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CHF & ORS, R (On the Application Of) v Newick Church of England Primary School & Anor [2021] EWCA Civ 613

This was an appeal in respect of an order protecting the identification of the Appellants’ children in any reporting of judicial review proceedings. The Respondents were their children’s primary school and the Council responsible for it.

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In the summer of 2019 serious and sensitive allegations were made about the behaviour of one of the Appellants' children towards other children in the school. A dispute arose about the way in which the allegations were handled. The Appellants applied for judicial review. In their claim form they sought anonymity for the children and themselves. The Appellants and the children share a distinctive surname.

Linden J granted permission to the Appellants to seek judicial review on one ground and made the following order in respect of anonymity:

10. Pursuant to CPR rule 39.2(4) I therefore direct there shall not be disclosed in any report of the proceedings the name or address of the Claimants' children or any other children referred to in the evidence or any details leading to their identification. Such children, if referred to, shall only be referred to by letter of the alphabet.

11. Pursuant to CPR rule 5.4C a person who is not a party to the proceedings may obtain a copy of a statement of case, judgment or order from the court records only if the statement of case, judgment or order has been anonymised such that: (a) the Claimant's children and any other children are referred to in those documents only by letter of the alphabet; and (b) any references to the names of such children have been deleted from those documents.

12. Any person affected by this Order may apply on notice to all parties to have this Order set aside or varied." (emphasis added by the Court of Appeal)

The Appellants then renewed their substantive application in respect of the unsuccessful grounds. This application came before Mr Tim Smith (sitting as a Deputy High Court Judge). Mr Sam Tobin of PA Media (Interested Party) and a law reporter were in attendance. The Judge referred to the Anonymity Order at the start of the hearing and referred to it as extending to the Appellants' children and any children referred to in the evidence only. In response, the Appellants asked for their names to be anonymised too. Mr Tobin had raised that the Appellants' surname had been published on the publicly available list.

After hearing short submissions, the Judge decided that it was futile to extend the Anonymity Order as the information was already in the public domain, but that the order could continue in respect of the children. He then went on to refuse the substantive renewal application.

The Appellants sought to appeal the whole of the Judge's decision. Warby J granted permission in relation to the Judge's decision about the Anonymity Order only.

The Appellants' case was 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 into doubt. His order, which purported to refuse their application to extend the order, was in error.

PA Media opposed the appeal and argued in written submissions that the Anonymity Order should not be "extended' and that the children had the effective anonymity sought by the parents – if naming the parents would lead to the identification of the children, that is already covered by the Anonymity Order. If, however, it would not lead to the identification of the children, then it is not necessary to extend the order.

The court considered the law on anonymisation [paras 14-22] and concluded:


- As to the effect of the order, 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 localises the case to a county, a village and a school and on top of that, the family surname is a distinctive one.

- Properly understood, the Anonymity Order already provided the Appellants with the protection they sought. However, this was thrown into doubt at the start of the hearing as the Judge asserted more than once that anonymity did not extend beyond the children.

- There was no application, in any real sense, to extend the Anonymity Order. It did not need extending, it needed clarifying.

The court held that the Judge fell into error in two ways: 1) his misconception that the Appellants were seeking to extend an order which, properly understood, already provided the protection to which their children were entitled and 2) his approach to the balancing exercise that he then very briefly conducted. The Judge had given decisive weight to the fact that some information was already in the public domain, leading him to say that it would be futile to extend the order. The fact that information is in the public domain may certainly be a factor that speaks against making a restrictive order, but it is not an absolute barrier. The result of the decision was to leave in place an order whose effect had been placed in doubt. That decision could not stand, and so the court went on to make its own determination.

The court applied the guidance contained in JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 and Re S (A Child) [2004] UKHL 47; [2005] 1 AC 593 and balanced two significant factors: the privacy rights of the Appellants' children and the importance of the public interest in the identification of litigants. The court held:

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. [para 31].

"1. Paragraphs 10 and 11 of the order of Linden J dated 27 July 2020 are amended to read as follows:


'10. There shall not be disclosed in any report of the proceedings the name or address of the Claimants' children or any other children referred to in the evidence, or any details (including the name or address of either of the Claimants) that might lead to the identification of the children. The Claimants may be referred to as CHF and CHM. The children, if referred to, shall only be referred to by letters of the alphabet.'

11. Pursuant to CPR rule 5.4C a person who is not a party to the proceedings may obtain a copy of a statement of case, judgment or order from the court records only if the statement of case, judgment or order has been anonymised such that: (a) the Claimants, the Claimant's children and any other children are referred to in those documents only by letters of the alphabet as above; and (b) any references to the names of the Claimants and such children have been deleted from those documents." [para 33].

The court added that the decision does not imply that adult litigants can always expect to be anonymised in public law cases involving children. These are fact-sensitive assessments, and in the majority of cases an order similar to that made by Linden J may be quite sufficient.

Case summary by Sophie Smith-Holland, Barrister, St Johns Chambers

For full case, please see BAILII