It appears to be a not uncommon practice for counsel to submit to the judge a document containing an agreed note of the relevant law, with the intention that the judge adopts the document’s contents in its entirety and appends it to his or her judgment. However, a measure of circumspection is necessary in the use of such a document. First, a document which sets out lengthy citations from cases is unwieldy and may contain much which is unnecessary. Simply setting out any significant principle with a reference to the relevant part of the judgment in question will ordinarily be sufficient. Secondly, the judge in his or her judgment still needs to identify and apply the principles of law relevant to the issue, or issues, before him or her. A boiler-plate incorporation of the established law in the form of an attachment to a judgment does not, without analysis in the judgment, help the reader to understand whether, and if so how, the law was applied to the facts and circumstances of the case before the judge (para 11).

The evaluation of the facts which will enable a court to identify the perpetrator of an injury inflicted on a child will be determined on the simple balance of probabilities and nothing more. To go further and add that the courts should not “strain” to identify the perpetrator is an unnecessary and potentially unhelpful gloss which has outlived its usefulness. In future cases, judges should no longer direct themselves of the necessity of avoiding “straining to identify a perpetrator”. The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can or cannot identify a perpetrator. If the judge cannot do so, then he or she should consider whether there is a real possibility that each individual in the pool of possible perpetrators inflicted the injury in question (paras 33–34).