page of Petition
| Appendix 3 case ii
3 case iii 1
3 case iii 2
3 case iv
3 case v
Appendix 3 case
II – Statement of facts:
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
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.
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
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.
17. There was a court hearing for residence and/or contact on
1st /2nd December 1997. The Order was for residence to the mother
and contact every other weekend and half of the holidays to the
father. This was despite my informing the court of my concerns.
In response the judge simply put my second statement and evidence
to the Defendant’s solicitor and barrister to decide if
this statement of mine and that of my father should be allowed.
Obviously the defendant’s solicitor and barrister were going
to refuse it. They stated that there were no concerns relevant
to the children’s welfare. The judge therefore refused the
evidence and statements. The second statement was written because
my solicitor had written my statement on the basis of a cathartic
38 page letter that I had written in the space of four hours the
day after leaving and which was misleading as it lacked important
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
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
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
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/
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
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
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
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
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
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
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
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
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
The Team Manager for Social Services requested a
special contact session with the children and I, but the judge
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
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
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
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
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’
l. Neither the school, the GP or the Health Visitor
EVER took part in an assessment of risk.
There was no contact with the paediatrician who had stated that
the symptoms in my daughter could be the result of psychological
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
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
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
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
‘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.
III STATEMENT OF ALLEGED VIOLATIONS OF THE CONVENTION AND/OR PROTOCOLS
AND OF RELEVANT ARGUMENTS
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
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
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.
78. I have not been able to challenge the improper reports. Erroneous
Reports which have misrepresented the facts and personalities
of the case to the court and which have resulted in judgements
which have not been in the children’s best interests. The
court welfare report could not be challenged except in the court
setting and it was only possible to ask a few supplementary questions.
I could not challenge the Social Worker’s assessment of
risk, and the Social Worker stopped all contact between the children
and me. The addendum requested by the court as presented was badly
flawed and failed to address the issues necessary for a Section
7, 8, or 17 report. As to a Section 47 report never addressed
the specific concerns that I had raised. Section 47 assessments
must look at section 17 concerns according to the child protection
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
81. It is inconceivable that the courts in the UK and the Local
Authority would recommend sole residence to a father with the
following history without at least a full examination of the matters:
1) Psychological and emotional problems, which have
never been investigated.
2) A history of violence, which have never been
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.
Article 8 - Right to respect for private and family life
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,
‘The mutual enjoyment by parent and child of each other's
company constitutes a fundamental element of family life, and
the natural family relationship is not terminated by reason of
the fact that the child is taken into public care (see, as the
most recent Authority, the Eriksson v. Sweden judgment of 22 June
1989, Series A no. 156, p. 24, para. 58). Moreover, telephone
conversations between Family members are covered by the notions
of "family life" and "correspondence" within
the meaning of Article 8 (art. 8) (see the Klass and Others v.
the Federal Republic of Germany judgment of 6 September 1978,
Series A no. 28, p. 21, para. 41, and the Kruslin v. France judgement
of 24 April 1990, Series A no. 176-A, p. 20, para. 26).’
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).
Article 13 - Right to an effective remedy
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
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.
96. Relevant domestic Laws and authorities
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 -
PART I INTRODUCTORY
Welfare of the child
1. (1) when a court determines any question with respect to-
(a) the upbringing of a child; or
(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.
(3) In the circumstances mentioned in subsection (4), a court
shall have regard in particular to-
(a) The ascertainable wishes and feelings of the
(Considered in the light of his age and understanding);
(b) His physical, emotional and educational needs;
(c) The likely effect on him of any change in his
(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
(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
Parental responsibility for children.
(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
(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);
(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
(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
(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.
(1) A court considering any question with respect
to a child under this Act may-
(a) ask a probation officer; or
(b) ask a local authority to arrange for-
(i) an officer of the authority; or
(ii) Such other person (other than a probation officer) as the
Authority considers appropriate, to report to the court on such
matters relating to the welfare of that child as are required
to be dealt with in the report.
(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
(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.
(1) Where a local authority- (a) are informed that a child who
lives, or is found, in their area-
(i) is the subject of an emergency protection order; or
(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
(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
(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
(a) any officer of the local authority concerned;
(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.
(10) Subsection (9) does not oblige any person to assist a local
authority where doing so would be unreasonable in all the circumstances
of the case.
(11) The persons are-
(a) any local authority;
(b) any local education authority;
(c) any local housing authority;
(d) any health authority; and
(e) any person authorised by the Secretary of State for the purposes
of this section.
(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
ORDERS WITH RESPECT TO CHILDREN IN FAMILY
PROCEEDINGS General: Residence, contact and other orders
with respect to children.
8. (1) In this Act -
"a contact order" means an order requiring the person
with whom a child lives, or is to live, to allow the child to
visit or stay with the person named in the order, or for that
person and the child otherwise to have contact with each other;
"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
"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
(d) The Adoption Act 1976;
(e) The Domestic Proceedings and Magistrates' Courts
(f) Sections 1 and 9 of the Matrimonial Homes Act
(g) Part III of the Matrimonial and Family Proceedings
Restrictions on making section 8 orders.
(5) No court shall exercise its powers to make a specific issue
order or prohibited steps order-
(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
(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
(ii) has obtained the leave of the court to make the application;
(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
(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
(b) in the case of a contact order, he is named in the order.
(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
(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
(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
(i) the authority's plans for the child's future;
(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.
(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
(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.
(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
(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
Family assistance orders
(1) Where, in any family proceedings, the court has power to make
an order under this Part with respect to any child, it may (whether
or not it makes such an order) make an order requiring-
(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
(c) the child himself.
(3) No court may make a family assistance order
(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.
(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
(a) the authority agree; or
(b) the child concerned lives or will live within
(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
PART IV CARE AND SUPERVISION General Care and supervision
(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
(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
(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
(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;
"harm" means ill treatment or the impairment of health
"development" means physical, intellectual,
emotional, social or behavioural development;
"health" means physical or mental health;
(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.
LOCAL AUTHORITY SUPPORT FOR CHILDREN AND FAMILIES
Provision of services for children and their families
Provision of services for children in need, their families and
(1). It shall be the general duty of every local authority (in
addition to the other duties imposed on them by this Part)-
(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
(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
(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,
(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
(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 be significantly
impaired, or further impaired, without the provision for him of
such services; or
(c) he is disabled, and
"family", in relation to such a child, includes any
person who has parental responsibility for the child and any other
person with whom he has been living.
