T v The Governing Body of Merevalley Federation

Mode of hearing

1. The proceedings were held by video (CVP). All parties joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way. Background

2. This application relates to alleged breach of compliance with the Tribunal’s decision issued on 12 March 2024 (the “first Tribunal decision”), and alleged breach of an anonymity order made by the Tribunal.

3. The issue in the first Tribunal decision was whether the Respondent was entitled to rely on section 14(1) of the Freedom of Information Act 2000 (“FOIA”) to withhold information requested by the Applicant. The requested information related to Governing Board Meetings from 1 January 2020 to 21 April 2023.

4. The Tribunal decided that the Respondent was not entitled to rely on section 14(1) . The Substituted Decision Notice was as follows: Merevalley Federation shall, within 30 days of the delivery of this Decision to them, respond to the request for information made by T on 21 April 2023 without reliance on section 14(1) Freedom of Information Act 2000 .

5. Prior to the hearing of the first Tribunal decision the Applicant had made an application for anonymity in that appeal, which was granted by Registrar Arnell on 11 December 2023. The original order was: Unless and until the Tribunal, the Upper Tribunal, or a Court orders otherwise, pursuant to rule 14(1) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, the Appellant and/or any member of their family, is granted anonymity. No-one shall publish or reveal either directly or indirectly any information, including their names or their addresses, that is likely to lead members of the public to identify them.

6. The Tribunal made the following order in its decision issued on 12 March 2024: “ Unless and until the Tribunal, the Upper Tribunal, or a Court orders otherwise, pursuant to rule 14(1) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, the Appellant and/or any member of their family, is granted anonymity No-one shall publish or reveal either directly or indirectly any information, including their names or their addresses, that is likely to lead members of the public to identify them .”

7. On 8 July 2024, Judge Lynn Griffin made the following order, which remains in force: Pursuant to rule 14(1) no person shall disclose or publish any matter likely to lead members of the public [that is any person who is not a party to this case, and/or authorised to act for the Respondent and/or a representative of either party in these proceedings] to identify T, a person whom the Tribunal considers should not be identified. The Application

8. The Applicant made an application to the Tribunal on 7 May 2024 on the basis that the Respondent had not complied with the Substituted Decision Notice in the first Tribunal decision. The Applicant complains that documents were incomplete and information was withheld. The Application asks for the Respondent to be instructed to release the withheld documents and provide original documents in legible electronic format, or to hold the Respondent in contempt of court.

9. The Applicant has also made an application in relation to alleged breach of the Tribunal’s anonymity order by the Respondent. The Applicant asks for this order to be made permanent. The Respondent has made an application to discharge the anonymity order.

10. Counsel’s submissions were provided to the Tribunal on 28 August 2024 by solicitors Stone King LLP who said they were providing the submissions on behalf of their client, Emerson Valley School (the “School”). It was explained in the submissions that Merevalley Federation is not a legal entity and not a public authority, and that the submissions were being provided on behalf of the School which, in conjunction with another school, operated as the Merevalley Federation when carrying out certain statutory functions for the provision of education. However, it was said that the Federation holds no status as a legal entity. It was also said that the School is a community school as defined in section 39(1) of the Education Act 2002 and section 20 of the School Standards and Framework Act 1998 , and is maintained by Milton Keynes City Council who are ultimately liable for the conduct of its employees and governors of the School. The submissions further explained that the submissions were provided on behalf of the School to assist the Tribunal in its determination of the Applicant’s claim that the School (who was essentially understood to be the body complained about) had failed to fully comply with the Substituted Decision Notice in the first Tribunal decision.

11. On 18 September 2024 Stone King LLP sent an email to the Tribunal and to the Applicant to apologise for previously stating that Merevalley Federation is not a legal entity. They clarified that Merevalley Federation is a legal entity, and the correct legal entity to be joined as a party to these proceedings. They also confirmed that their instructions were received from Merevalley Federation and not, as previously indicated, from the Governing Body of the School, and that the submissions should be read as coming from Merevalley Federation. On that basis the Tribunal accepted the submissions as the Respondent’s submissions. However, where the submissions make specific references to the School we have reflected them as such.

