B (Children : Uncertain Perpetrator)

Factual and Procedural Background

This appeal concerns care proceedings involving four children, referred to as Eli (12), Zoe (10), Alissa (8), and Maggie (5), initiated by a local authority after three of the children were found to be infected with gonorrhoea. The father appeals a decision by HHJ Meston QC, delivered on 24 October 2018, following a three-day hearing. The father's appeal challenges the judge's conclusion that he could not be excluded as a possible perpetrator of the infection, placing him within a "pool of possible perpetrators" alongside other unknown males who had access to the children, including two young men living in the family home.

The family had prior involvement with child protection services due to concerns about emotional abuse and neglect, with a history of child protection plans and temporary accommodation changes. The infection was diagnosed in May 2018, leading to police intervention and the children being placed in foster care. Both parents were arrested but denied the allegations. Proceedings were issued by the local authority in June 2018, and emergency protection and interim care orders were obtained.

Expert medical evidence indicated that the presence of gonorrhoea in young children strongly suggested sexual abuse, with sexual transmission being the most likely mode. However, no physical evidence of assault or disclosure from the children was found, and no other adults in the household were tested or questioned thoroughly. The father was found not to have been infected, and both parents denied wrongdoing.

The judge's decision acknowledged evidential gaps and the difficulty in identifying the perpetrator but concluded that the father could not be excluded from the pool of possible perpetrators. The mother was found not to have failed to protect the children or colluded in abuse. The father sought clarification of the judgment, leading to a supplemental judgment addressing specific questions.

Legal Issues Presented

1. What is the correct legal test for identifying a perpetrator in cases where children have suffered harm but the precise individual responsible is uncertain?
2. Whether the judge erred in placing the father in a pool of possible perpetrators without sufficient positive evidence.
3. Whether the judge improperly reversed the burden of proof or drew improper inferences from the evidence.
4. How to apply the concept of a "pool of perpetrators" in care proceedings under the Children Act 1989.
5. Whether the judge's findings were internally consistent and supported by the evidence.

Arguments of the Parties

Appellant's Arguments

• The judge applied the wrong legal test by focusing on whether the father could be excluded from the pool rather than whether he should be included, effectively reversing the burden of proof.
• The judge relied excessively on the father's opportunity to infect the children without properly considering the totality of the evidence, including the father's negative tests, denials, lack of allegations, and absence of physical signs.
• The judge's conclusion was inconsistent and placed the father unfairly in a pool of possible perpetrators, which was effectively a pool of one, given the failure to investigate other adults in the household.
• The judge's reasoning failed to address the evidential gaps and did not explain why the father’s credible evidence was disbelieved.
• The judge's finding that sexual transmission was established but only one or two children might have been infected sexually was inconsistent and unexplained.
• The judge improperly expanded the pool to include unknown males without positive evidence, raising fairness and Article 6 concerns.
• The judge's findings have low forensic value and create difficulties for welfare assessments and social work interventions.

Respondents' Arguments (Local Authority and Guardian)

• Accepted many of the appellant’s criticisms and agreed the judge's decision could not be sustained.
• Argued that it is reasonable for the court to ask a carer how the children might have contracted the infection and that parents are best placed to identify potential perpetrators.
• Maintained that once infection is proven, it ceases to be improbable that a parent could have caused it, referencing relevant case law.
• Defended the judge’s sequential approach of first considering how infection occurred and then identifying the perpetrator.
• Highlighted wider concerns about the children's situation that were relevant to the case.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the judge’s approach to identifying the perpetrator within the context of care proceedings and the statutory threshold under section 31(2) of the Children Act 1989. It emphasised that the concept of a "pool of perpetrators" applies only in cases where significant harm has been established but the precise perpetrator cannot be identified on the balance of probabilities.

The court noted that the judge correctly directed himself on the burden and standard of proof, the need for proper evidence and inferences, the importance of credibility assessments, and the need to avoid speculation. However, the court found that the judge erred by effectively presuming the father was in the pool and then asking whether he could be excluded, which reversed the burden of proof and was contrary to established authority.

The judge’s decision was based narrowly on the fact of infection and the father's opportunity to infect the children, without adequately weighing other evidence such as the father's negative tests, credible denials, absence of allegations, and lack of physical signs. The court found this approach flawed because it did not require the local authority to make out a positive case against the father.

Significant evidential gaps were identified, including the failure to investigate or test other adults in the household, who were not given the opportunity to be heard. This raised concerns of fairness and potential breach of Article 6 rights. The judge’s expansion of the pool to include unknown males without evidence was also criticised as unclear and unusual.

The court highlighted an inconsistency in the judge’s findings regarding the mode of transmission and the number of children sexually infected, which was unexplained and problematic.

The court reiterated that the pool of perpetrators concept must be applied cautiously, respecting the burden of proof and ensuring that no person is placed in the pool without evidence demonstrating a real possibility of responsibility. It recommended a structured approach: first identifying a list of individuals with opportunity, then seeking to identify the perpetrator on the balance of probabilities, and only then considering whether any remaining individuals should be placed in the pool based on real possibility.

The court concluded that the judge’s decision did not meet these standards and that the matter must be reheard with a full and thorough investigation, including all relevant individuals and evidence, to ensure fairness and proper application of legal principles.

Holding and Implications

The court ALLOWED the appeal and ordered that the matter be remitted for rehearing before a different judge, with an immediate case management hearing to be held.

The direct effect of this decision is that the original finding that the father was within a pool of possible perpetrators is set aside, and the case must be reconsidered with proper investigation and evidence gathering. No new precedent was established; rather, the court reaffirmed and clarified the proper application of existing legal principles concerning uncertain perpetrator cases and the burden of proof in care proceedings. The decision underscores the importance of thorough fact-finding and fairness, particularly where serious allegations and potential interference with family life are concerned.