|
Front
page of Petition | Petition
| Appendix
2 | Appendix 3 case ii | Appendix
3 case iii 1 | Appendix
3 case iii 2 | Appendix
3 case iv | Appendix
3 case v | Appendix
4
Appendix 3 case
ii Abridged background 1. This is an application arising as a result of all domestic remedies in the UK having been exhausted. There has been an order and judgment made on April 19th 2002, in the Supreme Court of Judicature, Court of Appeal (Civil Division) on Appeal from the Portsmouth County Court, (heard by His Honor Judge Milligan), before Mr. Justice Sumner, a High Court judge in the Court of Appeal. The application reference was B1/2002/0250. The order and judgment were made following my application to appeal the order and judgment made on January 22nd 2002 in the Portsmouth County Court. 2. The previous order made on April 12th 2000 was under complaint but I had been unable to appeal because the facts of the case in the report for the legal aid board were inaccurate and distorted resulting in no chance for a fair and proper hearing. There has been new evidence since, particularly as the reports by Social Services can be shown to be biased, false and the writers not acting impartially or independently. Factual background 3. The Applicant met the Defendant in Spain in 1989 whilst he was the Head of Studies of an English Language school and the Defendant was the new secretary. The parties married in August 1990 in Bristol, UK. Two children were born to them, the first M.A.O’Connell (born 25.8.91) and the second A.P.O’Connell (born 8.10.93), both born in Southampton, UK. 4. After the birth of the first child the Defendant began having serious emotional and psychological problems of a personal nature. This was diagnosed in Southampton, UK after cursory investigations as three years of post-natal depression ‘with some features of post-natal depression.’ The community psychiatric nurse was not aware of the background in full, nor aware of the allergies, migraines and low back pain experienced by the Defendant. I was not asked regarding the symptoms that were relevant to any such diagnosis. I was trying to support the Defendant in getting appropriate help for her problems. The notes of the meeting with the community psychiatric nurse who interviewed us individually and together have never been made available. 5. On moving to Spain to help her get better (August 1994), the state mental health team in Madrid diagnosed ‘depressive anxiety, with complex neurotic symptoms of the phobic, asthenic, and particularly somatoform line. Further influenced by significant psychopathological factors in the structure of the personality of the patient’ (A later diagnosis of manipulative was ripped up by the Defendant before returning to the UK). The Defendant was seen fortnightly until April 1995 when a private psychologist became involved. 6. The Defendant’s condition was diagnosed in June 1995, after a battery of psychological tests, as emotional instability due to unresolved conflicts with her mother, father and the previous ten year relationship with a man twenty six years older than her (from the age of eighteen to twenty-eight) at which stage I had become involved. After more violence against me, (violence which had been on-going since April 1994) we split up, but the defendant later agreed to return to the UK away from her dysfunctional family and to address her problems of personal origin. The UK Authorities including Social Services despite the court order and the concerns for the children’s health and safety have never sought the Spanish notes. 7. After returning to the UK in November 1995 her previous behaviour began again until eventually on 25th May 1996 I felt that I had no choice but to leave. I was concerned for my safety and had been threatened with violence if I tried to take the children. The GP had referred the Defendant to a psychiatrist for post-natal depression; he alleged he was unaware of the Spanish diagnoses, or of the concerns for the children identified within them. A Counsellor for the Defendant was never made aware of the in-depth diagnoses and the concerns for the children either, despite the Defendant being referred to the Counsellor by her GP. 8. I had previously spoken to the GP about the situation but had been told simply to take the children out ‘when she gets like that’. The Health Visitor had arranged for parenting classes for the Defendant. I told a social worker, who visited regarding payment for help with nursery care, about the Defendant’s behaviour. The Defendant wanted nursery care three days a week for our son as she had problems coping with him. I began teaching again in January 1996. 9. I notified Social Services and the Defendant’s psychiatrist within 3 days of leaving, as I was concerned for the health and safety of the children. I moved to nearby rented accommodation to keep an eye on the children. I had fairly regular contact with the children but she even abused them in front of me. Being unable to support the children and having notified the authorities of my concerns I moved to Bristol in September 1996, hoping that she would improve as I felt that some of her behaviour was directed at me but could not understand why as it was illogical and seemed like intense hatred for me and a lack of understanding of the children’s needs. 10. I stayed with my parents until December 1996. I had regular contact with the children, travelling by train and bus at least every other weekend and for more than half the holidays. The children were often reluctant to return to the Defendant, particularly my daughter; my son was very young at the time too young to know what was happening. My son was so young he needed a great deal of support. They often looked frightened to return. 11. In January 1997 I rented a two-bedroom flat in Bristol so that the children could live freely with me without any interference. At the time the Court Case started. I was in Bristol until September 1997. 12. Throughout this period the children were very happy and content with me but I noticed peculiar behaviour including reciting numbers, hiding under a table for hours, staring into space and crying hysterically for no reason. A Court welfare officer was involved at this time. She did very little; she told me that my solicitor was not doing his job. She had refused a joint meeting on the basis of the Defendant’s false allegations. The court had ordered a psychiatric report on the Defendant’s fitness for residence having seen her medical records and a court welfare report on the subject of residence/ contact. 13. The children told me what the mother was doing to them when I collected them. This included :- my son being locked as a means of a punishment him, and keeping him in his bedroom at night, pursing the children’s lips as a means of punishment, chasing them around and threatening them that they won’t see their father. Throughout this time the children’s contact with me was greater than with the Defendant. I had to give up working three times because she could not cope. 14. When my daughter disclosed the locking in of my son to her class teacher at school, the Head teacher did not report it to Social Services but told the Defendant, for which my daughter was punished. This is confirmed in a report prepared by court welfare officer. 15. When my daughter and son told the Court Welfare Officer about the Defendant’s behaviour the Welfare Officer told the Defendant. As a result my daughter also got further punished by the Defendant for talking to the Welfare Officer 16. The same Court Welfare officer (CWO) refused to address these concerns, blaming me in her report for setting the children up and alleging that I had put pressure on the children. However, when I had recorded the Defendant’s boyfriend admitting everything to me, the Court Welfare Officer refused to listen to the evidence. I had spoken to the private psychologist on the phone; he refused to tell me why the children should not be with her. I begged him to give me one reason why the children shouldn’t be with her, and his response was ‘psychological abuse’. The CWO had provided a report of which the integrity is very questionable and which included unprofessional statements such as ‘it is appropriate to lock a child in’ and which provides a very misleading impression of the facts of the case.