12. The Respondent’s submissions also explained that the School was becoming part of a multi academy Trust known as the 5 Dimensions Trust.

13. In relation to failure to comply with the Substituted Decision Notice in the first Tribunal decision, the Respondent says that the School was not the subject of the Substituted Decision Notice and, even if it was, the claim that there has not been compliance with the Substituted Decision Notice is misstated because when the Applicant’s complaint to the Information Commissioner was eventually drawn to the attention of the School it complied in respect of those requested documents that were in its control. The School also acknowledged that two documents had been omitted in error from the documents supplied to the Applicant, but said that those missing documents were attached to the submissions.

14. In relation to breach of the anonymity order, the Respondent accepted in its submissions that the School is required to comply with the anonymity order due to the breadth of the order. However, it submitted that it is not clear that the School had knowledge of the order. It also said that the disclosure complained of by the Applicant was made to 5 Dimensions Trust as part of the due diligence process for the School to become part of that Trust. Applicable law

15. Where the First-Tier Tribunal (“FTT”) has substituted a decision notice for that of the Commissioner, the FTT is responsible for enforcing that substituted decision. This was decided by the Upper Tribunal in Information Commissioner v Moss and the Royal Borough of Kingston upon Thames [2020] UKUT 174 (AAC) (“Moss”).

16. The relevant law is contained in section 61 of FOIA: “(1) Tribunal Procedure Rules may make provision for regulating the exercise of rights of appeal conferred by sections 57(1) and (2) and 60(1) and (4). …… (3) Subsection (4) applies where – (a) a person does something, or fails to do something, in relation to proceedings before the First-tier Tribunal on an appeal under those provisions, and (b) if those proceedings were proceedings before a court having power to commit for contempt, the act or omission would constitute contempt of court. (4) The First-tier Tribunal may certify the offence to the Upper Tribunal. (5) Where an offence is certified under subsection (4), the Upper Tribunal may – (a) inquire into the matter, and (b) deal with the person charged with the offence in any manner in which it could deal with the person if the offence had been committed in relation to the Upper Tribunal.”

17. As confirmed in Moss , the FTT does not have power to actually commit for contempt, but does have the power under these provisions to certify an offence to the Upper Tribunal. Under section 61(4) FOIA, the FTT has a discretion to certify an offence to the Upper Tribunal only where it is satisfied that the requirements of both limbs of section 61(3) have been met i.e. that “a person” has done something or failed to do something in relation to proceedings before the Tribunal in appeals brought pursuant to sections 57 or 60 of FOIA and, if the proceedings were proceedings before a court having power to commit for contempt, the act or omission would constitute contempt of court.

18. There is no mention in FOIA as to the required standard of proof by which the allegation of contempt must be judged. In the ordinary course, given the seriousness of contempt proceedings, the standard of proof by which the contempt must be demonstrated is the criminal standard of beyond reasonable doubt.

19. If such an offence is proven to the required standard, the Tribunal must then consider whether, in all the circumstances of the case, discretion should be exercised so as to certify the offence to the Upper Tribunal.

20. In Navigator Equities Limited v Deripaska [2021] EWCA Civ 1799 , the Court of Appeal set out a helpful summary of general propositions of law in relation to contempt, which it considered to be “well-established”: i. The bringing of a committal application is an appropriate and legitimate means, not only of seeking enforcement of an order or undertaking, but also (or alternatively) of drawing to the court's attention a serious (rather than purely technical) contempt. Thus, a committal application can properly be brought in respect of past (and irremediable) breaches. ii. A committal application must be proportionate (by reference to the gravity of the conduct alleged) and brought for legitimate ends. It must not be pursued for improper collateral purpose. …… (v) It is generally no defence that the order disobeyed (or the undertaking breached) should not have been made or accepted. (vi) Orders and undertakings must be complied with even if compliance is burdensome, inconvenient and expensive. If there is any obstacle to compliance, the proper course is to apply to have the order or undertaking set aside or varied. (vii) In order to establish contempt, it need not be demonstrated that the contemnor intended to breach an order or undertaking and/or believed that the conduct in question constituted a breach. Rather it must be shown that the contemnor deliberately intended to commit the act or omission in question. Motive is irrelevant. (viii) Contempt proceedings are not intended as a means of securing civil compensation. (ix) For a breach of order or undertaking to be established, it must be shown that the terms of the order or undertaking are clear and unambiguous; that the respondent had proper notice; and that the breach is clear (by reference to the terms of the order or undertaking).

