Re E (A Child): Limited Rights of Non‑Party Witnesses to Appeal and Seek Anonymity in Family Court Judgments

1. Introduction

The decision in Re E (A Child) [2025] EWCA Civ 1563 is a significant Court of Appeal authority on:

the very limited circumstances in which a non‑party witness may challenge adverse findings made about them in family proceedings;
the relationship between Article 8 ECHR (respect for private life, including reputation) and the publication of such findings with the witness named;
the exceptional nature of the earlier decision in Re W (A Child) and the need to prevent it being read as creating a broad right of appeal for criticised witnesses; and
the court’s approach to new points taken for the first time on appeal, delay in appealing, and the evidential rigour required for “chilling effect” arguments.

The case arises from private law proceedings under the Children Act 1989 concerning a 10‑year‑old child, “E”. The appellant, Ms Aimee Dover, is a psychotherapist who:

was instructed privately to work therapeutically with “D”, a sibling of E;
was called as a witness for E’s mother at a fact‑finding hearing; and
became the subject of substantial adverse findings in the judge’s fact‑finding judgment, including detailed criticisms of her professional conduct in relation to D (who later took her own life).

Two sets of decisions were relevant:

The judge’s fact‑finding judgment (handed down 2 May 2025) containing serious criticisms of Ms Dover and naming her; and
The judge’s later publication and disclosure ruling (16 July 2025), deciding:
- the judgment should be disclosed to her regulator and employers; and
- the published version of the judgment should name her (no anonymisation).

In the Court of Appeal, Ms Dover:

applied for permission to appeal the decision to publish the judgment naming her (in time);
applied for an extension of time to appeal the underlying findings in the fact‑finding judgment (out of time); and
sought permission to amend her appellant’s notice accordingly.

She alleged that the findings were unfairly made, that she had been denied procedural protections, and that publication with her name would violate her Convention rights, particularly Article 8.

The Court of Appeal (constituted as a single court giving a collective judgment) refused permission to appeal and dismissed all ancillary applications. In doing so, it articulated an important general principle about witnesses’ rights of appeal, and clarified the limited scope of Re W (A Child).

2. Summary of the Judgment

2.1 Procedural posture

The Court of Appeal was dealing with:

an in‑time application for permission to appeal the 16 July 2025 decision to name Ms Dover in the published judgment; and
a late application to appeal the underlying findings in the fact‑finding judgment of 2 May 2025, coupled with:
- a request for an extension of time; and
- permission to amend the appellant’s notice.

The Court had earlier made a reporting restriction order (RRO) temporarily anonymising the applicant. Having dismissed the applications, it discharged the RRO and identified her by name: Aimee Dover.

2.2 Grounds of appeal

The four grounds advanced were:

Fairness Ground (Ground 1) – the judge allegedly:
- made serious, professionally damaging findings without prior notice that such findings were sought;
- failed to grant her an opportunity to intervene and defend herself; and
- failed to ensure “equality of arms”, in breach of Article 6 ECHR and Re W (A Child).
Merits Challenge (Ground 2) – the judge allegedly:
- failed to distinguish her role as a witness of fact from that of a party or expert;
- made findings outside the proper parameters of the issues in the family case; and
- applied a standard akin to a professional disciplinary inquiry without evidential basis.
Article 8 Ground (Ground 3) – the judge allegedly:
- erred in balancing the public interest in naming her against her Article 8 rights; and
- failed to factor in that the findings were (allegedly) reached by an unfair process, relying on SW v United Kingdom and Del Campo v Spain.
Chilling Ground (Ground 4) – naming her was said to be contrary to the public interest because it might deter therapists and mental health professionals from engaging with family court proceedings (a “chilling effect”).

2.3 Outcome

The Court of Appeal:

Refused permission to appeal on all grounds.
Refused to extend time to challenge the fact‑finding judgment.
Declined to allow new points (on fairness and chilling effect) to be raised for the first time on appeal.
Upheld the decision to name Ms Dover in the published judgment and disclose it to her regulator and employers (though the latter was not actually challenged on appeal).
Directed that its own judgment may be cited and formulated a clear general principle as to witnesses’ rights of appeal.

