Case No. WD20C01533

THE FACT-FINDING HEARINGKEY FEATURES OF THE EVIDENCECLOSING SUBMISSIONSDISCUSSIONFINDINGS OF FACT ON SIGNIFICANT DISPUTED MATTERSHis Honour Judge Richard Clarke :Important NoticeThis decision was delivered in private to the parties and their lawyers. They may not show or otherwise communicate this decision or its contents to any other person. Any party or their lawyers wishing to show or inform any other person about the decision or any other person wishing to see the decision must first come back to court and obtain the permission of His Honour Judge Richard Clarke.The judge has given leave for this version of the decision to be published on condition that (irrespective of what is contained in the decision) in any published version of the decision the anonymity of the child(ren) and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Before:HIS HONOUR JUDGE RICHARD CLARKEBetween:DECISIONContentsINTRODUCTIONREPRESENTATION AND PARTIESESSENTIAL BACKGROUNDISSUES THAT MUST BE DECIDEDPARTIES’ POSITIONSTHE LAW AND LEGAL PRINCIPLESTHE FACT-FINDING HEARINGKEY FEATURES OF THE EVIDENCECLOSING SUBMISSIONSDISCUSSIONFINDINGS OF FACT ON SIGNIFICANT DISPUTED MATTERSHis Honour Judge Richard Clarke :INTRODUCTION1.This is the decision of the Court, following a fact-finding hearing, on an application by Hertfordshire County Council (referred to as the Local Authority) for Care/Supervision Orders issued on 10 December 2021 in respect of [the Child] born on 1 October 20212.This case is about injuries sustained by a child in the first 26 days of her life. However, it has also been about lies and collusion and the impact these have on the decision.3.The trial of this matter has taken place over 8 days commencing on 20 June 2022, with judgment having to be reserved due to the impact on the timetable of changing explanations for events.REPRESENTATION AND PARTIES4.The Local Authority was represented by Julian Date, counsel.5.The first respondent is Mother, who was represented by Naomi Carpenter of counsel.6.The second respondent is Father, who was represented by Michael Liebrecht of counsel.7.The children’s guardian is Laura Holden (referred to as Guardian), who was represented by Samantha Reddington of counsel.8.The First Intervener is the Paternal Grandmother, who is representing herself.9.The Second and Third Interveners are the Maternal Grandparents or Maternal Grandfather and Maternal Grandmother, who are representing themselves.10.The Fourth and Fifth Interveners are the Paternal Aunt and Paternal Aunt’s Boyfriend, who are representing themselves.11.Given the potential for wider distribution of this judgment, I have anonymised the names of the children and family members. I have already provided a schedule of anonymised names so that anyone working with this family can readily identify the people referred to it in the decision. ESSENTIAL BACKGROUND12.Of most relevant note are the following:12.1.The parents are not married. Both parents have an element of mental health issues due to their past. [redacted]12.2.Father was born [redacted] and Mother was born [redacted]. The parents met on Tinder. The gap between Mother ending her previous relationship and focussing her attentions on Father was spoken of as a couple of days. The relationship would appear to have become physical almost immediately, with Mother seeking an early termination because it was unclear whether she was pregnant from Father or her previous boyfriend.12.3.Mother left her employment and moved in with the Father at the flat he was renting. They described the pregnancy as planned, but not expected to happen so soon. Mother fell pregnant again within around 3 months of the relationship starting.12.4.Father purchased a new-build property next to the house of his sister, the Paternal Aunt, and the parents moved into that house around the end of May 2021. The parents purchased a German Shepherd puppy the day after they moved in.12.5.[redacted]12.6.The Child was born in the early hours of 1 October 2021, having been induced. Father had 4 weeks paternity leave which commenced as soon as she went into hospital. Mother self-discharged from hospital early.12.7.On 3 October 2021 the Child was returned to hospital and spent 2 further days as an in-patient due to neo-natal jaundice.12.8.The first Health Visitor appointment took place on 12 October 2021. The Child was checked and weighed. Mother was reported to be complaining that Father’s family were visiting more often than Mother would have liked. The Health Visitor was concerned for Mother’s mental health, having asked her to complete standard questionnaires which indicated Mother had moderately severe depression and severe anxiety. While Mother’s behaviour was not a concern to the Health Visitor, Mother was referred to the Universal Plus service for support.12.9.The Community Midwife visited the family home on 14 October 2021. The note of the appointment included comments about “Father being asleep”12.10.A telephone triage assessment of Mother’s mental health took place on 14 October 2021. She was reported as having low