" "I do not recognise your jurisdiction".) I assume that in approving the transcript of judgment, the judge, as he was entitled to do, made some amendments, including deleting the father's interjections. I do not consider this assists the father's case in any way. The father, supported by his McKenzie friend, had also asserted at the hearing before me that the transcript of the hearing was inaccurate because it did not record him spelling out the name of the person he was suggesting as an alternative supervisor. Having listened to the tape, he stated that this was not audible. He also asserted that other things he had said were missing from the tape.

28. The father therefore seems to be suggesting that the tapes and the transcripts have been doctored in some way. If this is indeed what he is suggesting, I reject it as wholly implausible.

Further discussion
29. An appeal can only succeed if the court is satisfied that the judgment or order at first instance was wrong or that it was unjust because of a serious procedural or other irregularity. Permission to appeal may only be granted if there is a real prospect of success or some other compelling reason why the appeal should be heard.

30. I shall deal with the father's various appeals by considering the decisions under appeal in chronological order. I start therefore with the appeal against the costs order made in February 2015. The normal practice in children's cases is for the court to make no order for costs, but the court retains the power to make an order if it considers the circumstances so warrant. In this case, the judge made an order for the father to pay part of the costs relating to two hearings at which he had been ordered to return the child after contact. In my judgment, the judge was plainly entitled to take the view that the mother' costs had been incurred because of the father's misconduct in retaining E without agreement and that a costs order was appropriate. It should be noted, however, that the judge carefully did not order the father to pay all the costs claimed, and also suspended part of the payment. The father complains that the second hearing in December was ex parte and the first hearing was also one at which he was unable to make representations. But it was plainly open to the court to make summary orders for return of the child in those circumstances, and the fact that one order was made ex parte and the other on limited notice did not preclude the making of a costs order. I consider the judge's decision on costs to be manifestly within his discretion and proportionate. The father is seriously out of time in seeking permission to appeal but, even if he had filed a notice of appeal within the prescribed time limits, there was no prospect of permission to appeal being granted.

31. I move on to the hearing on 27th October 2015. Again, I have read the transcript of the hearing and judgment delivered. As stated above, both parties were represented by counsel at that hearing. The decision to reduce contact from 2 weekends in 3 to alternate weekends was made on the basis of the father's oral evidence, which did not cover all the issues, and submissions from counsel, without the father having the opportunity to file written evidence. It is well recognised that, using their case management powers, judges may, in appropriate cases, confine the scope of proceedings by limiting the evidence. Indeed, judges are under an obligation only to permit such evidence as they consider necessary to resolve the issues. In doing so, they must of course be careful to ensure that each party receives a fair hearing.

32. In this instance, I do not consider that the course taken by Judge Tolson was wrong or procedurally irregular. By October 2015, he was familiar with the case having held several earlier hearings, and had identified concerns about the father's actions. These concerns were increased by the oral evidence he heard from the father about various matters. In the course of argument, the judge considered counsel's submission that there should be written evidence – and a s7 Cafcass report – and plainly concluded that this was unnecessary and disproportionate, and that the father's evidence could be given orally that day. The oral evidence did not cover all the issues which were subsequently ventilated in submissions, but in the course of his testimony the father spoke about his referrals to agencies, his reasons for believing that the mother had a personality disorder, and his concerns about E's violent propensities. He was also asked about the circumstances in which he had arranged for E to be baptised without informing the mother. In refusing counsel's application for permission to appeal, the judge pointed out that the father had had time since the service of the application to put in written evidence. There had not in fact been any direction for written evidence so the father cannot be criticised for failing to file it before the hearing. But in all the circumstances, I do not consider it unreasonable for the judge to have decided to determine the limited issues before him on the basis of limited oral evidence and submissions from counsel, which,, I note from the transcript, were detailed. The prospective appeal against the order of 27th October 2015 is, of course, seriously out of time. But even if had been made within the prescribed time limits, I see no real prospect of an appellate court interfering with this decision.

33. I turn next to the order of 17th March 2016. Again, I have read the transcript of the hearing and judgment. Having noted in the judgment the mother's contention that the father was unable to promote a positive image of her and in fact denigrated her and therefore that the mother now applied to suspend staying contact pending the completion of a Cafcass report, the judge then made these observations:

"[The father] would wish to resume the primary care of E himself. That has been apparent not in terms of any application before the court but from his submissions to me this morning. When listening to [the father] and when reading the lengthy statement which he has prepared for today's hearing, I have to bear in mind that he is a litigant in person and I see him in the raw, if I may put it that way, unfiltered through any legal representative. I have to bear in mind that rough edges in that situation will be exposed that would not be the case if he were represented. Nevertheless, it was justified, in my view for Mr Lazarides, counsel for the mother today, as he has been in the past, to open his submissions with the observation that the father's statement perhaps makes the mother's case more effectively than anything which she might herself have said. I add that listening to [the father] advance his submissions at this interim hearing, the same point might be made. There is an obsessional and intense nature to almost everything which [he] writes or says of which he himself is quite unaware. It is easy to see how that approach will be carried over into his care of E. He will not see this either."

