Appeal judges rule that a fact witness cannot escape adverse findings by seeking anonymity later
The Court of Appeal has dismissed an attempt by a psychotherapist to prevent her name from appearing in a published family court judgment. The ruling confirms that a witness of fact will rarely have grounds to challenge adverse findings made against them once those findings have been properly put in issue during proceedings.
Aimee Dover appeared as a witness of fact during a fact-finding hearing in private law children proceedings. Within the judgment that followed, the trial judge made a series of adverse findings about her, including several serious criticisms of her professional conduct. A later ruling addressing disclosure and publication concluded that the judgment should be sent to Dover’s regulatory body and her employers, and that any published version should identify her.
Dover appealed against the decision to name her, filing an appellant’s notice that challenged only this aspect of the publication ruling. The father and the child’s guardian opposed her application, while the mother, on whose behalf Dover had appeared, adopted a neutral position.
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In E (a child), Re, Lady Justice King and Lord Justice Warby rejected the appeal in clear terms. They held that Dover had been represented during the family proceedings and had multiple opportunities to contest the judge’s conclusions. The Court of Appeal emphasised that she had chosen not to do so at the time.
The judgment recorded that Dover had been able to instruct her legal team and to raise any concerns about the judge’s reasoning or the fairness of the process. The court noted: “No such steps were taken. Rather the contrary.” The panel explained that she had effectively accepted the findings by failing to challenge them when it mattered.
The judges added that it would be unfair to allow Dover to advance fresh arguments for the first time on appeal, particularly when those arguments could and should have been raised before the trial judge. They held that there was no legitimate complaint of unfairness in the way she had been treated.
The court took the opportunity to reaffirm an important principle. It stated that a witness of fact does not ordinarily have a right of appeal regarding adverse comments or findings within a judgment, provided those criticisms were put to them during cross-examination and they had an opportunity to respond. The fact that a witness may face professional or reputational consequences does not confer a right to anonymity or intervention in proceedings.
The judgment also observed that a witness who may be subject to adverse findings is not entitled, solely for that reason, to separate legal representation or a formal role within the case. The court said that transparency considerations and the interests of justice justified naming Dover in the published judgment, particularly where regulatory bodies may need to assess the criticisms made.
The appeal was therefore dismissed, and the publication decision stands.