What happens when a child gets hurt and we don’t know who did it?

In the light of concerns about the Ben Butler case in June 2016, this post by Sarah Phillimore attempts to explain the law that will apply in the family courts when a child has been hurt and there are a number of adults who could have done it – the so called ‘pool of perpetrators’.

If you want to know more about the practicalities of the court process from a parent’s perspective, please see this guest post by Suesspiciousminds  ‘The Social Worker tells me my child has been hurt’. 

There is often confusion expressed about why both criminal AND family cases can run together, based on the same concerns that a child has been hurt. In some cases, the criminal proceedings will stop or not even start and only the family case continues. This is because of the different roles and responsibilities of the criminal and family courts. Criminal courts, in essence, exist to identify criminals and punish them. As punishment can involve a deprivation of liberty by sending someone to prison, the standard of proof is high – ‘beyond reasonable doubt’.

Family cases however are about protecting children so the focus is different and the standard of proof is lower. There are many parents however who argue that it is simply wrong to make findings about children being injured and remove them from their families on the basis of that lower standard of proof. However, it will probably take an Act of Parliament to change this as Judges are now very clearly bound by decisions of the Supreme Court. 


The relevant law – general principles about establishing facts

The court should consider the following issues when it needs to make a finding about what happened in any particular case:

  • Articles 6 and 8 of the European Convention on Human Rights [ECHR] which means the court must respect the right to family life and the right to a fair trial.
  • A finding of fact by a Judge that someone hurt a child is a serious thing; therefore anyone at risk of such a finding being made against them must have a chance to be part of the court proceedings and be able to make their case. If someone is a vulnerable adult and needs help from, for e.g. an intermediary, this should be considered by everyone at an early stage
  • The ‘burden of proof’ lies on the person who makes the allegation, in this case the local authority. This means that it is not the adult’s responsibility to prove they did not hurt the child; the local authority must prove they did.

Burden and standard of proof in ‘binary’ system

  • The standard of proof is the ‘balance of probabilities’ – it must be more than 50% likely that something happened: see Re B (Care Proceedings: Standard of proof) [2008] UKHL 35. In the words of Baroness Hale at paragraph 70: “I…would announce loud and clear that that the standard of proof in finding the facts necessary to establish the threshold at s31 (2) or the welfare considerations at s1 of the 1989 Act is the simple balance of probabilities, neither more not less. Neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”.
  • If a fact is to be proved the law operates a ‘binary system’ which means it is either true or it is not.
  • Findings of fact must be based on evidence not speculation. As Munby LJ (as he then was) observed in Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817 “it is an elementary position that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation”.
  • The court’s task is to make findings based on an overall assessment of all the available evidence. In the words of Butler-Sloss P in Re T [2004] 2 FLR 838: “Evidence cannot be evaluated and assessed separately 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”.
  • If it is suggested that something is ‘very unlikely’ to have happened, that does not have an impact on the standard of proof. See BR (Proof of Facts) [2015] EWFC 41 (11 May 2015) where Jackson J commented at paras 3 and 4:
    The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred.
    Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observed:
    “Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”
    I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.

What happens if a witness lies about something?

  • An important part of the assessment is what the court thinks about the reliability of the adult’s evidence. The court will be worried if someone is found to have lied about something, but that does not necessarily mean that person has lied about everything. The court will keep in mind the warning in R v Lucas [1981] QB 720 that “if a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure”.

Expert witnesses

  • With regard to evidence provided by expert witnesses, the court should consider the following:
    • First, whilst it may be appropriate to attach great weight to clear and persuasive expert evidence it is important to remember that the roles of the court and expert are distinct and that it is the court that is in the position to weigh the expert evidence against the other evidence: see, for example, Baker J in Re J-S (A Minor) [2012] EWHC 1370.
    • Secondly, the court should always remember that today’s medical certainty may be disregarded by the next generation of experts. As Hedley J observed in Re R (Care Proceedings Causation) [2011] EWHC 1715 “there has to be factored into every case…a consideration as to whether the cause is unknown”.

Particular considerations in a case when a child has suffered injury

The court will consider the decision of the Supreme Court in in Re S-B (children) (non-accidental injury) [2009] UKSC 17.

Was the injury an accident?

  • If the court is satisfied that the child sustained injuries, the first question is whether they were caused ‘non accidentally’.
  • The court is reminded of the comments of Ryder LJ about the expression “non-accidental injury” in S (A Child) [2014] EWCA Civ 25:-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).
  • For an example of an injury deemed accidental, see EF (a child), Re [2016] EWFC B107 (15 September 2016) the court accepted the parents’ account and thus the LA had not made out its case.

If it wasn’t an accident – who did it?

  • Having established the injury was not an accident, attention turns to whether or not the court can say who caused the injury. The ‘threshold criteria’ (what the court needs to find proved in order to make a care order) 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, it is clearly a good idea to identify who has caused the injuries:
    • to be as clear as possible about future risks to the child and how to deal with those risks.
    • The child has a right to know what happened to him, if it is possible to find out.

How hard should the court try to find out who did it?

  • However, the court should not ‘strain unnecessarily’ to identify who hurt the child. If the evidence does not support a specific finding against an individual(s) the court should attempt to identify the ‘pool’ of possible perpetrators. See Lancashire CC v B [2000] 2 AC 147 and North Yorkshire CC v SA [2003] 2 FLR 849.
    • The identification of a pool of possible perpetrators is sometimes necessary in order to determine if the child’s parents or carers are to blame for the harm suffered by the child. If the child was hurt by someone outside the home or family – for example by someone at school or at hospital – then it would usually be unfair to say that this is the parent’s/carer’s fault.
    • In considering whether a particular individual should be within the pool of possible perpetrators the test is whether there is a real possibility that he or she was involved.
    • If the court identifies a pool of possible perpetrators the court should be wary about expressing any 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”).

