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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> R (Children), Re [2001] EWCA Civ 1880 (7 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1880.html Cite as: [2001] EWCA Civ 1880, [2002] Fam Law 268, [2002] 1 FLR 432

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE - FAMILY DIVISION
(MR JUSTICE SINGER)

		Royal Courts of Justice Strand, London, WC2A 2LL Friday, 7 December 2001

This is the judgment of the court.

1. In this appeal the mother and the father are respectively aged 49 and 53. They married on 30 August 1985 and have two children, G born on 15 April 1991 and J born on 14 October 1994. The mother comes from New Zealand and the family moved there in about 1993 for reasons immaterial to this appeal. Sometime in 1996 the mother and the children returned to England. The father resumed residence on 5 April 1998. The marriage broke down in July 1999. Essentially the mother left with the children. The father retained the matrimonial home and re-housed mother and children in a suitable property in the immediate vicinity. The father is a rich man whose income is almost entirely derived from a freehold commercial property let to a public company. He has always had a determined aim to share the children equally with their mother. His first application of 23 August 1999 was for contact. He stated:

"I wish to share contact equally with the petitioner so that the children spend 50% of their time with me, including their school holidays, half-terms and all other times to be equally shared."

2. The mother's counter proposal was broadly speaking contact to father alternate weekends and half the school holidays. A trial was avoided by an agreed order of 30 November 1999 that there should be a three month moratorium with no order as to costs. Litigation resumed with the mother's application for defined contact of 2 March 2000 and the father's application for defined contact of 12 April 2000. Nothing was achieved at the conciliation appointment on 10 May, the district judge providing for a hearing of the cross applications before a district judge in October. However on 18 July the father raised the stakes by issuing an application for residence. His essential case was that the mother's standard of care was deficient and that he could do better. Mr Justice Singer first dealt with the case on 28 July when he gave directions not only in the Children Act applications but also in the applications for financial provision which were listed to commence before him in September. The time estimate for the money case was five days but at the end of the week it was nowhere near finished. On 22 September Singer J allowed a further ten days for the money case and gave further directions in the Children Act applications. On 8 December Singer J ruled on the dispute as to the detail of Christmas contact. The father did not accept the ruling and unsuccessfully sought permission to appeal. In February the further ten days in the money case were completed and judgment was reserved. The arrangement was for the Children Act applications to be listed before Singer J to commence on 14 May with a time estimate of ten days. The judge deferred judgment in the money case until after he had decided the Children Act applications. The father had throughout been represented by leading and junior counsel in both fields. However in March he ceased to be represented in the Children Act proceedings and accordingly appeared in person before Singer J at the pre-trial review on the 3 May. The judge gave detailed directions including a firm timetable for all stages of the trial. The directions made it plain that the father would not be permitted to call witnesses on whose statements he relied without further leave. The husband applied for permission to appeal and for the judge's removal. His applications almost inevitably failed although in the course of the court's judgment the court did say that it was 'very conscious of Mr R's sense of anxiety, his sense that this judge has taken against him, his sense that justice will be denied'.
3. We have a full transcript of the trial recording all its developments between 14 and 23 May. The father waived his right to open and was extensively cross-examined by Mr Singleton QC, who appeared with Miss Eaton for the mother. At the end of the day the judge said that he wished Mr R to produce overnight a list of the factual issues upon which he sought the judge's ruling. Although Mr R protested, in the event both sides produced such a statement on the following day. Perhaps not surprisingly, since there were few concrete factual issues in dispute, the father's statement was not of facts which he sought to prove but consisted of a series of paragraphs dealing with the personality and motivation of each of the parents in their relationship with each other and in relation to their respective parental responsibility. For the same reason the document produced by Mr Singleton equally concentrated on personality, motivation and sincerity. Thus both statements only served to exacerbate the conflict and the antagonism between the parents. As an instance Mr Singleton's statement of 15 May asserted in paragraph 2:

"The father has demonstrated by his words and conduct that he has been unable to move on following the breakdown of the marriage. He has taken no adequate steps to seek appropriate or psychiatric or psychological help for this very obvious problem which has completely consumed him ...."

