CHF & Ors, R (On the Application Of) v Newick Church of England Primary School & Anor

This appeal arises from a decision of Mr Tim Smith, sitting as a Deputy Judge in the

The Appellants are a couple with a number of children who share their distinctive surname. The parents are referred to in this judgment where convenient as CHF and CHM, denoting ‗the children‘s father‘ and ‗the children‘s mother‘. In the summer of 2019 serious and sensitive allegations were made about the behaviour of one of the children towards other children also attending the First Respondent primary school, which is the responsibility of the Second Respondent Council. A dispute arose about the way in which the allegations were handled. In June 2020, the Appellants applied for judicial review. In their claim form they sought anonymity for the children and for themselves:

On 27 July 2020, Linden J granted permission to the Appellants to seek judicial review on one ground (the detail is not material) but refused it on others. When giving his decision he made an order in these terms:

I will refer to this order as ‗the Anonymity Order‘. Notwithstanding the order, the Appellant‘s names continued to appear on the title of the action and on the heading to the order itself.

The Appellants renewed their substantive application in respect of the unsuccessful grounds before the Judge on 9 October 2020. The hearing took place remotely. Apart from the parties, the Judge and the court staff, it was attended by Mr Sam Tobin of PA Media and by a law reporter. At the outset of the hearing, the Judge sensibly referred to the Anonymity Order:

The Judge then turned to the substance of the application. In his judgment at the end of the hearing (in which he refused the substantive renewal application), he referred to the issue in these terms:

The resulting order reads:

The Appellants are named in the title of the Judge‘s order; the transcript of the judgment names the Appellants in the title but not in the text, though it has a statement in the title that ‗Anonymisation Applies‘; the transcript of the hearing does not anonymise the Appellants; the Respondents are named in all the documents. It will be recalled that the Anonymisation Order requires court documents to be edited before being accessed by a non-party by removal of the children‘s names, but it does not stipulate this in relation to the names of the Appellants.

The Appellants applied for permission to appeal in respect of the whole of the Judge‘s decision. In relation to the question of anonymity, they argued that the Judge did not provide the children with effective anonymity through being identified via their family name, in breach of Article 8 ECHR.

Warby LJ refused permission in respect of the substantive renewal application, but he granted permission in relation to the Judge‘s decision about the Anonymity Order. He directed that until after judgments had been given on the appeal or further order, the Appellants were to be referred to as CHF and CHM and that no report of the proceedings is to contain their names or other details likely to lead to their identification. He gave permission to PA Media to make written representations on the appeal.

Written and oral submissions were made to us by the Appellants with the assistance of a McKenzie Friend. Written submissions were filed by Mr Tobin on behalf of the PA Media. The Respondents (whose names are not anonymised) play no part in the appeal.

The Appellants‘ case is that they did not apply to extend the Anonymity Order. They believed that it already prevented them from being named as it would lead to the identification of the children. However, the discussion before the Judge threw that

PA Media opposes the appeal. Mr Tobin‘s skeleton argument argues that the Anonymity Order should not be ―extended‖. Reference is made to a number of leading decisions underlining the importance of the principle of open justice and the narrow limits on derogation. It is an important point of legal principle that orders of this kind should only be made when they are strictly necessary. Here, the children have the effective anonymity sought by the Appellants. If naming the parents would lead to the identification of the children, that is already covered by the Anonymity Order. If, however, identifying the Appellants would not lead the identification of the children, then it is not necessary to extend the order. PA Media is not aware of anything in the public domain about the case, beyond the court listing. There is no transcript of judgment which is publicly accessible. There is nothing from which any ‗jigsaw‘ identification of the children could be pieced together.

There are many leading cases emphasising the importance of the public interest in open justice and the need to limit departures from the norm to cases where it is necessary. The proper approach is well-established, and was recently reaffirmed by this court in a judgment given by my Lord, Dingemans LJ, in XXX v Camden London Borough Council [2020] EWCA 1468 at [14] – [21].

Section 12 of the Human Rights Act 1998 provides, so far as relevant to this case, that a court considering whether to grant any relief which might affect the exercise of the right to freedom of expression under Article 10 ECHR shall have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to journalistic material, the extent to which the material has, or is about to, become available to the public or to which it is, or would be, in the public interest for the material to be published; and to any relevant privacy code.

The right to respect for private and family life is also engaged in a case of this nature, which concerns sensitive information about young children. The non-hierarchical balancing of rights under Article 8 and 10 is to be performed in accordance with the guidance laid down in Re S (A Child) [2004] UKHL 47; [2005] 1 AC 593.

There are a number of ways in which the power to restrain publicity may arise: in this case, it is relevant to note the inherent power of the High Court and also the statutory power contained in section 39 of the Children and Young Persons Act 1939 (as amended), which provides:

In the context of court proceedings, which give rise to rights under Article 6, the general rule is that a hearing is to be in public unless the court decides that it must be held in private: CPR 39.2(1). The circumstances in which such a decision may be made (one being that a private hearing is necessary to protect the interests of any child) are set out in CPR 39.2(3). This appeal does not concern the question of whether proceedings are being heard in public or in private. The hearing before the Judge and the hearing in this court have both been in public, albeit by means of remote technology. It concerns identification of the parties.

