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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Y, V & B (Fact-Finding: Perpetrator) [2024] EWCA Civ 1034 (13 September 2024) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2024/1034.html Cite as: [2024] EWCA Civ 1034 |
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ON APPEAL FROM THE EAST LONDON FAMILY COURT
HH Judge Reardon
ZE23C50238
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE BAKER
and
LADY JUSTICE ELISABETH LAING
____________________
Y, V AND B (FACT-FINDING: PERPETRATOR) |
____________________
Mark Twomey KC and Isabelle Watson (instructed by Local Authority Solicitor) for the First Respondent
Shiva Ancliffe KC and Caroline Croft (instructed by Powell Spencer and Partners) for the Second Respondent
Deborah Seitler and Rabia Mir (instructed by Gary Jacobs and Co) for the Third Respondent
Hearing date: 3 September 2024
____________________
Crown Copyright ©
LORD JUSTICE BAKER:
Legal principles
"A court may only make a care order or supervision order if it is satisfied-
(a) that the child concerned is suffering, or is likely to suffer, significant harm;
and
(b) that the harm, or likelihood of harm, is attributable to-
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or
(ii) the child's being beyond parental control."
"The phrase 'care given to the child' refers primarily to the care given to the child by a parent or parents or other primary carers. That is the norm. The matter stands differently in a case such as the present one, where care is shared and the court is unable to distinguish in a crucial respect between the care given by the parents or primary carers and the care given by other carers. Different considerations from the norm apply in a case of shared caring where the care given by one or other of the carers is proved to have been deficient, with the child suffering harm in consequence, but the court is unable to identify which of the carers provided the deficient care. In such a case, the phrase 'care given to the child' is apt to embrace not merely the care given by the parents or other primary carers; it is apt to embrace the care given by any of the carers."
"I recognise that the effect of this construction is that the attributable condition may be satisfied when there is no more than a possibility that the parents were responsible for inflicting the injuries which the child has undoubtedly suffered. That is a consequence which flows from giving the phrase, in the limited circumstances mentioned above, the wider meaning those circumstances require. I appreciate also that in such circumstances, when the court proceeds to the next stage and considers whether to exercise its discretionary power to make a care order or supervision order, the judge may be faced with a particularly difficult problem. The judge will not know which individual was responsible for inflicting the injuries. The child may suffer harm if left in a situation of risk with his parents. The child may also suffer harm if removed from parental care where, if the truth were known, the parents present no risk. Above all, I recognise that this interpretation of the attributable condition means that parents who may be wholly innocent, and whose care may not have fallen below that of a reasonable parent, will face the possibility of losing their child, with all the pain and distress this involves. That is a possibility, once the threshold conditions are satisfied, although by no means a certainty. It by no means follows that because the threshold conditions are satisfied the court will go on to make a care order. And it goes without saying that when considering how to exercise their discretionary powers in this type of case judges will keep firmly in mind that the parents have not been shown to be responsible for the child's injuries.
I recognise all these difficulties. This is indeed a most unfortunate situation for everyone involved: the child, the parents, the child-minder, the local authority and the court. But, so far as the threshold conditions are concerned, the factor which seems to me to outweigh all others is the prospect that an unidentified, and unidentifiable, carer may inflict further injury on a child he or she has already severely damaged."
"When the facts found at the preliminary hearing leave open the possibility that a parent or other carer was a perpetrator of proved harm, it would not be right for that conclusion to be excluded from consideration at the disposal hearing as one of the matters to be taken into account. The importance to be attached to that possibility, as to every feature of the case, necessarily depends on the circumstances. But to exclude that possibility altogether from the matters the judge may consider would risk distorting the court's assessment of where, having regard to all the circumstances, the best interests of the child lie."
"36. …. The main reason is that it will promote clarity in identifying the future risks to the child and the strategies necessary to protect him from them. For example, a different care plan may be indicated if there is a risk that the parent in question will ill-treat or abuse the child from the plan that may be indicated if there is a risk that she will be vulnerable to relationships with men who may ill-treat or abuse the child.
37. Another important reason is that it will enable the professionals to work with the parent and other members of the family on the basis of the judge's findings."
