P And E (Care Proceedings: Whether to Hold Fact-Finding Hearing), Re
[2024] EWCA Civ 403
Y, V & B (Fact-Finding: Perpetrator), Re
13 September 2024
[2024] EWCA Civ 1034
Court of Appeal
A baby was badly hurt, and the judge couldn't figure out who did it. The judge said the mom knew but wasn't telling the truth. A higher court said that wasn't enough; they need to know who hurt the baby or at least a list of possible people. The case will be tried again.
Key Facts
- •Nine-month-old child (B) sustained serious injuries (skull fracture, cortical cleft, rib fractures).
- •Mother had sole care of B.
- •Medical evidence suggested injuries likely occurred in at least two separate incidents.
- •No alternative perpetrator suggested by any party.
- •Judge found injuries were inflicted deliberately or recklessly but could not identify the perpetrator.
- •Judge concluded mother knew how injuries were caused but had not revealed the truth.
- •Appeal concerned whether the judge erred in law by not identifying a perpetrator or pool of perpetrators.
Legal Principles
In care proceedings, the court must be satisfied that significant harm is attributable to parental care (Children Act 1989, s.31(2)).
Children Act 1989, s.31(2)
Attributability can be satisfied even without identifying the perpetrator, especially in cases of shared care where the perpetrator cannot be distinguished (Lancashire County Council v B [2000] AC 147).
Lancashire County Council v B [2000] AC 147
The standard of proof for identifying a perpetrator is the balance of probabilities (Re C [2008] UKHL 35; Re S-B [2009] UKSC 17).
Re C [2008] UKHL 35; Re S-B [2009] UKSC 17
If the perpetrator cannot be identified, the court should identify a pool of possible perpetrators (Re S-B [2009] UKSC 17; Re B [2019] EWCA Civ 575).
Re S-B [2009] UKSC 17; Re B [2019] EWCA Civ 575
A court should not strain to identify a perpetrator, but it is not permissible to have a 'pool of one' (Re A [2022] EWCA Civ 1348).
Re A [2022] EWCA Civ 1348
Outcomes
Appeal allowed.
The judge's failure to identify a perpetrator or pool of perpetrators was wrong in law. The court could not proceed on the basis of the judge's limited findings, which were insufficient for welfare decisions.
Case remitted for rehearing.
The Court of Appeal could not substitute a finding that the mother was the perpetrator without hearing evidence. A rehearing is necessary to address the issues of perpetrator identification and ensure procedural fairness.