4. Then in paragraph 9 Mr Singleton asserted:

"The father's conduct of this litigation, and the impact it has had on the children, is such that his capacity to have further recourse to the court should be regulated under section 91(14) Children Act 1989."

5. On the following day Mr Singleton submitted what was headed 'supplemental position statement'. It is significant in at least two respects. In December 2000 the children and family reporter, after at least four home visits, had filed a full report recommending that the mother should have the residence order but that the father's contact should be extended, particularly so that his weekends were extended from Sunday evening to Monday morning. The mother had indicated that she was prepared to compromise the issues on that basis. Now on the third day of the trial she withdrew that offer saying that the nature and extent of contact had become a matter for the court and that she reserved her position as to the form of the contact order and the conditions to be attached to it. Secondly, again founding upon the father's evidence under cross examination, the supplemental statement included the following paragraphs:

"6. Before a final order in relation to contact is made the father should submit himself to a psychiatric examination by a consultant adult psychiatrist. The following consultant psychiatrists are suggested: Dr Nigel Eastman, Professor Christopher Cordess.

7. If the father refuses to be examined by a psychiatrist the court should not make a final order in relation to contact and must implement a framework within which the children could see the father whilst their interests are safeguarded.

8. In the light of the fact that the father appears in person the letter of instruction should be one approved by the court. A draft will be provided after findings have been made."

6. The only evidential foundation for these paragraphs seems to have been questions put by Mr Singleton at the very end of his cross examination of the husband. Mr Singleton put his point over the course of two pages which can be summarised in the following two exchanges:

"Q Sometimes when courts are worried about the parties or the whole family, they ask them to submit themselves as a family, parents and children, so that the court can have expert help and it is an on-going process. Would you have considered that sort of .... A I would be very happy to be guided by any good professional outside opinion that would help resolve this problem.

Q But sometimes, Mr R, when the courts are worried about one of the parties and feel that there is a continuing need to monitor that person's condition and the impact of that condition on the children in the case, they ask that parent .... to undertake to submit him or herself to a psychiatrist so that the court can have some help with how that person is likely to behave. A I am very happy to co-operate in any way, shape or form which would assist the court."

7. The father's evidence had been interrupted by the evidence of the headmaster of the school that the children attend. He was subpoenaed by the father and interposed. Although critical of the father for pursuing his point of view forcefully, to the point of bullying and intimidating adults, he had also said that the father had always impressed him as sincere in his concerns for the children's welfare, far more concerned than the majority of the fathers that he experienced. He also confirmed that J would like to be with the father, a point of great importance to Mr R whose case for a residence order rested to a considerable extent upon his perception of the children's wishes.
8. The mother's evidence commenced on 16 May and she was extensively cross examined by the father. However by the end of the afternoon of 17 May the father still had all of Friday morning allocated to him by the judge's timetable of the 3 May for further cross examination. The transcript reveals that the judge was becoming increasingly impatient with the father's efforts. At B2 468 the transcript degenerates to the point where the judge is intervening to the extent that in over two pages not a word is spoken by the witness in the box. At the end of the day Mr Singleton rose to say that it would be necessary to address the issue of weekend contact at some point on the following day. This is then recorded:

"MR R: Excuse me, my lord, what week-end contact?

MR SINGLETON: This week-end's contact.

MR JUSTICE SINGER: This week-end's contact.

MR R: In what respects?

MR JUSTICE SINGER: I do not know what the application is going to be.

MR R: Could Mr Singleton please tell me.

MR SINGLETON: Yes, I am going to suggest that it should be suspended.

MR R: What is your lordship's reaction to that.

MR SINGLETON: I have not made the application yet.

MR JUSTICE SINGER: I have not made a reaction."

9. On the following morning at the earliest opportunity Mr R made a statement:

"I do not intend to continue my cross-examination of this witness. I do not intend to call any further witnesses. My reason for this is I have come to the conclusion that over two trials that I have stood in before you, I feel it is incapable of the truth coming out and my receiving a fair trial, and I do not wish to subject decent and honest citizens to the sort of interrogation that I have had to endure in these two trials.

