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2 | Appendix 3 case ii | Appendix
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3 case iv | Appendix
3 case v | Appendix
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Appendix 3 case
ii Abridged background 1. This is an application arising as a result of all domestic remedies in the UK having been exhausted. There has been an order and judgment made on April 19th 2002, in the Supreme Court of Judicature, Court of Appeal (Civil Division) on Appeal from the Portsmouth County Court, (heard by His Honor Judge Milligan), before Mr. Justice Sumner, a High Court judge in the Court of Appeal. The application reference was B1/2002/0250. The order and judgment were made following my application to appeal the order and judgment made on January 22nd 2002 in the Portsmouth County Court. 2. The previous order made on April 12th 2000 was under complaint but I had been unable to appeal because the facts of the case in the report for the legal aid board were inaccurate and distorted resulting in no chance for a fair and proper hearing. There has been new evidence since, particularly as the reports by Social Services can be shown to be biased, false and the writers not acting impartially or independently. Factual background 3. The Applicant met the Defendant in Spain in 1989 whilst he was the Head of Studies of an English Language school and the Defendant was the new secretary. The parties married in August 1990 in Bristol, UK. Two children were born to them, the first M.A.O’Connell (born 25.8.91) and the second A.P.O’Connell (born 8.10.93), both born in Southampton, UK. 4. After the birth of the first child the Defendant began having serious emotional and psychological problems of a personal nature. This was diagnosed in Southampton, UK after cursory investigations as three years of post-natal depression ‘with some features of post-natal depression.’ The community psychiatric nurse was not aware of the background in full, nor aware of the allergies, migraines and low back pain experienced by the Defendant. I was not asked regarding the symptoms that were relevant to any such diagnosis. I was trying to support the Defendant in getting appropriate help for her problems. The notes of the meeting with the community psychiatric nurse who interviewed us individually and together have never been made available. 5. On moving to Spain to help her get better (August 1994), the state mental health team in Madrid diagnosed ‘depressive anxiety, with complex neurotic symptoms of the phobic, asthenic, and particularly somatoform line. Further influenced by significant psychopathological factors in the structure of the personality of the patient’ (A later diagnosis of manipulative was ripped up by the Defendant before returning to the UK). The Defendant was seen fortnightly until April 1995 when a private psychologist became involved. 6. The Defendant’s condition was diagnosed in June 1995, after a battery of psychological tests, as emotional instability due to unresolved conflicts with her mother, father and the previous ten year relationship with a man twenty six years older than her (from the age of eighteen to twenty-eight) at which stage I had become involved. After more violence against me, (violence which had been on-going since April 1994) we split up, but the defendant later agreed to return to the UK away from her dysfunctional family and to address her problems of personal origin. The UK Authorities including Social Services despite the court order and the concerns for the children’s health and safety have never sought the Spanish notes. 7. After returning to the UK in November 1995 her previous behaviour began again until eventually on 25th May 1996 I felt that I had no choice but to leave. I was concerned for my safety and had been threatened with violence if I tried to take the children. The GP had referred the Defendant to a psychiatrist for post-natal depression; he alleged he was unaware of the Spanish diagnoses, or of the concerns for the children identified within them. A Counsellor for the Defendant was never made aware of the in-depth diagnoses and the concerns for the children either, despite the Defendant being referred to the Counsellor by her GP. 8. I had previously spoken to the GP about the situation but had been told simply to take the children out ‘when she gets like that’. The Health Visitor had arranged for parenting classes for the Defendant. I told a social worker, who visited regarding payment for help with nursery care, about the Defendant’s behaviour. The Defendant wanted nursery care three days a week for our son as she had problems coping with him. I began teaching again in January 1996. 9. I notified Social Services and the Defendant’s psychiatrist within 3 days of leaving, as I was concerned for the health and safety of the children. I moved to nearby rented accommodation to keep an eye on the children. I had fairly regular contact with the children but she even abused them in front of me. Being unable to support the children and having notified the authorities of my concerns I moved to Bristol in September 1996, hoping that she would improve as I felt that some of her behaviour was directed at me but could not understand why as it was illogical and seemed like intense hatred for me and a lack of understanding of the children’s needs. 10. I stayed with my parents until December 1996. I had regular contact with the children, travelling by train and bus at least every other weekend and for more than half the holidays. The children were often reluctant to return to the Defendant, particularly my daughter; my son was very young at the time too young to know what was happening. My son was so young he needed a great deal of support. They often looked frightened to return. 11. In January 1997 I rented a two-bedroom flat in Bristol so that the children could live freely with me without any interference. At the time the Court Case started. I was in Bristol until September 1997. 12. Throughout this period the children were very happy and content with me but I noticed peculiar behaviour including reciting numbers, hiding under a table for hours, staring into space and crying hysterically for no reason. A Court welfare officer was involved at this time. She did very little; she told me that my solicitor was not doing his job. She had refused a joint meeting on the basis of the Defendant’s false allegations. The court had ordered a psychiatric report on the Defendant’s fitness for residence having seen her medical records and a court welfare report on the subject of residence/ contact. 13. The children told me what the mother was doing to them when I collected them. This included :- my son being locked as a means of a punishment him, and keeping him in his bedroom at night, pursing the children’s lips as a means of punishment, chasing them around and threatening them that they won’t see their father. Throughout this time the children’s contact with me was greater than with the Defendant. I had to give up working three times because she could not cope. 14. When my daughter disclosed the locking in of my son to her class teacher at school, the Head teacher did not report it to Social Services but told the Defendant, for which my daughter was punished. This is confirmed in a report prepared by court welfare officer. 15. When my daughter and son told the Court Welfare Officer about the Defendant’s behaviour the Welfare Officer told the Defendant. As a result my daughter also got further punished by the Defendant for talking to the Welfare Officer 16. The same Court Welfare officer (CWO) refused to address these concerns, blaming me in her report for setting the children up and alleging that I had put pressure on the children. However, when I had recorded the Defendant’s boyfriend admitting everything to me, the Court Welfare Officer refused to listen to the evidence. I had spoken to the private psychologist on the phone; he refused to tell me why the children should not be with her. I begged him to give me one reason why the children shouldn’t be with her, and his response was ‘psychological abuse’. The CWO had provided a report of which the integrity is very questionable and which included unprofessional statements such as ‘it is appropriate to lock a child in’ and which provides a very misleading impression of the facts of the case.
