(Court of Appeal; Sir Mark Potter P, Wilson and Rimer LJJ; 20 November 2009)
The child had suffered a series of non-accidental injuries. The judge found at the fact-finding hearing that it was possible for him to identify the father as the perpetrator of two minor injuries to the child, but that he could not on the balance of probabilities be satisfied that either of the parents was the sole perpetrator of the more serious injuries, which meant that neither parent could be excluded as a possible perpetrator of those injuries. The judge went on to conclude that for a number of reasons the father was more likely than mother to have perpetrated the injuries.
The judge's statement identifying the father as the more likely perpetrator did not require him to find that the father was the sole perpetrator of the injuries. At the stage when that statement had been made, the judge had no longer been focussing upon the task of deciding whether he was satisfied that each of the injuries relied upon had been caused by one or other parent, but rather had been making observations designed to assist the local authority, and those who would be involved at the welfare stage. Having stated that he was unable to be satisfied to the requisite standard of proof that the more serious injuries could be attributed to the father alone, the judge nonetheless sought to indicate in an appropriate fashion those matters in respect of each of the parties which fell to be taken into account in any risk assessment at the welfare stage. While it was a logically defensible position, it would be rare for a judge to be unable to be satisfied that a person was the perpetrator, but nonetheless to be able to conclude that, of those within pool of perpetrators, that person was the most likely perpetrator.