Y, V & B (Fact-Finding: Perpetrator), Re

In care proceedings involving serious non-accidental injuries, the attributability condition in section 31(2) of the Children Act 1989 can in some circumstances be satisfied without identifying the individual who inflicted the harm. Nevertheless, where the evidence permits, the judge should identify either a named perpetrator on the balance of probabilities or a properly constituted pool of possible perpetrators. The pool exercise requires a list of persons with an opportunity to cause the injury, consideration of whether one is proved to have caused it, and only then assessment of a real possibility for each remaining person. There can be no pool of one or an open-ended hypothetical pool. Findings must give the welfare court and professionals a clear factual basis for assessing future risk. A material alternative finding may require further evidence or an adjournment.

These care proceedings concerned three children, including a nine-month-old girl who suffered serious fractures and brain injuries. After a five-day fact-finding hearing, HH Judge Reardon found that the injuries had been inflicted deliberately or through reckless use of force, but did not find that the mother caused them or identify a list or pool of possible perpetrators. The judge found that the mother knew how the injuries had been caused and had not told the truth, and held that the threshold under section 31(2) of the Children Act 1989 was met. The children’s guardian appealed, supported by the local authority. The central issues were whether the findings were legally sufficient and fair, and whether the Court of Appeal could substitute a perpetrator finding or should remit the case.

1. Disposition. The appeal was allowed on the first part of ground one. The judge’s failure to make a finding identifying either a perpetrator or a pool was wrong in law. The Court of Appeal declined to substitute a finding that the mother was the perpetrator, having heard no evidence itself, and remitted the matter for rehearing before another judge, initially before MacDonald J for allocation and case management.
2. Attributability and identification. The court confirmed that identification is not invariably necessary for the attributability condition in section 31(2) of the Children Act 1989. It is, however, ordinarily important where the evidence permits, particularly in serious non-accidental injury cases. The reasons include identifying future risks, devising protective measures, enabling professional work with the family and assisting the child in understanding what happened. The court endorsed the disciplined approach in Re B (Children; Uncertain Perpetrator) [2019] EWCA Civ 575: identify the persons with opportunity; ask whether one is proved to be the perpetrator on the balance of probabilities; and only if not, ask whether there is a real possibility that each person was involved. There is no pool of one or open-ended hypothetical pool.
3. Application. The findings that the injuries were inflicted, that the mother knew how they were caused and that she had lied did not provide a sufficiently clear basis for welfare decision-making. Knowledge and dishonesty present a different risk from direct or possible perpetration. The findings left professionals unable to know the factual basis for assessing future harm and did not explain the threshold position concerning the older children. Although the findings might have been sufficient to cross the threshold, they were insufficient to equip the court to determine the children’s future welfare.
4. Fairness. A judge may make findings not sought by a local authority where they are securely founded in the evidence and the fact-finding process remains fair. If the evidence suggests a material alternative finding, the court must address it and may need to extend or adjourn the hearing. Fairness is owed to every party, including the local authority and the children. The late disclosure and the unsupported possibility of an unnamed third person made a rehearing necessary.

1. East London Family Court: HH Judge Reardon conducted a fact-finding hearing in care proceedings, found that the injuries were inflicted and that the mother knew how they were caused, and held the threshold under section 31(2) of the Children Act 1989 satisfied without identifying a perpetrator or pool.
2. Court of Appeal (Civil Division): The appeal was allowed on the first part of ground one. The matter was remitted to another judge for rehearing.