Janet Bazley KC and Melissa Elsworth, instructed by Lisa Ursell of Wannops solicitors, acted for the children’s guardian in a case involving whether a private therapist against whom the judge had made adverse findings should be named in the judgment.

The therapist had been called as a professional witness in private law children proceedings. Her professional conduct had been heavily criticised by the judge (Ms Justice Henke), who decided that she would be named in the published judgment.

The therapist sought permission to appeal against the decision to name her and, out of time, permission to challenge the judge’s findings against her. She relied upon Re W (A Child) [2016] EWCA Civ 1140, [2017] 1 WLR 2415 to assert that the judge’s decision had been wrong and unfair (contrary to Article 6) as she had not been given an opportunity to be heard before adverse findings were made. She also argued, amongst other things, that there had been a breach of her Article 8 rights in that the judge had erred in reaching, by an ‘unfair process’ the decision that the public interest in naming her outweighed her right to private and family life.

The court refused the application for permission to appeal and the application for permission to appeal out of time and stated that the application raised important points, namely the need to emphasise the exceptional nature of Re W, and to state that 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.” The court made clear that a witness at risk of adverse findings does not have any right to intervene or have legal representation.

The court directed (unusually for permission applications) that the judgment could be cited.