ON APPEAL FROM CENTRAL FAMILY COURT
HHJ Meston QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LINDBLOM
LORD JUSTICE PETER JACKSON
| B (Children : Uncertain Perpetrator)
Sally Bradley (instructed by London Borough of Islington) for the Respondent Local Authority
Saiqa Chaudhry (instructed by Steel and Shamash) for the Respondent Mother
Caroline Budden (instructed by TV Edwards Solicitors) for the Respondent Children through their Guardian
Hearing date: 26 March 2019
Crown Copyright ©
Lord Justice Peter Jackson:
"81. … Although I am not able to say definitely that [the father] was responsible for the infection of the children, I am not able to exclude him as there must remain a real possibility of him having caused this infection in some way…
82. Accordingly, I find nothing more than that the father is within a pool of possible perpetrators with other unknown males who may have had access to the children, or at least one of them, including the two young men in the family home."
(1) "A positive culture for N gonorrhoeae from any site in a child without prior peer sexual activity is strongly suggestive of sexual abuse. The question of whether gonococcal infection in children can be acquired through fomites [objects likely to carry infection] still arises. To date there are no convincing data to support nonsexual mode of transmission in children."
(2) "It is worthwhile stating that failure to identify an infected perpetrator does not rule out the possibility of sexual abuse, since treatment may render an individual culture negative within hours of therapy. The latter treatment is a simple one dose of antibiotics and the suspect may be treated before being tested."
(3) "It is possible that one child got infected sexually and transmission to others took place through the infected child if it can be seen that there were intimate sexual contact."
(4) "Other route such as sharing infected towels, fomites, underwear have not been substantiated and established."
(5) "The incubation period range from 3 days to 14 days. N gonorrhoea cannot survive outside the body for any significant length of time."
(6) "It would have been beneficial to obtain/identify all adult contacts who came in touch with the children at the material time and obtain all relevant GUM [genitourinary medicine] medical notes if possible."
(7) "It therefore follows that it is difficult to establish with any degree of certainty the exact source and causal link of the children's gonorrhoea. However in all the circumstances of the case sexual mode of transmission is more likely."
(1) "It is extremely unlikely that the infection could have been transmitted by [fomite] …
(2) Either the father transmitted the infection to the children by having sexual contact with them, or an unknown male or unknown male adults have infected the children by having sexual contact with them.
(3) Either the mother has failed to take proper steps to safeguard or protect her children from the sexual abuse perpetrated upon them by their father; or if it is not possible to establish the identity of the perpetrator, both the mother and father have so failed to protect their children from the sexual abuse perpetrated upon them; or either or both the mother and the family have been complicit or have colluded in such sexual abuse as has occurred to their children."
The Judge's decision
(1) The burden and standard of proof.
(2) The need to base findings on proper evidence and inferences, and not on suspicion or speculation.
(3) That need to consider expert evidence in the context of all the other evidence.
(4) The importance of the parents' credibility.
(5) The need for cautious assessment of lies: Lucas.
(6) The possibility of an unknown cause.
(7) The need to ensure that the burden of proof is not reversed when a carer does not provide an explanation – it is still the local authority's responsibility to prove the allegation to the required standard.
"38. Finally, and again of importance in this case, when seeking to identify the perpetrator of non-accidental injuries, if there is not sufficient material positively to identify the perpetrator, the court has to decide whether there is a real possibility or likelihood that one or more of a number of people with access to the child might have caused the injury to the child (North Yorkshire County Council v SA  EWCA Civ 839,  2 FLR 849). The test for exclusion of a possible perpetrator is whether there is no real possibility of the injury having been caused by that person. In the North Yorkshire County Council case Thorpe LJ said at para. 44:
"[N]o real possibility allows a review of all relevant facts and circumstances including opportunity."
39. As is well known, it is always desirable, where possible, for the perpetrator to be identified, both in the public interest and in the interests of the child; although where it is impossible for a judge to find on the balance of probabilities, that, for example, Parent A rather than Parent B caused the injury, then neither can be excluded from the pool, and the judge should not strain to do so."
