Latest articles
UK Immigration Rough Sleeper Rule
Aaron Gates-Lincoln, Immigration NewsThe UK government has recently introduced a controversial new set of rules that aim to make rough sleeping grounds for refusal or cancellation of a migrant’s...
Teaching Hospitals NHS Trust v DV (A Child) [2021] EWHC 1037 (Fam)
(Family Division, Cohen J, 19 April 2021)Medical Treatment – 17-year-old had form of bone cancer and required surgery For comprehensive, judicially approved coverage of every important...
Domestic Abuse Bill
Aaron Gates-Lincoln, Immigration NewsAfter years of development the Domestic Abuse Bill returned to the House of Lords in the UK on the 8th March 2021 to complete its report stage, one of the final...
Coercive control and children’s welfare in Re H-N and Others
When families come to strife, arrangements must be made for the future care of any children. In some circumstances, this means an application to the courts. These ‘private law orders’ can...
Profession: Expert Witness
The value of a family business or business interest is treated as an asset and therefore part of the matrimonial pot to be distributed when it comes to negotiating a financial settlement on divorce or...
View all articles
Authors

CARE: Re S-B (Identification of Perpetrator) [2009] EWCA Civ 1048

Sep 29, 2018, 17:11 PM
Slug : re-s-b-identification-of-perpetrator-2009-ewca-civ-1048
Meta Title :
Meta Keywords :
Canonical URL :
Trending Article : No
Prioritise In Trending Articles : No
Date : Oct 20, 2009, 04:22 AM
Article ID : 87205

(Court of Appeal; Thorpe, Longmore and Bodey J; 30 June 2009)

Reaffirming an earlier decision, Re D (Care Proceedings: Preliminary Hearing) [2009] EWCA Civ 472, the Court of Appeal confirmed that the House of Lords in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 [2008] 2 FLR 141 had not been dealing with the proper approach to the determination of the inculpation or exculpation of two adults who were simultaneously or from time to time caring for a child, and who had therefore had the opportunity to injure the child, but with the issue of what standard of proof was to be applied to the question whether an abusive act or injury had taken place: a sliding scale elevated proportionally to the gravity of the injury, or a simple balance of probabilities.

The decision of the Lords in Re B that the judge must be satisfied on the simple balance of probabilities test that the event alleged had occurred had not overruled the earlier decision of the Lords in Re O and N [2003] 1 FLR 1169 on the correct approach when the judge had found that a child had suffered significant physical harm at the hands of the parents, but was not sure which of the parents was responsible.

To apply the simple balance of probabilities test to the question which of the parents was responsible would remove the court's ability to proceed at the welfare stage in the best interests of the child. The preferable interpretation was that the court was able to proceed at the welfare stage on the footing that each of the possible perpetrators was a possible perpetrator, in accord with the basic principle that in considering the requirements of the child's welfare, the court would have regard to all the circumstances of the case.

This judge had had the misfortune to add an adjunct to her judgment, at the mother's request, indicating that there was a 40% likelihood that the mother was the perpetrator, 5 days before Re B was decided. In future judges should be cautious before amplifying a judgment in which they had simply reached the conclusion that neither of two possible perpetrators could be exculpated.

Categories :
  • Archive
  • Judgments
Tags :
Authors
Provider :
Product Bucket :
Recommend These Products
Related Articles
Load more comments
Comment by from