18. The judgement delivered was based on the Court Welfare Report and the letter dated 27.6.97 to the Defendant’s solicitor from the psychiatrist. This report does not take into any account any previous reports or emotional instability and neither does it address the specific questions that a court considering a child’s residence should would take into account. Indeed, as I later found out the psychiatrist was unable to do such a report and had he been instructed correctly, and in such manner as the court had ordered, he would have refused to carry out the report as he is not trained in such matters. The Defendant’s solicitors had requested and kept in their offices, the Defendant’s GP file so neither the psychiatrist nor my solicitor could access it. 19. At that hearing I had no legal representation because my solicitor had my legal aid withdrawn due to the CWO report and the psychiatrist’s letter. In October 1997 my solicitor threatened me to plead for contact only and not to apply for residence or he would apply to discharge my legal aid. He also refused to carry out my instructions. He withdrew my legal aid, as I could not bear to see my children suffer without giving myself a chance to fight for our rights. He refused to carry out my instructions. 20. After that hearing I paid another solicitor for a report on grounds for appeal as I had no legal knowledge but have been trained in child welfare issues and had serious concerns for the children’s health and safety. He stated in his report that there were no grounds for appeal. 21. On January 3rd 1998, the Defendant attacked me in public. Witnesses made statements to the Police that the Defendant looked mad, that the children did not want to go with her and that the children should not be with a woman like that. I did not press for criminal charges for the damage but requested that the Police Officer contact Social Services, as I was only concerned for the children. The Police officer spoke to Neil Toyn, a social worker, who referred him to the CWO. This was wrong. The CWO was not involved and had no statutory duty with respect to the children. The case law re: L, V, M and H are authoritative on the effects of witnessing domestic violence on the children and the need for an investigation into allegations. 22. Whilst the Police Officer informed both the Social Worker and the CWO of the fact that statements had been made and there were witnesses, no investigation was carried out, nor any notes made. Social Services have even denied knowing there were witnesses. Since then the Defendant has never approached near me. Since her violence against me was due to emotional disturbance, the Social Services should have made an investigation of the fact that the same problems still exists, given the symptoms demonstrated by the children and how they had been treated. 23. Out of desperation I wrote to Social Services and my GP detailing my concerns and dissatisfaction regarding the children’s health and safety. That letter was brought to the attention of the CWO who referred it to the judge. Social services did not take any action with regards to the concerns. I recorded the Defendant’s man-friend twice more and he openly told me of the locking in of my son to keep him in his bedroom at night, to calm him down after a paddy and to punish him. He also talked of finding this treatment acceptable and his agreement with it. 24. I was ordered to attend the court. During the hearing I was asked if I understood what contempt of court was, my response to the judge was ‘No, I don’t, but I think I am getting the message. Do you have any problems with the truth?’ This resulted in a review being ordered with a hearing on September 23rd 1998. The remit of that review was: The father do file a statement setting out the basis upon which his application for a residence order is made and in particular detailing his childcare concerns with supporting evidence, this to be filed by mid-day on Monday September 14 1998. 25. For that review I had presented a statement and evidence of the concerns that I had. I offered to withdraw my application for residence in exchange for child and family guidance. The judge thought that was a good idea and he advised me to contact the GP to request it. At the end of the hearing the judge asked questions of the Defendant: ‘Have you spoken to the boyfriend about the phone conversations?’ The reply was no and the judge then said ‘I don’t believe you.’ He also asked ‘I want an undertaking that you will not lock the child in again.’ The response was ‘nothing has changed since December 2nd 1997.’ At that hearing I had also been promised indirect contact by phone. On leaving the court the Defendant then broke the agreement (and withdrew my son from child and family guidance on the grounds that she could not take anymore behaviour work – I did not even know he was attending). 26. I was unaware of various factors at that stage that were of primary importance: As an example I will give the fact that my son unknowingly to me had been referred to child and family guidance without my knowledge or involvement. Due to my lack of involvement the Health Visitor and the child and family guidance team had no knowledge of the Defendant’s emotional/ psychological problems, of my son being locked in nor of my daughter’s wetting, urinary tract infections nor of my concerns for their health and safety and the evidence to support my concerns. 27. My son had been referred to child and family guidance concerning three years of sleep disturbance, for attention-seeking behaviour, and anxiety to his bedroom, all this and the state of the Defendant’s health, by virtue of her back problems, was all unknown to court or myself. Indeed as I also found out later Social Services had also set-up a care package including a taxi for the children to a school a mile away. Information which has never been made available to the court, yet which is extremely relevant given the connection of somatoform symptoms and emotional disturbance. 28. Since the priority was the children’s welfare the matter could have been addressed through child and family guidance and the co-operation of both the parents. I did not realise the extent of the Defendant’s denial and manipulation, or my lack of involvement with regards to the pertinent facts at that time. Child and Family guidance could have dealt with the emotional and psychological concerns and the children’s welfare. Contact between myself and the children was reduced to every three weeks until the January, as I was in debt through having to pay for all the transport costs myself and through having given up work three times to look after the children, and having received no state benefits during these periods. 29. The court had ordered defined contact as I had requested and also told me to request child and family guidance via the GP. This I did and the GP referred his concerns to Social Services as there were child protection concerns. Plainly the GP was as unaware of my son’s referral to child and family guidance as were Social Services. The Health Visitor who referred him works in the next building. 30. The GP referred his concerns to Social Services, who then later carried out an assessment of risk from December 1998 to June 17th 1999. There were serious errors with this assessment of risk. The concerns raised by the GP were never investigated: a) No meeting with myself took place, neither was any of my evidence requested nor taken into account. b) There was no investigation of psychological/ emotional concerns. c) There was no investigation into psychological abuse or the parenting. d) The social worker interviewed the judge and the court welfare officer: neither is trained in child welfare issues or able to diagnose the concerns presented. e) The judge should be impartial and as I understand from the written evidence gave statements contrary to that which he had said in court. f) The same judge in the judgement dated 2.12.97 simply stated that it is appropriate to lock a child in on the basis of the court welfare report and instead of reporting to the social worker, ignored it and the evidence to support it, and therefore condoned child abuse. g) Minutes of the meeting of the social worker and the judge have never been made available. h) I understand that at no stage did the court welfare officer or the judge disclose the truth i.e. my son being locked in, the Defendant’s emotional and psychological history or of the GP’s medical concerns for the children. 31. On June 17th 1999 I attended a meeting with the social worker. I had not been informed of the reason. I had thought it would be to address my concerns. I was shown the report dated 17.6.99 and told that if I did not accept her assessment of risk on the children’s welfare she would take child protection action against me. The team manager witnessed this. 32. When I read the report I noted that there was no mention of:- My son being locked in. The mother’s physical health. The mother’s emotional and psychological problems. My daughter’s daytime wetting and urinary tract infections. False allegations of sexual abuse against the leader of a crèche and playschool. My son’s sleep problems/ anxiety/rocking. The mother’s violence. Parental alienation syndrome. My concerns with regards to the children’s behaviour. 33. The outcome of the complaint against the psychiatrist was sent stating that if I had any concerns for the children it was the duty of social services to investigate the matter of emotional instability. The social workers did not carry out any investigation and relied on the judge’s statements that the psychiatrist had carried out a comprehensive assessment which was plainly untrue. I do not believe that the judge had been seen. I had sent the response to the complaint against the psychiatrist to the Social Services but they refused to acknowledge or address the concerns. 34. Naturally I could not accept that report as a genuine, impartial, independent assessment of the true facts of the case. I had pursued complaints against the psychiatrist and after sending the results of that complaint to social services they did not investigate. A response to my complaint against the Court Welfare Officer ended with ‘the appropriate place to examine any perceived inaccuracies is in the court setting’. There are no proper complaints procedure in place. It was strange to have such important decisions being made by an organisation little trained in their duties, without recourse to amend the report before the hearing, with only the right to ask a few supplementary questions at the hearing and no recourse after the event. 35. Due to my continuing concerns for the children’s safety I made an application to court for residence and/ or contact with a remit for: 1) An ex-parte hearing. 2) Directions for disclosure of the evidence relating to concerns of psychological abuse of the children from Spain. 3) If the above notes do show the risk of psychological abuse, for an experienced psychologist or psychotherapist to be ordered to carry out the court’s original request for a report on mother’s fitness for residence. 