2.4 Core principle articulated

At paragraph 29, the Court distilled the key precedent:

“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.”

This statement, expressly declared to be citable, is the main doctrinal contribution of the case.

3. Detailed Analysis

3.1 Background facts and procedural history

The underlying Children Act 1989 proceedings were initiated by E’s father against E’s mother, with E represented through a children’s Guardian. A Local Authority was involved but not a central party to this appeal.

Key factual elements:

Role of Ms Dover:
- She is a psychotherapist operating in private practice.
- She began working with D (E’s sibling) in February 2022 in a therapeutic capacity.
- She continued to work with D regularly until December 2023, when D died by suicide.
- The fact‑finding judgment contained a detailed narrative of her role and substantial criticisms of her professional conduct (not reproduced in detail in the Court of Appeal judgment, but noted as significant and central to the fact‑finding).
Draft judgment and opportunity to respond:
- On 16 April 2025 the judge circulated her draft fact‑finding judgment to the parties.
- She flagged that she had been asked to name Ms Dover in any published version and would hear submissions on that at a case management hearing.
- She directed that Ms Dover be provided with the relevant sections of the judgment (including the critical paragraphs) and allowed her to attend and make submissions on anonymisation.
- On 24 April 2025, those parts were sent to Ms Dover. On 1 May 2025 she wrote to the court expressing a wish that her name be redacted if published, citing personal and professional reasons, and noting she had not had enough time to instruct solicitors.
Hand‑down and further participation:
- On 2 May 2025 the fact‑finding judgment was handed down in private. The publication issue was adjourned to 10 June 2025.
- On 15 May 2025, Ms Dover was sent the full judgment.
- She instructed solicitors and counsel, who filed detailed written submissions for the 10 June hearing. Other parties (parents, Guardian, LA) also made written submissions.
Issues at the 10 June 2025 hearing:
- By then, the live questions had narrowed to:
  1. whether to disclose the judgment to her regulator and current employers; and
  2. whether she should be anonymised in the published version.
- Her counsel explicitly did not oppose disclosure to regulator and employer, treating that as discretionary and not in issue.
- The argument for anonymisation was based on:
  - her status as a private therapist with lower “public accountability” profile than state‑employed professionals;
  - risk of identification of the children or family members; and
  - Article 8 impacts on her personal integrity and career, and the asserted disproportionality of naming her to achieve open justice.
Judgment of 16 July 2025:
- The judge decided:
  - the judgment should be disclosed to her regulator and employers; and
  - the published version should name her.
- No formal order had yet been drawn up, but the Court of Appeal noted that this did not affect the appealability of the decision, which took effect when pronounced.
Appeal:
- On 29 July 2025, she filed an appellant’s notice:
  - in time as regards the 16 July 2025 decision; but
  - late as regards the 2 May 2025 fact‑finding judgment.
- The notice sought to challenge both:
  - the decision to publish with her name; and
  - the underlying findings against her, accompanied by an extension of time request.
- Counsel for E’s father and Guardian opposed the applications; the mother was neutral; the Local Authority contributed to the procedural history.

3.2 Precedents and Authorities Cited

3.2.1 Re W (A Child) [2016] EWCA Civ 1140

Re W was central to the appellant’s case. There, the Court of Appeal (McFarlane P giving the leading judgment) had quashed highly adverse findings made about a foster carer (“X”) where:

“The individual and collective adverse findings of the type that the judge went on to make in his judgment did not feature at all in the presentation of the case of any of the parties and were not raised in any manner by the judge during the hearing … these highly adverse findings ‘came out of the blue’ for the first time in the judgment.” [Re E citing Re W at [8]]

The defect in Re W was that:

X had no notice that such findings were in contemplation;
the criticisms were never put to X during the hearing; and
they were only revealed when the final judgment was produced.

