S-B (Children)

In uncertain-perpetrator care cases, the court is not required to choose between two possible perpetrators merely because one is marginally more likely than the other. The balance of probabilities applies to proof of the abusive event, but a finding that the event occurred does not necessarily require an individual finding identifying the perpetrator. At the welfare stage, the court may proceed on the basis that each possible perpetrator remains a possible source of risk. Views expressed at the fact-finding stage about relative likelihood may be considered, but judges should exercise caution before adding percentage assessments to a finding that neither possible perpetrator can be excluded.

The appeal arose from public law care proceedings concerning two children. At an earlier fact-finding hearing, the judge found that the older child had suffered non-accidental injuries but could not determine whether the mother or father had caused them. At the parties’ request, she later added an adjunct expressing a view that the father was 60 per cent likely and the mother 40 per cent likely to have been responsible.

After the House of Lords decided Re B, the mother argued that the binary balance-of-probabilities approach required a finding that the father was the perpetrator and that she was exculpated. The judge rejected that submission but granted permission to appeal. The central issue was whether Re B had displaced the approach in O and N to uncertain-perpetrator cases.

1. Appeal dismissed. Re B concerned the standard of proof for establishing the occurrence of an abusive event or the facts necessary to cross the statutory threshold. It did not specifically address which of two carers was responsible where both had the opportunity to inflict the injury.
2. The balance of probabilities requires the court to decide whether the alleged event occurred. It does not require a binary finding identifying an individual perpetrator whenever one possible perpetrator is assessed as slightly more likely than another. The court rejected the submission that a 51/49 assessment necessarily exculpates the less likely parent.
3. O and N remained applicable. Where significant harm or its likelihood has been proved but the individual perpetrator remains uncertain, the welfare stage may proceed on the footing that each possible perpetrator is a possible source of risk. The court must consider the facts found at the preliminary hearing and may take account of views expressed there about relative likelihood.
4. The earlier approach in H and Others had been displaced by Re B on the standard of proof, but Re B did not impliedly displace O and N because it had not addressed the different questions considered there. NH v A County Council & Ors was consistent with that conclusion.
5. Although the trial judge acted responsibly in providing the requested adjunct, future judges should be cautious about amplifying a judgment which finds that neither of two possible perpetrators can be exculpated. Mr Justice Bodey added that the percentage assessment was an impression, not a finding of exculpation.

Lord Justice Longmore and Mr Justice Bodey agreed with Lord Justice Thorpe. The order was: appeal dismissed.

• Court of Appeal (Civil Division): appeal from the Manchester County Court dismissed. The Court held that the trial judge’s inability to identify the perpetrator was not altered by Re B.
• Manchester County Court: HHJ Lindsey Kushner QC found that the child had suffered non-accidental injuries but that neither parent could be excluded as the perpetrator. She later rejected the mother’s submission based on Re B and granted permission to appeal.