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A Council v B & Others [2007] EWHC 2395 (Fam): Schedule A

Schedule to the main judgment in A Council v B & Others setting out the approach adopted by Charles J with regards to the standard of proof in this fact-finding judgment.

A Council v B & Others [2007] EWHC 2395 (Fam): Schedule A

This is a revised version of the schedule as handed down with an additional judgment on 11 December 2008.

See also:

i) the original main judgment via this link - http://www.familylawweek.co.uk/library.asp?i=3327
ii) the judgment explaining the amendments to the shedule -

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Schedule A
My Approach in law

Standard of proof – approach to fact finding
1. I have applied the approach set out in my own decision A Local Authority v K, D & L [2005] 1 FLR 851. I add that I have also had regard to Re T (Abuse : Standard of Proof) [2004] 2 FLR 838, and Re G (a child) (non-accidental injury: standard of proof) [2001] 1 FCR 97 which are not among the cases mentioned in K, D & L.

2. That approach concerns the standard of proof (the civil standard and thus the balance of probabilities) and the basis on which findings to that standard are made (on evidence, facts found to the civil standard and reasoning). The most relevant paragraphs of my judgment in K, D & L are paragraphs 25 to 37.

3. This is a case which raises serious allegations. It engages the comments made and referred to in K D & L as to the effect of that and inherent probabilities and improbabilities in determining, on the evidence, whether on the balance of probabilities an event occurred.

4. As appears from K, D & L, and the cases referred to in it, and above, the court has to have regard to and weigh all the competing factors and should not evaluate the evidence in separate compartments. As a process of reasoning a stage by stage analysis may be appropriate but an overview of the totality of the evidence has to be carried out.

5. In this case the Lucas warning is particularly relevant.

More likely than not / likelihood in the sense of a real possibility
6. As I point out in paragraph 30 of my judgment in K, D & L the phrase "more likely than not" in the passage in Re H & R describing the civil standard of proof identifies a sense in which the word "likely" can be used, and perhaps its primary usage and that in applying the balance of probabilities test, the court is not determining whether there is a real possibility that the relevant event occurred, but is determining whether it is more likely than not that it did so.

7. In Re H & R the House of Lords also explained the meaning of the word "likely" in the phrases "likely to suffer harm" and "likelihood of harm" and explained that here it means a real possibility, a possibility that cannot safely be ignored having regard to the nature and gravity of the feared harm. This is a different test or standard in respect of the assessment of what is likely in the future and thus in the assessment of risk or future circumstances.

8. The 3/2 divide in the House of Lords is as to what has to be proved to the civil standard to establish that real possibility in a case where it can only be established by reference to an allegation of inflicted harm to another child (or the child in question) and thus in Re H and R, sexual abuse.

9. The majority decide that in those circumstances the real possibility of harm required to satisfy the threshold can only be established by proving that it was more likely than not that the alleged harm (there sexual abuse) took place. As is clear from the speech of Lord Nicholls he envisaged that the same approach is to be taken if the local authority seek to satisfy the threshold on the basis of an allegation that a child has been killed by a parent ([FLR] report at 98 D/E). The minority took a different view by reference in part to the purpose of the Children Act and were of the view that for a decision maker (here the court) to be satisfied of the existence of a risk does not require proof of the occurrence of past historical events but proof on all the evidence of facts which are relevant to the making of the prognosis.

10. In my view the purposive approach of the minority finds echoes in the approach of the House of Lords in later cases, both on threshold and disposal, when the issue is not whether harm has been inflicted on a child but as to the identity of the person or persons who inflicted such harm.

11. Re H and R was decided before the Human Rights Act came into force.
12. A real possibility test has now been applied to the determination of the size of the pool of possible perpetrators (see North Yorkshire CC v SA [2003] 2 FLR 849).

13. In respect of both tests (more likely than not / real possibility) it seems to me that an approach based on the evidence, facts found to the civil (or appropriate) standard and reasoning must be taken.

A stark choice
14. If a court can on the evidence, facts found and reasoning conclude that one of two stark choices is not a real possibility to my mind it follows that this will effectively reduce the choice to one and therefore that choice will be established to the civil standard (more likely than not).

15. I acknowledge that on the face of it, it might be said that applying the "more likely than not test" in the manner explained in Re H & R there is logic and force in an assertion that the court should generally be able to determine a stark issue on the balance of probabilities (more likely than not).

16. The stark choice could be, for example:

i) Was A the victim of inflicted harm?, or
ii) Was the harm found to have been inflicted on A inflicted by X or Y?

That harm could be death, sexual abuse or other physical harm.

17. However, in my view a mathematical, scientific or purely comparative approach to the fact finding exercise facing the court (i.e. whether there was inflicted harm or abuse or the identification of the perpetrator of such harm or abuse once it is established) by reference to percentages, or a mathematical (or other clear) attribution of factors, does not pay sufficient attention to the realities of the issues and problems faced by a court in care proceedings.

18. This is demonstrated by the points that (a) it has been accepted by the House of Lords (see for example Re O & N; Re B [2003] 1 FLR 1169) that a court may well not be able to decide to the civil standard the stark choice between which of two possible perpetrators inflicted established harm, and (b) over the years many courts have reached this conclusion.

19. To my mind those demonstrative points also indicate and it is the case that even when a decision maker is presented with a stark choice the answer to the question: "Which is the more likely, A or B?" does not necessarily answer the question "Has it been established that it is more likely than not that A is the answer (or B is the answer)? See also K, D & L at paragraph 90.

20. There are of course distinctions between a decision as to whether harm has been inflicted and who the perpetrator of that harm is. This is recognised in Re O and N. Indeed it seems to me that these distinctions form part of the reasoning founding the decision made in that case which is based on policy and the interaction of the jurisdictional (trigger to interference in the lives of a family by a public authority) and disposal (risk management applying the paramountcy principle) of care cases. But in my judgment these distinctions do not found a conclusion that it is only in cases where harm is established and the choice of perpetrator is reduced to two that the court will be unable to reach an answer to a stark choice applying the civil test (more likely than not) and the evidential approach set out in Re H & R.

21. In my view the fog referred to by Lord Nicholls in Lancashire CC v B [2000] 1 FLR 583 (at 588H to 589C) exists both in cases where (a) the position is that if harm was inflicted the perpetrator is clear and thus the issue is whether the harm was inflicted, and (b) the position is that inflicted harm is clear or established to the appropriate standard and the outstanding issue is as to who inflicted it.

