Y, V & B (Fact-Finding: Perpetrator)

Factual and Procedural Background

The appeal concerns care proceedings involving three children, all girls, referred to as Y (aged 13), V (aged 12), and B (born July 2022). The parents had separated, and the children lived with their mother at the time of the events. On 1 June 2023, B, then nine months old, was admitted to hospital with multiple serious injuries including a skull fracture, traumatic brain injury, and healing rib fractures. Medical evidence, uncontested by the parties, indicated the injuries were caused by significant force and likely occurred on at least two occasions. Following B's hospital admission, a child protection investigation was launched, and care proceedings commenced. Interim care orders placed Y and V with their aunt and B with her paternal grandmother.

The fact-finding hearing was conducted over five days in March 2024 before HH Judge Reardon. The local authority alleged the injuries were inflicted deliberately or through negligent handling by the mother, who denied causing the injuries and suggested they might have occurred accidentally when she was not present. The mother acknowledged periods when B was in the care of others but denied knowledge of any injury occurring during those times. The judge delivered an ex tempore judgment concluding the threshold criteria for state intervention were met but declined to identify a perpetrator or a pool of perpetrators.

The guardian filed an appeal challenging the judge's failure to identify a perpetrator or pool of perpetrators and other related findings. Permission to appeal was granted, and the appeal was heard by the Court of Appeal.

Legal Issues Presented

1. Whether the judge erred in law or was wrong in failing to identify the perpetrator or possible perpetrators of serious injuries sustained by the child.
2. Whether the judge was correct in finding that the mother was not the perpetrator.
3. Whether the judge erred in refusing to identify a pool of perpetrators or a list of possible perpetrators.
4. Whether the judge's compartmentalised approach to the evidence was appropriate.
5. Whether the judge made findings not sought by any party, thus going "off piste".

Arguments of the Parties

Appellant's Arguments

• The judge was wrong to refuse to identify a perpetrator or a pool of perpetrators after concluding the injuries were inflicted.
• If a pool was identified, it was incorrectly limited to the mother and a hypothetical other person not supported by evidence.
• The judge failed to properly apply the legal framework requiring identification of a perpetrator or pool of perpetrators.
• The judge wrongly compartmentalised the evidence instead of considering it holistically.
• The judge made findings without notice to the parties, violating procedural fairness.

Respondent's Arguments

• The judge's decision not to find the mother as perpetrator was permissible and open on the evidence.
• The local authority had not satisfied the judge to the required standard that the mother caused the injuries.
• There was evidence that the mother was not the only carer and that injuries could have occurred during periods when the mother was absent.
• No evidence was adduced about other carers or periods when the mother was not present to support a pool of perpetrators.
• The judge did not go "off piste" but declined to make findings unsupported by evidence.
• Any poorly expressed remarks during post-judgment exchanges did not reflect the final judgment.
• If the appeal succeeded, the matter should be remitted for rehearing rather than this court substituting findings.

Local Authority's Arguments

• The medical evidence was undisputed and no alternative perpetrator was identified.
• The judge was wrong not to find the mother was the perpetrator or at least a possible perpetrator.
• The failure to identify a perpetrator will adversely affect welfare assessments and decisions.
• Declining to identify a perpetrator when evidence establishes it is a failure to exercise the court's legal duty.