Dealing with the scratches to the face, and noting that the child had claimed that this was caused by a scooter accident, the judge observed that the father

"seems to have been entirely unable to accept this explanation and to have quizzed E about it to the point of sending her to her room in order for her, as [the father] would have it, to tell him the truth; his thesis being that incident was a repetition of an earlier occasion when E's face had been damaged by the family cat. [The father] is unable to see that this is in and of itself an example of the emotional pressure that this little girl must be under."

34. The judge noted that he had not heard oral evidence, although he had the lengthy written statement from the father and had heard his submissions. He concluded that, on the evidence available at that point, the current contact was of no advantage to E and was in fact a significant detriment. He therefore concluded that he had no alternative but to suspend staying contact. Noting that the father had told him in evidence that he was under the care of the doctor as a result of suffering from post-traumatic stress disorder, the judge observed that it would be desirable in E's interest for him to obtain a report from a psychiatrist as to his own current mental health.

35. Once again, the judge took the step of reducing contact without a full hearing. In my judgment, however, he was again entitled to take that step. I agree with his assessment of the father's 17-page statement. It does indeed demonstrate the father's obsessive nature, lack of self-awareness, and failure to appreciate the impact of his behaviour and attitudes on E herself. I do not agree with the father's submission that the evidence to suspend contact and require contact to be supervised was "woefully insufficient". On the contrary, the evidence is plain to see in the father's own words. As the judge observed, the mother's case for a reduction in contact was made for her by the father's own words and actions. The father's application for permission to appeal against this order is again significantly out of time but, even if it had been made within the prescribed time limits, it would have had no chance of success.

36. The next decision against which the father seeks permission to appeal is the judge's refusal on 22nd March to recuse himself. The father asserts that a study of the various transcripts demonstrates that the judge is biased. I have read the transcripts. I do not agree that there is any evidence of bias. In his note submitted after the hearing before me, the father encapsulates his argument on the bias issue in these terms.

"The orders throughout this case all coincide with what the mother asks for. All requests and applications by the father have been ignored or refused. How can this not be biased?"

This is a fallacious argument. The fact that a judge makes a decision which one party does not like does not mean that he is biased. It is very common for a judge to decide all points in a case in favour of one party. That again is not evidence of bias. The father's argument that the judge must be biased because he has accepted the mother's arguments on every occasion merely demonstrates the problems which this father has in accepting that there is any valid view other than his own.  The judge dismissed the application that he should recuse himself stating that there was no rational basis for saying that he was biased. I agree.

37. I come finally to the hearing on 21st April 2017. The judge took the decision that the only issue with which he was going to deal at the hearing was the identity of the contact supervisor. He summarily refused the father's renewed application for staying contact. Having carefully read the documents filed by the father in support of his appeal, and all the transcripts, I am entirely satisfied that the judge was fully entitled to take this course. The father was only seeking to re-litigate issues which had been decided on an earlier occasion. I have considered the arguments which he put forward at the hearing, and in support of his proposed appeal, but in truth they amount to little more than a repetition of the arguments he had advanced at an earlier stage, together with his repeated assertion that the judge was biased. The judge's observation about the father's manner of speech, and the difficulties that had arisen during the hearing as result of the father's approach, are fully supported by the transcript. The judge's determination to persist with some form of contact, if possible, so that E could continue to have some sort of relationship with her father, is notable. His decision to continue with the same supervisor was plainly within his discretion. As stated above, she had spoken in her reports about how the father was able to make the contact experience a positive one for E. There is, in my view, no prospect whatsoever of an appellate court interfering with the judge's decision on 21 April 2017.


38. In this case, Judge Tolson has conducted a number of hearings in very difficult circumstances. From reading the papers and the transcripts of all the hearings, I conclude that the judge was fully entitled to reach the view that the principal responsibility for the difficulties lay with the father. The judge has concluded that the father's principal allegation, that the mother was alienating E from him, was unjustified, that the father has pursued a course of conduct that has caused, and is likely to cause, emotional harm to his daughter, that he lacks any real insight into the consequences of his behaviour, and as a result his contact needs to be supervised for the time being. I find that the judge's assessment is fully supported by the documents put before me, and the transcripts of the various hearings. The judge has elected to deal summarily with the applications put before him at a number of the hearings. While all judges have to be careful when taking this course to ensure that the parties receive a fair hearing, I find that in this instance the judge's approach on each occasion was both proportionate and fair.

39. In taking this course, Judge Tolson is not biased. He has formed an assessment of the merits of the case and made orders that he considers to be in the interests of E's welfare. The fact that the judge has decided to accept the mother's evidence and arguments on every occasion does not mean that he is biased. On more than one occasion, he has expressed regret that the consequences are that E's contact with the father and other members of the family, including her sister, is limited, but he has concluded that significant restrictions on contact are unavoidable because of the father's attitude and behaviour. I see no grounds whatsoever for saying that there is any real prospect of a successful appeal against any of the orders about which the father now complains to this court. Permission to appeal is therefore refused.

40. There is no justification for the father's intemperate criticism of the judge. The time has come for the father to reflect on his own conduct. He should change his approach and focus his efforts on doing his best to ensure that his contact with his daughter is a happy and rewarding experience for her. If he continues the battle in the way that he has done for the last few years, his relationship with E will be permanently damaged, to the lasting detriment of both of them.