22. In my view in both of these types of case the court may not be able to penetrate that fog with sufficient clarity to decide the relevant issue, and thus what happened, to the civil standard.

23. For demonstration purposes only, because in my view a mathematical or 51/49 approach does not properly reflect the task facing the court, the factors in the evidence taken as a whole could show that there was a 40% chance that there had been inflicted harm or abuse and a 35% chance that there had not (or vice versa). In percentage terms that means that:

a) on a real possibility test or approach neither result can be excluded, and
b) the final 25% remains to be attributed.

That attribution involves a further consideration and weighing of a range of diverse factors and the court may not be in a position to penetrate the uncertainties with sufficient clarity to reach an attribution that means that a conclusion that it is more likely than not (51/49) that harm or abuse has, or has not, been inflicted. In that sense the unattributed portion, or the unpenetrated fog, results in a draw. Further as I have said in my view an answer to the question which of the two choices is more likely will not necessarily give sufficient clarity to say whether one of them is more likely than not to be the truth.

24. So in my view when there is a stark choice on fact finding if an answer can be given on the evidence, facts found and reasoning to the "real possibility" test that will eliminate one of the choices and establish the relevant fact, but an answer (if it can be given) to the question "which of the two choices is more likely" will not of itself do so.

25. In my view there is therefore generally a progression of reasoning involving first the identification of the factors in favour of the competing conclusions, an assessment of their weight and if that does not found a finding that something is more likely than not the uncertain balance needs further examination.

Approach to making a determination to the civil standard in respect of allegations of inflicted harm or abuse
26. I am of the view, on the present state of the authorities (see further below) that the court should in care proceedings strive to reach a conclusion whether it is more likely than not that a child has, or has not, been the victim of inflicted serious harm or abuse, and if the finding is that the child has, then who the perpetrator is.

27. But having made that effort the court may be driven to the conclusion that it cannot do so and that on the evidence, facts found to the civil standard and reasoning it cannot make a finding to the civil standard (more likely than not) and both the relevant accusation and denial remain real possibilities.

What is the position if the court applying the evidential approach described in Re H & R cannot reach a finding of fact that harm has been inflicted on a child but is of the view that there is a real possibility that it was?
28. I raised this with the parties because I feared, as has turned out to be the case, that:

i) I cannot make a properly founded and reasoned conclusion that it is more likely than not that R was sexually abused by Mr B as she alleges or substantially as she alleges, and thus that she is telling the truth,
ii) I cannot make a properly founded and reasoned conclusion that it is more likely than not that R was not sexually abused by Mr B, and thus that Mr B is telling the truth,
iii) my answer to the question which of the above two possibilities (and thus which of Mr B and R is telling the truth) is more likely would be a guess because I cannot even answer that question by attributing and giving weight to the competing arguments on a properly founded and reasoned basis,
iv) on an approach founded on evidence and reasoning, and not on suspicion and/or concern, I am unable to conclude that there is no real possibility that Mr B sexually abused R as (or substantially as) she asserts or in some other way and I have therefore concluded that there is a real possibility that he did, and
v) I have concluded that if Mr B was sexually abusing R in the persistent way she alleges it is more likely than not that Mrs B either (a) knew that this was happening and did nothing about it, or (b) saw and heard things that would have indicated to any reasonable adult that R was being sexually abused by Mr B, or that there was a very serious prospect that this was the case and did nothing about it, apart from after April 2006 making threats to accuse Mr B of such abuse.

29. The issues relating to the consequences of this essentially arise (and in respect of the issue whether a finding exonerating Mr B should in those circumstances be made) can be dealt with at the next stage of the proceedings.

30. In those circumstances I did not hear full argument on those issues and what follows represents preliminary views. It is included to identify issues and arguments that I would like the parties to address.

The underlying problem
31. To my mind this is in large measure based on the tensions between the powerful reasons for (a) setting the jurisdictional test or trigger for intervention by a public authority in the lives of a child and its family at an appropriately high level, and (b) taking an appropriate approach to risk management to prevent harm to a child by one or more of its primary carers.

32. It will immediately be appreciated that the solutions to this underlying problem have the potential for creating tragic results to members of a family. If a child is removed from the care of a parent, or both parents, on the basis of a finding or allegation of inflicted harm and that finding or allegation is wrong tragically all members of the family suffer harm. If a child is not so removed and then suffers harm (by for example being killed or sexually abused) then tragically that child and indeed its family suffer harm.

33. It is therefore clear that when allegations that serious harm has been inflicted on a child by a parent or carer are raised difficult legal and policy questions arise that are of general importance and public interest.

34. In my view generally when a risk and its management are being considered, whether in the context of a risk of harm to a child in its day to day life or any other type of risk, the severity of the possible consequence if preventative measures are not taken is an important factor. As a result preventative measures are more likely to be taken if the harm or risk in question would be very serious (e.g. death, serious injury or sexual abuse) on the basis that the seriousness of the possible consequences means that the risk of them occurring cannot in all the relevant circumstances sensibly or safely be ignored.

35. Also generally the existence of a risk is assessed and, in the light of that assessment, managed without there being any finding by a court and the relevant decision maker acts on his view of all the circumstances including relevant allegations.

36. There is therefore tension between (a) the approach laid down and taken in Re H & R to the making of findings of fact in respect of serious allegations of inflicted harm, and (b) a general approach to risk management. This is because in reaching a finding on inflicted harm to the civil standard a factor to be taken into account is the point that the more serious the allegation the less likely it is to have occurred. So, in the context of care proceedings (and thus the interference in the lives of a family by a public authority pursuant to a care or supervision order) when, on the approach of the majority in Re H & R, a risk of serious future harm (a likelihood of serious future harm) can only be based on establishing that it is more likely than not that such harm has been inflicted by a carer in the past, the seriousness of the allegation is a factor against the making of the relevant finding to give jurisdiction to take protective measures against the risk of such alleged harm being inflicted again. Whereas, and in contrast, it seems to me that generally in terms of risk management (and indeed in an application of the tests under the Children Act relating to interim orders) the seriousness of the consequences of alleged harm recurring is a factor in favour of taking protective measures and preventative measures are taken and required without proof to the civil standard of the alleged inflicted harm.

37. In my view there is a recognition of this general approach to risk management in Re H & R in the exposition of the test to be applied to establish "likelihood of harm", namely a real possibility, a possibility that cannot safely be ignored having regard to the nature and gravity of the feared harm.