I am a perfectly sound, straightforward man and my reasons for bringing these proceedings are perfectly fair and reasonable. I will be prepared to subject myself to psychiatric tests on the condition that my wife does the same and the children are allowed the opportunity to see the children and family reporter.

The issues raised in this case and in the ancillary relief proceedings are such that I feel that they have become of public importance about the way these matters are conducted, and I intend to take my representations to a higher and wider forum.

My submissions to this court are closed. I leave it to the other side. This is my fax number at my office, and if you wish to stop the children seeing their father this week-end, perhaps somebody can notify me by one o'clock, so that we can stop the arrangements being put in hand to collect them before I get home this evening. I will leave it to you to get on with. Thank you, my lord."

10. The father had had in court with him as his McKenzie friend the solicitor who had acted for him throughout. Following the father's withdrawal from the proceedings the judge endeavoured to invite his return, alternatively to invite the father to allow his solicitor to return. The invitations were refused. Mr Singleton then during the course of the morning drafted and submitted a series of orders which he invited the judge to make to have effect until Monday 21 May. That the judge did. By Monday 21 May the court had received two faxes from Mr R. In a short fax he said that he was seeking a review of the judge's conduct and of his refusal to release the case. The higher and wider forum to which the father referred was, inferentially, the Lord Chancellor's Office, The President and this court. The husband's longer fax, extending to eleven pages, particularised his complaints in relation to Children Act proceedings. He emphasised the level of hostile cross examination permitted to Mr Singleton coupled with what he said was the judge's own very evident hostility.
11. The children and family reporter had been scheduled to give evidence on 21 May but he was stood down either by the mother's solicitors or the court. Again on 21st Mr Singleton made submissions, including closing submissions in writing on the cross applications. The judge extended holding orders over to Wednesday 23 May for judgment. On the following day Mr R faxed his written submissions to the court. These submissions are brief and pointed.
12. On 23 May the judge delivered his judgment, rejecting the father's presentation of the mother's performance, personality and motives, accepting the mother's contrary presentation and making the orders sought by Mr Singleton. There was a free standing injunction contra mundum preventing any publication indefinitely. Then there was the main order, granting residence to the mother by paragraph 1. Paragraph 2 reduced the father's contact to four days over the ensuing two months. It is necessary to set out paragraphs 3 - 11 inclusive in full:

"3. The applicant father is hereby restrained either by himself or through any third party from

(i) assaulting, threatening to assault, molesting, harassing, or pestering PAR.

(ii) communicating with PAR, GJR and JJR.

This shall include

(a) direct communication;

(b) telephone calls;

(c) text messages;

(d) facsimile transmission;

(e) e-mail;

(f) letter.

For the avoidance of doubt this shall not include communication during contact as ordered by the court, or as agreed between the applicant father and the solicitors acting on behalf of the respondent mother, in writing.

(iii) save as may be necessary for the purpose of contact as ordered by the court or as agreed between the applicant father and the solicitors acting on behalf of the respondent mother in writing, entering or approaching within 100 yards of

(a) MFH aforesaid,

(b) .... .... School, ....

(c) Any other property at which PAR, GJR and JJR are staying or visiting.

(iv) contacting, whether directly, by telephone, facsimile transmission, e-mail, letter or howsoever otherwise any member of staff at .... .... School.

4. The applicant father shall not either by himself or through any third party:

(i) discuss with the children any aspect of the issue of residence or contact,

(ii) discuss with the children any aspect of these proceedings, or any other proceedings (including proposed proceedings) relating to them,

(iii) disclose to the children any documentation in respect of any other proceedings (including proposed proceedings) relating to them.

5. Paragraphs 3 and 4 of this order shall continue until 21 May 2002 or until further order meanwhile.

6. The application by the respondent mother for an order pursuant to the provisions of section 91(14) Children Act 1989, is adjourned and the same shall be further considered by the court at a hearing on a date to be fixed in consultation with the Clerk of the Rules.

