(Court of Appeal; Thorpe, Longmore and Bodey J; 30 June 2009)
Reaffirming an earlier decision, Re D (Care Proceedings: Preliminary Hearing)  EWCA Civ 472, the Court of Appeal confirmed that the House of Lords in Re B (Care Proceedings: Standard of Proof)  UKHL 35  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  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.