18. The judgement delivered was based on the Court Welfare Report and the letter dated 27.6.97 to the Defendant’s solicitor from the psychiatrist. This report does not take into any account any previous reports or emotional instability and neither does it address the specific questions that a court considering a child’s residence should would take into account. Indeed, as I later found out the psychiatrist was unable to do such a report and had he been instructed correctly, and in such manner as the court had ordered, he would have refused to carry out the report as he is not trained in such matters. The Defendant’s solicitors had requested and kept in their offices, the Defendant’s GP file so neither the psychiatrist nor my solicitor could access it. 19. At that hearing I had no legal representation because my solicitor had my legal aid withdrawn due to the CWO report and the psychiatrist’s letter. In October 1997 my solicitor threatened me to plead for contact only and not to apply for residence or he would apply to discharge my legal aid. He also refused to carry out my instructions. He withdrew my legal aid, as I could not bear to see my children suffer without giving myself a chance to fight for our rights. He refused to carry out my instructions. 20. After that hearing I paid another solicitor for a report on grounds for appeal as I had no legal knowledge but have been trained in child welfare issues and had serious concerns for the children’s health and safety. He stated in his report that there were no grounds for appeal. 21. On January 3rd 1998, the Defendant attacked me in public. Witnesses made statements to the Police that the Defendant looked mad, that the children did not want to go with her and that the children should not be with a woman like that. I did not press for criminal charges for the damage but requested that the Police Officer contact Social Services, as I was only concerned for the children. The Police officer spoke to Neil Toyn, a social worker, who referred him to the CWO. This was wrong. The CWO was not involved and had no statutory duty with respect to the children. The case law re: L, V, M and H are authoritative on the effects of witnessing domestic violence on the children and the need for an investigation into allegations. 22. Whilst the Police Officer informed both the Social Worker and the CWO of the fact that statements had been made and there were witnesses, no investigation was carried out, nor any notes made. Social Services have even denied knowing there were witnesses. Since then the Defendant has never approached near me. Since her violence against me was due to emotional disturbance, the Social Services should have made an investigation of the fact that the same problems still exists, given the symptoms demonstrated by the children and how they had been treated. 23. Out of desperation I wrote to Social Services and my GP detailing my concerns and dissatisfaction regarding the children’s health and safety. That letter was brought to the attention of the CWO who referred it to the judge. Social services did not take any action with regards to the concerns. I recorded the Defendant’s man-friend twice more and he openly told me of the locking in of my son to keep him in his bedroom at night, to calm him down after a paddy and to punish him. He also talked of finding this treatment acceptable and his agreement with it. 24. I was ordered to attend the court. During the hearing I was asked if I understood what contempt of court was, my response to the judge was ‘No, I don’t, but I think I am getting the message. Do you have any problems with the truth?’ This resulted in a review being ordered with a hearing on September 23rd 1998. The remit of that review was: The father do file a statement setting out the basis upon which his application for a residence order is made and in particular detailing his childcare concerns with supporting evidence, this to be filed by mid-day on Monday September 14 1998. 25. For that review I had presented a statement and evidence of the concerns that I had. I offered to withdraw my application for residence in exchange for child and family guidance. The judge thought that was a good idea and he advised me to contact the GP to request it. At the end of the hearing the judge asked questions of the Defendant: ‘Have you spoken to the boyfriend about the phone conversations?’ The reply was no and the judge then said ‘I don’t believe you.’ He also asked ‘I want an undertaking that you will not lock the child in again.’ The response was ‘nothing has changed since December 2nd 1997.’ At that hearing I had also been promised indirect contact by phone. On leaving the court the Defendant then broke the agreement (and withdrew my son from child and family guidance on the grounds that she could not take anymore behaviour work – I did not even know he was attending). 26. I was unaware of various factors at that stage that were of primary importance: As an example I will give the fact that my son unknowingly to me had been referred to child and family guidance without my knowledge or involvement. Due to my lack of involvement the Health Visitor and the child and family guidance team had no knowledge of the Defendant’s emotional/ psychological problems, of my son being locked in nor of my daughter’s wetting, urinary tract infections nor of my concerns for their health and safety and the evidence to support my concerns. 27. My son had been referred to child and family guidance concerning three years of sleep disturbance, for attention-seeking behaviour, and anxiety to his bedroom, all this and the state of the Defendant’s health, by virtue of her back problems, was all unknown to court or myself. Indeed as I also found out later Social Services had also set-up a care package including a taxi for the children to a school a mile away. Information which has never been made available to the court, yet which is extremely relevant given the connection of somatoform symptoms and emotional disturbance. 28. Since the priority was the children’s welfare the matter could have been addressed through child and family guidance and the co-operation of both the parents. I did not realise the extent of the Defendant’s denial and manipulation, or my lack of involvement with regards to the pertinent facts at that time. Child and Family guidance could have dealt with the emotional and psychological concerns and the children’s welfare. Contact between myself and the children was reduced to every three weeks until the January, as I was in debt through having to pay for all the transport costs myself and through having given up work three times to look after the children, and having received no state benefits during these periods. 29. The court had ordered defined contact as I had requested and also told me to request child and family guidance via the GP. This I did and the GP referred his concerns to Social Services as there were child protection concerns. Plainly the GP was as unaware of my son’s referral to child and family guidance as were Social Services. The Health Visitor who referred him works in the next building. 30. The GP referred his concerns to Social Services, who then later carried out an assessment of risk from December 1998 to June 17th 1999. There were serious errors with this assessment of risk. The concerns raised by the GP were never investigated: a) No meeting with myself took place, neither was any of my evidence requested nor taken into account. b) There was no investigation of psychological/ emotional concerns. c) There was no investigation into psychological abuse or the parenting. d) The social worker interviewed the judge and the court welfare officer: neither is trained in child welfare issues or able to diagnose the concerns presented. e) The judge should be impartial and as I understand from the written evidence gave statements contrary to that which he had said in court. f) The same judge in the judgement dated 2.12.97 simply stated that it is appropriate to lock a child in on the basis of the court welfare report and instead of reporting to the social worker, ignored it and the evidence to support it, and therefore condoned child abuse. g) Minutes of the meeting of the social worker and the judge have never been made available. h) I understand that at no stage did the court welfare officer or the judge disclose the truth i.e. my son being locked in, the Defendant’s emotional and psychological history or of the GP’s medical concerns for the children. 31. On June 17th 1999 I attended a meeting with the social worker. I had not been informed of the reason. I had thought it would be to address my concerns. I was shown the report dated 17.6.99 and told that if I did not accept her assessment of risk on the children’s welfare she would take child protection action against me. The team manager witnessed this. 32. When I read the report I noted that there was no mention of:- My son being locked in. The mother’s physical health. The mother’s emotional and psychological problems. My daughter’s daytime wetting and urinary tract infections. False allegations of sexual abuse against the leader of a crèche and playschool. My son’s sleep problems/ anxiety/rocking. The mother’s violence. Parental alienation syndrome. My concerns with regards to the children’s behaviour. 33. The outcome of the complaint against the psychiatrist was sent stating that if I had any concerns for the children it was the duty of social services to investigate the matter of emotional instability. The social workers did not carry out any investigation and relied on the judge’s statements that the psychiatrist had carried out a comprehensive assessment which was plainly untrue. I do not believe that the judge had been seen. I had sent the response to the complaint against the psychiatrist to the Social Services but they refused to acknowledge or address the concerns. 