7. This matter shall be relisted for further consideration of contact issues and the respondent mother's application for an order pursuant to section 91(14) Children Act 1989, on a date to be fixed in consultation with the Clerk of the Rules. The time estimate for this and for outstanding matters in relation to the ancillary relief proceedings is (in aggregate) 1 day.

8. In the event that the applicant agrees to submit himself to examination by a consultant adult psychiatrist

(i) the matter of the identity of that psychiatrist and the terms of his appointment, unless previously agreed by the applicant and the solicitors for the respondent, shall be further considered at the hearing referred to in paragraph 7 above.

(ii) there be leave to disclose to the consultant adult psychiatrist a copy of the transcript of the judgment delivered on 23 May 2001. No further documentation filed in this case shall be disclosed without leave of the court.

(iii) the applicant shall serve on the solicitors acting on behalf of the respondent, and file at court, a copy of a written report from the consultant adult psychiatrist instructed immediately after it has been completed.

9. The applicant shall on or before 4.00pm 29 May 2001 deliver up to Messrs Manches, solicitors acting on behalf of the respondent, each of the children's United Kingdom passports.

10. The applicant father shall pay the respondent mother's costs of this application as summarily assessed on an indemnity basis in the sum of £170,000.

11. This matter be reserved to Mr Justice Singer if he is available within the jurisdiction."

13. The orders were preceded by a recital expressed as follows:

"Upon the court inviting the applicant father to submit himself to examination (at his expense) by a consultant adult psychiatrist whose identity and terms of reference are to be agreed by the applicant and the solicitors for the respondent, or, failing agreement nominated and or settled by the court for the purpose of preparation of a report to be filed within these proceedings."

14. The paragraphs of the order ancillary to paragraph 1 were all the subject of detailed submissions and separate rulings given by the judge at the conclusion of his extempore judgment.
15. Although paragraph 7 did not specify the date of any further review, in the event 24 July was fixed either by the court or by the mother's solicitors. On that date the judge handed down his judgment in the ancillary relief proceedings in the course of which the judge was highly critical of the father's integrity and motivation. Leading and junior counsel were there to deal with matters arising from judgment in the ancillary relief proceedings. Mr Pointer QC has acted throughout in the financial proceedings. Following the hand down on 24 July and further submissions on 30 July Singer J made orders in the money case which have since been appealed to a different constitution of this court.
16. However between 23 May and 24 June the husband ceased to act in person in the Children Act proceedings and, for the first time, Mr Peter Jackson QC was instructed on his behalf. On 26 June he settled a detailed skeleton argument on behalf of the father in support of the application for permission to appeal. The application had been launched by the father in person on 6 June. His skeleton argument was to this effect:

"1. I was prevented by the judge's biased treatment of me from properly presenting my case to the court.

2. I attempted to advocate the application myself. My opponents were Mr Singleton QC and Miss Deborah Eaton, which made my task difficult enough, but my attempt was made impossible by the judge's attitude and behaviour.

3. I was forced to give up, defeated by the judge rather than the arguments. I did not complete my cross-examination of the mother, was unable to call my supporting witnesses and did not have the opportunity of cross-examining the children and family reporter.

4. Had I been able to conduct and complete the applications without the stress and agitation caused by the judge, a different result would have been achieved."