38. If these problems are related to the facts of Re H & R and this case the serious harm in question was sexual abuse, and in Re H & R it is made clear that the same approach is to be taken if the harm in question was death. On the approach taken in Re H & R (as applied at the disposal stage in Re M & R [1996] 2 FLR 195) the position is (or at least it is strongly arguable that it is) that if the risk of future sexual abuse by X of a child can only be based on a finding that X has so abused that child or another child in the past then:

i) if jurisdiction can be established on some other ground in determining the future care of the relevant child or children, and thus the issues of risk management relating to them, the court and the local authority have to proceed on the basis that the alleged sexual abuse did not take place, and
ii) if jurisdiction can only be established by proving the alleged sexual abuse the court and the local authority can do nothing.

This is so even if the court on the evidential approach set out in Re H & R has not been able to conclude that there is no real possibility that X did sexually abuse (or kill) a child as alleged and indeed therefore has concluded that there is a real possibility that X did inflict that harm. It is based on an application of the general rule or position set out in paragraph 10 of Lord Nicholls' speech in Re O & N .
39. So applying the tests and approach in Re H & R and Re M & R (without any qualification based on later authority and in particular Re O & N – see below) the result is (or it is strongly arguable that the result is) one which means that the relevant law and policy provides that in this case the court, the local authority and those involved in the assessments of the family would have to consider the placement and future care of the three children on the basis that Mr B did not, with the knowledge of Mrs B, seriously and persistently sexually abuse R and thus on the basis that the risk that Mr B with the knowledge of Mrs B did seriously and persistently sexually abuse R can (or must), in all the circumstances, safely and sensibly be ignored.

40. At the heart of this approach is (a) the reasoning and conclusions of the House of Lords as to the need to establish the threshold and thus the jurisdiction to interfere in the lives of a family, (b) the logic of taking the same approach to the establishment of the likelihood of harm at the threshold stage and the establishment of risk of harm at the disposal stage and (c) the danger of undermining the protection to families given by the jurisdictional threshold if a different approach to the establishment and assessment of risk of future harm was taken at the second and disposal stage.

41. This was, as I understood it, effectively the position advanced by counsel for all the parties in the written submissions put before the court and is reflected in the points made by counsel for the Guardian that (a) if the allegation of sexual abuse of R by Mr B is established to the H & R standard it is a "fact", (b) if it not established to the Re H & R standard it is not a "fact", and (c) if it is established to the H & R standard that R was not sexually abused by Mr B it is a "fact" that the abuse did not happen.

42. In my view a problem with this approach is that it does not cater for the position if the court cannot make one of findings (a) and (c) and therefore it is not a "fact" that the abuse alleged took place and it is not a "fact" that it did not take place. An assessment of risk and outcome on the basis that the alleged abuse is not a fact (because it has not been proved to the civil standard as required by Re H & R) is not the same thing as one on the basis that it is a fact that it did not happen.

43. But as is demonstrated by the written submissions this approach leads to one where at the second (risk assessment and more inquisitorial) stage the court and the local authority cannot base a risk of harm and thus take preventative measures on the basis of unproved allegations because they should be treated as "doubts and suspicions" even though on the evidential approach demanded by Re H & R the court has concluded that it cannot penetrate the fog and there is a real possibility both that the alleged harm was inflicted and a real possibility that it was not.


44. So in my view this approach leads to problems when findings (a) or (c) cannot be made and the court and the local authority are left with a situation that the fact of the allegation having been made is established, and is relevant to the decisions that fall to be made as to the short, medium and long term welfare of children, but the general rule does not set the basis for treating the allegation as one that is true or false.

45. This is a different problem to that inherent in the "more likely than not test", namely that that test is not based on a certainty, or being sure, and envisages the prospect that there is a real possibility that a finding based on it might be wrong.

46. Necessarily the court knows of the diverse serious consequences for the child, adult(s) and their family that flow from a finding relating to inflicted harm but in my view in the determination of the underlying facts (namely was the alleged harm inflicted and if so who was the perpetrator) these are not relevant considerations.

The uncertain perpetrator cases
47. Problems flowing from the legal and policy approach referred to above have been addressed by the House of Lords in cases where the fact that a child has been the victim of inflicted harm has been established to the relevant (H & R) standard but the perpetrator cannot be so identified to the civil standard (i.e. it cannot be said from the pool of people, of whom it can be said that there is a real possibility that he or she is the perpetrator, who is more likely than not to have been the perpetrator). Again the harm inflicted would include death.

48. The cases are the Lancashire case and Re O & N. The Lancashire case focused on the establishment of the threshold (jurisdiction) and the decision in that case was based on a purposive construction of the threshold conditions. In reaching that decision the House of Lords had regard to the potentially dangerous irresponsibility of a conclusion that the court did not have a discretion to make a care order or supervision order in such circumstances, whilst recognising that a parent who may be wholly innocent will face the possibility of losing his or her child.

49. The difficulties flagged up by Lord Nicholls in the Lancashire case concerning the second stage of care proceedings arose and were dealt with in Re O & N.

50. Both cases contain a unanimous decision in which Lord Nicholls gave the main speech. In Re O & N, as he says, Lord Nicholls considers the practical implications of the decision in the Lancashire case at the welfare stage.

51. The general rule or position as to the effect of a finding or the absence of a finding to the civil standard is set out by Lord Nicholls in Re O & N at paragraph 10, as follows (in the citations passages in italics are my emphases):

" [10] Before turning to the provisions of the Children Act 1989 I should make an introductory observation. Courts and tribunals constantly have to decide whether an alleged event occurred. The general rule is that if the likelihood that a past event occurred is proved to the requisite standard the law regards that event as definitely having happened.

That passage continues:

" If not, it is treated as not having happened."

52. In Re H & R at 98H in the [FLR] report, in line with that general approach, Lord Nicholls had said that:

"The starting point here is that courts act on evidence. They reach their decision on the basis of the evidence before them. When considering whether an applicant for a care order has shown that the child is suffering harm or is likely to do so, the court will have regard to the undisputed evidence. The judge will attach to that evidence such weight or importance as he considers appropriate. Likewise with regard to disputed evidence which the judge accepts as reliable. None of that is controversial. But the rejection of a disputed allegation as not proven on the balance of probability leaves scope for the possibility that the non-proven allegation may be true after all. There remains room for the judge to have doubts and suspicions on that score. This is the area of controversy.

