N (A Child), Re

An interim contact order establishing a framework for assessment and future decision-making falls within the trial judge’s discretionary function. Permission to appeal will be refused where the order is plainly interlocutory and no arguable error in the exercise of that discretion is shown. A parent’s refusal to co-operate with court-directed assessment may materially weaken the case for continued direct contact and may result in indirect contact being ordered.

The father applied for permission to appeal against an interim order made by Her Honour Judge Mitchell on 11 January 2001 while sitting as a deputy judge of the Family Division. The order provided for three one-hour contact visits, supervised and arranged by a Court Welfare Officer, followed by a welfare report and a further hearing before a circuit judge.

The father had previously failed to co-operate with an assessment-contact scheme and continued to resist the arrangements. The central issue was whether the interim framework was susceptible to appeal and whether permission should be granted.

1. Application dismissed. Lord Justice Thorpe held that the application for permission to appeal was hopeless.
2. The order was an interim case-management and assessment arrangement designed to provide the professional opportunity necessary for later decision-making about contact. The selection of three observed visits, the appointment of a Court Welfare Officer, the reporting timetable and the listing directions were matters obviously falling within the judge’s discretionary function.
3. The father’s refusal to participate in the assessment scheme did not provide a proper basis for appellate intervention. On the contrary, continued non-co-operation would effectively undermine his own case by depriving the court of the evidence needed to assess the relationship and the appropriate form of contact.
4. Thorpe LJ emphasised that, if the father continued to refuse the court’s programme, the judge might be left with no satisfactory basis for maintaining direct contact and might have to make an incomplete arrangement, probably limited to indirect contact. The observations were directed to encouraging immediate compliance with the existing order, in the interests of the child.
5. Permission to appeal was refused.

• High Court of Justice: Her Honour Judge Mitchell, sitting as a deputy judge of the Family Division, made an interim contact and assessment order on 11 January 2001.
• Court of Appeal (Civil Division): Lord Justice Thorpe refused permission to appeal and dismissed the application on 14 March 2001: [2001] EWCA Civ 477.