"46. As I have already indicated, there are gaps in the evidence because the court does not have a full picture of the living arrangements; and the other people in the household in Brixton have not been questioned in any significant way. And indeed, even if they had been questioned, they certainly could not have been compelled to undergo testing (for whatever that might be worth)."
"76. … By its nature it is a case which inevitably presents considerable difficulties for the court in analysing what has happened and in determining whether or not it has been established that at least one of the children was sexually abused. There is no physical evidence of a penetrative assault. On the one hand the court has the fact of the infection of three young girls with gonorrhoea, and on the other hand the apparently restrained evidence of the parents, in particular that of the father who took [Maggie] to the GP."
"77. … Although the possibility of infection through fomites, such as towels, cannot be completely ruled out, it is clearly regarded by both Dr Ghaly and others with expertise in this area as a remote possibility.
78. There is therefore nothing to say exactly when or exactly how these children contracted gonorrhoea… [but] the range of dates for the period of incubation does give some indefinite guidance as to when it is likely that the infection occurred.
79. There is the further point, which was made clearly on behalf of the Guardian, that it is not possible to say which of the children was the first to contract the infection; and whether the situation was that the child who first contracted the infection somehow passed it on to the others; or alternatively whether each of them separately contracted the infection by transmission from an adult or adults."
80. The court has the strong and authoritative evidence of Dr Ghaly in this case, that for at least one of the children the infection must have been sexually transmitted. Regrettably I consider that is the conclusion which on the balance of probabilities I must reach in the circumstances of this case."
"81. That leads to the second stage of the enquiry, which is to determine the perpetrator of the infection. Although the father had quite limited contact with the children, and on his evidence and that of the mother, he was not staying overnight in the household with the children during the relevant period he did have the opportunity to transmit infection. Therefore, although I am not able to say definitely that he was responsible for the infection of the children, I am not able to exclude him as there must remain a real possibility of him having caused this infection in some way.
82. However, I have reached that conclusion in the context of a situation in which there are remaining gaps in the evidence, and in this case it cannot be said to have been established that there was a finite pool of perpetrators. Accordingly, I find nothing more than that the father is within a pool of possible perpetrators with other unknown males who may have had access to the children, or at least one of them, including the two young men in the family home. I am not able to reach a finding which is any more definite than that because the evidence would not allow such a finding to be made."
"83. That leads to the question of the mother's role and as to whether there was a failure to protect on her part. A finding of failure to protect in this context would require evidence suggesting that the mother knew of the risk posed by the father and of the need to remove or mitigate that risk. I can see no evidence to suggest that the mother knew of the risk or of any need to mitigate such risk. And therefore, I cannot make a finding of failure to protect against her, and I do not find that there is any evidence on which I could properly infer that there has been collusion between the mother and the father. That concludes the judgment."
"(1) Does the court accept the evidence of the mother and the father? In particular does the court accept the father's evidence as to the time he spent with the children…?
I did not wholly accept the evidence of the mother and father. I did not accept the evidence that the father was not left alone with any of the children other than to the extent he accepted… The evidence was that the father came to Brixton every day, at least during term time. In reality there was no reason why he should not have been "left alone with any of the children".
(2) What is the exact period in which the court says that each child became infected with gonorrhoea?
It is plainly not possible to state the exact period in which each child became infected with gonorrhoea… It is likely to have been transmitted no more than 14 days [before] the symptoms having first appeared…
(4) Does the court accept that one or more of the children may have infected the other(s) or by poor hygiene, etc?
Dr Ghaly referred to (i) sexual abuse as the most likely source of infection in pre-pubertal children; (ii) the primary source as one infected individual; and (iii) the possibility of one child having been infected sexually and then transmission to the others occurring through the infected child if there was some intimate contact between them… He described in his oral evidence poor hygiene as "a secondary part of the transmission". This was in the context of possible transmission of existing vaginal infection to the anorectal area due to its close proximity… On that basis the finding of the court was that, on the balance of probabilities, for at least one of the children the infection must have been sexually transmitted.
