Identification of the perpetrator

Gary Fawcett examines a Court of Appeal ruling allowing an appeal by a guardian in care proceedings against the failure of the first instance judge to identify the perpetrator of injuries to a child.

To précis anything is to give the tempting flavour, but deny you the full meal!

Flavour: In Y, V & B (Fact-Finding: Perpetrator) [2024] EWCA Civ 103 (Asplin, Baker, Elisabeth Laing LLJ’s) the Court of Appeal examined the trial judge's approach to applying the ‘pool of perpetrators’ case law, (after a 5 day fact find); the result being that the matter was remitted for a rehearing, listing it before MacDonald J, the Presiding Family Judge, to determine allocation and perhaps give case management directions. It was a s31(2) ‘attributable’ case.

Asplin LJ reviewed the law then dealt with the facts and grounds of appeal etc. Just to be different, I will deal with the brief facts first.

The parents were separated. Their three children Y (13), V (12) and B (dob 7/22) were in the care of their mother. B suffered serious injuries, possibly caused on one occasion but more likely on more than one, which the carer would have noticed. The medical evidence was uncontested, so no medical professional gave evidence.  other gave no explanation for the injuries.

The father had contact with B but at the mother's home, the mother never spent a night without B. B was briefly in the company of others, but there was no evidence that mother noticed injuries afterwards. After some short delay, with regard to injuries, mother took B to the hospital. The rest, as they say, is history.

The trial judge said M was holding back from giving a full and truthful account to the court, and later added ‘I am sure that neither parent has given a complete and accurate account, this evidence is not sufficiently secure for me to make a finding that B's injuries occurred around this time (when taken to hospital), still less a finding that either or both parents were involved in causing them’.

Post judgment, there was an exchange between judge and counsel, counsel raising that the judge had not referred to a ‘pool’, to which the judge said ‘the mother either inflicted or knows who did. So, that I am clear about and comfortable with. Why do I need then to say, "And there is a pool of unidentified people"? It just seems to be very artificial’.

Asplin LJ stated that the (trial) judge found that the injuries were inflicted deliberately or through reckless use of force and then considered how the judge approached the issue of perpetrator in the following two paragraphs of the judgment:

’72. "As to the identity of the perpetrator, I am unable to make a positive finding that the mother herself caused the injuries. Partly that is because I have taken into account all of the surrounding evidence that shows the mother as a gentle and loving parent. I find myself in this position also because I am quite clear that the court has not been given a full and complete account in this case of what happened in B's life over the relevant period.

73. I do make a finding that the mother knows how the injuries were caused and has chosen not to tell the truth. That finding, in my view, is inescapable.  To make that finding is not to reverse the burden of proof but to acknowledge that the weight of the evidence leads to a conclusion that it is not realistically possible that these injuries could have been sustained without the mother being aware. The threshold criteria are met on that basis.” ‘

The guardian appealed, but I (GF) will only state the first ground as follows:

• Having correctly concluded that the injuries were inflicted, the judge was wrong to refuse to identify a perpetrator or a "pool" of perpetrators. Alternatively, if the judge has identified a pool of perpetrators, then it is a pool of the mother and a hypothetical other person and that is neither borne out on the factual evidence or allowed in law.

Asplin J concluded:

The judge was wrong not to find on a balance of probabilities that a named person was the perpetrator or finding that persons (named or unnamed) were in the pool of perpetrators and added:

‘For the reasons set out above, I conclude that the appeal must be allowed on the first part of ground one’.

The law referred to in the Court of Appeal:

Asplin LJ reviewed/cited relevant law ^[1] which culminated in the following:-

‘More recently, guidance on how a judge should approach the task of identifying whether someone is in the pool of perpetrators was given by Peter Jackson LJ in Re B (Children; Uncertain Perpetrator) [2019] EWCA Civ 575. At paragraph 46, he explained the purpose of the concept of the pool in these terms:

46. ”Drawing matters together, it can be seen that the concept of a pool of perpetrators seeks to strike a fair balance between the rights of the individual, including those of the child, and the importance of child protection. It is a means of satisfying the attributable threshold condition that only arises where the court is satisfied that there has been significant harm arising from (in shorthand) ill-treatment and where the only 'unknown' is which of a number of persons is responsible. So, to state the obvious, the concept of the pool does not arise at all in the normal run of cases where the relevant allegation can be proved to the civil standard against an individual or individuals in the normal way. Nor does it arise where only one person could possibly be responsible. In that event, the allegation is either proved or it is not. There is no room for a finding of fact on the basis of 'real possibility', still less on the basis of suspicion. There is no such thing as a pool of one."

At paragraph 49, he (Peter Jackson LJ) gave guidance which has been followed in subsequent cases:-

"The court should first consider whether there is a 'list' of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability … Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list: "Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?" Only if there is, should A or B or C be placed into the ‘pool’."

Finally, Peter Jackson LJ added these further observations which have some relevance to the present case:

51. “It should also be noted that in the leading cases there were two, three or four known individuals from whom any risk to the child must have come.  The position of each individual was then investigated and compared.  That is as it should be.  To assess the likelihood of harm having been caused by A or B or C, one needs as much information as possible about each of them in order to make the decision about which if any of them should be placed in the pool.  So, 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 of the possibilities.  The same may be said where the list of individuals has been whittled down to a pool of one named individual alongside others who are not similarly identified.  This may be unlikely, but the present case shows that it is not impossible. Here it must be shown that there genuinely is a pool of perpetrators and not just a pool of one by default.
52. Lastly, as part of the court's normal case-management responsibilities it should at the outset of proceedings of this kind ensure (i) that a list of possible perpetrators is created, and (ii) that directions are given for the local authority to gather (either itself or through other agencies) all relevant information about and from those individuals, and (iii) that those against whom allegations are made are given the opportunity to be heard.  By these means some of the complications that can arise in these difficult cases may be avoided.”

Asplin LJ continued:  At one point, it was suggested that a court in care proceedings should "not strain to identify a perpetrator". That suggestion has now been disavowed: Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348. Thus the straightforward position is as summarised by King LJ in that case at paragraph 34:-

"The unvarnished 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. If he or she cannot do so, then, in accordance with Re B [2019], he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.”

Asplin LJ also observed that no schedule of findings was attached to the order.

Gary Fawcett is a barrister at No 18 Chambers.

^[1] Re G (A Minor) (Care Order: Threshold Conditions) [1995] Fam 16 at page 20). In Lancashire County Council v B [2000] AC 147,

Re O and another (Minors) (Care: Preliminary Hearing), Re B (A Minor) [2003] UKHL18, [2004] 1 AC 523

Re C (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11; Re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678.

Re K (Children) [2004] EWCA Civ 1181

North Yorkshire County Council v SA [2003] 2 FLR 849,