What happens in the future if a parent is found to be in the ‘pool of perpetrators?’

As a parent, this could have a serious impact on your current or future family life. You may find that you need to submit to a risk assessment from the local authority if you want to care for your children.

However, if you become involved in care proceedings in the future, the court is clear that a previous finding that you were ‘in the pool’ can NOT be treated as simply ‘proof’ that you hurt a child and it cannot be used in this way as part of any threshold document to assert that your current children are at risk.

However, the fact that a parent was part of a household where a child suffered injury, cannot just be ignored and will need to form part of a careful assessment of current circumstances.

See In the matter of J (Children) [2013] SC 9 – the judgment of Lady Hale at para 52:

52. It is, of course, a fact that a previous child has been injured or even killed while in the same household as this parent. No-one has ever suggested that that fact should be ignored. Such a fact normally comes associated with innumerable other facts which may be relevant to the prediction of future harm to another child. How many injuries were there? When and how were they caused? On how many occasions were they inflicted? How obvious will they have been? Was the child in pain or unable to use his limbs? Would any ordinary parent have noticed this? Was there a delay in seeking medical attention? Was there concealment from or active deception of the authorities? What do those facts tell us about the child care capacities of the parent with whom we are concerned?

53. Then, of course, those facts must be set alongside other facts. What were the household circumstances at the time? Did drink and/or drugs feature? Was there violence between the adults? How have things changed since? Has this parent left the old relationship? Has she entered a new one? Is it different? What does this combination of facts tell us about the likelihood of harm to any of the individual children with whom the court is now concerned? Does what happened several years ago to a tiny baby in very different circumstances enable us to predict the likelihood of significant harm to much older children in a completely new household?

54. Hence I agree entirely with McFarlane LJ when he said that In re S-B is not authority for the proposition that “if you cannot identify the past perpetrator, you cannot establish future likelihood” (para 111). There may, or may not, be a multitude of established facts from which such a likelihood can be established. There is no substitute for a careful, individualised assessment of where those facts take one. But In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.

It is very important to investigate all the surrounding circumstances thoroughly and not to risk reversing the burden of proof. The Court of Appeal commented in B (Children : Uncertain Perpetrator) (Rev 1) [2019] EWCA Civ 575 (04 April 2019) that it might be better to talk more about a ‘list’ than a ‘pool’.

Further reading

Barristers at 6 Pump Court consider recent developments in the law relating to injuries to very young children, 22 March 2017.

We believe you harmed your child: the war over shaken baby convictions The Guardian 8 Dec 2017 

41 thoughts on “What happens when a child gets hurt and we don’t know who did it?

  1. Angelo Granda

    One Parent’s View.

    There are two legal principles relevant to this post ,in my opinion, on which lawyers should concentrate great attention.

    1. http://www.familylawweek.co.uk/site.aspx?i=ed12688
    (Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC563) lays down that where there is an allegation of particularly serious harm ( which i would define as any case where permanent removal of children from family is sought) more evidence would be required . Evidence must be shown on facts and the normal civil standard of proof is not enough. Serious cases should use the higher standard used in the criminal system.
    The proposition is that ‘more serious’ harm is likely to satisfy the dire circumstances necessary before removal plans can be imposed . Although less serious judgments and protective orders may be issued ,removal should never be sanctioned solely OR to a considerable extent on trust in the good faith ,professional ‘judgement’,professional ‘opinion’, and/or suspicions of SW’s ,Guardians and other experts.
    An example, often professionals hedge and encourage the issue of protective orders in the light of previous systemic blunders which have drawn heavy,public criticism. This will affect their personal judgments and opinions.
    For another,when giving advice court experts,whilst they may be aware an application is for a protective order,are not privy to ALL allegations,evidence or care-plans. Thus they do not necessarily envisage permanent removal and it follows they may not examine and report on issues with due regard to FACTUAL detail which is demanded by common law principle.

    So,in my view, barristers should consider :-
    a) Prevarication should not be encouraged in family proceedings courts through the concealment and avoidance of relevant facts which render allegations unreasonable. Abridging evidence on the grounds of time schedules , restrictions on witnesses of fact etc. should not be allowed to happen.
    b) If a Local Authority wants to ‘remove’ because professionals ‘think’ a case is serious so much so that allegations warrant the instigation of a comprehensive criminal investigation by Police into the FACTS , then no action should be taken by a civil court until and when Police are in a position to reveal their findings into facts. All the CPS decisions and all statements etc. made to Police should be shown to the family court. Currently ( especially in S47 cases) ,SW’s deliberately get Police involved and make unsubstantiated allegations and use the involvement to support their own wrong actions.
    c) A Local Authority should be compelled to establish the facts of a serious case with exactitude BEFORE removing children and making sworn statements of fact to a civil court. If the SW’s refuse to investigate themselves and ‘pass the buck’ to the Police they should await the outcome before issuing proceedings.
    d) If the CPS find subsequent to Police investigations that there is no realistic possibility of a conviction ,this will be a clear indication that more serious harm more probably did not occur. No matter how likely it is felt by professionals in a civil court that serious harm occurred in truth ,no matter how likely it is felt by a civil court that it has,that is not enough. The more likely probability is that the Court and experts assessed the case on wrong information whilst having the relevant facts withheld from them .
    e) Whether or not professionals still hold suspicions is inconsequential. There are no facts on which to begin to argue or establish on the Bof P that there is a real risk of future harm warranting either interim or long-term removal not to mention the permanent liquidation of families. The common law standard of proof has not been met.