A further reason was articulated by Wall LJ giving the judgment of the Court of Appeal in Re K (Children) [2004] EWCA Civ 1181 at paragraph 56 (in a passage endorsed by the Supreme Court in Re S-B at paragraph 38):
"…we are also of the view that it is in the public interest that children have the right, as they grow into adulthood, to know the truth about who injured them when they were children, and why. Children who are removed from their parents as a result of non-accidental injuries have in due course to come to terms with the fact that one or both of their parents injured them. This is a heavy burden for any child to bear. In principle, children need to know the truth if the truth can be ascertained."
" …if the judge cannot identify a perpetrator or perpetrators, it is still important to identify the pool of possible perpetrators. Sometimes this will be necessary in order to fulfil the "attributability" criterion. If the harm has been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. Sometimes it will desirable for the same reasons as those given above. It will help to identify the real risks to the child and the steps needed to protect him. It will help the professionals in working with the family. And it will be of value to the child in the long run."
"If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case."
"Drawing matters together, it can be seen that the concept of a pool of perpetrators seeks to strike a fair balance between the rights of the individual, including those of the child, and the importance of child protection. It is a means of satisfying the attributable threshold condition that only arises where the court is satisfied that there has been significant harm arising from (in shorthand) ill-treatment and where the only 'unknown' is which of a number of persons is responsible. So, to state the obvious, the concept of the pool does not arise at all in the normal run of cases where the relevant allegation can be proved to the civil standard against an individual or individuals in the normal way. Nor does it arise where only one person could possibly be responsible. In that event, the allegation is either proved or it is not. There is no room for a finding of fact on the basis of 'real possibility', still less on the basis of suspicion. There is no such thing as a pool of one."
At paragraph 49, he gave guidance which has been followed in subsequent cases:
"The court should first consider whether there is a 'list' of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability … Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list: "Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?" Only if there is should A or B or C be placed into the 'pool'."
"51. It should also be noted that in the leading cases there were two, three or four known individuals from whom any risk to the child must have come. The position of each individual was then investigated and compared. That is as it should be. To assess the likelihood of harm having been caused by A or B or C, one needs as much information as possible about each of them in order to make the decision about which if any of them should be placed in the pool. So, where there is an imbalance of information about some individuals in comparison to others, particular care may need to be taken to ensure that the imbalance does not distort the assessment of the possibilities. The same may be said where the list of individuals has been whittled down to a pool of one named individual alongside others who are not similarly identified. This may be unlikely, but the present case shows that it is not impossible. Here it must be shown that there genuinely is a pool of perpetrators and not just a pool of one by default.
52. Lastly, as part of the court's normal case-management responsibilities it should at the outset of proceedings of this kind ensure (i) that a list of possible perpetrators is created, and (ii) that directions are given for the local authority to gather (either itself or through other agencies) all relevant information about and from those individuals, and (iii) that those against whom allegations are made are given the opportunity to be heard. By these means some of the complications that can arise in these difficult cases may be avoided."
"The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or she cannot do so, then, in accordance with Re B [2019], he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question."
The background to this appeal
(1) A left-sided parietal bone fracture with associated acute soft tissue swelling to the left side of the skull, a small left-sided subdural bleed, a left-sided sub-arachnoid bleed, and a small focus bleed in the left posterior fossa. The skull fracture was less than two weeks old and, on the basis of the swelling, the likely date for the injury was between 22 May and 1 June 2023. The cause of these injuries was a significant impact to the left side of the head.
(2) A cortical cleft, or laceration, into the temporal lobe probably sustained before 19 May 2023 and caused by a significant force. This was described as a significant traumatic brain injury.
(3) Healing fractures to the front and side of the left 5th and 6th ribs which were between three weeks and three months old at the date of the skeletal survey carried out in hospital on 8 June 2023, so therefore probably sustained between 8 March and 18 May. They were probably caused by a compressive force such a squeeze by adult hands.
"if the mother did not cause them [the injuries], she should have known who did".
This was, however, not included in the transcript of the judgment subsequently prepared and approved by the judge.
"alongside the absence of an explanation, and more puzzling, in my judgement, was a lack of curiosity about the injuries to B and very little sense that she had been trying herself to find out how they had been caused."
