O (Children)

An application for permission to issue proceedings made subject to an indefinite restriction must be addressed and determined. It should not be adjourned indefinitely where progress requires a decision. Permission may be granted while leaving the substantive merits to the trial court. A judge must withdraw permanently where his or her observations would cause a litigant reasonably to feel that justice would not be forthcoming before that judge. Any separate issue concerning assistance from a McKenzie Friend may be reserved for determination in a later judgment.

The applicant appealed from an order made by HHJ Milligan at Southampton County Court on 1 November 2004. He sought transfer of the proceedings to the High Court, the judge’s recusal, and permission to issue an application for a residence or shared residence order despite an existing restriction under section 91(14). The restriction had been imposed approximately five years earlier and was indefinite. The Court of Appeal addressed the permission and recusal issues in this judgment, while reserving the question of assistance from a McKenzie Friend.

1. Permission to issue. The court held that the application for permission under the existing section 91(14) restriction should have been addressed and decided at the hearing on 1 November 2004. An indefinite adjournment was inappropriate. The need for real progress required at least the grant of permission. That grant did not determine the merits of the proposed residence or shared residence application, which remained for consideration by the trial court. The respondent’s interests were protected because she could contest the application on its merits.
2. Recusal. The court held that HHJ Milligan must permanently withdraw from the case. His gratuitous observations were such that a litigant could reasonably feel that justice would not be forthcoming before him. Future proceedings therefore had to be listed before Coleridge J, who could hear them himself or arrange for another judge to do so, but excluding HHJ Milligan.
3. Reserved issue. The court did not determine in this judgment the applicant’s entitlement to disclose papers to, or receive assistance from, a McKenzie Friend. That issue was reserved for the court’s further judgments and consequential orders.
4. Order. Permission to issue the application in Southampton County Court was granted. Future proceedings were not to be listed before HHJ Milligan. The transcript was supplied at public expense.

1. Court of Appeal (Civil Division): On appeal from Southampton County Court before HHJ Milligan, the court granted permission to issue an application for a residence or shared residence order, directed that the case be heard by a different judge, and reserved the McKenzie Friend issue.