21. A Substituted Decision Notice issued by the FTT may be endorsed with a penal notice, which warns the parties that failure to comply may result in the tribunal making written certification of this fact to the Upper Tribunal and this may be dealt with as a contempt of court. If there is no penal notice, a party can still make an application to certify for contempt. The absence of a penal notice is relevant to whether the Tribunal should exercise its discretion to certify, in circumstances where a contempt has been found. Issues and evidence

22. The issues were set out in Case Management Directions by Tribunal Judge Lynn Griffin on 8 July 2024 as follows: a. Is the Respondent guilty of any act or omission in relation to proceedings before the Tribunal which, if those proceedings were proceedings before a court having power to commit for contempt, would constitute a contempt of court? T alleges that the acts or omissions are: • Communicating T’s personal data to a third party in breach of the anonymity order made in EA/2023/0390 • The failure to comply with the substituted decision by failing to provide all the information requested The Tribunal is likely to be assisted in the determination of the aforementioned issue by submissions on the following matters: i. Whether the terms of the Substituted Decision Notice and/or the anonymity order in EA/2023/0390 were sufficiently clear and unambiguous so as to be capable of founding a finding of contempt for breach thereof; ii. If so, what were the obligations imposed on the Respondents by the Substituted Decision Notice and/or the anonymity order? iii. Whether the acts of the Respondent (for example, the sending of some information to T) were sufficient to comply with the decision of the Tribunal? iv. Does either of the Applicants have a right to complain to the Information Commissioner pursuant to section 50(1) of the Freedom of Information Act 2000 (“FOIA”) in relation to the assertion that the response to the Substituted Decision Notice was not a sufficient response to their information request? b. If the Respondent, is “guilty of an act or omission in relation to proceedings before the Tribunal which, if those proceedings were proceedings before a court having power to commit for contempt, would constitute a contempt of court”, should the Tribunal exercise its discretion to certify a contempt? The Tribunal is likely to be assisted in the determination of this issue by submissions on whether such a breach was accidental or wilful.

23. Due to the factual background and on the basis of the submissions and clarifications received by the Tribunal from Counsel and legal representatives as set out in paragraphs 10 – 14 above, we have assessed these questions in relation to all parties concerned i.e. the Respondent, the School and 5 Dimensions Trust.

24. There have been a number of case management hearings and directions, and additional documents have been disclosed to the Applicant as set out below.

25. We have also considered whether the existing anonymity order should be made permanent, and whether the application to remove the anonymity order should succeed.

26. We had a bundle of documents, which included two witness statements from Tony Nelson, Chief Executive of 5 Dimensions Trust, and one witness statement from the Applicant. We heard evidence from Mr Nelson under oath. We had detailed written submissions from the Applicant, which we read before the hearing. We had oral submissions from the Applicant and from Mr Wilson on behalf of the Respondent. Although we do not address below every point that was made by the parties, we have taken all of the evidence and submissions into account in making our decision. Witness statements

27. The first witness statement from Tony Nelson dated 6 December 2024 states that as of 2 December 2024 the School became part of 5 Dimensions Trust and that, as such, the Trust would be taking the role of the Respondent. It also states that the statement was prepared following communications with the Trust’s legal representatives Stone King LLP (who up until that point had first said that they were acting for the School and then said that they were taking instructions from the Respondent). The witness statement sets out a response in relation to 14 documents that the Applicant said were missing. a. Item 1 had already been provided. b. New documents were provided for items 2, 3, 5, 6, 9 10, 12, 13 and 14. c. Item 4 - confidential paper from Teaching and Learning Committee on 30 November 2022 – to the best of his knowledge this does not exist. d. Item 7 - Headteachers Report for Teaching & Learning Committee on 6 March 2023 –there was no formal headteachers report. e. Item 8 - Chair of Governors Report for Full Governing Board meeting on 28 March 2023 – there was no formal report, this was a verbal update. f. Item 11 - Agenda, Minutes and documentation from Teaching and Learning Committee dated 8 February 2023 – this meeting did not take place, it was postponed until 6 March 2023.