34. Naturally I could not accept that report as a genuine, impartial, independent assessment of the true facts of the case. I had pursued complaints against the psychiatrist and after sending the results of that complaint to social services they did not investigate. A response to my complaint against the Court Welfare Officer ended with ‘the appropriate place to examine any perceived inaccuracies is in the court setting’. There are no proper complaints procedure in place. It was strange to have such important decisions being made by an organisation little trained in their duties, without recourse to amend the report before the hearing, with only the right to ask a few supplementary questions at the hearing and no recourse after the event. 35. Due to my continuing concerns for the children’s safety I made an application to court for residence and/ or contact with a remit for: 1) An ex-parte hearing. 2) Directions for disclosure of the evidence relating to concerns of psychological abuse of the children from Spain. 3) If the above notes do show the risk of psychological abuse, for an experienced psychologist or psychotherapist to be ordered to carry out the court’s original request for a report on mother’s fitness for residence. 4) Permission to be given to pursue a complaint to the Ombudsman. 5) Interim support to be given to reduce the effects of that which the children have suffered including an independent psychological report. 6) The court welfare officer to provide a report on residence and or contact, after having seen all the available evidence including my tapes, letters, GP notes, Health Visitor notes, 7) Diagnosis of emotional instability, details of disclosures by the children, Child Protection procedures for Southampton City Council, and statements from witnesses. 8) An independent report on the children from the National Youth Advocacy Service. 9) The above to be carried out to allow justice to be done in the context of children’s welfare and either a transfer of residence or a situation in which both parents can contribute fully to the children and have their needs fully addressed. (Including their mental health) and to be fully stable and functioning adults. 36. This application was to take steps towards remedying the situation since my son’s sleep disturbances continued and the Defendant had taken away his birthday presents to teach him to stay in his bedroom at night and had threatened to take away all his toys if he did not stop getting out of his bed. My daughter had been hit with a remote control by the Defendant, for simply wanting attention from her. I had intended for the matter to be addressed to provide the necessary support as the Defendant’s behaviour towards the children throughout showed no change from her previous behaviour and there were symptoms by both children giving rise to concern. 37. Within the application were my concerns for parental alienation, psychological abuse, and the effects on children of witnessing violence and inappropriate parenting. An emergency legal aid certificate had been granted and an acting agent solicitor who was not familiar with the case represented me. 38. On October 27th 1999, the court ordered the following; Maggie Smith of Hampshire Social Services, who prepared the risk assessment dated 17 June 1999 to produce an addendum to that report having met with the father Applicant to hear of his concerns and make a further visit to the Respondent mother’s home to speak to her about them and the children to the extent that she may consider appropriate in their interests, such further report to be filed by Friday 26 November 1999. Each party to file a statement of their case concerning the present application by Friday 12, November 1999 together with statements of any other relevant and probative evidence that they wish to call by Friday 12 November 1999 and copies to be filed with Maggie Smith of Hampshire Social Services. 39. The court refused to order an independent person as requested or a psychological report. The judge did not direct as to the exact remit but it was an application under section 8 of the children’s act and understood by the judge to be a section 17 report i.e. a child in need. Child protection procedures state that it is not sufficient to limit a child protection concern to section 47 (a child at risk), but section 17 (a child in need) must be addressed within it. 40. A hearing was arranged for the 13th January 2000. My solicitor had asked for a barrister’s report on merits for the legal aid board. The barrister was never informed of the mother’s emotional and psychological problems or of the concerns and evidence that I had by the solicitor who again was not representing the facts of the case. Legal aid is only given if there is a 70% chance of winning the case, so the report could not be effectively challenged. 41. They used the assessment of risk and the court welfare report which were so badly flawed so as to be unfit for its purpose as being damning evidence against me. Again I was threatened to apply for contact alone or they would discharge my legal aid. The solicitor refused to address the fraudulent evidence. 42. As I was worried about the health and safety of my children. The solicitor discharged my legal aid. For that hearing the social worker’s report was not prepared. She had been off ill since 13th December 1999, coincidentally 3 days after receiving witness statements. 43. I requested that the hearing go ahead without her report as she was off ill for stress and none of my concerns were being investigated as she was ill. When I pointed out simple facts such as there were no concerns about my parenting in the reports or in the Defendant’s or her man-friend’s statements the Team Manager for Social Services and the Defendant’s legal team looked shocked: When mentioning the locking in of my son the Defendant screamed. The Team Manager for Social Services requested a special contact session with the children and I, but the judge refused this. The judge also stated that he would not hear any evidence pre-September 1998. He then contradicted this at the hearing on April 11th 2000. This was to prevent the social worker from having to investigate either emotional instability or the effects on the children from the abuse they had received or the fact that the judge had himself misled social services along with the court welfare officer. The judge refused interim contact, thereby showing biasness from the outset, as he had already decided the outcome. 44. Despite the urgency of the case concerning the health and safety of the children the court did not deal with the matter urgently but adjourned for six months until June 2000. This merely increased my concern due to the lack of contact and no knowledge as to what extent the children were being harmed. I wrote to the Court for an expedited hearing. This was granted for April 11th 2000, after a letter I sent to the judge upon receipt of the date of the next hearing. Just before the hearing I received the Health Visitor notes. I was shocked at the content. I had kept a diary throughout most of the period. Correlating the diary and the notes showed the Defendant had reported sleep problems over 40 times to the Health Visitor, and that many of the contacts coincided with times when the Defendant was violent in front of the children, including my son having nightmares. It also showed my son had been referred to child and family guidance in January 1998 and was attending when I was in Court in September 1998 asking for child and family guidance. 45. At the April hearing I represented myself in person. The evidence presented by the Social Worker can now be proven to be false after concerted complaints under section 26 of the children’s act and requests for information that she perverted the course of justice. 46. The investigation by the social worker was a gross abuse of procedure but the evidence for this has only become available after vigorous pursuit by complaint and request for information. The court refuses to address this new evidence. Some examples are: a. After the hearing for Direction the mother stopped all contact. Although she had said at the 27th October 1999 hearing to her solicitor that she did not want me to see the children again until the matter was finished, her solicitor told her to be quiet and they would talk about this later. b. The Social Worker met the children and the mother on 29-10-99, (in the addendum it was stated they met on 28-10-99) and at that meeting the social worker showed herself to be biased, and unable to act impartially and objectively. She made some gross errors in this matter but this information has only just been made available (March 26th 2002) from the children’s social service’s file. A file which I would not be allowed to see if I was abusive in any sense e.g.: c. She only spoke to the children on limited matters and did not address any of the concerns. The Defendant was in the room next door. (Under oath on April 11th 2000 she stated ‘when you actually work with children you deal with the issues they bring up at the here and now and you don’t take them back.’ This is simply not true. It is promulgating intergenerational abuse as the matters need to be brought out in any therapy work and dealt with). The social worker has simply let the children state whatever they felt safe to say and given the past punishment for speaking out is highly unlikely that the children would be able to talk freely or be able to diagnose their own conditions. d. She took a six-year-old child’s words above those of an eight-year-old. Neither child is mature enough for their words to be fully taken at face value. e. When my daughter told her she wanted to live with her father, she never enquired why and told her that it was simply due to pressure from her father. f. On the same day she also decided to write to the Police on behalf of the Defendant to warn of possible contact between myself and the children. This should have been an issue raised via the courts and not behind my back, especially given the lack of concern over my parenting and the lack of a proper assessment. Therefore she had already decided the outcome of any report and could not be said to be impartial g. The social worker never investigated the mother’s emotional and psychological history relevant to the welfare of the children. h. Emotional and psychological abuse concerns were never investigated or even considered as it was assumed to be an acrimonious divorce. Neither was there any investigation of factors in the Welfare Checklist nor of the Defendant’s parenting. i. There was only one meeting with the children and not two as stated both in her report and under oath. j. My statements and evidence were ignored because they were too long. k. I have never been seen with my children by the social worker. The only meeting on November 17th 1999 resulted in me walking out. The notes my brother and I wrote of that meeting were vastly different to the notes in the social services’ file. l. Neither the school, the GP or the Health Visitor
