S-B (Children)

This is an appeal from a judgment of HHJ Lindsey Kushner QC sitting as a deputy judge of the Family Division in the Manchester court, ultimately on 28 January 2009, when she distributed the written judgment that she had signed on 13 January to conclude a final hearing in public law proceedings which she had conducted between 8 and 15 December 2008. At the heart of the public law proceedings were two children, Jake, who was born on 19 May 2007, and Warren, who was born on 12 July 2008.

The chronology is of some significance, so I return to the summer of 2007 when, on 15 June, Jake, then not quite a month old, was taken to the general practitioner who onward referred to the Trafford General Hospital where a specialist registrar in paediatrics concluded that he had been subjected to non-accidental injuries. The local authority were involved and on 25 June issued their application for a care order.

The case has many unusual features, the first of which is that, although Jake’s injuries occurred at a time when he was in the care of both his parents, his father took no part at all in the consequential investigation of the injuries or in the care proceedings initiated by the local authority. The case proceeded to a trial of a preliminary issue to establish 1) whether Jake had indeed suffered non-accidental injuries, and 2) if yes, which of the parents could be identified as the perpetrator.

The mother’s initial litigation stance was to challenge that the injuries sustained by Jake were non-accidental. As the judge was to put it in a judgment of April 2008:

“A main puzzle has been the refusal of the mother, till her final statement, to accept the manifest experts’ opinions that the injuries had been non-accidental in nature. Further, despite their concerns, initially she failed or refused to take the injuries seriously feeling they were of little if any significance.”

Thus the mother’s concession that the injuries were indeed non-accidental, coupled with the father’s abstention from the litigation process, left only limited territory for investigation and decision at the fact-finding hearing which commenced on 28 January and concluded on 20 March 2008. The stance of the local authority was that the judge should find that neither parent could be exculpated and that either of them might have been responsible for the injuries. The Guardian Ad Litem was not represented at that hearing by counsel but supported the position adopted by the local authority. Thus the adversarial issue for the judge to decide was: did the local authority make good their case against both parents or was the mother entitled to exculpation, as she submitted?

The judge in her judgment of 3 April 2008 accepted the local authority’s submission supported by the guardian and found that neither parent could be excluded. In her reasoning she considered first the case against the father, and that section opened with this sentence:

“There is a high index of suspicion in relation to the father”

In relation to the mother she said this:

“…she has been most reluctant to acknowledge that, on the basis that she hadn’t caused the injuries, [the father] must therefore have been the perpetrator.

First, possibly she refused to accuse him in terms because she knew he had not caused the injuries because she was in fact the perpetrator.

The other possibility is that, despite knowing that [the father] was the perpetrator, she was still so attached to him that she sought to protect him even though he injured her baby.

Sadly, although she did take the child to the baby clinic, this does not of itself provide me with evidence of sufficient strength to persuade me that she could not have injured the child in the first place.

Under all the circumstances I cannot on the information before me decide whether the mother was protecting [the father] because she was still attached to him despite his injuring the child, or because she [cou]ldn’t bring herself to accuse him falsely since she had caused the injuries herself.

Accordingly, with regret, although I accept her love and affection for her son, I cannot rule her out as a perpetrator either”

This judgment was not appealed by the mother but at a directions hearing on 5 June her then counsel invited the judge to give assistance to professional assessors in relation to the assessment of the relative likelihood of the mother or the father being the perpetrator. The judge acceded to that application almost immediately by a judgment dated 6 June which she had headed “Adjunct to Judgment”. She briefly introduced the task she had undertaken saying:

“…I have been asked by the parties to assist by indicating my view as to the relative likelihood of the mother being the perpetrator of the injuries to Jake which triggered these proceedings.”

In paragraph 4 she said:

“The mother’s surrounding circumstances at the time of Jake’s injuries were such that, for the reasons given, she was very vulnerable and therefore I felt that she could indeed have caused Jake’s injuries.”

Finally she said:

“Invidious though it is to be too specific, but to help further assessments, I am prepared to say that I feel it is 60% likely that the father injured the child and 40% likely that it was the mother.”

On the basis of the adjunct a number of professionals came to assist the court with their assessments, either social or psychological, in preparation for what was to be a disposal not only in relation to Jake but also in relation to Warren, in respect of whom the local authority applied for a care order on 14 July, two days after his birth. However, a significant event occurred on the day preceding Warren’s birth, for on 11 June the House of Lords handed down their judgment in the case of Re B [2008] 2 FLR 141. Its significance was not immediately appreciated, but on 20 November 2008 Ms Case, who had come into the litigation to represent the mother in place of previous counsel, took the point that the effect of the decision of the house in Re B was to unravel the judge’s conclusions in relation to the uncertainty as to which parent had perpetrated.

