Michaelmas Term [2009] UKSC 17

On appeal from: [2009] EWCA Civ 1048

S-B Children
Lord Hope, Deputy President
Lord Rodger
Lady Hale
Lord Brown
Lord Collins
Lord Kerr
Lord Clarke
14 December 2009
Heard on 25 and 26 November 2009
Appellant Respondent
Anthony Hayden QC Susan Grocott QC
Magdalen Case Sasha Watkinson
(Instructed by Dawson
(Instructed by Trafford
Borough Council Legal
and Democratic Services)
2nd Respondent
Frances Judd QC
Alexander Kloss
(Instructed by Rowlands
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1. This is the judgment of the court.
2. This case is about the proper approach to deciding who has been
responsible for harming a child in proceedings taken to protect that child, and
others in the family, from harm. It raises profound issues: on the one hand,
children need to be protected from harm; but on the other hand, both they and their
families need to be protected from the injustice and potential damage to their
whole futures done by removing children from a parent who is not, in fact,
responsible for causing them any harm at all. The facts of this case present us with
that dilemma in an unusually stark form.
The facts
3. Because we have decided to allow this appeal and send the case back to be
decided afresh, we should say only enough about the facts to explain how the
dilemma arises. We shall use pseudonyms for the two children concerned, one who
has been harmed and one who has not. Jason was born on 19 May 2007. On 15
June 2007, when he was just four weeks old, he was found to have bruising on his
arms and face, which the doctors immediately thought was caused nonaccidentally and not, as the mother suggested, by the baby pinching himself or
sleeping on his dummy. Jason has not lived with his family since then, although he
has had frequent and good quality contact with his mother.
4. Jason was living with his mother and father at the time and described by the
doctors as “thriving”. Both parents said that it was the father who had got up to
attend to the baby when he woke up on the morning when the bruises were
noticed. The mother took the baby to the clinic that morning and pointed them out
to the health visitor. It was not possible to give precise timing for the bruises but it
was not suggested that they were old or of different ages. They could have been
inflicted by both parents, but the judge found it more likely that only one of them
had inflicted them. The bruises had not been there for so long, nor would they have
caused the baby such pain and distress, that the other parent must have known that
he was being harmed. This was not, therefore, a case where one parent had failed
to protect the child from harm caused by the other. It was, colloquially, a pure
5. The other child is William, born on 12 July 2008, while the proceedings to
protect Jason were in train. By then the parents had separated, although they were
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still in touch with one another. The father had stopped visiting Jason, had
withdrawn from co-operation with the social workers and with his solicitors, and
played no further part in the proceedings. He has parental responsibility for Jason
but not for William. William was removed from his mother shortly after birth and
placed with the same foster carer as his brother. He has never been harmed. The
case for removing him from his mother rests on the likelihood of his being harmed
in the future if he is returned to her.
The law
6. In this country we take the removal of children from their families
extremely seriously. The Children Act 1989 was passed almost a decade before the
Human Rights Act 1998, but its provisions were informed by the United
Kingdom’s obligations under article 8 and article 6 of the European Convention on
Human Rights. These affect both the test and the process for intervening in the
family lives of children and their parents.
7. As to the test, it is not enough that the social workers, the experts or the
court think that a child would be better off living with another family. That would
be social engineering of a kind which is not permitted in a democratic society. The
jurisprudence of the European Court of Human Rights requires that there be a
“pressing social need” for intervention and that the intervention be proportionate to
that need. Before the court can consider what would be best for the child,
therefore, section 31(2) of the 1989 Act requires that it be satisfied of the so-called
“threshold conditions”:
“(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 to him; or
(ii) the child’s being beyond parental control.”
8. The leading case on the interpretation of these conditions is the decision of
the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996]
AC 563. Three propositions were established which have not been questioned
since. First, it is not enough that the court suspects that a child may have suffered
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significant harm or that there was a real possibility that he did. If the case is based
on actual harm, the court must be satisfied on the balance of probabilities that the
child was actually harmed. Second, if the case is based on the likelihood of future
harm, the court must be satisfied on the balance of probabilities that the facts upon
which that prediction was based did actually happen. It is not enough that they
may have done so or that there was a real possibility that they did. Third, however,
if the case is based on the likelihood of future harm, the court does not have to be
satisfied that such harm is more likely than not to happen. It is enough that there is
“a real possibility, a possibility that cannot sensibly be ignored having regard to
the nature and gravity of the feared harm in the particular case” (per Lord Nicholls
of Birkenhead, at p 585F).
