Reaffirming the Balance of Probabilities in Identifying Perpetrators: A Comprehensive Commentary on Re (A Children) [2022] EWCA Civ 1348

Introduction

The case of Re (A Children) (Pool of Perpetrators), adjudicated by the England and Wales Court of Appeal (Civil Division) on October 17, 2022, presents a pivotal moment in family law, particularly concerning the identification of perpetrators in uncertain perpetrator cases. The appeal challenges the findings of HHJ Moradifar, a Deputy High Court Judge, who had implicated both parents of a baby, referred to as 'A', in a series of life-threatening injuries. Central to this case is the legal scrutiny of the approach used to determine the likely perpetrator(s) when evidence does not conclusively point to a single individual.

Summary of the Judgment

The appellant, the father of baby 'A', contested the lower court's findings that implicated him alongside the mother in inflicting serious injuries on their child. The Court of Appeal meticulously examined whether the original judge erred in applying the law regarding uncertain perpetrator cases, specifically whether the father should be included in the pool of possible perpetrators for earlier injuries sustained by 'A'. The appellate court concluded that the original judgment incorrectly applied legal principles, particularly those established in Re B (Children: Uncertain Perpetrator) [2019], leading to an unjust inclusion of the father in the pool of potential perpetrators. Consequently, the appeal was allowed, and the case was remitted for a rehearing solely concerning perpetration, while other findings such as collusion and failure to protect were upheld.

Analysis

Precedents Cited

The judgment extensively referenced key precedents that shape the legal landscape for uncertain perpetrator cases:

Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575: This case clarified the approach to determining the pool of potential perpetrators, emphasizing the use of the simple balance of probabilities without additional qualifiers such as "strain to identify."
Re K (Non-Accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181: Established that identifying perpetrators in child injury cases is in the public interest, provided it aligns with evidential standards.
Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] 1 All ER1 and Re B (Care Proceedings: Standard of Proof) (Cafcass Intervening) [2008] UKHL 35: These cases firmly established that the standard of proof in such cases is the simple balance of probabilities, irrespective of the seriousness of the allegations.
Re D (Children) [2009] EWCA Civ 472 and S-B (Children) [2009] UKSC 17: Further reinforced the methodology for handling cases with multiple potential perpetrators, ensuring that the analysis remains grounded in the balance of probabilities.
Additional references include Re B (A Child) [2013] UKSC 33 and G v G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965, which underscore the importance of adhering strictly to established legal tests without introducing extraneous criteria.

Legal Reasoning

The Court of Appeal's reasoning centered on ensuring that judicial analysis in uncertain perpetrator cases adheres strictly to the established standard of proof—the simple balance of probabilities—as dictated by precedents like Re B (2019). The appellate court criticized the original judge for deviating from this framework by introducing the notion of "not straining" to identify a perpetrator, which inadvertently diluted the clarity of the legal standard.

Furthermore, the court scrutinized the original judge's method of evaluating the likelihood of each parent being responsible. Instead of individually assessing whether each parent could be the perpetrator based on the balance of probabilities, the judge attempted to exclude the father by deeming it "inherently improbable." This approach was seen as a misapplication of the law, as it conflated the identification process with subjective notions of probability beyond the legal standard.

The appellate court emphasized the necessity of a disciplined approach, as outlined in Re B (2019), where judges must first attempt to identify the perpetrator based on available evidence and only consider inclusion in a pool of perpetrators if such identification is not possible. The failure to follow this structured method led to the erroneous placement of the father in the pool of potential perpetrators.

Additionally, the court highlighted the importance of considering all evidence holistically, including the mother's demonstrated capacity for inflicting severe injuries and the father's protective actions, which further complicated the original judgment's reasoning.

Impact

This judgment serves as a critical reaffirmation of the legal standards governing uncertain perpetrator cases in family law. By stripping away ambiguous qualifiers like "strain to identify," the Court of Appeal has reinforced the primacy of the simple balance of probabilities in determining perpetration. This clarity ensures that future judges adhere strictly to established legal frameworks, thereby enhancing consistency and fairness in similar cases.

Moreover, the decision underscores the importance of a methodical approach in evaluating evidence, discouraging judicial tendencies to introduce subjective assessments that could cloud legal determinations. This refinement in legal reasoning is expected to streamline proceedings in care cases, making them more predictable and aligned with judicial precedents.

Practically, the judgment mandates that lower courts meticulously follow the steps outlined in Re B (2019), ensuring that each potential perpetrator is assessed on an individual basis. This reduces the risk of unjustly implicating innocent parties and ensures that the focus remains on evidence-based determinations.

Complex Concepts Simplified

Uncertain Perpetrator Cases

In cases where it's unclear who among multiple individuals caused harm, such as in child injury cases, the court uses a "pool of perpetrators" approach. This means all possible individuals are considered, and the court assesses whether there's a real possibility that each person in the pool could have inflicted the injuries based on the evidence.

Balance of Probabilities

This is the standard of proof used in civil cases, including family law. It means that something is more likely than not to be true. In the context of identifying a perpetrator, if the evidence suggests it's more probable that a specific individual caused the harm than not, that individual is deemed the perpetrator.

Pool of Perpetrators

When there's uncertainty about who caused harm, all potential perpetrators are grouped into a "pool." The court then evaluates each person in this pool against the evidence to determine if there's a real possibility they could be responsible.

Standard of Proof

In civil cases, this standard requires that the evidence shows something is more likely true than not. It is not as stringent as the "beyond a reasonable doubt" standard used in criminal cases.

Perpetrator Identification

This involves determining which individual is responsible for causing harm based on the available evidence. The court must assess each potential perpetrator's likelihood of having committed the act using the balance of probabilities.

Conclusion

The Court of Appeal's judgment in Re (A Children) (Pool of Perpetrators) [2022] EWCA Civ 1348 underscores the critical importance of adhering to the established legal framework in uncertain perpetrator cases. By eliminating ambiguous directives like "not strain," the court has fortified the application of the simple balance of probabilities, ensuring that judgments are both fair and consistent with legal precedents. This decision not only rectifies the specific errors in the original judgment but also sets a clear standard for future cases, promoting judicial clarity and protecting the rights of all parties involved.