A (Children)

Permission to appeal against a purely interim order is granted only rarely. The Court of Appeal respects the broad discretion vested in the trial judge and will not substitute its own discretion for that of the judge at first instance. A later trial judge may vary an earlier child-contact order where subsequent events create a significant change of circumstances that was unforeseen when the original order was made. An earlier appellate conclusion that the original exercise of discretion was unimpeachable does not make the contact programme immutable. The court may also refuse permission where the relevant order has become spent or cannot practically be reversed.

The father, acting in person, sought permission to appeal an order made by the President on 2 July 2002 concerning his children. The order allowed an operation on the elder child to proceed and provided for interim contact until a further hearing on 2 October.

He argued that the President was bound by a contact programme fixed by Barnet County Court in October 2001, which had previously been upheld when the mother sought to challenge it. The central issues were whether the President could vary that programme in light of the child’s impending hospitalisation and whether the Court of Appeal should interfere with the President’s interim discretionary order.

Application refused.

1. The Court of Appeal does not ordinarily grant permission to appeal against purely interim orders. The trial judge has a broad discretion, and the appellate court must avoid substituting its own discretion for that of the judge who is managing the case.
2. The President was reconsidering the appropriate pattern of contact between 2 July and 2 October in light of subsequent events, particularly the elder child’s expected hospitalisation for about 10 days. That was a significant change of circumstances unforeseen when the earlier contact order had been made. Variation of the earlier order was therefore appropriate.
3. The earlier appellate conclusion that the circuit judge’s exercise of discretion was unimpeachable did not prevent the President, sitting as a trial judge, from exercising her own discretion in materially changed circumstances. The earlier order was unimpeachable on the facts then before the appellate court; it was not an immutable programme.
4. The operation had already taken place, so the court could not restore the position existing on 2 July. The interim contact arrangement had also run only until the further hearing. The application consequently had no proper foundation and was dismissed. A copy of the judgment was to be supplied to the father at public expense.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 1662, permission to appeal against the President’s order of 2 July 2002 was refused.
• President of the Family Division: Made the order of 2 July 2002 concerning the elder child’s operation and interim contact.
• Barnet County Court: Judge Latham had made the earlier contact order in October 2001. A subsequent challenge to that order was dismissed by the Court of Appeal on 12 February 2002.