9. Thus the law has drawn a clear distinction between probability as it applies
to past facts and probability as it applies to future predictions. Past facts must be
proved to have happened on the balance of probabilities, that is, that it is more
likely than not that they did happen. Predictions about future facts need only be
based upon a degree of likelihood that they will happen which is sufficient to
justify preventive action. This will depend upon the nature and gravity of the harm:
a lesser degree of likelihood that the child will be killed will justify immediate
preventive action than the degree of likelihood that the child will not be sent to
10. The House of Lords was invited to revisit the standard of proof of past facts
in Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35,
[2009] AC 11, where the judge had been unable to decide whether the alleged
abuse had taken place. The suggestion that it would be sufficient if there were a
“real possibility” that the child had been abused was unanimously rejected. The
House also reaffirmed that the standard of proof of past facts was the simple
balance of probabilities, no more and no less.
11. The problem had arisen, as Lord Hoffmann explained, because of dicta
which suggested that the standard of proof might vary with the gravity of the
misconduct alleged or even the seriousness of the consequences for the person
concerned (para 5). He pointed out that the cases in which such statements were
made fell into three categories. In the first were cases which the law classed as
civil but in which the criminal standard was appropriate. Into this category came
sex offender orders and anti-social behaviour orders: see B v Chief Constable of
Avon and Somerset Constabulary [2001] 1 WLR 340 and R (McCann) v Crown
Court at Manchester [2002] UKHL 39, [2003] 1 AC 787. In the second were cases
which were not about the standard of proof at all, but about the quality of
evidence. If an event is inherently improbable, it may take better evidence to
persuade the judge that it has happened than would be required if the event were a
commonplace. This was what Lord Nicholls was discussing in Re H (Minors),
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above, at p 586. Yet, despite the care that Lord Nicholls had taken to explain that
having regard to the inherent probabilities did not mean that the standard of proof
was higher, others had referred to a “heightened standard of proof” where the
allegations were serious. In the third category, therefore, were cases in which the
judges were simply confused about whether they were talking about the standard
of proof or the role of inherent probabilities in deciding whether it had been
discharged. Apart from cases in the first category, therefore, “the time has come to
say, once and for all, that there is only one civil standard of proof and that is proof
that that the fact in issue more probably occurred than not” (para 13).
12. This did, of course, leave a role for inherent probabilities in considering
whether it was more likely than not that an event had taken place. But, as Lord
Hoffmann went on to point out at para 15, there was no necessary connection
between seriousness and inherent probability:
“It would be absurd to suggest that the tribunal must in all cases
assume that serious conduct is unlikely to have occurred. In many
cases, the other evidence will show that it was all too likely. If, for
example, it is clear that a child was assaulted by one or other of two
people, it would make no sense to start one’s reasoning by saying
that assaulting children is a serious matter and therefore neither of
them is likely to have done so. The fact is that one of them did and
the question for the tribunal is simply whether it is more probable
that one rather than the other was the perpetrator.”
Lady Hale made the same point, at para 73:
“It may be unlikely that any person looking after a baby would take
him by the wrist and swing him against the wall, causing multiple
fractures and other injuries. But once the evidence is clear that that is
indeed what has happened to the child, it ceases to be improbable.
Someone looking after the child at the relevant time must have done
it. The inherent improbability of the event has no relevance to
deciding who that was. The simple balance of probabilities test
should be applied.”
13. None of the parties in this case has invited the Supreme Court to depart
from those observations, nor have they supported the comment made in the Court
of Appeal that Re B “was a ‘sweeping departure’ from the earlier authorities in the
House of Lords in relation to child abuse, most obviously the case of Re H”
([2009] EWCA Civ 1048, para 14). All are agreed that Re B reaffirmed the
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principles adopted in Re H while rejecting the nostrum, “the more serious the
allegation, the more cogent the evidence needed to prove it”, which had become a
commonplace but was a misinterpretation of what Lord Nicholls had in fact said.
