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Re S-B (Children): The Applicability of Re B in ‘Uncertain Perpetrator’ Cases

Alison Grief, of Garden Court Chambers, junior counsel instructed by CAFCASS to intervene in Re B, reviews the recent Supreme Court judgment in Re S-B. She highlights the essential points of the judgment and sets them into the context of previous decisions.

Image of Alison Grief barrister Garden Court Chambers
Alison Grief, Garden Court Chambers

The major issues that arise from the judgment in Re S-B [2009] UKSC 17 are:-

Background facts of Re S-B
Proceedings were initially instituted in the summer of 2007 when J, a one month old boy, had been taken by his mother (‘M’) to the GP and referred on to the hospital, because of bruising to his face and arms which had been sustained whilst in the care of both his parents. The initial diagnosis was non-accidental injury (‘NAI’). J was removed from the parents. 

Subsequently, J’s father (‘F’) took no part at all in the consequential investigation of the injuries or in the care proceedings. 

At the fact finding hearing to determine if the injuries were indeed NAI, and if so, which of the parents could be identified as the perpetrator, M only conceded very late in the day that the expert opinion as to the diagnosis of NAI was correct. Up to that point, she had failed, or refused, to take the injuries seriously, feeling they were of little significance. 

M submitted that she was entitled to be exculpated as a perpetrator. 

The judge accepted the local authority’s and guardian’s submission that neither parent could be exculpated. She concluded in relation to F that “there is a high index of suspicion in relation to [him]” but in respect of M could not rule her out as a perpetrator either, because she could not decide whether M was protecting F because she was still attached to him despite his injuring the child, or because she could not bring herself to accuse him falsely since she had caused the injuries herself. 

At a subsequent directions hearing M’s counsel invited the judge to give assistance to professional assessors in relation to the relative likelihood of M or F being the perpetrator [note: the basis for so doing being the dicta of Lord Nicholls in Re O and another (Minors) Care: Preliminary Hearing) [2003] UKHL 18, [2004] 1 AC 523 (also known as ‘Re O and N’ in [2003] 1 FLR 1169; please see below for consideration of this approach]. 

The judge acceded by providing an “Adjunct to Decision” in which she outlined M’s vulnerability, causing her to think that she could have caused the injuries but concluding “I feel it is 60% likely that F injured the child and 40% likely that it was M”. 

Shortly after this ‘Adjunct’ M gave birth to a second child, ‘W’. He was also removed from her care. 

By the time of the disposal hearing in the autumn, Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35 [2009] AC 11, had been decided.

It was argued by M that in light of the binary approach outlined in Re B, the judge’s conclusion that F was 60% likely to be perpetrator meant that M should be exculpated. 

The judge rejected this approach, but gave M leave to appeal. 

Court of Appeal hearing 
In the Court of Appeal [30th June 2009 before Lord Justice Thorpe, Lord Justice Longmore and Mr Justice Bodey [2009] EWCA Civ 1048], it was argued that Re B applied not only to the first limb of the threshold criteria of Section 31 Children Act 1989, ie harm or likelihood thereof, but also to the second limb, namely that such harm, or likelihood of harm, was attributable to the parents’ care. 

The Court of Appeal roundly rejected that argument making plain that the leading authority in respect of uncertain perpetrator cases is Re O. Thorpe LJ further rejected M’s argument that although Re B didn’t expressly over-rule Re O, it did so by implication.  On the judge’s “Adjunct” his Lordship had this to say: “In future judges should be cautious before amplifying a judgment in which they have simply reached the conclusion that neither of two possible perpetrators can be exculpated. Safer to leave it thus.” 

Lady Hale gave the judgment of the Supreme Court on appeal. The appeal was allowed (but not on the argument as outlined above) and the matter was remitted to a different judge for a re-hearing.

The Supreme Court decision - reasons the appeal was allowed
In directing herself to the law (on 3rd April 2008 and therefore before Re B) the judge at first instance referred to Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, and said this: “The allegations in this case are very serious indeed and in many respects are also very unusual. When I apply the appropriate standard of proof, it has to be based on evidence of reliability and cogency equivalent to the gravity of the allegations” (emphasis added). 

Of this approach Lady Hale said as follows [para 48]: “We have every sympathy for the judge, who was only repeating the mantra which many other judges at every level had repeated in the past. But it is clear that she did misdirect herself on the standard of proof at the fact-finding hearing.” 

This approach of the judge at first instance was, of course, the mis-application of the dicta of Lord Nicholls in Re H. The House of Lords in Re B made plain that there was no sliding scale, or ‘heightened civil standard’ in care proceedings depending on the seriousness of the allegations; the standard of proof always was, and is, the ordinary civil standard of the balance of probabilities. (For a summary by Lady Hale of the issues in relation to this, see paras 11 and 12 of the Re S-B judgment.) 