McFarlane P described the process as falling short of essential procedural fairness by a “very wide margin” and emphasised:

“the essential requirement of procedural fairness [is] giving a witness who is to be the subject of a level of criticism that is sufficient to trigger protection under Art 8 … proper notice of the case against them.” [Re E citing Re W at [88]]

At [98] of Re W, the President stressed the exceptional nature of the case and the “highly unusual” combination of features justifying intervention.

In Re E, the Court of Appeal:

accepted that Re W illustrates that serious adverse findings about a non‑party can engage Article 8 and may justify appellate intervention; but
held that Re W is exceptional and not a general template giving any criticised witness a right of appeal or intervention.

3.2.2 SW v United Kingdom (App. No. 87/18, ECtHR, 22 September 2021)

SW was an ECtHR decision concerning the domestic case of Re W. The Strasbourg Court recognised that:

adverse judicial findings may cause serious harm to an individual’s reputation; and
such reputational harm can fall within the scope of Article 8 (private life), particularly where it directly affects an individual’s personal integrity and professional life.

SW endorsed the approach taken in Re W as an appropriate domestic remedy where grave unfairness had occurred. It did not suggest that Article 6 applied to witnesses in the absence of determination of their civil rights and obligations; instead, it framed the problem through Article 8 and procedural fairness as an aspect of that right.

3.2.3 Del Campo v Spain (2019) 68 EHRR 27

Del Campo is another ECtHR authority confirming that judicial findings that damage a person’s reputation may interfere with Article 8. The Court of Appeal in Re E treated Del Campo and SW together as establishing:

adverse judicial characterisations can be serious enough to engage Article 8; and
if those findings are reached through an unfair process, publication may not be justified under Article 8(2).

3.2.4 Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337; [2019] 4 WLR 146

This case sets out principles on raising new points on appeal. In summary:

The Court of Appeal has a discretion to permit a new point to be argued; but
it will usually only do so where:
- the point is a pure point of law (requiring no further factual enquiry); and
- allowing it would not be unfair to the respondent.
Where the new point requires a fresh factual investigation or would place respondents at a disadvantage because they did not address it below, permission is generally refused.

The Court of Appeal in Re E relied on this framework to refuse the appellant’s attempt to raise:

a retrospective fairness / Article 8 challenge to the fact‑finding process; and
a chilling effect argument on anonymity

for the first time on appeal.

3.2.5 Re Ward (A Child) [2010] EWHC 16 (Fam); [2010] 1 FLR 1497

In Re Ward, Munby P described arguments that publication might generally deter people from participating or have broader systemic effects as “class claims” of a “bold and sweeping” kind, requiring “compelling evidence and arguments” to be given weight.

Re E adopts this language to assess the “chilling effect” argument, noting the complete absence of evidence that naming therapists in judgments will cause a real deterrent effect on their engagement with the family courts.

3.2.6 Abbasi v Newcastle upon Tyne NHS Trust [2025] UKSC 15; [2025] 2 WLR 815

The Supreme Court in Abbasi endorsed Munby P’s warnings about “class claims” and insisted on robust evidential support before courts accept wide‑ranging assertions about systemic chilling effects. Re E relies on Abbasi to reinforce the high threshold for such arguments.

3.2.7 R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 WLR 2472 and Denton v T H White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3926

These authorities establish the principles applicable to:

extensions of time for appealing; and
relief from sanctions under CPR 3.9 (the “Denton principles”).

The Court must consider:

whether the breach (here, delay in appealing) is serious or significant;
why the default occurred; and
all the circumstances of the case, including the need for litigation to be conducted efficiently and at proportionate cost, and to enforce compliance with rules.

In Re E, the Court applied these principles by analogy, treating the 8‑week delay as serious and significant, and finding the reasons “thin, and unpersuasive”.

3.2.8 Lakatamia Shipping Co Ltd v SU [2019] EWCA Civ 1626

Lakatamia confirms that the same rigorous approach to delay and extensions of time applies even when an applicant is or was a litigant in person. The Court of Appeal in Re E expressly applied that principle to Ms Dover.