14. Re B was not a new departure in any context. Lord Hoffmann was merely
repeating with emphasis what he had said in Secretary of State for the Home
Department v Rehman [2001] UKHL 47, [2003] 1 AC 153, at para 55. A
differently constituted House of Lords applied the same approach in Re D
(Secretary of State for Northern Ireland intervening) [2008] UKHL 33, [2008] 1
WLR 1499.
15. In Re B, the House also declined an invitation to overrule the decision of the
Court of Appeal in Re M and R (Minors) (Sexual Abuse: Expert Evidence) [1996]
4 All ER 239. This was concerned with the stage after the court is satisfied that the
threshold has been crossed. The court has then to decide what order, if any, to
make. The welfare of the child is the paramount consideration: 1989 Act, s 1(1). In
deciding whether or not to make a care or supervision order, the court must have
regard in particular to the so-called “checklist” of factors: 1989 Act, s 1(3), (4).
These include “(e) any harm which he has suffered or is at risk of suffering”.
16. In Re M and R, the Court of Appeal determined that section 1(3)(e) should
be interpreted in the same way as section 31(2)(a). The court must reach a decision
based on facts, not on suspicion or doubts. Butler-Sloss LJ said this:
“[Counsel’s] point was that if there is a real possibility of harm in the
past, then it must follow (if nothing is done) that there is a risk of
harm in the future. To our minds, however, this proposition contains
a non sequitur. The fact that there might have been harm in the past
does not establish the risk of harm in the future. The very highest it
can be put is that what might possibly have happened in the past
means that there may possibly be a risk of the same thing happening
in the future. Section 1(3)(e), however, does not deal with what
might possibly have happened or what future risk there may possibly
be. It speaks in terms of what has happened or what is at risk of
happening. Thus, what the court must do (when the matter is in
issue) is to decide whether the evidence establishes harm or the risk
of harm.”
17. In agreeing with this approach in Re B, at para 56, Lady Hale commented
that in such a case, “as indicated by Butler-Sloss LJ …, the ‘risk’ is not an actual
risk to the child but a risk that the judge has got it wrong. We are all fallible human
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beings, very capable of getting things wrong. But until it has been shown that we
have, it has not been shown that the child is in fact at any risk at all”. Re M and R
was also approved by Lord Nicholls in Re O and another (Minors) (Care:
Preliminary Hearing) [2003] UKHL 18, [2004] 1 AC 523, a case to which we
shall return.
18. The House in Re B also recognised that courts and local authorities have
different roles to play in protecting children from harm. It is worth re-emphasising
this, given the understandable concerns in the wake of the “Baby P” case that
social workers and other professionals were not being sufficiently active in their
protective role, and the resulting increase in the numbers of care proceedings.
Social workers are the detectives. They amass a great deal of information about a
child and his family. They assess risk factors. They devise plans. They put the
evidence which they have assembled before a court and ask for an order.
19. Article 6 of the European Convention on Human Rights requires that “In
the determination of his civil rights and obligations, . . . everyone is entitled to a
fair and public hearing within a reasonable time by an independent and impartial
tribunal established by law”. The court subjects the evidence of the local authority
to critical scrutiny, finds what the facts are, makes predictions based upon the
facts, and balances a range of considerations in deciding what will be best for the
child. We should no more expect every case which a local authority brings to court
to result in an order than we should expect every prosecution brought by the CPS
to result in a conviction. The standard of proof may be different, but the roles of
the social workers and the prosecutors are similar. They bring to court those cases
where there is a good case to answer. It is for the court to decide whether the case
is made out. If every child protection case were to result in an order, it would mean
either that local authorities were not bringing enough cases to court or that the
courts were not subjecting those cases to a sufficiently rigorous scrutiny.