In my view these unresolved judicial doubts and suspicions can no more form the basis of a conclusion that the second threshold condition in s 31(2)(a) has been established than they can form the basis of a conclusion that the first has been established. ------------ "

And at 100E to H in the [FLR] report he says:

" The next pointer is that the second threshold condition in para (a) is cheek by jowl with the first. Take a case where a care order is sought in respect of a child on the ground that for some time his parents had been maltreating him. Having heard the evidence, the court finds the allegation is not proved. No maltreatment has been established. The evidence is rejected as insufficient. That being so, the first condition is not made out, because there is no factual basis upon which the court could conclude that the child is suffering significant harm attributable to the care being given to him. Suspicion that there may have been maltreatment clearly will not do. It would be odd if, in respect of the selfsame non-proven allegation, the selfsame insufficient evidence could nonetheless be regarded as a sufficient factual basis for satisfying the court there is a real possibility of harm to the child in the future.

The third point is that if indeed this were the position, this would effectively reverse the burden of proof in an important respect. It would mean that once apparently credible evidence of misconduct has been given, those against whom the allegations are made must disprove them. Otherwise it would be open to a court to hold that, although the misconduct has not been proved, it has been disproved and there is a real possibility that the misconduct did occur. Accordingly, there is a real possibility that the child will suffer in the future and, hence, the threshold criteria are met. I do not believe Parliament intended that section 31(2) should work in this way."

53. That general rule and in particular the second part of it (and thus the cited view expressed in Re H & R as to the effect of unproven allegations and judicial doubts based on an evidential approach to the determination of the primary allegation of inflicted harm) was a main source of the divide in the Court of Appeal in the two cases before the House of Lords in Re O & N as to the approach to be taken at the welfare or disposal stage of a case in which inflicted harm is established to the civil standard but the perpetrator of that harm cannot be so established. This is because they founded the argument that even though neither A or B could be excluded as perpetrators, because there was a real possibility that he or she was the perpetrator, as neither had been found on the balance of probabilities to be the person who inflicted the established harm they both had to be treated as innocent when decisions were made as to the future care and placement of the relevant child, and thus on risk management issues. The divide in the Court of Appeal is explained by Lord Nicholls in paragraph 2 of his speech as follows:

"The context is the "uncertain perpetrator" type of case, where a child suffers physical harm at the hands of his parents, but the court is unable to identify which parent was the perpetrator or, indeed, whether both were perpetrators. The threshold criteria are met. The court so decides at a preliminary "fact finding" hearing, and the case then proceeds to the "welfare" stage and a "disposal" hearing. In one of the appeals before your Lordships' House, Thorpe LJ expressed himself to the effect that at the disposal hearing in such a case the judge cannot disregard the risk the mother presents as a primary carer for the child in question. In the other appeal, Ward LJ said the case should proceed on the basis that the child was not harmed by the mother and that there is no risk of the child suffering physical harm from her. "

54. The solution was reached in Re O and N largely by reference to legal policy. In doing so, weight was placed on the point that the court was dealing with a situation in which it had been established (or was indisputable) that a child had been the victim of inflicted harm and the issue was which of two potential carers (or whether potential carers) of that child had inflicted that harm.

55. I have already cited paragraph 10 of Lord Nicholls' speech, in Re O & N. He continued his introductory remarks as follows:

" [11] But the general rule does not always apply. Questions of proof of a past event arise in widely varying contexts. Sometimes the law limits the matters the decision-maker may take into account. When this occurs the reason is legal policy, not the requirements of logic. ------------

[12] The same broad principle is applicable when courts or tribunals peer into the future and assess the likelihood that a particular event will occur. This is an inherently imprecise exercise, so far as human conduct is concerned. In theory, it is a different exercise from deciding whether somebody did or did not do something in the past. Whether or not an alleged event occurred in the past raises a question of proof. In truth, the event either happened or not. That is not so with a future forecast. The future has not happened, and future human conduct is never certain. But in practice, the past is often as uncertain as the future. The judge cannot know for certain what happened and can only assess the degree of likelihood that something happened. The same is true of the future. The decision maker has to assess the degree of likelihood that an inherently uncertain event will occur. The degree of likelihood - beyond reasonable doubt, more probable than not, real possibility and so on - required in any particular legal contexts raises a question of legal policy.

[13] Here again, the policy decision on the requisite degree of likelihood is a separate question from the policy decision on the matters the court or tribunal may take into account. As to the latter, the matters a decision-maker may take into account, are normally bounded only by the need for them to be relevant, that is, they must be such that, to greater or lesser extent, they will assist the decision-maker in reaching a rational conclusion. The context may, indeed, require that this principle should apply in its full width: see, in the context of asylum cases and the difficulties of proof, which beset asylum seekers, Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, especially Brooke LJ at 458-470 and Sedley LJ at 477-479. The legal context may permit, or require, the decision maker to take into account any real possibility that a past event occurred, or even a mere possibility. Rationality does not require that only past events established on a balance of probabilities can be taken into account. Or the context may require otherwise. The range of matters, the decision maker may take into account when carrying out this exercise depends upon the context. This, regain is a question of legal policy, not logic. "

56. Lord Nicholls then links these general comments to the Children Act and, having referred to Re H and R, and the conclusion therein that "likely to suffer harm" means a real possibility, a possibility that cannot safely be ignored having regard to the nature and gravity of the feared harm, he goes on to say at paragraphs 16, 17 and 18:

" [16] ---- This is a comparatively low level of risk. By a majority the House held that, for the purpose of satisfying this threshold level of risk in cases (such as alleged sexual abuse) in which there is a dispute over whether the child has indeed suffered past harm, the court may have regard only to harm proved to the requisite standard to have happened. Otherwise the purpose for which the threshold criteria were prescribed by Parliament could be defeated in a case where the only evidence that the child was likely to suffer harm in the future was an unproved allegation that he had suffered harm in the past. It would be extraordinary if, in respect of the selfsame non proven allegations, the selfsame insufficient evidence could nonetheless be regarded as a sufficient factual basis for satisfying the court there is a real possibility of harm in the future: see Re H(Minors)(Sexual Abuse: Standard of Proof) at 591 and 100 respectively.

[17] This would not be an acceptable interpretation of s. 31(2). This suggests that, given the purpose of the threshold criteria, both limbs of the "significant harm" condition called for proof of fact. Like the inference that the child is already suffering harm, the inference that the child is likely to suffer significant harm, must be founded on one or more proved facts, as distinct from unproved allegations. Therein lies the protection Parliament intends the threshold criteria shall provide against arbitrary intervention by public authorities. This is the principal rationale for what might otherwise seem an unduly rigid approach.