Non-disclosure of the identity of a party or witness is governed by CPR 39.2(4):

This rule reflects the principles summarised by Lord Neuberger MR in JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 at [21]:

Transparency of party identity was considered by Lady Hale in R (C) v Secretary of State for Justice [2016] UKSC 2 at [36]:

In this case Linden J made the Anonymity Order in order to protect the Article 8 rights of the child, the sibling group, and the other children. The Appellants were suing on their own behalf and, in substance, on behalf of their children. Indeed they might well have sued in the name of their child, with themselves as litigation friend. As it was, the children are neither parties nor witnesses but, even if they do not come squarely within the terms of CPR 39.2(4) as Linden J supposed, the court‘s power, indeed obligation, to uphold their Article 8 rights is not so limited, and no issue arises about that in these proceedings.

The Anonymity Order made by Linden J on the papers was a reasonable one. The subject matter of the proceedings is sensitive and it directly concerns the interests of a number of young children. The protection of their identities is a proper derogation from the principle of open justice.

As to the effect of the Anonymity Order, in my view its prohibition on the disclosure of any details leading to the identification of the Appellants‘ children would inexorably be breached by the naming of the Appellants themselves. The identity of the Respondents already localises the case to a county, a village, and a school, and on top of that the family surname is a distinctive one. So I do not accept that jigsaw identification is irrelevant. Properly understood, the Anonymity Order already provided the Appellants with the protection they sought.

However, the exchange that took place at the outset of the hearing before the Judge threw this into doubt. The Appellants clearly considered that their own names were covered by the order (‘if you release my details you, therefore, release my children’s identities’) but the Judge did not engage with this. Instead he more than once asserted that the anonymity did not extend beyond the children. In these circumstances, the response of CHM (‘Would you please anonymise our names also, Judge?’) was not in any real sense an application to extend the Anonymity Order. It did not need extending, it needed clarifying.

Court orders should so far as possible be clear in their meaning and certain in their effect. Once such an order has been made, those concerned must take a view as to how it affects their own conduct: in this respect the court is a legislator not a censor. There will inevitably be situations at the margins where it will be open to argument whether a certain piece of information is or is not likely to identify a person: but we are not in that territory when it comes to naming these Appellants, and there is no reason for the court to leave that matter in any doubt.

Also, as seen above, there is no embargo on the court issuing documents bearing the Appellants‘ names to a non-party or, until the intervention of Warby LJ, to the case being publicly listed under the family name. That may not have been a matter of much significance if the judicial review proceedings had quietly proceeded on their way but, now that the matter of anonymity has become contentious, the need for clarity is increased.

PA Media takes the responsible position that it would not identify the children even if no order had been made: no doubt that flows from the relevant code of practice. However, the argument that the Anonymity Order should not be extended because (a) if naming the parents would identify the children there is no need, whilst (b) if naming the parents would not identify the children there is no justification, does not provide clarity. The Appellants, who are litigants in person, are in my view entitled to regard that logic as being of limited comfort.

I would not criticise the Judge unduly for his handling of a matter which arose at the outset of a remote hearing with a different focus and in circumstances where neither of the directly interested parties (the Appellants and PA Media) was legally represented. However, I do consider that he fell into error in two ways. The first is, as I have explained, his misconception that the Appellants were seeking to extend an order which, properly understood, already provided the protection to which their children were entitled. The second concerns his approach to the balancing exercise that he then very briefly went on to conduct.

In that balancing exercise, the Judge gave decisive weight to the fact that some information was already in the public domain, leading him to say that it would be

The result is to leave in place an order whose effect has been placed in doubt. That decision cannot stand and this court must make its own determination. Looking at the matter afresh, and applying the guidance contained in Re JIH and in Re S, it is clear that there are just two significant features to balance: the privacy rights of the Appellants‘ children and the importance of the public interest in the identification of litigants. In making the Anonymity Order, the court concluded that the children‘s right not to be identified must take priority over the publication of information that would have that effect. The naming of the parents would have just that effect. Apart for the important general principle of party transparency, there is no specific countervailing public interest. On the facts of this case, the balance falls in favour of making it explicit that the Appellants cannot be named as to do so would identify the children. I would therefore amend the Anonymity Order to the extent set out below.

I would add that PA Media, whose vigilance on behalf of good practice is appreciated, need have no apprehensions about this decision. It does not imply that adult litigants can always expect to be anonymised in public law cases involving children. Those are fact-sensitive assessments, and in the majority of cases an order similar to that made by Linden J may be quite sufficient. The decision in this case is justified by the need to clarify the misunderstandings that have arisen.

I would allow the appeal and discharge paragraph 1 of the Judge‘s order. In its place, I would substitute the following:

I agree.

I also agree.