    2. There is a Children’s Act principle ( s31 (2) (b) (1) that it has to be shown that harm suffered by a child is attributable to ‘the care being given to the child’.

    Lancashire County Council.v. B[2001] 1FCR 583.

    This normally means parents but where care has been shared by strangers ( e.g. the L.A.) and it had not been clear who had harmed the child,the threshhold criterial would not be made out.
    In my opinion, descriptions of children more than 12 hours after removal into care cannot be used as evidence that children have suffered harm in the care of parents.It is likely that children are affected seriously by removal and there is much medical and research evidence which suggests that much harm is caused by LA neglect. Unusual behaviour of children at contact meetings should not be used by professionals similarly in serious cases.
    According to the above common law principle ,the threshhold criteria for removal would not be met.It would not be made out against parents; the Court may well decide to take the children away from the LA and send them home due to the welfare principle.

    I hope this comment isn’t too complicated for readers. It is mainly compiled from legal judgments i have read.

    1. Angelo Granda

      May i add two recent comments on this forum by a SW which are telling.

      QUOTE: There is research and it is known that being separated from your family of origin causes trauma- UNQUOTE

      QUOTE: Outcomes for children in care aren’t just because they are in care, they are predicated on the antecedents :UNQUOTE

      The SW’s know full well they traumatise children. They predicate on the antecedents, judge families in advanced based on their ancestry and family history and blame parents for the harm which they themselves cause. Lawyers may not be aware of this but parents are! One of the first things on a SW’s agenda when carrying out a ‘risk’ assessment is to establish family trees.

      It is a FACT that the LA causes trauma to children . Evidence is not factual when it is based upon predication of the antecedents; that is only guesswork.

      1. helensparkles

        I think you may misunderstand me or I wasn’t clear. Predicated means that the outcomes for children in care are based on what they experienced before being in care as well as or rather than simply being the result of being in care. If the antecedents are trauma and abuse at home, children’s outcomes are also determined by the impact and effect of that on them as an individual (which varies) the grief and loss of being separated from their family of origin, and their experience of being in care. Some children thrive in care.

        1. Angelo Granda

          Thanks for your reply,Helen. Predications are affirmations based on propositions and antecedents are one’s ancestry and past history . Thus outcomes in care nor serious harm are predetermined by antecedents. SW’s base their evidence on implications based upon guesswork. Right or wrong, the evidence is not factual so cannot be relied upon to satisfy findings of serious harm having been caused by parents.
          Research shows that removal causes trauma to children and the harm may be down to the care system.
          In other words ,it is not clear who has caused the harm so threshhold criteria are not met in my book.

          1. helensparkles

            You can of course discuss case history/family history if you wish or whether you think any findings are evidenced. I am not doing that, I am also not commenting on how SW work. I am making a point about the impact of trauma upon children and how harm at home can affect their outcomes in care. I am only doing so because I, like most people, prefer not to be misunderstood when I am quoted. So just assume you know a case where harm has been caused, take that as an example of how that child might also not thrive in care but not be safe at home.

          2. Angelo Granda

            Helen, I understand perfectly what you mean and it may well be that in many cases the SW’s and other professionals will be right! Yet they may be wrong.No-one can blame the SW’s for assessing what they see as risks.
            It is up to the judiciary to ensure Family Courts operate to the high standards necessary. In SERIOUS cases, the normal civil court standards of proof are not enough according to the judgment i cited above.The standards of evidence used by the criminal court should be applied. Facts rule not theory.

          3. Sam

            There is multiple problems around the definition of child abuse. Here is one from the Department of Health 1995 ” Child abuse consists of anything which individuals,institutions,or processes do or fail to do which directly or indirectly harms children or damages their prospects of safe and healthy development into adulthood”
            So why is it only parents that get “prosecuted” for child abuse not staff in institutions, schools etc or if they are also abused by processes should the Government or LA’s be dragged through civil courts
            Also the court should only make an order if it would promote the welfare of the child.
            From my viewpoint they don’t actually

          4. Angelo Granda

            Sam, In answer to your question why is it only parents who are prosecuted for child abuse, we have discussed it all before.
            The reason why the institutions are not prosecuted is because when anyone makes a complaint to the Police and allegations of abuse against the Local Authorities ( care staff etc.) they will not investigate.
            The Family Courts are no better placed to deal with serious allegations of abuse by the LA than they are of allegations against parents. One reason for that is because if and when parents make allegations to their Children’s Legal Panel solicitors or to Guardians, it will be said they are inventing narratives, being over-defensive etc.etc. The solicitors will probably also advise their clients not to bring the issue up in the Family Court as it will be held against them in judgment.They will be advised to keep quiet.
            The ‘cosy’ relationship which these ‘professionals’ have with each other tends to rule out criticism and allegations of abuse in care.
            This is a fact , the professionals raise there eyes to the sky ( turn a blind ‘un) whenever a parent opens their mouth and they do not see and hear the children who might be complaining.

          5. Angelo Granda

            May i add that the Family Court Judges are remiss also. One i saw in court made findings that the CS had neglected a child ,had acted illegally and had caused the child harm. She then did a swift body swerve ( Stanley Matthews style) and found that they were to be excused on account the department would not have done it had it not had what it thought were reasonable grounds to remove the child into care in the first place. This was before she had heard all the evidence in the case. Also ,in the same case, the independent paediatrician reported to Court that ,in his view, there was a possibility that the child had suffered sex-abuse. When it was raised by a barrister, the Judge replied by saying ‘ Don’t go there!’
            Did the Doctor ,the lawyer or anyone else go to the Police? No.