[18] The same considerations do not apply throughout the whole of the Children Act 1989. The particular reason why the threshold conditions require proof of facts is not germane in every instance, where a decision has to be made regarding the existence or extent of future harm to a child. In the case of each statutory provision it is necessary to consider the language and purpose of the provision to see whether, for reasons of legal policy, any limitation should be placed on the matters a decision maker may take into account when assessing the risk in question. ---------------------- "

57. Lord Nicholls then discusses the Lancashire case and turns to the "uncertain perpetrator". At paragraphs 23 to he says:

"The welfare stage
[23] Crossing the threshold is not a reason for making a care order. When the threshold criteria are met the court proceeds to the welfare stage. The court must decide whether it is in the best interests of the child to make a care order as asked by the local authority. As with 'private law' orders made under section 8 of the Act, so with care and supervision orders made under section 31(1), the paramount consideration in making this decision is the child's welfare: section 1(1) and (4). This involves looking at the past and also looking into the future. In considering which course is in the child's best interests, the court will have regard to all the circumstances of the case.

[24] This has long been axiomatic in this area of the law. The matters the court may take into account are bounded only by the need for them to be relevant, that is, they must be such that, to a greater or lesser extent, they will assist the court in deciding which course is in the child's best interests. I can see no reason of legal policy why, in principle, any other limitation should be placed on the matters the judge may take into account when making this decision. (my emphasis) If authority is needed for this conclusion I need refer only to the wide, all embracing language of Lord MacDermott in J v C [1970] AC 668, 710-711. Section 1 of the Guardianship of Infants Act 1925 required the court, in proceedings where the upbringing of an infant was in question, to regard the welfare of the infant 'as the first and paramount consideration'. Regarding these words, Lord MacDermott said:

"I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood."

In principle the same approach is equally applicable under section 1 of the Children Act 1989.

[25] The Children Act directs the court, when making a decision regarding a child's welfare, to have particular regard to the factors set out in the welfare checklist in section 1(3). One of these factors is any harm the child 'has suffered or is at risk of suffering': section 1(3)(e). Questions have arisen on the interaction of this paragraph and section 31(2) as interpreted in re H (minors) (Sexual abuse: standard of proof) [1996] AC 563 and Lancashire County Council v B [2000] 2 AC 147. The questions have arisen in three areas.

The welfare stage: 'uncertain perpetrator' cases
[26] The first area concerns cases of the type involved in the present appeals, where the judge finds a child has suffered significant physical harm at the hands of his parents but is unable to say which. I stress one feature of this type of case. These are cases where it has been proved, to the requisite standard of proof, that the child is suffering significant harm or is likely to do so.

[27] Here, as a matter of legal policy, the position seems to me straightforward. Quite simply, it would be grotesque if such a case had to proceed at the welfare stage on the footing that, because neither parent, considered individually, has been proved to be the perpetrator, therefore the child is not at risk from either of them. This would be grotesque because it would mean the court would proceed on the footing that neither parent represents a risk even though one or other of them was the perpetrator of the harm in question. (my emphasis)

[28] That would be a self-defeating interpretation of the legislation. It would mean that, in 'uncertain perpetrator' cases, the court decides that the threshold criteria are satisfied but then lacks the ability to proceed in a sensible way in the best interests of the child. The preferable interpretation of the legislation is that in such cases the court is able to proceed at the welfare stage on the footing that each of the possible perpetrators is, indeed, just that: a possible perpetrator (my emphasis).

As Hale LJ said in re G (Care proceedings: split trials) [2001] 1 FLR 872, 882:

"the fact that a judge cannot always decide means that when one gets to the later hearing, the later hearing has to proceed on the basis that each is a possible perpetrator."

This approach accords with the basic principle that in considering the requirements of the child's welfare the court will have regard to all the circumstances of the case.

[29] In such cases the judge at the preliminary hearing, while unable to identify the perpetrator, may decide that one or other of the parents, perhaps both, was guilty of failure to protect. It was submitted that herein lies a better solution to the problem. The court should assess future risk on the basis of this proved shortcoming. This would be a better way to proceed because it would avoid attaching to each parent the stigma of possible perpetrator.

[30] I do not believe this would be a satisfactory alternative. Inability to identify the perpetrator is not always accompanied by a finding of failure to protect. The judge may find that the child was injured in only one incident, by one or other of the parents, in a momentary loss of self-control. Further, when assessing future risk, failure to protect is one matter, perpetration is another. A finding of failure to protect is not a reason for leaving out of account at the welfare stage the undoubted fact that one or other of the parents inflicted the physical harm on the child. This may be important in cases where circumstances have changed since the injuries were inflicted and the parents are no longer living together.

[31] In 'uncertain perpetrator' cases the correct approach must be that the judge conducting the disposal hearing will have regard, to whatever extent is appropriate, to the facts found by the judge at the preliminary hearing. Nowadays the same judge usually conducts both hearings, but this is not always so. When the facts found at the preliminary hearing leave open the possibility that a parent or other carer was a perpetrator of proved harm, it would not be right for that conclusion to be excluded from consideration at the disposal hearing as one of the matters to be taken into account. The importance to be attached to that possibility, as to every feature of the case, necessarily depends on the circumstances. But to exclude that possibility altogether from the matters the judge may consider would risk distorting the court's assessment of where, having regard to all the circumstances, the best interests of the child lie.

[32] Similarly, and for the same reason, 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 with his mother.

[33] From what I have said above it follows that I respectfully disagree with the approach adopted by Ward LJ in the case of child L and child C. Judge Downey concluded, expressly, that the evidence was not sufficient to exclude the mother and positively identify the father as the perpetrator of the injuries other than the fractured skull. In the light of this factual conclusion it would be quite wrong for the case to proceed on the false basis that the mother had been found not to be the perpetrator. The approach adopted in Re H, followed by Ward LJ in the case of child L and child C, is not apt at the welfare stage in 'uncertain perpetrator' cases.

[34] I wholly understand that parents are apprehensive that, if each of them is labelled a possible perpetrator, social workers and others may all too readily rule out the prospect of rehabilitation with either of them because the child would be 'at risk' with either of them. As already noted, failure to protect is one thing, perpetration is another. A parent fears that, once the possibility that he or she was a perpetrator is brought into the scales, cautious social workers will let that factor outweigh all others.

[35] I understand this concern. Whether it is well founded, generally or in particular cases, is an altogether different matter. Whether well founded or not, the way ahead cannot be for cases to proceed on an artificial footing. Rather, in cases of split hearings judges must be astute to express such views as they can at the preliminary hearing to assist social workers and psychiatrists in making their assessments and preparing the draft care plan. For their part social workers, I do not doubt, will have well in mind the need to consider all the circumstances when assessing the risk posed by a carer who is, but who is no more than, a possible perpetrator. To this end transcripts of judgments given at the preliminary hearing should always be made readily available when required, so that reliance does not have to be placed on summaries or even bare statements of conclusions: see Dame Elizabeth Butler-Sloss P in re G (Care proceedings: split trials) [2001] 1 FLR 872, 876.

