H (Children)

At the permission stage, the applicant must show a proper basis for arguing that an order was wrong in law or should not have been made. An unchallenged order must be complied with, and a later order giving effect to it is not ordinarily open to collateral challenge. Court-ordered disclosure of medical records, when necessary for a psychological report, does not breach Article 8. A psychologist preparing a report for the court may require the raw records rather than a prior summary. Objections to the report’s use can be raised when the report is produced. Familiarity with a family case does not establish predisposition. The absence of current authorisation under the Supreme Court Act does not invalidate an order where the judge did not knowingly act outside jurisdiction.

The mother sought permission to appeal against an interlocutory order made in a long-running private law contact dispute. An earlier order had authorised the children’s Guardian ad Litem to obtain a psychological report and required disclosure of medical records concerning the mother, father and children. The records had not been supplied, so the Leicester County Court directed the mother’s general practitioner to provide them.

The proposed grounds concerned lack of written application and notice, consent and Article 8, alleged fishing for evidence, necessity, judicial predisposition, and the judge’s jurisdiction after the case had been transferred between the county court and the High Court. The central issue was whether any ground disclosed an arguable basis for challenging the later order.

The Court of Appeal, in a judgment given by Hughes LJ with Richards LJ agreeing, refused permission to appeal and ordered that the application be refused.

1. Permission test. At this stage the question was whether there was a proper basis for argument that the order was wrong in law or for another reason should never have been made. Permission would be appropriate if an arguable case existed. None of the mother’s grounds met that threshold.
2. Effect of the earlier order. The order directing the general practitioner to disclose the records merely gave effect to the unchallenged order made in October 2008. Complaints about the original order were too late. The application for the later hearing had also been made by the Guardian’s solicitor by letter, so the objections based on lack of written application and ambush were not arguable.
3. Disclosure and Article 8. A doctor could disclose medical records either with the patient’s consent or pursuant to a court order. Where disclosure was necessary for court purposes, the order did not breach Article 8. The proposed psychological assessment provided a proper basis for disclosure. The psychologist required the raw medical material, rather than another report’s summary, and any objection to the later use of the material could be raised when the report was produced.
4. Bias and jurisdiction. Continuity of judicial handling is generally desirable in family proceedings. Familiarity with the case, or an earlier finding against a party, did not establish predisposition. The alleged jurisdictional defect was in any event resolved when the matter was retransferred to the county court by HHJ Hampton. Further, applying the de facto officer principle explained in Coppard v Customs and Excise Commissioners [2003] QB 1428 and Baldock v Webster [2006] QB 315, the absence of the judge’s current section 9 authorisation under the Supreme Court Act would not invalidate the order unless he knew that he was acting outside his jurisdiction. He had identified the possible difficulty himself and arranged for jurisdiction to be conferred before proceeding.

• Court of Appeal (Civil Division): Permission to appeal against the interlocutory order was refused. [2009] EWCA Civ 954.
• Leicester County Court: On 31 March 2009, Deputy Judge Brunning ordered the mother’s general practitioner to provide medical records pursuant to an earlier October 2008 order concerning a proposed psychological report.