X and Y (Care Proceedings: Publication of Judgment: Criticism of Expert Witness), Re [2026] EWFC 132

[2026] EWFC 132

Date 10 June 2026

IN THE FAMILY COURT

MRS JUSTICE KNOWLES

Re X and Y (Care Proceedings: Publication of Judgment: Criticism of Expert Witness)

Hearing Hearing date: 11 May 2026

Miss Lorraine Cavanagh KC and Miss Pauline McHugh for the local authority

Mr Brendan Roche KC and Miss Sarah Kilvington for the mother

Miss Jacqueline Thomas KC and Miss Kalsoom Maqsood for the father

Miss Frances Heaton KC and Miss Natalie Oakes for the children

Miss Tahmina Rahman for Mr Mitchell

Approved Judgment

This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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MRS JUSTICE KNOWLES

This judgment was delivered in private [and a reporting restrictions order OR transparency order is in force]. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Introduction

[1]On 19 November 2025, I handed down a judgment, making findings of fact about(a) the circumstances of P’s injuries and death on 9 February 2024 and

(b) the care which had been provided to her and her younger sister, X, by the father and the mother. During the lengthy fact-finding hearing which took place in the summer and early autumn of 2025, I heard detailed lay and expert oral evidence and considered thousands of pages of written and other evidence. In summary, I found that the mother had killed P; that her father deliberately burned her; and that either or both of her parents physically assaulted her over a period of ten weeks before her collapse at home on 30 November 2023. P was physically, emotionally and psychologically harmed to a very significant degree by both her parents. X too was emotionally harmed by being present whenever P was assaulted. The findings I made have not been the subject of any application for permission to appeal.

[2]In my judgment, I reviewed the written and oral evidence provided by seven medical doctors appointed as expert witnesses in the proceedings, including that of Mr Patrick Mitchell, a consultant neurosurgeon. His evidence and conduct in the role of an expert witness in family proceedings was addressed in a separate part of my judgment. In summary, I was highly critical of his evidence and his conduct during the proceedings and made a number of factual findings about his behaviour. The findings I made about Mr Mitchell have also not been the subject of any application for permission to appeal.

[3]In my order dated 28 November 2025, I directed that I would consider any matters relating to the publication of my judgment, including whether Mr Mitchell should be named in the published judgment, after the conclusion of the criminal proceedings concerning both parents. The criminal proceedings resolved in February 2026 though I understand that the Attorney General seeks to challenge the mother’s sentence in the Court of Appeal. I was told by counsel that this process would not affect my decision on publication nor the timing of any publication. On 11 May 2026, I heard submissions from counsel for each party and from counsel instructed by Mr Mitchell. No party sought to argue that my judgment should not be published and all agreed the need for redaction to prevent anything which might identify the two children with whom the court is concerned. At the hearing, I was able to resolve some matters such as redaction of the names of relatives which might identify the children and whether the family’s country of origin should be named. At the conclusion of the hearing, I indicated that I would provide the parties with my decision about the naming of Mr Mitchell together with a draft judgment by the end of May 2026.

[4]Accordingly, this judgment concerns itself with whether Mr Mitchell should be named within the published judgment. I have decided that he should for the reasons set out as follows. This judgment should be read alongside the November 2025 fact-finding judgment.

Case Law and Guidance on the Publication of Judgments

[5]On 19 June 2024, the then President of the Family Division, Sir Andrew McFarlane, issued Practice Guidance about the publication of judgments in the Family Court. It was issued as part of the “concerted move towards greater transparency” which had been taking place in the Family Court over the preceding three years and stated that “being transparent includes allowing the public to understand the range of cases in the Family Court and how they are dealt with” (Introduction to the Guidance).

[6]Paragraph 3.1 of the Guidance observes that “the starting point is the principle of open justice. It is generally in the public interest for judgments to be published, even where they arise from private proceedings, and even where there is no particular public interest in the individual case/judgment – subject to any countervailing Article 8 issues, which may justify some anonymisation but do not necessarily preclude publication entirely”. The Guidance identifies the types of judgments which “may be particularly suitable for publication” such as those resulting from contested fact-finding hearings (paragraph 3.8) and states that “in deciding whether and, if so, when to publish a judgment, the judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention on Human Rights, including Article 6 (right to a fair hearing), 8 (respect for private and family life) and 10 (freedom of expression), and the effect of publication on any current or potential criminal proceedings” (paragraph 3.12).

