H (Children)

Mrs M seeks permission to appeal against an interlocutory order made by Deputy Judge Brunning in a long standing contact dispute between her and her husband. The two girls who are the subject of the dispute are now seven and a half and four and a half or thereabouts. Clearly the issue has been the subject of a great deal of contest over a period of some years. There have been at least two fact finding hearings thus far. It has been necessary for an order to be made making the children parties to this private law case and appointing a Guardian ad Litem who has been provided through the offices of CAFCASS.

It would appear that at present both of the principal parties are acting in person. On 7 October 2008, on the application of the guardian, an order was made giving leave for her to obtain a psychological report on mother, father and the children. A necessary consequential order which went with that was an order for the disclosure of the various medical records held by general practitioners in relation to those people, all of them. The papers that we have seen do not, I think, disclose whether the making of those orders was in October a matter of dispute or not, but what is perfectly clear is that the order has never been challenged. It follows that it stood and it had to be complied with.

That was October 2008. On 27 February 2009 the case came before the court for further directions, and it appeared that the order had not yet been complied with in relation at least to mother’s records. I say that appeared because mother appears to have accepted it. She certainly told the judge that she had been doing her best to comply with it. She apologised for the fact that the material had not yet reached the appointed psychologist but she assured the judge that it was en route and had been sent just the previous Monday. In other words, in February mother was, far from challenging the order for the disclosure of the records, asserting that she was doing her best to comply with it.

On 31 March 2009 the case was listed again for further directions at the request of the guardian’s solicitor. The guardian’s assertion was that the medical records had still not been provided, and in due course Deputy Judge Brunning made an order directed at the general practitioner himself to supply the necessary records. Mother now seeks permission to appeal against that latter order only. The test for us at this stage is whether there is a proper basis for argument and a proper basis for suggesting that that order was wrong in law, or for any other reason should never have been made. If there is an arguable case, mother should be given permission to argue it out in full on some future occasion.

She has provided us with a substantial range of grounds of appeal. As will appear, I cannot avoid the conclusion that none of them is properly arguable.

First, she complains in grounds one, two and six that there was no written application for the order and that she was ambushed at court. That is not arguable because the order which was made did no more than to give effect to the original order in October, which as I have already said had never been challenged and had to be complied with. In fact the application for the hearing had been made by letter by the guardian’s solicitor, written to the court.

There is another point arising on that in relation to jurisdiction to which I will return in a moment.

Next in grounds five seven and 13, mother complains that there was no power to make the order without her consent and that to make it constituted a breach of her Article 8 rights. That, I am afraid, is wrong in law. It is certainly true that the doctor could not disclose her medical records unless either she gave her consent or he was ordered to do so by the court. If it was necessary for court purposes, that would prevent it being a breach of Article 8. But in any event in this case it has always been mother’s assertion that she did in fact give her consent to the general practitioner.

Next, in grounds eight and nine mother complains that the application of the children’s guardian for these medical records is really nothing more than a fishing expedition. In particular she draws attention to her assertion that the guardian has, in complaining that there are still gaps in the records, effectively been trying to put pressure on the psychologist. The answer to that is that there was a proper basis for the making of this order. If there is to be a psychological report on people, the psychologist needs to see their medical records. No doubt it is for that reason that there was no substantial challenge to the order which had been made back in October. It is unnecessary to lengthen this judgment by setting out what were the clear indications that a psychological report might be helpful, but they were plainly there.

Next, in grounds ten and 11 mother complains that the making of this order was unnecessary given that the dispute was by then restricted to contact and did not extend to residence as it once in the past previously had. For the reasons that I have already given, it is quite apparent that there was a proper basis for the making of the order, and in any event it was an order which at the time had not significantly been challenged. Mother adds to that today that the order was unnecessary because she asserts that the psychologist had already had all that she needed. Sadly, that is not quite so. Mother’s assertion would appear to be that she had all she needed because she had an earlier report which summarised the material. But any medical consultant who is being asked to provide a serious report for the court needs not somebody else’s assessment but the raw material, and indeed in the mother’s own interests, for her own protection, the psychologist ought to see the raw material of the general practitioner records and not some secondary material.