[36] I must mention a further point. The burden of proof on care order applications rests on the local authority. But, it was submitted, to proceed as mentioned above would improperly reverse the burden of proof. The parent would have the onus of exculpating himself when the local authority failed to prove he was a perpetrator but the possibility that he was a perpetrator was left open. I am unable to accept this submission. It cannot stand with the decision in Lancashire County Council v B [2000] 2 AC 147. As already noted, the effect of this decision was that a care order may be made in this type of case even though the local authority failed to prove, to the requisite standard of proof, which parent was the perpetrator of the physical harm. The approach described above does no more than give effect to this decision at the welfare stage in the only sensible way which is possible. On the present appeals, I add, no submission was made that the House should reconsider the decision in Lancashire County Council v B [2000] 2 AC 147, nor have I heard anything to suggest the House should do so.

58. So the House of Lords in Re O and N take an approach which gives effect at the welfare stage to their decision in the Lancashire case and in considering the purpose of the relevant provision use strong language ("grotesque") just as they did in the Lancashire case ("dangerously irresponsible") when describing the argument and result they rejected when considering threshold.

59. In doing so they confirm the approach of the majority in Re H and R (see paragraph 16, albeit that the minority view in Re H and R would it seems to me support the result described as extraordinary therein, and as odd by Lord Nicholls in Re H and R).

60. Lord Nicholls went on to consider the approach at the welfare stage to unproved allegations of harm if the threshold was established without reference to such allegations of harm (e.g. on the basis of neglect). The House of Lords thus considered to what extent at the welfare stage the court may take into account the possibility that the non-proven allegation is true. Lord Nicholls says at paragraphs 37 to 41 :

"The welfare stage: unproved allegations of harm
[37] The second area where a question has arisen about the interaction of section 1(3)(e) and section 31(2) does not directly concern the present appeals. Nevertheless I should comment briefly so that the observations made above are seen in context. This second area relates to the type of case where the threshold criteria are satisfied on one ground, such as neglect or failure to protect, but not on another ground, such as physical harm. At the welfare stage, to what extent may the court take into account the possibility that the non-proven allegation might, after all, be true?

[38] This raises a question of legal policy. On the one hand there is the family protection purpose of the threshold criteria. On the other hand there is the general principle that at the welfare stage the court has regard to all the circumstances. On balance, I consider that to have regard at the welfare stage to allegations of harm rejected at the threshold stage would have the effect of depriving the child and the family of the protection intended to be afforded by the threshold criteria. Accordingly, at the welfare stage in this type of case the court should proceed on the footing that the unproven allegations are no more than that.

[39] This accords with the approach of the Court of Appeal in re M and R (Child abuse: evidence) [1996] 2 FLR 195. On an application for a care order the judge found there was a real possibility that sexual abuse had occurred but the evidence was not sufficient to prove the allegations to the requisite standard. The threshold criteria were met on another ground. The children had suffered emotional harm at the hands of the mother and her partner and were likely to suffer significant harm in the future. The judge made an interim care order and adjourned the case to consider whether to return the children to the mother and her partner. The local authority appealed against the judge's refusal to make a care order. One ground of appeal was that the judge had erred by not taking the allegations of sexual abuse into account at the welfare stage.

[40] The Court of Appeal, comprising Butler-Sloss, Henry and Saville LJJ, dismissed the appeal. Part of the reasoning of the decision was to the effect that it would be extraordinary if Parliament intended that, in one and the same case, evidence insufficient to satisfy section 31(2)(a) should be sufficient nevertheless to satisfy section 1(3)(e): see Butler-Sloss LJ at [1996] 2 FLR 195, 204. Butler-Sloss LJ drew attention to the unsatisfactory results which could follow in practice were this so.

[41] I should also note that the position is not materially different when unproved allegations of harm are abandoned, as distinct from being rejected by the court. This situation arose in re R (Care: disclosure: nature of proceedings) [2002] 1 FLR 755. The local authority made, but later abandoned, allegations of sexual abuse within the family. The threshold criteria were satisfied on a different ground, namely, neglect and emotional harm. Charles J held that as matters stood the local authority and the court should assess risk on the basis that the allegations of sexual abuse were just that and nothing more. Part of the background, and relevant as such, was that the allegations had been made. Also part of the background, and likewise relevant, was the fact that the allegations had not been proved and, as matters stood, would not be proved. It would be wrong for the local authority to deal with the family on the basis that it believed the children had been sexually abused. That overall approach, the judge noted, accorded with the current reality.

61. He notes in those passages that the approach he adopts accords with the decision of the Court of Appeal in Re M and R and comments I made in Re R (Care: Disclosure: Nature of Proceedings) 2002] 1 FLR 755 that risk should be assessed on the basis that abandoned allegations of sexual abuse were just that and nothing more and that that approach was one that accorded with the overall reality.

62. Thus the decision in Re O and N shows that at the second or disposal stage of care proceedings in a case in which the court cannot identify the perpetrator of actual harm which has been proved to the required standard to have been inflicted on a child, it can and should

a) have regard to (i) the real possibility that a potential carer who was within the pool of perpetrators identified by the court injured a child, and thus in my view (see in particular para. 32 of the speech) to (ii) the reasons why that real possibility has been found to exist, and thus the degree of likelihood that a parent is the perpetrator, and
b) assess the course that will best promote the welfare of the child having regard to the risk that that person poses by reason of that real possibility (see also the Lancashire case at 589H / 590A).

63. This is an approach that allows the court when considering risk management to consider degrees of likelihood and thus of real possibility. It is therefore one which, at the welfare stage, allows the court to proceed on a finding of real possibility rather than an application of the general rule referred to at paragraph 10 of Lord Nicholls' speech.

64. Re O & N also indicates that at the welfare stage the court (and thus others) can have regard to unproved or abandoned allegations of harm on the basis that they are only that.

65. It is not explained what that means or how that is to be done or how that part of the guidance fits with the earlier passages relating to what the court can have regard to at the welfare or disposal stage concerning the possibility that a parent or carer was the perpetrator of proved inflicted harm. These are among the points that in my view require further consideration and argument.

The underlying aim of the Children Act (and the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) that relate to it (in particular Article 8).
66. Generally this is to protect children from harm and to promote their welfare.

