Factual and Procedural Background
This appeal arose in care proceedings concerning a young child who suffered multiple serious injuries while living with the Mother and the Intervenor; the trial judge found that the Intervenor deliberately inflicted eight injuries, and that three additional bruising injuries could not be attributed to either adult on the balance of probabilities. [Para 25][Para 27][Para 28][Para 29][Para 32][Para 33][Para 56][Para 66][Para 68][Para 69]
The Child was taken to a minor injuries unit on 23 January 2025 with a limp, referred to hospital, and a child protection assessment revealed fractures; he entered police protection the next day and was placed in foster care, after which care proceedings and an application for a placement order followed. [Para 46][Para 47]
The fact-finding hearing lasted 13 days, involved about 8,000 pages of evidence and twelve witnesses, and the Intervenor withdrew before completing his evidence. [Para 25][Para 49][Para 50][Para 51][Para 54]
The Mother appealed only the “pool finding” about the three bruising injuries, and the Court of Appeal allowed the appeal, set aside that finding, substituted a finding that the Intervenor probably caused the bruising, and remitted the case for welfare decisions. [Para 36][Para 40][Para 152][Para 153]
Legal Issues Presented
- Whether the trial judge erred in making a pool finding that the bruising injuries might have been caused by either the Mother or the Intervenor rather than identifying the more likely perpetrator on the balance of probabilities. [Para 38][Para 39][Para 109][Para 110]
- Whether the judge failed to assess the evidence as a whole, including the wider findings against the Intervenor, when deciding responsibility for the three bruising injuries. [Para 114][Para 115][Para 123][Para 124][Para 130][Para 148]
- Whether the judge dealt fairly with the evidential imbalance created by the Intervenor’s withdrawal and the resulting inability to cross-examine him fully. [Para 38][Para 39][Para 112][Para 115][Para 116][Para 151]
Arguments of the Parties
Appellant Mother’s Arguments
- The Mother argued that the bruising findings were flawed because the judge failed to assess the evidence globally, ignored the force of the findings already made against the Intervenor, and treated the Mother’s evidence unfairly in light of the Intervenor’s withdrawal. [Para 114]
- She submitted that the judge gave too much weight to inconsistencies in her account without explaining why they justified a conclusion that she may have injured the Child. [Para 114]
- She also argued that her youth, vulnerability, cannabis use, the passage of time, and the stress of giving evidence were not properly allowed for. [Para 114]
Respondent Local Authority’s Arguments
- The Local Authority submitted that the findings were reasoned, evidence-based, and not plainly wrong or irrational. [Para 115]
- It argued that the judge was entitled to conclude that both adults had opportunity, that the Mother had given inconsistent accounts, and that the Intervenor’s responsibility for other injuries did not exclude a real possibility that the Mother caused the bruises. [Para 115]
- It further argued that the judge did consider the wider context, including domestic abuse, cannabis use, volatility, and the Intervenor’s prior violence. [Para 115]
Intervenor’s Arguments
- The Intervenor supported dismissal of the appeal and argued that the judge had expressly considered the difficulties in the Mother’s evidence, including inconsistencies about when she noticed the groin, ear, and hip injuries. [Para 116]
- He submitted that it had not been shown what useful cross-examination of him by the Mother would have achieved. [Para 116]
- In the alternative, he argued that any rehearing should be complete rather than limited. [Para 116]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Volpi v Volpi [2022] EWCA Civ 464 |
An appeal court should not interfere with primary findings unless they are not rationally supportable; a judge is assumed to have considered the whole evidence unless the contrary is shown. [Para 117][Para 118] |
The Intervenor relied on it to argue deference to the trial judge, but the Court of Appeal held that the judge had still erred in the narrow respect of the bruising findings. [Para 117][Para 118][Para 132] |
| Re B (A Child) [2018] EWCA Civ 2127 |
Cited as part of the legal framework for identifying an actual perpetrator on the balance of probabilities and avoiding distortion from evidential imbalance. [Para 122][Para 125] |
The Court of Appeal said the trial judge had correctly directed himself by reference to this line of authority. [Para 122][Para 123] |
| Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575 |
Where there is an imbalance of information between possible perpetrators, special care is needed so that the imbalance does not distort the assessment. [Para 39][Para 125] |
The appellate court relied on this principle in holding that the judge had not properly adjusted for the imbalance caused by the Intervenor’s withdrawal. [Para 39][Para 151] |
| Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348 |
Explains that the court should first try to identify the actual perpetrator on the balance of probabilities and should only resort to a pool finding if it cannot do so. [Para 122][Para 124][Para 127][Para 128] |
The Court used this framework to conclude that a pool finding was inappropriate here because the evidence pointed to the Intervenor as the more likely perpetrator. [Para 126][Para 128][Para 148] |
| Re Y, V and B (Fact-Finding: Perpetrator) [2024] EWCA Civ 1034 |
Referenced as another recent case in the same line of perpetrator-identification authority. [Para 122] |
The Court cited it only as part of the governing appellate approach; no separate application was discussed. [Para 122] |
Court's Reasoning and Analysis
The Court of Appeal accepted that the judge had correctly found the Intervenor responsible for eight serious injuries and had properly directed himself on the general law governing uncertain perpetrator cases. [Para 121][Para 122][Para 123][Para 124][Para 125][Para 130]
It held, however, that the judge erred when attributing the three bruising injuries to a pool of possible perpetrators. The judge focused too narrowly on the Mother’s inconsistencies about when she noticed those injuries and did not sufficiently compare the competing cases against the wider factual background. [Para 132][Para 133][Para 134]
The Court emphasised that the Intervenor’s proven violence, dishonesty, suspicious phone videos, internet searches, and the clustering of injuries during his presence made him the more likely perpetrator; by contrast, the Mother had not been found to have inflicted injuries elsewhere and had not been shown to be similarly violent. [Para 137][Para 138][Para 139][Para 140][Para 143][Para 144][Para 145][Para 147][Para 148]
The Court also held that the evidential imbalance created by the Intervenor’s withdrawal required particular caution. The judge scrutinised the Mother’s evidence in detail but could not similarly test the Intervenor’s case, so it was wrong to treat the bruising allegations as if the adults were in parity. [Para 151]
For those reasons, the Court concluded that the only proper finding was that the Intervenor probably caused the bruising injuries as well, and that a pool finding was unsustainable. [Para 148][Para 149][Para 152]
Holding and Implications
Appeal allowed. The pool finding was set aside, replaced with a finding that the bruising injuries were probably caused by the Intervenor, and the matter was remitted for welfare decisions on that basis. [Para 40][Para 152][Para 153][Para 155][Para 157]
The practical implication is that a pool finding is a fallback only where the court genuinely cannot identify the more likely perpetrator after assessing the evidence as a whole; it should not be used where the wider findings strongly point to one adult. [Para 126][Para 127][Para 128][Para 148]