The upshot of the grounds thus far amounts substantially to a complaint either about the original order in October, and that is too late, or to a complaint about the use which the psychologist appears to be likely to make of the material which is disclosed to her. The potential use of the material is not a proper subject for debate at this stage. If in due course the psychologist’s report is unsatisfactory for any reason, then it can be challenged as and when it has been produced. The present question only goes to whether the psychologist should be provided with enough information to report in the first place. For all the reasons that I have given, it is perfectly plain that she should and that there is no prospect whatever of any successful challenge on the merits to the order which was made on 31 March, which as I have endeavoured to say did no more than to give effect to the substantive order that had been made as long ago as October 2008.

There is, however, a further ground which needs separate attention. The mother asserts that the judge was predisposed against her by his earlier familiarity with the case. Secondly, she asserts that he acted without jurisdiction because the case had on an earlier occasion been transferred from the county court to the High Court and Deputy Judge Brunning, whilst he had been qualified to sit in the High Court up until his retirement, no longer was now that he was sitting as a deputy.

As to the first of those, it is plain that the judge was familiar with the case, and indeed the transcript records an observation to that effect. Continuity of judicial handling of (particularly) family cases is on the whole a desirable objective rather than the reverse. In the present unhappy circumstance of a very long-standing dispute, it rather looks as if it will be difficult to find a family judge in Leicester who had not got some familiarity with this case. But in any event, it is perfectly plain that there is no possible ground for asserting not simply that the judge was familiar with the case but that he had formed a predisposed view contrary to mother. He certainly made a finding against her in the past, but that is one of the things that judges sometimes have to cope with. The order which he made in the present case did mother no injury whatever. It merely gave effect to the earlier order in October.

As to jurisdiction, the position was this. The case had originally apparently been intended to be listed before HHJ Hampton, who sits not only as a county court judge but also as a deputy High Court judge. She apparently was unavailable, and it was in those circumstances that the case was listed before Deputy Judge Brunning. It was the judge who correctly pointed out right at the outset that his authorisation to sit as what is called a Section 9 judge, that is to say, as a deputy High Court judge, had unavoidably lapsed at the time of his retirement. Accordingly the judge himself of his own motion directed that the case would have to go elsewhere. It is apparent from the order that HHJ Hampton, who had the power to do so, thereupon directed a retransfer of this application to the county court. That was no doubt done in order to enable it to be dealt with, which was to the advantage of all the parties including mother. It was perfectly proper for her to deal with it on paper without conducting any hearing, and there is no reason to doubt mother’s assertion that there was no hearing.

Mother asserts today first that Deputy Judge Brunning had clearly determined in advance to hear the matter and secondly that HHJ Hampton did not direct transfer and that possibility was only raised with her after the event.

The first of those submissions is based upon the fact that Deputy Judge Brunning had indicated that he had read the papers the night before. That is no indication that he had determined that he would hear it come what may, and the fact that he raised himself the potential obstacle to jurisdiction is the plainest possible indication that he had not.

As to the suggestion that HHJ Hampton had not directed a retransfer of this application, there is simply no basis for it whatever except suspicion. However, even if this had been a case in which no transfer had been made, the order made by Deputy Judge Brunning would in any event not be invalidated by the absence of his authorisation, pursuant to section 9 of the Supreme Court Act. That is because of the principle of the de facto officer as explained by this court in Coppard v Customs and Excise Commissioners [2003] QB 1428 and Baldock v Webster [2006] QB 315. The absence of a correct authority of this particular kind would not invalidate an order of the judge unless he knew that he was acting outside his jurisdiction. It is perfectly plain from the transcript that this is not what happened here, because Deputy Judge Brunning appreciated of his own motion the possible absence of jurisdiction and arranged for the jurisdiction to be conferred before he went any further with the case.

In those circumstances, whilst I am grateful to mother for explaining her position with some clarity and with some detail in her written submissions, I am quite satisfied that none of the grounds which she properly flags up for us could begin to succeed and application for permission must in those circumstances be refused.

I agree.