A, B & C (Fact-Finding: Gonorrhoea)

In care proceedings, evidence about whether harm was caused by ill-treatment and evidence about the possible perpetrator may need to be assessed together. The court must survey the whole evidential canvas rather than treat medical and other evidence in separate compartments.

An uncertain-perpetrator finding may include a real possibility that persons acted alone or together. Procedural fairness requires every materially different allegation to be clearly raised, supported by identified evidence and fairly put before findings are made. A denial of abuse generally does not provide sufficient notice of a substantially different allegation of joint abuse.

In care proceedings concerning three children, the Family Court found that the eldest child had contracted gonorrhoea through sexual abuse. It ultimately found a real possibility that the infection had been caused either by the youngest child's father acting alone or by him and the mother acting together.

The mother and the father appealed. They challenged the assessment of the medical and wider evidence and argued that joint sexual abuse had never formed part of the local authority's case or been raised during the hearing. The central issues were whether the evidence had been assessed as a whole and whether the finding of possible joint abuse had been reached through a fair process.

1. Appeal allowed. The judge had wrongly treated the presence of gonorrhoea as effectively determinative of sexual abuse without sufficiently weighing the substantial evidence pointing the other way. Although this did not reverse the burden of proof, it failed to provide the required overview of the totality of the evidence.
2. Under Section 31(2) of the Children Act 1989, the local authority had to prove both significant harm and that the harm was attributable to unreasonable parental care. Identification of a particular perpetrator was not essential to satisfying the threshold. The court should nevertheless endeavour to identify the perpetrator where possible.
3. Where harm may or may not have resulted from ill-treatment, the question of causation and the identity and character of possible perpetrators may need to be considered simultaneously. Evidence cannot be evaluated in separate compartments. In this case, the possible perpetrators formed part of the evidence relevant to whether sexual abuse had occurred at all.
4. An uncertain-perpetrator finding may permissibly recognise a real possibility that one or more persons acted either alone or together. Such a finding requires a proper inquiry and analysis. It identifies a possible rather than a proven perpetrator and may have profound consequences at the welfare stage, making procedural rigour essential.
5. The possible joint abuse by the mother and the father had not appeared in the local authority's pleaded findings, evidence or closing submissions. It was first identified after judgment. A general allegation against the mother and/or father, and their denials of any abuse, did not give fair notice of the materially different and more serious allegation that they acted together.
6. A court may depart from a local authority's proposed findings, but any different finding must be securely founded in the evidence and must preserve the fairness of the process. An adverse finding outside the known parameters of the case must be clearly raised, advanced and articulated. The affected persons must know the allegation and supporting evidence and have a reasonable opportunity to answer it.
7. The finding of possible joint abuse was not securely founded and the process was unfair. All findings sought by the local authority were remitted for rehearing before a different judge. The Court of Appeal expressed no view on the correct outcome of that rehearing.

1. Court of Appeal (Civil Division): The appeals were allowed and the fact-finding issues were remitted in full for rehearing before a different judge: [2023] EWCA Civ 437.
2. Family Court at York: HHJ Mitchell found that the eldest child had been sexually harmed and that there was a real possibility she had been infected by the youngest child's father alone or by him and the mother acting together. No neutral citation was stated.