RE A (CHILDREN) (POOL OF PERPETRATORS)

In uncertain-perpetrator care proceedings, the court must first identify those with an opportunity to inflict the injury. It must then consider each person separately and decide, on the simple balance of probabilities, whether the actual perpetrator can be identified. Only if identification is impossible may the court ask whether each person presents a real possibility of being the perpetrator.

Judges should no longer direct themselves against “straining” to identify the perpetrator. That expression is an unnecessary and potentially misleading gloss on the standard of proof. Evidence that a person inflicted a later injury may be relevant to whether that person inflicted earlier injuries and must receive adequate consideration.

A baby sustained fractures, brain injuries and a later life-threatening respiratory obstruction while in her parents’ care. The Family Court found that the mother deliberately caused the final injury, but placed both parents in the pool of possible perpetrators for the earlier injuries. It also found that the father had colluded with the mother and, if not a perpetrator, had failed to protect the child.

The father appealed from orders made by HHJ Moradifar, sitting as a High Court judge. The central issues were whether the judge had applied the correct sequential approach to uncertain perpetration and whether the findings concerning collusion, failure to protect and the father’s response to the mother’s risk could stand.

1. By a majority, the appeal was allowed on all grounds. King LJ, with whom Birss LJ agreed, held that the finding placing the father in the pool of possible perpetrators could not stand. The issues concerning the earlier injuries and the knowledge and conduct of any non-perpetrator were remitted to a different judge.

2. The governing approach requires three sequential stages. The court must identify those who had the opportunity to inflict the injury. It must then consider each individual separately and decide whether the actual perpetrator can be identified on the balance of probabilities. Only if identification is impossible may it ask whether there is a real possibility that each person inflicted the injury: Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575 applied.

3. The standard is the simple balance of probabilities. The direction that a judge should not “strain” to identify a perpetrator had originally corrected a misunderstanding that identification was compulsory. It had become an unnecessary and potentially unhelpful gloss. In future, judges should ask simply whether all the evidence permits identification on the balance of probabilities. If it does not, they should proceed to the real-possibility inquiry.

4. The trial judge approached the matter from the wrong direction. He asked whether the father’s perpetration was so improbable that the father should be excluded, rather than first considering whether the mother could be identified as the perpetrator. The finding that the mother inflicted the later catastrophic injury was direct and relevant evidence capable of distinguishing the parents. The balance of care, the mother’s relationship with the child, the nature of the injuries, the possibility of a common pattern of lost control, and the father’s protective actions also required evaluation.

5. The collusion and failure-to-protect findings were also set aside. Although those findings might otherwise have survived, the rehearing would necessarily examine evidence concerning the knowledge and actions of any non-perpetrator. The rehearing tribunal therefore had to remain free to determine those matters afresh.

6. Elisabeth Laing LJ dissented. She considered that, read as a whole, the trial judgment had followed the required stages in substance. The judge had been entitled to find no sufficient evidence identifying the mother as the perpetrator of the earlier injuries and to conclude that either parent remained a real possibility.

1. Court of Appeal (Civil Division): By a majority, allowed the father’s appeal, set aside the relevant findings and remitted the issues of perpetration and the knowledge and actions of any non-perpetrator to a different judge.
2. Family Court at Reading: HHJ Moradifar, sitting as a High Court judge, found the mother responsible for the final life-threatening injury, placed both parents in the pool for the earlier injuries, and made findings of collusion and failure to protect.