The “whodunit” problem
20. So far the position is plain. But the threshold criteria do not in terms require
that the person whose parental responsibility for the child is to be interfered with
or even taken away by the order be responsible for the harm which the child has
suffered or is likely to suffer in the future. It requires simply that “the harm, or
likelihood of harm, is attributable to … 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 to him”. Clearly, the object is to limit intervention to
certain kinds of harm – harm which should not happen if a child is being looked
after properly. But is it also intended to limit intervention to cases where the
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person whose rights are to be interfered with bears some responsibility for the
21. It cannot have been intended that a parent whose child has been harmed as a
result of a lack of proper care in a hospital or at school should be at risk of losing
her child. The problem could be approached through the welfare test, because
removal from home would not be in the best interests of such a child. However,
because of the risk of social engineering, the threshold criteria were meant to
screen out those cases where the family should not be put at any risk of
intervention. Hence attention has focussed on the attributability criterion. In the
case confusingly reported in the Law Reports as Lancashire County Council v B
[2000] 2 AC 147, but in the All England Law Reports as Lancashire County
Council v A [2000] 2 All ER 97, the House of Lords considered what is meant by
“the care given to the child”. Does it mean only the care given by the parents or
primary carers or does it mean the care given by anyone who plays a part in the
child’s care? Lord Nicholls, with whom Lord Slynn, Lord Nolan and Lord
Hoffmann agreed, found that it referred primarily to the former. But if, as in that
case, the care of the child was shared between two households and the judge could
not decide which was responsible for the harm suffered by the child, the phrase “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” (p 166). Thus the criteria
were satisfied in respect of a child, A, who had been injured, even though this
might have been attributable to the care she had received from her childminder
rather than from her parents.
22. Lord Clyde put the test in this helpful way, at p 169C, with the same result:
“That the harm must be attributable to the care given to the child
requires that the harm must be attributable to the acts or omissions of
someone who has the care of the child and the acts or omissions
must occur in the course of the exercise of that care. To have the care
of a child comprises more than being in a position where a duty of
care towards the child may exist. It involves the undertaking of the
task of looking after the child.”

23. However, it is worth noting that the Court of Appeal had confirmed that the
criteria were not satisfied in respect of the childminder’s child, B, because he had
not been harmed at all. The only basis for suggesting that there was any likelihood
of harm to him was the possibility that his mother had harmed the other child and
that had not been proved: Re H applied. The local authority did not appeal against
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24. Re O and another (Minors)(Care: Preliminary Hearing) [2003] UKHL 18,
[2004] 1 AC 523 was concerned with the more common problem, where the child
has been harmed at the hands of one of his parents but the court cannot decide
which. The attributability condition was satisfied. Furthermore, when considering
the welfare test, the court had to proceed on the basis that the child was at risk.
Lord Nicholls, with whom all other members of the Committee agreed, said this, at
para 27:
“Quite simply, it would be grotesque if such a case had to proceed at
the welfare stage on the footing that, because neither parent,
considered individually, has been proved to be the perpetrator,
therefore the child is not at risk from either of them. This would be
grotesque because it would mean the court would proceed on the
footing that neither parent represents a risk even though one or other
of them was the perpetrator of the harm in question.”

Lord Nicholls went on, at para 32, to give the following guidance, on the
assumption that the hearing would be split into a “fact-finding” and a “disposal”
stage and that each might be heard by a different judge:
“. . . the judge at the disposal hearing will take into account any
views expressed by the judge at the preliminary hearing on the
likelihood that one carer was or was not the perpetrator, or a
perpetrator, of the inflicted injuries. Depending on the
circumstances, these views may be of considerable value in deciding
the outcome of the application: for instance, whether the child should
be rehabilitated with his mother.”
25. In Re B, Lady Hale commented as follows at para 61:
“The decisions in In re H, Lancashire County Council v B [2000] 2
AC 147, and In re O [2004] 1 AC 523 fit together as a coherent
whole. The court must first be satisfied that the harm or likelihood of
harm exists. Once that is established, . . . ,the court has to decide
what outcome will be best for the child. It is very much easier to
decide upon a solution if the relative responsibility of the child’s
carers for the harm which she or another child has suffered can also
be established. But the court cannot shut its eyes to the undoubted
harm which has been suffered simply because it does not know who
was responsible. The real answers to the dilemma posed by those
cases lie elsewhere – first, in a proper approach to the standard of
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proof, and second, in ensuring that the same judge hears the whole
case. Split hearings are one thing; split judging is quite another.”
