Held, Appeal allowed. The threshold criteria for making a care or supervision order were set out in section 31(2) of the Children Act 1989. That section did not require the court to identify a particular person as the perpetrator of significant harm before the threshold criteria were satisfied. Nevertheless, it was well established that a court should where possible endeavour to identify the perpetrator. As a result, courts in care proceedings invariably endeavoured to identify the perpetrator of injuries to a child. In order to make a finding that a particular person was the perpetrator of significant harm suffered by a child, the court had to be satisfied on a balance of probabilities. But a series of cases had established that, where a finding as to the perpetrator could not be made, the threshold was nevertheless crossed where there were a number of people who might have caused the harm and the local authority had satisfied the court that in relation to each of them there was a real possibility that they did. It was unnecessary to add to the extensive jurisprudence on uncertain perpetrators. The court would, however, make three points which were directly relevant. First, there were cases where the court considered first the issue whether the harm which the child had suffered was attributable to ill-treatment and only if it concluded that it was did it proceed to the second issue of the identity of the perpetrator. There would, however, be cases where it was necessary to consider those issues not sequentially but simultaneously. In other words, it might be necessary to consider the identity of a possible perpetrator of ill-treatment alongside the question whether the harm which the child had suffered was attributable to ill-treatment at all. The court in care proceedings invariably surveyed a wide canvas which included the identity and character of the child’s carers. The identity of the potential perpetrators of ill-treatment might be relevant evidence in determining whether the harm suffered by the child was attributable to ill-treatment. Secondly, although the paradigm example of an uncertain perpetrator case was one in which several potential candidates were identified as the perpetrator, the case law demonstrated that the task in which the court was engaged was to determine whether there was a real possibility that a named person was “the” or “a” perpetrator. It was open to the court to conclude that there was a real possibility that one or more perpetrators abused a child either alone or together. The third point was to underscore the seriousness and potential difficulties of an uncertain perpetrator finding (paras 40, 42–43, 48–51).

Whilst the judge’s ultimate conclusion in the present case was open to a court to reach after a proper inquiry and analysis, the conclusion that “A was infected with gonorrhoea by Y alone or by Y and her mother” was outside the parameters of the case identified by the local authority. Neither the mother nor Y knew of the allegation. Neither had a reasonable opportunity to respond, either in evidence or argument. In that respect the “features of a fair hearing” were regrettably absent. Accordingly the fact-finding hearing would be reheard before another judge and encompass all of the findings sought by the local authority. The whole issue of attributability of A’s infection remained in dispute and had to be reconsidered (paras 60–62, 64, 68, 69).