mood, anxiety, feeling fearful and with feelings of failing. A face to face assessment was planned, but was then overtaken by events.12.11.The Child was cared for by the Paternal Grandmother overnight on 15/16 October 2021, the Maternal Grandparents from 21 to 23 October 2021 and by the Paternal Aunt and her Boyfriend overnight on 14/15 October, comment – the court’s recollection was this date changed and it is unclear if this also happened on 19/20 October 2021, as well as spending 12 hours with them on 24 October 2021. The Paternal Aunt and her boyfriend had telephoned the Paternal Grandmother at 4am for support.12.12.On 27 October 2021 the Child’s Health Visitor attended on short notice, because she was in the area, to follow-up on Mother’s mental health. Mother was reported as complaining she felt unsupported by Father, who was staying up late in the evening and then spending the day in bed. Father was referred to as “heavy handed” with the Child, not bonding with her and calling the Child unpleasant names. Mother said Father was staying up late in the evening and then spending the day in bed. While there, the Health Visitor observed a red mark to the Child’s lower leg as Mother was picking her up from her crib. She later recorded Mother’s explanation that a bottle of milk had fallen on the Child, and that when she asked to see the Child’s other leg Mother declined saying she did not want to disturb the Child. As the Child was being put back in the crib the Health Visitor observed another red mark to the left thigh. She made a referral and a child protection medical took place the same day, at which multiple bruises were identified as follows:12.12.1.Bruise 1. A slightly square-shaped bruise measuring 1cm x 2cm x 1cm x 0.5cm on the left anterior (front) thigh approximately 1cm above the knee. This was red/purple in colour. Explained as occurring following a spray bottle falling on the Child’s leg.12.12.2.Bruise 2. Two small red/purple coloured bruises in close proximity to each other on the right lateral calf. The first bruise measures 1cm x 0.5cm and the second one measures 1cm. Parents say this may have occurred as a result of a bottle falling on the baby's leg as explained for Bruise 1.12.12.3.Bruise 3. A linear purple bruise on her right lower back just above the buttocks. This measures 1.5cm in length. There was also some discolouration of the skin surrounding this mark. No explanation was given.12.12.4.Bruise 4. A red coloured bruise on her right lower abdomen in the mid axillary line. This measured 1.5cm x 1cm. No explanation was given.12.13.Father stayed overnight with the Child at hospital on 28/29 October 2021. A student nurse reported hearing Father shout and swear at the child and seeing him try to push her feed bottle into her mouth. She reported it to the Ward Sister, but they did not see or hear anything of concern. Mother was asked to return to the hospital to care for the Child.12.14.The Child was placed under police protection on 29 October 2021 and the parents were arrested on suspicion of assault occasioning grievous bodily harm.12.15.At all material times Father was a serving police officer and Mother was not working. The parents were interviewed by the police on 30 October 2021. Due to Father’s occupation the investigation was conducted by a neighbouring force.12.15.1.In Mother’s interview she spoke about knowing the Child had suffered the 2 injuries to her legs and not seeking medical assistance. She said Father had woken her at 4 in the morning, stating a bottle had fallen across the Child’s legs and might have been caused by the dog’s tail. Mother said that she had said to Father she would look at it in the morning, but then forgot until the health visitor’s visit. Because the bottle was quite big she questioned whether it could have caused the bruise around the hip area. Mother spoke about not enjoying the pregnancy, but enjoying being a mum and it having brought her out of a really dark place. She also spoke about having postnatal depression, but with no formal diagnosis. She stated the pregnancy was planned, and Father had proposed marriage when she was 20 weeks pregnant. She accepted she had discharged herself against advice because she does not like hospitals. She spoke about Father being a fantastic support with no concerns, other than gripes about leaving the wet towel on the floor or not putting dirty plates in the dishwasher. She said they had never raised a voice at one another, apart from the wet towel. She also spoke about him being a bit heavy-handed at times, but clarified this as the speed he would go to pick the Child up, and stated she would like to sell his XBox. Mother spoke about the Child being difficult to feed and aggressive with the feeding bottle. Father would apparently become frustrated with the Child and refer to her as “a little bugger”, but Mother said he would never swear at or to either the Child or her. She spoke her family being complete and being happy. The Child was described as sleeping between around about midnight until about half 6, and she stated Father had