(5) On what evidence does the court say that there is a "real possibility that the father has sexually transmitted gonorrhoea to his child(ren)?"
Applying the test for exclusion of a possible perpetrator, I concluded that, given the evidence of opportunity and the absence of any other feasible explanation, I was unable to conclude that there was no real possibility that the infection was transmitted from the father.
(6) On what evidential basis has the court concluded that the father was ever infected with gonorrhoea?
There was no direct evidence that the father was infected with gonorrhoea. However, the evidence from Dr Walsh [whose report the Judge had read] and from Dr Ghaly showed that this was not a conclusive point.
(7) Is there any evidence, other than opportunity, upon which the court bases its finding that the father is within the pool of possible perpetrators?
The fact that three of the children were infected with gonorrhoea; the evidence (most cogently provided by Dr Ghaly) that sexual abuse is the most likely cause of such infection in prepubertal children; the evidence that these children were regularly in the care of the father (at times in the absence of the mother); and the absence of evidence identifying any other incident which, or individual who, could have been responsible for the transmission of the infection to at least one of the children."
(1) Applied the wrong test for identification of possible perpetrators;
(2) Drew improper inferences from the evidence and effectively reversed the burden of proof;
(3) Attached too much weight to the father's opportunity to infect the children;
(4) Was wrong as a matter of general principle to single out the father when the pool of perpetrators is not finite; and
(5) Inconsistently found that gonorrhoea was transmitted sexually to the children but also that only one or two of them may have been infected in this way.
(1) The Judge misdirected himself at ,  and [3(5)] by asking whether he could exclude father from the pool rather than include him in it, as required by S-B (Children) (below) – see Baroness Hale at . He then strained too far to try to identify a perpetrator.
(2) Paragraph [3(8)] shows that the Judge's conclusion is entirely based upon opportunity and the absence of an alternative explanation. He did not assess the totality of the evidence against the wider canvas: Re U; Re B (Serious Injuries: Standard of Proof)  EWCA Civ 567 at . His conclusion ignores the other evidence, including that: the infection was contracted at a time when the father was not living with the children and was only spending limited time with them; any finding that the father abused the children must be based on his having done so in public or on the suspicion he took them to a private place – in respect of which there is no evidence; the lack of any allegation by any of the children; the absence of physical or behavioural signs of sexual abuse; the fact that the father took Maggie to the GP; the father's full cooperation with testing; his negative tests; and the lack of any record of past infection. Nor was there any consideration of the significance of the father's denial of abusing the children or of having been infected himself (which the Judge did not say he disbelieved), nor of the inherent improbability that he would abuse and infect up to three of his children. The process amounted to a reversal of the burden of proof whereby the father was required to demonstrate that he had never suffered from gonorrhoea and had not abused his children.
(3) The Judge's statement at [3(1)] that he did not wholly accept the parents' evidence that the father was never left alone with the children contradicted the parents' evidence and concerned an issue that was never explored in cross-examination nor mentioned in the original judgment. There were no credibility findings against either parent to support such a statement.
(4) There were significant gaps in the evidence which the Judge fails to reflect in his decision-making. Instead, at , he actually questions the value of testing of others in the property. The significance of those gaps is that the Judge was only able to consider and assess the evidence in respect of one individual, leading to the father being singled out by flawed reasoning and against the weight of the evidence.
(5) The most dissatisfying element of the Judge's conclusion is that the pool of possible perpetrators is infinite. In reality, there is nothing that sets the father aside from any other male who may have come into contact with one or more of the children at the appropriate time. The finding will have a serious impact on his further assessment within the care proceedings despite the Judge's attempt at  to minimise it.
(6) Further, the Judge's finding is that every male who came into contact with the children at the relevant time is also in the pool, but those who were living in the property were not heard, thus breaching their Article 6 rights.