Father's Position

• The father denied involvement or knowledge of the injuries and adopted a neutral stance on the appeal.
• He sought a pragmatic resolution to allow welfare assessments and final decisions to proceed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re G (A Minor) (Care Order: Threshold Conditions) [1995] Fam 16	Initial interpretation that harm must be attributable to care by the parent against whom order is sought.	Referenced as the earlier prevailing view on attributability under s.31(2).
Lancashire County Council v B [2000] AC 147	Broader interpretation of attributability; in cases of shared care and inability to identify perpetrator, the pool concept applies.	Supported the principle that the court may satisfy the threshold without identifying a specific perpetrator.
Re O and another (Minors) (Care: Preliminary Hearing), Re B (A Minor) [2003] UKHL 18	Possibility of parent or carer being perpetrator must be considered at disposal hearing.	Affirmed importance of considering unidentified perpetrators in welfare decisions.
Re C (Care Proceedings: Standard of Proof) [2008] UKHL 35	Standard of proof for identifying perpetrator is balance of probabilities.	Applied to establish evidentiary standard for perpetrator identification.
Re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17	Importance of identifying perpetrator or pool to clarify risks and plan care; standard of proof clarified.	Used to explain reasons for identifying perpetrator or pool and evidential thresholds.
Re K (Children) [2004] EWCA Civ 1181	Public interest in children knowing truth about who caused injuries.	Endorsed by Supreme Court; cited to emphasize importance of truth for child welfare.
North Yorkshire County Council v SA [2003] 2 FLR 849	Standard for establishing real possibility of involvement for pool of perpetrators.	Referenced for evidential threshold to include persons in pool of perpetrators.
Re B (Children; Uncertain Perpetrator) [2019] EWCA Civ 575	Guidance on identifying pool of perpetrators; list creation, identification on balance of probabilities, then real possibility.	Prescribed disciplined approach to perpetrator identification adopted as standard.
Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348	Disavowed suggestion that courts should not strain to identify perpetrator; clarified test for perpetrator identification.	Confirmed that courts must identify perpetrator or pool applying balance of probabilities, or real possibility for pool.
Lancashire County Council v M and others [2023] EWHC 3097 (Fam)	Failure to identify perpetrator when evidence establishes it is a legal error.	Cited to support argument that declining to identify perpetrator is failure to exercise legal duty.
Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10	Judges may make findings not sought by local authority if securely founded and fair.	Referenced regarding the court’s discretion to make findings beyond those proposed by parties.
Re A, B and C (Fact-Finding: Gonorrhoea) [2023] EWCA Civ 437	Requirement of notice and opportunity to respond to findings sought in care proceedings.	Applied to emphasize procedural fairness in fact-finding hearings.

Court's Reasoning and Analysis

The Court of Appeal analysed the legal principles governing care proceedings under s.31(2) of the Children Act 1989, focusing on the "attributability" condition requiring harm to be attributable to the care given or likely to be given by the parent or carers. The court reviewed authoritative case law establishing that while it is possible to satisfy the threshold without identifying a specific perpetrator, the court should endeavour to do so or identify a pool of possible perpetrators when the evidence permits.

The court found that the judge had correctly identified the seriousness and nature of the injuries and had concluded that they were inflicted deliberately or recklessly. However, the judge failed to identify a perpetrator or a pool of perpetrators, despite repeated statements during post-judgment exchanges indicating she considered the mother a possible perpetrator.

The court held that the judge's refusal to make a perpetrator or pool finding was legally incorrect, especially given that no other potential perpetrators were identified or evidenced. The judge's compartmentalised approach to the evidence, separating medical and lay evidence rather than integrating them, contributed to this failure.

The court also considered procedural fairness and the late disclosure of evidence, which may have influenced the judge's reluctance to make certain findings. Nonetheless, the court emphasised that where findings impact future welfare decisions, the court must address them fully, even if that requires extending or adjourning proceedings.

The court concluded that the judge should have followed the structured approach outlined in Re B (2019) to identify a list of possible perpetrators, assess proof on the balance of probabilities, and, if necessary, identify those with a real possibility of responsibility. The failure to do so rendered the judgment insufficient to support welfare decision-making.

Holding and Implications

The Court of Appeal ALLOWED the appeal on the ground that the judge erred in law by failing to identify a perpetrator or pool of perpetrators in respect of the child's injuries.

The court declined to substitute a finding that the mother was the perpetrator, recognising that it had not heard evidence and that such a finding should be made at first instance. Instead, the case was remitted for rehearing before a different judge, with directions to ensure proper case management and to avoid issues of late disclosure that affected the initial hearing.

The direct effect of this decision is to require a fresh fact-finding hearing to properly identify the perpetrator(s) or pool of perpetrators, thereby enabling informed welfare decisions. No new legal precedent was established; rather, the court reinforced existing principles about the necessity of identifying perpetrators or pools in care proceedings involving non-accidental injury.