(11) For the purposes of this Part, a child is disabled
if he is blind, deaf or dumb or suffers from mental disorder of
any kind or is substantially and permanently handicapped by illness,
injury or congenital deformity or such other disability as may
be prescribed; and in this Part-
"development" means physical, intellectual,
emotional, social or behavioural development; and "health"
means physical or mental health.
It was this section of the children’s act
to which the court believed the assessment to have been made and
to which the social worker under oath referred to when describing
the children not to have been children in need. There was no assessment
under section 17 and the symptoms in the children easily fall
under this section. This is a blatant violation of article 6(1)
since it was not so investigated and a violation of article 8
since all contact has been stopped since 26th October 1999 on
the basis of misleading evidence.
There is no presumption to contact written in the
children’s act. The only right of the non-resident parent
is to make an application under section 8 for contact, residence,
prohibited steps or a specific issue order.
97. Further RELEVANT DOMESTIC LAW AND PRACTICE
Complaints procedures concerning local authorities
Section 26 of the children’s act:
Review of cases and enquiries into representations.
(1) The secretary of State may make regulations requiring the
case of each child who is being looked after by a local authority
to be reviewed in accordance with the provisions of the regulations.
(2) The regulations may, in particular, make provision-
(a) as to the manner in which each case is to be
(b) as to the considerations to which the local
authority are to have regard in reviewing each case;
(c) as to the time when each case is first to be
reviewed and the frequency of subsequent reviews;
(d) requiring the authority, before conducting any
review, to seek the views of-
(i) the child;
(ii) his parents;
(iii) any person who is not a parent of his but
who has parental responsibility for him; and
(iv) any other person whose views the authority
consider to be relevant, including, in particular, the views of
those persons in relation to any particular matter which is to
be considered in the course of the review;
(e) requiring the authority to consider, in the
case of a child who is in their care, whether an application should
be made to discharge the care order;
(f) requiring the authority to consider, in the
case of a child in accommodation provided by the authority, whether
the accommodation accords with the requirements of this Part;
(g) requiring the authority to inform the child,
so far as is reasonably practicable, of any steps he may take
under this Act;
(h) requiring the authority to make arrangements, including arrangements
with such other bodies providing services as it considers appropriate,
to implement any decision which they propose to make in the course,
or as a result, of the review;
(i) requiring the authority to notify details of
the result of the review and of any decision taken by them in
consequence of the review to-
(i) the child;
(ii) his parents;
(iii) any person who is not a parent of his but who has parental
responsibility for him; and
(iv) any other person whom they consider ought to be notified;
(j) requiring the authority to monitor the arrangements
which they have made with a view to ensuring that they comply
with the regulations.
(3) Every local authority shall establish a procedure
for considering any representations (including any complaint)
made to them by-
(a) any child who is being looked after by them
or who is not being looked after by them but is in need;
(b) a parent of his;
(c) any person who is not a parent of his but who
responsibility for him;
(d) any local authority foster parent;
(e) such other person as the authority consider
has a sufficient interest in the child's welfare to warrant his
representations being considered by them, about the discharge
by the authority of any of their functions under this Part in
relation to the child.
(4) The procedure shall ensure that at least one
person who is not a member or officer of the authority takes part
(a) the consideration; and
(b) any discussions which are held by the authority
about the action (if any) to be taken in relation to the child
in the light of the consideration.
(5) In carrying out any consideration of representations
under this section a local authority shall comply with any regulations
made by the Secretary of State for the purpose of regulating the
procedure to be followed.
(6) The Secretary of State may make regulations
requiring local authorities to monitor the arrangements that they
have made with a view to ensuring that they comply with any regulations
made for the purposes of subsection (5).
(7) Where any representation has been considered
under the procedure established by a local authority under this
section , the authority shall;
(a) have due regard to the findings of those considering
(b) take such steps as are reasonably practicable
to notify (in writing)-
(i) the person making the representation;
(ii) the child (if they authority consider that he has sufficient
(iii) such other persons (if any) as appear to the authority to
be likely to be affected, of the authority's decision in the matter
and their reasons for taking that decision and of any action which
they have taken, or propose to take.
(8) Every local authority shall give such publicity
to their procedure for considering representations under this
section as they consider appropriate.
Co-operation between authorities.
27. - (1) Where it appears to a local authority
that any authority or other person mentioned in subsection (3)
could, by taking any specified action, help in the exercise of
any of their functions under this Part, they may request the help
of that other authority or person, specifying the action in question.
(2) An authority whose help is so requested shall
comply with the request if it is compatible with their own statutory
or other duties and obligations and does not unduly prejudice
the discharge of any of their functions.
(3) The persons are-
(a) any local authority,
(b) any local education authority;
(c) any local housing authority;
(d) any health authority; and
(e) any person authorised by the Secretary of State for the purposes
of this section.
98. Pursuant to Part III of the Local Government
Act 1974, as amended, the Local Commissioner for Administration
(the Local Government Ombudsman) had the function, inter alia,
of investigating written complaints by persons who claim to have
sustained injustice “in consequence of maladministration
in connection with ... action taken in exercise of administrative
functions of local authorities”. On conclusion of an investigation,
Local Government Ombudsmen could recommend an appropriate remedy,
including the payment of compensation, where maladministration
99. Actions against the local authority for damages
Section 116(6)(b) of the Police & Criminal Evidence
Act 1984, in respect of any interference with the administration
of justice or the investigation of offences, where the County
Council is charged with the duty of investigating or causing investigations
into suspected child abuse to take place is relevant. I would
additionally refer to section 116(6)(d) and 116(8) of PACE 1984.
Where failure to carry out a statutory duty that leads to children
being caused injury whether physically or mentally is a Criminal
Offence in terms of Actual Bodily Harm (Criminal Negligence -
Given that there is a Statutory Duty of Care).
100. Other relevant legislation
The applicant also contends that for the Court to
deny the request for a fair hearing is a direct violation of Articles
3, 4, 7, 20, 21, 24, 41, 42, 47, 53 and 54 of Charter of Fundamental
Rights of the European Union.
The applicants also refer to the Universal Declaration
of Human Rights Articles 2, 3, 5, 7, 8, 10, 12, 25.
