(Supreme Court; Lord Hope, DP, Lord Rodger, Lady Hale, Lord Brown, Lord Collins, Lord Kerr, Lord Clarke; 14 December 2009)
The question whether the mother was a perpetrator of the injuries to the child was crucial to the question whether the baby was likely to be returned to her care. The standard of proof when identifying a perpetrator was certainly the balance of probabilities. It might be difficult for the judge to decide, even on the balance of probabilities, who had caused the harm to the child, and there was no obligation to do so; unlike a finding of harm, it was not a necessary ingredient of the threshold criteria. Judges should not strain to identify perpetrators if the evidence was not such as to establish responsibility on the balance of probabilities. If a judge could not identify a perpetrator or perpetrators, it was still important to identify the pool of possible perpetrators. Parents should not have to establish their innocence to avoid being included in the pool, the evidence should be such as to establish whether there was a real possibility that a particular person was involved.