come off nights and initially doing the nightshifts with the Child, then alternating. She said the Child slept in their room in a Moses basket. She said she did not know why Father had taken the Child downstairs, but thought the dog had got a bit excited with daddy coming downstairs. Mother was shown photos of the bruising and accepting the marks were visible. She raised the possibility of the mark to the back being a birthmark. She was asked about the Paternal Aunt saying Father had better not have done anything to the baby, and said the Paternal Aunt was a very outspoken person and it was probably coming from Father having been the one watching the Child.12.15.2.In Father’s police interview he talked about a water spray bottle being knocked onto the child, landing on her legs, when the puppy got up on the sofa and his tail hit the bottle. He had apparently been gaming online and changing her when it occurred. He talked about the dog maybe brushing the Child’s arm when he jumped up with the bottle, but said he did not know whether the dog actually touched her because it happened very fast. He said that when it happened she instantly did what he described as a silent cry. He said he noticed a mark or marks on her legs and that he told Mother straightaway when she woke up in the morning (and later confirming this). Father was clear that he had checked the Child over that night and did not know where the other bruises were from. He stated he was sure Mother went downstairs and had a look. He then talked about waking up in the morning when the Health Visitor was there and coming downstairs to hear her say she would be speaking to her manager. Father talked about having a temper, but said he did not lose his temper easily. He confirmed it was a planned pregnancy, after 3 months of being together, and also talked about referring to the Child as “little bugger”, in an endearing way. He also spoke of Mother’s dislike of hospitals and accepting she had discharged against medical advice. He accepted sometimes getting frustrated with the Child, but said Mother and he agreed if either was getting frustrated the other would take over and given them a break. He had no concerns about Mother’s parenting at all. When asked about the comment made by the Paternal Aunt he said “she knows I have a temper but she knows that at the end of the day I can control it and it would never be taken out on a three week old baby that’s my flesh and blood and that I love dearly”.12.16.The Child was discharged from hospital into foster care, pursuant to s20 of the Children Act 1989, on 1 November 2021. The Child has remained in foster care ever since, initially pursuant to s20 then pursuant to an interim care order made by the court.12.17.Following conclusion of the police investigation the police have decided to take no further action.12.18.Bruising is hard to date and a range of dates when the injuries could have been sustained was identified. Given the number of relatives who had cared for the child within that timeframe the pool of potential perpetrators identified by the Local Authority was quite wide. All parties identified within the pool were joined to the proceedings as part of engagement with their right to a fair trial under Article 6 of the European Convention on Human Rights, as incorporated into British law by the Human Rights Act 1998. None of the relatives were eligible for public funded representation and they have represented themselves.12.19.The parents remained in a relationship up to and including during the fact-finding hearing and attended together.ISSUES THAT MUST BE DECIDED13.The court must consider and answer the following questions;13.1.Did Mother discharge herself and the child from hospital on the day of birth against medical advice, placing the child at risk of suffering physical and/or emotional harm?13.2.In respect of injuries:13.2.1.What injuries were sustained?13.2.2.How were any injuries caused? Were they accidental, or caused in a way that involved an element of wrongdoing?13.2.3.If there was an element of wrongdoing, who had the opportunity to cause the injury?13.2.4.Of those people, is the court able to identify a perpetrator? If not, which of those people is there a likelihood or real possibility caused the injury.13.3.What did the other parties know and did any of the parties fail to protect the child?13.4.Was Father verbally abusive to the child and/or did he call her names?13.5.Was Father heavy-handed or rough with the child?13.6.Did Mother have mental health issues which placed the child at risk of suffering physical and/or emotional harm?13.7.Was the child placed at risk of suffering harm as a result of the multiple carers who looked after her?13.8.Have the parents and intervenors been open and honest with professionals or the court?14.The above is a summary of the Local Authority Schedule of Threshold Findings. The response of the parties can be summarised as follows:14.1.Mother discharged herself on the basis she would return for further checks within 48 hours.14.2.The bruising to the left thigh and right calf were