4) Permission to be given to pursue a complaint to the Ombudsman. 5) Interim support to be given to reduce the effects of that which the children have suffered including an independent psychological report. 6) The court welfare officer to provide a report on residence and or contact, after having seen all the available evidence including my tapes, letters, GP notes, Health Visitor notes, 7) Diagnosis of emotional instability, details of disclosures by the children, Child Protection procedures for Southampton City Council, and statements from witnesses. 8) An independent report on the children from the National Youth Advocacy Service. 9) The above to be carried out to allow justice to be done in the context of children’s welfare and either a transfer of residence or a situation in which both parents can contribute fully to the children and have their needs fully addressed. (Including their mental health) and to be fully stable and functioning adults. 36. This application was to take steps towards remedying the situation since my son’s sleep disturbances continued and the Defendant had taken away his birthday presents to teach him to stay in his bedroom at night and had threatened to take away all his toys if he did not stop getting out of his bed. My daughter had been hit with a remote control by the Defendant, for simply wanting attention from her. I had intended for the matter to be addressed to provide the necessary support as the Defendant’s behaviour towards the children throughout showed no change from her previous behaviour and there were symptoms by both children giving rise to concern. 37. Within the application were my concerns for parental alienation, psychological abuse, and the effects on children of witnessing violence and inappropriate parenting. An emergency legal aid certificate had been granted and an acting agent solicitor who was not familiar with the case represented me. 38. On October 27th 1999, the court ordered the following; Maggie Smith of Hampshire Social Services, who prepared the risk assessment dated 17 June 1999 to produce an addendum to that report having met with the father Applicant to hear of his concerns and make a further visit to the Respondent mother’s home to speak to her about them and the children to the extent that she may consider appropriate in their interests, such further report to be filed by Friday 26 November 1999. Each party to file a statement of their case concerning the present application by Friday 12, November 1999 together with statements of any other relevant and probative evidence that they wish to call by Friday 12 November 1999 and copies to be filed with Maggie Smith of Hampshire Social Services. 39. The court refused to order an independent person as requested or a psychological report. The judge did not direct as to the exact remit but it was an application under section 8 of the children’s act and understood by the judge to be a section 17 report i.e. a child in need. Child protection procedures state that it is not sufficient to limit a child protection concern to section 47 (a child at risk), but section 17 (a child in need) must be addressed within it. 40. A hearing was arranged for the 13th January 2000. My solicitor had asked for a barrister’s report on merits for the legal aid board. The barrister was never informed of the mother’s emotional and psychological problems or of the concerns and evidence that I had by the solicitor who again was not representing the facts of the case. Legal aid is only given if there is a 70% chance of winning the case, so the report could not be effectively challenged. 41. They used the assessment of risk and the court welfare report which were so badly flawed so as to be unfit for its purpose as being damning evidence against me. Again I was threatened to apply for contact alone or they would discharge my legal aid. The solicitor refused to address the fraudulent evidence. 42. As I was worried about the health and safety of my children. The solicitor discharged my legal aid. For that hearing the social worker’s report was not prepared. She had been off ill since 13th December 1999, coincidentally 3 days after receiving witness statements. 43. I requested that the hearing go ahead without her report as she was off ill for stress and none of my concerns were being investigated as she was ill. When I pointed out simple facts such as there were no concerns about my parenting in the reports or in the Defendant’s or her man-friend’s statements the Team Manager for Social Services and the Defendant’s legal team looked shocked: When mentioning the locking in of my son the Defendant screamed. The Team Manager for Social Services requested a special contact session with the children and I, but the judge refused this. The judge also stated that he would not hear any evidence pre-September 1998. He then contradicted this at the hearing on April 11th 2000. This was to prevent the social worker from having to investigate either emotional instability or the effects on the children from the abuse they had received or the fact that the judge had himself misled social services along with the court welfare officer. The judge refused interim contact, thereby showing biasness from the outset, as he had already decided the outcome. 44. Despite the urgency of the case concerning the health and safety of the children the court did not deal with the matter urgently but adjourned for six months until June 2000. This merely increased my concern due to the lack of contact and no knowledge as to what extent the children were being harmed. I wrote to the Court for an expedited hearing. This was granted for April 11th 2000, after a letter I sent to the judge upon receipt of the date of the next hearing. Just before the hearing I received the Health Visitor notes. I was shocked at the content. I had kept a diary throughout most of the period. Correlating the diary and the notes showed the Defendant had reported sleep problems over 40 times to the Health Visitor, and that many of the contacts coincided with times when the Defendant was violent in front of the children, including my son having nightmares. It also showed my son had been referred to child and family guidance in January 1998 and was attending when I was in Court in September 1998 asking for child and family guidance. 45. At the April hearing I represented myself in person. The evidence presented by the Social Worker can now be proven to be false after concerted complaints under section 26 of the children’s act and requests for information that she perverted the course of justice. 46. The investigation by the social worker was a gross abuse of procedure but the evidence for this has only become available after vigorous pursuit by complaint and request for information. The court refuses to address this new evidence. Some examples are: a. After the hearing for Direction the mother stopped all contact. Although she had said at the 27th October 1999 hearing to her solicitor that she did not want me to see the children again until the matter was finished, her solicitor told her to be quiet and they would talk about this later. b. The Social Worker met the children and the mother on 29-10-99, (in the addendum it was stated they met on 28-10-99) and at that meeting the social worker showed herself to be biased, and unable to act impartially and objectively. She made some gross errors in this matter but this information has only just been made available (March 26th 2002) from the children’s social service’s file. A file which I would not be allowed to see if I was abusive in any sense e.g.: c. She only spoke to the children on limited matters and did not address any of the concerns. The Defendant was in the room next door. (Under oath on April 11th 2000 she stated ‘when you actually work with children you deal with the issues they bring up at the here and now and you don’t take them back.’ This is simply not true. It is promulgating intergenerational abuse as the matters need to be brought out in any therapy work and dealt with). The social worker has simply let the children state whatever they felt safe to say and given the past punishment for speaking out is highly unlikely that the children would be able to talk freely or be able to diagnose their own conditions. d. She took a six-year-old child’s words above those of an eight-year-old. Neither child is mature enough for their words to be fully taken at face value. e. When my daughter told her she wanted to live with her father, she never enquired why and told her that it was simply due to pressure from her father. f. On the same day she also decided to write to the Police on behalf of the Defendant to warn of possible contact between myself and the children. This should have been an issue raised via the courts and not behind my back, especially given the lack of concern over my parenting and the lack of a proper assessment. Therefore she had already decided the outcome of any report and could not be said to be impartial g. The social worker never investigated the mother’s emotional and psychological history relevant to the welfare of the children. h. Emotional and psychological abuse concerns were never investigated or even considered as it was assumed to be an acrimonious divorce. Neither was there any investigation of factors in the Welfare Checklist nor of the Defendant’s parenting. i. There was only one meeting with the children and not two as stated both in her report and under oath. j. My statements and evidence were ignored because they were too long. k. I have never been seen with my children by the social worker. The only meeting on November 17th 1999 resulted in me walking out. The notes my brother and I wrote of that meeting were vastly different to the notes in the social services’ file. l. Neither the school, the GP or the Health Visitor
