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On appeal from: [2009] EWCA Civ 1048

This was an appeal by a mother who the judge held was ‘40% likely’ to have caused injuries to the child.  She contended that the Court should have held that she did not cause the injuries. The matter was heard by a 7 judge panel on 25 and 26 November 2009.

The Supreme Court unanimously allowed the appeal and directed that there should be a complete rehearing before a different judge. The judgment of the Court was given by Lady Hale.  The Court rejected the contention that the decision of the House of Lords in Re B [2008] UKHL 35 was a “sweeping departure” from the earlier authorities. It was settled law that the test to be applied to the identification of perpetrators was the balance of probabilities (para 34). Secondly, if the judge could not identify the perpetrator to the civil standard it was still important to identify the pool of possibly perpetrators. Thirdly, judges should be cautious about amplifying a judgment in which they have been unable to identify a perpetrator (para 44)

For judgment, please download: [2009] UKSC 17

For a press summary, please download: Press Summary

For a non-PDF version of the summary: BAILII

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