17. Mr Jackson's skeleton argument elaborates that basic theme and includes an analysis both of the judge's interventions during Mr Singleton's cross examination of the father, and of the judge's interventions during the father's cross examination of the mother and, separately, 18 complaints of judicial actions or failings fully particularised with transcript references.
18. The father's determination to challenge the validity of the trial led him to instruct Mr Jackson to apply to the judge on 24 July to terminate the contact order, an application that failed.
19. Having read Mr Jackson's skeleton on 23 July the court adjourned the application for permission for oral hearing with appeal to follow if permission granted. A fixture in the vacation had to be vacated and in the event it did not prove possible to re-list until after the hearing of the appeal in the money case. The court allowed a full day for pre-reading of the transcripts of the trial and timetabled the following day allowed for oral argument. Both counsel completed their submissions within the time allowed and we are particularly grateful for the skill and realism with which they have assisted us.
20. Mr Jackson's first principal submission was that a reading of the transcript demonstrated that due to the judge's conduct the hearing was not a fair hearing and accordingly the result was both a flawed judgment and inappropriate orders. He emphasised that the father's claim for the responsibility of primary care was just as valid as the mother's: the father was not working in a daily sense, he was very involved in the children's lives and in their schooling, he was fully entitled to press his case and that case was entitled to a proper hearing. The transcript, however, demonstrated that the father's application was prejudged as both hopeless and vexatiously pursued. But in reality the father's case had had three foundations: what he had to offer, the children's wishes, and the mother's failings. For the first and second foundations he had the support of the current headmaster and the children and family reporter. For the judge to characterise the father's case as motivated by 'a desire to win his own way, to establish his own superiority and to punish the mother' demonstrated the extent to which the judge had failed to recognise the father's passionate concern for and commitment to his children. Equally unwarranted was the judge's dismissal of the support for the father's case derived from the headmaster and the children and family reporter. Mr Jackson referred to the decisions of this court in Jones v National Coal Board [1957] 2 QB 55 and Brassington v Brassington [1961] 3 WLR 1411. Whilst he accepted that a very heavy onus lay on him to satisfy this court that the father had been driven to withdraw after denial of a fair hearing, he submitted that his analysis of the transcript made good his point. He calculated that the judge's interventions, (and their number was agreed between counsel), if averaged over the course of 22 hours of hearing, occurred once every 50 seconds, without allowing any seconds for the duration of the intervention itself. He then selected many instances which he submitted demonstrated hostility to the father or the case that he was trying to present. Mr Jackson's second principal submission was that the judge's reaction to the father's withdrawal was intemperate. He had, in the colloquial phrase, thrown the book at him.
21. In response Mr Singleton submitted that the judge had necessarily intervened in order to clarify uncertainties, to confirm his own understanding, or to pursue legitimate investigation of points that appeared to him significant or material. Above all Mr Singleton submitted that this degree of intervention was necessary to retain firm control of proceedings which otherwise would have been endlessly extended or diverted by an exceptionally difficult, determined and wilful litigant in person. The father's withdrawal presented the court with an unprecedented situation. The father's departing statement created a general anxiety as to what he intended or might attempt to do. In those circumstances the judge was right to be cautious. Furthermore the orders were purely holding orders pending review later that term. The father's subsequent conduct proved his intransigence. He had declined any further contact save on his terms.
22. The resolution of this appeal has necessarily involved a close study of approximately 570 pages of transcript including approximately 70 pages of judgment. Of course the transcript records the words spoken but not the tone, the emphasis and the temperature. For us the atmosphere and the emotions with which spoken words were charged are largely lost. Thus any judgment upon whether or not the father received a fair and impartial trial is necessarily imperfect. On the one hand it can be said that Mr R is a robust and skilful man who had educated himself in the processes of litigation and who was throughout accompanied by his solicitor. On the other hand he had already conceived a conviction that the judge had taken against him by the end of the marathon hearing of the money case and he had expressed that conviction by seeking a fresh tribunal for the trial of the Children Act applications.