The applicants also refer to Basic Principles on
the Independence of the Judiciary Adopted by the Seventh United
Nations Congress on the Prevention of Crime and the Treatment
of Offenders held at Milan from 26 August to 6 September 1985
and endorsed by General Assembly Resolutions 40/32 of 29 November
1985 and 40/146 of 13 December 1985
The applicant also refers to the UN Report of the
Special Rapporteur on the independence of judges and lawyers,
Dato'Param Cumaraswamy, submitted pursuant to Commission on Human
Rights resolution 1995/36. In particular the principles I, V and
VI as laid out in the Report of the Secretary General of UN prepared
in accordance with Commission resolution 1996/13 with the comments
101. Case Law referred to for the Court of Appeal
and for this application:
(1) McMichael v UK ECHR (51/993/446/525);
(2) RE: L,V,M,H (CONTACT DOMESTIOC: VIOLENCE) 
2 FLR 334;
(3) W v UK ECHR (4/986/102/150);
(4) Elsholz v Germany ECHR (25735/94);
(5) Anderson Vs Sweden ECHR (61/1990/252/323);
(6) EUROPEAN COURT OF HUMAN RIGHTSCASE OF SAHIN
v. GERMANY (Application no. 30943/96):
(7) Neutral Citation Number:  EWCA Civ 1830
(8) D V D
(9) Beedell V West Ferry Printers. March 15 2001
(10) Neutral Citation Number:  EWCA Civ 1444
IN THE SUPREME COURT OF JUDICATURE B1/2001/2073
(11) F V F ref: A minor 13 may 1996
(13) Leading case section 91(14) Re P
(14) The limits of litigation by L J Thorpe
(15) The report to the Lord Chancellors Department
‘Making contact work’. A report to the Lord Chancellor
on the facilitation of arrangements for contact between children
and their non-resident parents and the enforcement of Court orders
(16) B V UK
(17) The draft convention on contact concerning
children, 76th meeting Strasbourg 4-7th December 2001. European
committee on legal co-operation.
(18) T.P. AND K.M. v The UK application number 28945/95
(19) Hendriks v Netherlands (1983) 5 EHRR 233
(20) Hokkanen v Finland (1995) 19 EHRR 139 (50/1993/445/524).
(21) Z and Others v The United Kingdom Application
no. 29392/95 Judgement 10 May 2001
IV STATEMENT RELATIVE TO ARTICLE 35 OF THE CONVENTION
102. Final Decision was on the 19th April 2002 in
the Court of Appeal. Leave to appeal was refused and so there
is no further application possible on this matter.
Other decisions :
Direction hearing –(Southampton County Court)
Direction hearing –(Southampton County Court)
June 5th 1997
Direction hearing –(Southampton County Court)
24th October 1997
Full hearing (Southampton County Court) –
1st / 2nd December 1997
Court of its own motion (Southampton County Court)
– May 1st 1998.
Directions hearing (Southampton County Court) July
Review hearing (Southampton County Court) - 23 September
Direction hearing (Southampton County Court) - 27
Full hearing (Adjourned) (Southampton County Court)
- 13 January 2000
Full hearing (Southampton County Court) 11th/ 12th
Section 91(14) hearing adjourned (Portsmouth County
Court) – 17 December 2001
Section 91(14) hearing (Portsmouth County Court)
– 22 January 2002
V STATEMENT OF THE OBJECT OF THE APPLICATION
103. It is not right to base child welfare decisions
on the basis of the gender of the parent. Research from the NSPCC
and other child protection groups consistently show that the person
least likely to harm the children is the biological father. The
Defendant can have any man move in without having to justify his
contact with my children. I could care for any child in a new
relationship. I can teach any child in Hampshire except my own.
Given the above grave concerns with regard to the mental health
and behaviour of the Defendant towards the children and me, it
is clear that the Local Authority and the Courts have discriminated
against me on the grounds of my gender.
104. The only redress for the failure of a fair
and impartial hearing is for an application to the European Court
of Human Rights for violations of our rights under Article 3,
6(1), Article 5 of protocol No 7, Article 1 of protocol No 1,
Article 8, Article 14, and Article 13, in order to ensure that
the UK government addresses the issues raised via an undertaking
with regards to:
(i) Enabling ‘working together under the Children’s
Act’ to work in practise, and within that address the training
needs for parental alienation syndrome for all child welfare workers
as per Elsholz V Germany paragraphs 33-36.
(ii) For both parents to be treated equally after
and during separation as regards parental responsibility. Treatment
without due cause or proper investigation may lead to improper
outcomes which are against the best interests of the children.
To introduce policy changes within the Health Authority, Social
Services, Education Dept, and Child Welfare Agencies.
(iii) Establishment of a proper complaints system
so that these matters may addressed with the utmost urgency, for
the benefit of the children’s welfare, without the fear
of legal action. Since the whole concern is the welfare of the
children. The Health Authority and Social Services have used the
Section 26 complaints procedures to protect themselves for fear
of legal action. It has been suggested that a no fault clause
should be established so that complaints may be openly addressed
without the fear of legal action being taken in the courts.
(iv) For mechanisms to be put in place so that domestic
violence is properly addressed regardless of the gender of the
perpetrator and which address the effects on the children. There
is no support for male victims of domestic violence; no refuges
and little recognition of the effects not only of domestic violence
on the male but also the effects on the children are the same
regardless of the gender of the perpetrator. The way in which
the Authorities treat the male victim is degrading. The attached
policy document of Mankind to be addressed by the UK government
to put in gender free policies for the future of society. We have
already set-up a network of help lines but we are just volunteers.
The Government should be funding equal treatment and access to
support for both sexes and the children.
(v) To ensure sexual equality in the Family courts
and by those reporting on the court’s behalf, with proper
complaint’s procedures to address poor or biased reporting
influencing the health and well-being not only of the father but
also the children and also the wider family. To make the Health
Authority and other child welfare professionals accountable for
their actions when they knowingly make false statements.
(vi) To recognise the importance of the father in
child development issues, and for shared residence to immediately
become the norm as was the intended by Parliament in the Children’s
105. So that the European Court of Human Rights
may address my concerns in this Application and intervene via
the UK Government for the benefit of my children’s medium
and long-term interests. I wish to make them aware that it is
no joke losing your family, and after almost three years of no
contact, this cannot be in the children’s best interests.