The Supreme Court also rejected M’s argument that the views expressed by the judge at first instance in her “Adjunct” were a finding that F was the perpetrator. Lady Hale makes the obvious point that those comments were made in the context of the judge stating she had been unable to decide who the perpetrator was. 

Guidance from the Supreme Court in relation to uncertain perpetrator cases
The real ‘meat’ of this judgment does not come from the reason the appeal was allowed, but in relation to the following centrally important matters. 

When a court is faced with more than one perpetrator:- 

Should the court seek to identify perpetrators at all if they are unable to do so on the civil standard? 

What is the correct test when determining who a ‘possible perpetrator’ is? 

Should judges now be discouraged from expressing a view on the comparative likelihood as between possible perpetrators? 

What happens with subsequent or other children who have not been harmed in relation to the threshold criteria concerning them where a parent is only a possible perpetrator? 

Identifying perpetrators 
If the Judge cannot identify the perpetrator, then it is still important to identify the pool of possible perpetrators [para 40]. 

In so doing, what is the test to identify who should be in the pool of possible perpetrators? The test approved by Lady Hale is whether there is a “real possibility” that a particular person was involved [para 43]. 

What is important to note for future practice is that the court should NOT ask itself whether it can “rule out” a particular person, or make a “finding of exculpation” of that particular person in relation to the harm suffered by a child. This sets the bar too high and effectively renders the parent having to prove their innocence beyond reasonable doubt [para 43: Lady Hale approving the dicta of the then President, Dame Elizabeth Butler-Sloss in North Yorkshire County Council v SA [2003] EWCA Civ 839, [2003] 2 FLR 849.] 

The Supreme Court agreed with the observations of Lord Justice Thorpe at the Court of Appeal hearing, that judges should be cautious about amplifying a judgment in which they have been unable to identify a perpetrator, “better to leave it thus”. 

Lady Hale stated that “times have changed since Re O” and that barring unforeseen accidents, the same judge will preside over both parts of the hearing [para 44]. This appears to be the justification for issuing guidance that departs from the dicta of Lord Nicholls in Re O at para 32 in which he said this: “The judge at the disposal hearing will take into account any views expressed by the judge at the preliminary hearing on the likelihood that one carer was or was not the perpetrator, or a perpetrator, of the inflicted injuries. Depending on the circumstances, these views may be of considerable value in deciding the outcome of the application; for instance, whether the child should be rehabilitated to his mother.” 

What this means is that there is now a clear statement of principle cautioning against seeking, within the pool of perpetrators (the most usual scenario being two parents in whose joint care the injured child was at, or around, the time of the injury), to apportion who the more likely of the possible perpetrators is. 

This is most welcome. There have been conflicting Court of Appeal authorities in this area although neither feature in the S-B judgment – see Re A (Child Abuse) [2007] EWCA Civ 1058, [2008] 1 FLR 1423, Lord Justice Thorpe giving the lead judgment in the Court of Appeal and rejecting the argument that a finding that the mother was the more probable perpetrator of one of the injuries to the child but that the father could not be excluded was illogical; and Re M (Children) sub nom ZM v JM [2008] EWCA Civ 1261, [2009] 1 FLR 1177, Lord Justice Wall giving the lead judgment in which it was held that it was not open to the judge to say that the mother was the most likely perpetrator and then to include the father as a possible perpetrator. 

As a matter of practice, I would argue that at the conclusion of a fact finding hearing, the judge could, and should, be invited to refer in his/her judgment to the risk factors and/or factual evidence that show there is a ‘real possibility’ that a person within the pool is the perpetrator, or a perpetrator. It is important to ensure that the evidential basis for that ‘real possibility’ is properly set out, not only for the obvious fairness point of being able properly to know the basis for inclusion, but most importantly for the assessors at the next stage to know as clearly as possible, what risk factors applied to each parent, to form a basis for the risk assessments to inform the welfare stage. 

Other children .... 
The really fundamental part of the judgment for future practice lies in paragraph 49. 

Lady Hale states that there was a further reason to remit the case to the county court. The judge at first instance had found the threshold crossed in relation to the child W, the baby born during the proceedings, on the basis that there was a real possibility that M had injured J. This was “not a permissible approach to a finding of likelihood of future harm”. Lady Hale goes on to state: “It was established in Re H and confirmed in Re O, that a prediction of future harm has to be based upon findings of actual fact made on the balance of probabilities. It is only once those facts have been found that the degree of likelihood of future events becomes the ‘real possibility’ test adopted in Re H. It might have been open to the judge to find the threshold crossed in relation to W on a different basis, but she did not do so.” 