      2. Sarah Phillimore Post author

        This is in response to Sam’s reference to the definition of ‘abuse’.
        Yes, that looks a pretty wide and meaningless definition.
        But don’t forget that the test in care proceedings is ‘significant harm’. So it is possibly to identify behaviour that is ‘abusive’ but if it doesn’t cross over into causing ‘significant harm’ or risk of such, there is no lawful basis for the court to intervene.

        I appreciate that this message sometimes appears to get a bit lost for social workers and guardians. I still recall one guardian telling me at the (now defunct) Inner London Family Proceedings Court that the test by which she worked was ‘are these parents securing this child’s development along his optimal pathway’.

        That is so very clearly NOT the law and is so very clearly social engineering.

        What has been very useful for me in my discussions on this blog and elsewhere, is the dawning realisation that appreciation of and understanding of the Rule of Law is not as clear for social workers/guardians as I had assumed.

        This cannot be their ‘fault’ – they are not trained as lawyers and there do appear to be practical obstacles put in the way of them even getting legal advice from their own local authorities!

        But we do need to do something about it, to ensure that all social workers/guardians have a robust understanding of the actual requirements of section 31 of the Children Act.

    2. Sarah Phillimore Post author

      Sorry, just quickly but Re H 1996 is no longer good law. The situation is as I set out in the post. Balance of probabilities means just that – you don’t require ‘more’ or ‘special evidence’ to deal with serious allegations. You just need to prove something on a balance of probabilities.

  2. Angelo Granda

    Thank you,Sarah. I apologise to readers for my mistake but i was not aware the principle was outdated.
    However,as a parent, i do think my comments a) to e) above are reasonable. The LA should not avoid investigating and presenting facts limiting its evidence to allegations and assessment of theoretical risk. This is what happens when it passes either false or true allegations on to the Police.
    As we know,I cannot claim to speak for the majority of parents but only some likewise you cannot speak for all lawyers but ,for the sake of discussion, do you agree that even if family courts became wholly transparent and open to the Public, standards should be raised and altered in other ways to claim back Public confidence and trust in the system?
    I know you have mentioned a two-tier system in the past and i think the present protocol is reasonable as long as the Court’s power is limited. When removal is contemplated ,i think higher standards are called for especially when we consider Article 8(ECHR). This relates to scrupulous procedure and proportionality.
    As far as fairness (article6) is concerned how can we ensure that the evidence in the factual matrix is confined to facts? In a criminal court ,i believe serious cases are decided by a jury which considers a balance of probabilities based on facts. Then only after its decision is made are psychological,expert assessments of future ‘risk’ ,probation reports, PAST HISTORY etc. taken into account by the Judge at the disposal (sentencing) stage.
    In the family court,it appears that the second stage begins before the facts are known. Is that a problem to be looked at?
    It certainly explains why so many parents complain that their cases appear to be decided before it gets to court and that hearings are a sham.
    All comments welcome.

    1. Sarah Phillimore Post author

      I think you continue to mis-represent what happens at family court hearings. It is clear that any findings about future risk of harm MUST be based on actual proven FACTS. Cases are decided on evidence, not speculation. Yes, it is to some extent ‘gazing into a crystal ball’ to determine future risk. BUT if a parent is a drug addict and is taking no steps to deal with their addiction – one can reasonably assume that drug addiction is going to play a role in their future.

      I have no doubt that individual cases can and do go wrong. The evidence for that is all around us, not least in the extremely tragic circumstances of Ellie Butler’s murder by her own father.

      But in your comments I see continued reference to the entire system as built on a dangerous premise; that people’s children can be taken away on mere speculation. That is NOT how the system is designed and it is NOT – in my opinion at least – how it operates most of the time.

      The question for me is how we get better systems in place to make sure as few cases as possible go wrong. I don’t think we will ever get it down to zero but some of the mistakes being made, such as really poor quality interviews of children, are elementary and inexcusable.

      1. Angelo Granda

        I disagree. You suggest that I misrepresent what happens at family court hearings. I do not. I base my opinions on the written descriptions given by countless other parents which I have seen over very many years (including many on this forum). You appear not to understand that it is no coincidence that the experiences of hundreds of parents are so alike. They all allege and point to systematic abuse of the Court process and it is the task of lawyers to cut it out not to excuse the abuse.

        Decisions are not taken on actual proven facts at all. You are wrong! For example, the SW’s use computer databases as their evidence base and disguise them as ‘fact’. The court does not see the data and neither do parents. The so-called facts are not checked for accuracy .Dozens and dozens of parents have made data-access requests after cases are over and the ‘files’ contain outrageous inaccuracies and invention.

        Please bear in mind that barristers are often not called into proceedings until a later stage which is often after fact-finding hearings and after threshold has been decided.

        Please face up to the truth. I don’t want to seem argumentative to readers and don’t relish disagreement with our leader but the system is not fit for purpose. In particular lots and lots of SW’s are badly –trained and badly –managed (as found by Ofsted). They are often incapable of conducting cases correctly, investigating impartially etc. and make evidence up as they go along.

        Sarah, in my opinion the Judge in the Ellie Butler case was absolutely right to send the child back to her mother. It was wrong to take the child away from home in the first place.
        Apparently the husband was convicted of harming the child which instigated family proceedings. The child was removed because the CS concentrated on finding reasons to remove rather than offer the family support. It was said Mum did not accept concerns, was argumentative and could not work with professionals. Thus the decision to remove was not taken on fact but on the grounds of speculation of future risk. (It is likely other non-facts such as the predication of her antecedents were used to inform the SW assessment).

        After the husband was cleared on appeal, the Judge realized that Mum was reasonable not to have accepted concerns thus the assessment of future risk was probably wrong as a result.

