B (A Child: Uncertain Perpetrator), Re

In proceedings concerning inflicted injury, the court must first seek to identify the perpetrator on the balance of probabilities. A pool finding is a residual outcome where reliable evidence cannot resolve responsibility or the evidence is equally balanced.

Where there are only two possible perpetrators, identification of the more likely perpetrator establishes responsibility. The court must compare the whole evidential picture for each person. Earlier injuries, propensity, credibility, opportunity and any forensic imbalance may all be relevant, although propensity alone cannot determine perpetration.

A court errs if it treats potential perpetrators as being in parity without evaluating compelling wider evidence, or if unequal opportunities to test the evidence distort its assessment.

The child sustained multiple serious fractures and bruises while living with his mother and her former partner, the intervenor. The Family Court found that the intervenor had inflicted eight serious injuries. It made further findings of failures by both adults to protect the child and obtain medical care.

In a reserved judgment reported at [2026] EWFC 103(B), the judge could not identify who had inflicted three later areas of bruising. He made a pool finding that there was a real possibility that either the mother or the intervenor was responsible.

The mother appealed only that finding. The central issue was whether the judge had properly compared the likelihood of each adult having inflicted the bruising in light of the whole evidential picture and the intervenor’s incomplete evidence.

1. Appeal allowed. The pool finding was set aside. The only proper conclusion was that the intervenor had, on the balance of probabilities, inflicted the three disputed areas of bruising. That finding was substituted and the matter was remitted to the Family Court for welfare decisions.
2. The first and most important task where an injury is found to be inflicted is to identify its perpetrator on the balance of probabilities. A pool of perpetrators is a residual outcome, available only where the court cannot make an ordinary finding of fact.
3. Where there are only two possible perpetrators, the inquiry is binary. If one is more likely than the other to have caused the injury, that person is responsible on the balance of probabilities. The position differs where there are more than two possible perpetrators, because identifying the likeliest person may not establish the necessary probability.
4. The judge had correctly directed himself on the law but erred in applying it to the bruising. He concentrated on inconsistencies in the mother’s accounts during the relevant week without explaining why they supported an inference that she had injured the child. He did not compare those matters with the compelling wider evidence: the intervenor’s multiple assaults, dishonesty, cruelty, contemporaneous squeezing injuries and opportunity, contrasted with the absence of evidence that the mother had ever inflicted injury.
5. Evidence of propensity could not alone determine perpetration. It was nevertheless material evidence and could not be disregarded by treating the adults as equally likely sources of risk. The judge also failed to take sufficient account of the forensic imbalance created when the intervenor withdrew from cross-examination. Consistently with the guidance in Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575, particular caution was required to ensure that the imbalance did not distort the evaluation.

• Court of Appeal (Civil Division) — allowed the mother’s appeal, set aside the pool finding, substituted a finding that the intervenor inflicted the disputed bruising, and remitted the matter for welfare decisions.
• Family Court at Swindon — HHJ Richard Case made a pool finding that either the mother or the intervenor might have inflicted three areas of bruising: [2026] EWFC 103(B).