Appeal succeeds over failure by judge to identify perpetrator of injuries sustained by child

The Court of Appeal has allowed a guardian’s appeal against a judge’s failure to identify a perpetrator or a “pool” of perpetrators in relation to serious injuries sustained by a nine-month-old child, having concluded that the injuries were inflicted.

In Y, V & B (Fact-Finding: Perpetrator), Re [2024] EWCA Civ 1034, Lord Justice Baker said: “The judge was wrong to conclude the fact-finding stage in this case, in which a young child has sustained serious non-accidental injuries on more than one occasion, without either finding 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.”

The case concerned three girls - Y, aged 13, V, aged 12, and B, aged 2.

Baker LJ noted: “Their parents have separated and, at the time of the events which led to these proceedings, the three girls were living with their mother. The father took the elder girls out on occasions but only had contact with B at the mother’s home.”

In June 2023, B, then aged nine months, was brought to hospital by her mother and was found to have sustained a number of serious injuries.

The view of the medical expert witnesses was that, whilst it was “conceivably possible” for all three injuries to have been sustained in one incident, it was likely that they had been sustained in at least two incidents.

The medical expert witnesses noted that all of the injuries involved traumatic force “over and above normal handling” of a nine-month-old child.

Following B’s admission to hospital, a child protection investigation was instigated. B, when still in hospital, was taken into police protection.

The mother was arrested, interviewed by the police, and bailed. The local authority started care proceedings.

The proceedings were allocated to Her Honour Judge Reardon. The fact-finding hearing took place over five days in March 2024, with evidence being given on the first four days and the judge delivering an ex-tempore judgment on the fifth day.

Baker LJ said: “It was the local authority’s case that the injuries were inflicted deliberately or through negligent handling and that the mother was the perpetrator. The mother’s response recorded in the threshold document was that she had never harmed B, that she did not know how the injuries were caused, and that there was a real possibility that they could have been caused accidentally when the mother was not present.

“In her written evidence, the mother described various visits from and to various family members, referring to brief periods when she had not been present with B. It was the mother’s case, however, that she was not aware of B sustaining her injuries during any of those periods.”

Baker LJ noted that HHJ Reardon recorded the positive evidence about the mother’s care of the children, noting that there was “no evidence of particular stressors in the home”, that the children “presented as happy and well cared for”, and that “all observations of B with her mother suggest a warm and close parent/child relationship.”

Baker LJ said: “The judge then considered the possibility that the injuries were caused by one or more incidents that went unwitnessed by the mother and of which she was unaware. In this context, she took into account the nature and severity of the injuries which, according to the medical evidence, strongly suggested that they had been caused by more than one memorable event.

“Furthermore, it was likely that B would have shown some sort of behavioural response, in particular to the brain injury, which an attuned primary carer such as the mother was unlikely to have missed. The judge concluded that 'all of this evidence reduces any possibility that B could have been injured without her mother being aware.'”

The judge found that the injuries were inflicted deliberately or through reckless use of force.

She then considered the issue of the identity of the perpetrator in the following two paragraphs:

“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.

“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.”

Following delivery of the judgment, an exchange took place between the judge and counsel.

In the course of the discussion with counsel, Mr John Tughan KC, representing the children through their guardian, questioned the judge on her decision not to identify a pool of perpetrators.

After a lengthy exchange and after studying her notes, the judge said: “I have not been able to identify a perpetrator. I have made a finding that if the mother did not cause the injuries herself she knows how they were caused and has failed to tell the truth to the court. That was certainly meant – and I can see how it may not have come across clearly enough, although I tried – it was certainly meant to include the possibility of the mother as perpetrator, and again similarly at the end of my judgment that was what I had intended to do.”

In July, the local authority solicitor sent an email to the judge, copied to the other parties, stating:

“I am instructed to seek further clarification with regards to the findings made in order to progress the case. We understand that a finding was made that the mother knows how the injuries were caused. However, we invite you to clarify for the purpose of the finalisation of the findings in the judgment and for the forthcoming assessments if you have found that the mother is in a pool of perpetrators consisting of the mother and an unnamed person who is known to the mother and the mother has lied to the court about that person OR whether your finding is that the mother did not cause the injuries but does know who did and she has lied to the court about that person?”

The judge immediately responded saying she did not agree that further clarification was appropriate.