EVER took part in an assessment of risk. m. There was no investigation of daytime wetting by my daughter, as the social worker erroneously decided that she was inventing it for my benefit. n. My son had been referred to child and family guidance by the Health Visitor because of concerns of three years of sleep disturbances and anxiety to the bedroom. The Health Visitor was never aware of my concerns nor of the mother’s emotional and psychological history. o. Under oath the social worker stated that my son had been referred to child and family guidance because of my behaviour. p. The Welfare Checklist, which is obligatory on section 8 proceedings, was not used. q. Although the judge stated in his judgement that my concerns had not been investigated, he gave little consideration to the facts of the case and refused to allow further evidence to be sought. I was surprised that he took many of the comments by the Social Worker seriously. r. The social worker stated under oath that my son had been referred to child and family guidance because of my behaviour and then stated that ‘the reason that your children act in an inappropriate way is associated with the way you treat them!’ Many other comments she made whilst under oath are now proven untrue. s. Despite saying that she wished more fathers were as caring as I, the children wanting contact and the blatant lack of a proper assessment whether under section 17 or 47, and certainly not a comprehensive assessment or under section 17 or 8, the judge ignored the contradictions and my requests for further information to be made available. My McKenzie friend Anson Allen at that and two other hearings has provided his opinion of proceedings as a witness, as well as Matthew Mudge who was a McKenzie friend on 17.12.01. 48. The judge ordered that there be no contact direct or indirect, all costs against the father, a section 91(14) and reserved the case to himself again. It is obvious that the court has misled and misdirected them. The credibility of the evidence put before the court needed to be investigated. I immediately made section 26 complaints against social services, the GP, Health Visitor, and Infant school and also made various requests for further information including data protection act requests for assistance to try to re-open the case. 49. I was shocked at events and could not believe that this situation could arise on the basis of nothing when the concerns had never been investigated. I was so shocked at the events that I lost two stone in weight and eventually became homeless for two weeks. I did not work for nine months but pursued complaints. Initially, I complained against each body involved and then used that information against another body. 50. The new evidence clearly demonstrated the inconsistent and contradictory statements in the social work, court welfare officer reports and the manipulation of the true facts of the case. In view of this evidence I made further applications to court: 51. On 11th October 2000 I applied for leave to apply for interim contact whilst I pursued complaints. This was dismissed on 6th December 2000. Leave to appeal the decision was refused on 7th December. 52. I then applied on October 23rd 2000 for access to the social service’s files. This was overlooked and was not addressed until 2001, when it was again refused. 53. I applied for the social worker and her team manager to be ordered to attend court to explain why the court had been misled, using the outcome of the review. This was refused for lack of jurisdiction. 54. The evidence sent to court in the application and in letters requesting that the court act of it’s own motion were used by the judge to change parts of the judgement e.g. the dates of my children being seen for the second time were changed in one part of the judgement to February but remained January in the other. 55. Evidence from the above was faxed to the Defendant’s solicitors at the request of the judge for their comments, but the orders were made before they had responded. This was simply to advise them of my actions and evidence to prevent the matters being addressed and a further cover-up could then be perpetrated and or allowed against the children’s best interests. 56. The children’s grandparents had their second contact with the children in December 2000. As a result of which they reported concerns under section 17 of the children’s act to social services both verbally and in writing. Social Services declined to investigate or to state the reasons why. They pretended that the grandparent’s statement of facts was a court statement. The Defendant then stopped the children’s contact with the whole of the father’s family. The concerns reported certainly fell under section 17 of the Children’s Act. 57. Desperate for the health and safety and having no apparent recourse through the courts or socials services I organised a protest outside the judge’s house in March 2001 which went on the national news in April 2001. 58. A fourth application was made in September 2001 for shared residence and/or contact which was given a half-day hearing on December 17th 2001. I applied for shared residence and/ or contact. I also requested for a removal of the section 91(14), for an immediate resumption of contact whilst the matters be addressed for shared residence. The judge refused to allow the new evidence despite the relativeness for the concerns for the children’s health and safety and the misleading evidence upon which the previous judgements had been made. The judge stated that the welfare of the children is the responsibility of social services. The judge did not act in the children’s best interests. 59. The Defendant requested an adjournment to apply for legal aid. I informed the court that she would not be entitled to legal aid on financial grounds. It was just a delaying tactic. The judge allowed the adjournment for the requested 42 days until 22nd January 2002. 60. For that hearing I had presented a bundle with relevant details for the children’s present health and safety. I applied for shared residence and/ or contact. I had also requested a family therapist to be involved. The judge ignored the relevant evidence and the concerns presented. The judge dismissed all the evidence and the leave to apply was dismissed. The judge could have ordered a section 7 report before throwing the application out. All the costs were again put against the father with an order for no contact direct or indirect, section 91(14) and case reserved. 61. However, in paragraph four of that judgement the judge referred to a hearing on 5th October 2000 stipulating that: ‘Reference to the judgement that I gave on 5 October 2000 indicates that there was a further requirement, namely, that Mr O’Connell would have to understand and appreciate the risks posed to his children’s emotional health and well-being resulting from his obsessional conduct relating to these issues; for instance that Michelle suffers with some worrying condition associated with her genitalia in respect of which mother is inactive; and conduct typified by tape recording his children’s answers to thoroughly manipulative questions. I give these as examples only of the need for a sea change on this fourth count, namely, a willingness to consider the views of others, in particular professionals, as to where the children’s best interests are.’ 62. However from my own knowledge and from the court record there was neither hearing on that date nor any other referring to that fourth condition. Indeed, court service had written to state that the judge merely wanted some admittance of the initial three conditions, which I had satisfied as far as I was able. 63. In the judgement in paragraph five it states that: ‘It is Mr O’Connell’s essential difficulty that there can be only one view of his children’s best interests, namely his own, and that the view of any other person - be they court welfare officer, social worker, doctor, teacher – that does not agree with his own is simply wrong and ought not to stand in the way of his having a relationship with his children entirely in accordance with his own views about their best interests.’ 64. This is not true. I would accept their views but for the fact that I have evidence to show that they have misled each other, been misled and that the concerns raised have never been addressed. It is only by having an overview of this case that it is possible to see how the whole situation has come about and who has misled whom and when. It is not clear whether it was all intentional but the evidence shows a very clear evasion of responsibility by the Social Worker, the CWO and the court and a cover-up of wrongdoing. It was the responsibility of the social worker to look at all the evidence, and in a child protection assessment to contact the professionals, to see their notes and to make a factual report assessing under section 17 and alternative outcomes, not to knowingly mislead. 65. The fact is that I do accept the views of Social Workers, GP, teachers and court welfare officers but how they reached their views and the wilful failure to address the concerns for the children’s health and safety, I do not accept. 