This has brought me to the European Courts as there is no avenue
for this case in the UK. This is having a profound effect on me
and the children’s grandparents. I do not know how the children
are or to what extent this and the other concerns have damaged
them emotionally and psychologically. I ask that there be some
intervention by the Court for the family via Hampshire County
Council. I also request an undertaking that this Application and
the complaints I have raised not be used to blacklist my future
teaching employment for the Council.
106. I believe the extent to which I have been forced
to act and the violations of the above Articles are worthy of
financial recompense for the stress and anxiety and damage caused
to the children’s development; to the relationship between
the children and me and their grandparents, and our Family life;
for the failure of those in authority with a duty to investigate
child protection concerns, and for the loss of earnings involved
and financial and emotional effects on me and my ability to work.
There is no judicial or fair redress in the UK. I request pecuniary
and non-pecuniary damage because of the failure in ‘working
together under the Children’s Act’ and particularly
because of the Authorities’ deliberate and knowingly cover-up
in the matter
107. I also request if this application is refused
a full statement of the grounds be given by a judge of the Court.
VII List of Documents
Thank you for your letter dated 29 March 2001. We
note your comment that the reason for the delay in Lam’s case
is because it raises immunity issues against the background of the
Court’s judgement in Osman v. the United Kingdom.
We are very concerned with your understanding of the
basis of the Lam’s case. We do not feel that the Lam’s
case raises immunity issues at all. There is a distinctive different
between their case and the Osman case. Mr Lam`s case raises very
serious issues ie officers of the local authority conspired to deny
justice to Mr Lam by falsifying documents and also making statements
and affidavit in court knowing them to be untrue. The British courts
have never examined the case in any depth but accepted what they
were told by officials despite courts being presented with the Authority’s
own documents showing that the officials conspired fraudulently
to deny Mr Lam his basic human rights. The Courts in doing so were
in violation of Articles 14 and 17 thus denying the right to a fair
trial under Article 6 to which Mr Lam was entitled.
For this very important reason, we feel it necessary
to write to clarify matters and to explain why we believe the immunity
issue point raised by yourselves bears no relevance to the Lam’s
In the Osman case, it was alleged that the officer
failed to act in a reasonable manner under the circumstances given.
It was a decision made by the officers that was subject to the scrutiny
of the courts and the case was to test if the decision made was
in breach of ECHR. The officers in Osman did not cover up any records,
did not knowingly and deliberately acted such that their action
was not in accordance with relevant legislation and government guidelines.
Those officers did not manipulate records to suit their agenda,
those officers did not knowingly and deliberately make fraudulent
affidavits to court so that they could cover up and escape liability
and punishment, confident that the courts would believe them and
not question their lies.
However, in the Lam’s case, it is alleged that
the planning officers have knowingly and deliberately covered up
the true planning records, to do so, have manipulated the planning
record so that they can purport that planning permission has been
granted to the illegal industrial development which caused the serious
damage to the health of the members of the Lam family. The planning
officers have knowingly and deliberately submitted fraudulent affidavit
and submissions to courts. The planning officers even altered the
planning records when submitting evidence to court, by erasing an
existing building from the site plan. Officers are guilty of misfeasance.
The reason why the planning officers get away with
“murder” when it comes to planning issues is because
the British courts always believe implicitly in the words of the
officers, relying on their professionalism and integrity. Thus in
the Lam’s case, and in many others, it has proven impossible
to persuade the court to look at the true planning record. The planning
officers in UK enjoy the privilege and the power they inherited,
and these officers abuse this privilege.
In the Lam’s case, it can be clearly demonstrated
that the planning officers have committed fraud in the following
* Altered the planning record in their submission
to court (25 June 1998 Hearing)
* Continue to alter the planning record to suit their
purpose (give different explanations of the same planning application
[PA 88.1887] regarding which building planning permission was granted
* Continue to cover up the truth regarding the planning
use of the buildings in question resulting in serious damage and
harm to the Lam family and serious financial interruption.
Although in UK the existing principle of law, in Lazarus
Estates Ltd v Beasley  1 All ER 341 Lord Denning states :
345 (A) “Can the declaration be challenged on
the ground that it was false and fraudulent? It can clearly be challenged
in the criminal courts.”
345 (B) “No court in this land will allow a
person to keep an advantage which he has obtained by fraud. No judgement
of a court, no order of a Minister, can be allowed to stand if it
has been obtained by fraud - fraud unravels everything.”
The unlawful action of planning officers also follows
within Derry v Peek (1889) 14 App.Cas. 337 principles where Lord
Herschell said that fraud is proved when it is shown a false representation
has been made:
In Mr Lam’s case, it is not difficult to prove
fraudulent behaviour of the officers when these officers interpret
the planning records regarding the planning use of the buildings
However the above principles seem to apply to others
but except to Mr Lam who is a Chinese. When Mr Lam applied this
principle in his application, the court warned him that he was wasting
court’s time; he was made to pay the total cost his hearing
together with Defendant’s cost.
Equally important, when Mr Lam applied for Judicial
Review to review the planning status of the buildings. To everyone
else in the UK, such application must made promptly ie within three
months of the decision letter. Whilst in Mr Lam’s case the
High Court considered application within 22 days to be out of time
and refused leave, bearing in mind that Mr Lam was a litigant in
person. This action is in itself violation of Article 14 and 17,
thus denying him to a fair trial.
The same matter was referred to the Court of Appeal
with Mr Lam represented himself. In Court of Appeal, instead of
assisting the hearing in accordance to Secretary of State for Social
Security v Titmus  COD 266 at 267
As to litigants in person, statutory appeal; need
to ensure that justice is done without having overdue regard to
the precise procedural rules; courts willing to grant considerable
indulgence to applicants, especially where in person.
The three Lord Justice denied Mr Lam’s right
of fair hearing. They allowed Mr Lam 15 minutes to present his case
but without any further questioning and discussion, produced a prewritten
judgement, which took them twenty minutes to read. More alarming
is the fact that the same Lord Justice who sat in this hearing,
overturned his previous judgement of date 30 July 1997 on the same
planning issue to assist the wrongdoers, the planning officers.