The judge observed that:
"giving every possible allowance for the cultural and language barriers that I recognise are present in this case, I had the strong sense from the mother's evidence that she was holding back from giving a full and truthful account to the court."
The judge described the father's evidence as "very troubling", in particular his anger directed at the treating clinicians. She observed:
"The father's anger towards professionals did not sit easily with what seemed to me in contrast to be a passivity and a lack of curiosity about the issue of how B had sustained her injuries. He seemed curiously to be less emotionally invested in that issue."
"Although I am deeply troubled about this series of events, and I am sure that neither parent has given a complete and accurate account, this evidence is not sufficiently secure for me to make a finding that B's injuries occurred around this time, still less a finding that either or both parents were involved in causing them."
"The factors do not all point in the same way, but the balance very much falls towards the protective end of the spectrum in this case. That forms a substantial body of evidence which decreases the likelihood that the mother herself was the perpetrator of the injuries."
"72. As to the identity of the perpetrator, I am unable to make a positive finding that the mother herself caused the injuries. Partly that is because I have taken into account all of the surrounding evidence that shows the mother as a gentle and loving parent. I find myself in this position also because I am quite clear that the court has not been given a full and complete account in this case of what happened in B's life over the relevant period.
73. I do make a finding that the mother knows how the injuries were caused and has chosen not to tell the truth. That finding, in my view, is inescapable. To make that finding is not to reverse the burden of proof but to acknowledge that the weight of the evidence leads to a conclusion that it is not realistically possible that these injuries could have been sustained without the mother being aware. The threshold criteria are met on that basis."
"Counsel: | …that touches on a point I wanted to raise, which is that your Honour having found these were inflicted injuries and that the perpetrator could not be identified your Honour has not said, "Pool". |
Judge: | I know, but that is because I was not-- no pool was identified. |
Counsel: | So that is deliberate that? |
Judge: | Yes. |
Counsel: | Yes. |
Judge: | Yes. |
Counsel: | Might we just think about that? |
Judge: | I mean, it only makes sense, does it not, if you have a list, otherwise it is mother or someone else and mother knows. I suppose it is a, it is a pool but without anyone else identified to go in it. I do not think it matters very much in that I do not think, unless you tell me I am wrong, I do not think your concern is about what finding I have made. I suppose what you are wondering is whether I put the father in the pool, but I do not think I can do that. |
Counsel: | Your Honour, I do think that is problematic …." |
"Counsel: | So the legally problematic position is to find an inflicted injury, to say, "I cannot identify a perpetrator", and then not go on to identify a pool. And I think—I suggest that that is problematic and we-- one way or another, and I am not angling for a particular result on behalf of the children, but I think my clarification document or skeleton when it comes will say that is problematic legally because you cannot have, you cannot have a pool of one because that avoids the test for perpetrators higher than the pool test, as your Honour is well aware, and you cannot put-- make someone a perpetrator on the lower test for [the] pool. And you cannot have a pool-- an open-ended pool either. We have to identify the list and then knock off the people in order to keep them in the pool, as is in Re B case in the legal note, which I am struggling to find but was in the legal note that we-- that the local authority filed. Shall I stop there because I may be gabbling late in the week? Your Honour, I apologise. |
Judge: | Okay, that was not quite what I expected you to be saying. If you will forgive me I am less troubled by that. I think I can see my way through that. Where I am more troubled-- where I was more troubled about is the position of the father. I thought about this quite a lot, and I think this has arisen because of the way that the evidence appeared. |
Counsel: | Absolutely. |
Judge: | So---- |
Counsel: | Absolutely. |
Judge: | -- there is a big procedural fairness point here, and I worked my way through it as best I could. |
Counsel: | Yes, indeed. |
Judge: | And---- |
Counsel: | Can I suggest an answer? |
Judge: | On that point? |
Counsel: | Well, if the answer-- if your Honour-- if it is accepted that our base position is correct that you cannot have inflicted without perpetrator or a pool and your Honour wants to look at the pool, then the father's team must be given time. |