EVER took part in an assessment of risk. m. There was no investigation of daytime wetting by my daughter, as the social worker erroneously decided that she was inventing it for my benefit. n. My son had been referred to child and family guidance by the Health Visitor because of concerns of three years of sleep disturbances and anxiety to the bedroom. The Health Visitor was never aware of my concerns nor of the mother’s emotional and psychological history. o. Under oath the social worker stated that my son had been referred to child and family guidance because of my behaviour. p. The Welfare Checklist, which is obligatory on section 8 proceedings, was not used. q. Although the judge stated in his judgement that my concerns had not been investigated, he gave little consideration to the facts of the case and refused to allow further evidence to be sought. I was surprised that he took many of the comments by the Social Worker seriously. r. The social worker stated under oath that my son had been referred to child and family guidance because of my behaviour and then stated that ‘the reason that your children act in an inappropriate way is associated with the way you treat them!’ Many other comments she made whilst under oath are now proven untrue. s. Despite saying that she wished more fathers were as caring as I, the children wanting contact and the blatant lack of a proper assessment whether under section 17 or 47, and certainly not a comprehensive assessment or under section 17 or 8, the judge ignored the contradictions and my requests for further information to be made available. My McKenzie friend Anson Allen at that and two other hearings has provided his opinion of proceedings as a witness, as well as Matthew Mudge who was a McKenzie friend on 17.12.01. 48. The judge ordered that there be no contact direct or indirect, all costs against the father, a section 91(14) and reserved the case to himself again. It is obvious that the court has misled and misdirected them. The credibility of the evidence put before the court needed to be investigated. I immediately made section 26 complaints against social services, the GP, Health Visitor, and Infant school and also made various requests for further information including data protection act requests for assistance to try to re-open the case. 49. I was shocked at events and could not believe that this situation could arise on the basis of nothing when the concerns had never been investigated. I was so shocked at the events that I lost two stone in weight and eventually became homeless for two weeks. I did not work for nine months but pursued complaints. Initially, I complained against each body involved and then used that information against another body. 50. The new evidence clearly demonstrated the inconsistent and contradictory statements in the social work, court welfare officer reports and the manipulation of the true facts of the case. In view of this evidence I made further applications to court: 51. On 11th October 2000 I applied for leave to apply for interim contact whilst I pursued complaints. This was dismissed on 6th December 2000. Leave to appeal the decision was refused on 7th December. 52. I then applied on October 23rd 2000 for access to the social service’s files. This was overlooked and was not addressed until 2001, when it was again refused. 53. I applied for the social worker and her team manager to be ordered to attend court to explain why the court had been misled, using the outcome of the review. This was refused for lack of jurisdiction. 54. The evidence sent to court in the application and in letters requesting that the court act of it’s own motion were used by the judge to change parts of the judgement e.g. the dates of my children being seen for the second time were changed in one part of the judgement to February but remained January in the other. 55. Evidence from the above was faxed to the Defendant’s solicitors at the request of the judge for their comments, but the orders were made before they had responded. This was simply to advise them of my actions and evidence to prevent the matters being addressed and a further cover-up could then be perpetrated and or allowed against the children’s best interests. 56. The children’s grandparents had their second contact with the children in December 2000. As a result of which they reported concerns under section 17 of the children’s act to social services both verbally and in writing. Social Services declined to investigate or to state the reasons why. They pretended that the grandparent’s statement of facts was a court statement. The Defendant then stopped the children’s contact with the whole of the father’s family. The concerns reported certainly fell under section 17 of the Children’s Act. 57. Desperate for the health and safety and having no apparent recourse through the courts or socials services I organised a protest outside the judge’s house in March 2001 which went on the national news in April 2001. 58. A fourth application was made in September 2001 for shared residence and/or contact which was given a half-day hearing on December 17th 2001. I applied for shared residence and/ or contact. I also requested for a removal of the section 91(14), for an immediate resumption of contact whilst the matters be addressed for shared residence. The judge refused to allow the new evidence despite the relativeness for the concerns for the children’s health and safety and the misleading evidence upon which the previous judgements had been made. The judge stated that the welfare of the children is the responsibility of social services. The judge did not act in the children’s best interests. 59. The Defendant requested an adjournment to apply for legal aid. I informed the court that she would not be entitled to legal aid on financial grounds. It was just a delaying tactic. The judge allowed the adjournment for the requested 42 days until 22nd January 2002. 60. For that hearing I had presented a bundle with relevant details for the children’s present health and safety. I applied for shared residence and/ or contact. I had also requested a family therapist to be involved. The judge ignored the relevant evidence and the concerns presented. The judge dismissed all the evidence and the leave to apply was dismissed. The judge could have ordered a section 7 report before throwing the application out. All the costs were again put against the father with an order for no contact direct or indirect, section 91(14) and case reserved. 61. However, in paragraph four of that judgement the judge referred to a hearing on 5th October 2000 stipulating that: ‘Reference to the judgement that I gave on 5 October 2000 indicates that there was a further requirement, namely, that Mr O’Connell would have to understand and appreciate the risks posed to his children’s emotional health and well-being resulting from his obsessional conduct relating to these issues; for instance that Michelle suffers with some worrying condition associated with her genitalia in respect of which mother is inactive; and conduct typified by tape recording his children’s answers to thoroughly manipulative questions. I give these as examples only of the need for a sea change on this fourth count, namely, a willingness to consider the views of others, in particular professionals, as to where the children’s best interests are.’ 62. However from my own knowledge and from the court record there was neither hearing on that date nor any other referring to that fourth condition. Indeed, court service had written to state that the judge merely wanted some admittance of the initial three conditions, which I had satisfied as far as I was able. 63. In the judgement in paragraph five it states that: ‘It is Mr O’Connell’s essential difficulty that there can be only one view of his children’s best interests, namely his own, and that the view of any other person - be they court welfare officer, social worker, doctor, teacher – that does not agree with his own is simply wrong and ought not to stand in the way of his having a relationship with his children entirely in accordance with his own views about their best interests.’ 64. This is not true. I would accept their views but for the fact that I have evidence to show that they have misled each other, been misled and that the concerns raised have never been addressed. It is only by having an overview of this case that it is possible to see how the whole situation has come about and who has misled whom and when. It is not clear whether it was all intentional but the evidence shows a very clear evasion of responsibility by the Social Worker, the CWO and the court and a cover-up of wrongdoing. It was the responsibility of the social worker to look at all the evidence, and in a child protection assessment to contact the professionals, to see their notes and to make a factual report assessing under section 17 and alternative outcomes, not to knowingly mislead. 65. The fact is that I do accept the views of Social Workers, GP, teachers and court welfare officers but how they reached their views and the wilful failure to address the concerns for the children’s health and safety, I do not accept. 66 After being unsuccessful in applying for leave to appeal I made an application to the court of appeal for leave which was heard on April 19th 2002. I represented myself. I applied for leave to appeal under the Human Rights Act articles 3, 6 and 8 and for transfer to the High Court and for disclosure of evidence refused. I made the application based on the misleading evidence, actions against the children’s best interests, and that I had never had a fair hearing in the UK family courts. A bundle of over 1000 pages was presented to the court and additional material presented on the day. 67. Entering into the courtroom I was informed by the judge that I had twenty minutes to present my case. As I began to address the court the judge then told me that my application had failed without addressing the evidence or hearing my case. He reached the conclusion that there had been no violation of my human rights and yet the first sentence in the judgement was ‘I do not know if there have been any violations of the Human Rights Act’. During the hearing the Judge stated that I should apply for indirect contact this year and go to a contact centre next year because of the physical harm I have caused the children by raising concerns. I was appalled. There is no evidence to support this. 68. I do not know if there will be any changes in the judgement given that the court of appeal has had the draft judgement since April 23rd 2002 and I cannot believe that they need so much time to give their approved copy when they are only permitted to check spelling errors and sentences misunderstood by the transcribers, as Court Service informed me when I previously complained about changes of the judgement. 69. As the case is subject to a section 91(14) order, I made an application for leave to apply for contact. On 8/05/02 I applied to the lower court requesting a family therapist to help the father if in seeking information and complaining I have somehow physically harmed the children because the Court of Appeal in it’s judgement on 19th April 2002 alleged that I have physically harmed the children. I am unable to see the evidence for this so in this application I requested that the therapist have access to the bundle so that I may be shown the evidence of the harm, which I cannot see. The judge refused a hearing despite there was no evidence of any harm caused by me. However, the judge refused to give an order for refusing the leave. The refusal was given in a letter from the Court Service so that I could not apply to Court of Appeal. 70. The judge did not give any consideration for my right to a family life nor to address the children’s health and safety and I have grave concerns for the children given that not only is my son being referred to child and family guidance but his behavioural problems have been noted by school. My daughter was withdrawn from the paediatrician despite the same issues being prevalent as I had previously raised. This case is therefore on going but with no recourse in the court. I do not admit that I am an emotional risk to the children, when the concerns have never been investigated and the sad truth has been uncovered of deception and a failure of the child welfare bodies to be impartial, objective and to carry out their own procedures.
