COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr Justice Charles)
Neutral Citation  EWCA Civ 839
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE CLARKE
| NORTH YORKSHIRE COUNTY COUNCIL
|- and -
Second, Third, Fourth and Fifth Respondents
David Hershman QC and John Myers (instructed by Jones Myers Gordon) for the First and Second Respondents
Jonathan Cohen QC (instructed by Murrays ) for the Third Respondent
Ms Eleanor Hamilton QC (instructed by Gordons ) for the Fourth Respondent
Mrs Sally Bradley QC and Ms Gillian Mathews (instructed by Crombie Wilkinson) for the Fifth Respondent
Hearing date : 4th June 2003
Crown Copyright ©
Dame Elizabeth Butler-Sloss P. :
a) fracture to the right arm which was described as a transverse fracture through the proximal shaft of the right ulna, near the elbow joint;
b) bilateral retinal haemorrhages;
c) bilateral subdural haemorrhages; and
d) some damage to the brain shown on the MRI scan.
There was also a bruise to the left forearm which did not appear until the afternoon of the 15th September. The baby had one or more fits on the 17th September.
The earlier injury
The judge's conclusions
"337. On the present evidence I have reached the following conclusions to the civil standard and applying the tests set out earlier:
(1) M was injured on two occasions.
(2) On both occasions the perpetrator and anyone observing the event would realise that the handling of the child was wholly inappropriate. On both occasions the child was shaken with or without soft impact. On the later occasion the shaking was accompanied by rough handling of the right arm and overall the assault on the child was more severe than on the first occasion.
(3) I am unable to identify the person who injured M on these two occasions.
(4) I have not excluded the mother the father or the maternal grandmother as possible perpetrators of both the earlier injury and the injuries on 14/15 September 2002 or the night nanny as a possible perpetrator of the later injuries.
338. As was accepted those findings establish the threshold conditions."
"The approach I have adopted is to ask myself whether having regard to the protective function of the court I am satisfied that there is no possibility that the relevant person injured M. As appears earlier I accept that there are problems in this approach. Further in my view it is unlikely that the House of Lords will adopt it because if they were to adopt a similar approach I think that they would be likely to define what should be regarded as "no possibility" by some pragmatic limitation and thereby make it easier for a person who had an opportunity to injure the child to satisfy the test. But as I have pointed out a "no possibility test" is arguably the approach in Re B No 2 and it is one that focuses on child protection. I have therefore decided to adopt it whilst accepting that after the decisions of the House of Lords I will probably have to revisit the issue whether the pool of possible perpetrators can be narrowed."
"I confess that I have reached this conclusion with some reluctance because of the difficult positions it leaves both the family and the night nanny in and because as I have explained I doubt that the guidance from the House of Lords will support the test I have adopted. However in my judgment at this stage it would be wrong for me to apply a different test or approach and thus for example one based on (i) the existence of a real possibility, or (ii) an elimination process by reference to who I thought was the least likely perpetrator in a decreasing pool which would result in a smaller pool or the identification of the most likely perpetrator."
"(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."
" In section 31(2) Parliament has stated the prerequisites which must exist before the court has power to make a care order. These prerequisites mark the boundary line drawn by Parliament between the differing interests. On one side are the interests of parents in caring for their own child, a course which prima facie is also in the interests of the child. On the other side there will be circumstances in which the interests of the child may dictate a need for his care to be entrusted to others. In section 31(2) Parliament has stated the minimum conditions which must be present before the court can look more widely at all the circumstances and decide whether the child's welfare requires that a local authority shall receive the child into their care and have parental responsibility for him. The court must be satisfied that the child is already suffering significant harm. Or the court must be satisfied that, looking ahead, although the child may not yet be suffering such harm, he or she is likely to do so in the future. The court may make a care order if, but only if, it is satisfied in one or other of these respects."
