B (A Child), Re

In a finely balanced child-contact dispute, an appellate court may adjourn a permission application for an oral hearing where the rejection of an uncontradicted therapeutic programme and the imposition of a restriction on further applications raise arguable concerns. Judicial decisions remain for judges rather than experts, but a judge without relevant therapeutic expertise must have a secure evidential basis for rejecting such a proposal. A restriction on future applications must be justified by the need to safeguard the child, rather than by recent litigation conduct alone. Continuity of judicial management and therapeutic handling of intractable contact disputes may be important considerations.

Mr P M applied for permission to appeal an order made by Judge Moir in the Newcastle-upon-Tyne County Court on 17 July 2002. The order rejected Dr Halse’s recommendation for continuing indirect contact and therapeutic meetings between Mr M and his daughter, R, and imposed a two-year restriction on further applications under section 91.14. The central issues were whether the therapeutic programme had been rejected on a sufficiently secure evidential basis and whether the restriction was justified. Lord Justice Thorpe adjourned the application for an oral hearing on notice, with an appeal to follow if permission were granted.

The application was adjourned for an oral hearing on notice, with an appeal to follow if permission was granted. There was no order for costs.

1. Judicial discretion and expert therapy. The starting point was that decisions in finely balanced contact cases are for judges, not experts, and that discretionary decisions of this kind are difficult to challenge. Nevertheless, it was arguable that Judge Moir’s rejection of Dr Halse’s therapeutic package was not securely based on the exercise of judicial discretion. Dr Halse was a community paediatrician offering a therapeutic programme for the child, and there was no contrary expert evidence questioning its validity. The court questioned whether a judge without expertise in that field could properly reject the programme without a sound evidential foundation.
2. Therapeutic management. The court noted the increasing recognition that intractable contact disputes may be better addressed therapeutically than forensically, together with the shortage of therapeutic services. The availability of a committed professional willing to provide sustained assistance was therefore significant. Continuity of judicial management was also important, although the earlier order had not reserved the review to Judge Whitburn.
3. Restriction on further applications. The two-year restriction under section 91.14 required scrutiny. The court identified no recent litigation conduct justifying it. It could only be justified as necessary to safeguard and secure the child, and it was open to question whether that basis had been sufficiently established in evidence.
4. The matter was to be listed before Lord Justice Thorpe and one or two other members of the court, with a time estimate of one and a half hours. The court hoped that representation would be secured for the next hearing.

1. Newcastle-upon-Tyne County Court: Judge Moir made the order under appeal on 17 July 2002.
2. Court of Appeal (Civil Division): The application for permission to appeal was adjourned for an oral hearing on notice. Any appeal was to follow if permission were granted.