Re A (Children) (Pool of Perpetrators)  EWCA Civ 1348
This appeal followed a fact-finding hearing in care proceedings, in relation to a child (“A”) who had suffered a number of serious injuries. In allowing the appeal, King LJ provided useful clarification as to the proper approach to be taken in cases where the perpetrator of non-accidental injuries is unclear.
A was one of four children born to the mother and the father. She and her twin were born very prematurely (between 28 – 31 weeks’ gestation) at the start of 2021. Once the children had been discharged from hospital, the father returned to work, leaving the majority of the care for all four children to be undertaken by the mother.
In the early hours of the morning on 3 April 2021, the father found A struggling to breathe and with limited consciousness. He administered CPR and called an ambulance, which it was acknowledged by all parties had saved her life. When A was admitted to hospital, she was found to have the following injuries:
- Partial asphyxiation (as a consequence of there being a large quantity of blood-soaked tissue lodged in her throat);
- Multiple rib fractures (which were held to have come about as a result of at least two applications of force);
- Bilateral metaphyseal long-bone fractures (which were held to have been the inflicted via at least three separate applications of force); and
- Cystic lesions with blood staining within the parafalcine frontal lobes of her brain, which were found to have followed a traumatic head injury which had been inflicted some time before 26 March 2021.
It was noted that, whilst the various injuries were very different in nature, they were all types of injuries which are seen to be borne out of frustration and loss of control by a parent.
The fact-finding hearing
At the fact-finding hearing, the trial judge made a number of findings against the parents, which can be summarised as follows:
- The mother deliberately forced the tissue down A’s throat in order to obstruct her breathing. This caused asphyxiation and could have been fatal;
- The parents colluded to present a false account regarding the circumstances which led to this injury;
- The brain injuries and the fractures were deliberately inflicted, and caused by the mother and/or the father;
- The perpetrator failed to seek timely medical attention for A once she had been injured;
- In the event that all of the injuries were caused by one parent, the other parent had failed to protect A; and
- In the event that the father was not the perpetrator, he had failed to maintain an open mind as to the risks posed by the mother.
The Father appealed the findings made against him. The mother did not do so, and therefore the appeal proceeded on the basis that the mother had deliberately inflicted the final, life-threatening injury on A. The issues before the court were therefore:
- Did the judge err in his application of the law in relation to uncertain perpetrator cases and, as a consequence, was in error in finding that the father was within the pool of possible perpetrators in relation to the earlier fracture and head injuries sustained by A?
- Was the judge wrong to find that the father had colluded with the mother and, if he was not the perpetrator, that he had failed to protect A from her mother?
It is important to bear in mind that the concept of a pool of perpetrators only arises where the allegation cannot be proved against a single individual in the normal way.
The approach to be taken in such cases where there is a pool of possible perpetrators was set out by Peter Jackson LJ in Re B (Children: Uncertain Perpetrator)  EWCA Civ 575. King LJ considered that the proper application of this guidance required the court to ask themselves:
- Whether there is a list of people who had the opportunity to cause the injury. When considering this question, it is for the local authority to show that there is a real possibility that each of the potential perpetrators inflicted the relevant harm before they are placed within this pool;
- Whether they can identify the actual perpetrator on the balance of probabilities; and
- If the court cannot identify a perpetrator, then they should consider whether there is a real possibility or likelihood that each individual on the list inflicted the injury in question.
What did the court decide?
The court granted the appeal on all grounds (with Laing LJ dissenting) and the case was remitted for rehearing.
When considering who had caused the injuries to A, the court held that the trial judge had erred in his application of Re B in two respects. Firstly, he had failed to consider step two above, which requires the court to ask itself whether they can identify the actual perpetrator on the balance of probabilities. This meant that he had failed to consider whether there was adequate evidence to prove that the mother was the sole perpetrator. Secondly, he had applied step three incorrectly, considering whether there was sufficient evidence to exclude the father from the pool of possible perpetrators, rather than considering whether there was sufficient evidence to include him within it, thus placing the father within the pool of perpetrators without sufficient evidence to do so.
The trial judge had made further findings, namely that (in the event that he was not the perpetrator), the father had colluded with the mother, had failed to protect A and had failed to maintain an open mind as to the risks that the mother posed to the child. King LJ observed that there was less strength in an appeal against these findings and that the court would not have allowed an appeal on these grounds alone. However, in view of the impending rehearing, to dismiss the appeal in relation to these findings would “tie the hands” of the tribunal hearing the case and therefore, the court allowed the appeal on these grounds as well.
Laing LJ disagreed, and in her dissenting judgment considered that the trial judge had properly followed and applied the relevant steps.
The relevance of strain
King LJ also provided comment on two further issues, the first of which is the ongoing relevance of the concept of “strain” within proceedings of this kind.
This phrase originates from the judgment of Peter Jackson LJ in Re B, where, with reference to Re D (Children)  EWCA Civ 472, he stated that the judge should “seek, but not strain” to identify the actual perpetrator on the balance of probabilities.
This comment was made following a stream of case law in this area, starting with Re K (Non-Accidental Injuries: Perpetrator: New Evidence)  EWCA Civ 1181. In this case, Wall LJ set out the importance of identifying a perpetrator; as is widely accepted, it is in the public interest for those who cause serious non-accidental injuries to be identified, and children who have suffered injuries have the right to “know the truth about who injured them when they were children, and why.”
The standard of proof in such cases is the normal civil standard and neither the seriousness of the allegation nor the seriousness of the consequences will change that. This was set out by Baroness Hale in Re B (Care Proceedings: Standard of Proof) (Cafcass Intervening)  UKHL 35 who, in so doing, disapproved a growing trend towards considering a higher burden of proof for more serious allegations.
However, Lord Hoffman’s concurring judgment was misunderstood in some courts as imposing a requirement on the court to determine the actual perpetrator in all circumstances. It was this misunderstanding which led to the appeal in Re D (Children)  EWCA Civ 472, following which Wall LJ explained that “judges … should not strain to identify the perpetrator of non-accidental injuries to children.”
This direction was therefore borne out of a series of clarifications as to the proper exercise to be undertaken by the court in uncertain perpetrator cases. In view of this context, King LJ concluded that, in future cases, the judges should no longer direct themselves on the necessity that they avoid strain in identifying a perpetrator. The 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. In circumstances where he or she cannot do so, then, in accordance with Re B, he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.
Summaries of the Law
The second issue that was considered was the utility of appending agreed summaries of the law to a judgment.
Attached to the judge’s trial judgment was a lengthy document which summarised the applicable law and which had been agreed by all the parties. The court acknowledged the use of such a document for a Circuit Judge with a busy list, however made the following observations:
- It will normally be sufficient to set out the relevant principles with reference to the relevant part of the document, rather than including lengthy citations, much of which will not be strictly necessary.
- The judge still needs to identify and apply the relevant principles of law within their judgment. To append the law to the judgment without this analysis does not assist the reader in understanding how the law was applied to the individual circumstances.
In this instance, the judge made no further reference to the law, other than to incorporate the agreed document and thus it remained unclear how the law had been applied to these individual facts.
This case therefore provided important clarification on the proper approach to a fact-finding hearing when there is a pool of possible perpetrators. It also provided a helpful consideration of the ongoing value of the idea of “strain” and the utility of appending lengthy summaries of the law to judgments.