        The Judge was right to return Ellie to Mum. It was justice. The subsequent murder of the child by father is irrelevant to the decision. It is not the job of a Judge or the Social Workers to eliminate risk completely. Indeed it is literally impossible to eliminate risk and the Court must accept that. So must all the debaters on the transparency project.

        1. Sarah

          I find this an incredible comment. The mother chose to remain with a violent man. She chose to collude with him after he murdered their daughter. How on earth can you say his behaviour was ‘irrelevant’.

          A staggering comment. And not in a good way.

          1. Angelo Granda

            Staggering? Incredible? Not really! No,No,No,No,NO!
            As usual, one cannot argue with the Judge’s decision and Judge Hogg had no crystal ball. Neither do Social Workers and they were unable to predict that the father would go on to murder Ellie. So lawyers should not look back , with the benefit of hindsight, and try to heap the blame for the child’s death onto the SW’s. We should empathise with the CS . Nor should they blame the Judge who exercised his reasonable discretion.
            I suspect that lawyers are more staggered and surprised that,on this occasion,the LOCAL AUTHORITY did not concoct enough evidence or come up with enough persuasive theory and one-sided assessments to turn the case . Judges have to make decisions on factual evidence alone and that is what Judge Hogg did.
            I feel the child-protection system AS A WHOLE failed poor,dear Ellie and it deserves all the heavy criticism it gets. It is not helpful for us to adopt the blame culture and try to apportion blame to any of the individual players or parties.
            We have to look back, in retrospect , be constructive and consider the statute. The statute says that it is the duty of the LOCAL AUTHORITIES to identify need and supply support to vulnerable and deprived families. On this occasion, the LA failed in that duty for whatever reason.
            Reluctance to finance support services? Probably! Corruption? Perhaps but lawyers should never act and make judgments without proof. They should make reasoned allegations to the Police and demand an investigation. Now a death has occurred,perhaps they will get some action.

  3. Angelo Granda

    Is Lancashire County Council.v. B[2001] 1FCR 583. still valid law or is that outdated?

    1. Sarah Phillimore Post author

      Is this the case that decided Even though the parents could not be held responsible, the threshold conditions which would allow proceedings for a care order to be begun were established. To require proof of who had committed the abuse would make it frequently impossible for the authorities to act to protect children. The phrase ‘care given to the child’ did not require restriction to the care given by the parents or by a particular person. ‘Different considerations from the norm apply in a case of shared caring where the care given by one or other of the carers is proved to have been deficient, with the child suffering harm in consequence, but the court is unable to identify which of the carers provided the deficient care. In such a case, the phrase ‘care given to the child’ is apt to embrace not merely the care given by the parents or other primary carers; it is apt to embrace the care given by any of the carers.’ ?

      If so, as far as I know that is still good law. This is why family cases are different to criminal cases; focus on family cases is protecting children, focus in criminal cases is identifying criminals so they can be punished. It is probably a good idea if I edit the post to explain that.

      BUT being only in the ‘pool of perpetrators’ can lead to difficulties in future cases as this is NOT a finding that a particular individual hurt a child so can’t be relied on as such in any future care proceedings involving other children.

      See http://www.familylawweek.co.uk/site.aspx?i=ed111922that likelihood of significant harm can only be established by reference to past facts that are proved on the balance of probabilities.

  4. Pingback: Ellie Butler – some useful resources | The Transparency Project

  5. Angelo Granda

    There are several reasons why Family Courts are unsuitable to hear serious cases . Parents are concerned that the standards of evidence are too low and the amount of discretion given to the Judges excessive. Much of the evidence admitted is not factual, it is B.S. and known to be so. Whilst these low standards of evidence may be unavoidable in private law cases, false statements and deliberate misrepresentations should never be tolerated for one minute in Public Law cases where the honesty and scrupulous integrity of public officials is the essence of a family’s right to justice.
    I am unable to digest the part of your post which asks ‘What if witnesses lie?'( although a bull might). There is never any excuse for a SW to lie in my view . The various examples given of why a witness might lie do not include deliberate abuse of the system with the intention of perverting justice. The Court should fully consider the ripple effect of dishonesty on the part of professionals more strictly. Strategic ‘whoppers’ at the start of proceedings poison a case throughout. We cannot ignore the laws of dynamics.

    A couple of quotes from the judgment: When questions of non-accidental injury or abuse arise, the court is frequently unable to discover precisely what happened. This is not surprising. And yet, on the appellants’ construction of the attributable condition, in this common form situation of shared caring the court is powerless to make even a supervision order if the judge is unable to penetrate the fog of denials, evasions, lies and half-truths which all too often descends in court at fact finding hearings: UNQUOTE.

    In other words the Court makes decisions on evidence which it knows is not reliable.

    QUOTE: The phrase ‘care given to the child’ refers primarily to the care given to the child by a parent or parents or other primary carers. That is the norm. The matter stands differently in a case such as the present one, where care is shared and the court is unable to distinguish in a crucial respect between the care given by the parents or primary carers and the care given by other carers; UNQUOTE.