23. Of course the task for the judge was exceptionally difficult, if not impossible. He had concluded by the end of February that the father had been dishonest and devious in the money case. He had not revealed that conclusion and he had refused to release the case to another judge. A litigant in person who wins his cause will almost inevitably think well of the judge. A litigant in person who loses his cause is likely to blame the judge unless the judge has taken unusual pains to demonstrate throughout an open mind and an even hand. The resolution of Mr Jackson's primary submission must in the end be a matter of impression drawn from a careful reading of the complete transcript. Our ultimate impression is that Mr Jackson fails to discharge the high burden defined by the authorities which he cites. Whilst we do not begin to accept Mr Singleton's description of the father's application for a residence order as an application that was bound to fail, equally we cannot accept Mr Jackson's submission that it had an equal, or at least a fair prospect of success. The report of the children and family reporter was obviously an indicator of the probable outcome. That in turn reflected the reality that the father's present equal availability was preceded by years in which the mother had borne the responsibility of primary care. On any objective analysis the mother was overall the established carer and the father's application was, as the children and family reporter analysed, an attempt at a radical departure from an established pattern. Those realities were entitled to reflection in the extent to which the judge shaped the trial and concentrated questions and evidence to what was crucial and discouraged investigation of what was peripheral. That said we do not regard the father's complaints, as articulated in his skeleton argument of 6 June or as elaborated in Mr Jackson's submission of 26 June as either fanciful or unwarranted. In our opinion the frequency of the judge's interventions was plainly excessive, even allowing for the fact that he had a proper determination to ensure that this case did not repeat the pattern of the money case by running over its time estimate. In our experience judicial interventions designed to save time very often have precisely the reverse effect.
24. As to the tone of the judge's interventions, we have equal concern. Of course the judge is entitled to guide a litigant in person, whether testifying or whether cross examining, to ensure that he concentrates on the essential issues. Perhaps Mr R's intelligence and self-confidence rendered him less needy. But whatever his needs, as Mr Jackson submitted, in that relationship the judge must be a shepherd and not a wolf. We gain from the transcripts the distinct impression that in the relationship between the litigant and the judge there quickly emerged a conflict of strong personalities and a clash of arms that drew the judge transiently from the judgment seat to join Mr Singleton in the arena in harrying the husband. We take but a single instance which is in the transcript for Tuesday 15 May between pages 6 and 8. At the head of the first page Mr R makes a statement which Mr Singleton characterises as a deliberate lie. Of course counsel is entitled to be robust in cross examination but in this instance a comparison of the witness' statement with the document then referred to by counsel did not justify the accusation of a lie. The judge did not intervene to stop Mr Singleton or to protect the witness but instead sided with Mr Singleton giving the clearest indication that he regarded the accusation as well made. But the number of interventions that bear the mark of hostility or unfairness are small in the overall total and do not justify setting aside the fundamental order that these two children should reside with their mother. We are satisfied based on the totality of the evidence that we have read that the judge reached the correct conclusion on this issue.
25. But in our opinion Mr Jackson's second principal submission has great force. Even accepting that the father's withdrawal on 18 May presented the judge with an exceptionally difficult situation it was essentially a foreseeable development in the light of the clash of arms that had developed. The judge had subsequent faxes from the father and he had ample opportunity to reflect. He had the opportunity to seek the opinion of the children and family reporter. The orders made seem to us both individually and in their totality immoderate, a conclusion which is fortified by the contents of the judgment which preceded them. In an important passage on pages 18 and 19 the judge suggests that the father must be unbalanced for having presented and pressed the case which he did. Without any qualification he rejects the father's case. By contrast, and equally without qualification, he accepts the mother's position statement as drafted by Mr Singleton. Of course the evidence of the children and family reporter presented an obstacle to those conclusions, particularly since the children and family reporter had carried out four or five interviews and presented a very full report. Without hearing from the children and family reporter and over the course of four pages of judgment the judge marginalises his report by characterising it as bland and shallow. Again without having heard the children and family reporter the judge expresses the assumption that the report was deliberately bland and deliberately shallow. In our opinion both criticisms were misplaced and even more strongly do we consider that both assumptions were unwarranted without evidence from the children and family reporter.
26. Mr C, the headmaster, also presented an obstacle for the judge's wholesale finding for the mother. The judge simply says 'the children and family reporter and Mr C may take a different point of view but I am not convinced that either of them adequately appreciates how distinctively this father operates'.
27. These criticisms are particularly relevant to a consideration of the stark reduction that the judge made in the father's contact to the children in paragraphs 2 and 3(ii) of the order. These paragraphs in particular in our opinion have a punitive as much as a protective flavour.
