Perpetrators, anticipatory rulings and other issues: 2009 in review

In the second of a two-part series, Valerie Sterling looks at the key cases in the children and care field in 2009. For part one, click here.

In re S-B (Children) (Care proceedings: Standard of Proof) Supreme Court - Times Law Report 18.12.09

This very recent case is of interest because Baroness Hale confirms what she said in the earlier House of Lords decision of Re B (2008) 2 FLR 141 on the standard of proof of past facts, namely that the test is “the simple balance of probabilities, neither more nor less”.

Baroness Hale said that it is now settled law that the test to be applied to the identification of perpetrators is the balance of probabilities. It might be difficult for the trial judge to decide, even on the balance of probabilities, who had caused the harm to the child but there was no obligation to do so. Unlike a finding of harm, it was not a necessary ingredient of the threshold criteria and judges “should not strain to identify the perpetrators”.

Should judges refrain from seeking to identify perpetrators at all if they were unable to do so on the civil standard and should they be discouraged from expressing a view on the comparative likelihood as between possible perpetrators? If the judge could not identify a perpetrator or perpetrators, it was still important to identify the pool of possible perpetrators. “If the harm had been caused by someone outside the home or family, eg at school, or in hospital, or by a stranger, then it was not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it.”

If the evidence was not such as to establish responsibility on the “balance of probabilities” it should nevertheless be such as to establish whether there was a “real possibility” that a particular person was involved.

While it was helpful to have a finding as to who had caused the injuries if such a finding could be made, it was “positively unhelpful” to have the sort of indication of “percentages of likelihood” that the judge had been invited to give in the instant case. Lord Justice Thorpe had suggested that judges should be cautious about amplifying a judgment in which they had been unable to identify a perpetrator: “better to leave it thus” and their Lordships agreed.

Re D (Care Proceedings: Preliminary Hearing) (2009) 2 FLR 668 CA 4.6.09

The CA emphasised that there may be cases where it is not possible to determine who is the perpetrator from a pool of possible perpetrators and that this is a legitimate conclusion to reach.

Although Re B (Care Proceedings: Standard of Proof) (2008) 2 FLR 141 established that the standard of proof to be applied to all findings of fact in care proceedings was “the simple balance of probabilities test” nothing in Re B required the court to identify an individual as the perpetrator of non-accidental injuries to a child simply because the standard of proof for such an identification was the balance of probabilities. The court was not required to identify a perpetrator simply on the basis that the question for the court was whether it was more probable that one rather than the other was the perpetrator.

There would inevitably be cases in which the only conclusion the court could properly reach was that one of the two parents, or both, must have inflicted the injuries, and that neither could be excluded; the instant case was such a case. Judges should not start from the premise that it would only be in an exceptional case that it would not be possible to make such an identification; if an identification was not possible, because, for example, a judge remained genuinely uncertain at the end of a fact-finding hearing, it was the duty of the judge to state this.

Re K (Non-accidental Injuries: Perpetrator: New Evidence) (2005) 1 FLR 285 - which stated that it was in the public interest for those who caused non-accidental injuries “to be identified wherever such identification is possible” (see para 55 of Re K) and that children needed “to know the truth about who injured them when they were children, and why if the truth can be ascertained” (para 56 of Re K) – was not inconsistent with the judgements in Re B.

Re D (Unborn Baby) (2009) 2 FLR 313

This is an interesting decision of Mr Justice Munby (as he then was) when he granted an anticipatory declaration to a local authority that it would be lawful to remove a child at birth without forewarning the parents of its intention to do so.

Given the rare and exceptional circumstances of the case, the local authority was entitled and justified in seeking to remove the child at birth under s 46 of the Children Act 1989 with the cooperation of the prison authorities and the police following which the authority would apply for an emergency protection order. The local authority had acted “entirely appropriately” in bringing the matter to court.

Re M (Assessment: Official Solicitor) (2009) 2 FLR 950 CA Thorpe and Wall LJJ

This case highlights how every effort must be made to find out if a mother can parent her child and to obtain whatever evidence is thought appropriate.

In this case the mother (‘M’) was herself a minor who had been in care for the majority of her life. She was represented by the Official Solicitor (‘OS’). The local authority (‘LA’) funded a residential assessment of M but this failed. The LA also instructed a consultant psychologist whose report stated that M effectively had a ‘zero’ chance of providing adequate parenting unless she received two years of intensive parenting.

The OS applied to the court seeking a fresh psychiatric report from a child and adolescent psychiatrist at an estimated cost of £6,902 and a viability assessment by a different centre to determine whether or not the case was suitable for a further residential assessment.

The judge refused these applications on the basis that these additional reports were unnecessary, would be disproportionately costly and might unfairly raise M’s hope. The OS successfully appealed. The OS had a duty to explore avenues to find out if M could parent the child, to investigate the case on M’s behalf and to obtain whatever evidence he thought appropriate.

Valerie Sterling is a family law barrister at Park Court Chambers in Leeds.

http://www.parkcourtchambers.co.uk/profiles/Valerie-Sterling.asp