3.3 Legal Reasoning

3.3.1 Article 6 vs Article 8 – the correct Convention framework

The appellant framed Ground 1 in terms of Article 6 ECHR (right to a fair trial) and “equality of arms”, suggesting that the adverse findings amounted to a determination of her civil rights and obligations (in particular, her professional standing).

The Court of Appeal rejected this analysis at the outset:

Article 6 applies to the determination of a person’s civil rights and obligations or criminal charge.
The fact‑finding judgment in the Children Act proceedings:
- did not determine any civil right or obligation of Ms Dover;
- was primarily concerned with the welfare of E and related children.
Accordingly, Article 6 was not engaged as a matter of strict Convention law.

However, the Court acknowledged the Article 8 dimension, drawing on SW and Del Campo:

“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…” [§14]

The key propositions were:

Serious reputational damage from judicial findings can engage Article 8 as a matter of private life.
If those findings are reached via an unfair process, an interference with Article 8 by publishing them may not be justified under Article 8(2).

Under s.6 Human Rights Act 1998, domestic courts must not act incompatibly with Convention rights. Thus:

a person who claims to be the subject of unfair findings can object to their publication;
the court must consider such objections if made in good time;
where unfairness is established, the court may:
- quash or revisit the findings; and/or
- decide not to publish, or to publish in a modified/anonymised form.

This is what happened in Re W; but, crucially, the Court held that those steps must be triggered in the court of first instance when the issue arises, not introduced late on appeal if they were never raised below.

3.3.2 The failure to raise fairness and Article 8 objections below

A central feature of the Court’s reasoning was that none of the fairness complaints now advanced by Ms Dover were raised before the judge:

She was cross‑examined over two days about her conduct, and the points on which the judge went on to criticise her were put to her.
She had the relevant parts of the draft judgment from 16 April 2025 and could have:
- challenged the accuracy of the proposed findings; or
- alleged procedural unfairness in how those findings were reached.
She wrote to the court on 1 May 2025 but made no complaint of unfairness and raised no substantive challenge to the judge’s criticism.
From 15 May 2025 she had the full judgment, and she was legally represented by early June at the latest.
Her counsel’s written submissions before the judge expressly described her comments under the heading “Response to Findings” as:
“not retrospective mitigation in light of the court’s criticism but merely contextualisation” [§17]
which the Court characterised as an implicit acceptance of the findings.

The Court placed weight on this conduct:

First, because the Court of Appeal’s role is usually to review decisions made below, not to conduct first‑instance assessments of fairness.
Second, because the failure to complain at the time is inconsistent with the current claim that the process was egregiously unfair.

The Court concluded:

“So, the points which the applicant now seeks to raise by way of appeal are ones that could have been but were not raised below.” [§18]

and

“We can identify no adequate explanation … [and] it does make a material contribution to our conclusion that an appeal on these grounds would have no real prospect of success.” [§20–21]

3.3.3 New points on appeal and unfairness to respondents

Applying Notting Hill Finance v Sheikh, the Court treated the fairness and Article 8 complaints as new points:

They were not pure questions of law; their resolution would require:
- a “detailed investigation of the procedures adopted below”; and
- an evaluation of their impact on the substantive fairness of the findings and publication.
None of this had been canvassed before the trial judge.

The Court held:

“The points now raised are not pure questions of law … the central argument calls for a detailed investigation of the procedures adopted below … In our judgment, it would plainly be unfair to the respondents to allow Ms Dover to raise these matters for the first time in this court.” [§19]

Accordingly, even if there had been potential substance to a fairness complaint, the procedural posture barred it from being entertained on appeal.

