Tag Archives: finding of fact

Robust case management has its place, but it also has its limits

Posted on December 27, 2012 by suesspiciousminds

 

A Christmas dash through  Re B (A child) 2012    (and when WILL the Court of Appeal revert to giving cases helpful names inside the brackets?)

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1742.html

 

 

This is a private law case with the usual cavalcade of allegations and cross-allegations.   In major part, the most serious allegations related to whether the mother had continued a relationship with a man, Mr C, who was suspected of having been very violent towards his own children.

 

The father hired a private investigator to observe the mother, to see whether Mr C continued to be a visitor to (or indeed a guest at) the children’s family home.

 

  1. The hearing started on Monday 1 October. It is now clear that there had been a flurry of activity immediately preceding it.
  1. On the weekend of 14 – 16 September, when S was staying with her father, she had said various things to him which suggested that far from the mother and Mr C having separated, Mr C was still part of day to day life. S said that:

i) Mr C had cooked her tea the night before she came to stay with her father; she came to stay on Friday 14 September so that would have been on Thursday 13 September.

ii) She had been swimming with her mother, E and A, and Mr C; A was born on 23 August 2012 so if she was right, that must have been a recent occurrence.

iii) She sometimes had to sleep with E because Mr C was sleeping in her mother’s bed with A; again, given the presence of A in the account, that must have been a recent occurrence.

  1. The father instructed a private investigator to observe the mother’s house. Mr Preece was that private investigator. He observed the premises over the back fence from 18 September to 24 September. A report by him was produced, stating that he had observed Mr C coming out of the back door of the mother’s house on Tuesday 18 September at 08.06 and on Thursday 20 September at 08.05. On Monday 24 September at 15.00, he saw Mr C leave the property and get into a car and drive away. Mr Preece’s report was appended to a statement from the father dated 27 September which was served on the mother just after midday on 28 September, that is the Friday before the hearing was due to start on the Monday.
  1. Also on 28 September, James Green, S’s allocated social worker, visited S at school and talked to her. There is an email from him in which he set out what happened [E11]. It reads:

“S said she has been ill and off school. She said she has been up in the night when sick. I asked her who was in the house. She said Mummy and that A and E were in mummy’s bed. I asked what about [Mr C]. She told me [Mr C] was also there. Also that he was helping her when she was ill last night.

I asked S about swimming. I asked her who goes swimming with her. She told me A, E and [Mr C]. She said [Mr C] has to stay out the pool and watch to look after A [sic].”

  1. The mother was then visited by Mr Green who discussed with her the evidence pointing towards Mr C having been in contact with S. Mr C was there too. Apart from admitting that Mr C was at the house at 15.00 on 24 September, both he and the mother denied the information that emerged from the investigator and from S.
  1. These last minute developments obviously placed all the parties in a difficult position. The judge had to decide what to do in response to them. It was clear that the matter was of great significance because the guardian made plain that if it was established that there had been unofficial association between the mother and Mr C, she would be recommending an immediate transfer of residence from the mother to the father.

 

 

 

The mother disputed that Mr C had been at the home, other than on the admitted occasion and wished to call a number of witnesses to that effect. In particular,

 

In relation to 18 September, she also wanted to produce documentary evidence in support. Her case was that on that day, Mr C was in Glen Parva near Leicester meeting his son who was being released from the Young Offender Institution there that morning. She was able to produce a form showing that Mr C’s son was being released that day. She also produced a copy of a bank statement of Mr C’s which showed that his Advantage Gold card had been used for a purchase in McDonalds in Leicester that day. However the bank statement did not record a precise time for the transaction. A telephone call to McDonalds had indicated that the transaction was at 9.19 a.m. but documentary proof of that could not be obtained at such short notice. It was common ground that if Mr C had been in Leicester then, the private investigator could not have been seen him at the mother’s property.

 

 

And the credit card transactions could, therefore, have become alibi evidence for Mr C, putting him in another town at the time that the private investigator claimed to have seen him at the mother’s home.

 

[Interestingly, neither the trial judge nor the Court of Appeal seem to me to have criticised the father for taking this step of placing mother under surveillance,  which would seem to me to have been a breach of mother’s article 8 right to private and family life]

 

The nub of the case therefore became, as the Court of Appeal succinctly put it, how the Judge was to manage to fit what would have been four days of litigation into the two days available.