28. Mr Nelson says that these documents have been redacted under section 40 FOIA to protect personal information. He apologises on behalf of 5 Dimensions Trust for the delay, and says they were able to produce these documents after contacting Milton Keynes County Council to perform a search on a restricted folder.

29. The Applicant provided a witness statement relating to breach of the anonymity order. The main points in relation to what she says happened are: a. Ms Rebecca Cosgrove (the then Chair of Governors of the Respondent) wrote to the Tribunal on behalf of the Respondent on 15 March 2024, referring to the Applicant as “T”. b. On 20 June 2024, the Applicant’s husband received a telephone call from Mr Nelson in relation to 5 Dimensions Trust fulfilling the FOIA request. Mr Nelson was unaware of the Tribunal proceedings and the anonymity order. c. On 24 June 2024, the Applicant received an email from the PA to the Headteacher at their son’s current school asking for details of the original FOIA request. d. On 28 June 2024, Mr Nelson sent them an email saying that 5 Dimensions Trust had been advised by the GRC that it would need to become a separate party and so was unable to collect the data on their behalf.

30. The second witness statement from Mr Nelson dated 20 December 2024 addresses the breach of anonymity order. He says: a. At the time of the telephone call to the Applicant’s husband on 20 June 2024 he was unaware of the first Tribunal decision, and only made contact in respect of fulfilling the Applicant’s FOIA request. He explained the due diligence process in relation to the School becoming part of 5 Dimensions Trust and that the Trust was offering support as the School did not have capacity. He only became aware of the extent of the dispute during the call. b. Prior to the call, only three individuals within 5 Dimensions Trust were aware of the outstanding FOIA request. It had been made clear to them that they must not discuss the matter with any other person, inside or outside the Trust. c. The Trust is not a member of the public as such and the disclosure that was made was akin to an internal disclosure to ensure compliance with due diligence and a smooth transition of the School into the Trust. d. The transfer has now been completed so the Applicant is in no different position as a result of the breach. The disclosure was not “wilful” and was made with the Applicant’s interests in mind and in the hope of assisting with the FOIA request. e. He apologises if any distress was caused to the Applicant. Relevant facts

31. The Applicant’s request was as follows: “ Please can you provide the following in relation to Governing Board Meetings from 01/01/2020 to 21/04/2023. Including: (a) the agenda for every meeting; (b) the attendees; (c) the signed minutes of every such meeting; and (d) any report or other paper considered at any such meeting.”

32. The Substituted Decision Notice made in the first Tribunal decision is as set out at paragraph 4 above and was sent to the parties on 12 March 2024. It was sent to Rebecca Cosgrove by email on the same date. The first Tribunal decision includes the following in relation to anonymity: Unless and until the Tribunal, the Upper Tribunal, or a Court orders otherwise, pursuant to rule 14(1) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, the Appellant and/or any member of their family, is granted anonymity. No-one shall publish or reveal either directly or indirectly any information, including their names or their addresses, that is likely to lead members of the public to identify them .

33. The Respondent sent the Applicant a set of documents by post, received on 30 March 2024. The Applicant says this was a set of only 29 documents (although an email at the time says 33), there were no attachments or papers, and they had been printed in a way that meant information was missing. The Applicant raised issues about missing information with the Tribunal on the same date. She did not contact the Respondent because it was not a party to the proceedings at that stage, and the Applicant did not want to breach the anonymity order. There was some confusion about whether issues of non-compliance with the Substituted Decision Notice in the first Tribunal Decision was a matter for the Tribunal or for the Information Commissioner. The Applicant made the Application to the Tribunal on 7 May 2024.

34. Mr Nelson was asked during his evidence about why a limited set of documents was provided to the Applicant on 30 March 2024. The Applicant made the point that, in previous correspondence to the Information Commissioner, the Respondent had said there were more than 200 documents within scope of the request, and it would take a long time to provide the information. Mr Nelson was not involved at this point and did not know why this happened.