Furthermore under the existing principle of law, in
striking out action under RSC 18 r.19, it states :
The court must assume that the facts alleged in the
re-amended statement of claim / statement of claim can be established
The action can only be struck out under RSC ord 18
r.19 where its is "clear and obvious that in law the claim
If, on the facts alleged in the ASC, it is not possible
to give a certain answer whether in law the claim is maintainable,
it is not appropriate to strike out at the preliminary stage and
the matter must go to trial (see dicta : Lord Browne-Wilkinson in
X(Minors) v. Beds CC  3 WLR 152, 174H-175C).
However in the Lam’s case, even the House of
Lords dismissed the allegation made by Mr Lam in his statement of
claim Paragraphs 10, 12, 15, and Particulars (a), to the fact that
never has there been Planning permission given for industrial process
to operate at the premises from where toxic fumes were emitted,
and has as a result misapplied Acts and tests throughout the hearing.
Paragraph 15 Particulars (a) states :
"The Planning Application they placed before
the Committee was expressed to be premises at the rear of 36 Palace
Avenue whereas the 1st Defendant was in premises at the rear of
34 Palace Avenue which they allowed him to use as a factory purporting
to have Planning Permission for Change of User."
All the courts have failed to examine the planning
records basing their judgements on their belief in the statements
of the planning officers. Despite the fact that the same planning
officers’ statements varied with the situation, current and
at the time are inconsistent with facts.
In our opinion we believe the Lam’s case, to
be more in line with the situation raised in Lopez Ostra-v-Spain
1994 case whereby the health of the family was damaged by the plan
which did not have licence to operate. In the Lam’s case,
this goes even further in that the planning officers know that both
factory operations that have occupied and operated on this site
have done so without the benefit of planning permission, but the
officers have manipulated the planning records and purported there
to be the necessary planning permission on each occasion. In doing
so permitting illegal industrial use/ development, against its own
development plan, against government guidelines and not in accordance
with relevant legislation and they continue to “get away”
On the question of immunity, if officers can falsify
planning records, make fraudulent affidavits to get favourable judgments
and furthermore can claim immunity, why do we have legislation in
the first place. If these planning officers can claim immunity,
effectively they can act above the law of the land and in breach
of professional responsibility and in effect have the authority
to breach the ECHR with impunity.
We read with concern the content of your letter dated
29 March raising the immunity issue. It would appear the court has
not fully appreciated how in the Lam’s case, the officers
have acted unlawfully, acted beyond their discretion and knowingly
and deliberately made fraudulent affidavit resulting in factory
operations continuing to cause harm and damage to the health of
the Lam family and to jeopardise their livelihood and business.
We worry that the court will only view the Lam’s case in the
same manner as the British courts, considering if the planning officers
in carrying out their statutory duty in pursuance to Town and Court
Planning Act reached the decision is reasonable. We will repeatedly
emphasise this is not the basis of the case.
In fact in the Lam’s case it is very simple.
The entire factual evidence depends upon the issue “which
building planning permission was granted to under planning application
88.1887 ?” once this is established, the question remains
is “why the planning officers knowing the factory operation
in 1988-1993 and the one following-on in 1997 to date, did not have
planning permission but purported they have planning permission
to operate and thus allowed them to continue to cause harm and damage
to the Lam family ?”
The Osman case was a question of the decision maker,
while in the Lam’s case, it is a question of misfeasance,
misbehaviour and unlawfulness which are both fraudulent and criminal.
Therefore in Mr Lam’s case, we cannot see how the immunity
issue can be raised at all.
We understand it is hard for anyone to believe that
the planning officers in Mr Lam’s case would go to such extremes
to cover up planning records, and to go to such great lengths to
assist wrongdoers even making fraudulent affidavit to court. We
as charity do not make statements lightly, unless we are satisfied
first. In this instance, we hope the court will remove the immunity
issue from the Lam’s case.
We sincerely believe the continued denial of Mr Lam’s
right, by the officers and the courts, to know “which building
planning permission was granted to under planning application 88.1887"
is a very serious violation of his and his Family’s Human
Rights. From the Council’s own records we reach to the conclusion
that planning permission granted under planning application 88.1887
does not cover the cellulose paint spraying factory which operated
from 1988 to 1993 nor does 88.1887 cover the present pottery manufacturing
industry taking place. Under the circumstances, where the present
industrial operation is causing serious ill health to Mr Lam and
his family, jeopardising their livelihood and interfering with the
running their business at the present time, we believe it should
be stopped immediately before the health of the Lam family are affected
to such an extent that they are forced to leave their home and business
for the second time.
We hope we have clarified the basis of Mr Lam’s
case in relation to immunity issue raised in your letter.
Thank you for your attention and look forward to hearing
(Relating to Application No. 41671/98 LAM and Others
-v- the United Kingdom)
If the Court had examined the applicants' true basis
of complaints and the true factual background of the submissions,
the Court would have found that “officers by purporting to
carrying out their planning function” raise serious questions
of fact and law, which are of such complexity that their determination
should depend on an examination of the merits. The application could
not, therefore, be regarded as being manifestly ill_founded within
the meaning of Article 35 s.3 and s.4 of the Convention.
The Applicants made the submission to ECHR in 1998.
On the 29 March 2001, Mr Early, for the Registrar
of ECHR wrote to the Applicants’ representative stating “I
should like to inform you that this has been delayed on account
of the Court’s examination of other applications which, like
the instant application, raise immunity issues against the background
of the Court’s Osman v. the United Kingdom judgement.”
Concerned by the implications from this letter and
in order to ensure that the Court would not mistakenly divert the
basis of the application, the applicants’ representative responded
to Mr Early on the 25 April 2001 with a very detailed five page
letter (copy enclosed) stressing that in this instance the application
is about abuse of power and not immunity, explaining that “There
is a distinctive difference between their case and the Osman case.
Mr Lam’s case raises very serious issues i.e. officers of
the local authority conspired to deny justice to Mr Lam by falsifying
documents and also making statements and affidavit in court knowing
them to be untrue.”
However in his letter dated 23 May 2001, Mr Early
continued to impose Osman case upon the Applicants application by
stating “I should also like to advise you that the applicants’
first legal representative had specifically referred to the Commission’s
Article 31 Report on the Osman v . The United Kingdom judgement
in support of their assertion that the domestic courts afforded
an immunity to the local authority which granted permission to the
occupier of the premises adjacent to the applicants’ restaurant.
