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A seven-justice Supreme Court has allowed the appeal in the case of S-B (Children) ([2009] UKSC 17), which dealt with the issue of the proper approach to fact-finding where the court is presented with a ‘pool’ of possible perpetrators, one of whom must be responsible for causing injuries or other serious harm to a child. The judgment of the Court was delivered by Lady Hale.

The case concerned injuries to a one-month-old child in 2007, and the future both of that child and of a second child born to the parents a year later and removed at birth. The findings, made in April 2008, were to the effect that both parents remained within the pool of possible perpetrators. However, following a request by the parties for ‘amplification’ of the judgment, the trial judge said that she considered the father to be ‘60% likely’ to have caused the injuries, and the mother ‘40% likely.’ The mother appealed the judge’s refusal nevertheless to exclude her from the pool of possible perpetrators. She was unsuccessful in the Court of Appeal, where Thorpe LJ commented that the judge would have been wiser to decline the invitation to amplify her judgment and to apportion likelihood between the two parents.

 Allowing the mother’s appeal and remitting the case for re-hearing, the Supreme Court has emphasised again the message of Re B [2008] UKHL 35. Where likelihood of harm is based on an allegation of past harm, the facts of that allegation must be proved to the civil standard. There is no risk to the child of future harm if the past harm cannot be proved. The ‘risk’, in such a scenario, is not a risk of harm to the child; it is a risk that the judge has got the finding wrong. The difficult question for the Court was how to apply this principle to the fact-finding exercise in a case where more than one person may have been responsible for the past harm.

It was an interesting feature of the case that the parents had separated prior to the younger child’s birth, and the father had withdrawn his engagement with social services and was playing no part in the proceedings. The mother was the only parent seeking to care for the children. This presented the court with a particularly stark dilemma, namely that if the mother remained within the pool of perpetrators the children would be denied the opportunity to live with a parent against whom no allegation had been found proved. After summarising the relevant jurisprudence on the threshold criteria generally, and on the ‘uncertain perpetrator’ cases in particular, Lady Hale commented [paragraph 20] that:

“…the threshold criteria do not in terms require that the person whose parental responsibility for the child is to be interfered with or even taken away by the order be responsible for the harm which the child has suffered or is likely to suffer in the future… Clearly, the object is to limit intervention to certain kinds of harm – harm which should not happen if a child is being looked after properly. But is it also intended to limit intervention to cases where the person whose rights are to be interfered with bears some responsibility for the harm?”

She went on to note that it cannot have been intended that a parent whose child is injured at school or in hospital should be at risk of a finding that the threshold criteria are met (unless of course the parent should have been expected to take steps to prevent the injury.) However, in Lancashire County Council v B [2000] UKHL 16 the House of Lords came quite close to this result, with a finding that the threshold criteria were met in a case where a childminder was included in the pool of perpetrators. The difference, according to Lord Clyde in that case, was that the phrase ‘the care given to the child’ in s31 must mean more than simply taking care of the child in circumstances where a duty of care may arise (the school/ hospital example); it must involve ‘the undertaking of the task of looking after the child.’ Lady Hale notes, without detailed comment, the fact that the threshold criteria had not in that case found to be proved in relation to the childminder’s own child, who had not been harmed, on the basis that no finding had been made against his mother other than there was a real possibility that she had injured the first child. Lady Hale’s observation that the local authority did not appeal the failure to make any finding in relation to the childminder’s child indicates that perhaps the Court may have wondered, during the course of its deliberations, whether the jurisprudence might have evolved along a slightly different track had it done so.

As to the judge’s agreement in the present case to apportion likelihood of responsibility as between the parents, the Court  agreed with the Court of Appeal that this will almost always be unhelpful. Lady Hale did, however, say that at the welfare stage, having decided at the fact-finding stage that as regards each person within the pool of perpetrators there is  a real possibility of responsibility, the judge will have to consider ‘the strength of that possibility as part of the overall circumstances of the case.’ In other words, at the disposal hearing all perpetrators need not be treated as equally likely to have been responsible for the harm that led to the threshold criteria being met. This approach depends of course on the same judge being available to hear the fact-finding and the disposal hearing – which, barring accidents, should almost always be the case. This perhaps provides some comfort to the mother in this case and to other parents in a similar position.

Finally, the Court dealt with the ‘unasked question’ – what is to be done about the risk that the judge has got it wrong? The answer is pragmatic in the extreme. The judge must bear in mind throughout the proceedings the assessment he or she has made of the relative level of risk posed by each perpetrator (without explicitly apportioning likely responsibility), and must ‘remain alive to the possibility of mistake and be prepared to think again if evidence emerges which casts new light on the evidence which led to the earlier findings.’

There is one surprising feature of the judgment, which is that the Court appears to have held that it was not permissible for the judge to find the threshold crossed in relation to the second child on the basis of her findings regarding the injury to the first. This paragraph comes right at the end of the judgment [para 49] and the issue is dealt with very briefly. It will come as a shock to practitioners to hear that the threshold may not be crossed, following a finding of non-accidental injury to a child, in relation to a sibling of the same parents. Lady Hale said that this was so because the only finding made against the mother was that there was a ‘real possibility’ that she had injured the first-born child and this finding could not ground a finding of likely future risk. The rationale behind this paragraph can only be that in relation to the second child, the court was only concerned with the mother as (past and future) care-giver, as the parents had separated before his birth. However, the Court’s reasoning might perhaps have benefited from further expansion and clarification, and there is certainly a prospect that this aspect of the case may need to be developed as sharp-eyed practitioners pick up on what looks to be a possible route out of threshold findings in equivalent cases.

Madeleine Reardon practices in all areas of family law at 1KBW.  She has a particular interest in both public and private law children work. She is an update editor of Hershman and McFarlane: Children Law and Practice’.

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