35. Judge Heald made case management directions on 29 May 2024. These directions included the order, “ unless and until the Tribunal, the Upper Tribunal, or a Court orders otherwise the Appellant and/or any member of their family, is granted anonymity .” The directions were sent to Ms Cosgrove at the Respondent by email together with a redacted version of the Application.

36. On 20 June 2024 there was the telephone call from Mr Nelson to the Applicant’s spouse on behalf of 5 Dimensions Trust. Mr Nelson gave evidence that the Headteacher of the School was, in his professional opinion, “absolutely overwhelmed” by this and various other matters, and was struggling with capacity to respond fully to the Applicant’s information request. He emphasised a number of times in his evidence that both the Headteacher and the School were overwhelmed at the relevant time. Mr Nelson met with the Headteacher and offered to support with a response to the Applicant’s information request, including contacting the Applicant to try and find a resolution. This led to the telephone call. Only two other individuals at 5 Dimensions Trust knew about this. One of them was the governance professional, who was also the PA to the Headteacher at the Applicant’s son’s new school. She emailed the Applicant as part of her role at 5 Dimensions Trust. Mr Nelson confirmed he was not told about the anonymity order by the Headteacher or anyone else involved with the School before he called the Applicant’s spouse.

37. Mr Nelson explained that 5 Dimensions Trust was then unable to provide further support to the School in respect of answering the Applicant’s information request because of the anonymity order. He said it would be very challenging or impossible to do this without knowing the Applicant’s name, and we accept this.

38. On 4 July 2024 the Applicant was sent a USB stick by the Respondent which contained a substantial number of additional documents. The Applicant says this contained around 90% of what had been requested. As part of these proceedings the Applicant then gave details of 14 missing items of information within the scope of the Applicant’s information request.

39. On 2 December 2024, the School became part of 5 Dimensions Trust. As set out above, a response on the 14 missing items was provided by Mr Nelson with his witness statement on 6 December 2024. A number of additional documents were disclosed. Mr Nelson gave evidence that these had been retrieved after an additional search. This included contacting the local authority and conducting searches of the Governor Hub secure system, which has folders in restricted areas, as well as searches of the School’s IT system and emails.

40. The Applicant maintains that one document has still not been disclosed – the Headteachers Report for Teaching & Learning Committee on 6 March 2023. The Applicant says this is referred to in the relevant minutes and so must exist. Mr Nelson’s evidence was that this had been searched for and could not be located anywhere. They had found no evidence it existed. He said that, although not best practice, it may have been a verbal report.

41. On 17 January 2025 the Respondent’s solicitors responded to various points raised by the Applicant in response to Mr Nelson’s first witness statement, and disclosed two additional sets of documents (Governance Development Plan, and various data reports shared ahead of the meeting on 6 March 2023). Discussion and Conclusions

42. We have considered the issues in turn for both of the orders and, for the reasons set out above, in respect of all parties concerned.

43. The first main issue is - Is the Respondent guilty of any act or omission in relation to proceedings before the Tribunal which, if those proceedings were proceedings before a court having power to commit for contempt, would constitute a contempt of court? This breaks down into the following issues.

44. Whether the terms of the Substituted Decision Notice and/or the anonymity order in EA/2023/0390 were sufficiently clear and unambiguous so as to be capable of founding a finding of contempt for breach . a. The terms of the Substituted Decision Notice are set out above. We find that these terms are clear and unambiguous, with a specified deadline for compliance. The Respondent was required to provide a response to the Applicant’s information request that did not rely on section 14(1) FOIA. The Respondent submitted at the hearing that the original request was wide-ranging and there was not sufficient clarity. We have considered this argument, but we do not agree. The request clearly asks for a list of specified items from Governing Board meetings, including reports or other papers considered at the meetings. It is these reports and papers that the Applicant says were not provided within the deadline. b. The terms of the anonymity orders are also set out above. The alleged breach first happened around 20 June 2024, so we are considering the orders made on 11 December 2023, 12 March 2024 (in the first Tribunal decision), and 29 May 2024. These give anonymity to the Applicant and members of their family. The first two orders also say, “ No-one shall publish or reveal either directly or indirectly any information, including their names or their addresses, that is likely to lead members of the public to identify them.” We find that these orders are clear and unambiguous, particularly the orders made in the first Tribunal decision that was sent to the Respondent on 12 March 2024.

