Court of Appeal rejects appeal by mother over inclusion in pool of perpetrators

The Court of Appeal has rejected a mother’s appeal against a judge’s decision to place her in the “pool of perpetrators” of injuries inflicted on her youngest child, after the judge was unable to make a finding on the balance of probabilities whether the injuries were inflicted by her or her partner.

In H, Re (Children: Uncertain Perpetrator: Lies) [2024] EWCA Civ 1261 (23 October 2024), Lord Justice Peter Jackson concluded: “Taken overall, the judge carried out the essential task, which was to consider each individual separately in order to determine whether they could be found on the balance of probabilities, to be the perpetrator. Given that neither individual was reliably truthful and that one or both knew a great deal more than they were prepared to say, the judge's conclusion was clearly open to her and is unassailable on appeal.”

The appeal arose from a fact-finding hearing in care proceedings relating to three children, which began after the youngest child suffered bruising and fractures on at least two occasions.

Peter Jackson LJ noted that the children's parents separated in January 2022, with the father leaving.

In March 2022, the intervenor moved into the home as the mother's partner. The injuries to the youngest child occurred in the period May/June 2022.

Having heard expert medical evidence, Her Honour Judge Shanks found that the injuries were inflicted, and she made findings about their timings. She excluded the father and the oldest child as being responsible for the injuries.

The remaining issue was whether the judge could identify either the mother or the intervenor as the perpetrator.

It was found that both had told a number of lies during the course of the investigation, including a pretence that they had separated in 2023, when in fact their relationship had continued until shortly before the hearing in May 2024.

The mother's case was that she had not caused the injuries and that, if they were inflicted and not caused by the father or the eldest child, they must have been caused by the intervenor.

The judge concluded that she could not make a finding on the balance of probabilities and she placed the mother and the intervenor in the pool of perpetrators.

The mother appealed against that conclusion on three grounds:

1. Failure to undertake a proper analysis of the identified lies.
2. Failure to apply the correct approach, or undertake the analysis necessary, to seek to identify the perpetrator.
3. Failure to identify the intervenor as perpetrator as being contrary to the weight of the evidence.

Peter Jackson LJ noted that when granting permission to appeal, Baker LJ had “expressed reservations” about the third ground, which invited the Court of Appeal to substitute a finding against the intervenor.

He added: “That prospect, which would only arise if we were persuaded that the appeal should be allowed, faces obvious difficulties and it was not pressed.”

Considering the judgment, Peter Jackson LJ noted that the judge approached her task in a “methodical manner”.

He said: “Her judgment, at 21 pages, was an efficient distillation of the mass of information before the court, during which she identified the matters that she considered to be important.”

As to the parts of the decision that received attention on appeal, the judge had recorded that the mother admitted lying to a health visitor on the day before the child's admission to hospital, by asking her not to visit because the family had a sickness bug.

The mother explained this lie as being because she was concerned about what the health visitor would think about the bruising and because she had not done some paperwork.

The judge found that it was a “deliberate lie to deceive the health visitor” because the mother did not want there to be any investigation into the bruising.

Her Honour Judge Shanks concluded that she could not say whether the perpetrator was the intervenor or whether it was the mother. She said: “Both are in the pool of perpetrators. It was one of them. There is evidence which has not been put before the court. I cannot say who the perpetrator was."

Turning to the grounds of appeal, Peter Jackson LJ noted that on ground 1, counsel for the mother submitted that the judge “failed to identify the relevance of the mother's lies to the issue of perpetration, or explain how far those lies led to her ultimate findings.”

It was submitted that the judge’s statements that they were 'lies to deceive' and that they were relevant to perpetration were “insufficient”.

On this, Peter Jackon LJ said: “I do not accept that the judge approached this issue incorrectly or that her analysis was inadequate. She was obliged to exercise an overview of the totality of the evidence […] and to survey a wide canvas, including a detailed history of the parties' lives, their relationship and their interaction with professionals.

“[…] In that context, she understandably found the lies to the health visitor and to the court to be significant. Their relevance was clear. One lie involved shielding a child with bruising from a professional at an important point in the chronology and another took the form of sustained collusion between the two adults who had had day-to-day care. The judge did not deploy them in order to make a positive finding, but in part-explanation of why she found herself unable to identify a single perpetrator. Beyond identifying their relevance and significance, and considering the explanations offered by the mother, she was not required to do more.”

Peter Jackson LJ observed that lies, where they are admitted or alleged, will form just one part of the overall evidence in family proceedings. He added: “The underlying purpose of the Lucas direction is to ensure that proven lies are assessed with a sense of proportion.”

Counsel for the mother further submitted that the court is required to exclude a lie from consideration altogether in any case where it cannot be satisfied (to whatever standard) that the only explanation for it is to conceal guilt.

Peter Jackson LJ did not accept that submission. Dismissing the first ground, he said: “So far as concerns the present case, the judge was entitled to take account of the lies told by both adults in her overall survey of the evidence. She was not required to ignore them unless the only explanation for them was guilt. Indeed, one highly significant deception (the false separation) was maintained, for whatever motive, by both possible perpetrators. That illustrates the artificiality of a rule requiring the court to ignore a lie unless it unmistakeably demonstrated guilty knowledge on the part of the one who had caused the injuries.”

On ground 2, counsel for the mother made two submissions: first, that the parties had addressed the judge about Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575, [2019] 1 WLR 4440, and Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348, [2023] 1 WLR 1743, but she only referenced the earlier case in judgment.

Peter Jackson LJ noted that the later case contains a “minor refinement”, dispensing with the guidance that judges need not strain to make findings.

He said: “[Counsel for the mother] described this as a minor error, but it was not even that. The judge confirmed that she had applied the 'unvarnished' approach recommended in Re A and there is no indication that she did otherwise.”

The second submission was that that the judge did not sufficiently analyse the evidence that pointed for and against each of the two adults as being responsible for the injuries, and that in this respect the judgment was “significantly lacking”.

In his skeleton argument, counsel for the mother identified some thirty elements of the evidence or argument which, he argued, were not properly taken into account and which should have led the judge to make a finding against the intervenor alone.

Peter Jackson LJ did not accept this argument. He said: “As I have already noted, the judgment is a distillation of a mass of evidence, from which the judge chose elements that she considered significant. The fact that she did not alight on a particular argument or piece of evidence is unobjectionable.

“Further to that, an analysis of [counsel for the mother's list shows that almost all of the matters were in fact mentioned during the course of the judgment. Taken overall, the judge carried out the essential task, which was to consider each individual separately in order to determine whether they could be found on the balance of probabilities, to be the perpetrator.”

He continued: “Given that neither individual was reliably truthful and that one or both knew a great deal more than they were prepared to say, the judge's conclusion was clearly open to her and is unassailable on appeal.”

Peter Jackson LJ dismissed the appeal. Lord Justice Moylan agreed.

Lottie Winson