Background
A young child, anonymised as Alfie, sustained multiple injuries while living with his mother and her former partner. After a 13-day fact-finding hearing, the Family Court found that the former partner had deliberately inflicted serious injuries on eight occasions, including fractures and facial bruising. It also found that the mother had failed to protect Alfie and that both adults had failed to obtain appropriate medical attention.
The Family Court could not identify who had inflicted three further areas of bruising—to Alfie’s groin, left ear and right hip—and found a real possibility that either the mother or the former partner was responsible. The mother appealed only that “pool finding,” arguing that the judge had focused on inconsistencies in her evidence without properly weighing the extensive findings of violence, cruelty and dishonesty against the former partner.
The Court’s Holding
The Court of Appeal unanimously allowed the appeal and set aside the pool finding. It substituted a finding that, on the balance of probabilities, the former partner had also inflicted the three disputed bruising injuries. No rehearing was necessary because that was the only proper conclusion available on the evidence.
Where an inflicted injury has only two possible perpetrators, the court must compare the evidence concerning each person and decide which was more likely responsible, unless the evidence is unreliable or genuinely equally balanced. The Family Court erred by concentrating on inconsistencies in the mother’s accounts without adequately considering the wider evidence: the former partner’s multiple assaults, cruelty, dishonesty, contemporaneous injuries caused through similar mechanisms, and the absence of evidence that the mother had ever injured or inappropriately handled the child.
The trial judge also failed to account sufficiently for the forensic imbalance created when the former partner withdrew before completing his evidence and could not be cross-examined. The mother’s evidence consequently received detailed scrutiny while his was not interrogated, requiring particular caution before adverse conclusions were drawn from her evidence alone.
Key Takeaways
- Identifying the actual perpetrator on the balance of probabilities is the court’s primary task; a pool finding is a fallback when the evidence does not permit identification.
- With only two possible perpetrators, identifying one as more likely responsible establishes responsibility on the balance of probabilities.
- Propensity cannot decide perpetration by itself, but findings of repeated similar assaults, cruelty and dishonesty must be evaluated alongside all other evidence.
- Courts must guard against forensic imbalance where one person’s evidence receives substantially greater scrutiny than another’s.
Why It Matters
The decision clarifies how family courts should approach uncertain-perpetrator findings when only two people could have caused an injury. Courts must compare the probabilities in the context of the evidence as a whole rather than treating disputed injuries in isolation.
That distinction can materially affect later welfare and placement decisions. The case was remitted to the Family Court so those decisions could be made on the revised factual foundation that the former partner, not the mother, probably caused all three disputed bruising injuries.