Lords rule both parents can be held accountable for harming child

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