66 After being unsuccessful in applying for leave to appeal I made an application to the court of appeal for leave which was heard on April 19th 2002. I represented myself. I applied for leave to appeal under the Human Rights Act articles 3, 6 and 8 and for transfer to the High Court and for disclosure of evidence refused. I made the application based on the misleading evidence, actions against the children’s best interests, and that I had never had a fair hearing in the UK family courts. A bundle of over 1000 pages was presented to the court and additional material presented on the day. 67. Entering into the courtroom I was informed by the judge that I had twenty minutes to present my case. As I began to address the court the judge then told me that my application had failed without addressing the evidence or hearing my case. He reached the conclusion that there had been no violation of my human rights and yet the first sentence in the judgement was ‘I do not know if there have been any violations of the Human Rights Act’. During the hearing the Judge stated that I should apply for indirect contact this year and go to a contact centre next year because of the physical harm I have caused the children by raising concerns. I was appalled. There is no evidence to support this. 68. I do not know if there will be any changes in the judgement given that the court of appeal has had the draft judgement since April 23rd 2002 and I cannot believe that they need so much time to give their approved copy when they are only permitted to check spelling errors and sentences misunderstood by the transcribers, as Court Service informed me when I previously complained about changes of the judgement. 69. As the case is subject to a section 91(14) order, I made an application for leave to apply for contact. On 8/05/02 I applied to the lower court requesting a family therapist to help the father if in seeking information and complaining I have somehow physically harmed the children because the Court of Appeal in it’s judgement on 19th April 2002 alleged that I have physically harmed the children. I am unable to see the evidence for this so in this application I requested that the therapist have access to the bundle so that I may be shown the evidence of the harm, which I cannot see. The judge refused a hearing despite there was no evidence of any harm caused by me. However, the judge refused to give an order for refusing the leave. The refusal was given in a letter from the Court Service so that I could not apply to Court of Appeal. 70. The judge did not give any consideration for my right to a family life nor to address the children’s health and safety and I have grave concerns for the children given that not only is my son being referred to child and family guidance but his behavioural problems have been noted by school. My daughter was withdrawn from the paediatrician despite the same issues being prevalent as I had previously raised. This case is therefore on going but with no recourse in the court. I do not admit that I am an emotional risk to the children, when the concerns have never been investigated and the sad truth has been uncovered of deception and a failure of the child welfare bodies to be impartial, objective and to carry out their own procedures.
71. It is alleged that decisions of the UK Court dated 2 December 1997 and 12 April 2000 were based on false statements, incorrect and inaccurate facts. It also is also alleged that the decision of the court of appeal dated 19 April 2002 was not independent and not impartial. The false, incorrect and inaccurate facts by their very nature are a decisive influence when the decision was delivered. The Applicant alleges that the court has wrongly assumed that the Applicant is abusive, has caused physical harm to the children and 72. The Applicant also alleges that the court failed to give consideration to the fact that the Defendant was seriously ill and causing serious harm to the children, physical, mental, and psychological. The welfare of the children has been put secondary to the wishes of the court and the Defendant. Of fundamental importance is that the court has misunderstood the entire factual background and that the judgment is based on false statements and incorrect facts. 73. The court in giving consideration to the exercise of its discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found, expressly or by implication, matters to which the authority exercising the discretion ought to have regard, then, in exercising the discretion, they must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, they must disregard those matters. Expressions have been used in cases where the powers of local authorities came to be considered in relation to the sort of thing that may give rise to interference by the court. Bad faith, dishonesty-those, of course, stand by themselves-unreasonableness, attention given to extraneous circumstances, disregard of public policy, and things like that have all been referred to as being matters which are relevant for consideration. In the present case, the court did not give any consideration to the health and safety of the children’s situation and disregarded section 1 of the Children’s act, ie the child’s welfare is paramount. For the reasons above the Applicant alleges under the Articles of the ECHR that there is a BREACH OF ARTICLE (6) 1 - Right to a Fair trial 74. In this Application, it is clear there is a breach of Article 6. The Applicant was not given a fair trial. The decision reached by the court is biased. The Applicant alleges that the court was not acting impartially. In this case the court has acted against the best interests of the children. 75. The Applicant submits that the Decision of the Court based on false statements, incorrect and inaccurate facts amounted to an abuse of power, and for the court to wrongly assume that the Applicant has caused harm to the children shows that the Judge was not independent. 76. The Applicant submits that he has not been given the opportunity to make known the evidence needed for his claims to succeed, that the application for shared residence and for appropriate sharing of parental responsibility was at the very least a genuine wish for both parties fully involved in the welfare of their children. 77. The Applicant also submits that he was not given
the opportunity to comment on the evidence adduced by the court
in reaching their judgement (See Krcmar and Others v. The Czech
Republic Application No. 35376/97 Judgement 3 March 2000), that
the Applicants should be given the opportunity to comment on the
documented evidence. But this has been made extremely difficult
without access to the full facts and with solicitors who do not
challenge the biased reports. The psychological notes from Spain
should have been sought by the Local Authority; the notes on the
Defendant’s counselling should have been made available
to comment on their accuracy given the Defendant’s history.
The minutes of the meeting between the Court Welfare Officer and
the judge should have been made available. The Applicant should
be given the opportunity to comment on any documentary evidence
upon which the court based its decision. 79. Under oath the Social Worker wilfully misled the court. Family Law proceedings are inquisitorial rather than adversarial in nature and it was not fair for the Social Worker to mislead the court even when under oath. Her statements are now proven to be largely invention and not based on facts. 80. Whilst the judge was led to believe the assessment was made under Section 17 of the Children’s Act, the review panel referred the Social Work assessment to be made under Section 47. These lower level concerns will still result in medium and long-term harm and give rise to concern of the children being more likely to have criminal tendencies. The court refuses to address these issues and also the mother’s emotional and psychological history. The child welfare system is simply promulgating intergenerational abuse. This will have a cost to society and cannot be said to be in the best interests of the children themselves and society at large. The only reason in this case for the failure to act is that there is a gender bias within the Social Welfare System. It is for the Local Authority to address these issues in order to reduce the level of crime and harmed caused by intergenerational abuse. Since my son has been referred to child and family guidance for the second time, and concerns are now being shown at school and my daughter still has daytime wetting, the Local Authority are refusing to carry out their duty towards the children’s welfare.
1) Psychological and emotional problems, which have never been investigated. 2) A history of violence, which have never been investigated. 3) Making false allegations of abuse and violence towards the partner. 4) Making false allegations of sexual abuse against child welfare persons. 5) Abusive behaviour towards the children without a full and proper investigation. 6) A father who locks their child in to punish him, in order to calm him down after a paddy and to keep him in his bedroom at night. 7) A father who misleads the school and school nurse with regard to the children’s absences, their health and such matters as daytime wetting, and urinary tract infections. 8) A father who demands no contact with the mother on spurious grounds with no evidence and neither would the court or the authorities collude to hide such behaviour and then knowingly mislead other child welfare persons of the facts. 9) False allegations by the Defendant were accepted, whilst the evidence that I had put forward to being the victim of domestic violence were either ignored or not taken into account. This would not be the case were I a woman. 10) The child protection system with regards to domestic violence in the UK is biased against men. It is inconceivable that such a father would be given sole residence. 82. It is well known in the UK that the Family Law system is prejudiced against fathers. Fathers have now taken to demonstrating outside judge’s houses. Voluntary groups such as Families Need Fathers, Equal Parenting Council, Dads against Discrimination, Shared Parenting Groups, Livebeat Dads are all becoming more vocal in their criticism of the Courts.