    QUOTE: I recognise that the effect of this construction is that the attributable condition may be satisfied when there is no more than a possibility that the parents were responsible for inflicting the injuries which the child has undoubtedly suffered. That is a consequence which flows from giving the phrase, in the limited circumstances mentioned above, the wider meaning those circumstances require. I appreciate also that in such circumstances, when the court proceeds to the next stage and considers whether to exercise its discretionary power to make a care order or supervision order, the judge may be faced with a particularly difficult problem. The judge will not know which individual was responsible for inflicting the injuries. The child may suffer harm if left in a situation of risk with his parents. The child may also suffer harm if removed from parental care where, if the truth were known, the parents present no risk. Above all, I recognise that this interpretation of the attributable condition means that parents who may be wholly innocent, and whose care may not have fallen below that of a reasonable parent, will face the possibility of losing their child, with all the pain and distress this involves. That is a possibility, once the threshold conditions are satisfied, although by no means a certainty :UNQUOTE


    1. Sarah Phillimore Post author

      Much of the evidence admitted is not factual, it is B.S. and known to be so I assume you mean ‘bullshit’? I reject this. It is NOT ‘known to be’ bullshit. That would be an immediate and obvious ground of appeal. That would be malfeasance in public office. Yes, I appreciate there have been far too many examples of cases which – in hindsight – were founded on evidence that did not stand up to later examination. But to say that Judges and lawyers AT THE TIME ‘knew’ the evidence was bullshit is a very grave accusation and one that I reject – at least without some further evidence than merely your assertion.

      Of course there is never any excuse for a SW to ‘lie’. But I suspect what is more likely to happen is that a SW offers an opinion with which a parent does not agree; the parent then says ‘this is a lie’. OR the SW makes a mistake in interpreting some behaviour or written evidence. That needs to be correcting but if it is an honest mistake, it is not a ‘lie’. ‘Lies’ require deliberate maliciousness, a conscious intent to say something that isn’t true and knowing it isn’t true.

  6. Angelo Granda

    QUOTE: the judge is unable to penetrate the fog of denials, evasions, lies and half-truths which all too often descends in court at fact finding hearings: UNQUOTE.

    This suggests to me that the Judges, at least, understand fully that much of the witness evidence is B.S. The Appeal judgment uses the term ‘lie’ incidentally,not me. I prefer to use the term ‘false statements made under oath recklessly’ without any attempt to investigate the actual facts.

    QUOTE: An important part of the assessment is what the court thinks about the reliability of the adult’s evidence. The court will be worried if someone is found to have lied about something, but that does not necessarily mean that person has lied about everything. The court will keep in mind the warning in R v Lucas [1981] QB 720 that “if a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure”:UNQUOTE

    Not only the Judges, but often the respondent ‘s lawyer,the Guardian’s lawyer and the LA’s own lawyer will have been alerted by the parents that the SW witnesses have made false statements. All sets of lawyers often refuse to inform the Judge and i have no doubt they all decide together that ,even were they to do so, because of the above precedent the judge will allow it to pass. (My view is that the lawyers should always tell the Judge about it and leave the decisions to the Judge).
    In fact,i think that even one ‘evidential failure’ on the part of the LA should be judged sufficient to discount all professional evidence because of the ripple effect.
    However,lawyers have double standards in Family Courts,i allege. They are quick to use any inconsistencies in a respondent’s statements to discredit them totally but slow to apply the same standard to professional statements. In Public Law ,the standards applied to professionals ought to be infinitely more strict than to parents. A professional who fails to conduct a case properly and give good evidence should be ejected along with all the evidence. He has no credibility.

  7. Angelo Granda

    I do not see anything wrong with a court making findings about children being injured or who did it or other findings of fact on the basis of a balance of probabilities. The way I see the law is that generally in criminal cases, the courts make findings of fact based on just such a balance. The only difference is that in the latter courts standards of evidence and procedures are much, much higher. The facts given by witnesses are scrutinized in great detail by counsel and the various witnesses are also subjected to rigorous and genuine cross-examination. There are not time limits for the hearings and no limit is put on the length of statements or evidence (to my knowledge). Whilst Judges can interrupt and question the relevance of evidence, I do not believe he can curtail evidence and direct the type of evidence presented simply to fit court schedules and his own.I think anyone is entitled to attest,evidence can not be dissallowed and witnesses barred from access to court because lawyers decide their evidence is superfluous.

    Another difference between criminal trials and Family Court trials (?) is that the standards of fair procedure and the quality of evidence is set higher. False witness statements are frowned upon and punished not accepted as being part of some sort of game and much more attention is taken towards safeguards against system abuse especially abuse against citizen’s rights by the authorities. Safeguards are not only in place but they are followed scrupulously. The court frameworks and legal guidelines have to be followed.

    There are also, in the criminal system two tiers of justice. One for minor cases operated by Magistrates and judged by a bench of them. In that arena, the penalties and lengths of sentence that can be imposed have limits. In serious cases which will be likely to call for stiffer penalties and punishments, reformatory sanctions etc .the case will usually go to the Crown Court where the case will ultimately be decided not by the Judge or a bench of judges but by twelve peers of the accused ( twelve good men and true).This is a great tradition of British Justice, no man shall be executed ,imprisoned for life or be separated from his human rights to life with his natural family in any other way unless he is judged in open(Public) Court by a jury.I believe that in serious cases,at least, there is an automatic right of appeal which is a right that goes to the heart of Public trust.

    In my opinion, the standards in the criminal courts and the two-tier system can be adapted for use in Family Courts. This is not an argument that the Family Court should not hear child-protection cases nor is it to deny the principle that the Bof P standard of proof should prevail.

    It is merely a suggestion that Family Court justice procedures should be enhanced and altered in proportion to the serious Public Law issues with which it deals.

    It will not require any new Act of Parliament.The Supreme Court already rules that citizens are entitled to a fair hearing. The Family Court protocol can be changed at will by the judicial authorities, Much as our lawyers rather quaintly trust the current system,are loyal to it and much as it has good points and is very successful in other civil cases ( financial claims etc) i think the time has come when the powers that be must accept that the CP system has lost Public trust; This is down to the judicial system which has to change fundamentally.Lawyers,like it or not,you should make it your priority.