In the light of the House’s introduction of the binary approach, it was submitted on behalf of the mother that since the judge was 60 percent satisfied as to the father’s responsibility, ergo there had to be a finding on the balance of probabilities that he was the perpetrator with the consequential finding that the mother was absolved of responsibility. That argument was considered by HHJ Kushner in her judgment of 13 January 2009. She addressed the point fully and conscientiously in paragraphs 2 and 3 of her judgment, which collectively extend to some 30 sub paragraphs. However, although rejecting Ms Case’s submission, she granted her permission to appeal on the point and that explains how we are assembled this morning, with Mr Anthony Hayden QC arguing the point presented first by Ms Case to HHJ Kushner. He is opposed by Ms Grocott QC for the local authority and Ms Judd QC for the guardian.

Mr Hayden in his elegant and forceful submission says that the jurisprudence in this difficult area has been comprehensively revised by the decision in Re B. He says that it is of clear application not only to the primary question -- has the local authority proved the facts necessary to cross the Section 31 threshold? -- but also in the secondary question -- which adult is to bear responsibility for the infliction of injury? -- and Mr Hayden refers most particularly on the speech of Baroness Hale, paragraphs 70-73 inclusive:

“70.

My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.

71.

As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted; or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted; or he may find himself still at liberty to maltreat this or other children in the future.

72.

As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability. Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. Even then there are circumstances, such as a body with its throat cut and no weapon to hand, where it is not at all improbable. Other seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and not at all improbable. Nor are serious allegations made in a vacuum. Consider the famous example of the animal seen in Regent’s Park. If it is seen outside the zoo on a stretch of greensward regularly used for walking dogs, then of course it is more likely to be a dog than a lion. If it is seen in the zoo next to the lions’ enclosure when the door is open, then it may well be more likely to be a lion than a dog.

73.

In the context of care proceedings, this point applies with particular force to the identification of the perpetrator. It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Some-one looking after the child at the relevant time must have done it. The inherent improbability of the event has no relevance to deciding who that was. The simple balance of probabilities test should be applied.”

Mr Hayden also relies on the oft cited paragraph in the speech of Lord Hoffman, that is to say paragraph 15:

“15.

I wish to lay some stress upon the words I have italicised. Lord Nicholls was not laying down any rule of law. There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one’s reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator.”

Finally Mr Hayden draws attention to paragraphs 31 and 32 in the speech of Baroness Hale:

“31.

My Lords, if the judiciary in this country regularly found themselves in this state of mind, our civil and family justice systems would rapidly grind to a halt. In this country we do not require documentary proof. We rely heavily on oral evidence, especially from those who were present when the alleged events took place. Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses. The task is a difficult one. It must be performed without prejudice and preconceived ideas. But it is the task which we are paid to perform to the best of our ability.

32.

In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof.”

In relation to these passages it can be said, and has been said by Mr Hayden, that in paragraph 73 the Baroness appears to approach the issue in relation to the identification of the perpetrator. She says there of course in the final sentence:

“The simple balance of probabilities test should be applied”

To like effect Mr Hayden emphasises the final sentence in paragraph 15 of Lord Hoffman’s speech:

“The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator.”

In the third passage cited by Mr Hayden, he of course emphasises the sentences in paragraph 31, which emphasise that the judge must not duck the task, difficult though it may be. It is the task, that is to say a clear decision on the balance of probabilities, which we are paid to perform.

Mr Hayden, applying that law to this case, says that given that the judge has found percentages in the adjunct to judgment so clearly, the passages cited from Re B demand the conclusion that the father was proved to be the perpetrator on the balance of probabilities.

Mr Hayden, when teased with the question “Well, what if a judge says 51/49, does it follow that the parent in respect of whom there is a 49 percent possibility of perpetration is to be exculpated?” -- Mr Hayden boldly says yes. When further teased Mr Hayden says that effectively the only future case of uncertain perpetrator would be the case in which the judge at the end regards the possibility as being 50/50.

It seems to me that although Mr Hayden’s argument is skilfully constructed, it is plainly wrong. The issue that the House considered in Re B was where a party seeking to prove an event usually an abusive act or injury to a child, is that to be proved on some sliding civil standard elevated proportionally to the gravity of the injury, or is it to be proved simply on the balance of probabilities? Thus, if the judge is satisfied on the balance of probabilities, then the consequence is that the event alleged occurred. If the judge is not so satisfied then the consequence is that the event alleged did not occur. That of course was a sweeping departure from the earlier authorities in the House of Lords in relation to child abuse, most obviously the case of H and Others [1996] AC 563.

In Re B the House was not specifically concerned directly with the proper approach to the determination of inculpation or exculpation of two adults who were simultaneously or from time to time with the care of the child and therefore with the opportunity to have inflicted the injury. The leading case in that sphere is unquestionably the earlier decision of the House in O and N [2003] 1 FLR 1169. I draw particular support from the paragraphs under the heading “The Welfare Stage: Uncertain perpetrator cases”, particularly paragraphs 26-28 and 31-32:

“26.

The first area concerns cases of the type involved in the present appeals, where the judge finds a child has suffered significant physical harm at the hands of his parents but is unable to say which. I stress one feature of this type of case. These are cases where it has been proved, to the requisite standard of proof, that the child is suffering significant harm or is likely to do so.

