Findings of fact against witnesses- Re E (A Child) [2025] EWCA Civ 1563

In Re E [2025], an application was made for permission to challenge Ms Justice Henke in private law proceedings. The child subject to the proceedings was now aged 10.

The applicant was a psychotherapist and a witness for the mother and had given evidence at the fact-finding hearing. The judgment contained adverse findings of fact against the applicant including “that in February 2022 she began working with D, a sibling of E, in a therapeutic capacity. It finds that she continued working with D on a regular and frequent basis until December 2023 when D killed herself. The judgment contains a detailed account of Ms Dover’s role and sets out several significant criticisms of her professional conduct” (paragraph 6).

The judgment was handed down in draft prior to formal handing down on 2nd May 2025. The applicant was sent the relevant sections of the judgment and invited to attend the hearing. She stated she was unable to do so, had instructed solicitors and needed more time. The Judgment was handed down and a hearing fixed on 10th June 2025 to consider whether the applicant’s regulatory body and employer should be sent a copy.

At the hearing on 10th June 2025, the applicant’s representatives did not oppose disclosure of the judgment to her employer and professional body (considering this an issue for the court’s discretion) but argued she should not be named in the published judgment because she was a private therapist, naming her risked identifying her children or other family members and the court should consider her Article 8 rights.

In a reserved judgment by Ms Justice Henke, all three arguments were refused.

The applicant sought permission to appeal the judge’s decision to publish the judgment without anonymising the applicant, along with permission to appeal some of the findings and to amend the appellant’s notice. The grounds were-

1. Fairness: The Judge erred in law by “making serious and professionally damaging findings against [Ms Dover] without providing prior notice that such findings were sought; granting [her] the opportunity to intervene and defend herself and failed to ensure equality of arms”. Reliance was placed on Article 6 and Re W (a child) [2016] EWCA Civ 1140.

2. Merits: That the Judge failed to distinguish the applicant’s role as a witness of fact from that of a party expert, making findings that “feel outside the proper parameters of the issue in dispute in the family case”.

3. Article 8: The Judge “erred in principle in determining that the public interest in naming the appellant outweighed her Article 8 rights to respect for private and family life”.

4. Chilling Ground: That “including the applicant’s name in the published judgment is contrary to the public interest because it risks a chilling effect on the willingness of therapists and other mental health professionals to engage with family court proceedings. We will label this the Chilling Ground” (paragraph 12).

The applications were considered by Lady Justice King and Lord Justice Warby. The father and the Guardian opposed the applications, the mother was neutral.

The applications were refused.

The court considered that reliance by the applicant in relation to Article 6 was misplaced. “Article 6 guarantees a fair trial where the court is determining a party’s civil rights and obligations. The Judgment in this case did not determine any rights or obligations of Ms Dover” (paragraph 14).

The applicant did not challenge the findings made or suggested that there had been any unfairness at or prior to the hearing on 10th June 2025. “A person who claims to be the subject of unfair findings may object to the publication of those findings; if a timely objection is raised, then the court must consider and reach conclusions upon it; and if the court finds that the complaint of unfairness is well-founded it may go on to conclude that the findings should be quashed, or revisited, or that they should not be published, or some combination of these. That is what happened in Re W. These issues could have been raised for consideration by the judge in this case. But Ms Dover never raised them. She never challenged the findings in the Judgment, nor did she suggest that there had been any unfairness” (paragraphs 15 and 16).

This was important because the Court of Appeal’s function is to review matters. “By the Chilling Ground Ms Dover seeks anonymity by reference to the (alleged) likely impact on third parties and the public interest if she is named. This is another new point. In our judgment it could and should have been raised below, if it was to be raised at all. It is an argument that turns on factual propositions about how other people would behave. It would be unfair to the respondents to let Ms Dover raise it for the first time on appeal. In any event, we do not consider the ground to have arguable merit” (paragraph 25).

In addition, when considering the Merits Challenge, the Court of Appeal considered “that there is no legitimate complaint of unfairness” (paragraph 26).

Importantly the court emphasised “A witness of fact will generally have no legitimate ground of appeal in respect of adverse findings contained in a judgment, provided the criticisms have been fairly put to the witness in cross-examination for comment or response before the findings are made. A witness who is at risk of adverse findings does not, for that reason, have any right to intervene or to have legal representation” (paragraph 29).