 

  1. It is always difficult for a judge faced, as this judge was, with an urgent decision to take and insufficient time in which to take it. It is a dilemma which family judges regularly have to confront. How they resolve it will depend upon the precise circumstances of the individual case. As this court has often observed, a judge making case management decisions has a very wide discretion and anyone seeking to appeal against such a decision has an uphill task.
  1. However, in this case, I am very clearly of the view that the judge’s case management decisions not only deprived the mother of the opportunity to answer the case against her but also deprived the court of evidence that was necessary to enable it to make reliable findings of fact. It is therefore necessary, in my judgment, for the judge’s finding of fact and his consequential orders to be overturned and for the matter to be reheard in front of a different judge

 

 

The Court of Appeal considered that whilst it is open to a Judge to robustly case manage, and determine what evidence is to be called and heard, and to place time restrictions on cross-examination, the way it was done in this case effectively prevented the mother from placing her defence before the Court.

 

They were particularly troubled in the Judge’s decision not to bring Mr C into the proceedings or to obtain his credit card transactions.

 

  1. It appears that the judge considered that he could determine the truth or otherwise of the allegations about Mr C’s presence in the mother’s house through the prism of the evidence of Mr Preece and the mother. He said (§16):

“it seems to me that I have got to grasp the nettle of whether I accept Mr Preece’s evidence or whether I accept mother’s evidence.”

  1. Judges do sometimes have to decide, almost in a vacuum, whether or not to believe a witness. However, this was not such a case.
  1. This is perhaps most clearly demonstrated by the position in relation to Mr C’s credit card. The combination of the bank statement and the preliminary enquiries that had been made of McDonalds suggested that there was a realistic possibility that documentary evidence would be forthcoming that Mr C’s credit card was used in Leicester McDonalds in circumstances which, if Mr C was the user of the card, would make it impossible for him to have been seen by Mr Preece on 18 September. The judge was of course correct in saying that the fact that Mr C’s credit card was in Leicester did not necessarily mean that Mr C was. However, if more detailed bank records did in fact support the presence of the credit card there at the material time, it would have been an important piece of evidence for the judge to include in his evaluation of the totality of the evidence and not one, I think, that could be dismissed as robustly as the judge dismissed it. There would have needed to be consideration of how the credit card got there, if not with Mr C. Mr C’s own evidence would have been particularly important in that regard. And assuming that Mr C did not concede that he had not used the card in Leicester himself, counsel would no doubt also have wished to challenge Mr Preece with the evidence of its use and the impossibility of Mr C being in two places at once, endeavouring thereby to shake Mr Preece’s evidence that he saw him at the mother’s house.
  1. I am troubled by the judge’s comment that he would have been “unwilling to admit Mr C to these proceedings”. It is understandable that the judge wished to keep the focus on S and those immediately responsible for her care. He may well also have had in mind that, as we were told by counsel for the father, Mr C had earlier been involved in the proceedings but ceased to be so when he failed to provide his solicitor with any instructions. However, when it comes to making findings of fact, the court’s focus should be firmly on an analysis of what evidence is necessary to enable proper findings to be made. Of course, the urgency of the court’s decision can sometimes make it imperative that there be limitations on the evidence that is called, however relevant it would be. Similarly, the judge may find himself unable to permit a witness’s evidence to be adduced because it has been produced too late in the day or without regard to earlier case management directions or he may determine that it is disproportionate to the issues to permit reliance on it. However, matters such as those are different from a decision to decline to hear evidence from a material witness because, for some reason not related to their evidence, the witness is not thought to be an appropriate person to participate in the proceedings; such a decision is much more difficult to justify. Here Mr C was a material witness, indeed a central witness, not only on the issue of the bank card but also generally in addressing the allegations that he was present at the mother’s home when he should not have been. Subject to the need to decline to hear Mr C for reasons of urgency (to which I return below), I do not see how the judge’s decision to refuse to consider evidence from him and about the use of his credit card can be supported.

 

 

The Court of Appeal made a suggestion for how the Court could have proceeded in the time available without curtailing mother’s opportunity to present her case against the allegations.