27.

Here, as a matter of legal policy, the position seems to me straightforward. Quite simply, it would be grotesque if such a case had to proceed at the welfare stage on the footing that, because neither parent, considered individually, has been proved to be the perpetrator, therefore the child is not at risk from either of them. This would be grotesque because it would mean the court would proceed on the footing that neither parent represents a risk even though one or other of them was the perpetrator of the harm in question.

28.

That would be a self-defeating interpretation of the legislation. It would mean that, in 'uncertain perpetrator' cases, the court decides that the threshold criteria are satisfied but then lacks the ability to proceed in a sensible way in the best interests of the child. The preferable interpretation of the legislation is that in such cases the court is able to proceed at the welfare stage on the footing that each of the possible perpetrators is, indeed, just that: a possible perpetrator. As Hale LJ said in re G (Care proceedings: split trials) [2001] 1 FLR 872, 882:

"the fact that a judge cannot always decide means that when one gets to the later hearing, the later hearing has to proceed on the basis that each is a possible perpetrator."

    This approach accords with the basic principle that in considering the requirements of the child's welfare the court will have regard to all the circumstances of the case.”

“31.

In 'uncertain perpetrator' cases the correct approach must be that the judge conducting the disposal hearing will have regard, to whatever extent is appropriate, to the facts found by the judge at the preliminary hearing. Nowadays the same judge usually conducts both hearings, but this is not always so. When the facts found at the preliminary hearing leave open the possibility that a parent or other carer was a perpetrator of proved harm, it would not be right for that conclusion to be excluded from consideration at the disposal hearing as one of the matters to be taken into account. The importance to be attached to that possibility, as to every feature of the case, necessarily depends on the circumstances. But to exclude that possibility altogether from the matters the judge may consider would risk distorting the court's assessment of where, having regard to all the circumstances, the best interests of the child lie.

32.

Similarly, and for the same reason, the judge at the disposal hearing will take into account any views expressed by the judge at the preliminary hearing on the likelihood that one carer was or was not the perpetrator, or a perpetrator, of the inflicted injuries. Depending on the circumstances, these views may be of considerable value in deciding the outcome of the application: for instance, whether the child should be rehabilitated with his mother.”

Mr Hayden has been obliged to submit that as a matter of logic, the decision of the House in O and N has been overruled by the subsequent decision in Re B; not, he has to concede, expressly, but, he says, by implication. I reject that submission. It seems to me perfectly plain that at no stage was the House in Re B directing its mind to the areas that had been canvassed in O and N. In so stating, I am only repeating the position adopted by this court earlier this month in the case of NH v A County Council & Ors [2009] EWCA Civ 472, a case that has not yet been reported in the specialist reports, I draw attention to paragraph 12 of the judgment of the court which emphasises that it is not the consequence of the decision in Re B that the judge is obliged to make a finding on the binary balance of probability as between two possible perpetrators. As the court said in this paragraph:

“6.

Before we turn to an examination of the particular facts of the case, we think it necessary to preface our conclusions by considering the impact of Re B on cases such as the present. We do so both because of the way in which the judge expressed himself, and in the light of the submissions made to us, notably the argument advanced to us on behalf of the father that, following Re B, it would be a rare case in which a judge could not identify the perpetrator of injuries to a child, and the argument advanced by both parents that if we did not uphold the judge’s findings, there should be a retrial.  Mr. Tolson also submitted that the retrial should take place before a different judge.”

“12.

… There will inevitably be cases - of which this, in our judgment, is one – where the only conclusion which the court can properly reach is that one of the two parents – or both - must have inflicted the injuries, and that neither can be excluded.”

So my last word on this present appeal is that the judge throughout acted with high judicial responsibility. She acceded to the request of all parties to add an adjunct to her judgment for the aid of social workers and psychologists who have to found themselves on her conclusions. That is but the high standard of inter-disciplinary working to be expected of the specialist judges in the Manchester Court. It is simply an unfortunate fact that she spoke five days before the judgment of the House in Re B, and, had she had the advantage of that authority, it may well be that she would have hesitated to say what she did by way of adjunct. If there is a lesson to be learned from this appeal, it seems to me to be this: that in future judges should be cautious before amplifying a judgment in which they have simply reached the conclusion that neither of two possible perpetrators can be exculpated. Safer to leave it thus.

For all those reasons I would dismiss this appeal.

I agree.

The learned judge made it clear in her Judgment on 13 January 2009, after considering Re B, that her comments in her ‘Adjunct to Judgment’ dated 6 June 2008 were given “without resiling” from her fact-finding Judgment of 3 April 2008. There, she had found herself unable to determine which parent was the perpetrator. She has described her indication of 6 June 2008 as an impression falling short of a finding. In my judgment it would be wrong, and it would potentially create risk, to elevate what the judge was intending to do into something she was clearly not intending to do, namely to make a finding of exculpation. I agree with my Lord Justice Thorpe that this appeal should be dismissed.