H (A Child), Re

In child-abuse fact-finding proceedings, a person may remain in the pool of possible perpetrators where there is a real possibility that he or she was a potential perpetrator. The assessment may take account of opportunity and other relevant evidence. The person cannot, however, be treated as a possible perpetrator of abuse which falls outside that opportunity. Possible responsibility by commission and possible responsibility by omission are distinct issues. A court must not add a possible failure to protect merely because there is a real possibility of direct perpetration; the omission must have its own evidential foundation.

A county court conducted a fact-finding hearing concerning a child who had suffered physical and sexual abuse. The judge accepted the principal medical evidence and included the father in the pool of possible perpetrators, while also referring to a possible failure to protect the child.

The father appealed. During the appeal, the local authority disclosed information suggesting that a key witness had suppressed a material disclosure and had a close relationship with the mother. The Court of Appeal therefore concluded that the fact-finding exercise had to be undertaken afresh. The central issues were whether the father had properly been included in the pool and whether he could additionally be treated as possibly responsible through failure to protect.

1. Appeal allowed in part. The new information required the original fact-finding exercise to be abandoned and the matter to be retried.
2. A real possibility that a person was a potential perpetrator may be established by relatively little evidence in a difficult case, provided there was abundant opportunity and relevant factors supporting the inference. The father could only be considered a potential perpetrator in relation to abuse within the sphere of opportunity. He could not have caused the large new bruise or the physical abuse occurring between 9 June and 29 July, and those matters could not support his inclusion as a possible perpetrator of those acts. They could nevertheless be considered when assessing other abuse which could not readily be excluded.
3. The judge erred in treating the father as additionally or alternatively responsible for failure to protect. Direct wrongdoing by commission and wrongdoing by omission are distinct categories. The possibility of direct perpetration does not itself provide an evidential basis for a possible failure to protect.
4. The retrial was to determine the issues afresh on fuller and potentially different evidence. The judge was not otherwise circumscribed, and was to reconsider the pool of perpetrators, including the significance of injuries which the father could not have caused and the submission that one perpetrator was more likely than two.
5. The Guardian’s costs were to be subject to detailed assessment. The appeal disbursements were to be shared between the appellant, the local authority and the Guardian.

1. Court of Appeal (Civil Division): [2005] EWCA Civ 1059. Appeal from the fact-finding judgment of Sheffield County Court, presided over by Her Honour Judge Carr QC. The Court of Appeal allowed the appeal in part and remitted the matter for retrial.