45. If so, what were the obligations imposed on the Respondents by the Substituted Decision Notice and/or the anonymity order? a. The Substituted Decision Notice imposed an obligation on the Respondent to respond to the Applicant’s request for information without relying on section 14(1) FOIA, and required this to be done within 30 days. b. The anonymity order imposed an obligation on the Respondent (and anyone else) not to reveal any information which is likely to lead a member of the public to identify the Applicant and/or any member of her family. The “public” is anyone who was not a party to the proceedings.

46. Whether the acts of the Respondent (for example, the sending of some information to T) were sufficient to comply with the decision of the Tribunal? a. In relation to the Substituted Decision Notice, the acts of the Respondent were not sufficient to comply. Only a limited amount of information was sent to the Applicant within the 30 day deadline. This did not include reports and other papers considered at the Governing Board meetings, which were clearly part of the request. The Respondent did not rely on any exemptions to withhold this information. It later provided a full response to the request, but in stages – with the majority of the missing information on 4 July 2024, and further information with the Trust’s witness statement on 6 December 2024 and the response from the solicitors on 17 January 2025. b. We have also considered the specific issue of the Headteacher Report for Teaching & Learning Committee on 6 March 2023. The Applicant says it must exist because it is referred to in the minutes. The Respondent says they have been unable to find it. As this is a contempt of court application, we have applied the burden of proof of beyond reasonable doubt. Neither the Respondent nor the School (or 5 Dimensions Trust) provided documentary evidence of the searches that were carried out, but we accept the oral evidence of Mr Nelson that they have been unable to locate this report. We therefore find that the Respondent has not failed to comply by failing to disclose this report. This is on the basis that it is not beyond reasonable doubt that this report is held by the Respondent. c. In relation to the anonymity order, the Respondent also did not comply. The Respondent was aware of the anonymity order because they had been sent the first Tribunal decision which included that order. 5 Dimensions Trust was not a party to the proceedings at this time. We understand that the Applicant’s identity was revealed to 5 Dimensions Trust as part of the due diligence process relating to the School becoming part of the Trust, and that the reason for taking that action was for Mr Nelson to try to assist with resolving matters. However, 5 Dimensions Trust was a member of the public at this point, and revealing the Applicant’s identity to them was a breach of the anonymity order. We do not accept for purposes of the anonymity order that 5 Dimensions Trust was at this time authorised to act for the Respondent and so not a member of the public.

47. Does either of the Applicants have a right to complain to the Information Commissioner pursuant to section 50(1) of the Freedom of Information Act 2000 (“FOIA”) in relation to the assertion that the response to the Substituted Decision Notice was not a sufficient response to their information request? We understand that the Applicant may be raising issues with the Information Commissioner about redactions to the information that has been supplied by the Respondent, and potentially the Information Commissioner can also consider whether (on the balance of probability) further information is held. However, this does not affect our finding that the Respondent was in breach of the Substituted Decision Notice in the first Tribunal decision due to partial and late compliance.

48. We therefore find that the Respondent is guilty of acts/omissions in relation to proceedings before the Tribunal which, if those proceedings were proceedings before a court having power to commit for contempt, would constitute a contempt of court. These are the failure to comply with the Substituted Decision Notice and the breach of the anonymity orders.

49. If the Respondent is “guilty of an act or omission in relation to proceedings before the Tribunal which, if those proceedings were proceedings before a court having power to commit for contempt, would constitute a contempt of court”, should the Tribunal exercise its discretion to certify a contempt? We have considered this issue carefully in relation to each of the breaches, which has included taking into account whether the breach was accidental or wilful. We have also taken account of the words of Mrs Justice Rose in JSC Mezhdunarodniy Promyshellnniy v Pugachev [2016] EWHC 192, that “ The court needs to exercise care when it is asked to draw inferences in order to prove contempt…. Circumstantial evidence can be relied on to establish guilt. It is however important to examine the evidence with care to see whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the Bank's case. If, after considering the evidence, the court concludes that there is more than one reasonable inference to be drawn and at least one of them is inconsistent with a finding of contempt, the claimants fail.” (paragraph 41(iii)).

