H, Re (Children: Uncertain Perpetrator: Lies)

Factual and Procedural Background

The appeal arises from a fact-finding hearing in care proceedings concerning three children, initiated following bruising and fractures sustained by the youngest child on at least two occasions. The hearing lasted seven days before Her Honour Judge Shanks, who considered extensive evidence including 5,000 pages of documents, five hours of recorded material, oral testimony from eight witnesses, and submissions from the parties. The judge reserved her decision and delivered an oral judgment on 12 July 2024. The proceedings are continuing towards a welfare decision.

The children’s parents separated in January 2022, with the father leaving the family home. In March 2022, the intervenor moved in as the mother’s partner. The injuries to the youngest child occurred in May and June 2022. Subsequently, the children were removed from the home and are now living with a paternal aunt and uncle.

After hearing expert medical evidence, the judge found that the injuries were inflicted and determined their timing. She excluded the father and the eldest child as responsible, conclusions which are not challenged on appeal. The central issue on appeal was whether the mother or the intervenor was the perpetrator. Both had the opportunity to cause the injuries and neither had any forensic history or alerting characteristics. Both, however, told multiple lies during the investigation, including falsely claiming to have separated in 2023, when their relationship had in fact continued until shortly before the hearing in May 2024.

The mother denied causing the injuries and argued that if neither the father nor eldest child was responsible, the intervenor must be. The intervenor denied responsibility. Other parties, including the local authority, the father, and the Guardian, acknowledged the injuries were inflicted but did not seek to identify a specific perpetrator.

The judge concluded she could not identify the perpetrator on the balance of probabilities and placed both the mother and intervenor in a "pool of perpetrators." The mother appeals on three grounds: (1) failure to properly analyse the identified lies; (2) failure to apply the correct approach or undertake necessary analysis to identify the perpetrator; and (3) failure to identify the intervenor as perpetrator contrary to the weight of evidence. The third ground was not pressed before the court due to difficulties in substituting a finding against the intervenor.

Legal Issues Presented

1. Whether the judge failed to undertake a proper analysis of the identified lies told by the mother and intervenor during the investigation.
2. Whether the judge failed to apply the correct legal approach or undertake the necessary analysis to identify the perpetrator of the injuries.
3. Whether the judge erred in failing to identify the intervenor as the perpetrator contrary to the weight of the evidence.

Arguments of the Parties

Appellant's Arguments

• The judge inadequately analysed the mother's lies and did not explain their relevance to the issue of perpetration sufficiently.
• The judge failed to properly apply the legal test or engage in sufficient analysis to identify the perpetrator, overlooking numerous evidential points that supported finding the intervenor responsible.
• The judge's refusal to identify the intervenor as the perpetrator was against the weight of evidence and should be overturned.

Respondent's Arguments

• The judge correctly applied established legal principles regarding the assessment of lies, including the Lucas direction, and properly evaluated the evidence in context.
• The judge's decision to place both the mother and intervenor in the pool of perpetrators was a reasonable and open conclusion given the evidence and credibility issues.
• The evidential points raised by the appellant were considered by the judge, who selected the significant elements for her analysis; failure to mention every point does not amount to error.
• The third ground was not pursued due to the difficulties in substituting a finding and the lack of sufficient persuasive evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re H-C (Children) [2016] EWCA Civ 136	Judicial self-direction on approach to lies; caution against relying on lies as direct proof of guilt	The judge applied the Lucas direction and considered lies with appropriate caution, avoiding over-reliance on them for positive findings.
Re A, B and C (Children) [2021] EWCA Civ 451	Good practice in identifying deliberate lies and assessing their significance in relation to guilt	The judge tailored the Lucas direction to the case facts and assessed the lies’ relevance proportionately without excluding them unless only explanation was guilt.
Re T [2004] EWCA Civ 558	Requirement to exercise an overview of the totality of evidence in family proceedings	The judge conducted a broad survey of evidence including parties’ histories and interactions with professionals.
Re U, Re B [2004] EWCA Civ 567	Assessment of witness credibility and weighing of evidence in family proceedings	The judge evaluated the reliability of the mother and intervenor in context of the evidence and found the lies relevant but not dispositive.
Re Y [2013] EWCA Civ 1337	Lies should not dominate welfare decisions and must be linked clearly to welfare issues	The court acknowledged the need to connect lies to welfare considerations and applied this discipline in fact-finding.
Re K (Children: Placement Orders) [2020] EWCA (Civ) 1503	Link between lies and welfare must be explicitly stated	The judge’s approach reflected this principle by explaining the relevance of lies in the context of the case.
Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575	Approach where perpetrator cannot be identified; judges need not strain to make findings	The judge applied the 'unvarnished' balance of probabilities test and did not err in not identifying a single perpetrator.
Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348	Refinement of the approach to uncertain perpetrator cases; confirms the 'pool' finding approach	The judge’s pool of perpetrators finding was consistent with this authority and was not undermined by failure to cite it explicitly.

Court's Reasoning and Analysis

The court examined the judge’s methodical and comprehensive approach to the evidence, noting her detailed consideration of the history, medical and lay evidence, and legal principles. The judge applied established legal directions regarding lies, including the Lucas direction, recognizing that witnesses may lie for various reasons and that lies alone do not prove guilt. She carefully assessed the significance of the mother's and intervenor's lies, finding them relevant but insufficient to identify a perpetrator conclusively.

The judge conducted a broad evaluation of all evidence, including thirty points raised by the appellant, and selected those she deemed significant. The court found no error in this selective approach. The judge’s conclusion that neither the mother nor the intervenor could be identified on the balance of probabilities as the perpetrator was a reasonable and open conclusion based on the evidence and credibility assessments. The court rejected the appellant’s contention that the judge failed to analyse the lies or evidence properly.

Regarding the legal framework for uncertain perpetrator cases, the court confirmed the judge’s application of the 'unvarnished' balance of probabilities test and her use of the 'pool of perpetrators' approach as consistent with current authority. The court declined to substitute a finding against the intervenor, noting the difficulties such a step would entail and the absence of pressing argument to that effect.

Holding and Implications

The court DISMISSED THE APPEAL.

The judge’s finding that the mother and intervenor constitute the pool of perpetrators responsible for the injuries to the youngest child stands. The court affirmed the judge’s proper exercise of discretion in weighing the evidence and assessing credibility, including the treatment of lies. No new precedent was established. The direct effect is that the identification of the perpetrator remains unresolved, and the welfare proceedings continue accordingly.