67. At the welfare stage the aim is to reunite a family when the circumstances enable that to be done. It follows that serious and sustained efforts of the relevant public authorities should be devoted to that end.

68. Where a care plan engages the extreme step of severing all (or at least most) parental links with a child it can only be justified in exceptional circumstances or by the overriding requirement of the child's best interests (see the decision of the European Court of Human Rights in Re P, C and S v UK [2002] 2 FLR 631 in particular at paragraph 118 and Re C & B (Care Order: Future Harm) [2001] 1 FLR 611 in particular at 33 and 34 of the judgment of Hale LJ.)

69. This underlying aim coupled with the test at the welfare or disposal stage that the court's paramount concern is the welfare of the child means that a child can be returned to a parent who has been found to have inflicted significant harm on that child or a sibling of that child. This can be done when the parent has not accepted the finding. They also warrant and lead to:

i) the taking of risks to promote family life. Such risks need to be managed so far as is practicable, and
ii) the view that at that stage the investigatory aspects of care proceedings are more engaged than they are at the threshold or jurisdictional stage (see also my decision in Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755).

70. This approach at the welfare or disposal stage, having regard to all the circumstances, has the potential for introducing questions as to the degree of certainty with which a finding of inflicted harm was made that has not been accepted and thus followed by an admission. On the approach taken in Re O & N in my view it can involve a consideration of the degree of likelihood that a parent or carer was the perpetrator of inflicted harm.

Points requiring further consideration
71. This is not intended to be an exhaustive description of these points.

(1) The effect of the Convention.
72. Re H & R was decided before the Human Rights Act 1998 came into force. Later cases and in particular Re O & N were decided after that and in Re O & N Lord Nicholls refers to the different approach to the establishment of risk that has been taken to establishing whether there is a "reasonable likelihood of a well founded fear of persecution for a Convention reason" (see R (Sivakumar) v Home Secretary [2003] 1 WLR 840 in particular paragraph 19 of the speech of Lord Steyn, and the case mentioned by Lord Nicholls Karanakaran v SSHD [2000] 3 All ER 449).

73. I acknowledge that (a) there are real distinctions to be made between removing a child from, or returning a child to, its parents in whose care it is or might be at risk of harm and the return of a person to another country where he asserts he will be persecuted, and (b) those distinctions may found different conclusions based on legal policy as to the test for establishing risk or likelihood of harm and its management.

74. However in my view the impact or potential impact of in particular Articles 2, 3 (including the positive obligations imposed by them) and Article 8 on the approach taken under the Children Act merits further consideration and argument. Understandably as yet none of the parties have addressed this in their written submissions. I have not researched it.

75. It seems to me that the following point merits consideration. It is that the approach in Re H & R arguably prevents the public authorities, who have statutory duties to take steps to protect children from harm of the types mentioned in Articles 2 and 3, are powerless to do so when the likelihood or risk that they might suffer such harm:

i) would be established applying the tests applied to establish "reasonable likelihood of a well founded fear of persecution for a Convention reason", or a real possibility test, but
ii) cannot be established applying the approach in Re H & R (and applied in Re M & R at the disposal stage).

Article 8 (and thus the competing interests thereunder) is also relevant.

(2) Should / can the majority decision in Re H & R as to the establishment of likelihood / risk of harm be revisited?
76. This is part of the earlier argument relating to the Convention. In addition it should be considered whether the developments in the uncertain perpetrator cases and their reliance on legal policy warrant such a revisit.

77. I acknowledge the distinction between a case where harm is established and one where it is not. However in an uncertain perpetrator case as recognised in the Lancashire case the result now reached is that a parent who may be wholly innocent will face the possibility of losing his or her child. That is the same horrific prospect that is faced by a parent who is wrongly accused of sexually abusing, killing or otherwise inflicting harm on a child. If in the former case the court making the disposal or welfare decision can examine the degree of likelihood that a person was the perpetrator of proved inflicted harm because there is a real possibility that he or she did inflict the harm, the question arises whether, having regard to that development, it should be able to do the same when the real possibility relates to the infliction of the harm rather than who inflicted it.

78. If that majority view in Re H & R can be revisited the question then arises as to whether the approach to be adopted is the minority view, or some other view.

(3) Should / can the decision in Re M & R as to the establishment of risk of harm be revisited?
79. Again this is part of the earlier argument relating to the Convention. In addition it should be considered whether the developments in the uncertain perpetrator cases and their reliance on legal policy warrant such a revisit. In this context the points raised by Lord Nicholls in paragraphs 42 to 45 of his speech in Re O & N are relevant.

80. I pose the question whether the policy and purposive arguments in the Lancashire case and Re O & N together with the change at the disposal stage to a process that is more obviously and substantively investigatory, support a conclusion that a different approach to the establishment of a risk of harm can be taken at that second stage if the court has the jurisdiction to interfere in the lives of a family on other grounds.

81. If it did one result could be that the protection from interference in the life of a family would remain, as in Re H & R, if the only basis for that interference is the establishment of serious inflicted harm on a child, but that if the court had jurisdiction by another route and was therefore involved in decisions as to placement, welfare and risk management a different approach to the establishment and management of risk could be taken.

(4) How is an unproved allegation to be taken into account by reference to the guidance in Re O & N?
82. I have already referred to this.

83. As indicated it seems to me that in the uncertain perpetrator cases the guidance has the effect that the court at the disposal stage can have regard to the reasons why there is a real possibility that a potential carer was the perpetrator and the conclusions reached at the first hearing on the likelihood that one carer was or was not the perpetrator.

84. Can a similar approach be taken to unproved allegations of inflicted harm?

85. In his speech Lord Nicholls by reference to authorities makes reference to two types of allegation namely one that has been the subject of consideration by the court and as to which it has been unable to make a finding that it is more likely than not to have occurred, and one that has not been the subject of a court decision because it has been abandoned.

86. One view is that on an application of the general rule referred to in paragraph 10 of his speech a court proceeding "on the footing that the unproved allegations are no more than that" would, applying that rule, have to treat them on the footing that the event alleged (e.g. sexual abuse by X) had not taken place. Lord Nicholls says that the position is not materially different when unproved allegations of harm are abandoned. That approach to the application of the general rule in paragraph 10, and that rule itself, is it seems to me based on an adversarial approach which identifies the person with the onus of proof. In Re O & N that approach is confirmed at the jurisdictional or threshold stage of care proceedings

87. At the jurisdictional or threshold stage, as I point out in Re R, care proceedings are largely adversarial and at the next stage the non-adversarial or inquisitorial nature or element of the proceedings comes to the fore (see [2002] 1 FLR at 771/2).