The issue of immunity from civil suit, especially with regard to
the exercise of statutory and common law powers by local authorities,
has been recently considered by the European Court of Human Rights.”
Upon the receipt of the above letter from Mr Early,
the Applicants’ representative realised that ECHR officials
misunderstood the basis of the case and being very concerned of
the possibility of the Court being diverted into looking at the
application as “Grant of planning permission” issue
when in fact the Applicants have never raised grant of planning
permission as an issue and “the exercise of statutory and
common law powers by local authority” as stated in the Mr
Early’s letter dated 23 May 2001, the applicants’ representative
immediately presented a further submission of 69 pages for the purpose
of clarifying the details of the case, and to ask the Court not
to divert the basis of the case, repeatedly stressing throughout
the submission (dated 12 June 2001, copy enclosed) “It is
important to note that under UK legislation, there cannot be a grant
of planning permission when NO planning application has been submitted
in the first place. In order to allow the illegal activity to continue
to take place to cause harm to the Lam family, the officers of the
council acted beyond any discretion and or immunity afforded by
the Parliament, unlawfully, fraudulently and ultra vires, taking
it upon themselves to say there is a grant of planning permission
by altering the planning records depending on the issue at hand.”
The applicants’ representative also repeatedly
alerted the Court by stating “Clearly the domestic courts
have got the basis of the claim seriously wrong. The claim against
the Borough of Torbay is on the basis that the officers acted in
abuse of their power, covering up the true planning records and
purporting there to be planning permission. Furthermore in accordance
with the council’s own documents, there was no planning permission
but this was ignored by the domestic courts.”
It is important to note that the applicants rely on
the principle of law of X(Minors) v Bedfordshire County Council
(1995) 3 WLR 170(F) states “The person purporting to exercise
his discretion has acted in abuse or excess of his power, Parliament
cannot be supposed to have granted immunity to persons who do that.”
These basic principles have also recently been re-affirmed by the
Court in its Z. and Others v the United Kingdom judgement of 10
May ([GC], application no. 29392/95, to be published in ECHR 2001)
(page 8 para A of the judgement)
From the content of the judgement of 5 July 2001,
it would seem the Court has ignored its own previous judgement and
done exactly what the UK domestic courts had done, ie. diverted
the issue from abuse of power by accepting without question or investigation
of the officers purporting the industrial developments to have planning
permission, and yet again the case been diverted into an issue of
grant of planning permission relating to the carrying out of planning
functions and duties. A situation which attracts immunity.
The applicants ask the Court to revise its decision
of 5th July and to investigate from where and how the false statements
and incorrect and inaccurate facts came to be incorporated within
the Decision as given. It is a serious violation of human rights
for the Court to assert that “The facts of the case, as submitted
by the applicants” on page 2 para 4 of the Decision when the
Court have dismissed the allegations and true facts of the case
as submitted by the applicants.
It is alleged that decision of the Court dated 5 July
2001 is based on false statement, incorrect and inaccurate ‘facts’.
For this reason it is alleged that the decision of the Court of
5 July 2001 is not independent and not impartial and that the false
and incorrect and inaccurate ‘facts’ by their very nature
would have a decisive influence when the decision was delivered
This decision of ECHR was obtained by fraud thus preventing
the applicants the right to have their case heard in a fair and
It is well established and settled case that “The
power of a court, however, to interfere in any case is not that
of an appellate authority to override a decision of the local authority,
but is that of a judicial authority which is concerned, and concerned
only, to see whether the local authority has contravened the law
by acting in excess of the powers which Parliament has confided
in it”. (Associated Provincial Picture Houses Limited v Wednesbury
Corporation (1944) KB 223) The domestic court dismissed this authority
and the applicants do not feel the Court should adopt the domestic
The Court is entitled to investigate the action of
the local authority with a view to seeing whether it has taken into
account matters which it ought not to take into account, or conversely,
has refused to take into account matters which it ought to take
into account. And in this case, the Court has not give consideration
to Statement of Claim nor the allegations made against the local
authority that both the past and the present industrial activities
do not have planning permission and that the officers of local authority
purported they have planning permission and legitimate use.
1 The factory is licenced by the local authority (see
page 9 para C of the Decision)
2 There is planning permission (see page 2 para 6
and page 9 para C)
3 This is a grant of planning permission issue (see
page 3 para 13)
4 This is an immunity issue (see letter dated On the
29 March 2001, Mr Early, for the Registrar of ECHR, page 7 para
A, page 13 para C and G.)
5 Planning permission was granted to all three buildings
(see page 2 para 6)
7 The claim base on negligence in carrying out planning
function (see page 9 para C)
To the allegations made in the Statement of Claim
and supporting evidence that there is no planning permission for
the activities to take place.
To the fact this is not a grant of planning permission
issue nor an immunity issue.
To the fact that purporting to carry out planning
functions and duties purporting there to be planning permission
when there is not, is not negligence in carrying out statutory functions
To the existence of case law which states “The
person purporting to exercise his discretion has acted in abuse
or excess of his power. Parliament cannot be supposed to have granted
immunity to persons who do that.”
To the fact the local authority knowingly and deliberately
covered up the true planning records.
To the fact that it has been within the duty and power
for the local authority to remedy the matter but failed to do so
To the fact that the applicants have exhausted all
the humanly possible avenues to seek redress without success and
that the problem continues to date.
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.
The Court should give consideration to the exercise
of such a 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 fact that there is no planning permission and that purporting
to have granted planning permission is a disregard of public policy
and the Court in reaching its Decision gave no regard to “The
person purporting to exercise his discretion has acted in abuse
or excess of his power. Parliament cannot be supposed to have granted
immunity to persons who do that”. X (Minors) v Bedfordshire
County Council (1995) 3 WLR 152
For the reasons above the applicants allege under
the articles of the ECHR that there is : -
BREACH OF ARTICLE 6 - Right to a Fair trial
In this application, it is clear there is a breach
of Article 6. The applicants were not given a fair trial. The decision
reached by the Court is biassed. The applicants allege that either
the Court or the rapporteur was not acting impartially. In this
case The Court has no power to assume there to be planning permission
for the two industrial activities to take place that when the applicants
alleged there is no planning permission for both the industrial
activities, which caused and continues to cause harm to their health
and affecting the running of their business.