    The great British Public deserve better and demand Justice. There is no need to change the standard of proof!

    I look forward to any comments from others. Sometimes i think professionals get so tied up with what are accepted everyday practices that they are inveigled by them. They should pay some attention to those from the outside looking in who can see basic problems more clearly. Please note,i am by no means alone and no-one should criticise this suggestion. Many more people agree with me that ,at present, we have a travesty.

  8. Angelo Granda

    If i were to sum up comments,questions and answers on this thread, i would say we have ,to an extent, gone round in a circle again. However, as a parent,i am forced to one conclusion. I asked Sarah whether she thinks any change to court protocol other than transparency ( the attendance of journalists) is necessary.
    I don’t think she does at this time . She appears to be satisfied that the current practices ensure that , in most cases at least , the evidence (on which massive interference with the lives of children are made) is based on actual proven facts.
    I think we all accept that ,in some cases, untruths are entered into evidence and i think we all have the intelligence to realise that this may cause miscarriages of justice. However, can we also accept that even in those cases where it is known that evidence is flawed AND when it is known that correct procedures have been by-passed and cases conducted wrongly AND when the respondent’s barrister and’or the Guardian’s barrister complain and inform the Judge, the case is still decided at the Judge’s discretion.
    The Judge can stand back ( Pilate-like) wash his hands of false evidence and bias and decide in the LA’s favour. He can say well, the SW gave false evidence but probably all of it wasn’t false. He can say well, the LA haven’t followed procedures and offered support but perhaps they don’t have the funds,they probably haven’t flouted all the procedures. Just to be safe and just to avoid all risk, the Judge can remove the child permanently at his own discretion.

    When the Judge does this, he may be right or he may be quite wrong. What seems fairly clear is that when parents consider the judgment wrong and when they want to appeal, the barristers refer to the Judge’s right to use his over-all discretion. False evidence,procedural failures etc. may have affected the case but the barrister deems it does not warrant an appeal. Not only this, but High Court Judge’s have refused PERMISSION to appeal on the same grounds.

    Therefore , bearing in mind Appeal Court judgments, i think a case should be made to make the right of appeal automatic in serious Family Court cases.

    The Human Rights of children are being contravened regularly but victims are unable to appeal to the ECHR until they have exhausted all domestic remedies. The only remedy when cases are conducted incorrectly is an Appeal but the permission is usually denied. There should be an automatic right to appeal.
    Does any one agree?
    All comments welcome.

  9. Pingback: ‘England’s Stolen Children’ – Another missed opportunity. | The Transparency Project

  10. looked_after_child


    This condition is passed from parent to child and can result in ‘unexplained injuries’ in a child. In this case the person explaining about her condition is also autistic and there are ( genetic?) links between the conditions.

  11. looked_after_child

    I’ve posted these links because the title of the post’ What happens when a child gets hurt and we don’t know who did it?’ presupposes that all injuries are caused by ‘someone’ and this is not always the case – sometimes there is just not enough of the right clinical expertise

  12. Angelo Granda

    From what I understand, a Judge has to look at the ‘pool of perpetrators’. This will include the parents and even if there is insufficient evidence to ‘prove’ they harmed the child , he or she may make their own findings on the ‘balance of probabilities’. Like all the Judge’s other findings such as whether an order is to be issued the balance depends on the factual matrix produced to the Court and if that is not FACTUAL ,impartial and COMPLETE then findings will be flawed. Same if the CS is dishonest!
    For example, when a child ( particularly an autistic one) is removed from home without warning and the floor is pulled from beneath their feet unnecessarily , it causes severe disturbance and significant harm. Therefore the CS and foster-carers (if any) are amongst the pool of perpetrators. When this happens ,you can be sure that the CS will declare that the child is ‘happy and thriving ‘ in care even though iot is not the case. They are just giving an opinion without any yardstick because they don’t know what the child was like before. Plus they discard,shelve or ignore any evidence which indicates they have abused the child. After almost six months in care, one autistic child began to display inappropriate ( for a normal child) sexual behaviour and her GP reported she may have been sexually abused . The LA refused to make a complaint to the Police and call for an investigation ( against the parents wishes); it turned a blind’un and that was probably because they could not face the prospect that its own employees were at fault. It just forgot about the Doctor’s report and it was not seen or heard of again.
    The Law says that if it is unclear who the perpetrator of harm is then threshold criteria are not met. Unfortunately the Family Court Judges use their discretion and tend to find against parents and when the CS disguise gossip,intelligence and speculation as fact,it doesn’t help. Thanks for the Posts.Hope this helps.

    1. HelenSparkles

      Angelo, even if anonymous, it would be helpful to have some evidence. Judgements?

      1. Angelo Granda

        Helen, evidence about what? That the LA made no complaint to Police and failed to investigate the possibility of sex-abuse as reported by the Doctor? That the Doctor made the report? That the LA never mentioned the report and stated under oath that the child was thriving and had shown great progress in care? Why do you want to know details? The matter was not brought up in Court so there is no mention in the Judgments.

        1. HelenSparkles

          I don’t want details but you are making a lot of claims which it is impossible to verify. If they are true, they should have been raised in court and considered in the judgement. If they are not true, it is scaremongering and unfortunately a lot of what you say is.

          1. Angelo Granda

            Helen, If you think about it , often the basis of the whole LA case is one of ‘scaremongering’. They scare the Court and other professionals of what may happen and what the result might be based on their fears the system might allow another Victoria Climbie or Baby P case to slip through the net. Lots of claims are made without proof ,this resource isn’t a Court of Law anyway but I assure readers I am not scaremongering just engaging in discussion.
            Please bear with it. Sometimes I may mention Court events, evidence and so on but I cannot really publish details and go into everything. Suffice to say,I don’t make things up just to mislead readers and neither am I ‘conspiring’ against LA’s . I am sure the sort of claims I make are not news to readers who have been on the receiving end of injustice.