caused by the bottle falling on the child as reported by Father.14.3.The bruise to the lower back was not seen by the Intervenors and the parents say it is a birthmark.14.4.The bruise to the lower abdomen was either not seen or caused from the umbilical cord coming away, or caused by a tight seatbelt.14.5.Any injuries were accidental and there was no failure to protect.14.6.Father has never been abusive or called the Child unpleasant names in their presence.14.7.While Father may be awkward with the Child, he had never been heavy-handed.14.8.While Mother may have felt low, there was no diagnosis of anxiety or depression.14.9.The Child was looked after by multiple family members, but was not distressed by this.In addition, and having heard all the evidence, the guardian sought additional findings as follows: The parents and intervenors have each failed to work openly and honestly with professionals and the court, and that their motive in withholding relevant information in respect of the parental relationship and the father calling the child ‘an attention seeking whore’ was to protect the parents, thereby prioritising the parents over and above the child’s need for protection and in order to prevent the full detail of the child’s lived experiences and the risks posed to her being shared with professionals and the court. The child was exposed to a domestically abusive and volatile relationship which included controlling behaviour exhibited by the father. PARTIES’ POSITIONS15.The Local Authority argued that the bruises were inflicted and caused by the parents and/or the relatives. By the conclusion of the hearing the Local Authority was not asking the court to find that any of the intervenors/relatives were responsible for the injuries, but still sought extended findings.16.Mother disputed some of the injuries, denied inflicting any injury on the child or failing to protect her, and disputed the Local Authority allegations. She referred to an explanation provided by Father as to how some of the injuries may have been caused.17.Father denied inflicting any injury on the child, and stated he did not believe either Mother or the relatives had inflicted any injury either. He disputed the allegations of the Local Authority.18.The Guardian approached the matter on the basis of applying strong, intellectually rigorous representation of the child. By the time of closing submissions the Guardian was stating she did not believe the court had been told the truth about how the injuries were caused, and whilst the weight of evidence pointed to Father the Guardian had never been involved in a case before where evidence had changed on so many occasions. The Guardian accepted the evidence did not support a finding that the injuries were likely to have been caused by the relatives. As outlined above, the guardian sought additional findings.THE LAW AND LEGAL PRINCIPLES19.The law is well known in this field, uncontroversial and need not be recited at length but the Court needs to remind itself of it both personally and so the parties are aware of the context of the decision it makes. It can be summarised as follows: 19.1.There is only one standard of proof in these proceedings, namely the simple balance of probabilities.1 Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. 19.2.The burden of proof is on the party who makes the allegation(s). It is not reversible, and it is not for the other party to establish that the allegation(s) are not made out. The burden of proof falls always on the local authority. It is the local authority that brings these proceeding and identifies the findings they invite the Court to make. There is no pseudo-burden or obligation cast on the respondents to come up with alternative explanations219.3.Therefore, the burden of proving the allegations that they make rests with them.319.4.The questions for every fact-finder are: What, When, Where, Who, How and Why?19.5. The court is not bound by the cases put forward by the parties, but may adopt an alternative solution of its own4. However, the judge should be cautious when considering doing so and if the judge is, as it were, to go “off-piste”, and to make findings of fact which are not sought by the local authority or not contained in its Schedule, then he or she must be astute to ensure:19.5.1.That any additional or different findings made are securely founded in the evidence: and19.5.2.That the fairness of the fact-finding process is not compromised.519.6.If a fact is to be proved the law operates a binary system in which the only values are 0 and 1 therefore it is open to the Court to make the following findings on the balance of probabilities: 19.6.1.that the allegation is true19.6.2.that the allegation is false and once an allegation has been proven on the balance of probabilities it will be treated as a fact and all future decisions will be based on that finding. Equally if a party fails to prove an allegation the Court will disregard the allegation completely.19.7.There is a presumption that a criminal conviction stands as proof of the offences for the purpose of