The Applicants submit that the Court did not give
any consideration to the further submission dated 23 May 2001 and
12 June 2001 which clearly stated the application does not rely
upon Osman case because this application concerns abuse of power,
that officers purported there to be planning permission when there
is no planning permission.
The Applicants submit that the Decision of the Court
based on false statements, incorrect and inaccurate ‘facts’
amounted to an abuse of powers and for the Court to wrongly assume
there to be planning permission when there is no planning permission
is abuse of applicants’ rights. In doing so the Court aided
and abetted and participated in the violations of the applicants’
The applicants further submit if the Decision of the
Court is final and cannot be appealed, either to the Court or to
any other bodies, as stated in the letter dated 10 July 2001 from
the Registrar of ECHR this is in itself a violation of individual
The Applicants submit that they have not been given
the opportunity to make known the evidence needed for their claims
to succeed that the factories do not have planning permission. The
Applicants also submit that they were 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 documentary evidence
produced by the Local Authority to the domestic courts and that
the Applicant should be given the opportunity to comment on any
documentary evidence that the Court based its decision on which
were not submitted by the applicants.
Article 13 - Right to an effective remedy
The Applicants submit that an appropriate means of
obtaining a determination of their 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 planning permission for the factories when in fact according
to the council’s own record there is no planning permission,
was not made available because the Decision of the Court dated 5
July 2001 adducing false statements, incorrect and inaccurate ‘facts’
is abuse of the Court’s power and acted without authority
by wrongly assuming the authority licenced the activity, when the
allegation by the applicants is that authority did not licence this
activity. (See case of Z and Others v The United Kingdom Application
no. 29392/95 Judgement 10 May 2001)
In Conjunction with Article 6, the applicants submit
that the denial of their rights was not proportionate to the legitimate
aim of preservation of the rule of law, that the Court failed to
treat the applicants equally to other citizens.
The applicants also submit that the Court has discriminated
against the true facts of their case by accepting statements made
by the domestic courts and officers and dismissing the allegations
and statements made by the applicants, that to assert “The
facts of the case, as submitted by the applicants, may be summarised
as follows” on page 2 para 4 of the Decision is a false statement
as the facts of the case as submitted by the applicants are not
quoted in the entire Decision. In the applicants’ case, the
facts of the case as submitted by the applicants were not considered
and were dismissed.
The Applicants submit that the Court perpetrated a
denial of a fair hearing to the Applicants and that the Court abused
its powers, aided and abetted the wrong doers, by allowing the officers
to abuse their power purporting there to be planning permission
and diverting an issue of fraudulence and abuse of power into a
grant of planning permission and immunity issue
The applicants believe no similar case has yet been
brought to the Court’s attention therefore there is no relevant
law and authorities. The applicants rely on rule of law, law of
natural justice and the essence of Human Rights.
The applicants also contend that for the Court to
deny their request for a fair hearing is direct violation of Articles
20, 21, 41, 42, 47, 53 and 54 of Charter of Fundamental Rights of
the European Union.
The applicants also refer to the Declaration on the
Rights and Responsibility of Individuals, Groups and Organs of Society
to Promote and protect Universally Recognised Human Rights and Fundamental
Freedoms, General Assembly resolution 53/144 Article 1, Article
2, Article 3, Article 8, Article 9, .
The applicants also refer to Basic Principles on the
Independence of the Judiciary _ Adopted by the Seventh United Nations
Congress on the Prevention of Crime and the Treatment of Offenders
held at Milan from 26 August to 6 September 1985 and endorsed by
General Assembly Resolutions 40/32 of 29 November 1985 and 40/146
of 13 December 1985
The applicants also refer to the UN Report of the
Special Rapporteur on the independence of judges and lawyers, Dato'Param
Cumaraswamy, submitted pursuant to Commission on Human Rights resolution
In particular the principles I, V and VI as laid out in Report of
the Secretary General of UN prepared in accordance with Commission
resolution 1996/13 with the comments received.
16. Final Decision is on the 5 July 2001 by ECHR,
the nature of decision is admissibility.
17. Other decisions :
It is obvious the Decision of the Court dated 5 July
2001 was not based on the facts submitted by the applicants but
is based on false statement, incorrect and inaccurate ‘facts’
thus denying the applicants a fair hearing and denying the applicants’
case to be heard in according to the facts and allegations submitted.
The applicants do not know if the further submissions
dated 23 April 2001 and 12 June 2001 were delivered to the judges.
The applicants do not know if the judges read these
In according to rule 49 of the Court, a judge of the
Court, acting as rapporteur, will carry out a preliminary examination
of this application and report to the Court on the question of its
admissibility. The applicants allege as the facts of the case stated
on the Decision do not tally with those submitted by the applicants.
The applicants allege that it is therefore highly likely that the
report of the Judge Rapporteur under rule 49, 4 to the Court is
questionable. The applicants respectfully ask the Court to investigate.
It is a well established principle of law and authority,
in Lazarus Estates Ltd v Beasley  1 All ER 341 Lord Denning
“No judgement of a court, no order of a Minister,
can be allowed to stand if it has been obtained by fraud - fraud
All the domestic court judgements submitted with this
application by the applicants have been obtained by fraud, a practice
it would seem permissible in UK and these are : -
1 Mr Justice Collins judgment dated 24 January 1996
Case no. 1994 L No.1648
2 L J Potter’s judgement dated 30 July 1997
Case no. OBENI/96 0931/E
3 Mr Justice Moses’s judgement dated 25 June
1998 Case no. CO/0448/98
4 L J Potter’s judgement dated 28 October 1998
Case no. FC3 98/6523/4 and FC3 98/6956/4
It is important to note that in the judgment dated
30 July 1997 before LJ Potter page 34 para B states “Even
assuming that the unit at the rear of 34 was not covered by the
original planning permission, no matter has been pleaded which could
lead one to infer that the respondents acted otherwise than under
a bona fide mistake in respect of the position and/or with bona
fide intention to alleviate a nuisance.” The question is “was
it bona fide intention of the local authority to alleviate a nuisance?”