 

  1. The judge was rightly anxious to protect S and conscious of the need to do so without delay. The father submits that the risk to S had increased if the mother was lying about Mr C’s presence in the household and that once evidence came to light to suggest this, the judge had to act. However, it seems to me that the judge needed to consider whether, rather than holding an immediate truncated hearing, there was any other way in which he could safeguard S’s welfare. I got the impression that in fact no one had suggested any alternative to him but a possibility which occurs to me is that he could have ordered that S stayed with her father, possibly under an extended contact order or alternatively a short interim residence order, for whatever limited time was sufficient to enable a fuller hearing to be arranged (see for example Re K (Procedure: Family Proceedings Rules) [2004] EWCA Civ 1827 [2005] 1 FLR 764 as to the circumstances in which interim transfers of residence may be made), either adjourning the case entirely to another day or, if feasible, making a start on the evidence with a view to resuming it at a later date.
  1. Given the option of an extended stay with the father by way of protection for S, I do not therefore see the judge’s choice as a stark one between running such risk as there was to her safety in the care of the mother or determining the factual issues on the material that could be produced and fitted into the two days of court time that were available. It may well be that the anxiety provoked by the impression that those were the only options led the judge to give too much weight to the urgency of the situation and the need to get on with the hearing. The decisions that he took in relation to the material evidence that the mother wished to adduce were no doubt the product of that anxiety but I am persuaded that they were not decisions that were properly open to him in this particular case, even making allowance for the breadth of his case management discretion.

 

The Court of Appeal conclude by stating that the case turns on its own facts, but emphasising that there is a balance in using the powers under Rule 22, and that a fair trial is still essential when using those powers.

 

I should say in conclusion that this appeal turns very much upon its own facts. Rule 22 of the Family Procedure Rules 2010 entitles the court to control the evidence in a case by giving directions. This is a wide power and can be used to exclude evidence which would otherwise be admissible. Robust case management therefore very much has its place in family proceedings but it also has its limits.

 

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More on Vitamin D and rickets

Posted on November 22, 2012 by suesspiciousminds

 

A discussion of the Court of Appeal decision in Re C (A child) 2012  

 

The case can be found here – thank goodness for Bailii.

 http://www.bailii.org/ew/cases/EWCA/Civ/2012/1477.html

This was a case in which the parents sought to overturn findings made by Her Honour Judge Carr in relation to twelve fractures to a four month old infant, which she found to be non-accidental in nature and a result of trauma.  

 

  1. C was next presented at the hospital some four days later on 30th October 2009 at 22.14 hours with a swollen right leg. A subsequent skeletal X ray disclosed multiple fractures of ribs, fractures to his tibia and fibula which were metaphyseal in nature together with a transverse fracture of his right femur. There were twelve fractures in all which had been sustained by this four week old baby who was obviously not self-mobile.
  1. The fact finding judgment of 5th July 2010 records that the parents were given full rein by the court to identify and instruct whatever relevant medical experts they considered might be able to assist the court in understanding how baby C came to manifest the injuries and symptoms that I have described. In particular Professor Bishop, who holds the chair of Paediatric Bone Disease at Sheffield Hospital, and who is regarded internationally as an expert in paediatric bone conditions, was jointly instructed by all parties to the proceedings. It is a feature of this case that at the fact finding hearing each of the respective experts were unanimous in their conclusion that the probable cause for the groin symptoms and the fractures was trauma inflicted on baby C at some time after his birth. On the basis of that expert opinion, but also on the basis that the judge, for reasons given in the judgment, found that the parents’ evidence indicated fault lines in their relationship and in their credibility when giving evidence to the court, HH Judge Carr made a very clear finding that baby C had indeed been injured in the period between birth and final presentation at the hospital and that the only possible perpetrators of the injuries were the mother and/or the father.
  1. The parents’ application to the learned judge in June of this year was to re-open the whole fact finding process. The application was widely based and the skeleton argument on the parents’ behalf identified no fewer than twenty six factors which, it was submitted, now fell to be reconsidered in the light of suggested developments in medical understanding or which had not been given sufficient prominence at the original hearing. In a reserved judgment delivered on 18th June 2012 the judge reviews each of the points made to her on behalf of the parents and, in turn, rejects each one. Before doing so the judge noted that at the previous hearing “the court allowed the instruction of every expert/test requested by the parents, including, in particular – and contrary to medical opinion – genetic testing for possible bone disorder” and “even during the course of the hearing the court checked with those representing the parents whether there was any other expert evidence they sought – and was told ‘no'”.
  1. During the course of the June hearing the judge was taken to two recent decisions, London Borough of Islington v Al Alas and Wray [2012] EWHC 865 (Fam) and A County Council v M and F [2011] EWHC 1804 (Fam). The first of these cases, which I will refer to as “Wray”, achieved national publicity. In the Wray case, Mrs Justice Theis held that bone injuries seen on a young child were the result of rickets rather than inflicted injury. HHJ Carr, in the present case, considered that neither of these two new authorities involved any new point of law, and did not necessarily assist her evaluation of Baby C’s case. She drew particular attention to the following caveat given by Theis J in the Wray judgment:

