Legal Updates

Where, in proceedings for a care order under the Children Act 1989, the court could not decide which parent had caused "significant harm" to the child, it should proceed on the footing that each parent was a possible perpetrator. That was the unanimous decision of the House of Lords in the cases of Re O and N and Re B. 

Two matters were referred to the House of Lords with similar facts in issues, i.e. that at the split hearing in care proceedings, there were allegations of harm but the perpetrator had not been identified. The matters had gone to the court of appeal, but had been heard by two different sets of judges who had come to two different sets of conclusions about how to deal with this issue, hence the matter being sent to the House of Lords for determination.

Re Y
In December 2000 child K, who was just over a year old, was admitted to hospital having sustained an appalling catalogue of serious external and internal non-accidental injuries, inflicted on at least four occasions. K was pronounced dead on arrival. The local authority commenced care proceedings in respect of child Y (then aged 6), child K's elder sister. She was eventually placed with her grandmother and has daily contact with her mother, supervised by the family.

The mother's partner KR left the mother's home in December 2001. At the preliminary hearing the high court found that KR was the perpetrator of all the injuries, that the mother could be exonerated as a perpetrator and that she had not failed to protect child K at any stage of his life. The court of appeal allowed an appeal by the local authority: and held that KR was a perpetrator, but there was insufficient evidence he was the sole perpetrator. Thorpe LJ outlined the two most important questions regarding K’s death :
"First, who perpetrated the injuries recorded by the experts? The answer to that can only be, 'either the mother or KR'. The court is unable to determine to the requisite standard which. Secondly, who failed to protect K from these injuries? Again, there can be no doubt that the mother failed to protect. KR is not involved in any way in the disposal proceedings which will follow. He is the more probable perpetrator in relation to most of these injuries. But the important factor that the judge must bring into the foundation for the disposal hearing is that he cannot disregard the risk that the mother presents as a primary carer for either Y or a future child"'.

Re L and child C
In May 2001 child L (aged six months) was found to be suffering from a fractured skull and several other fractures. The injuries could only have occurred whilst the child was in the care of her parents. The parents separated after child L was admitted to hospital. The father subsequently pleaded guilty to charges of causing grievous bodily harm, and was sentenced to concurrent sentences of 3½ years and 2 years imprisonment. The later retracted his admission for any injury except the fracture to the skull. Child C (born in October 2001) is the second child of the mother and father.

The local authority commenced care proceedings in respect of both children. At the county court, at the split hearing in April 2002 the judge found that the injuries were non-accidental, that the father was responsible for the fracture to the skull, that no reliance could be placed on his plea of guilty to the criminal charge relating to the other injuries, that neither parent gave any explanation to account for the other injuries, that neither parent could be absolved as a possible perpetrator, that the injuries were caused by either or both parents whilst the child was in their care, and that the parents individually or jointly failed to protect the child L. The mother appealed to the court of appeal, who did not overturn the original judge’s findings, but did add “this case must proceed henceforth upon the clear basis and understanding by all concerned, lawyers, social workers and experts, that L was not harmed by her mother and there is no risk that either L or C is at risk of suffering physical harm from her”

Lord Nicholls gave the leading judgement and rejected the approach of the second court of appeal (the re L and Re C case).  After considering section 31 of the Children Act 1989, he was clear about the fact that the burden of proof is on the local authority, and considered the purpose of the split hearings, as well as the welfare test.  He rejected the idea that because neither parent considered individually, had been proved to be the perpetrator, therefore the child is not at risk from either of them.  He was clear that “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.”  He want on to say that transcripts of judgements given at the preliminary hearing should always be made readily available when required, not summaries or even bare statements of conclusions.

He was alive to the fear of parents 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.  He said that in such cases where there are “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.”

Comment: This case makes it crystal clear what must be considered at the first hearing and what assumptions can be made during the following assessment.  If a parent is identified as a perpetrator, that is where the assessment starts, if a parent is identified as being a possible perpetrator then the assessment and the second hearing must consider that as one of the factors for the court to consider.  It is not right to say that because a parent cannot be positively identified as a perpetrator that they therefore pose no risk of harm to a child. Lord Nicholls’ view was: “Quite simply, it would be grotesque.”  

Bernadette Livesey

Human Rights Solicitor

Walker Morris