The guardian filed a notice of appeal, advancing the following five grounds:

1. 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.
2. The court was wrong to find that the mother was not the perpetrator.
3. The court was wrong to find that an unidentified hypothetical person known to the mother inflicted the injuries.
4. The judge compartmentalised her approach to the facts.
5. The judge went “off piste” in that she made findings that were not sought by any party. The conclusion that the judge ultimately arrived at was neither explored in evidence nor in submissions and no party had notice of this possible outcome.

Outlining the positions of the parties, Baker LJ said: “The guardian’s fundamental case on appeal was the judge was wrong not to find that the mother was the perpetrator and that this Court could safely and properly substitute such a finding.”

He added: “Mr Tughan submitted that she had gone astray because she wrongly analysed the evidence in compartments, instead of considering each piece of evidence in the context of the rest of the evidence.”

In support of the appeal, counsel for the local authority identified the important points as being that (1) the medical evidence was not disputed; (2) no alternative potential perpetrator was advanced by any party; (3) there was no evidence upon which the court could conclude that any other person had perpetrated these injuries or that there was a real possibility that another person had done so; and (4) the judge’s findings on disputed and undisputed facts, but for her approach to identifying a perpetrator, are all otherwise beyond reasonable challenge.

Baker LJ said: “In those circumstances, [counsel for the local authority] submitted that the judge was simply wrong to make no finding against the mother, whether that she was the perpetrator or that there was a real possibility that she was. Her failure to make such a finding will have a direct impact on the welfare evaluation.”

Mr Twomey for the local authority cited the observation of Hayden J in Lancashire County Council v M and others [2023] EWHC 3097 (Fam) paragraph 63:

“Declining to identify a perpetrator, where the evidence establishes it, is not merely erring on the side of caution, it is a failure to exercise the duty imposed by law.”

Discussing the case, Baker LJ observed that although it is not always necessary for the perpetrator, or pool of possible perpetrators, of non-accidental injuries to a child to be identified for the attributability condition in s.31(2) to be satisfied, it is in most cases “important for the court to do so if it can” for the reasons set out by Baroness Hale in Re S-B.

He said: “All of the reasons for identifying the perpetrator or the pool of possible perpetrators identified by Baroness Hale in Re S-B arise in this case. “It will help to identify the real risks to the child[ren] and the steps needed to protect him. It will help the professionals in working with the family. And it will be of value to the child[ren] in the long run.””

Baker LJ concluded that the judge was wrong to conclude the fact-finding stage without either finding 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.

He said: “I agree with Mr Twomey’s submission that, on the current findings, the court making final welfare decisions about the children would not be able to consider the possibility that the mother harmed the child, only that she has not been honest about what has happened. This latter finding is relevant to her capacity to care for her children, but it is a fundamentally different form of risk from that which arises if the mother is the perpetrator, or a possible perpetrator, of the injuries.

“Further, the judge did not explain how her finding that the mother knew how the injuries were caused but chosen not to tell the truth established the attributability condition.

“She may have concluded that the mother was present on one or all of the occasions when the child was injured and failed to protect her. Or she may have concluded that the mother was not present when the child was injured on the first occasion but realised that she had been injured and failed to protect her on the subsequent occasion or occasions. Or she may have concluded that, although she could not make a finding that the mother failed to protect the child prior to the injuries being inflicted, the fact that she “knows how the injuries were caused and has chosen not to tell the truth” meant that there was a likelihood of B suffering significant harm in future.”

He observed that the professionals tasked with carrying out a risk assessment will be unable to know the factual basis on which they are required to assess the risk of future harm to B in her mother’s care.

He added that although the judge’s findings may have been sufficient to cross the threshold, they were “plainly insufficient to equip the court to make decisions about the children’s future welfare”.

Lord Justice Baker allowed the appeal on the first part of ground one.

He said: “The guardian and local authority invite this Court to substitute a finding that the mother was the perpetrator. That is not a course I would be prepared to take. Having heard the evidence, the judge was not prepared to make the finding and it would be quite wrong for this Court to reach a different conclusion having heard no evidence at all.

“With great reluctance, and if my Ladies agree, I would therefore remit the matter for a rehearing, listing it in the first instance before MacDonald J, the Presiding Family Judge, to determine allocation and perhaps give case management directions to ensure that the difficulties about late disclosure which blighted the first hearing do not recur.”

Lady Justice Elisabeth Laing and Lady Justice Asplin agreed.

Lottie Winson