71. It is alleged that decisions of the UK Court dated 2 December 1997 and 12 April 2000 were based on false statements, incorrect and inaccurate facts. It also is also alleged that the decision of the court of appeal dated 19 April 2002 was not independent and not impartial. The false, incorrect and inaccurate facts by their very nature are a decisive influence when the decision was delivered. The Applicant alleges that the court has wrongly assumed that the Applicant is abusive, has caused physical harm to the children and 72. The Applicant also alleges that the court failed to give consideration to the fact that the Defendant was seriously ill and causing serious harm to the children, physical, mental, and psychological. The welfare of the children has been put secondary to the wishes of the court and the Defendant. Of fundamental importance is that the court has misunderstood the entire factual background and that the judgment is based on false statements and incorrect facts. 73. The court in giving consideration to the exercise of its discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found, expressly or by implication, matters to which the authority exercising the discretion ought to have regard, then, in exercising the discretion, they must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, they must disregard those matters. Expressions have been used in cases where the powers of local authorities came to be considered in relation to the sort of thing that may give rise to interference by the court. Bad faith, dishonesty-those, of course, stand by themselves-unreasonableness, attention given to extraneous circumstances, disregard of public policy, and things like that have all been referred to as being matters which are relevant for consideration. In the present case, the court did not give any consideration to the health and safety of the children’s situation and disregarded section 1 of the Children’s act, ie the child’s welfare is paramount. For the reasons above the Applicant alleges under the Articles of the ECHR that there is a BREACH OF ARTICLE (6) 1 - Right to a Fair trial 74. In this Application, it is clear there is a breach of Article 6. The Applicant was not given a fair trial. The decision reached by the court is biased. The Applicant alleges that the court was not acting impartially. In this case the court has acted against the best interests of the children. 75. The Applicant submits that the Decision of the Court based on false statements, incorrect and inaccurate facts amounted to an abuse of power, and for the court to wrongly assume that the Applicant has caused harm to the children shows that the Judge was not independent. 76. The Applicant submits that he has not been given the opportunity to make known the evidence needed for his claims to succeed, that the application for shared residence and for appropriate sharing of parental responsibility was at the very least a genuine wish for both parties fully involved in the welfare of their children. 77. The Applicant also submits that he was not given
the opportunity to comment on the evidence adduced by the court
in reaching their judgement (See Krcmar and Others v. The Czech
Republic Application No. 35376/97 Judgement 3 March 2000), that
the Applicants should be given the opportunity to comment on the
documented evidence. But this has been made extremely difficult
without access to the full facts and with solicitors who do not
challenge the biased reports. The psychological notes from Spain
should have been sought by the Local Authority; the notes on the
Defendant’s counselling should have been made available
to comment on their accuracy given the Defendant’s history.
The minutes of the meeting between the Court Welfare Officer and
the judge should have been made available. The Applicant should
be given the opportunity to comment on any documentary evidence
upon which the court based its decision. 79. Under oath the Social Worker wilfully misled the court. Family Law proceedings are inquisitorial rather than adversarial in nature and it was not fair for the Social Worker to mislead the court even when under oath. Her statements are now proven to be largely invention and not based on facts. 80. Whilst the judge was led to believe the assessment was made under Section 17 of the Children’s Act, the review panel referred the Social Work assessment to be made under Section 47. These lower level concerns will still result in medium and long-term harm and give rise to concern of the children being more likely to have criminal tendencies. The court refuses to address these issues and also the mother’s emotional and psychological history. The child welfare system is simply promulgating intergenerational abuse. This will have a cost to society and cannot be said to be in the best interests of the children themselves and society at large. The only reason in this case for the failure to act is that there is a gender bias within the Social Welfare System. It is for the Local Authority to address these issues in order to reduce the level of crime and harmed caused by intergenerational abuse. Since my son has been referred to child and family guidance for the second time, and concerns are now being shown at school and my daughter still has daytime wetting, the Local Authority are refusing to carry out their duty towards the children’s welfare.
1) Psychological and emotional problems, which have never been investigated. 2) A history of violence, which have never been investigated. 3) Making false allegations of abuse and violence towards the partner. 4) Making false allegations of sexual abuse against child welfare persons. 5) Abusive behaviour towards the children without a full and proper investigation. 6) A father who locks their child in to punish him, in order to calm him down after a paddy and to keep him in his bedroom at night. 7) A father who misleads the school and school nurse with regard to the children’s absences, their health and such matters as daytime wetting, and urinary tract infections. 8) A father who demands no contact with the mother on spurious grounds with no evidence and neither would the court or the authorities collude to hide such behaviour and then knowingly mislead other child welfare persons of the facts. 9) False allegations by the Defendant were accepted, whilst the evidence that I had put forward to being the victim of domestic violence were either ignored or not taken into account. This would not be the case were I a woman. 10) The child protection system with regards to domestic violence in the UK is biased against men. It is inconceivable that such a father would be given sole residence. 82. It is well known in the UK that the Family Law system is prejudiced against fathers. Fathers have now taken to demonstrating outside judge’s houses. Voluntary groups such as Families Need Fathers, Equal Parenting Council, Dads against Discrimination, Shared Parenting Groups, Livebeat Dads are all becoming more vocal in their criticism of the Courts.
83. The Applicant submits that there has been interference by the local authority with the Applicant’s right to respect for the family life of himself and his children, particularly endangering the health and safety of the children. The applicant also submits that this interference is not in accordance with the law nor in pursuit of a legitimate aim, ie not in the interests of economic well being of the country and the preservation of social cohesion. The Applicant further submits that this interference was not necessary in a democratic society that the applicant and his children were entitled to have their family interests carefully considered by the national authorities and weighted in the balance as against the needs and benefit of children, but not to allow officers to act dishonestly, ignoring the proper procedure and waive the mandatory requirements of the Children’s Act. 84. The Applicant has had no direct contact with his children since October 26th 1999. No indirect contact since March 2000 and no phone contact since early 1998. This resulted from the false allegations and procedural defects made by officials. 85. The Social Services Department stopped contact October 29th 1999. The Applicant was unable to challenge their decision via the courts, complaints procedures or otherwise. 86. Neither has the Applicant been able to challenge the initial assessment of risk dated 17.6.99 which the Social Worker used to stop contact and raise child protection concerns regarding the Applicant. The Social Worker wrote to the Police regarding the Applicant’s contact with the children, which the Applicant has never been able to challenge or even knew about until March 2002. In doing so the Social Worker demonstrated partiality. 87. The Applicant used the Local Authorities and Health bodies’ complaint’s procedures under Section 26 of the Children’s Act in order to obtain information. These procedures have merely acted to protect the Local Authority and others. The ‘independent’ review person was not independent. The bodies involved; Social Services, GP, Health Visitor have all been in contact with each other regarding the Applicant’s complaints in order to take a joint approach against the Applicant’s complaints. 88. On March 26th 2002 the Applicant saw the children’s social service’s file; the concerns raised by the Applicant were not taken seriously because the social workers had regarded this as an acrimonious divorce from the outset. There was no proper assessment of risk. There was no pro-forma for an assessment in the children’s social service’s file. The report was misleading. He did not report the facts as they are. The result is that the review panel were misled too, The Applicant’s evidence was not put to them, as the Applicant was informed by the complaint’s officer the process was not quasi-judicial. The full facts had not been fully disclosed to the Applicant. 89. The right to contact has been fully recognised in the European Courts. Three judgements in particular are relevant: Hendriks v Netherlands (1983) 5 EHRR 233. The right to have contact enforced and enabled by the state is within Hokkanen v Finland (1995) 19 EHRR 139 (50/1993/445/524). In Margareta Anderson v Sweden application No.61/1990/252/323,
it states: In the case OF SAHIN v. GERMANY (Application no. 30943/96) a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see Elsholz v. Germany cited above, § 49).