"I have indicated that unproved allegations of maltreatment cannot form the basis for a finding by the court that either limb of section 31(2)(a) is established. It is, of course, open to a court to conclude there is a real possibility that the child will suffer harm in the future although harm in the past has not been established. There will be cases where, although the alleged maltreatment itself is not proved, the evidence does establish a combination of profoundly worrying features affecting the care of the child within the family. In such cases it would be open to a court in appropriate circumstances to find that, although not satisfied the child is yet suffering significant harm, on the basis of such facts as are proved there is a likelihood that he will do so in the future." (emphasis added)
"The second limb of condition (a) requires the court to evaluate the chance that an event will occur in the future: the child 'is likely to suffer' significant harm. In re H (minors) (Sexual abuse: standard of proof)  AC 563 the House considered the matters which, in this context, the court may take into account in assessing whether the child is likely to suffer significant harm. In the context of section 31(2)(a) 'likely' does not mean more probable than not. It means a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case. This is a comparatively low level of risk." (emphasis added)
"I consider that a permissible and preferable interpretation of section 31(2)(b)(i), between the two extremes, is as follows. 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.
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.
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."
"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."
"12. The same broad principle is applicable when courts or tribunals peer into the future and assess the likelihood that a particular event will occur. This is an inherently imprecise exercise, so far as human conduct is concerned. In theory it is a different exercise from deciding whether somebody did or did not do something in the past. Whether or not an alleged event occurred in the past raises a question of proof. In truth, the event either happened or not. That is not so with a future forecast. The future has not happened, and future human conduct is never certain. But in practice, the past is often as uncertain as the future. The judge cannot know for certain what happened and can only assess the degree of likelihood that something happened. The same is true of the future. The decision maker has to assess the degree of likelihood that an inherently uncertain event will occur. The degree of likelihood—beyond reasonable doubt, more probable than not, real possibility and so on—required in any particular legal context raises a question of legal policy.
13. … The legal context may permit, or require, the decision maker to take into account a real possibility that a past event occurred, or even a mere possibility. Rationality does not require that only past events established on a balance of probabilities can be taken into account. Or the context may require otherwise. The range of matters the decision maker may take into account when carrying out this exercise depends upon the context. This, again, is a question of legal policy, not 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.
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."
The test applied by the judge
Consequences of allowing the appeal
The night nanny
"326. I acknowledge that my finding based on authority that there was an earlier injury founds an argument that I should exclude the night nanny from the pool of possible perpetrators on the basis of that finding and the proposition that it is unlikely that M was injured on the second occasion by the night nanny and on the earlier occasion by one of the other possible perpetrators of the later injury.
327. However as I have pointed out both of the stepping stones in that argument contain elements of doubt and having regard to the general impression given by all the possible perpetrators and the severe difficulties in assessing credibility that exist in this case I have concluded that on the present evidence the test I have set myself to exclude the night nanny as a possible perpetrator of the later injuries is not satisfied."
The maternal grandmother
Identification of issues and split trials
Lord Justice Thorpe
"However it seems to me that it is inherent in the judgments in Re B that the Court of Appeal in that case envisaged that at the welfare or disposal stage the judge should approach the decision as to what would best promote the welfare of the child on the basis that the mother presented a risk to the child. That risk is not quantified but paragraphs 38 and 44 of the judgment of Thorpe LJ indicate that unless it can be said to what he describes as a degree of heightened cogency that the mother could not possibly have injured the child (my emphasis) she should be treated as a risk, or as having a question mark attaching to her. This test creates problems. For example how can it be said on a balance of probabilities or otherwise that a person who had the opportunity to cause the relevant injury to the child could not possibly have done so. In any event it is a very high test to found a conclusion that for the future a person should be treated on that basis and thus as if he or she presented no risk to the child (or other children) and no question mark attaches to him or her."
"Of course in the case of a single possible perpetrator there is no doubt that in deciding whether or not he or she is responsible for a physical assault, the court must apply the civil standard, elevated in accordance with the guidance given by the House of Lords in the case of Re H and R  AC 563. Of course there was evidence of sufficient cogency to lead to the conclusion that KR was a perpetrator. But was there cogent evidence that he was the sole perpetrator of all 94 injuries? In situations like this the trial judge in the Family Division is in a position similar to the position of judge and jury in criminal proceedings. There, when both parents stand in the dock charged with the infliction of injury on a baby, and when their defence is either each to blame the other or to offer no credible explanation, how is it possible to determine which is guilty? The same sort of dilemma faces the judge in a situation such as this, where it is incumbent upon him to apply the elevated civil standard of proof. A degree of heightened cogency is necessary to enable the judge to say that it could not possibly have been the mother."
Lord Justice Clarke.