these proceedings.19.8.The inherent probability or improbability of an event remains a matter to be considered when weighing the probabilities and deciding whether, on balance, the event occurred. “Common sense, not law, requires that in deciding whether the fact in issue is more probable than not regard should be had to whatever extent appropriate to inherent probabilities6” The fact an event is common or frequent does not lower the standard of probability to which it must be proved, nor does the fact it is very uncommon or infrequent raise the standard of proof.19.9.Where the evidence stands only as hearsay, the Court weighing up that evidence has to take into account the fact that it was not subject to cross examination.719.10.There has been a significant passage of time since the events in question. As Jackson J (as he then was) stated8: To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record keeping or recollection of the person hearing or relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as "story-creep" may occur without any necessary inference of bad faith."19.11.It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. If the Court finds that any witness who has given evidence has lied on collateral matters, then in the assessment of their core credibility the Court must:19.11.1.decide whether a witness did in fact deliberately tell lies. If the Court is not sure that he or she did, then it should ignore the matter. 19.11.2.ask, if sure a witness has lied, why have they done so? A person may lie for many reasons and they may possibly be “innocent” ones, for example, to bolster a true case; to protect somebody else, out of shame, panic, distress or confusion; or out of a wish to conceal disgraceful behaviour from their family. A lie told by a person can only strengthen or support evidence against that person if the Court is satisfied that (a) the lie was deliberate; (b) it relates to a material issue; and (c) there is no innocent explanation for it.9 Lies, however deplorable, are significant only to the extent that they affect the welfare of the child, and in particular to the extent that they undermine systems of protection designed to keep the child safe.10 A witness may lie for many reasons , such as shame, misplaced loyalty, panic, fear or distress, and the fact that a witness has lied about some matters does not mean he or she has lied about everything.11 Where witnesses have made mistakes or told lies in their evidence there must be an evaluation by the Court in the light of the entirety of their evidence and the court must remember that the fact that a witness has lied about some matters does not mean that he or she has lied about everything12.19.12.Findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation.13 If the local authority case is challenged on some factual point they must adduce proper evidence to establish what it seeks to prove. There is also the need to link the fact relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child or children has/have suffered, or is/are at risk of suffering, significant harm of types X, Y or Z.14 The Court’s findings must identify what significant harm the Court found the child(ren) to have suffered and/or the type of significant harm the child(ren) was/were likely to suffer.19.13.When carrying out the assessment of evidence, the Court must pay attention to the fact “Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the Local Authority has been made out to the appropriate standard of proof”15 First, the Court must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. The Court must survey a wide canvas. Secondly, the evidence of the parents and other carers is of the utmost importance. It is essential that the Court forms a clear assessment of their credibility and reliability. 19.14.The Court must weigh up all the evidence, whether given by expert or lay witnesses.19.15.Any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so.1619.16.The evidence of the parents and any other carers is of the utmost importance. It is essential that the Court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the Court is likely to place considerable weight on the evidence and the impression it forms of them.1719.17.The assessment of credibility generally involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore, contemporary documents are always of the utmost importance.1819.18.The repetition of what one witness says another witness has told them cannot amount to corroborative or supporting evidence and at best goes to the consistency of a witness rather than the truth of what they are saying.19.19.In assessing the evidence of a witness the court must also proceed with caution and care being mindful of the possibility of collusion and contamination and that a witness who has heard something may, over time, adopt what has been heard as if they were actually present at an event. Equally a person who has made the allegation, in order, for example, to excuse or explain their own behaviour or to seek attention or sympathy may start to believe the truth of the allegation