[7]Paragraphs 3.14-3.16 outline the nature of the balancing exercise which a judge sitting in the Family Court is required to undertake when making a decision whether to publish a judgment. It noted that the required balancing exercise between ECHR Articles 6, 8 and 10 (and where applicable other rights) was usefully summarised in paragraph 22 of Re J (A Child)

[2013] EWHC 2694 (Fam)

. Thus,(a) it necessitates an intense focus on the comparative importance of the specific rights being claimed in the individual case (per Lord Steyn in Re S (Identification: Restrictions on Publication)

[2004] UKHL 47

, paragraph 17);

(b) it is necessary to measure the nature of the impact on the child of the proposed publication;

(c) the interests of the child, though not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations (ZH (Tanzania) v Secretary of State for the Home Department

[2011] UKSC 4

, paragraph 33); and

(d) the court must conduct a proportionality check to strike the right balance.

[8]The Guidance highlights a variety of factual matters which should be anonymized or redacted and, in section 5, it sets out the general approach in children cases to certain categories of information. The Guidance emphasises that it is the responsibility of the court to consider in each case whether the general approach is appropriate or if some adjustment is required. It identified one of the key principles in paragraph 5.5.4, namely that “anonymisation of professionals is justified where its purpose is to ensure the anonymisation of the child/family. A speculative concern about harassment or criticism is insufficient”. Table 1 in the Guidance sets out the general approach to different categories of information with notes to assist the court. With respect to experts instructed in the proceedings, the notes state that experts’ names are included in a judgment and explain thus:

“unless there is specific justification for not doing so. Consider whether criticism of the professional adds weight to the public interest in naming them (subject to the requirements of procedural fairness as per Re W above). Consider whether there is a specific justification for not doing so, such as a history or risk of harassment of professionals.”

[9]Most recently, the Supreme Court in Abbasi & Another v Newcastle upon Tyne Hospitals NHS Foundation Trust; Haastrup v Kings College Hospital NHS Foundation Trust

[2025] UKSC 15

considered the relationship between the common law and Convention rights in applications for restraint on publication. Paragraphs 126-130 state as follows:

“[126] Applications for restraints on publication usually seek protection of privacy, confidentiality or reputation, all of which are protected by the common law or equity, for example under the law of confidentiality, defamation, trespass, misuse of private information, invasion of privacy and so forth. Freedom of speech has also been afforded strong protection under the common law for centuries: see, for example, R v Central Independent Television plc [1994] Fam 192, 202-203. It is also protected by statute: notably by section 12(3) and (4) of the Human Rights Act. Where these interests come into conflict, our domestic law achieves a balance between them by establishing principles (such as the principle establishing defences to actions in defamation) which the court then applies to particular facts. [127] In protecting those interests, the courts are also required by section 6(1) of the Human Rights Act to act compatibly with Convention rights: in particular, with articles 8 and 10. As we have explained, the principles established in the case law under the Convention are often expressed at a higher level of generality than those of our domestic law, and their application to particular facts generally calls for a broader exercise of judgement by the court. However, it is important to bear in mind that the starting point is our domestic law. The case law interpreting the Convention is important as setting limits to what is permissible under the Human Rights Act, but it is not an exhaustive guide to how our law should protect either privacy or freedom of expression, or should strike a balance between them. [128] The proper application of Convention rights requires a more structured approach than the concept of “balancing rights” might suggest. In assessing whether there has been a breach of article 10 (or, mutatis mutandis, a breach of article 8), the court begins by asking whether there was an interference prescribed by law. The next question is whether it pursued a legitimate aim, i e an aim which can be justified with reference to one or more of the matters mentioned in article 10(2) (or article 8(2), as the case may be). The remaining question is whether the interference was necessary in a democratic society. It is at that stage that the court may be required to strike a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other: Axel Springer AG v Germany (2012) 55 EHRR 6, para. 84. [129] In a series of Grand Chamber judgments, the court has identified a number of “criteria”, or factors of significance, which it addresses when balancing competing rights under articles 8 and 10: see, for example, Von Hannover v Germany (No 2) (2012) 55 EHRR 15, paras 109-113, Axel Springer AG v Germany, paras 90-95, and Couderc v France [2016] EMLR 19, para 93. The Grand Chamber has also said on many occasions that where the national authorities have weighed up the competing rights in compliance with the criteria laid down in the court’s case law, strong reasons are required if it is to substitute its view for that of the domestic courts: see Von Hannover v Germany (No 2), para 107, Axel Springer AG v Germany, para 88, and Couderc v France, para 92. The factors identified by the European Court should be taken into account by our domestic courts, so far as relevant, when considering the balance of competing rights under articles 8 and 10. [130] Both in applying our domestic law, and for the purposes of article 10, the treatment of children in cases of the present kind is not a purely private matter between the treating clinicians and the children or their parents (see, for example, Bergens Tidende v Norway (2000) 31 EHRR 16). The treatment of patients in public hospitals is a matter of legitimate public concern, and that must be especially true of conflicts between parents and clinicians in relation to the treatment of gravely ill children. There is therefore an important public interest in the freedom of the media, and of other individuals and organisations, to impart information about such matters, subject to the duties and responsibilities described above. Expressions of opinion in the course of the debate on such matters will also be afforded a special degree of protection by the Convention, as illustrated by such cases as Bergens Tidende v Norway and Annen v Germany (Application No 3690/10) (unreported) 26 November 2015.”

