T (A Child)

This is an application for permission to appeal orders made by McFarlane J on 28 April in a dispute as to future arrangements as between the applicant and her child, as between her parents and the child, and as to the production of medical evidence from a Dr Mace. It is to be emphasised that the judge was sitting to give directions to prepare all these issues for full hearing on 29 July, with a two-day time estimate warned over to a third day.

It is virtually inconceivable that permission to appeal would be granted where all that is under review is the discretionary decisions taken by an experienced judge of the division at a short directions appointment. I understand the difficulties lay people have in comprehending how this court operates, and how wide is the latitude given to the trial judges when they are case managing. But as to the first complaint, that the judge should have set up direct contact to grandparents between 28 April and 29 July on the basis that direct contact had been ordered by Holman J in January, the whole thrust of the argument rests on sand because all that Holman J ordered was two specific points of observed contact to lead the way forward at a further hearing which was to take place on 21 February. All that was frustrated. So there was nothing in place when McFarlane J sat on 28 April, and he was fully entitled to say, as he did, that in his judgment it would be premature to order interim contact between the child and the paternal family pending a full hearing. That is a classic exercise of discretion.

Equally in relation to indirect contact between the applicant and her child, that too was dealt with by the judge in a way that is simply not open to criticism. The judge says that it is part of the bigger picture; there has not been indirect contact for some time now, and the whole question for the main hearing in July is how to move forward in the medium to long-term in relation to any contact between the child and his paternal family. Again, that is simply not open to any sustainable criticism.

Finally, in relation to Dr Mace, the judge made an order granting the application of the guardian and the first respondent that Dr Mace either attend with medical notes or a report arising out of the work conducted by him with the appellant in 2006; alternatively that he file such a report. Now the criticism here is that the judge misunderstood the nature of the work that Dr Mace had done. He said that the work “goes to her current presentation and ability to conduct herself in relation to the child and contact”. The applicant says no, this was psychotherapy and accordingly is essentially cloaked by patient confidentiality.

Well, that may be right, but if so then it is for Dr Mace to say that he was in a psychotherapeutic relationship with the applicant, and that he is not prepared to produce his notes, or indeed to give a report without the patient’s consent or a more specific order of the court. That is something which may or may not develop, but clearly the judge would rule that the guardian in particular was entitled to the information in preparation for the main trial.

So I am completely satisfied that there is no basis upon which permission to appeal should be granted in this particular case. It is simply nowhere near appropriate for consideration by a fuller court.

For all those reasons I dismiss the application and urge the applicant to put all her energy into preparing for the main hearing on 29 July, which is now only some 14 days ahead.