88. So perhaps the general rule set out in paragraph 10 by Lord Nicholls either (a) does not apply at all, or (b) as a matter of legal policy, as was held to be the case relating to uncertain perpetrators, need not be applied, at the second and disposal stage of care proceedings in respect of unproved allegations.

89. I confess that in Re R I did not have that general rule in mind and my focus was on the point that having regard to the decisions in Re H & R and Re M & R that the local authority could not proceed on the basis of a belief that the children had been sexually abused (see 768C). My view and description of the reality in that case was not that the general rule relating to unproved allegations meant that the local authority and the court should proceed on the basis that the sexual abuse (the unproved allegations) had not occurred. Rather that reality was that allegations had been made and denied (see 768D, 768F and 769 A/D).

90. On that approach the reality here would be that the allegations of sexual abuse by R against Mr B have been made and denied and the court has concluded that it cannot make a finding based on evidence, findings and reasoning that it is more likely than not that R was sexually abused by Mr B, and on the same basis cannot conclude that there is not a real possibility that she was not so abused (and therefore has concluded that there is a real possibility that she was).

91. It is at least arguable that the general rule does not represent reality, rather it treats something that has not been proved as not having happened. The reality I described in Re R would enable the court at the welfare stage to approach the allegations as disputed rather than unproved allegations (to which the general rule applies) and thus, as in the uncertain perpetrator cases, to look at the reasoning at the first stage relating to the degree of likelihood.

92. Is Lord Nicholls supporting that approach or one in which the general rule applies with the result that the court and the local authority and others must proceed on the basis that the sexual abuse did not occur?

93. It seems to me that at the inquisitorial or more inquisitorial stage of the proceedings, in which a conclusion based on evidence and reasoning (and thus an in Re H & R approach) that there is a real possibility that harm was inflicted (or was inflicted by X) has been reached, there are significant differences between assessing what would best promote the welfare of the child:

i) on the basis that that real possibility should be treated as a fact or a relevant factor, and
ii) on the basis that as a result of a rule of law or of legal policy that because it was not proved to the civil standard (more likely than not) the alleged inflicted harm was not inflicted, and thus in effect that the denial of it is true.

94. At the heart of this argument is the question whether as was decided in Re O & N in the case of an uncertain perpetrator at the inquisitorial stage, at which the court has regard to all the circumstances, those circumstances or realities include the possibility that the alleged harm was inflicted when it has not been established that it was more likely than not that it was, or that there is no real possibility that it was.

(5) What test should be applied to exonerate a person accused of inflicting harm?
95. The general rule referred to by Lord Nicholls in respect of unproved allegations like the principle "innocent until proved guilty" is not a finding of innocence or exoneration. Rather it has such an effect for a limited purpose.

96. On the law as it stands, it seems to me that:

i) a positive finding of exoneration, like a finding that harm has been inflicted, has to be based on the civil test, namely more likely than not,
ii) in a case such as this, where there is a stark choice, a finding of exoneration is the same as one that the alleged abuse did not take place and is thus a mirror image of a finding that it did,
iii) if such a finding is made, then the consequences of the legal policy set out in paragraph 10 of the speech of Lord Nicholls in Re O & N apply to it with the results that the real possibility that the conclusion may be wrong (which is inherent in the test) is ignored and the finding made "on the more likely than not" test is treated as a definite fact, because it is treated as something that definitely happened or did not happen,
iv) this has the result that assessments, and decisions by the court and the local authority, proceed on the basis that it is a definite fact that the person exonerated did not act as alleged (and therefore in this case that Mr B did not sexually abuse R, that Mr B's denial of R's allegations are true, and that her allegations are untrue), and
v) this is the mirror image of the position if a finding was made that it was more likely than not that Mr B had sexually abused R as she alleges. Then the court and the local authority would proceed on the basis that it is a definite fact that such sexual abuse took place, that R's allegations are true and that Mr B's denials are untrue.

97. In a case where there is potentially more than one perpetrator a finding exonerating a person of inflicting harm would often have two stages. The first would identify the pool of possible perpetrators and the second would involve the issue whether the actual perpetrator can be identified from the pool. At the first stage the test to be applied is the "real possibility test", at the second the test is the "more likely than not test". As I have indicated (see paragraph 14 of this Schedule), if it can be said that it is not a real possibility that A inflicted harm on B that conclusion would clearly found one that it is more likely than not that A did not do so. So, at the first stage, a finding excluding a person from the pool, on the basis that there is no real possibility that he or she inflicted the relevant harm is also a finding that exonerates that person. Following the identification of the pool the court goes on to see whether a finding can be made that it is more likely than not that a person (or persons) within the pool did not inflict the relevant harm. If it can, any such person is excluded from the pool and exonerated. When the pool is reduced to two, or always comprised only two, a finding that it is more likely than not that one of them inflicted the relevant harm is the mirror image of a finding that it is more likely than not that the other did not. So one is found to be the perpetrator and one is exonerated, applying the "more likely than not test".

98. In a case such as this one where, if the alleged harm was inflicted there is only one possible perpetrator, it may be that an examination of the evidence founds a conclusion that there is no real possibility that that harm was inflicted. Such a conclusion would exonerate the person accused of inflicting the harm because the finding that the harm was not inflicted would be based on (or alternatively he or she would have satisfied a) higher test than the "more likely than not test". When, as in this case, such a finding cannot be made and both the allegation and the denial are therefore real possibilities a finding that the harm was inflicted or, its mirror image that it was not and therefore the person accused is exonerated, is based on the more likely than not test.

99. As I have explained, in my view, an inability to find that it is more likely than not that the alleged inflicted harm occurred does not equate to a finding that it is more likely than not that it did not occur, and vice versa. To reach a conclusion on a stark choice between two real possibilities that one of them is more likely than not to be correct, the court has to be able (on the evidential approach set out in Re H and R) to penetrate with sufficient clarity, the competing factors and the relevant uncertainties to reach that "more likely than not" finding. Sometimes it will be able to do this and therefore reach a conclusion based on that test that a person inflicted harm, or that the person alleged to have inflicted harm did not do so, and therefore should be exonerated. Sometimes, as is the position in this case in respect of the allegations of sexual abuse made by R against Mr B, it will not.

100. This issue is linked to the issue discussed in (4) above.

(6) Which of the above arguments are open at first instance?
101. This point arises primarily in respect of the first 3 arguments.