[10]In Abbasi, the Supreme Court – when considering the protection of medical clinicians’ privacy - also stated at paragraph 131 that “… the disclosure of personal information about an individual is not necessarily an intrusion into his or her private life, or in any event a sufficiently serious intrusion to engage the protection either of the common law or of article 8…”.

Submissions

[11]Both the local authority and the children’s guardian strongly advocated for publication of the judgment to include the name of Mr Mitchell. Both submitted that my fact-finding judgment was important because it demonstrated to the public at large how the Family Court operated in exceptionally complex cases, both factually and practically. The judgment encompassed the following matters, namely(a) the care taken to ensure that parents with disabilities had a fair hearing;

(b) the guidance to advocates about timely cross-checking the translation of documents;

(d) cooperation between the family and the criminal court; and

(e) detailed explanations of the court’s rigorous analysis of the expert evidence balanced alongside the lay evidence. Miss Heaton KC emphasised that the findings in respect of Mr Mitchell were very serious and unusual and went far beyond merely rejecting his opinion and preferring that of another expert. His conduct, given the court’s analysis and findings, was relevant if he were to be instructed in any other case as an expert witness. Removing his name from the published judgment risked injustice in other cases where he may have been instructed as an expert witness and where this court’s criticisms would be unknown. There was no measure other than naming Mr Mitchell which could either effectively manage any risks from his instruction as an expert witness in other cases or promote public confidence in the court system.

[12]On behalf of the local authority, Miss Cavanagh KC recognised that publication might have an effect upon Mr Mitchell’s ability to practice as an expert witness, his income, his reputation, and his professional standing, all of which engaged his article 8 rights. However, Mr Mitchell had failed to mount and establish a claim for anonymity supported by compelling evidence. His competence to act as an expert witness in any court was a matter of public interest. The public was entitled to know that an unsuitable expert could not take instructions to so act without parties, judges, and the public having access to information about their previous errors and competence. There was a strong public interest in ensuring that expert witnesses complied with their duties and in knowing why one set of expert opinion was accepted and another was not.

[13]Neither the mother nor the father advocated that Mr Mitchell should not be named alongside the other medical experts in line with the President’s Guidance.

[14]On behalf of Mr Mitchell, Miss Rahman noted that this case was the first in which he had accepted instruction to act as an expert in family proceedings. He did not seek to challenge or argue against the court’s criticism and accepted that this case had been a salutary warning to him. She drew attention to his comparatively late instruction and the limited time to prepare his report. With hindsight and if he had had more time, Mr Mitchell accepted that he would and should have been more rigorous in his approach to the issues. Miss Rahman submitted that the correct approach to his shortcomings was through the General Medical Council’s system of monitoring the professional standards of medical doctors. Mr Mitchell had already self-referred so this process was already underway. He had moreover previously provided an undertaking that he would not undertake work as an expert witness pending this court’s decision on publication of the fact-finding judgment. Indeed Mr Mitchell was prepared to be bound by a revised undertaking not to undertake work as an expert witness pending further consideration of this court’s judgment by the General Medical Council. The findings made against him were likely to have a far-reaching impact on his practice. Finally, naming Mr Mitchell would likely deter other experts from acting in family cases.

Analysis

[15]I have thought very carefully about whether Mr Mitchell should be named in any published judgment and have concluded that, alongside the other expert witnesses, he should be named as they are. In my fact-finding judgment, I commented that my conclusion that Mr Mitchell had failed to discharge his duties as an expert witness was one I reached with considerable regret and after the most careful thought. I have never before made findings as serious about an expert witness’s conduct in family proceedings so my findings are noteworthy for that reason alone.

[16]It is important to note that Mr Mitchell was given ample warning that the local authority and the children’s guardian were highly critical of his evidence and conduct at the fact-finding hearing. Further, I permitted him access to the written submissions made by the parties and allowed him to address me before I came to any conclusions about his approach as an expert witness. Likewise, he has benefited from a fair and transparent process with respect to argument about the publication of my fact-finding judgment.

[17]The fact-finding judgment falls squarely into the category of judgments which are particularly suitable for publication as it resulted from a lengthy and complex trial process. Matters relating to the possible identification of the children in a published judgment have been addressed and are no longer in dispute or challenged in an appellate process. The balance has been fairly struck between the children’s Article 8 rights to privacy and respect for their family life and the Article 10 right to freedom of expression, in this context being the public interest in the operation of the Family Court and the decisions taken by judges as public servants in sensitive family proceedings. No party to the care proceedings argued at all that my judgment should not be published in the near future.

