T (Child), Re

In family proceedings, an appellate court may intervene where an urgent application for legal representation was handled bureaucratically and the litigant was denied a fair opportunity to present it. Relief must be fair and necessary; procedural injustice does not automatically require a retrial. A discretionary contact regime should not be disturbed where it falls within the generous ambit of judgment, and the possibility that representation might have produced a different outcome is insufficient by itself. Relief may instead be tailored by varying procedural restrictions, directing specialist judicial management and revisiting costs.

The mother appealed from orders made in Family Division proceedings concerning her contact with the child P. Following hearings in May and December 2000, she challenged the refusal of an adjournment on 14 December 2000, relying on a pending application for legal representation to the Legal Services Commission. She argued that the resulting unfairness required the contact determination to be set aside and retried. She also challenged the discretionary contact regime and related directions, including a restriction preventing a further section 8 application before 1 August 2003. The central questions were whether the procedural history required a retrial and whether the contact decision was open to appellate review.

Thorpe LJ gave the judgment, with which Wilson J agreed. Permission to appeal was granted and the appeal was allowed, but the principal contact provisions were not set aside.

1. The contact regime was a discretionary determination made after a difficult and substantial hearing. It fell within the generous ambit of the judge’s discretion and was not open to appellate interference. Full representation at the December hearing might not have produced a different result, so a retrial de novo was not the fair or necessary remedy.
2. The mother’s urgent application for representation had not been dealt with realistically. The correspondence showed bureaucratic processing rather than consideration by an informed decision-maker of what justice required. The judge was unaware of those realities, and the mother’s presentation did not adequately focus the issue. This justified appellate intervention.
3. Relief was tailored to the procedural injustice. The restriction on issuing a section 8 application was varied so that an application could be made from 1 October 2001 instead of 1 August 2003. No final determination was to be listed during 2001, although interlocutory steps could be taken. Any such application, and future applications by other parties, was to be listed before a full judge of the Family Division.
4. The disclosure direction was varied so that CAFCASS alone would exercise discretion over material disclosed to the child’s general practitioner or any psychotherapist. Costs payable by the mother were limited to the costs of resisting the section 91(14) application, subject to assessment if not agreed.

• Court of Appeal (Civil Division): Permission granted and appeal allowed; the relevant order was varied as detailed in the judgment.
• Family Division: His Honour Judge Kevin Barnett, sitting as a High Court judge, made the contact and related orders following hearings in May and December 2000.