83. The Applicant submits that there has been interference by the local authority with the Applicant’s right to respect for the family life of himself and his children, particularly endangering the health and safety of the children. The applicant also submits that this interference is not in accordance with the law nor in pursuit of a legitimate aim, ie not in the interests of economic well being of the country and the preservation of social cohesion. The Applicant further submits that this interference was not necessary in a democratic society that the applicant and his children were entitled to have their family interests carefully considered by the national authorities and weighted in the balance as against the needs and benefit of children, but not to allow officers to act dishonestly, ignoring the proper procedure and waive the mandatory requirements of the Children’s Act. 84. The Applicant has had no direct contact with his children since October 26th 1999. No indirect contact since March 2000 and no phone contact since early 1998. This resulted from the false allegations and procedural defects made by officials. 85. The Social Services Department stopped contact October 29th 1999. The Applicant was unable to challenge their decision via the courts, complaints procedures or otherwise. 86. Neither has the Applicant been able to challenge the initial assessment of risk dated 17.6.99 which the Social Worker used to stop contact and raise child protection concerns regarding the Applicant. The Social Worker wrote to the Police regarding the Applicant’s contact with the children, which the Applicant has never been able to challenge or even knew about until March 2002. In doing so the Social Worker demonstrated partiality. 87. The Applicant used the Local Authorities and Health bodies’ complaint’s procedures under Section 26 of the Children’s Act in order to obtain information. These procedures have merely acted to protect the Local Authority and others. The ‘independent’ review person was not independent. The bodies involved; Social Services, GP, Health Visitor have all been in contact with each other regarding the Applicant’s complaints in order to take a joint approach against the Applicant’s complaints. 88. On March 26th 2002 the Applicant saw the children’s social service’s file; the concerns raised by the Applicant were not taken seriously because the social workers had regarded this as an acrimonious divorce from the outset. There was no proper assessment of risk. There was no pro-forma for an assessment in the children’s social service’s file. The report was misleading. He did not report the facts as they are. The result is that the review panel were misled too, The Applicant’s evidence was not put to them, as the Applicant was informed by the complaint’s officer the process was not quasi-judicial. The full facts had not been fully disclosed to the Applicant. 89. The right to contact has been fully recognised in the European Courts. Three judgements in particular are relevant: Hendriks v Netherlands (1983) 5 EHRR 233. The right to have contact enforced and enabled by the state is within Hokkanen v Finland (1995) 19 EHRR 139 (50/1993/445/524). In Margareta Anderson v Sweden application No.61/1990/252/323,
it states: In the case OF SAHIN v. GERMANY (Application no. 30943/96) a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see Elsholz v. Germany cited above, § 49).
90. The Applicant submits that an appropriate means of obtaining a determination of his allegations, that the officers of local authority acted unlawfully, beyond their discretion, ultra vires, in abuse of their power and fraudulently, purporting there to be a full and comprehensive assessment when in fact according to the Social Services own records there has been no proper assessment of risk. The addendum for the court contains many false statements and inaccurate facts. This shows an abuse of office and action was without impartiality by wrongly assuming that the Applicant has caused harm to the children. (See case of Z and Others v The United Kingdom Application no. 29392/95 Judgement 10 May 2001) 91. The Court welfare officer cannot be pursued for her failures, for destroying the children’s file and for misleading social services. I have no recourse for the actions of the judge to whom this case is reserved. The Defendant’s solicitor cannot be pursued for their actions of making false applications for legal aid, mis-instructing the psychiatrist or acting adversarial in inquisitorial proceedings and acting on behalf of the Defendant but ignoring the welfare of the children. There is no recourse from the social worker’s failure to investigate with due care and for misleading the court. There is no recourse for those involved with the local Authority who has attempted to prevent the true facts from becoming known. The false allegations and assertions that the Applicant deserved the violence against him, that he is a danger to the public, has a mental illness and which have been made to third parties have caused the Applicant a great deal of distress. The Applicant only discovered all of this by making concerted complaints and using the Data Protection Act. Throughout this statement the Applicant has referred to the actions of those in authority. They have preferred to deny the Applicant’s children and the Applicant justice, and prevent their best interests being addressed whether under Section 47 or 17, and failed to deal with the issues that are the paramount concern of the Children’s Act: the children’s welfare. Article 14 - Prohibition of discrimination 92. In Conjunction with Article 6, the Applicant submits that the denial of his rights was not proportionate to the legitimate aim of preservation of the rule of law that the court failed to treat the Applicant equally to other citizens. 93. The Applicant also submits that the court has discriminated against the true facts of his case by accepting statements made by the court welfare officer and social services and dismissing the allegations and statements made by the Applicant in that situations of violence of female on male is not treated equally as violence of male against female. 94. Also, the Applicant has not had a fair hearing throughout these proceedings because of the underlying gender bias within the family courts and by the professionals concerned and the lack of policies which treat resident and non-resident parents equally. Without a shared residence order (section 11(4) of the Children’s Act), defined as ‘where a residence order is made in favour of two or more persons who do not themselves all live together, the order may specify the periods during which the child is to live in the different households concerned’, the authorities do not treat both parents equally. Article 17 - Prohibition of abuse of rights 95. The Applicant submits that the court perpetrated a denial of a fair hearing to the Applicant and that the Court abused its powers, aided and abetted the wrong doers, by allowing the Welfare officer to abuse her power, by accepting the fraudulent evidence and distorted report as true facts of the case.
Preface: The Children’s Act 1989 was brought in to dispose of the old idea of custody and access and to amalgamate both public and private law with respect to Children under one body of Law. The old idea of custody and access was seen as encouraging winner takes all and hostility between the parents. The intention of the Children’s Act for shared residence to become the norm was made during the passage of the bill and is available in the Hansard notes. Under section 11(4) of the Children Act 1989: “A Residence Order may be made in favour of more than one person at the same time, even though they do not live together. Such orders, which may specify in detail the periods during which the child is to live in the different households, are known colloquially as 'shared residence orders” Children Act 1989 Chapter 41 - (b) The administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration. (2) In any proceedings in which any question with
respect to the upbringing of a child arises, the court shall have
regard to the general principle that any delay in determining
the question is likely to prejudice the welfare of the child.