3.3.4 Distinguishing Re W and confirming its exceptional nature

The Court carefully contrasted the facts of Re E with the “ambush” scenario in Re W:

In Re W, the adverse findings:
- were not in any party’s case;
- had not been raised with the witness; and
- “came out of the blue” in the final judgment.
By contrast, in Re E:
- all key points on which the judge criticised Ms Dover were put to her in cross‑examination;
- she had a fair opportunity to respond, including by providing documentary disclosure;
- she was well acquainted with the relevant documents, and there was no solid basis for saying she was treated unfairly when taken to bundle materials;
- the findings were closely linked to the welfare issues they needed to decide.

The Court concluded:

“Having now subjected the material before us to careful scrutiny we are satisfied that the present case comes nowhere near that standard. Accordingly, we accept the submission … that the approach adopted in the closing submissions for the Guardian was unnecessarily cautious.” [§24]

The judgment ends by emphasising the exceptional nature of Re W and limiting its application in family law practice.

3.3.5 The Chilling Ground and “class claims”

The appellant argued that naming therapists in judgments could deter mental health professionals from engaging with the family courts, undermining child welfare more broadly.

The Court dealt with this concisely but firmly:

It was another new point not raised below. If it were to be relied upon, it should have been argued at first instance, where factual evidence could be explored.
It relied on broad predictions about the behaviour of third parties (other therapists), i.e. a “class claim” in Munby P’s sense.
Following Re Ward and Abbasi, the Court held such sweeping claims require:
- “compelling evidence and arguments”;
- but the appellant provided “no supporting evidence at all”.

Result:

“In any event, we do not consider the ground to have arguable merit … her arguments on this point fall a long way short of being compelling or convincing.” [§25]

3.3.6 The Merits Challenge: jurisdiction, delay, and substance

The “Merits Challenge” (Ground 2) attacked the substance of the judge’s findings about Ms Dover’s professional conduct, and the very relevance of those findings to the Children Act proceedings.

The Court rejected this on several independent bases.

(a) Jurisdiction to entertain appeals by witnesses

The Court expressed doubt that it even had jurisdiction to entertain an appeal by a witness (as opposed to a party) who merely disputed adverse findings of fact:

“First, it is a proposed appeal against findings of fact brought by a witness. We doubt that the court has jurisdiction to entertain such an appeal. Re W does not support the view that such jurisdiction exists absent adverse findings having been made as a result of a ‘a wholly unfair process and where … the consequences for those who are criticised … are both real and significant’.” [§26]

Thus:

Re W is confined to extreme cases of wholly unfair process plus real and significant consequences;
It does not create a general jurisdiction for witnesses to appeal factual findings they dislike.

(b) Focus of the July 2025 hearing

The Court noted that the July 2025 decision being appealed (the publication and disclosure ruling) did not put the legitimacy of the fact‑finding judgment in issue. At the 10 June hearing:

the argument proceeded on the basis that the findings stood;
the only live questions concerned disclosure and anonymity.

To challenge the validity of the fact‑finding itself at the appellate stage was a marked change of position, going beyond what had been ventilated before the judge.

(c) Delay and the Denton / Hysaj framework

Any appeal against the fact‑finding judgment of 2 May 2025 would need to have been lodged by 5 June 2025. The appellant waited until 29 July 2025 – at least an 8‑week delay.

Applying Hysaj and Denton:

The delay was “both serious and significant”.
The reasons offered (including time taken to obtain representation) were “thin, and unpersuasive”.
She had the judgment and legal advice before the deadline expired.

The Court saw “no basis” on which extending time would be in the interests of justice.

(d) No arguable merit in the substantive complaints

Even if jurisdiction and timing hurdles could be overcome, the Court held that the merits challenge was unarguable:

The original submissions to the judge (on anonymity) had accepted that the findings about her were central to the judgment; it was inconsistent now to argue that they were irrelevant or beyond scope.
The Court found a “clear, direct, and sufficient connection” between her professional conduct and the core welfare issues in the Children Act proceedings.
There was no basis for contending that:
- the judge’s findings were not open to her on the evidence; or
- she had applied an unduly stringent (quasi‑disciplinary) standard.

