S (A Child) & Ors v Nottingham City Council & Ors

In care proceedings involving unexplained non-accidental injury, the court must distinguish identifying a perpetrator from the wider welfare enquiry. A care order does not require proof of the perpetrator’s identity, and the threshold may be satisfied where responsibility is only a possibility. Where a pool of possible perpetrators is investigated, the court must analyse the evidence and give sufficient reasons for including or excluding each relevant adult. Perpetration is part of the welfare enquiry, not a single threshold issue. A fact-finding hearing must therefore be followed by a properly reasoned welfare determination, including consideration of the statutory welfare factors and the protective arrangements required where the perpetrator remains unknown.

Public law proceedings concerning seven children arose after the youngest child, B, sustained serious non-accidental head injuries and extensive bruising. The issue was whether any of the mother, the child’s father, or the mother’s former partner was responsible, and what protective order, if any, was required.

The county court found that the injuries were non-accidental but identified no perpetrator. It exculpated the mother and father and excluded the former partner from the pool of possible perpetrators. The proceedings were then withdrawn and the interim orders discharged. The Children’s Guardian appealed, principally challenging the pool analysis, the treatment of the bruising and timing evidence, and the absence of a welfare determination.

1. Appeal allowed in part. The permission to withdraw the care proceedings was set aside. The proceedings remained extant and were remitted to the same judge for a welfare hearing.
2. The governing structure of a care case involves three questions: whether there is harm or a likelihood of harm; to what that harm is attributable; and what will be best for the child. Proof of a particular perpetrator is not essential. The attributability condition may be satisfied where responsibility is no more than a possibility, and the threshold under section 31(2) of the Children Act 1989 does not import blameworthiness. It is enough to establish that the care given was below the objective standard reasonably expected of a parent, having regard to the child’s needs and characteristics. These principles were applied from In the matter of J (Children) [2013] UKSC 9, In re S-B [2010] 1 AC 678, Lancashire County Council v B [2000] 2 AC 147 and In re O [2004] 1 AC 523 (paras [17]-[20]).
3. Where the court investigates a pool of possible perpetrators, inclusion is not a high threshold. The court must scrutinise the primary and secondary evidence and give reasons for including or excluding each relevant adult. It must not move from failure to prove perpetration directly to exculpation or exclusion without identifying the appropriate test and giving sufficient reasons. The real possibility test was treated as governing the pool analysis, following North Yorkshire County Council v SA [2003] EWCA Civ 839, [2003] 2 FLR 849 and In re S-B [2010] 1 AC 678 (paras [17], [22], [25]-[27]).
4. Perpetration forms part of the welfare enquiry. A fact-finding hearing is not a self-contained threshold exercise. The court must determine whether the child needs protection, whether the risk requires an order and, if so, which available order is appropriate. Splitting fact-finding from welfare determination requires care, having regard to the guidance in Re B (Children) [2008] UKHL 35, [2009] 1 AC 11 (para [28]).
5. The judge’s treatment of the bruising, the mother’s admitted rough handling of another child, the evidence about when the swelling was first seen, and the medical evidence on timing was inadequately reasoned. The judgment also failed to explain the exculpation of the mother and father or the exclusion of the former partner. The welfare question therefore remained unanswered, including whether the children could safely remain with their mother under protective arrangements (paras [23]-[31]).

Gloster LJ and McCombe LJ agreed. The welfare hearing was to address the factors in section 1(3) of the Children Act 1989, including whether the risk of further harm required an order and what protective arrangements were appropriate.

• Court of Appeal (Civil Division): Appeal from the Nottingham County Court allowed in part. The permission to withdraw the proceedings was set aside, the proceedings remained extant, and a welfare hearing was directed before the same judge.
• Nottingham County Court: After a fact-finding hearing, the judge found that B’s injuries were non-accidental but identified no perpetrator, exculpated the mother and father, excluded the mother’s former partner from the pool of possible perpetrators, discharged the interim orders and permitted withdrawal of the applications.