NAI - who should be in the pool of perpetrators?

Tom Harrill considers a recent Court of Appeal ruling on who should be included in a pool of perpetrators.

The Court of Appeal in Re B (Children: Uncertain Perpetrators [2019] EWCA Civ 575 has modified the language for the test of whether a person should be included in the pool of perpetrators. There is now a three-stage test (see para. 49):

1. Is there a list of people who had the opportunity to cause the injury?
2. Can the court identify the actual perpetrator on the balance of probability (it should seek, but not strain to do so, per Re D (Care Proceedings: Preliminary Hearing) [2009] EWCA Civ 472)?
3. Only if the court cannot identify the actual perpetrator to the civil standard of proof should it go on to ask in respect of those on the list: ‘Is there a likelihood or real possibility that A or B or C was the perpetrator of the inflicted injuries?’ Only if the answer is ‘yes’ should A or B or C be placed into the pool.

Notwithstanding Lancashire County Council v B [2000] UKHL 16 and North Yorkshire County Council v SA & Ors [2003] EWCA Civ 839, the extension does not stretch to ‘anyone who had even a fleeting contact with the child in the circumstances where there was the opportunity to cause injuries’ nor does it extend to harm caused by someone outside the home or family unless it would have been reasonable to expect a parent to have prevented it (see para. 50).

Facts of Re B

The father (‘F’) successfully appealed the decision of the first instance judge to include him in the pool of perpetrators.

His four children, all aged under 10 years old, were taken into care because the three girls had tested positive for gonorrhoea. F was tested twice and the mother (‘M’) was tested also—both returned negative results (para. 9).

The expert, Dr Ahmos Ghaly, consultant in genitourinary medicine, reported that sexual abuse was the most likely explanation and infection through dirty towels, underwear or toilet seats was a remote possibility (para. 12). The family had been living in temporary accommodation in a hotel for 2 days followed by a 28-day period across two separate caravan sites (para. 6). Other unknown males who may have had access to the children were not tested. The community paediatrician examined the girls and noted a normal genital examination with no signs of hymenal injury (para. 8). None of the children made any allegations of sexual abuse in interview (para. 14). Each of the parents denied the allegations and expressed their shock.

Giving the lead judgment, Jackson LJ allowed the appeal, set aside the findings and remitted the matter for re-hearing. The judge at first instance had incorrectly applied the uncertain perpetrator test. By ‘not straining to exclude’, the judge made F’s task in extricating himself from the pool all the harder (para. 54) and the judge did not require the local authority to make out a positive case before reaching a conclusion in the light of all the circumstances. Instead, he reached his decision on the narrow but important basis that the children had the infection and the father had the opportunity (para. 55).

A further difficulty with the judge’s threshold finding, made against F and ‘other unknown males who may have had access to the children’, had very low forensic value and would be unusually difficult to interpret at the welfare stage (para. 60). The pool of perpetrators is a departure from the norm and every effort must be made to ensure that the departure operates in a principled way. Here, the risk of unfairness was increased by the failure to investigate. The judge was aware of the gaps in the evidence but he did not give any weight to them.

Tom Harrill is a barrister at St Ives Chambers. He can be contacted on 0121 236 0863 or by email.