28. Nor do we see any evidential basis for the remaining provisions of paragraph 3 of the primary order. There had never been any domestic violence in the case. The father may have been passionate, bigoted, short-sighted, domineering and uncompromising but there was not the smallest evidence of any propensity to violence or to irrational, let alone dangerous reactions. His relationship with the school and its staff had been at times abrasive but, as the headmaster accepted, only as an expression of his deep concerns for the children. The school had never sought any constraint on the father's freedom to visit the school or to communicate with the staff.
29. As to paragraph 6 the application for an order under section 91(14) seems to us to be no more than a flourish of advocacy. We cannot see how the judge thought that it merited a listing on notice. Equally the suggestion that the father submit himself to examination by a consultant adult psychiatrist seems to us to be another flourish of advocacy. There was not a shred of evidence that the father had ever suffered from, or was currently suffering from, any mental illness or psychiatric disorder. We suspect that most adult psychiatrists would have been puzzled to discern their function presented with a copy of the judgment in the case and a consultation with a father as articulate and intelligent as this. We accept Mr Jackson's submission that the recital and paragraphs 8 and 9 in combination serve to stigmatise the husband without any proper warrant.
30. Equally unwarranted in our opinion is paragraph 9 of the order. Since the separation both parties had frequently and successfully arranged foreign holidays for the children. The father had never overstayed nor had there been the least anxiety of him doing so. We are not surprised that shortly before the hearing of this appeal the mother's solicitors indicated that they would no longer seek the enforcement of paragraph 9.
31. Finally we come to paragraph 10. The judge explains at some length why he exercised his discretion not only to condemn the father in costs but to order costs on an indemnity basis summarily assessed at almost 100% of the bill prepared by the mother's solicitors. As Mr Jackson rightly submits orders for indemnity costs are rare. The authorities show that they must be restricted to cases in which litigation has been quite unreasonably or dishonourably conducted. Mr Jackson characterises the judge's reasoning as hyperbole. However the judge's language only reflects the judge's total condemnation of the father's case and his equally total acceptance of the mother's case. That analysis is as we have already demonstrated is inconsistent with the totality of the evidence and without it the father's conduct of the litigation cannot be said to be more than uncompromisingly determined and over ambitious. We can see no sustainable foundation for indemnity costs or for summary assessment. Any order for costs in Children Act proceedings is relatively unusual but we accept that in the light of the father's uncompromising rejection of the mother's proposal to settle on the basis of the children and family reporter's recommendations together with the father's determination to involve a string of lay witnesses, an order that he pay the wife's costs on a standard basis to be assessed if not agreed is justified.
32. If that is the appropriate revision of the costs order what is the appropriate revision of the contact order contained in paragraph 2? This case might stand as a warning to all affluent families. In both sets of proceedings legal bills now amount to approaching £1.25M without including the costs of the appeals. In addition the adversarial exchanges must have done irreparable damage to the relationship between the parents. The children must have suffered damage which is likely to prove permanent. In the history there is already evidence of that in relation to J. More immediately the fact that these children have not seen their father other than by chance since the 23 May is a tragedy for them however the adult responsibility may be allocated by judges. The prospect of returning the issue of future contact for trial by a judge of the Family Division is too unappealing to contemplate. We are convinced that this court must impose a conventional regime for contact in line with the children and family reporter's recommendation, in the hope, and it can be no more than a hope, that it will prove an enduring regulation.
33. We would therefore grant permission to appeal and allow the appeal to the extent of deleting the recital and paragraphs 2 - 11 inclusive. Then paragraph 2 should be replaced with an order that the father have contact on alternate weekends after school on Friday to commencement of school on Monday morning together with half the school holidays and alternate half terms (commencing with the February 2002 half-term). Those orders will be on the basis that the father pay the mother's costs in the Family Division to be assessed on a standard basis in default of agreement. Finally we would set aside the contra mundum order which also seems an excessive reaction to the father's reference to higher authority. Although undefined in his withdrawal statement the meaning was reasonably clear from his fax of 21 May and there is simply no evidential foundation for such a wide ranging and indefinite injunction.
Order: Appeal allowed in part with no order as to costs; in respect of costs below, father's liability to run from the date of issue, namely 18^th July; application for substantial payment on account to be determined by the money constitution of the court next week. (order does not form part of the approved judgment)