(7) The expert evidence was that the likely mode of transmission was sexual. However, the Judge found only that at least one of the children had been infected by an adult, leaving open the possibility of inter-sibling sexual transmission or fomite transmission to the others. There is no evidence for the former, while if the latter is possible, fomite transmission may supply the explanation for all the children.
(8) Overall, it was wrong and unnecessary for the court to have concluded that the father is a possible perpetrator. The court should have concluded that if the children had been sexually infected it was not possible to say who had infected them. This court should set aside the finding or remit for rehearing.
Uncertain perpetrator cases
"31(2) A court may only make a care order or supervision order if it is satisfied—
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to—
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child's being beyond parental control."
"18. … The phrase 'care given to the child' refers primarily to the care given to the child by a parent or parents or other primary carers. That is the norm. The matter stands differently in a case such as the present one, where care is shared and the court is unable to distinguish in a crucial respect between the care given by the parents or primary carers and the care given by other carers. Different considerations from the norm apply in a case of shared caring where the care given by one or other of the carers is proved to have been deficient, with the child suffering harm in consequence, but the court is unable to identify which of the carers provided the deficient care. In such a case, the phrase "care given to the child" is apt to embrace not merely the care given by the parents or other primary carers; it is apt to embrace the care given by any of the carers. Some such meaning has to be given to the phrase if the unacceptable consequences already mentioned are to be avoided. This interpretation achieves that necessary result while, at the same time, encroaching to the minimum extent on the general principles underpinning section 31(2). Parliament seems not to have foreseen this particular problem. The courts must therefore apply the statutory language to the unforeseen situation in the manner which best gives effect to the purposes the legislation was enacted to achieve.
19. I recognise that the effect of this construction is that the attributable condition may be satisfied when there is no more than a possibility that the parents were responsible for inflicting the injuries which the child has undoubtedly suffered. That is a consequence which flows from giving the phrase, in the limited circumstances mentioned above, the wider meaning those circumstances require. I appreciate also that in such circumstances, when the court proceeds to the next stage and considers whether to exercise its discretionary power to make a care order or supervision order, the judge may be faced with a particularly difficult problem. The judge will not know which individual was responsible for inflicting the injuries. The child may suffer harm if left in a situation of risk with his parents. The child may also suffer harm if removed from parental care where, if the truth were known, the parents present no risk. Above all, I recognise that this interpretation of the attributable condition means that parents who may be wholly innocent, and whose care may not have fallen below that of a reasonable parent, will face the possibility of losing their child, with all the pain and distress this involves. That is a possibility, once the threshold conditions are satisfied, although by no means a certainty. It by no means follows that because the threshold conditions are satisfied the court will go on to make a care order. And it goes without saying that when considering how to exercise their discretionary powers in this type of case judges will keep firmly in mind that the parents have not been shown to be responsible for the child's injuries.
20. I recognise all these difficulties. This is indeed a most unfortunate situation for everyone involved: the child, the parents, the child-minder, the local authority and the court. But, so far as the threshold conditions are concerned, the factor which seems to me to outweigh all others is the prospect that an unidentified, and unidentifiable, carer may inflict further injury on a child he or she has already severely damaged."
"11. But the general rule does not always apply. Questions of proof of a past event arise in widely varying contexts. Sometimes the law limits the matters the decision maker may take into account. When this occurs, the reason is legal policy, not the requirements of logic."
"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)  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."
"25. In my view the test of no possibility is patently too wide and might encompass anyone who had even a fleeting contact with the child in circumstances in which there was the opportunity to cause injuries.
