H (Children: Uncertain Perpetrator: Lies)

Hearing date: 16 October 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 23 October 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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Introduction

The appeal arises from a fact-finding hearing in care proceedings relating to three children. They began after the youngest child suffered bruising and fractures on at least two occasions. The hearing took place over seven days before Her Honour Judge Shanks. She had 5000 pages of evidence, five hours of recorded material, oral evidence from eight witnesses and submission from the parties. She reserved her decision and gave an oral judgment on 12 July 2024. The proceedings are now continuing to a welfare decision.

The background is that the children's parents separated in January 2022, with the father leaving. In March 2022, the intervenor moved into the home as the mother's partner. The injuries to the youngest child occurred in the period May/June 2022. The children were removed and are now living with a paternal aunt and uncle.

Having heard expert medical evidence, the judge found that the injuries were inflicted and she made findings about their timings. She ultimately excluded the father and the oldest child as being responsible for the injuries. There is no challenge to those conclusions.

The remaining issue, and the focus of the appeal, was whether the judge could identify either the mother or the intervenor as the perpetrator. Both had the opportunity to have caused the injuries and neither had any unusual forensic history or alerting characteristics. Unfortunately, they both told a number of lies during the course of the investigation, including a pretence that they had separated in 2023, when in fact their relationship had continued until shortly before the hearing in May 2024. The mother's case was that she had not caused the injuries and that, if they were inflicted and not caused by the father or the eldest child, they must have been caused by the intervenor. He denied responsibility. The other parties (the local authority, the father and the Guardian) alleged that the injuries were inflicted but did not seek to identify a particular perpetrator.

The judge concluded that she could not make a finding on the balance of probabilities and she placed the mother and the intervenor in the pool of perpetrators. The mother appeals from that conclusion on three grounds:

(1) Failure to undertake a proper analysis of the identified lies.

(2) Failure to apply the correct approach, or undertake the analysis necessary, to seek to identify the perpetrator.

(3) Failure to identify the intervenor as perpetrator as being contrary to the weight of the evidence.

When granting permission to appeal, Baker LJ expressed reservations about the third ground, which invited this court to substitute a finding against the intervenor. That prospect, which would only arise if we were persuaded that the appeal should be allowed, faces obvious difficulties and it was not pressed.

For the reasons given below, I do not accept the criticisms of the judge's treatment of lies, or of the quality of her analysis in relation to identification of a perpetrator. From what we have seen of the evidence (a fraction of what the judge saw), it is clear why she found herself unable to identify the person responsible for the injuries.

The judgment

The judge introduced the case at [1–10], described the history at [11–24] and [35–43], addressed the law at [25–34] and [44–46], and set out the medical evidence and the lay evidence at [46–71] and [72–147]. She then turned to her analysis of whether the injuries were inflicted ones [148–159] and the question of whether she could identify the perpetrator [160–182]. In the course of the last passage she focused on the position of the intervenor [168–174] and of the mother [175–180].

This overview of the judgment shows that the judge approached her task in a methodical manner. Her judgment, at 21 pages, was an efficient distillation of the mass of information before the court, during which she identified the matters that she considered to be important. Her observations about the evidence are found throughout the judgment and it is to be read as a whole.

As to the parts of the decision that have received attention on appeal, the judge recorded that the mother admitted lying to a health visitor on the day before the child's admission to hospital, by asking her not to visit because the family had a sickness bug. The mother explained this lie as being because she was concerned about what the health visitor would think about the bruising and because she had not done some paperwork. The judge found that it was a deliberate lie to deceive the health visitor because the mother did not want there to be any investigation into the bruising.

In a seventh statement in October 2023 the mother set out her ‘revised position’ about the cause of the injuries. She said that in the light of further police disclosure she had concluded that the intervenor must be responsible and that they had separated, with him leaving her home. In her eighth statement, filed after the intervenor had disclosed ongoing contact, she accepted that they had continued their relationship from before the time of her seventh statement until May 2024, meeting up and changing their means of communicating from WhatsApp to Telegram so that messages were not traceable. The judge described that as a significant lie and deception and she rejected the mother's account that it could be explained as being the result of an emotional struggle to separate from the intervenor. She described each lie as being “a lie to deceive”.

As to the intervenor, the judge found that he knew that professionals were being misled about his relationship with the mother. She did not accept his evidence that he had used cocaine just once, and found that he had minimised his use. She found his evidence about the last fracture unsatisfactory in some respects.

More broadly, in the course of thirteen paragraphs the judge reviewed a range of factors that might be said to point one way or the other as between the mother and the intervenor. In each case she noted evidence of good qualities and also evidence of stresses of different kinds. Having done so, she stated her conclusion:

“181. So when I consider, can I identify the perpetrator of the injuries, I cannot say whether it was [the intervenor] or whether it was [the mother]. Both are in the pool of perpetrators. It was one of them. There is evidence which has not been put before the court. I cannot say who the perpetrator was.”

The judge refused permission to appeal. She observed that “The lies identified were relevant to the issue of perpetrator” and that “I may not have referenced Re A but my pool finding was arrived by applying the test (unvarnished) of the simple balance of probabilities.”

Ground 1: Lies

The judge directed herself about lies, based on long-established authority:

“29. The evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their reliability and credibility. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them.

30. It is common for witnesses in these cases to lie in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons such as shame, misplaced loyalty, panic, fear and distress and the fact that a witness has lied about some matters does not mean that he or she has lied about everything.”

At [44–45], she directly cited from this court's decisions in Re H-C (Children) [2016]...