T (A Child), Re

In family fact-finding proceedings, a court may choose between competing periods of opportunity without identifying the individual perpetrator. A finding that evidence is insufficient to inculpate one group does not require the court to treat the competing possibilities as equal. The court must analyse each period separately and apply the elevated standard of proof before making a positive finding of responsibility. A positive finding may properly be made where the evidence relating to one period is compelling overall, even though evidence against persons connected with another period is unreliable or troubling.

The mother sought permission to appeal an order made by His Honour Judge Altman in the Watford County Court on 7 May 2002 in care proceedings concerning injuries suffered by a child. The judge found that the injuries were inflicted during a five-hour period when the child was in the mother’s care, rather than during an earlier period when the child was in the care of the father’s family. He made no finding as to the person who caused the injuries.

The proposed appeal argued that the judge had applied the wrong standard by exculpating the paternal family despite criticisms of their evidence. The central issue was whether the judge was entitled to distinguish between the evidence necessary to exclude one period of opportunity and the evidence necessary to identify another period as the time when the injuries were inflicted.

1. Application refused. The court unanimously refused permission to appeal. Lord Justice Thorpe gave the substantive judgment, with Lord Justice Potter and Lord Justice Kay agreeing.
2. The judge had made the essential choice between two periods of opportunity. He did not positively exculpate the paternal family or identify the perpetrator. He found that the adverse evidence relating to them did not lead to the conclusion that the injuries were caused while the child was in their care.
3. The judge then separately examined the evidence relating to the mother’s five-hour period of opportunity. After considering evidence directly connected with that period, circumstantial matters and wider contextual factors, he concluded that the evidence was compelling and that the injuries were caused during that period.
4. The criticisms of the paternal family did not invalidate the positive finding against the mother. The judge expressly reconsidered those criticisms and concluded that they could not counterbalance the extensive evidence supporting his conclusion. This was a legitimate analytical exercise satisfying the requirements identified in Re H and R (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563.
5. The elevated standard of proof applies before the court makes a positive finding of abuse or identifies an adult perpetrator. It does not prevent the court from reaching a conclusion on the period during which injuries were inflicted while leaving the identity of the perpetrator unresolved.

Order: application refused. Detailed assessment of the mother’s publicly funded costs.

• Court of Appeal (Civil Division): Permission to appeal from the Watford County Court was refused. The court upheld the analytical approach taken by His Honour Judge Altman.
• Watford County Court: On 7 May 2002, His Honour Judge Altman found that the injuries were inflicted between 10.00 am and 3.00 pm on 2 September 2001 while the child was in the mother’s care, without finding who caused them.