50. The failure to comply with the Substituted Decision Notice. We have found on the facts that the required information has now been provided to the extent that it was held, but it was not all provided within the required time. The majority of the information was provided on 4 July 2024 (which is slightly less than three months late). Some further information was provided later, in December 2024 and January 2025. We have accepted Mr Nelson’s evidence that retrieving this information required a search of secure databases at the local authority. The fact the information has now been provided does not prevent the application from succeeding – Navigator Equities makes clear that a committal application can properly be brought in respect of past (and irremediable) breaches. However, this situation is very different from some of the authorities referred to by the Applicant, where there was either no compliance at all, or the compliance was years rather than months late.

51. The critical issue is the incomplete, partial disclosure made on 30 March 2024. The Applicant makes the point that the Respondent has not provided an explanation for this from the person who made the decision to act in this way at the time. The Respondent’s previous representations to the Information Commissioner about there being a large volume of documents indicate that it knew that more material was covered by the request than was disclosed on 30 March 2024. There is no witness statement that deals with this issue, and no witness who had direct knowledge of the reasons for this incomplete disclosure appeared at the hearing.

52. We have looked at whether, on the evidence we have, we are in a position to find that the Respondent deliberately intended to breach the order. We have been cautious about drawing this inference if there is more than one inference that can be drawn from the evidence. We have considered the evidence from Mr Nelson that the School and the Headteacher were “absolutely overwhelmed” during this time. This is an explanation that was provided for the first time during the hearing, meaning that the Applicant could not have taken it into account when deciding whether to bring these proceedings. However, Mr Nelson repeated this a number of times, and we accept his evidence. It was clear that, in his professional opinion as a senior leader, the School and Headteacher were not coping with all the matters they had to deal with at this time. The disclosure on 30 March 2024 was obviously an unsatisfactory way to comply with the Substituted Decision Notice. We are not satisfied, however, that this breach was deliberate and/or wilful, taking into account the overwhelm faced by the school and Headteacher at the time. It is unclear whether this was intended to be a full disclosure, but substantial further information was then provided on 4 July 2024 (after it became clear that 5 Dimensions Trust were unable to help with the matter).

53. The Substituted Decision Notice did not contain a penal notice. This means that the Respondent was not made directly aware of the potential consequences of non-compliance. This can be relevant to the issue of whether we exercise our discretion to certify a contempt, but it was not a decisive factor in this case.

54. We have taken into account the detailed written submissions from the Applicant and why she says this act or omission was deliberate and wilful. The Applicant’s final submission at the hearing was that much remains unexplained about what happened, and that the motive and purpose have been concealed. We have some sympathy with how the position may reasonably have been perceived from the Applicant’s perspective.

55. Based on the evidence, we have considered carefully whether, on the facts, we should exercise our discretion to certify contempt. Having done so, we find that the breach is not sufficiently serious to justify doing so. Accordingly, we do not exercise our discretion to certify a contempt for this breach.

56. The breach of the anonymity order. This breach occurred because 5 Dimensions Trust was involved in a due diligence process relating to the School becoming part of the Trust (and no longer being part of the Respondent) and because the Trust was seeking to help with resolving the dispute with the Applicant. The disclosure of the Applicant’s identity was an error. 5 Dimensions Trust was not permitted to receive information that was covered by the anonymity order. However, this happened because of a desire to ensure compliance with the Applicant’s outstanding information request and with the Substituted Decision Notice in the first Tribunal decision. Again, we have taken into account the detailed written submissions from the Applicant, and note what she says about this having a destabilising effect on the family. To the Applicant, the breach of the anonymity order appears to have been intentional. Nevertheless, having taken into account the evidence and the reasons for the breach, we find that the breach is not sufficiently serious to justify a certification of contempt. Accordingly, we do not exercise our discretion to certify a contempt for this breach.