Lady Hale refers at [para 23], in the S-B judgment, to the law in this area, in which she points out that in the case of Lancashire County Council v B [2000] 2 AC 147 “the Court of Appeal confirmed that that criteria were not satisfied in respect of the childminder’s child, B, because he had not been harmed at all. The only basis for suggesting that there was any likelihood of harm to him was the possibility that his mother had harmed the other child and that had not been proved: Re H applied. The local authority did not appeal against this.” 

A reading of the House of Lords’ decision in Lancashire v B [page 164] shows that the correctness of the Court of Appeal’s reasoning in relation to the childminder’s child, was not a matter for consideration for their Lordships. Consequently, they did not comment upon it. 

However, the comments of Lady Hale at paragraph 49 appear to support the Court of Appeal’s decision in Lancashire v B although that matter also was not before the Supreme Court, or so it would seem from a reading of the questions posed to the Court. 

So what does that mean in practice (apart from the fact that the race is on to get the right case up to the Supreme Court for the matter to be adjudicated upon properly!)? At the heart of the issue is the very real tension between state intervention where there is perceived risk and the protection of children from physical harm, versus the very real emotional harm that is done to them when the state wrongly intervenes in family life, no matter how well intentioned such intervention may be. 

It was open to M in Re S-B to argue that she was merely a possible perpetrator of harm to J, and therefore the likelihood of harm to W could not be established to the correct standard of proof, ie it being more likely than not that she had harmed his older brother J. Does that mean that the threshold criteria are not met in relation to W? If M remained with the only other possible perpetrator, then the threshold criteria are probably met (because even if she is not the perpetrator, she would have failed to take steps to protect her children from the only other possible perpetrator). However, if she had separated from the only other possible perpetrator?  Well, on the analysis in Lancashire v B, and seemingly approved by Lady Hale, it seems so. (Of course, the fact that F could go off to a new relationship and run the same argument does demonstrate rather starkly the problem with this approach, because one or other of them was the perpetrator of undoubted injuries to J).

However, two words of caution: 

Lady Hale indicated that it would have been open to find the threshold crossed in relation to W on a different basis – so what basis would that be if not that since there is a real possibility that M injured J, then there is a real possibility that she might injure W? 

In Re S-B, by the time W was born, and the case heard in respect of him, M was no longer with F. 

The local authority would need to mount its case on the basis that M had failed to provide a safe home environment for J, such that he was injured in her care, whether by herself or by her failing to protect him from F. On the specific facts of the case (which are minimal due to the re-trial), it could be argued that M had failed to accept the seriousness of the injuries and that in so doing she failed to act protectively, and/or prioritised her relationship with her then partner over the needs of J, and that this conduct, if it were to be repeated, gives rise to a likelihood of harm to W, and that there was a real possibility that such conduct would be repeated, unless, and until, risk assessments demonstrated that the risk could be safely managed. 

It does seem possible to ‘construct’ the alternative basis, but whether that will prove a basis for intervention remains to be seen. 

Secondly, Lady Hale, at paragraph 31 of Re S-B, said this after quoting from the judgment at first instance: “Hence the mother was not ‘absolved as a really possible or likely perpetrator’. This meant that the threshold was crossed, not only in relation to the child who had suffered harm, but also in relation to the child who had not. The fact that there was a real possibility that she had caused the injuries to J mean that there was a real possibility that she would injure W.” 

It is unclear whether Lady Hale is expressing her own views here or merely summarising the position of the judge at first instance. Para 31 does seem completely at odds with the additional reason for remitting for a re-hearing at para 49. 

For those representing local authorities, the kind of formulation suggested above may succeed (and of course not every NAI is a single issue case). For interim orders, the threshold is only “reasonable grounds for believing” that the section 31 Children Act 1989 criteria are met. Once there are assessments, it may be that the risks, or otherwise, become clear and this will easily dictate which direction the case should go in. 

For those representing parents, this is the time to be running forceful arguments as to the correct standard of proof where a child has not been harmed, and a parent is merely a possible perpetrator of harm to another child, particularly where you can argue a change of circumstances.  Your mantra is paragraphs 16, 17, 23 and 49 of Re S-B and an extremely good understanding of Re H, Re B, Re O and Lancashire v B (as it affected the mother of B in that case). 

For those representing children, you are left in the unenviable position of trying to ensure that your clients are properly protected whilst making sure that they are not unduly kept from their birth family. You hold the ring in such circumstances. You have a pivotal role to play. Sadly, the current situation with CAFCASS does not seem to recognise that. If ever there were cases that needed allocated guardians conducting their own extensive enquiries and ‘owning’ the case, it would be in this situation!