T (A Child)

Permission to appeal from a short directions appointment will rarely be granted where the challenge concerns discretionary case-management decisions by an experienced family judge. The appellate court should intervene only where a sustainable criticism or proper arguable error is shown. A previous order for specified observed contact, intended to lead to a further hearing, does not create a continuing interim entitlement when that arrangement was frustrated. Interim contact may therefore be regarded as premature pending the full hearing. Similar principles apply to directions requiring medical notes or a report relevant to current presentation and contact. Any treating professional relying on therapeutic confidentiality should raise that issue. The application for permission was refused.

The applicant sought permission to appeal orders made by Mr Justice McFarlane on 28 April at a directions appointment concerning future contact arrangements between the child, the applicant and the paternal family, together with the production of medical evidence from Dr Mace. The application challenged interim contact decisions and an order requiring Dr Mace to attend with notes or provide a report. The central issue was whether those discretionary case-management decisions disclosed a sufficient basis for consideration by a fuller appellate court.

1. Disposition. Lord Justice Thorpe refused permission to appeal. The application was not appropriate for consideration by a fuller court.
2. Case-management discretion. The decisions were made at a short directions appointment to prepare the issues for a full hearing. An experienced judge has wide latitude in managing such proceedings. Permission will rarely be granted where the challenge is directed only to discretionary case-management decisions and no sustainable criticism is established.
3. Direct and indirect contact. The earlier order made by Holman J provided for two specific points of observed contact intended to lead to a further hearing. Those arrangements had been frustrated, so there was no continuing interim contact order when McFarlane J heard the matter. He was entitled to regard interim direct contact between the child and the paternal family as premature pending the full hearing. The decision concerning indirect contact was likewise not open to sustainable criticism. The question formed part of the wider issue of how contact should develop in the medium and long term.
4. Medical evidence. The judge was entitled to require Dr Mace either to attend with medical notes or a report arising from his work with the applicant, or alternatively to file a report, where the material was relevant to her current presentation and ability to conduct herself in relation to the child and contact. If Dr Mace considered that he had been in a psychotherapeutic relationship and relied on patient confidentiality, it was for him to raise that objection. The confidentiality issue could then be addressed by reference to consent or any more specific order required.

• Court of Appeal (Civil Division): On 8 July 2008, Lord Justice Thorpe refused permission to appeal and ordered that the application be refused: [2008] EWCA Civ 927.
• Coventry County Court: On 28 April, Mr Justice McFarlane made directions orders concerning interim contact arrangements and medical evidence in preparation for the full hearing.