90. The Applicant submits that an appropriate means of obtaining a determination of his allegations, that the officers of local authority acted unlawfully, beyond their discretion, ultra vires, in abuse of their power and fraudulently, purporting there to be a full and comprehensive assessment when in fact according to the Social Services own records there has been no proper assessment of risk. The addendum for the court contains many false statements and inaccurate facts. This shows an abuse of office and action was without impartiality by wrongly assuming that the Applicant has caused harm to the children. (See case of Z and Others v The United Kingdom Application no. 29392/95 Judgement 10 May 2001) 91. The Court welfare officer cannot be pursued for her failures, for destroying the children’s file and for misleading social services. I have no recourse for the actions of the judge to whom this case is reserved. The Defendant’s solicitor cannot be pursued for their actions of making false applications for legal aid, mis-instructing the psychiatrist or acting adversarial in inquisitorial proceedings and acting on behalf of the Defendant but ignoring the welfare of the children. There is no recourse from the social worker’s failure to investigate with due care and for misleading the court. There is no recourse for those involved with the local Authority who has attempted to prevent the true facts from becoming known. The false allegations and assertions that the Applicant deserved the violence against him, that he is a danger to the public, has a mental illness and which have been made to third parties have caused the Applicant a great deal of distress. The Applicant only discovered all of this by making concerted complaints and using the Data Protection Act. Throughout this statement the Applicant has referred to the actions of those in authority. They have preferred to deny the Applicant’s children and the Applicant justice, and prevent their best interests being addressed whether under Section 47 or 17, and failed to deal with the issues that are the paramount concern of the Children’s Act: the children’s welfare. Article 14 - Prohibition of discrimination 92. In Conjunction with Article 6, the Applicant submits that the denial of his rights was not proportionate to the legitimate aim of preservation of the rule of law that the court failed to treat the Applicant equally to other citizens. 93. The Applicant also submits that the court has discriminated against the true facts of his case by accepting statements made by the court welfare officer and social services and dismissing the allegations and statements made by the Applicant in that situations of violence of female on male is not treated equally as violence of male against female. 94. Also, the Applicant has not had a fair hearing throughout these proceedings because of the underlying gender bias within the family courts and by the professionals concerned and the lack of policies which treat resident and non-resident parents equally. Without a shared residence order (section 11(4) of the Children’s Act), defined as ‘where a residence order is made in favour of two or more persons who do not themselves all live together, the order may specify the periods during which the child is to live in the different households concerned’, the authorities do not treat both parents equally. Article 17 - Prohibition of abuse of rights 95. The Applicant submits that the court perpetrated a denial of a fair hearing to the Applicant and that the Court abused its powers, aided and abetted the wrong doers, by allowing the Welfare officer to abuse her power, by accepting the fraudulent evidence and distorted report as true facts of the case.
Preface: The Children’s Act 1989 was brought in to dispose of the old idea of custody and access and to amalgamate both public and private law with respect to Children under one body of Law. The old idea of custody and access was seen as encouraging winner takes all and hostility between the parents. The intention of the Children’s Act for shared residence to become the norm was made during the passage of the bill and is available in the Hansard notes. Under section 11(4) of the Children Act 1989: “A Residence Order may be made in favour of more than one person at the same time, even though they do not live together. Such orders, which may specify in detail the periods during which the child is to live in the different households, are known colloquially as 'shared residence orders” Children Act 1989 Chapter 41 - (b) The administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration. (2) In any proceedings in which any question with
respect to the upbringing of a child arises, the court shall have
regard to the general principle that any delay in determining
the question is likely to prejudice the welfare of the child.
(a) The ascertainable wishes and feelings of the
child concerned (b) His physical, emotional and educational needs; (c) The likely effect on him of any change in his circumstances; (d) His age, sex, background and any characteristics of his which the court considers relevant; (e) Any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) The range of powers available to the court under this Act in the proceedings in question. (4) The circumstances are that- (a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or (b) The court is considering whether to make, vary or discharge an order under Part IV. (5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all. Parental responsibility for children. 2 (1) Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child. (5) More than one person may have parental responsibility for the same child at the same time. (6) A person who has parental responsibility for a child at any time shall not cease to have that responsibility solely because some other person subsequently acquires parental responsibility for the child. (7) Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child. (8) The fact that a person has parental responsibility for a child shall not entitle him to act in any way which would be incompatible with any order made with respect to the child under this Act. (9) A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another but may arrange for some or all of it to be met by one or more persons acting on his behalf. (10) The person with whom any such arrangement is made may himself be a person who already has parental responsibility for the child concerned. (11) The making of any such arrangement shall not affect any liability of the person making it which may arise from any failure to meet any part of his parental responsibility for the child concerned. Meaning of "parental responsibility". 3 (1) In this Act "parental responsibility" means all the rights, duty, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property. (4) The fact that a person has, or does not have, parental responsibility for a child shall not affect- (a) Any obligation which he may have in relation to the child (such as a statutory duty to maintain the child); or (b) Any rights which, in the event of the child's death, he (or any other person) may have in relation to the child's property. (5) A person who :- (a) does not have parental responsibility for a particular child; but (b) has care of the child, may (subject to the provisions of this Act) do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child's welfare. (2) The power conferred by subsection (1) may also be exercised in any family proceedings if the court considers that the order should be made even though no application has been made for it.
