B (Children : Uncertain Perpetrator) (Rev 1)

A possible-perpetrator pool is a narrow exception to ordinary fact-finding. It may assist with the attributable-condition threshold only where significant harm from ill-treatment is proved and the remaining question is which of several persons caused it.

The local authority must prove a real possibility that each proposed person was responsible. The court must not begin by asking whether that person can be excluded. It should identify the possible perpetrators on the balance of probabilities where it can, and otherwise assess each identified person against the real-possibility test. A pool of one is impermissible.

Courts must obtain and compare relevant evidence about all identified possible perpetrators, hear those accused where appropriate, and carry a possible-perpetrator conclusion into welfare proceedings with proper regard to its limited and unproven character.

In care proceedings concerning four children, three girls tested positive for gonorrhoea. Expert evidence supported sexual transmission for at least one child, but the available evidence did not identify how or by whom the infection was transmitted. The father had tested negative and denied abuse. Other adults living in accommodation used by the family had not been investigated or heard.

HHJ Meston QC found that the father could not be excluded and was within a pool of possible perpetrators together with unknown males and two young men living in the home. The father appealed, supported by the mother. The local authority and children’s guardian ultimately accepted that the conclusion could not stand.

The central issue was the lawful approach to including a person in a possible-perpetrator pool where the identity and extent of the potential pool remained uncertain.

1. Appeal allowed and matter remitted for rehearing. The judge’s finding that the father was a possible perpetrator could not stand. A case-management hearing was to take place before Theis J, with all substantive options remaining open.

2. The court held that the perpetrator-pool concept is a limited means of satisfying the attributable condition in section 31(2) of the Children Act 1989. It applies only after significant harm caused by ill-treatment has been established and where the unresolved issue is which of a number of persons caused it. It is not an ordinary finding of fact. A person in the pool is a possible, not a proven, perpetrator, and the welfare court must assess the strength of that possibility while remembering that responsibility has not been proved.

3. The local authority bears the burden of showing a real possibility that each proposed person caused the harm. The court must not start from presumed inclusion and ask whether the person can be excluded. It should first identify those with an opportunity to cause the injury, seek without strain to identify the actual perpetrator on the balance of probabilities, and only then apply the real-possibility test to each listed person. There is no pool of one.

4. The judge had reversed that approach by treating the father as included unless he could show that there was no real possibility of responsibility. The conclusion rested mainly on opportunity and the absence of another explanation. It did not demonstrate a balanced assessment of the father’s evidence, the negative tests, the absence of disclosures or other signs of abuse, and the absence of adverse credibility findings.

5. The investigation was materially incomplete. Other identifiable adults had not been investigated or given an opportunity to respond, yet two were placed in the pool. This was presumptively unfair in Article 6 terms and risked leaving the father as a pool of one by default. The unexplained treatment of the possible routes of transmission and the open-ended inclusion of unknown males created further defects.

• Court of Appeal (Civil Division): Allowed the father’s appeal, set aside the possible-perpetrator finding, and remitted the matter for rehearing: [2019] EWCA Civ 575.
• Central Family Court: HHJ Meston QC held that the father was within a pool of possible perpetrators in care proceedings, but made no finding that he had caused the infection.