26. We are told that practice has now changed and that, barring accidents, the
same judge does conduct both parts of a split hearing. Nevertheless, the main
object of splitting the hearing is to enable facts to be found. If the threshold is not
crossed, the case can be dismissed at that stage. If it is crossed, the professionals
can base both their assessments and their further work with the family upon the
facts found. It is not at all uncommon for parents to become much more open with
the professionals when faced with the judge’s clear findings based upon what the
evidence shows. Hence there should always be a judgment to explain his findings
at that stage.
These proceedings
27. It was necessary to give the above account of the development of the law in
order to understand what happened in these proceedings. The case was originally
identified as suitable for a split hearing; then it was decided to hold a composite
hearing; but for regrettable practical reasons, the hearing was split once more. By
that stage, the father was playing no part, but for some unknown reason the local
authority decided not to issue a witness summons to require his attendance. That is
regrettable because the judge might well have found it easier to make clear
findings had he given evidence. The mother played a full part in the proceedings
and in the assessments, but only accepted that the bruises were non-accidentally
caused after the possibility of a blood disorder had effectively been ruled out.
28. The judge heard evidence over three days in January 2008 and three further
days in March. She handed down a detailed judgment in note form on 3 April. This
was before the House of Lords’ decision in Re B. At the outset, under the heading
‘Test’, she directed herself as follows:
“The test I have applied in relation to these findings is that set out in
the House of Lords case of [Re H] of 1996. The standard of proof I
apply is on the balance of probability. The allegations in this case are
very serious indeed and in many respects are also very unusual.
When I apply the appropriate standard of proof, it has to be based on
evidence of reliability and cogency equivalent to the gravity of the
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29. She then listed five questions, three of which are relevant to the issue before
this Court: first, whether the child had suffered non-accidental injury; second
whether the perpetrator could be identified; and third “even if the perpetrator
cannot be identified, can either of the parents be excluded as a perpetrator?”
However, having concluded that the injuries were non-accidental, she did not in
terms ask herself whether she could identify the perpetrator. She simply listed the
various factors which she took into account in relation to each parent. She
indicated at the outset of her list relating to the father that “there is a high index of
suspicion in relation to the father” and concluded that he could not be ruled out.
There was no such index in relation to the mother but for a variety of reasons the
judge also concluded that the mother could not be ruled out.
30. The final hearing was listed for 5 June but could not proceed. As suggested
in Re O, the judge was invited to give an indication of the relative likelihood of
father or mother being responsible for the injuries, in order to assist with the
assessment process. In oral exchanges she indicated that it was more likely that the
father was the perpetrator than the mother. In a written “Adjunct to Judgment” she
explained that “Invidious though it is to be too specific, but to help further
assessments, I am prepared to say that I feel it 60% likely that the father injured
the child and 40% likely that it was the mother.”
31. The final hearing eventually took place before the same judge in December
2008 with judgment in January 2009. Part of the reason for the delay was that the
mother had been unwell following the birth of her second child, William, in July.
At the final hearing, the judge was invited to revisit her findings in the light of Re
B, in which judgment was given on 11 June 2008. She declined to say that her
finding meant that the father was the perpetrator of the injuries. She observed that:
“When one is deciding these issues, a judge frequently reluctantly
comes to the conclusion that he cannot decide who is to blame
between two parents or among more than two people who have had
care of the child over the relevant period. However, although unable
to form a definitive decision to the requisite standard, a judge can
still have an impression, falling short of a finding, that the propensity
of the parties and the surrounding circumstances make it more likely
that it was one party than another.”
Hence the mother was not “absolved as a really possible or likely perpetrator”.
This meant that the threshold was crossed, not only in relation to the child who had
suffered harm, but also in relation to the child who had not. The fact that there was
a real possibility that she had caused the injuries to Jason meant that there was a
real possibility that she would injure William.
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32. After considering the welfare factors she concluded that the mother’s
vulnerable personality was such that she would need therapy in order to make the
necessary changes so that she could provide a safe and stable upbringing for the
children. Their lives could not be put on hold in the meantime. Hence the judge
approved the care plan to place them both for adoption and made care and
placement orders in respect of both children. She did, however, give the mother
permission to appeal but this was not included in the original order drawn up by
the court.
