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CARE PROCEEDINGS: Re D (Care Proceedings: Preliminary Hearing) [2009] EWCA Civ 472

Date:4 JUN 2009

(Court of Appeal; Thorpe, Wall and Elias LJJ; 4 June 2006)

The younger of the two children, aged 10 weeks, was found to have a number of injuries, including rib and skull fractures, and a torn frenulum. Subsequently the older child, aged 2, was found to have lesser injuries. The local authority began care proceedings in respect of both children. The medical evidence was that the injuries were non-accidental, and it was common ground that they had occurred while the children were in the parents' care; both parents denied responsibility for the fractures. The parents had a volatile relationship, marked by drug taking on the father's part, difficulties over the care of the younger child, violence and periodic separations. Some years earlier the father had been identified as the possible perpetrator of injuries to his child from an earlier relationship. At the fact-finding hearing the medical evidence was that a torn frenulum was usually the result of forcible feeding in a bottle-fed baby. The mother accepted responsibility for causing the torn frenulum. However, the judge made a 'neutral' finding as to the frenulum, on the basis that it could not be said who was responsible for that injury. The judge went on to find, applying the balance of probabilities test, that the father was the sole perpetrator of the remaining injuries suffered by both children. The judge excluded the mother as perpetrator, noting that it was better to identify one of the parents as the perpetrator than to leave an unsatisfactory state of uncertainty. The father appealed. On appeal the local authority and the guardian argued, as they had done at the hearing, that neither parent could be excluded as a possible perpetrator.

Although Re B (Care Proceedings: Standard of Proof) (Cafcass Intervening) [2008] UKHL 35 established that the standard of proof to be applied to all findings of fact in care proceedings was 'the simple balance of probabilities test', the court was not required to identify a perpetrator on the basis that the question for the court was simply whether it was more probable that one rather than the other was the perpetrator. Re K (Non-accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181, was not inconsistent with the judgments in Re B in stating that it was in the public interest for those who caused non-accidental injuries to be identified, 'wherever such identification is possible', and that children needed to know the truth as to what happened to them 'if the truth can be ascertained'. Nothing in Re B required the court to identify an individual as the perpetrator of non-accidental injuries to a child simply because the standard of proof for such an identification was the balance of probabilities. If such an identification was not possible, because, for example, a judge remained genuinely uncertain at the end of a fact-finding hearing, it was the duty of the judge to state this. The judge should not start from the premise that it would only be in an exceptional case that it would not be possible to make such an identification. There would inevitably be cases in which the only conclusion the court could properly reach was that one of the two parents, or both, must have inflicted the injuries, and that neither could be excluded; this was such a case. The appeal was allowed, and the judge's finding that the father was the sole perpetrator of the injuries was replaced by a finding that neither parent could be excluded; the neutral finding as to the frenulum would be replaced with a finding that the mother had caused that injury. While there were some exceptions to the general rule that the same judge should conduct both the fact-finding hearing and the welfare hearing, this was not one of them. The judge had already spent 14 days on the factual issues and there would be no prejudice to the parents if he continued to do so. To direct a re-hearing before a different judge, or to direct that a different judge take over the management of the case would be a profligate waste of valuable and limited resources, as well as contrary to the principles laid down in Re B.