Judge: | Well, accept-- do I though? I mean, I have got-- because then I have got to think about whether I reopen this or open up the evidence again, which nobody asked me to do, and I would take quite a lot of persuading to do, I think. What is wrong with a finding that the mother either inflicted it or knows who did? |
Counsel: | Well---- |
Judge: | What is wrong with-- what is problematic about that? |
Counsel: | -- mother inflicted, mother inflicted is what we closed on, so I will obviously say there is nothing wrong with that. Knows that we did without the perpetrator finding means that there is no perpetrator or pool, and this is wrong. |
Judge: | So what-- but again keeping it, keeping it on the reality rather than the---- |
Counsel: | Yes. Thank you, I am trying. |
Judge: | The reality is---- |
Counsel: | And I am sorry. |
Judge: | You see what I am quite clear about is what I actually found, yes, which is that the mother either inflicted or knows who did. So that I am, I am clear about and comfortable with. Why do I need then to say, "And there is a pool of unidentified people"? It just seems to be very artificial. |
Counsel: | So, your Honour, one of the things I am terribly conscious of is that I am not in any way trying to cross-examine the court, but what your Honour has just said is actually a really important clarification for me, that you found that the mother inflicted or knows who did, because my note is that I am unable to identify that the mother was the perpetrator, but know-- but mother does know how caused (sic), and so--- |
Judge: | Yes. |
Counsel: | I have no difficulty-- I would not even be on my feet if we were just dealing with your finding-- your Honour's finding that the mother knows. Not problematic in any way. It is the absence as I, as I had received it. I may be wrong in which case your Honour's clarification will clear this up this afternoon now. |
Judge: | Okay, well it is probably me, yes, not being clear enough in the way I express it, because you know I am doing this from notes. |
Counsel: | I do. |
Judge: | So I am clear in my mind and I put-- and I may well not have been clear enough. Yes, I can-- I think I can see." |
After studying her notes, the judge said
"Judge: | Right, that is-- what I-- my note of what I said, and this is where I tried to simplify it as far as possible after Miss Croft's request, is I have not been able to identify a perpetrator. I have made a finding that if the mother did not cause the injuries herself she knows how they were caused and has failed to tell the truth to the court. That was certainly meant – and I can see how it may not have come across clearly enough, although I tried – it was certainly meant to include the possibility of the mother as perpetrator, and again similarly at the end of my judgment that was what I had intended to do." |
"Yes, this is the approved version of the transcript. I thought about the points raised in the discussions post-judgment when I was approving the transcript, and the wording in paragraphs 72 and 73 is the wording I intended."
"I am instructed to seek further clarification with regards to the findings made in order to progress the case. We understand that a finding was made that the mother knows how the injuries were caused (para.73). However, we invite you to clarify for the purpose of the finalisation of the findings in the judgment and for the forthcoming assessments if you have found that the mother is in a pool of perpetrators consisting of the mother and an unnamed person who is known to the mother and the mother has lied to the court about that person OR whether your finding is that the mother did not cause the injuries but does know who did and she has lied to the court about that person?"
The judge immediately responded:
"Dear all
I don't agree that further clarification is appropriate. The findings I made are set out in paragraphs 72 and 73. Neither of the alternatives in the email below is an accurate summary of the findings I made."
The appeal
(1) Having correctly concluded that the injuries were inflicted, the judge was wrong to refuse to identify a perpetrator or a "pool" of perpetrators. Alternatively, if the judge has identified a pool of perpetrators, then it is a pool of the mother and a hypothetical other person and that is neither borne out on the factual evidence or allowed in law.
(2) The court was wrong to find that the mother was not the perpetrator.
(3) The court was wrong to find that an unidentified hypothetical person known to the mother inflicted the injuries.
(4) The judge compartmentalised her approach to the facts.
(5) The judge went "off piste" in that she made findings that were not sought by any party. The conclusion that the judge ultimately arrived at was neither explored in evidence nor in submissions and no party had notice of this possible outcome.
"Declining to identify a perpetrator, where the evidence establishes it, is not merely erring on the side of caution, it is a failure to exercise the duty imposed by law."
Discussion and conclusion
"It is axiomatic that a party against whom findings are sought in care proceedings is entitled to notice of the findings sought, the evidence on which they are based, and a fair opportunity to rebut them."
LADY JUSTICE ELISABETH LAING
LADY JUSTICE ASPLIN