R (A Child)

A person may be included in a pool of possible perpetrators only where the evidence positively establishes a real possibility that they caused the injury. Pooling is not a conventional finding of fact, but it does not reverse the burden of proof. Opportunity alone, supported by irrelevant or insubstantial matters, cannot justify such a serious conclusion.

An appellate court should respect a trial judge’s command of a complex case and read the judgment as a whole. It must nevertheless set aside a pool finding that lacks adequate reasons or fails to weigh material competing evidence. A real prospect of success for permission-to-appeal purposes is realistic rather than fanciful; it need not be probable.

In care proceedings concerning five children, a fact-finding hearing considered injuries to LR, who was 11 weeks old when bruising and rib fractures were discovered. LR had been placed with a paternal aunt under an interim care order. The judge could not identify the perpetrator but found that the mother, father and paternal grandmother were within the pool of possible perpetrators.

The grandmother appealed only against her inclusion in that pool. She did not challenge findings that she had facilitated unauthorised parental contact, failed to protect LR, and lied about that contact. The issue was whether the evidence justified the separate and serious conclusion that she might have inflicted LR’s injuries.

1. Appeal allowed. Peter Jackson LJ, with whom Baker LJ agreed, varied the order to remove the grandmother from the identified pool of possible perpetrators. The remaining order, including the findings of failure to protect, remained in force.

2. A pool finding is not a conventional finding of fact. However, it must be positively proved and cannot result from a reversal of the burden of proof. The court applied the approach in Re B (Children: Uncertain Perpetrators) [2019] EWCA Civ 575.

3. The appellate court owed proper deference to the trial judge’s assessment of a lengthy and complex case. It should take a broad view of the evidence and avoid undue focus on isolated wording. Nonetheless, the conclusion that a person may have injured a child must be independently sustainable on adequate reasons.

4. The five matters relied on in clarification did not significantly support the possibility that the grandmother had caused the injuries. They included speculative inferences from depression and anxiety, the care of two young children, and an isolated loss of temper towards an adult son during his disruptive behaviour. The judge also gave no real weight to her findings about the parents’ character and their earlier abuse of LM. The local authority’s alternative justification relied too heavily on the grandmother’s lack of credibility in a way the judge had not adopted, and without the necessary safeguards.

5. On permission to appeal, the court confirmed that under CPR r.52.6(1) a real prospect of success is realistic rather than fanciful. It does not require success to be probable or more likely than not.

• Court of Appeal (Civil Division): Allowed the grandmother’s appeal and varied the fact-finding order by removing her from the pool of possible perpetrators.
• High Court, sitting at Leeds Combined Court Centre: On 25 February 2019, Her Honour Judge Anderson, sitting as a deputy judge of the High Court, made fact-finding conclusions that included the grandmother in the pool of possible perpetrators.