In re O and N (minors); In re B (minors)

The appeals concern care proceedings under the Children Act 1989 in so-called "uncertain perpetrator" cases where a child has suffered proved non-accidental injury but the court cannot identify which carer inflicted it. The House held that at the welfare (disposal) stage the court may take into account, as part of the circumstances relevant to the child's best interests, the proved facts found at the preliminary (fact-finding) hearing and the possibility that any of the carers who remain possible perpetrators did in fact inflict the harm. Section 31(2) (threshold) requires proved facts to establish significant harm, but once threshold is crossed the welfare inquiry under section 1 permits consideration of all relevant circumstances including the possibility that an individual carer was the perpetrator. The court should not proceed at the welfare stage on an artificial basis that a parent has been found not to be the perpetrator where the fact-finding left that possibility open; unproved allegations, however, should generally be treated as no more than allegations at the welfare stage.

This House dealt with two appeals arising from split hearings in care proceedings under the Children Act 1989. In both matters the local authorities had established at preliminary hearings that the threshold conditions in section 31(2) were satisfied: the children had suffered significant non-accidental injuries. In each case the fact-finding judge could not always identify which parent had perpetrated some or all of the injuries.

Nature of the proceedings: local authorities sought to proceed to disposal hearings and to protect the children, including by consideration of care orders or rehabilitation to parents. The immediate procedural issue was the legal footing on which disposal hearings should proceed where the identity of the perpetrator remained uncertain.

Issues framed by the House: (i) the relationship between the threshold conditions in section 31(2) (and the requirement for proof) and the welfare inquiry under section 1(3)(e); (ii) whether a disposal hearing must proceed on the basis that a parent is to be treated as not having caused the harm where the preliminary hearing did not prove that parent to be the perpetrator; and (iii) how unproven allegations of harm should be treated at the welfare stage.

Reasoning and holdings: the House reaffirmed that section 31(2)(a) requires proved facts to establish significant harm or a likelihood of significant harm for threshold purposes, following the approach in Re H (minors). However, once the threshold is crossed the welfare stage under section 1 is a broad inquiry into the child’s best interests and the judge may take into account all relevant circumstances, including facts found at the preliminary hearing and the continuing possibility that a particular carer was a perpetrator. It would be wrong in an "uncertain perpetrator" case for a disposal hearing to proceed on the basis that a parent has been found not to be the perpetrator where the preliminary findings leave the possibility open; instead each possible perpetrator may be regarded as such for welfare assessment. By contrast, where allegations were expressly unproven at the threshold for reasons other than uncertain perpetrator issues, the welfare stage should usually proceed on the footing that those allegations remain unproven and are "no more than that".

Disposition: the House allowed the appeal in respect of children L and C and set aside parts of the Court of Appeal's order in that case; the House dismissed the appeal in respect of child Y, leaving in place findings that the mother had failed to protect but that the partner was the more probable perpetrator while the mother remained a possible perpetrator.

This was an appellate decision. The House held that in "uncertain perpetrator" cases the welfare (disposal) hearing may take into account the proved facts found at the preliminary hearing and the continued possibility that any of the carers who remain possible perpetrators inflicted the harm. The court must not proceed at the welfare stage on an artificial premise that a parent has been found not to be the perpetrator where the fact-finding left that possibility open. The House allowed the appeal concerning children L and C (setting aside parts of the Court of Appeal order) and dismissed the appeal concerning child Y for the reasons given.

Appeals from the Court of Appeal: Re B (Non-accidental injury: compelling medical evidence) [2002] EWCA Civ 902 and Re O and N (Care: preliminary hearing) [2002] EWCA Civ 1271. Preliminary fact-finding hearings had been conducted in the family court (Coleridge J; HHJ Downey), followed by the Court of Appeal determinations which were then appealed to the House of Lords.