You are here

Mother must remain in "pool of perpetrators"

1 December 2009

The Court of Appeal has ruled that even though a father was more likely to be responsible for serious injuries to a young baby, the boy’s mother should not be removed from the “pool of perpetrators”.

The baby was admitted to hospital last year with multiple injuries at the age of only two months. These included a fractured skull and fractured ribs.

Both parents have been charged with GBH and are due to be tried in January next year. They have pleaded not guilty.

Delivering judgment in T (A Child) [2009] EWCA Civ 1208, Sir Mark Potter, president of the Family Division, said that following his discharge from hospital, T went into local authority foster care.

Judge O’Dwyer found that he could not, on the balance of probabilities, be satisfied that either of the parents was the sole perpetrator of the more serious injuries.

He ruled that the mother should remain within the “pool of perpetrators” even though the father was more likely to be responsible for the serious injuries.

Sir Mark cited the case of NH v County Council and others [2009] EWCA Civ 472 (see Solicitors Journal 153/23, 16 June 2009) in which Lord Justice Wall said the courts should not “strain to identify” perpetrators.

Dismissing the mother’s appeal in T, Sir Mark said: “In the case of the father, a level or degree of violence was established in relation to the lesser of the injuries and that, together with the other matters identified by the judge, were plainly ‘risk’ factors to be taken into account by those involved in the welfare disposal.

“In the case of the mother, while there were no specific pointers on which to rely, on the judge’s assessment there was an overall real possibility that the mother had used violence towards T.”

Lord Justice Wilson agreed, accepting that the judge’s argument was logically defensible but adding that it would be “rare” for a judge to find himself in the position of Judge O’Dwyer.

Lord Justice Rimer agreed that the appeal should be dismissed.

Annette Lowen, legal executive at Paul Robinson Solicitors in Southend, acted for the mother.

“The purpose of our appeal was to get the mother taken out of the pool of perpetrators,” she said. “It does not seem fair that just because she cannot be discounted, she should be in there.”

Lowen said that, if the mother was acquitted at the criminal trial, the earliest she could be with T again would be after the next care hearing in March 2010.

Categorised in:

Police & Prisons Children Divorce Vulnerable Clients