7. (1) A court considering any question with respect
to a child under this Act may- (b) ask a local authority to arrange for- (i) an officer of the authority; or (2) The Lord Chancellor may make regulations specifying matters which, unless the court orders otherwise, must be dealt with in any report under this section. (3) The report may be made in writing, or orally, as the court requires. (4) Regardless of any enactment or rule of law which would otherwise prevent it from doing so, the court may take account of- (a) Any statement contained in the report; and (b) Any evidence given in respect of the matters referred to in the report, in so far as the statement or evidence is, in the opinion of the court, relevant to the question which it is considering. (5) It shall be the duty of the authority or probation officer to comply with any request for a report under this section. Guidelines state quite clearly that a section 47 report must not exclude section 17 concerns. The Local authority's duty to investigate. 47. – (ii) is in police protection; or (b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare. (2) Where a local authority have obtained an emergency protection order with respect to a child, they shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide what action they should take to safeguard or promote the child's welfare. (3) The enquiries shall, in particular, be directed towards establishing- (a) whether the authority should make any application to the court, or exercise any of their other powers under this Act, with respect to the child; (b) whether, in the case of a child- (i) with respect to whom an emergency protection order has been made; and (ii) who is not in accommodation provided by or on behalf of the authority, it would be in the child's best interests (while an emergency protection order remains in force) for him to be in such accommodation; and (c) whether, in the case of a child who has been taken into police protection, it would be in the child's best interests for the authority to ask for an application to be made under section 46(7). (4) Where enquiries are being made under subsection (1) with respect to a child, the local authority concerned shall (with a view to enabling them to determine what action, if any, to take with respect to him) take such steps as are reasonably practicable- (a) to obtain access to him; or (b) to ensure that access to him is obtained, on their behalf, by a person authorised by them for the purpose, unless they are satisfied that they already have sufficient information with respect to him. (5) Where, as a result of any such enquiries, it appears to the authority that there are matters connected with the child's education which should be investigated, they shall consult the relevant local education authority. (6) Where, in the course of enquiries made under this section- (a) any officer of the local authority concerned; or (b) any person authorised by the authority to act on their behalf in connection with those enquiries- (i) is refused access to the child concerned; or (ii) is denied information as to his whereabouts, the authority shall apply for an emergency protection order, a child assessment order, a care order or a supervision order with respect to the child unless they are satisfied that his welfare can be satisfactorily safeguarded without their doing so. (7) If, on the conclusion of any enquiries or review made under this section, the authority decide not to apply for an emergency protection order, a child assessment order, a care order or a supervision order they shall- (a) consider whether it would be appropriate to review the case at a later date; and (b) if they decide that it would be, determine the date on which that review is to begin. (8) Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child's welfare they shall take that action (so far as it is both within their power and reasonably practicable for them to do so). (9) Where a local authority are conducting enquiries
under this section, it shall be the duty of any person mentioned
in subsection (11) to assist them with those enquiries (in particular
by providing relevant information and advice) if called upon by
the authority to do so. (11) The persons are- (a) any local authority; (12) Where a local authority are making enquiries under this section with respect to a child who appears to them to be ordinarily resident within the area of another authority, they shall consult that other authority, who may undertake the necessary enquiries in their place. Section 47 of the children’s act relies on the definition of significant harm. This is not strictly defined in the children’s act or working together under the children’s act but is defined within the children’s act as: Where the question of whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child The procedures to be carried out in undertaking any assessments are given in the guidance: Working together under the Children’s Act. It is plain from this case and other failures in the UK that the implementation of this in practise often fails. How is it possible for the GP and the Social Worker to be unaware that my son had been referred to child and family guidance, when the Health Visitor works in the building next door to the GP surgery. The procedures for sharing information when I had raised concerns seem to have failed. Has their been dishonesty or a failure in the procedures? The fully investigated case of Victoria Climbie ending in a tragic death which could have been avoided had each person involved, GP, Police, Social workers etc with their own legal representative. Each body blamed the other and none was willing to take ultimate responsibility. The review carried out shows that the procedures are not being followed in practise. ORDERS WITH RESPECT TO CHILDREN IN FAMILY PROCEEDINGS General: Residence, contact and other orders with respect to children. 8. (1) In this Act - "a prohibited steps order" means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court; "a residence order" means an order settling the arrangements to be made as to the person with whom a child is to live; and "a specific issue order" means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child. (2) In this Act "a section 8 order" means any of the orders mentioned in subsection (1) and any order varying or discharging such an order. (3) For the purposes of this Act "family proceedings" means any proceedings- a) Under the inherent jurisdiction of the High Court in relation to children; and (b) under the enactments mentioned in subsection (4), but does not include proceedings on an application for leave under section 100(3). (4) The enactments are- (a) Parts I, II and IV of this Act; (b) The Matrimonial Causes Act 1973; (c) The Domestic Violence and Matrimonial Proceedings Act 1976; (d) The Adoption Act 1976; (e) The Domestic Proceedings and Magistrates' Courts Act 1978; (f) Sections 1 and 9 of the Matrimonial Homes Act 1983; (g) Part III of the Matrimonial and Family Proceedings Act 1984. Restrictions on making section 8 orders. 9. (a) with a view to achieving a result which could be achieved by making a residence or contact order; or (b) in any way which is denied to the High Court (by section 100(2)) in the exercise of its inherent jurisdiction with respect to children. The power of the court to make section 8 orders 10. – (1) In any family proceedings in which a question arises with respect to the welfare of any child, the court may make a section 8 order with respect to the child if- (a) an application for the order has been made by a person who- (i) is entitled to apply for a section 8 order with
respect to the child; or (b) the court considers that the order should be made even though no such application has been made. (2) The court may also make a section 8 order with respect to any child on the application of a person who- (a) is entitled to apply for a section 8 order with respect to the child; or (b) has obtained the leave of the court to make the application. (3) This section is subject to the restrictions imposed by section 9. (4) The following persons are entitled to apply to the court for any section 8 order with respect to a child- (a) any parent or guardian of the child; (b) any person in whose favour a residence order is in force with respect to the child. (5) The following persons are entitled to apply for a residence or contact order with respect to a child- (a) any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family; (b) any person with whom the child has lived for a period of at least three years; (c) any person who- (i) in any case where a residence order is in force with respect to the child, has the consent of each of the persons in whose favour the order was made; (ii) in any case where the child is in the care of a local authority, has the consent of that authority; or (iii) in any other case, has the consent of each of those (if any) who have parental responsibility for the child. (6) A person who would not otherwise be entitled (under the previous provisions of this section) to apply for the variation or discharge of a section 8 order shall be entitled to do so if- (a) the order was made on his application; or (7) Any person who falls within a category of person prescribed by rules of court is entitled to apply for any such section 8 order as may be prescribed in relation to that category of person. (8) Where the person applying for leave to make an application for a section 8 order is the child concerned, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application for the section 8 order. (9) Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to- (a) the nature of the proposed application for the section 8 order; (b) the applicant's connection with the child; (c) any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it; and (d) where the child is being looked after by a local authority- (i) the authority's plans for the child's future; and (ii) the wishes and feelings of the child's parents. (10) The period of three years mentioned in subsection (5)(b) need not be continuous but must not have begun more than five years before, or ended more than three months before, the making of the application. The section 91(14) order (14) On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court. The use of the section 91(14) is now to restrict the number of applications in order to reduce the workload of the Family Courts. It has plainly been used as a tool in this case to deprive the children of a proper relationship with their father. The evidence presented show the misleading evidence should have allowed an application for leave and for this to be addressed. The judge can use his discretion but prefers to rely on misleading evidence. The judge is not interested with the best interests of the children or the welfare of the child which is the paramount consideration in section 1 of the children’s act. The judge could have ordered a section 7 report on the issues but instead the section 91(14) order restricts the father to having to accept misleading evidence as being in the best interests of the children. This is a blatant violation of article 6(1) and article 8 of the Human Rights Act. General principles and supplementary provisions. 11. (1) In proceedings in which any question of making a section 8 order, or any other question with respect to such an order, arises, the court shall (in the light of any rules made by virtue of subsection (2))- (a) draw up a timetable with a view to determining the question without delay; and (b) give such directions as it considers appropriate for the purpose of ensuring, so far as is reasonably practicable, that that timetable is adhered to. (2) Rules of court may- (a) Specify periods within which specified steps must be taken in relation to proceedings in which such questions arise; and (b) make other provision with respect to such proceedings for the purpose of ensuring; so far as is reasonably practicable, that such questions are determined without delay. (3) Where a court has power to make a section 8 order, it may do so at any time during the course of the proceedings in question even though it is not in a position to dispose finally of those proceedings. (4) Where a residence order is made in favour of two or more persons who do not themselves all live together, the order may specify the periods during which the child is to live in the different households concerned. (5) Where- (a) a residence order has been made with respect to a child; and (b) as a result of the order the child lives, or is to live, with one of two parents who each have parental responsibility for him, the residence order shall cease to have effect if the parents live together for a continuous period of more than six months. (6) A contact order which requires the parent with whom a child lives to allow the child to visit, or otherwise have contact with, his other parent shall cease to have effect if the parents live together for a continuous period of more than six months.
