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

The Court of Appeal considered whether an anonymity order made to protect the identities of children in judicial review proceedings should be understood to extend to the parents whose distinctive family name would lead to jigsaw identification of those children. The court applied the established balancing exercise between the principle of open justice (and Article 10) and privacy rights under Article 8, as guided by authorities such as JIH, Re S (A Child) and R (C) v Secretary of State for Justice, and by CPR rule 39.2(4) and section 12 of the Human Rights Act 1998. The court held that Linden J's anonymity order protecting the children was a proper derogation from open justice and that naming the parents would inevitably lead to identification of the children. The Deputy High Court Judge had erred by treating the parents' request as an application to extend an order that already covered them and by placing excessive weight on the limited prior public disclosure of the family name; the correct course was to clarify and amend the anonymity order so that the parents are also anonymised as CHF and CHM.

Background and parties: The claimants are parents (referred to as CHF and CHM) who brought judicial review proceedings in June 2020 challenging the way their primary-school-age child's alleged misconduct had been handled by the school and the local authority. Sensitive allegations concerning one of the children and other pupils made the case one involving the privacy interests of a sibling group and other children.

Procedural history and relief sought: The parents sought anonymity for themselves and their children in their claim form, relying on CPR rules 39.2(4), 5.4C and 5.4D, section 11 of the Contempt of Court Act 1981, and section 39 of the Children and Young Persons Act 1933. Linden J granted permission on a limited basis on 27 July 2020 and made an anonymity order protecting the children; that order required anonymisation of court documents in a way which identified children only by letters of the alphabet but did not expressly anonymise the parents. A Deputy High Court Judge hearing a renewal application on 9 October 2020 declined to extend the anonymity order to the parents, concluding that doing so would be futile because some information (including the family name on public court listings) was already in the public domain. The parents appealed that aspect of the decision; Warby LJ granted permission to appeal on the anonymity point.

Issues: (i) Was the anonymity order properly understood to protect only the children, or did it require clarification to prevent naming the parents where the parents' names would lead to identification of the children? (ii) Did the Deputy Judge err in his approach to the balancing exercise between open justice/Article 10 and privacy/Article 8, particularly by placing decisive weight on limited material already in the public domain?

Court’s reasoning and decision: The court reiterated the established legal framework: the default principle of open justice, the need for strict scrutiny of orders derogating from it (JIH), the non-hierarchical balancing of Article 8 and 10 rights (Re S), and the statutory and procedural provisions relevant to anonymity (section 39 Children and Young Persons Act 1933; CPR 39.2(4); section 12 Human Rights Act 1998). It concluded that Linden J's anonymity order was reasonable and that, on its proper construction, naming the parents would lead inevitably to identification of the children given the school's locality and the distinctive family surname. The Deputy Judge had two errors: treating the parents' request as merely an application to extend the order (when clarification was required), and giving excessive weight to the minimal prior public disclosure when conducting the Article 8/10 balancing exercise. The court allowed the appeal and amended the anonymity order to make explicit that the parents are to be referred to as CHF and CHM and that documents released to non-parties must be anonymised accordingly.

Wider context: The court emphasised that the decision reflects fact-sensitive balancing and does not establish a general rule that adult litigants will be anonymised in public law cases involving children; the majority of cases will not require express anonymisation of parents.

The Court of Appeal allowed the appeal. It concluded that Linden J's anonymity order protecting the children was properly made and that, on its correct construction, naming the parents would lead to identification of those children. The Deputy Judge erred by treating the parents' request as an extension application rather than by clarifying the order and by giving undue weight to minimal public disclosure; the anonymity order was therefore amended to anonymise the parents as CHF and CHM and to require anonymisation of court documents provided to non-parties.

The proceedings began in the Administrative Court. Linden J granted permission and made an anonymity order on 27 July 2020. A renewal hearing was determined by Mr Tim Smith (sitting as a Deputy High Court Judge) on 9 October 2020 (CO/2181/2020), who refused to extend the anonymity order to the parents. Warby LJ refused permission for the substantive renewal but granted permission to appeal on the anonymity issue; this Court of Appeal judgment is reported [2021] EWCA Civ 613.