26. In these difficult and worrying cases where the court has, as Lord Nicholls has said, to recognise and have regard to the differing interests of the adults and the child, Parliament has provided a two limb threshold which requires to be satisfied before the court has the right to consider the welfare of the child. The first is met in this appeal since the child was injured and suffered significant harm. In relation to the second limb, the attributable condition, it seems to me that the two most likely outcomes in 'uncertain perpetrator' cases are as follows. The first is that there is sufficient evidence for the court positively to identify the perpetrator or perpetrators. Second, if there is not sufficient evidence to make such a finding, the court has to apply the test set out by Lord Nicholls as to whether there is a real possibility or likelihood that one or more of a number of people with access to the child might have caused the injury to the child. For this purpose, real possibility and likelihood can be treated as the same test. As Lord Nicholls pointed out in re O and N (Minors); re B (Minors) (above) the views and indications that the judge at the first part of a split trial may be able to set out may be of great assistance at the later stage of assessment and the provision of the protection package for the injured child. I would therefore formulate the test set out by Lord Nicholls as, "Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?". There may perhaps also be the third possibility that there is no indicator to help the court decide from whom the risk to the child may come, in which eventuality it would be very difficult for the local authority and for the court to assess where the child might be at most risk."
"40. … [If] the judge cannot identify a perpetrator or perpetrators, it is still important to identify the pool of possible perpetrators. Sometimes this will be necessary in order to fulfil the "attributability" criterion. If the harm has been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. Sometimes it will desirable for the same reasons as those given above. It will help to identify the real risks to the child and the steps needed to protect him. It will help the professionals in working with the family. And it will be of value to the child in the long run.
41. In North Yorkshire County Council v SA  EWCA Civ 839,  2 FLR 849, the child had suffered non-accidental injury on two occasions. Four people had looked after the child during the relevant time for the more recent injury and a large number of people might have been responsible for the older injury. The Court of Appeal held that the judge had been wrong to apply a "no possibility" test when identifying the pool of possible perpetrators. This was far too wide. Dame Elizabeth Butler-Sloss P, at para 26, preferred a test of a "likelihood or real possibility".
42. Miss Susan Grocott QC, for the local authority, has suggested that this is where confusion has crept in, because in Re H this test was adopted in relation to the prediction of the likelihood of future harm for the purpose of the threshold criteria. It was not intended as a test for identification of possible perpetrators.
43. That may be so, but there are real advantages in adopting this approach. The cases are littered with references to a "finding of exculpation" or to "ruling out" a particular person as responsible for the harm suffered. This is, as the President indicated, to set the bar far too high. It suggests that parents and other carers are expected to prove their innocence beyond reasonable doubt. If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case."
"20. … My view remains that the need for the local authority to prove the facts which give rise to a real possibility of significant harm in the future is a bulwark against too ready an interference with family life on the part of the state. And, subject to the caveat that the court received no argument on the impact of article 8 of the European Convention on Human Rights, I incline to the view that nothing less than a factual foundation would justify such grave interference with the rights of the child and the parents thereunder to respect for their family life: see Olsson v Sweden (1989) 11 EHRR 259, in which, at paras 67 and 68 (which it has cited with approval on many subsequent occasions), the European Court of Human Rights stressed that a child's removal into care was justified only if it was necessary in a democratic society in the sense that it corresponded to a pressing social need and was based on reasons which were relevant and sufficient."
The present case
"12. If such an identification is not possible – because, for example, a judge remains genuinely uncertain at the end of a fact finding hearing, and cannot find on the balance of probabilities that A rather than B caused the injuries to the child, but that neither A nor B can be excluded as a perpetrator – it is the duty of the judge to state that as his or her conclusion. To put the matter another way, judges should not, as a result of the decision in Re B, and the fact that it supersedes Re H, strain to identify the perpetrator of non-accidental injuries to children."
The principle is therefore that judges should not strain to identify a perpetrator, not that they should not strain to exclude a person from the pool. It may be that in a case with a pool of only two possible perpetrators, not straining to exclude is the other side of the coin of not straining to identify. But that is not so where there is a larger pool, as in this case. By 'not straining to exclude' the Judge was making the father's task in extricating himself from the pool all the harder.
Lord Justice Lindblom
Lady Justice King