Re D (Care Proceedings: Preliminary Hearing)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall |
| Judgment Date | 04 June 2009 |
| Neutral Citation | [2009] EWCA Civ 472 |
| Docket Number | Case No: B4/2009/0193 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 June 2009 |
[2009] EWCA Civ 472
Before: Lord Justice Thorpe
Lord Justice Wall
Lord Justice Elias
Case No: B4/2009/0193
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Bournemouth County Court by His Honour Judge Meston QC
Robin Tolson QC (instructed by Battens - Solicitors) for the Appellant
Anthony Hand (instructed by The County Council) for the 1st Respondent
Kate Branigan QC (instructed by Mustoe-Shorter – Solicitors) for the 2 nd Respondent
The Guardian's Representative did not attend for the 3 rd Respondents
D (Children)
Hearing date: 13th May 2009
Approved Judgment
This is the judgment of the court
Lord Justice Wall:
Introduction
We heard this appeal on 13 May 2009. At the conclusion of the argument, we announced our decision, but reserved our reasons. These we now give. Permission to appeal had initially been refused on paper by Wall LJ on 24 February 2009, but granted at an oral hearing on 1 April 2009 by Rix and Wilson LJJ. The essence of our decision was as follows, namely that–
1. The appeal be allowed;
The appeal
The father of two children (a boy, R who was born on 16 July 2005, and a girl, S who was born on 14 February 2008) appeals against findings of fact made on what has become commonly known as the first limb of a split hearing of care proceedings under Part IV of the Children Act 1989 (the 1989 Act) being conducted in the Bournemouth County Court by His Honour Judge Meston QC, resulting in a reserved judgment delivered by the judge on 3 December 2008. As will have been seen, we imposed reporting restrictions, and this judgment is being written anonymously.
The essential findings made by the judge, although not recorded in the order of the court issued on the following day, were that the father was the perpetrator of injuries suffered by both children (the injuries to S being much more severe than the injuries to R) and that the mother could be excluded as a perpetrator of the injuries to either child. It was not suggested that any person other than the mother and / or the father could have perpetrated the injuries. Moreover, nobody suggested that any of the injuries to either child was other than non-accidental; and nobody sought to persuade us that the threshold criteria under section 31 of the 1989 were not satisfied in relation to both children.
For the father, Mr. Robin Tolson QC argued either that we should reverse the judge's findings and hold the mother to be the sole perpetrator; alternatively that we should order a retrial of the factual issue of which parent was responsible for the injuries. For the mother, Miss Kate Branigan QC invited us to uphold the judge's findings: in the alternative, however, she too submitted that there should be a retrial. For the local authority, Mr. Anthony Hand submitted, as he had submitted before the judge, that the proper conclusion was that neither parent could be excluded as a possible perpetrator. This was also the view of the children's guardian, who attended the appeal in person, and from whom, at our invitation, Mr. Hand took instructions. As the guardian's position on the appeal was the same as that advanced by the local authority, she was not separately represented before us, although we had the benefit of a detailed skeleton argument filed on her behalf by Mr. Paul Storey QC.
The local authority had also filed a Respondent's notice in which it submitted that the judge should have found that both the mother and the father remained within the pool of possible perpetrators, the evidence having failed to establish which one of them caused the injuries. In the event, we reached this conclusion on the father's appeal, and thus did not need to hear Mr. Hand on the Respondent's notice.
Preliminary observations: the effect of Re B (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL35 . [2009] 1 AC 11 ( Re B).
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.
In reaching his conclusion, the judge expressed himself in the following way:-
58. It is indeed a finely balanced case and I do not conceal that my mind has wavered as the evidence emerged. In a situation in which both parents start as the only possible perpetrators, I have to ask myself whether it is a case in which the court must conclude that both parents remain possible perpetrators, or is the case against the father or mother strong enough sufficiently to diminish the possibility that the other was the perpetrator? If the answer to that question is that the case against the father is strong enough it would enable the court in those circumstances to find that he was the perpetrator of the main injuries; and indeed on the authorities the court should do so rather than leave an unsatisfactory state of uncertainty. I conclude that I can and should properly find that the father was the perpetrator, and therefore, on the balance of probabilities the mother can be excluded.
The judge then went on to give five reasons for reaching that conclusion, which we do not think it necessary to record in detail, although we will make a further short reference to them in due course. Nobody suggested that the judge had misdirected himself as to the law, and earlier in his judgment, the judge had cited the two decisions of the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563(Re H) and Re B. He had also cited the decisions of this court in Re K (Non-Accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181, [2005] 1 FLR 285 ( Re K) and North Yorkshire County Council v SA [2003] EWCA Civ 839, [2003] 2 FLR 849, as well as the decision of the House of Lords in Re O (Minors)(Care: Preliminary Hearing) [2004] 1 AC 523.
Re B , of course, establishes that the standard of proof to be applied to all findings of fact in care proceedings is “the simple balance of probabilities test”: - see (amongst other places) the speech of Baroness Hale of Richmond at paragraph 73 and the “binary system” analysis contained in the speech of Lord Hoffman. We think it important, however, to make two points in relation to Re B, which, we think, is in danger of being misunderstood.
The first point is that the court is not required to identify a perpetrator simply because, as Lord Hoffman graphically puts it in paragraph 15 of his speech:
If, for example, it is clear that a child was assaulted by one or other of two people, 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.
We do not resile from the propositions stated by this court in paragraphs 55 and 56 of its judgment in Re K:
[55] As a general proposition we think that it is in the public interest for those who cause serious non-accidental injuries to children to be identified, wherever such identification is possible. It is paradigmatic of such cases that the perpetrator denies responsibility and that those close to or emotionally engaged with the perpetrator likewise deny any knowledge of how the injuries occurred. Any process, which encourages or facilitates frankness, is, accordingly, in our view to be welcomed in principle.
[56] As a second background proposition, we are also of the view that it is in the public interest that children have the right, as they grow into adulthood, to know the truth about who injured them when they were children, and why. Children who are removed from their parents as a result of non-accidental injuries have in due course to come to terms with the fact that one or both of their parents injured them. This is a heavy burden for any child to bear. In principle, children need to know the truth if the truth can be ascertained.
We do not think that there is anything in these two paragraphs which is in any way inconsistent with the speeches in the House of Lords in Re B. The crucial phrases in the two paragraphs we have cited from Re K, however, are “wherever such identification is possible” and “if the truth can be ascertained”. Nothing in Re B, in our judgment, requires the court to identify an individual as the perpetrator of non-accidental injuries to a child, simply because the standard of proof for such an identification is the balance of probabilities. 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. If an individual perpetrator can be properly identified on the balance of probabilities, then for the reasons given in Re K it is the judge's duty to identify him or her. But the judge should not start...
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