From the extensive correspondence available to the
Court, and the continued purporting that the present industrial
activity has legitimate use, coupled with the fact that in this
hearing Lord Justice Potter (in order to accommodate and legalise
the cellulose paint spraying factory operation) accepted the false
statement of the local authority and accepted that planning application
88.1887 was granted to Unit 2 rear of 34 Palace Avenue, where the
factory operated, while three months later, the local authority
informed the planning committee that Lord Justice Potter’s
decision was incorrect (because it no longer applied to the present
situation) and thus in 1998, Lord Justice Potter once again accepted
a false statement by the local authority, this time accepting that
planning permission granted under planning application 88.1887 was
applicable to Unit 1 rear of 36 Palace Avenue. Thus accommodating
the changed needs of the local authority. While throughout, it has
remained a constant matter of fact, according to the local authority’s
own planning records planning permission for planning application
88.1887 was granted specifically to The Storage Building (r/o 36
Palace Avenue, which is sandwiched between Unit 1 rear of 36 and
36 Palace Avenue) but was never granted to either to Unit 2 rear
of 34 Palace Avenue nor Unit 1 rear of 36 Palace Avenue, as has
been repeatedly claimed in and accepted by the domestic courts.
And now accepted by the Court. The true fact is that the applicants
have repeatedly asked the domestic courts to reveal the truth but
Can LJ Potter honestly say “the respondents acted otherwise
than under a bona fide mistake in respect of the position and/or
with bona fide intention to alleviate a nuisance.” (Judgement
dated 30 July 1997 page 34 para C)
The applicants respectfully ask the Court not to allow
judgements and/or decisions obtained by fraud to stand.
Under Article 37, the applicants respectfully ask
the Court to restore their application to its list of cases, as
the judgement reached by the Court in the decision of 5th July 2001
is based on false statements, incorrect and inaccurate ‘facts’,
resulting in the statements informing the decision bearing no resemblance
to the basis of the application made
Under Article 43 the applicants also respectfully,
in the interests of protection of human rights and prevention of
violation of human rights and for the availability of a fair hearing
and effective remedy, request the Court to exercise its discretion
to not exclude Decisions in allowing cases to be referred to the
Grand Chamber, because this is an exceptional case and one which
raises serious issues of general importance, particularly the right
to have the basis of the application heard properly without being
diverted. In the interest of proper administrative of justice and
prevention of abuse of power by members of the Court, to prevent
exceptional cases which raises serious issues of general importance,
such as this case, to be prevented from a fair hearing because the
Court adopted a decision on inadmissibility in order to prevent
this case to be heard properly, is itself violation of human rights.
Under Article 30 the applicants also respectfully
ask the Court, before the Court renders its judgment in the present
application, to relinquish jurisdiction in favour of the Grand Chamber
because this application raises a serious question affecting the
interpretation of the Convention and the resolution of the issue
raised before having a result inconsistent with the judgement previously
delivered by the Court. This also raises a serious issue of general
importance in the following : -
1 Is there any effective remedy for a fair hearing
when the Court’s own judgment is based on false statements,
incorrect and inaccurate ‘facts’ ? (see the enclosed
critical analysis of the Court’s judgement)
2 Can the Court itself be guilty of violation of the
ECHR article 6, 8, 13, 14, and 17 in a situation where the Court’s
judgment/decision is based on false statements, incorrect and inaccurate
‘facts’ and there is no right of appeal to the Court
or to any other body because the Court so states.
3 Is the letter dated 10 July 2001 on behalf of the
Section Registrar, Mr Berger correct to state “This decision
is final and is not subject to any appeal either to the Court or
to any other body” and in accordance to Article 44 and Article
29 of the convention ? (See enclosed letter from Mr Berger)
4 It is clear and obvious that the Judgement dated
5 July 2001 is based on false statement, incorrect and inaccurate
‘facts’. This would demonstrate that the preliminary
examination by the rapporteur of the Court and his report to the
Court is questionable. Are there safety measures to ensure the impartiality
and accuracy of the preliminary examination of applications and
the report made to the Court by the rapporteur ?
5 Mr Early informed the applicant that “The
proceedings are primarily in writing and you will only be required
to appear in person if the Court invites you to do so.”- if
this is true how is this stance of the Court compatible with Article
6 The applicants respectfully ask the Court, in the
interest of the proper administration of justice, to accept this
application and to investigate how and from where the false information
and incorrect ‘facts’ (as alleged by the applicants
in the enclosed critical analysis of the 5 July 2001 Decision) were
passed to the Court. The applicants also respectfully ask the Court
to determine “which building planning permission was granted
to under planning application 88.1887”. The applicants also
respectfully ask the Court to determine if purporting to carrying
out planning function is an abuse of power and not a grant of planning
permission matter and also ask the Court to reconsider the basis
of the case from the documents enclosed The applicants refute the
statement in the Court’s judgement of 5th July that their
application be manifestly ill-founded.
Under Article 21, the applicants would like to ask
the Court to investigate the impartiality of the content of the
preliminary examination by the rapporteur of the Court and his report
to the Court under rule 49, 4
(a) a statement of the relevant facts, including any
information obtained under paragraph 2 of this Rule
(b) an indication of the issues arising under the Convention in
(c) a proposal on admissibility and on any other action to be taken,
together, if need be, with a provisional opinion on the merits,
since the ‘factual’ background and basis
of the case in the judgement bear no resemblance to the actual factual
background and basis of the case as stated in the submission made
to the Court.
Due to the serious nature of the complaints made in
this application, and the fact that the ‘errors’ upon
which the Court founded its Decision could only have reached the
Court via the UK administrative office, the applicants ask the Court
to have this application handled by an independent office rather
than the UK administrative office. The applicants would also like
to ask the Court to invite them to appear in person.
The Applicant also claim by way of legal costs and
expenses in preparing this submission.
In support of this application, the applicants enclose
the following documents :
1 A copy of a critical analysis of the Court’s
Decision dated 5 July 2001 detailing where and how the Court’s
Decision is based on the false and incorrect statements.
5 A copy of a critical analysis of Mr Justice Collins
judgment dated 24 January 1996 showing Mr Justice Collins wrongly
applied the Tests and Acts. This report also points out the false
and incorrect statements that the judge based his decision on.
6 A copy of a critical analysis of L J Potter’s
judgement dated 30 July 1997 pointing out the false and incorrect
statements the judges based their decision on.
7 A copy of a critical analysis of Mr Justice Moses’s
judgement dated 25 June 1998 pointing out the false and incorrect
statements the judges based their decision on.
8 A copy of a critical analysis of L J Potter’s
judgement dated 28 October 1998 pointing out the false and incorrect
statements the judges based their decision on.