There is, in my experience, often much consternation about what is required when a judge makes adverse criticism or findings in respect of a professional or expert witness, and then proposes to publish that judgment, particularly if the proposal is that the professional in question should be named. Read carefully Re W [2016] provides the answer, but it often isn’t read carefully and I think it’s effect is frequently overstated (its often interpreted as requiring everyone to be notified and potentially intervened wherever there is a possibility of an adverse finding, which is never what Re W said).

The Judicial Press Office has just circulated this judgment of the Court of Appeal: E (A Child) [2025] EWCA Civ 1563 which, although only a permission judgment, they have specifically said is citable, in order to provide some clarification on this vexed topic. That clarification is welcome.

The headline is:

We consider it important to emphasise the exceptional nature of Re W and to underline the following. 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.

Other points to note are:

• the distinction between challenge to the substantive findings and the proposed publication (a failure to be clear about this appears to have contributed heavily to the refusal to grant permission – the witness did not challenge the findings at the point they were made, instead she implicitly accepted them, before seeking later to challenge them on appeal,
• the limited relevance of article 6 in respect of a non party whose civil rights and obligations are not being determined – the key issue is that if an article 8 point is live any findings made need to have been reached by a fair process : “The cases show that the adverse portrayal of an individual’s conduct in an authoritative judicial ruling may cause serious harm to that individual’s reputation amounting to an interference with the right to respect for private life which is guaranteed by Article 8 of the Convention; and if those findings have been arrived at by an unfair process the interference may not be justified.”,
• the reiteration of the guidance in Re W that putting points to a witness in cross examination IS sufficient notice of the possibility of adverse findings (Re W was unusual in that there was no such cross examination or questions by the judge and nobody anticipated findings being made, even the parties / their legal representatives),
• the reminder of the difficulties associated with an attempt to raise new points on appeal that were not taken below,
• the reminder that the Denton relief from sanctions approach will be applied to applications for permission to appeal out of time, so good justification is required.

The judgment isn’t yet on the judiciary or National Archives site, and nor is the decision below of Henke J, but I’m told it will be up soon [update – link to permission judgment now added above – can’t see the decision below yet].

I probably could publish the judgment here, but am a bit anxious about doing that just in case there is some correction…

The professional concerned is a psychotherapist and there is reference to her ‘regulatory body’ being provided with the findings (this was not apparently disputed). I’m not aware that psychotherapists have a regulatory body, so either this is a slightly inaccurate description of a membership body for psychotherapists OR this professional is also a member of a regulated profession, for example a clinical or counselling psychologist, in which case she would be regulated by the HCPC. [update: she is not a regulated psychologist, but is a member of the BACP (British Association for Counselling and Psychotherapy), who do have a complaints scheme applicable to those psychotherapists who choose to be members https://www.bacp.co.uk/about-us/protecting-the-public/].