33. Lord Justice Wall also gave permission to appeal, observing that the case
“provides a useful opportunity for the Court of Appeal to resolve a point which has
arisen following the decision of the House of Lords in Re B, namely (1) if only
parents are ‘in the frame’ for having injured a child but (2) the judge cannot as
between parents identify the perpetrator of the injuries, can that judge (3)
apportion likely responsibility between them?” Before the Court of Appeal,
however, this was not the main issue. It was argued that, following Re B, the test
for identifying the perpetrator was the balance of probabilities and that the effect
of the “Adjunct to judgment” was that this judge had in fact identified the father.
The appeal was dismissed: [2009] EWCA Civ 1048.
Identifying the perpetrator: the standard of proof
34. The first question listed in the statement of facts and issues is whether it is
now settled law that the test to be applied to the identification of perpetrators is the
balance of probabilities. The parties are agreed that it is and they are right. It is
correct, as the Court of Appeal observed, that Re B was not directly concerned
with the identification of perpetrators but with whether the child had been harmed.
However, the observations of Lord Hoffmann and Lady Hale, quoted at paragraph
12 above, make it clear that the same approach is to be applied to the identification
of perpetrators as to any other factual issue in the case. This issue shows quite
clearly that there is no necessary connection between the seriousness of an
allegation and the improbability that it has taken place. The test is the balance of
probabilities, nothing more and nothing less.
35. Of course, it may be difficult for the judge to decide, even on the balance of
probabilities, who has caused the harm to the child. There is no obligation to do so.
As we have already seen, unlike a finding of harm, it is not a necessary ingredient
of the threshold criteria. As Lord Justice Wall put it in Re D (Care Proceedings:
Preliminary Hearings) [2009] EWCA Civ 472, [2009] 2 FLR 668, at para 12,
judges should not strain to identify the perpetrator as a result of the decision in Re
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“If an individual perpetrator can be properly identified on the
balance of probabilities, then . . . it is the judge’s duty to identify him
or her. But the judge should not start from the premise that it will
only be in an exceptional case that it will not be possible to make
such an identification.”

36. There are particular benefits in making such a finding in this context,
especially where there is a split hearing. Miss Frances Judd QC, on behalf of the
children’s guardian in this case, has stressed that the guardian would rather have a
finding on the balance of probabilities than no finding at all. There are many
reasons for this. 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. As the Court of Appeal said in Re K (Non-Accidental Injuries:
Perpetrator: New Evidence) [2004] EWCA Civ 1181, [2005] 1 FLR 285, at para
“It is paradigmatic of such cases that the perpetrator denies
responsibility and that those close to or emotionally engaged with the
perpetrator likewise deny any knowledge of how the injuries
occurred. Any process, which encourages or facilitates frankness, is,
accordingly, in our view, to be welcomed in principle.”
Often, it is not only the parents, but the grandparents and other members of the
family, who may be the best resource to protect the child in the future but who are
understandably reluctant to accept that someone close to them could be responsible
for injuring a child. Once that fact is brought home to them by a clear finding
based upon the evidence, they may be able to work with the professionals to keep
the child within the family.
38. Re K also suggested, at para 56, that there would be long term benefits for
the child, whatever the outcome of the proceedings:
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“. . . 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 nonaccidental 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?
39. The second and third questions in the statement of facts and issues ask
whether judges should refrain from seeking to identify perpetrators at all if they
are unable to do so on the civil standard and whether they should now be
discouraged from expressing a view on the comparative likelihood as between
possible perpetrators. These appear to be linked but they are distinct.
40. As to the second, 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.
41. In North Yorkshire County Council v SA [2003] EWCA Civ 839, [2003] 2
FLR 849, the child had suffered non-accidental injury on two occasions. Four
people had looked after the child during the relevant time for the more recent
injury and a large number of people might have been responsible for the older
injury. The Court of Appeal held that the judge had been wrong to apply a “no
possibility” test when identifying the pool of possible perpetrators. This was far
too wide. Dame Elizabeth Butler-Sloss P, at para 26, preferred a test of a
“likelihood or real possibility”.
42. Miss Susan Grocott QC, for the local authority, has suggested that this is
where confusion has crept in, because in Re H this test was adopted in relation to
the prediction of the likelihood of future harm for the purpose of the threshold
criteria. It was not intended as a test for identification of possible perpetrators.
