Re A (Children) (Pool of Perpetrators)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Elisabeth Laing LJ,Birss LJ |
| Judgment Date | 17 October 2022 |
| Neutral Citation | [2022] EWCA Civ 1348 |
| Docket Number | Case No: CA 2022 001028 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1348
Lady Justice King
Lady Justice Elisabeth Laing
and
Lord Justice Birss
Case No: CA 2022 001028
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT READING
His Honour Judge Moradifar (sitting as a Judge of the High Court)
RG21C00484
Royal Courts of Justice
Strand, London, WC2A 2LL
Aidan Vine KC and Paul Murray (instructed by Barrett & Thomson) for the Appellant (Father)
Nick Goodwin KC and Mavis Amonoo-Acquah (instructed by the Local Authority) for the first Respondent (Local Authority)
Lorraine Cavanagh KC and Saiqa Chaudhry (instructed by Rayat Solicitors LLP) for the second Respondent (Mother)
Tom Wilson (instructed by Fairbrother & Darlow) for the third Respondent (Children's Guardian)
Hearing date: 13 September 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 11:00am on 17 October 2022.
Introduction to the Appeal
This is an appeal against orders made in care proceedings on 21 April 2022 by HHJ Moradifar sitting as a Deputy High Court Judge. The judge made a series of findings against the parents of a baby, ‘A’, who following an incident in the early hours of the morning of 3 April 2021, had sustained life-threatening injuries whist in the care of her parents. The Appellant (“the father”) called for an ambulance upon finding A struggling to breathe and with limited consciousness. Once admitted to hospital A was found to have:
i) Partially asphyxiated as a consequence of there being a large quantity of blood-soaked tissue lodged in her larynx and pharynx;
ii) Multiple rib fractures;
iii) Bilateral metaphyseal long-bone fractures; and
iv) Cystic lesions with blood staining within the parafalcine frontal lobes of her brain.
The judge's findings of fact can be summarised as follows:
i) The mother forced tissue paper into A's throat in order to obstruct her breathing. The act of respiratory obstruction was deliberate and could have been fatal. Following emergency surgery and two blood transfusions, A spent two months in hospital;
ii) The parents colluded to present a false account to the court in relation to the circumstances of the injury;
iii) In addition, A suffered chronic brain injuries following a traumatic head injury which injury had been inflicted before 26 March 2021;
iv) The brain injuries were inflicted by either the mother or the father;
v) A suffered metaphyseal fractures of the radius, the ulna, both femurs and both tibias as well as fractures to six of her ribs;
vi) The metaphyseal fractures were the product of at least three separate applications of force and the rib fractures of at least two applications of force. The injuries were inflicted on at least two different dates between 13 March 2021 and 24 March 2021;
vii) Each of the fractures was deliberately inflicted by the mother and/or the father;
viii) The perpetrator failed to seek timely medical attention for A once injured;
ix) In the event that all of the injuries sustained by A were caused by one parent, the other parent had failed to protect her;
x) Following the events of 3 April 2021, the father, if not the perpetrator, failed to maintain an open mind about the risks to A which were posed by the mother.
The mother has not sought to challenge any of the findings made against her by the judge. It follows that the finding upon which this appeal proceeds, is one that the mother deliberately inflicted the final, life threatening, injury to A.
The issues before the court are: (i) whether the judge erred in his application of the law in relation to uncertain perpetrator cases and, as a consequence, was in error in finding that the father was within the pool of possible perpetrators in relation to the earlier fracture and head injuries sustained by A; and (ii) was the judge wrong to find that he, the father, had colluded with the mother and, if he was not the perpetrator, had failed to protect A from his mother?
The Family Background
The second Respondent (“the mother”) and father are related. The father moved to the United Kingdom from his country of origin more than 15 years ago. The father has built a good life in this country and is justifiably proud of the success he has achieved through his employment. A marriage was arranged between the parents and took place more than 5 years ago. After the marriage, the mother moved to live in this country with the father.