(a) The ascertainable wishes and feelings of the
child concerned (b) His physical, emotional and educational needs; (c) The likely effect on him of any change in his circumstances; (d) His age, sex, background and any characteristics of his which the court considers relevant; (e) Any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) The range of powers available to the court under this Act in the proceedings in question. (4) The circumstances are that- (a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or (b) The court is considering whether to make, vary or discharge an order under Part IV. (5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all. Parental responsibility for children. 2 (1) Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child. (5) More than one person may have parental responsibility for the same child at the same time. (6) A person who has parental responsibility for a child at any time shall not cease to have that responsibility solely because some other person subsequently acquires parental responsibility for the child. (7) Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child. (8) The fact that a person has parental responsibility for a child shall not entitle him to act in any way which would be incompatible with any order made with respect to the child under this Act. (9) A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another but may arrange for some or all of it to be met by one or more persons acting on his behalf. (10) The person with whom any such arrangement is made may himself be a person who already has parental responsibility for the child concerned. (11) The making of any such arrangement shall not affect any liability of the person making it which may arise from any failure to meet any part of his parental responsibility for the child concerned. Meaning of "parental responsibility". 3 (1) In this Act "parental responsibility" means all the rights, duty, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property. (4) The fact that a person has, or does not have, parental responsibility for a child shall not affect- (a) Any obligation which he may have in relation to the child (such as a statutory duty to maintain the child); or (b) Any rights which, in the event of the child's death, he (or any other person) may have in relation to the child's property. (5) A person who :- (a) does not have parental responsibility for a particular child; but (b) has care of the child, may (subject to the provisions of this Act) do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child's welfare. (2) The power conferred by subsection (1) may also be exercised in any family proceedings if the court considers that the order should be made even though no application has been made for it.
7. (1) A court considering any question with respect
to a child under this Act may- (b) ask a local authority to arrange for- (i) an officer of the authority; or (2) The Lord Chancellor may make regulations specifying matters which, unless the court orders otherwise, must be dealt with in any report under this section. (3) The report may be made in writing, or orally, as the court requires. (4) Regardless of any enactment or rule of law which would otherwise prevent it from doing so, the court may take account of- (a) Any statement contained in the report; and (b) Any evidence given in respect of the matters referred to in the report, in so far as the statement or evidence is, in the opinion of the court, relevant to the question which it is considering. (5) It shall be the duty of the authority or probation officer to comply with any request for a report under this section. Guidelines state quite clearly that a section 47 report must not exclude section 17 concerns. The Local authority's duty to investigate. 47. – (ii) is in police protection; or (b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare. (2) Where a local authority have obtained an emergency protection order with respect to a child, they shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide what action they should take to safeguard or promote the child's welfare. (3) The enquiries shall, in particular, be directed towards establishing- (a) whether the authority should make any application to the court, or exercise any of their other powers under this Act, with respect to the child; (b) whether, in the case of a child- (i) with respect to whom an emergency protection order has been made; and (ii) who is not in accommodation provided by or on behalf of the authority, it would be in the child's best interests (while an emergency protection order remains in force) for him to be in such accommodation; and (c) whether, in the case of a child who has been taken into police protection, it would be in the child's best interests for the authority to ask for an application to be made under section 46(7). (4) Where enquiries are being made under subsection (1) with respect to a child, the local authority concerned shall (with a view to enabling them to determine what action, if any, to take with respect to him) take such steps as are reasonably practicable- (a) to obtain access to him; or (b) to ensure that access to him is obtained, on their behalf, by a person authorised by them for the purpose, unless they are satisfied that they already have sufficient information with respect to him. (5) Where, as a result of any such enquiries, it appears to the authority that there are matters connected with the child's education which should be investigated, they shall consult the relevant local education authority. (6) Where, in the course of enquiries made under this section- (a) any officer of the local authority concerned; or (b) any person authorised by the authority to act on their behalf in connection with those enquiries- (i) is refused access to the child concerned; or (ii) is denied information as to his whereabouts, the authority shall apply for an emergency protection order, a child assessment order, a care order or a supervision order with respect to the child unless they are satisfied that his welfare can be satisfactorily safeguarded without their doing so. (7) If, on the conclusion of any enquiries or review made under this section, the authority decide not to apply for an emergency protection order, a child assessment order, a care order or a supervision order they shall- (a) consider whether it would be appropriate to review the case at a later date; and (b) if they decide that it would be, determine the date on which that review is to begin. (8) Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child's welfare they shall take that action (so far as it is both within their power and reasonably practicable for them to do so). (9) Where a local authority are conducting enquiries
under this section, it shall be the duty of any person mentioned
in subsection (11) to assist them with those enquiries (in particular
by providing relevant information and advice) if called upon by
the authority to do so. (11) The persons are- (a) any local authority; (12) Where a local authority are making enquiries under this section with respect to a child who appears to them to be ordinarily resident within the area of another authority, they shall consult that other authority, who may undertake the necessary enquiries in their place. Section 47 of the children’s act relies on the definition of significant harm. This is not strictly defined in the children’s act or working together under the children’s act but is defined within the children’s act as: Where the question of whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child The procedures to be carried out in undertaking any assessments are given in the guidance: Working together under the Children’s Act. It is plain from this case and other failures in the UK that the implementation of this in practise often fails. How is it possible for the GP and the Social Worker to be unaware that my son had been referred to child and family guidance, when the Health Visitor works in the building next door to the GP surgery. The procedures for sharing information when I had raised concerns seem to have failed. Has their been dishonesty or a failure in the procedures? The fully investigated case of Victoria Climbie ending in a tragic death which could have been avoided had each person involved, GP, Police, Social workers etc with their own legal representative. Each body blamed the other and none was willing to take ultimate responsibility. The review carried out shows that the procedures are not being followed in practise. ORDERS WITH RESPECT TO CHILDREN IN FAMILY PROCEEDINGS General: Residence, contact and other orders with respect to children. 8. (1) In this Act - "a prohibited steps order" means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court; "a residence order" means an order settling the arrangements to be made as to the person with whom a child is to live; and "a specific issue order" means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child. (2) In this Act "a section 8 order" means any of the orders mentioned in subsection (1) and any order varying or discharging such an order. (3) For the purposes of this Act "family proceedings" means any proceedings- a) Under the inherent jurisdiction of the High Court in relation to children; and (b) under the enactments mentioned in subsection (4), but does not include proceedings on an application for leave under section 100(3). (4) The enactments are- (a) Parts I, II and IV of this Act; (b) The Matrimonial Causes Act 1973; (c) The Domestic Violence and Matrimonial Proceedings Act 1976; (d) The Adoption Act 1976; (e) The Domestic Proceedings and Magistrates' Courts Act 1978; (f) Sections 1 and 9 of the Matrimonial Homes Act 1983; (g) Part III of the Matrimonial and Family Proceedings Act 1984. Restrictions on making section 8 orders. 9. (a) with a view to achieving a result which could be achieved by making a residence or contact order; or (b) in any way which is denied to the High Court (by section 100(2)) in the exercise of its inherent jurisdiction with respect to children. The power of the court to make section 8 orders 10. – (1) In any family proceedings in which a question arises with respect to the welfare of any child, the court may make a section 8 order with respect to the child if- (a) an application for the order has been made by a person who- (i) is entitled to apply for a section 8 order with
