Judge: Court of Appeal (Moore-Bick Black and Lewison LJJ))
Citation:  EWCA Civ 96
This decision of the Court of Appeal concerned the anonymisation of a child’s name in clinical negligence proceedings. The first instance judge, approving a settlement agreement, had refused to make an order preventing publication of the child’s name but did direct that her address should not be disclosed. The claimant, through her litigation friend, appealed.
The Court of Appeal cited the case of Scott v Scott  AC 417 in which the court had explained that judgments about wards of court and ‘lunatics’ were of a different nature to other proceedings:
“the jurisdiction over wards and lunatics is exercised by the judges as representing His Majesty as parens patriæ. The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognized that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs.”
However, now that most such decisions were taken pursuant to statute, the Court of Appeal considered that the above justification for anonymity was no longer sufficient, saying “any exclusion of such proceedings from [the principle of open justice] therefore must be found in an overriding need to ensure that justice in the broader sense is done in the individual case.”
This requires in each case consideration of whether it is necessary to derogate from open justice, not merely a balancing of competing Article 8 and Article 10 rights. In the instant case, the first instance judge had set the bar too high by requiring the child’s family to provide evidence of specific risks of tangible harm to the child, noting that “[i]t may be difficult for a claimant’s parents or litigation friend to put into words the effect that an invasion of privacy is likely to have on the family’s life and whatever fears are expressed may not in the end be realised.”
Despite having stepped back from the approach in Scott v Scott earlier in its judgment as providing a generic basis for anonymisation, the Court concluded that the functions being carried out in approving a settlement agreement were of a different nature to the usual ‘direct administration of justice’, and that the public interest in ensuring those functions were carried out properly did not require the child’s name to be made known. Thus:
“although each application will have to be considered individually, a limited derogation from the principle of open justice will normally be necessary in relation to approval hearings to enable the court to do justice to the claimant and his or her family by ensuring respect for their family and private lives. In some cases it may be possible to identify specific risks against which the claimant needs to be protected and if so, that will provide an additional reason for derogating from the principle of open justice, but we do not think that it is necessary to identify specific risks in order to establish a need for protection. The circumstances giving rise to the settlement will inevitably differ from case to case, but the interference with the right to private and family life will be essentially the same in almost all cases. It is sufficient in our view that the publication of the circumstances giving rise to the settlement would, in the absence of relief, involve injustice in the form of an interference with the article 8 rights of the claimant and his or her family.”
The Court gave the following procedural guidance:
(i) the hearing should be listed for hearing in public under the name in which the proceedings were issued, unless by the time of the hearing an anonymity order has already been made;
(ii) because the hearing will be held in open court the Press and members of the public will have a right to be present and to observe the proceedings;
(iii) the Press will be free to report the proceedings, subject only to any order made by the judge restricting publication of the name and address of the claimant, his or her litigation friend (and, if different, the names and addresses of his or her parents) and restricting access by non-parties to documents in the court record other than those which have been anonymised (an “anonymity order”);
(iv) the judge should invite submissions from the parties and the Press before making an anonymity order;
(v) unless satisfied after hearing argument that it is not necessary to do so, the judge should make an anonymity order for the protection of the claimant and his or her family;
(vi) if the judge concludes that it is unnecessary to make an anonymity order, he should give a short judgment setting out his reasons for coming to that conclusion;
(vii) the judge should normally give a brief judgment on the application (taking into account any anonymity order) explaining the circumstances giving rise to the claim and the reasons for his decision to grant or withhold approval and should make a copy available to the Press on request as soon as possible after the hearing.
This judgment is of interest to Court of Protection practitioners on two fronts. First, it has implications for the evidence required to obtain anonymisation orders in medical treatment cases – evidence of specific harm to P may not be required, as the general approach should be that publication itself is an interference with P’s Article 8 rights. Secondly, it is relevant to the ongoing debate about transparency in the Court of Protection. The Court of Appeal noted that ‘quite rightly’, no-one had suggested that infant settlement approval hearings should take place in private. It is not difficult to imagine that in the future, Court of Protection hearings may follow a similar route: held in public, or with press access at least, but with anonymisation orders ‘normally necessary’.