57. The Applicant made the argument that the Respondent’s breaches are aggravated by its failure to apologise for or rectify them. We agree that this can be relevant in an appropriate case. We do not find in this case that any such failure is sufficient to cause us to exercise our discretion to certify a contempt. We note that the breach in relation to the Substituted Decision Notice has now been rectified, the breach of the anonymity order was stopped after only three individuals within 5 Dimensions Trust became aware of the Applicant’s identity in error, and Mr Nelson did provide some apologies in his witness statements.

58. The Applicant’s written submissions say that certification is reserved for serious, deliberate, and harmful defiance of judicial authority, and “that is precisely what has occurred here”. We can understand why, in the circumstances, the Applicant would seek to advance this argument. However, having considered all the evidence we do not agree that the Respondent’s conduct meets this threshold.

59. For the reasons given above, we do not certify a contempt to the Upper Tribunal in this case. We dismiss the application. Continued anonymity order

60. We find that the Applicant should continue to be anonymised in relation to these proceedings, and this anonymisation should be permanent. We make the order set out above.

61. The Respondent made an application that anonymity should not remain permanent in this case. This was based on evidence that the Applicant was not concerned about anonymity when separate proceedings were issued in the County Court. The Applicant explained at the hearing that anonymity had been requested in these separate proceedings. An interim order was made in December 2024, and more recently a judge agreed that the names of the parents and children should be anonymised. We therefore find that the Applicant has been consistent in seeking anonymity in all court proceedings.

62. The original anonymity order was made by Registrar Arnell on the following basis – “ Because of the underlying facts of the appeal and the Appellant's name, disclosure or reporting of the Appellant’s name or that of their spouse would likely enable the Appellant’s children to be identified. The children's circumstances as stated in the application are such as to give rise to a level of potential harm upon identification that the principle of open justice may be, exceptionally, outweighed when applying the relevant factors as set out in Moss v Information Commissioner [2020] EWCA Civ 5802 . The direction is justified on an interim protective basis to reserve the position of the Appellant until the appeal is finally decided .”

63. The Respondent referred us to the Employment Appeal Tribunal case of XY v AB [2025] EAT 66 , which considers the principles of anonymisation under the Employment Tribunal rules of procedure. This provides a helpful reminder of the need to consider rights under the European Convention on Human Rights – Articles 10 (freedom of expression), 6 (right to a fair trial), and 8 (right to respect for private and family life) – in addition to the common law principle of open justice. We have also considered the guidance of the Upper Tribunal in Cokaj (anonymity orders, jurisdiction and ambit) [2021] UKUT 202 (IAC) .

64. The Applicant rightly points out that no circumstances have changed since the original anonymity order was made. The reason for seeking anonymity is related to circumstances involving her children. A publicly available local authority report contains some very sensitive information. Although that report is anonymised, publication of the family’s name in these proceedings could cause a “jigsaw effect” and allow identification of those involved in the local authority report.

65. The starting point is the principle of open justice, ensuring that justice is seen to be done. Anonymising the name of a party to tribunal proceedings is a significant interference with this principle. An anonymity order also interferes with the Article 10 right of freedom of expression, including the right of the press to report on court and tribunal decisions. These rights must be balanced against other rights that would favour anonymity.

66. The Tribunal finds that the Article 8 privacy rights of the Applicant’s children are particularly strong in this case. One of the panel members in this hearing was also a member of the original Tribunal panel when the Substituted Decision Notice was issued in the first Tribunal decision, and so is fully aware of the background to the original request for anonymity. This is not simply a case where a child would be caused embarrassment by being identified through these proceedings. We agree with Registrar Arnell that there is a risk of potential harm, and in the circumstances we find that this harm could be significant. It is particularly important to protect a minor from risks of harm through breach of privacy rights. In all the circumstances of this case, we find that this outweighs both the principle of open justice and the right to freedom of expression.

67. We also do not consider that a time-limited order would provide adequate protection, and so make a permanent anonymity order. Signed Judge Hazel Oliver Date: 5 November 2025