respect to the child; or (b) the court considers that the order should be made even though no such application has been made. (2) The court may also make a section 8 order with respect to any child on the application of a person who- (a) is entitled to apply for a section 8 order with respect to the child; or (b) has obtained the leave of the court to make the application. (3) This section is subject to the restrictions imposed by section 9. (4) The following persons are entitled to apply to the court for any section 8 order with respect to a child- (a) any parent or guardian of the child; (b) any person in whose favour a residence order is in force with respect to the child. (5) The following persons are entitled to apply for a residence or contact order with respect to a child- (a) any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family; (b) any person with whom the child has lived for a period of at least three years; (c) any person who- (i) in any case where a residence order is in force with respect to the child, has the consent of each of the persons in whose favour the order was made; (ii) in any case where the child is in the care of a local authority, has the consent of that authority; or (iii) in any other case, has the consent of each of those (if any) who have parental responsibility for the child. (6) A person who would not otherwise be entitled (under the previous provisions of this section) to apply for the variation or discharge of a section 8 order shall be entitled to do so if- (a) the order was made on his application; or (7) Any person who falls within a category of person prescribed by rules of court is entitled to apply for any such section 8 order as may be prescribed in relation to that category of person. (8) Where the person applying for leave to make an application for a section 8 order is the child concerned, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application for the section 8 order. (9) Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to- (a) the nature of the proposed application for the section 8 order; (b) the applicant's connection with the child; (c) any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it; and (d) where the child is being looked after by a local authority- (i) the authority's plans for the child's future; and (ii) the wishes and feelings of the child's parents. (10) The period of three years mentioned in subsection (5)(b) need not be continuous but must not have begun more than five years before, or ended more than three months before, the making of the application. The section 91(14) order (14) On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court. The use of the section 91(14) is now to restrict the number of applications in order to reduce the workload of the Family Courts. It has plainly been used as a tool in this case to deprive the children of a proper relationship with their father. The evidence presented show the misleading evidence should have allowed an application for leave and for this to be addressed. The judge can use his discretion but prefers to rely on misleading evidence. The judge is not interested with the best interests of the children or the welfare of the child which is the paramount consideration in section 1 of the children’s act. The judge could have ordered a section 7 report on the issues but instead the section 91(14) order restricts the father to having to accept misleading evidence as being in the best interests of the children. This is a blatant violation of article 6(1) and article 8 of the Human Rights Act. General principles and supplementary provisions. 11. (1) In proceedings in which any question of making a section 8 order, or any other question with respect to such an order, arises, the court shall (in the light of any rules made by virtue of subsection (2))- (a) draw up a timetable with a view to determining the question without delay; and (b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to. (2) Rules of court may- (a) Specify periods within which specified steps must be taken in relation to proceedings in which such questions arise; and (b) make other provision with respect to such proceedings for the purpose of ensuring; so far as is reasonably practicable, that such questions are determined without delay. (3) Where a court has power to make a section 8 order, it may do so at any time during the course of the proceedings in question even though it is not in a position to dispose finally of those proceedings. (4) Where a residence order is made in favour of two or more persons who do not themselves all live together, the order may specify the periods during which the child is to live in the different households concerned. (5) Where- (a) a residence order has been made with respect to a child; and (b) as a result of the order the child lives, or is to live, with one of two parents who each have parental responsibility for him, the residence order shall cease to have effect if the parents live together for a continuous period of more than six months. (6) A contact order which requires the parent with whom a child lives to allow the child to visit, or otherwise have contact with, his other parent shall cease to have effect if the parents live together for a continuous period of more than six months.
(a) a probation officer to be made available; or (b) a local authority to make an officer of the authority available, to advise, assist and (where appropriate) befriend any person named in the order. (2) The persons who may be named in an order under this section ("a family assistance order") are- (a) any parent or guardian of the child; (b) any person with whom the child is living or in whose favour a contact order is in force with respect to the child; (c) the child himself. (3) No court may make a family assistance order unless- (a) it is satisfied that the circumstances of the case are exceptional; and (b) it has obtained the consent of every person to be named in the order other than the child. (4) A family assistance order may direct- (a) the person named in the order; or (b) such of the persons named in the order as may be specified in the order, to take such steps as may be so specified with a view to enabling the officer concerned to be kept informed of the address of any person named in the order and to be allowed to visit any such person. (5) Unless it specifies a shorter period, a family assistance order shall have effect for a period of six months beginning with the day on which it is made. (6) Where- (a) a family assistance order is in force with respect to a child; and (b) a section 8 order is also in force with respect to the child, the officer concerned may refer to the court the question whether the section 8 order should be varied or discharged. (7) A family assistance order shall not be made so as to require a local authority to make an officer of theirs available unless- (a) the authority agree; or (b) the child concerned lives or will live within their area. (8) Where a family assistance order requires a probation officer to be made available, the officer shall be selected in accordance with arrangements made by the probation committee for the area in which the child lives or will live. (9) If the selected probation officer is unable to carry out his duties, or dies, another probation officer shall be selected in the same manner. The Local Authority never made any consideration for a family assistance order or even for supervised contact had their concerns been genuine. The Law on Supervised contact is given below:
31. – (1) On the application of any local authority or authorised person, the court may make an order- (a) placing the child with respect to whom the application is made in the care of a designated local authority; or (b) putting him under the supervision of a designated local authority or of a probation officer. (2) A court may only make a care order or supervision order if it is satisfied- (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to- (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child's being beyond parental control. (3) No care order or supervision order may be made with respect to a child who has reached the age of seventeen (or sixteen, in the case of a child who is married). (4) An application under this section may be made on its own or in any other family proceedings. (5) The court may- (a) on an application for a care order, make a supervision order; (b) on an application for a supervision order, make a care order. (6) Where an authorised person proposes to make an application under this section he shall- (a) if it is reasonably practicable to do so; and (b) before making the application, consult the local authority appearing to him to be the authority in whose area the child concerned is ordinarily resident. (7) An application made by an authorised person shall not be entertained by the court if, at the time when it is made, the child concerned is- (a) The subject of an earlier application for a care order, or supervision order, which has not been disposed of; or (b) subject to- (i) a care order or supervision order; (9) In this section-"ill-treatment" includes sexual abuse and forms of ill treatment which are not physical. "authorised person" means- (a) the National Society for the Prevention of Cruelty to Children and any of its officers; and (b) any person authorised by order of the Secretary
of State to bring proceedings under this section and any officer
of a body which is so authorised; "development" means physical, intellectual, emotional, social or behavioural development; "health" means physical or mental health; and (10) Where the question of whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child. At no time have the Court or the local Authority considered any other action other than stopping all contact between the children and myself based on misleading evidence. This is a blatant violation of our Human Rights given the failure to investigate the concerns I had raised. Even had I been an emotional risk or suffering from a mental illness, contact whether direct or indirect could have been instigated under supervision if necessary or indirectly whilst there was investigations as to me. PART III Provision of services for children and their families 17 (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs. (2) For( the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2. (3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare. (4) The Secretary of State may by order amend any provision of Part I of Schedule 2 or add any further duty or power to those for the time being mentioned there. (5) Every local authority- (a) shall facilitate the provision by others (including in particular voluntary organisations) of services which the authority have power to provide by virtue of this section, or section 18, 20, 23 or 24; and (b) may make such arrangements as they see fit for any person to act on their behalf in the provision of any such service. (6) The services provided by a local authority in the exercise of functions conferred on them by this section may include giving assistance in kind or, in exceptional circumstances, in cash. (7) Assistance may be unconditional or subject to conditions as to the repayment of the assistance or of its value (in whole or in part). (8) Before giving any assistance or imposing any conditions, a local authority shall have regard to the means of the child concerned and of each of his parents. (9) No person shall be liable to make any repayment of assistance or of its value at any time when he is in receipt of income support or family credit under the Social Security Act 1986. (10) For the purposes of this Part a child shall be taken to be in need if- (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to b |