How should the courts approach cases with an ‘open’ pool of possible perpetrators?

Choice 33452110 s 146x219Chris Stevenson, barrister at Fourteen, examines the Court of Appeal’s decision in Re B (children: uncertain perpetrator) to allow a father’s appeal against a Family Court judge’s finding that he was within a pool of possible perpetrators responsible for sexually transmitting gonorrhoea to three of his children (registration required).

The court concluded that the judge had not taken the right approach to identifying the possible perpetrators and the matter would have to be reheard.

Re B (children: uncertain perpetrator) [2019] EWCA Civ 575, [2019] All ER (D) 49 (Apr)

What are the practical implications of the decision?
The essential issue that arose in Re B (children: uncertain perpetrator) was how to approach those cases where a child is alleged to have suffered significant harm and it is not clear who the perpetrator of that harm is. We are familiar with cases where, for instance, a child suffers a non-accidental injury and this was caused by either the mother, the father, the childminder or a combination of those people.

I would describe this situation as being one where there is a ‘closed’ pool of possible perpetrators. However, what if it is just not possible to be that precise? What if the perpetrator of that alleged harm could have been one of any number of people, in what I would describe as an ‘open’ pool? The latter is the problem that presented itself in this case. There are two particularly important practical implications of the decision - first, the approach to take in identifying pos-sible perpetrators and, second, the need to ensure full and comprehensive evidence-gathering as part of the case-management process.

What was the background? What did the Court of Appeal decide?

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