  13. Angelo Granda

    Of course,it isn’t unusual for ASD chidren to display inapprpriate sexual behaviour either and if assessments are not done correctly or if the CS don’t emphasise impartially the child is ASD then a Judge will naturally be drawn into suspecting sexual abuse and in the absence of any real evidence, who is likely to get the blame?
    I guess a Court will think on the b of p that it is more likely to be the parents than a qualified SW or a registered foster-carer.
    Looked after child, do you have any links on premature sexuality amongst ASD children?

  14. looked_after_child

    ‘Looked after child, do you have any links on premature sexuality amongst ASD children’

    I don’t but will look them up.

    Some thoughts for what they are worth:-

    ASC children may copy behaviours of those around -their peers as much as anyone – they do not have ‘filters’ that non-ASC children have. This also makes them very exploitable too and is a key element of their vulnerability.

    There are also sensory issues for some severely autistic people so they touch private parts etc. I heard a mother explain how her adult son needed carers trained to understand how to reduce these behaviours (this worked) but she was really worried about his future.

    In the case of my son he was traumatised watching a biology film at school on tapeworms – he checked each bite of food for years for tape worm eggs. It became a nightmare for him ( and us!) -I think that if you have a very visual way of understanding the world as most autistic people do – then images play over and over in your head – again there is a lot of very graphic porn available on the net and very little about relationships. When you are autistic you learn differently – everything needs to be explained in context so ‘rules’ can be deduced and there are no rules as difficult as those around relationships because each relationship is different.

    Many autistic people have difficulty feeling they ‘fit in’ – this may extend to their own gender – although I’m sure there is more going on than this for each individual and clearly this is not the same as sexualised behaviours..

  15. looked_after_child

    typed in ‘sexualised behaviour in autistic children, peer review ‘ into wonderful google.
    This article is as good as any


    ”Adults often assume that if a child is exhibiting sexualized behavior, he has been sexually abused. We want to highlight that most children who have been sexually abused do not develop sexualized behaviors, and children with sexualized behavior do not necessarily have a sexual abuse history, known or not known (National Child Traumatic Stress Network, 2009). We caution teachers to stay curious about why students exhibit sexualized behaviors and not to automatically assume that the student was sexually abused, particularly with impulsive students. That automatic assumption can harm the relationship with parents and may lead to an adversarial situation that reduces the chance of appropriate interventions. ”

    Wonders never cease…..

    1. HelenSparkles

      It isn’t an assumption that should ever be made, it is a factor to be considered.

  16. looked_after_child

    I recommend you read the article if you are interested Angelo..
    Causes of sexualized behavior
    In our clinical experience consulting to schools about students who exhibit sexualized behaviors,
    three main factors are frequently linked to these behaviors:
    1. Social skills deficits;
    2. Impulsiveness; and
    3. Exposure to sexual material and sexual abuse.

    ( Of the reasons given above .
    1 includes ASC/ASD
    2 includes ADHD and the ASC and ADHD are frequently co-morbid.
    3 speaks for itself but is not as clearcut as it might be if the child has a learning disability?

  17. looked_after_child


    …on relationships

    People with ASD require more extensive education that is clear and concrete, including where and when particular sexual behaviors are acceptable, …most individuals with ASD will not be able to intuitively understand the internal states of their partners and will need to be told how other people will perceive their actions and words, as well as clear cues for assessing how their partner feels. For example, a 17-year old male patient with ASD described a friendship with a female classmate whom he wanted to date. The girl was friendly and smiled when he spoke with her. Each time he asked to see her outside of school, however, the girl said, “I already have plans that day” or “I don’t think my parents will let me.” A typically developing teenager would likely realize that the girl was not interested in dating and understand that the girl was trying to spare his feelings by offering the other excuses. The patient (person) with ASD, on the other hand, took her responses at face value and wanted to persist in asking until she said, “Yes.” This example is not at all unusual for young adults with ASD.
    The level of detail that the person with ASD may require in order to understand how to request a date is significant. “Ask someone out once. If they say that they are not available, you may ask one other time. If they refuse again, even if they offer an excuse for why, you may not ask again”.

    ..this explains how people with ASC have to rely on ‘rules’ where non-ASC children can rely on ‘intuition’ or ‘transferred learning’ or ‘common sense’. Teaching about sex/relationships needs to be very tailored as a result.

    Nothing to do with this post title – Apologies.

    1. Angelo Granda

      Thanks very much for the mine of information. Naturally it is a difficult subject and , in my opinion, because of the safety-first , elimination of all possible risk attitude held by professionals ,they make all the wrong assumptions and don’t examine any possibility that sex-abuse is non-existent. However, if a doctor ( albeit an ordinary paediatrician not an autism specialist) hinted at the possibility,suggested an investigation and perhaps a physical examination of the child it may have been better had the Police become involved if only to clear the mind of the parent I mentioned.
      The implication in the doctor’s report was that if abuse had occurred then the likelihood was that the parents were culpable perhaps by actually abusing the child or by exposing her to inappropriate influences. The problem is that when speculation, guesswork and concerns are admitted into evidence and actual facts left out, it adds to the overwhelming weight of evidence against parents. Why don’t they stick to facts? There should have been an investigation and either the damning implications withdrawn or the guilty charged with a criminal offence. Obviously, the parents know it wasn’t them but will always have doubts about the CS and foster-carers when a proper investigation could have cleared it up. One reads so much about professionals and carers abusing their charges it is immensely upsetting for the family.

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