[18]Applying the President’s Guidance, the naming of Mr Mitchell in any published judgment would be entirely conventional in that expert witnesses are generally to be named unless there is a specific reason for not doing so. Concern about harassment or criticism is, on its own as the Guidance notes, insufficient to depart from the usual practice of naming an expert witness. However, publication is opposed by Mr Mitchell on the basis firstly, that the court’s serious criticism of his behaviour and approach is best addressed by a General Medical Council process; secondly, that there may be a far-reaching impact on his practice as a medical doctor; and thirdly, that naming Mr Mitchell would deter others from acting as expert witnesses in family proceedings.

[19]Dealing with the second ground first, Mr Mitchell has provided no evidence at all that the effect on his Article 8 right to respect for his family and private life – his practice as a medical doctor - would be seriously compromised by publication of his name in the judgment. This is not a case where, for example, the parents have mounted a campaign of harassment or behaved in ways which might compromise the safety of any of the professionals either involved in the litigation or with their child’s clinical treatment. Whilst publication of my criticisms might impact Mr Mitchell’s practice as an expert witness in civil and criminal proceedings or even his practice as a clinician employed by an NHS Trust, there is nothing other than his assertion that this may be so. As the Supreme Court in Abassi made clear in the context of treating medical clinicians, much more is necessary to demonstrate a disproportionate intrusion into a medical professional’s private and family life requiring the balance between articles 8 and 10 to be struck in favour of the medical professional and against the wider public interest in matters which properly engage its scrutiny. In that context, I observe that Mr Mitchell accepted instruction as an expert witness: he had a choice to involve himself in these proceedings and to be paid for so doing unlike doctors who are treating clinicians and who may have no option but to become involved with a child’s medical treatment. A restriction on what is unchallenged and responsible judicial criticism of an expert witness is simply not made out in the circumstances of this case.

[20]As to the General Medical Council process, this is entirely separate from proceedings in the Family Court. I have no detailed information as to how the fitness to practise process operates or whether any concerns which might be validated by the General Medical Council’s process would align neatly with the concerns expressed by the Family Court. It is difficult to understand why this process might circumscribe the Family Court’s approach to naming an expert witness who is the subject of legitimate judicial criticism. Miss Rahman’s submission comes close to suggesting that publication of the fact-finding judgment is akin to the public punishment of an expert witness and thus illegitimate unless mediated by a General Medical Council process. I reject any such suggestion.

[21]Finally, the suggestion that naming Mr Mitchell might deter other medical professionals from acting as expert witnesses is one that I can reject robustly. It is a “class claim” requiring compelling evidence and argument (see Munby P in paragraph 181 of Re Ward (A Child)

[2010] EWHC 16 (Fam)

– his observation being endorsed by the Supreme Court in Abbasi at paragraph 159). There is no compelling evidence either adduced or relied upon by Mr Mitchell to make good this particular submission. Those who act or wish to act as experts in the Family Court (or any other jurisdiction) need fear nothing from being named in published judgments if they have the necessary expertise and apply themselves conscientiously to the duties required of them by court rules. Experts perform an invaluable and necessary role in some of the most serious and distressing cases which come before the courts and are greatly respected by the judiciary for their experience, the insight they bring to the most complex of problems, and the care with which they approach their task. It is regrettable – as Mr Mitchell himself acknowledged – that he fell far short of what was required of an expert in the Family Court but those failings do not cloak him with invisibility to the public at large without compelling reason.

[22]Having addressed and rejected the specific submissions made on behalf of Mr Mitchell, I have also conducted the necessary analysis required by Abbasi, focussing only on any potential interference with his rights arising from publication of my judgment. The naming of Mr Mitchell in the judgment is an interference with his Article 8 right to private and family life which may impact his practice as an expert witness, his reputation, his professional standing, his income and his employment. These are serious matters for him. However, that interference is in pursuit of a legitimate aim, namely the right to freedom of expression under Article 10 enjoyed by all those in society in reading, commenting and reporting on matters in the family court. The public interest is engaged in various ways, for example, in knowing why one set of expert opinion is preferred over another; in correctly identifying child abuse and understanding where that may be put at risk by an expert failing in his duties to the court; and in ensuring that experts comply with their duties to the court and understanding why and when significant criticism of an expert is legitimate. Balancing the rights engaged in this case, I am satisfied that the interference with Mr Mitchell’s Article 8 rights is necessary in a democratic society. Any restriction to Article 10 rights, especially those relating to preventive restraints on publication, must be established convincingly and be proportionate to the legitimate aim pursued. The case for restriction is not made out convincingly in the circumstances of this case for all the reasons evident in this analysis.

[23]That is my decision.