T (A Child)

In care proceedings, the balance of probabilities does not require the court to identify a single perpetrator where the evidence leaves it genuinely uncertain whether one parent, the other, or both caused non-accidental injuries. The proper conclusion may be that each remains within a pool of possible perpetrators. At the welfare stage, the court may assess the risks posed by each possible perpetrator and may take account of a fact-finding judge’s view that one is more likely than another, even though that view falls short of a finding on the balance of probabilities. A parent may also be found to have failed to protect the child. Appellate interference with such findings requires a plainly wrong decision.

An infant suffered multiple non-accidental injuries, including skull and rib fractures, haemorrhages and bruising. In care proceedings, His Honour Judge O’Dwyer found the father solely responsible for two lesser injuries, found that the mother had failed to protect the child, and held that both parents remained within the pool of possible perpetrators of the more serious injuries.

The mother sought permission to appeal, arguing that the judge should have found the father solely responsible and positively excluded her. She challenged the assessment of the evidence, the treatment of earlier incidents, and the findings concerning her health and credibility. The central issues were whether the judge had been plainly wrong and whether an uncertain-perpetrator conclusion was legally permissible.

Permission to appeal was granted, but the appeal was dismissed. The findings of His Honour Judge O’Dwyer were upheld.

1. The Court of Appeal should accord substantial latitude to a first-instance judge who heard and saw the witnesses. It should interfere with findings of fact and inference only where the decision was plainly wrong. The approach reflected that identified by Lord Hoffmann in Piglowska v Piglowski [1999] 2 FLR 763.
2. The applicable standard in care proceedings was the simple balance of probabilities. However, as explained in NH v County Council and others [2009] EWCA Civ 472, that standard did not compel a judge to identify an individual perpetrator where the judge remained genuinely uncertain whether one parent or the other caused the injuries. The court could properly conclude that one or both parents caused them and that neither could be excluded.
3. The public interest in identifying a perpetrator, recognised in Re K [2004] EWCA Civ 1181, applied where identification was possible. It did not justify forcing an attribution where the evidence did not permit one. The earlier decision in North Yorkshire County Council v SA [2003] EWCA Civ 839 was distinguishable because it concerned different injuries and mechanisms.
4. At the welfare or disposal stage, the court could proceed on the basis that each possible perpetrator remained a possible source of risk. The preliminary judge could express a view that one possible perpetrator was more likely than another to assist later risk assessment, without that view amounting to a finding that the person had caused the injuries on the balance of probabilities. This approach was supported by the speech of Lord Nicholls in Re O and N (Minors); Re B (Minors) [2003] UKHL 18.
5. The judge was entitled to find that the mother had failed to protect the child, even assuming that the father had been the sole perpetrator, given the parents’ close proximity and communication and her role as primary carer. The expert evidence did not require definitive links between earlier episodes and particular injuries, and the father’s admission concerning the rib injuries did not require a positive finding of causation.
6. Lord Justice Wilson agreed, adding that it would be rare for a judge to be unable to identify a perpetrator on the balance of probabilities while still being able to express a relative likelihood within the pool. Lord Justice Rimer agreed with both judgments.

1. Court of Appeal (Civil Division): Permission to appeal was granted, but the appeal was dismissed on 20 November 2009. The fact-finding conclusions and the mother’s inclusion in the pool of possible perpetrators were upheld.
2. Principal Registry of the Family Division: His Honour Judge O’Dwyer made findings in August 2009 that the father was solely responsible for two injuries, that the mother had failed to protect the child, and that both parents remained possible perpetrators of the more serious injuries.