Written by William Tautz of the Garden Court Chambers Family Team.
Cases involving serious harm to children, such as non-accidental injury or sexual abuse, where more than one person had an opportunity to inflict the harm are some of the most difficult and challenging cases in children’s law practice. Two recent cases in the Court of Appeal addressed the correct approach to cases where the identity of the person who inflicted the harm cannot be determined on the balance of probability.
Re B (Children: Uncertain Perpetrator) [2019] 4 WLUK 64 was an appeal in relation to a case where three sisters aged between 5 and 10 years were found to have been infected with gonorrhea. They had been living with their mother in one room of a residence shared with other adults and children; the father visited frequently but was not living there. There were no allegations of abuse made by the children, and the father had tested negative for gonorrhea. It was accepted that there was not a full investigation or testing of other adults who were living in the property.
The judge at first instance found that, although he could not conclude that the father had transmitted the gonorrhea through sexual abuse, the father was in a pool of possible perpetrators (along with other unknown males). It was against this conclusion that the father appealed.
In his judgment allowing the appeal, Jackson LJ said:
“a decision to place a person within the pool of perpetrators is not a finding of fact in the conventional sense” (para 47).
He went on:
“The concept of the pool of perpetrators….does not alter the general rule on the burden of proof. Where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did it. No one can be placed into the pool unless that has been shown” (para 48).
To talk of ‘excluding’ an individual from the pool risks reversing the burden of proof. Instead, Jackson LJ recommended a change in language: a ‘list’ of people who had the opportunity to cause the injury; if a perpetrator could not be identified on the balance of probabilities, the established test of whether there was a ‘likelihood or real possibility’ that an individual was a perpetrator should be applied to everyone on the list to determine whether they should be placed in the pool (para 49). Amidst other shortcomings at first instance, the judge failed to give proper weight to the lack of investigation and extended the pool of perpetrators almost indefinitely to ‘persons unknown.’
Coming less than two months after Re B, the case of Re: R (A Child) [2019] EWCA Civ 895 dealt with a case of non-accidental injury, though in complex circumstances. The appeal was brought by the paternal grandmother of one of two injured children against a finding at first instance that she was in the pool of perpetrators (with the mother and father) in relation to the younger child’s injuries—just one of a number of findings made by the judge.
Jackson LJ again gave judgment and concluded that, although the judge below had followed the correct approach as outlined in Re: B, she had gone further than the evidence allowed in including the grandmother in the pool of perpetrators. In particular, the judge’s finding was based on ‘”irrelevant or insubstantial” considerations and failed to give “any real weight to her findings about the character of the parents or their behaviour in relation to” the other child who was injured.
William Tautz is a member of the Garden Court Family Team.
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