(a) a probation officer to be made available; or (b) a local authority to make an officer of the authority available, to advise, assist and (where appropriate) befriend any person named in the order. (2) The persons who may be named in an order under this section ("a family assistance order") are- (a) any parent or guardian of the child; (b) any person with whom the child is living or in whose favour a contact order is in force with respect to the child; (c) the child himself. (3) No court may make a family assistance order unless- (a) it is satisfied that the circumstances of the case are exceptional; and (b) it has obtained the consent of every person to be named in the order other than the child. (4) A family assistance order may direct- (a) the person named in the order; or (b) such of the persons named in the order as may be specified in the order, to take such steps as may be so specified with a view to enabling the officer concerned to be kept informed of the address of any person named in the order and to be allowed to visit any such person. (5) Unless it specifies a shorter period, a family assistance order shall have effect for a period of six months beginning with the day on which it is made. (6) Where- (a) a family assistance order is in force with respect to a child; and (b) a section 8 order is also in force with respect to the child, the officer concerned may refer to the court the question whether the section 8 order should be varied or discharged. (7) A family assistance order shall not be made so as to require a local authority to make an officer of theirs available unless- (a) the authority agree; or (b) the child concerned lives or will live within their area. (8) Where a family assistance order requires a probation officer to be made available, the officer shall be selected in accordance with arrangements made by the probation committee for the area in which the child lives or will live. (9) If the selected probation officer is unable to carry out his duties, or dies, another probation officer shall be selected in the same manner. The Local Authority never made any consideration for a family assistance order or even for supervised contact had their concerns been genuine. The Law on Supervised contact is given below:
31. – (1) On the application of any local authority or authorised person, the court may make an order- (a) placing the child with respect to whom the application is made in the care of a designated local authority; or (b) putting him under the supervision of a designated local authority or of a probation officer. (2) A court may only make a care order or supervision order if it is satisfied- (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to- (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child's being beyond parental control. (3) No care order or supervision order may be made with respect to a child who has reached the age of seventeen (or sixteen, in the case of a child who is married). (4) An application under this section may be made on its own or in any other family proceedings. (5) The court may- (a) on an application for a care order, make a supervision order; (b) on an application for a supervision order, make a care order. (6) Where an authorised person proposes to make an application under this section he shall- (a) if it is reasonably practicable to do so; and (b) before making the application, consult the local authority appearing to him to be the authority in whose area the child concerned is ordinarily resident. (7) An application made by an authorised person shall not be entertained by the court if, at the time when it is made, the child concerned is- (a) The subject of an earlier application for a care order, or supervision order, which has not been disposed of; or (b) subject to- (i) a care order or supervision order; (9) In this section-"ill-treatment" includes sexual abuse and forms of ill treatment which are not physical. "authorised person" means- (a) the National Society for the Prevention of Cruelty to Children and any of its officers; and (b) any person authorised by order of the Secretary
of State to bring proceedings under this section and any officer
of a body which is so authorised; "development" means physical, intellectual, emotional, social or behavioural development; "health" means physical or mental health; and (10) Where the question of whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child. At no time have the Court or the local Authority considered any other action other than stopping all contact between the children and myself based on misleading evidence. This is a blatant violation of our Human Rights given the failure to investigate the concerns I had raised. Even had I been an emotional risk or suffering from a mental illness, contact whether direct or indirect could have been instigated under supervision if necessary or indirectly whilst there was investigations as to me. PART III Provision of services for children and their families 17 (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs. (2) For( the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2. (3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare. (4) The Secretary of State may by order amend any provision of Part I of Schedule 2 or add any further duty or power to those for the time being mentioned there. (5) Every local authority- (a) shall facilitate the provision by others (including in particular voluntary organisations) of services which the authority have power to provide by virtue of this section, or section 18, 20, 23 or 24; and (b) may make such arrangements as they see fit for any person to act on their behalf in the provision of any such service. (6) The services provided by a local authority in the exercise of functions conferred on them by this section may include giving assistance in kind or, in exceptional circumstances, in cash. (7) Assistance may be unconditional or subject to conditions as to the repayment of the assistance or of its value (in whole or in part). (8) Before giving any assistance or imposing any conditions, a local authority shall have regard to the means of the child concerned and of each of his parents. (9) No person shall be liable to make any repayment of assistance or of its value at any time when he is in receipt of income support or family credit under the Social Security Act 1986. (10) For the purposes of this Part a child shall be taken to be in need if- (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or (c) he is disabled, and (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. 26 (2) The regulations may, in particular, make provision- (a) as to the manner in which each case is to be reviewed; (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; (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; (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
has parental (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 in- (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
the (b) take such steps as are reasonably practicable to notify (in writing)- (i) the person making the representation; (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, 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 was found. 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 received. 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) [2001] 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: [2001] EWCA Civ 1830 (8) D V D (9) Beedell V West Ferry Printers. March 15 2001 (10) Neutral Citation Number: [2001] 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 for contact. (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 ECHR (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) February 1997 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 30th 1998 Review hearing (Southampton County Court) - 23 September 1998 Direction hearing (Southampton County Court) - 27 October 1999 Full hearing (Adjourned) (Southampton County Court) - 13 January 2000 Full hearing (Southampton County Court) 11th/ 12th April 2000 Section 91(14) hearing adjourned (Portsmouth County Court) – 17 December 2001 Section 91(14) hearing (Portsmouth County Court) – 22 January 2002
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 Act. 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 Appendix
3 case iii 1 Mr E L Early Dear Sir Re : Application Number 41671/98 and PM 778 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 case. 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 manner: * Lied in their affidavit dated 19 June 1998 to court * 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 to.) * 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 [1956] 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: (1) knowingly; or 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 in question. 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 [1994] 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 at trial. The action can only be struck out under RSC ord 18 r.19 where its is "clear and obvious that in law the claim cannot succeed." 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 [1995] 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” with it. 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 from you. Yours faithfully
ECHR APPLICATION ATTACHMENT LAM and Others -v- Council of Europe (ECHR) (Relating to Application No. 41671/98 LAM and Others -v- the United Kingdom) II STATEMENT OF FACTS Abridged background 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 proper manner. 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 courts approach. 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. The applicants allege that the Court has wrongly assumed :- 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) 6 No mandamus action taken (see page 12 para C) 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 and duties 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 : - 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’ human rights. 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 human rights. 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. 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) Article 14 - Prohibition of discrimination 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. Article 17 - Prohibition of abuse of rights 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 Relevant domestic Laws and authorities 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. Other relevant legislation 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
1995/36 IV STATEMENT RELATIVE TO ARTICLE 35 OF THE CONVENTION 16. Final Decision is on the 5 July 2001 by ECHR, the nature of decision is admissibility. 17. Other decisions : (i) Mr Justice Collins judgment dated 24 January 1996 (ii) L J Potter’s judgement dated 30 July 1997 (iii) House of Lords decision in January 1998 (iv) Mr Justice Moses’s judgement dated 25 June 1998 (v) L J Potter’s judgement dated 28 October 1998 (vi) ECHR’s Decision dated 5 July 2001 18. No V STATEMENT OF THE OBJECT OF THE APPLICATION 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 further submissions. 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 [1956] 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 unravels everything.” 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
have failed. 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 40. 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 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. VII- LIST OF DOCUMENTS 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. 2 Submission made to ECHR in 1998 3 Submission made to ECHR dated 23 April 2001 4 Submission made to ECHR dated 12 June 2001 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. 9 EA report (Perverting the Course of Justice
- Assessment of Official Documents) dated 10 September 1999, detailing
the officers of local authority knowingly and deliberately purported
there to be planning permission, that the Court did not give any
consideration to, but instead wrongly assumed there to be planning
permission and diverted the issue from abuse of power into grant
of planning permission. |
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