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43. That may be so, but there are real advantages in adopting this approach. The
cases are littered with references to a “finding of exculpation” or to “ruling out” a
particular person as responsible for the harm suffered. This is, as the President
indicated, to set the bar far too high. It suggests that parents and other carers are
expected to prove their innocence beyond reasonable doubt. 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.
44. As to the third question, times have changed since Re O. Barring unforeseen
accidents, the same judge will preside over both parts of the hearing. While it is
helpful to have a finding as to who caused the injuries if such a finding can be
made, the guardian’s view is that it is positively unhelpful to have the sort of
indication of percentages that the judge was invited to give in this case. Lord
Justice Thorpe suggested, [2009] EWCA Civ 1048, para 17, that judges should be
cautious about amplifying a judgment in which they have been unable to identify a
perpetrator: “better to leave it thus”. We agree.
The unasked question
45. If the judge can identify a perpetrator on the balance of probabilities, what
is to be done about the risk that he may be wrong and that some-one else was in
fact responsible? We are indeed all fallible human beings. We can make mistakes,
however hard we try to pay careful attention to the quality of the evidence before
us and reach findings which are rationally based upon it.
46. However, once the court has identified a perpetrator, the risk is not a proven
risk to the child but a risk that the judge has got it wrong. Logically and sensibly,
although the judge cannot discount that risk while continuing to hear the case, he
cannot use it to conclude that there is a proven risk to the child. But all the
evidence (if accepted by the judge) relating to all the risk factors that the judge has
identified remains relevant in deciding what will be best for the child. And he must
remain alive to the possibility of mistake and be prepared to think again if
evidence emerges which casts new light on the evidence which led to the earlier
findings. It is now well settled that a judge in care proceedings is entitled to revisit
an earlier identification of the perpetrator if fresh evidence warrants this (and this
Court saw an example of this in the recent case of Re I (A Child) [2009] UKSC
10). The guardian also submits that the professionals will find it easier to work
with this approach.

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47. It is important not to exaggerate the extent of the problem. It only really
arises in split hearings, which were not originally envisaged when the Children Act
was passed. In a single hearing the judge will know what findings of fact have to
be made to support his conclusions both as to the threshold and as to the future
welfare of the child. Moreover, cases rarely come as neatly packaged as this one
does. In most cases, the injuries are such that, even if one parent was not
responsible for causing them, she was undoubtedly responsible for failing to
protect the child from the person who did cause them. In many cases, there are
other risks to the child besides the risk of physical injury. The evidence which is
relevant to identifying the perpetrator will also be relevant to identifying the other
risks to the child and to assessing what will be best for him in the future. But
clearly the steps needed to protect against some risks will be different from the
steps needed to protect against others. And the overall calculus of what will be best
for the child in the future will be affected by the nature and extent of the identified
risks. There are many, many factors bearing upon the child’s best interests and the
identification of risks is only one of them.
The conclusion in this case
48. We have every sympathy for the judge, who was only repeating the mantra
which many other judges at every level had repeated in the past. But it is clear that
she did misdirect herself on the standard of proof at the fact-finding hearing.
Because she later said that she had simply been unable to decide, we do not think
that we can accept the invitation of Mr Anthony Hayden QC, on behalf of the
mother, to treat her “Adjunct to judgment” as a finding that the father was the
perpetrator. That was not what she thought she was doing. However, that was an
ex post facto rationalisation on her part. We cannot know what finding she would
have made had she directed herself correctly in the first place. It is only right, for
the sake of these children and their mother, that they should have the whole case
put before a different judge who can decide the matter on the right basis.
49. There is a further reason to remit the case. The judge found the threshold
crossed in relation to William on the basis that there was a real possibility that the
mother had injured Jason. That, as already explained, is not a permissible approach
to a finding of likelihood of future harm. It was established in Re H and confirmed
in Re O, that a prediction of future harm has to be based upon findings of actual
fact made on the balance of probabilities. It is only once those facts have been
found that the degree of likelihood of future events becomes the “real possibility”
test adopted in Re H. It might have been open to the judge to find the threshold
crossed in relation to William on a different basis, but she did not do so.
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50. The case may look very different now that the mother’s life has moved on
and in the mean time, thankfully, the children have been well protected from harm.
The appeal is therefore allowed and the case remitted for a complete rehearing
before a different judge.