3.3.7 The Article 8 ground and balancing open justice

The Court accepted that:

the level of criticism in the judgment likely met the serious threshold for Article 8 engagement; and
publication naming the appellant would interfere with her Article 8 interests, particularly in reputational and professional terms.

However, the balancing exercise under Article 8(2) must take into account:

the strong public interest in open justice and transparency, especially in the family courts where historically proceedings have been private;
the fact that the criticisms related to matters relevant to child welfare and professional practice; and
the fact that she had been fairly heard:
- criticisms had been put to her;
- she had an opportunity to respond;
- she did not claim procedural unfairness before the judge.

The Article 8 ground was largely parasitic on the fairness ground: it asserted that publication of unfairly reached findings must be disproportionate. Once the Court rejected any arguable case of unfairness, the Article 8 ground had no traction.

4. Impact and Significance

4.1 Clarifying witnesses’ rights to appeal adverse findings

The most important doctrinal contribution is the clear statement at §29:

“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.”

This has several consequences:

No general appellate right for non‑party witnesses simply because they are criticised in a judgment.
Fair process at first instance is the safeguard:
- criticisms must be put to the witness;
- they must have a fair opportunity to respond;
- but no more is generally required (e.g. no automatic right to separate representation or party status).
Re W remains good law but is expressly confined to rare cases of:
- wholly unfair process; and
- real and significant reputational/professional consequences.

4.2 Procedural discipline: raising fairness and Article 8 issues in the trial court

The judgment sends a clear message to practitioners:

If a non‑party is to be the subject of severe criticism:
- Issues of fairness, Article 8, and potential anonymisation should be raised and resolved before the trial judge.
Where a draft judgment is provided, and the judge invites submissions on publication/naming, this is a critical opportunity to:
- challenge the substance of findings; and/or
- argue that the process or prospective publication would be incompatible with Article 8.
Failure to seize that opportunity, especially with legal advice, will:
- generally bar raising those points later on appeal; and
- undermine any narrative of egregious unfairness.

4.3 Family court transparency and professional accountability

The decision aligns with the ongoing move towards greater transparency in the family courts:

Judges are encouraged (and increasingly expected) to publish judgments in important or instructive cases.
Where professionals – including privately retained therapists – have played a significant role in the events under scrutiny, there is a public interest in:
- accurate reporting of what occurred; and
- identifying those whose conduct has been found wanting, particularly where children’s safety and welfare are concerned.
The Court’s willingness to support disclosure of the judgment to the appellant’s regulator and employer also underscores the interface between family proceedings and professional regulation.

4.4 Deterring unfounded “chilling effect” arguments

By rejecting the Chilling Ground, the Court:

reaffirmed the high evidential threshold for systemic or “class” claims; and
signalled that general assertions that professionals will be deterred from co‑operating with the courts are insufficient without concrete evidence.

This is likely to discourage speculative reliance on chilling effects as a ground for anonymisation or restricting publication.

4.5 Litigation practice: time limits and consistency of position

The judgment also illustrates:

the strict application of time limits for appeals, even in sensitive family contexts;
the Court’s insistence that explanations for delay be both full and cogent;
the importance of consistency between positions taken in the trial court and on appeal:
- arguments run below (e.g. that findings are central and legitimate) cannot be easily reversed on appeal; and
- if a party treats findings as accepted for the purpose of arguing anonymity, it becomes difficult later to argue that those findings were outside jurisdiction or manifestly wrong.

5. Complex Concepts Explained

5.1 Article 6 vs Article 8

Article 6 protects the right to a fair and public hearing in the determination of a person’s civil rights and obligations or any criminal charge against them.
Article 8 protects the right to respect for private and family life, home and correspondence, which includes:
- protection of reputation as part of private life; and
- respect for personal and professional integrity.

In this case:

the fact‑finding judgment did not itself decide any civil rights or obligations of the therapist (e.g. no order was made against her);
the reputational damage from adverse findings, if serious enough, therefore fell under Article 8, not Article 6.