and thereafter to exaggerate it. In such cases it is vital for the court to search for contemporaneous evidence from an independent source.19.20.Whilst of course appropriate attention must be paid to expert evidence, it is important to rememberi)that the roles of the Court and expert are distinct; and ii)that it is the Court that is in the position to weigh the expert evidence against the findings of the other evidence19 …… “What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise [sic] should be met with an answering challenge.”20 The judge must always remember that he or she is the person who makes the final decision.21 The evidence of an expert is not held in any special position and there is no presumption of belief in an expert no matter how distinguished they may be. However, a judge cannot substitute their own view for the views of the experts without some evidence to support what they conclude and must give reasons for disagreeing with an expert’s conclusions or recommendations.19.21.The medical and expert evidence is but one part of the evidence available to the court at the fact-finding stage and must not take undue prominence. As Ryder J observed22: ‘A factual decision must be based on all available materials, i.e. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be. Just as best interests are not defined only by medical or scientific best interests…likewise investigations of fact should have regard to the wide context of social, emotional, ethical and moral factors… I venture to suggest that if a court considers the broader context of expert evidence, that is the social, educational and healthcare history, with the rigour described above, there must surely be less likelihood of inappropriate reliance on what may transpire to be insufficiently cogent and sometimes frankly incorrect expert evidence even where it is uncontradicted”19.22.Section 31 of the Children Act 1989 provides that a court can only make a care order or supervision order if it is satisfied that the child concerned is suffering or is likely to suffer significant harm and the harm, or the likelihood of harm, is attributable to the care given to the child, or likely to be given to (them), if the order were not made, not being what it would be reasonable to expect a parent to give him or the child being beyond parental control (referred to as the threshold test). 19.23.“Harm” is defined in Section 31(9) as meaning “ill-treatment or the impairment of health or development”. Health covers both physical and mental health. Development means physical, intellectual, emotional, social or behavioural development.19.24.The relevant date for the threshold test is normally the date of issue of the proceedings, but where interim arrangements for the protection of the child have been put in place prior to proceedings being issued the relevant date can be as far back as the date at which the local authority initiated the protective arrangements.2320.This case involves an allegation of physical injury to a child. The Court must therefore also consider the following approach to that issue:20.1.If it is satisfied that the child sustained injuries it must first consider whether they were caused non-accidentally. In this context the Court reminds itself of the comments of Ryder LJ about the expression “non-accidental injury”24:- “I make no criticism of its use but it is a 'catch-all' for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2)."20.2.Secondly, the Court must next ‘consider whether there is a ‘list’ of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain, to do so25. Only if it cannot identify the 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 or a perpetrator of the inflicted injuries?" Only if there is should A or B or C be placed into the ‘pool’. 2620.3.In considering whether a particular individual should be within the pool of possible perpetrators the test is not whether that individual can be excluded as a perpetrator, but whether there is a real possibility that he or she was involved. An individual should not be expected to prove his or her innocence beyond reasonable doubt. 20.4.While a Court should not strain to identify the perpetrator, to do so should promote clarity in identifying future risks to the child and the strategies necessary to protect the child from them and there should be long-term benefits for the child in knowing the truth if it can be ascertained. Plainly, the threshold criteria can be established by findings that a child has suffered harm whilst in the care of his parents, or other carers, without the need to establish precisely who caused the injuries. Nevertheless, where possible, and for the consideration of a child’s welfare, it is desirable to identify who has and who has not caused the injuries.20.5.If the Court identifies a pool of possible perpetrators which, ex hypothesi, will include more than one person, it should be cautious about expressing a view as to the percentage likelihood of each or any of those persons being the actual perpetrator. In the words of Thorpe LJ: “Better to leave it thus”.21.