Dealing with a pool of only two possible perpetrators – guidance from the Court of Appeal

How many times are local authorities faced with allegations of serious injuries where only two people (perhaps the parents or parent and a new partner) are possible perpetrators; where everyone is keen to identify one or the other if at all possible but (obviously) no-one else was there at the time of the events, the police and medical evidence does not solve the problem and both parties insist that it wasn’t them. It may be resolved that the Local Authority can do no better than a classic “Lancashire” test, leaving both in the pool.

While each case must differ on its own facts, the Court of Appeal in Re B (A Child: Uncertain Perpetrator) recently gave guidance with wider application. The mother (M) appealed a single finding leaving her in the pool with an intervenor (P) for bruising to the left groin, left ear and right hip of her son (S) then aged between 18 and 21 months and where, in two out of three cases (groin and hip) the other party would not have been aware. She was opposed both by the Local Authority and the Guardian. In this case:

• Findings were made that P had deliberately inflicted eight other serious injuries on S including fractures to the skull, arm and ribs of which the mother was unaware as well as facial bruising from slapping and forceful gripping of which she was. At one point P had videoed the aftermath in a manner described by the Judge as truly sickening [4]; he had also made concerning internet searches in relation to S’s injuries. These findings, together with a finding of M having failed to protect, domestic conflict and drug misuse by both and failure to seek medical attention were unchallenged.
• M was viewed as a generally straightforward witness apart from some inconsistencies as to timing of her awareness and had completed her evidence. P on the other hand had withdrawn part way through cross examination, seeking medical attention and an adjournment and, despite repeated orders to attend with medical evidence had not done so and, as such, his evidence could not be fully assessed.

The Court of Appeal, in allowing M’s appeal described the judgment as impressive and well-organised and that it had, considered the correct case authorities [24] correctly adopted the following summary from the Family Court Practice [25].

“The court should… consider whether it can identify the actual perpetrator on the balance of probability and should seek to do so. At this stage, the correct legal approach is to survey the evidence as a whole as it relates to each individual in order to arrive at a conclusion about whether the allegation has been made out in relation to one or other on a balance of probability. Evidentially, this will involve considering the individuals separately and together and comparing the probabilities in respect of each of them. Within this context, the right question is not ‘who is the more likely?’ but rather ‘does the evidence establish that this individual probably caused this injury?’ In a case where there are more than two possible perpetrators, the Court of Appeal highlighted a clear danger in identifying an individual simply because they are the likeliest candidate, as this can lead to an identification on evidence that falls short of a probability.”

The Court also cited the Family Court Practice where it refers to the guidance in re B namely that 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 [26].

However, the Court went on to make the following points:

• The court’s first and most important task where inflicted injury was alleged was to seek to identify the perpetrator on the balance of probabilities. Where that was possible, it provided a stronger factual foundation for the welfare decision. Resort to a pool of perpetrators would only arise where the court was unable to make a finding in the normal way [27].
• Where an injury had been found to have been inflicted, as opposed to being accidental or of natural origin, and where there were only two people who might be responsible, the question for the court became a binary one: which of the two was more likely to have been responsible? If that question could be answered, it followed that the person identified on a balance of probabilities as the more likely of the two to have been responsible was in fact responsible. That differed from a case with more than two possible perpetrators, where the identification of the likeliest perpetrator might not satisfy the balance of probability standard that was necessary for a finding of fact [28].
• In making its assessment, the court would take account of the quantity and quality of the evidence available to it and would be alert to any potentially significant imbalances. Only if it could not answer the question for lack of reliable evidence, or because it found the evidence equally balanced (a rare occurrence), would it fall back on a pool finding [29].

The Court went on to say that, although the Judge had drawn appropriately on his conclusions for the remaining injuries and had taken manifest care with his decision [30 – 31] he had fallen into error on the question of the three injuries where M had been said to be a possible perpetrator. The Judge, it was ruled, had erred in three respects [32 – 35]:

1. Focussing almost entirely on M’s evidence about the particular week where the bruises were inflicted (which he had not done with the other injuries) [32].
2. Failing to explain why M’s inconsistencies (not lies) justified a conclusion that she might have injured S or why those inconsistencies were so significant as to prevail over the strong inferences arising from all the other evidence [33].
3. Failing to evaluate and compare compelling features of the case [34], including:

• S’s injuries being clustered entirely when P was on the scene
• P having committed multiple serious assaults on S showing a propensity to injure a young child
• P’s conduct having elements of cruelty
• P having dishonestly denied causing any injury at all
• P having caused the rib fractures at or around the same time that the bruises were caused
• There being similarities for the causation mechanism for some of the other injuries
• In contrast, there was no evidence of injury to S when in M’s sole care in his first eight months, she had not been found to be the perpetrator of any injury, observations of her relationship with and handling of S were appropriate, she had never (with one exception) been found to be dishonest and there was no indication of S having been assaulted by more than one person simultaneously.

The proposition of M having caused the bruising was unsustainable; the evidence as a whole was bound to lead to a finding of P having been responsible. While it was right to rely upon propensity alone, it was equally wrong to assess the bruising as if the other injuries had never happened [35].

Although a finding of one adult having caused eight injuries did not automatically mean that another could not have caused three others, that was no answer when the evidence led firmly to a different conclusion [37].

The judge also failed to adjust for the forensic imbalance arising from P’s withdrawal: M’s evidence received detailed scrutiny while P’s evidence was not interrogated at all. Where the inability to carry out a fully balanced assessment arose from events outside the court’s control, the judge should have exercised caution when reaching conclusions based on M’s evidence alone [38].

Interestingly, the Court did not refer the matter for rehearing but, taking the view that the only proper conclusion was of P being more likely to have caused the bruising, it set aside the pool finding and substituted one that on the balance of probabilities, P had inflicted the injuries.

The reminders, if needed, from this case are:

• Where there is a pool of only two, it may not be possible on the written evidence to identify the perpetrator but the detailed exercise of a trial with cross examination may well be essential for the child and the parents.
• It is a rare scenario that the evidence is equally balanced for the purposes of establishing the perpetrator though of course there may be a lack of reliable evidence as to the circumstances of the injury – depending of course upon the medical evidence, this may go to threshold before one gets to identifying a perpetrator.
• Evidence that a party committed other injuries (at very least to the same child) may not be conclusive by itself but is entirely relevant where there are greater difficulties in ascertaining the perpetrator of individual injuries.
• Inconsistencies or flaws in the quality of individual evidence may not be critical unless they point to a conclusion that the witness is a likely perpetrator. Why would they have done this? Is there clear evidence, on the other hand as to why the other person may have done so?

Graeme Bentley is a Principal Solicitor in Invicta Law’s Child Protection team, with over 40 years of experience in family law.