In relation to the mother's background, there is within the papers an undoubted and significant contradiction. The mother's evidence is that she is highly educated to post-graduate Master's level and that she worked as a teacher in her country of origin before relocating to England. This evidence, however, sits uncomfortably with the fact that, for the purposes of this litigation the mother was assessed by a psychologist as being in the ‘extremely low range of adult intellectual ability’. The mother, as a consequence, required at trial the support of an intermediary. Frequent breaks were necessary given her difficulties in following the evidence. I should be clear that this assistance was separate from, and unrelated to, the provision of an interpreter for the mother who does not speak English.
This inconsistency, which may arguably have been of some importance, does not feature in the judgment, which at paragraph [5] simply refers to the mother as a graduate who had taught for five or six years in her country of origin.
Upon moving to this country, the mother did not work outside the home. In time she gave birth to twins. At the beginning of 2021, when the twins were not of school age, the mother, again, gave birth to twins. The babies were extremely premature, being born at between 28 and 31 weeks' gestation. The babies remained in hospital for a month before they were discharged home. The father had paternity leave and by bolting on some additional leave, did not have to return to work until after the twins were discharged home from hospital. After his return to work, as set out below, whilst the father remained an involved father, the majority of the care of the four children was undertaken by the mother.
On the day when A was re-admitted to hospital, her corrected age, taking into account her prematurity, was one week.
Summaries of the Law
Attached to the judge's judgment was a 26-page document entitled “Summary of the Applicable Law”. This was a document prepared by Mr Vine KC and his junior Mr Murray and agreed by the other parties. The judge referred to it as a “comprehensive analysis of the applicable legal principles” and attached the final agreed document to his judgment. This court was told that it is not an uncommon practice for counsel to submit an agreed note of the relevant law in this way, the intention being that the judge then, as here, adopts its contents in its entirety.
Whilst I fully appreciate the value of such a document to a busy circuit judge, a measure of circumspection is in my view necessary in its use. First, a document which sets out lengthy citations from cases is unwieldy and may contain much which is unnecessary. Simply setting out any significant principle with a reference to the relevant part of the judgment in question will ordinarily be sufficient. Secondly, the judge in his or her judgment still needs to identify and apply the principles of law relevant to the issue, or issues, before him or her. A boiler-plate incorporation of the established law in the form of an attachment to a judgment does not, without analysis in the judgment, help the reader to understand whether, and if so how, the law was applied to the facts and circumstances of the case before the judge.
Other than to incorporate Mr Vine's document, the judge made no further reference to the law. On one level that may not be surprising where a specialist family judge, such as this judge, is dealing with a relatively straight forward finding of fact case where a brief reference to the burden and standard of proof may well be sufficient and I am not suggesting that such a judge should ‘reinvent the wheel’ in each judgment he or she writes. In this case, however, once the judge had, following his careful and thorough analysis of the medical evidence, made findings of inflicted injuries of various ages, the difficult issue of identifying the pool of perpetrators became central to the case
Uncertain perpetrator cases:
In Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575, [2019] 2 FLR 211 (“ Re B: 2019”), Peter Jackson LJ clarified the proper approach in respect of uncertain perpetrator cases and the concept of a pool of perpetrators.
At paragraph [46], he “state[s] the obvious” by highlighting that the concept does not arise either where the allegation can be proved to the civil standard against an individual in the normal way, or where only one person could possibly be responsible.
Peter Jackson LJ went on at paragraph [48] to emphasise that the concept of a pool of perpetrators does not alter the general rule as to the burden of proof and that it is for the local authority to show, in respect of any potential perpetrator, that there is a real possibility that that person had inflicted the relevant harm before they are placed in the pool.
Having emphasised these parameters, Peter Jackson LJ at paragraph [49] (“paragraph [49]”) went on to set out the proper approach to be applied in every case:
“[49]….The court should first consider whether there is a ‘list’ of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain, to do...
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