5.2 Open justice, transparency and anonymisation

Open justice is the principle that justice should generally be done in public, with judgments made available and identifiable participants named.
The family courts work within statutory and common law confidentiality constraints (e.g. automatic restrictions on naming children), but there has been a sustained policy push for increased transparency through publication of anonymised judgments.
Anonymisation involves removing or altering names and identifying details in published judgments to protect privacy, particularly of children.

Balancing tests typically weigh:

the Article 10 rights of the public and media (receiving information);
the Article 8 rights of the individuals concerned;
the importance of accountability and learning in the system (especially where professional practice may have been deficient).

5.3 Reporting Restriction Orders (RROs)

A reporting restriction order temporarily or permanently prohibits publication of information that might identify certain individuals or details of a case. In Re E:

the Court of Appeal made an RRO barring identification of the appellant pending its decision;
after dismissing her applications, the Court discharged the RRO and identified her as Ms Aimee Dover.

5.4 New points on appeal

A “new point” on appeal is an argument not raised before the trial judge. The Court will:

usually refuse to entertain new points requiring:
- fresh factual findings; or
- a different evidential focus that was not explored below;
sometimes allow new points that are:
- pure questions of law; and
- can be decided without unfairness to respondents.

In Re E, the fairness and chilling‑effect arguments were new points that would have required a re‑evaluation of the factual matrix; thus, they were rejected as procedurally inappropriate.

5.5 Denton principles and extensions of time

When a party misses a deadline (such as the time limit for appealing), the court applies the Denton principles (from Denton v T H White Ltd), which involve:

Assessing if the breach is serious or significant (e.g. an 8‑week delay typically will be).
Considering why the default occurred – were there good reasons (e.g. serious illness) or weak ones?
Looking at all the circumstances, including:
- the need for compliance with rules; and
- the importance of conducting litigation efficiently and at proportionate cost.

In Re E, the 8‑week delay in appealing the fact‑finding judgment was judged serious and unexplained, so no extension was granted.

5.6 “Class claims” and chilling effects

A “class claim” in this context is an argument that a particular judicial action (e.g. naming someone in a judgment) will have wider negative consequences for a whole category of people (e.g. therapists).

Courts are wary of such claims because:

they can be speculative;
they risk over‑estimating adverse consequences without evidence;
they can be used to argue against transparency on thin foundations.

Therefore, compelling evidence is required to substantiate claims that publication will seriously deter others from fulfilling important roles.

6. Conclusion

Re E (A Child) consolidates and refines the law at the intersection of:

family court fact‑finding;
the rights of non‑party witnesses;
Article 8 protection of reputation and private life; and
transparency and open justice.

Its key messages are:

No general appeal right for witnesses:
- a witness of fact usually cannot appeal merely because a judgment criticises them, provided the criticisms were fairly put to them in evidence;
- they do not, just by being at risk of criticism, acquire a right to intervene or to be legally represented.
Re W is exceptional:
- it deals with extreme unfairness where severe criticism “came out of the blue”;
- it does not create a broad jurisdiction to re‑litigate factual findings at the suit of witnesses.
Fairness and Article 8 issues must be raised early:
- where draft judgments are provided and submissions invited, concerns about fairness or prospective publication should be ventilated then;
- failure to do so will usually be fatal to raising them on appeal.
Chilling effect arguments need evidence:
- broad claims that naming professionals will deter others from co‑operating with the courts will not be accepted without strong empirical support.
Rigorous procedural discipline:
- time limits for appeal are strictly applied;
- changes of position between first instance and appeal are viewed with scepticism.

For practitioners, the case underscores the need to:

prepare any at‑risk witnesses for the possibility of robust judicial criticism;
ensure that, where necessary, fairness and Article 8 arguments are made proactively in the trial court;
avoid relying on Re W except in truly exceptional circumstances where criticisms have not been put and the process is fundamentally unfair.

For family law more broadly, Re E marks an important step in aligning witness criticism, professional accountability and open justice, while maintaining a realistic and tightly controlled framework for Convention‑based challenges.