“It is important to remember that my conclusions set out below are entirely related to this case. Despite their differences of opinion, all the medical experts agree this case is extremely complex. By their very nature, cases such as this are very fact specific and great caution should be adopted in using any conclusions I reach to support any wider view outside the very specific facts of this case…”

  1. Despite the fact that it is possible to summarise the June 2012 judgment in short terms, concluding as it did that each of the points raised on behalf of the parents took matters no further, it is right to record that the judgment itself indicates a significant amount of time and consideration given by the learned judge in which she traces each of the factors relied upon back to the evidence and conclusions that were current in the 2010 process.

 

 

The challenge in the Court of Appeal was interesting.  It is quite precise, so I won’t try to paraphrase it before you have read the judicial summary

 

  1. 12.   “6. What is the point that the parents seek to make? It can be put in very short lay terms. They contemplate, understanding as they and their advisors now do on the basis of medical knowledge, that it is possible for an unborn child to develop a deficiency in vitamin D to the extent that their bones are unduly soft, or otherwise be symptomatic of congenital rickets. The baby is born, and this was a difficult birth which may have been beyond term, although as I understand it the dates were not precise; and it is possible, say the parents, for the birth process, without any negligence or rough handling on the part of the medical team involved, to have caused the fractures in this case. The child is then born, no doubt it is postulated as at that moment deficient in vitamin D, but the child is then fed either entirely upon prepared milk or a mixture of breast and prepared milk, the prepared milk having vitamin D supplement within it.

7. Baby C was born on 3 October 2009, and his vitamin D was not measured at all until tests were undertaken in November, a month or more later. Those tests were normal. The argument on behalf of the parents is that it is not remarkable that the child’s vitamin D levels, once he ceased to be dependent upon the mother’s system, were up at normal levels because of the supplement he had been obtaining in the milk, and it does not prove one way or the other what his vitamin D level will have been at the moment of birth. I use the phrase “once he has ceased to be dependent upon the mother’s system” because it is a fact established on the medical evidence in the case that the mother herself has a modest — and I think it is modest — vitamin D insufficiency, and that therefore she may have been compromised in her ability to provide through the placenta an adequate supply of vitamin D to her unborn child. That is the synopsis of the parents’ case.

 

 

 

In terms, what is suggested is that it would be possible for an infant to have Vitamin D deficiency, which could lead to rickets, which could lead to susceptibility to fractures without trauma  – but that a test of Vitamin D at a later stage would not necessarily show a deficiency, because the Vitamin D levels can recover quite swiftly once the baby starts feeding.

 

The Court of Appeal immediately hit upon the problem with that:-

 

  1. 12.   8. My concern on reading the papers was that, whilst it is possible to understand that process, it would be impossible now, three years after C’s birth, to have any firm clinical readings or tests which could prove one way or the other, or even indicate one way or the other, that what is put forward by the parents was anything more than an intellectual possibility. The way the case was put before the judge indicates that she was not given any firm clinical hook upon which to see that the parents’ case might hang.

 

 The Judge also touches on the very interesting dynamic of a group of lawyers trying to persuade a Judge of the clinical and medical significance of some liver function tests, when none of them truly understand them.

The submission is made by lawyers to a judge, therefore between people who have no medical background, that the liver function is important in the sequence of production of vitamin D, and these abnormal liver readings may provide some base of clinical evidence to give support to the process that the parents now contemplate may have been involved.

 

What happened thereafter was that the Court of Appeal allowed the parents to instruct an expert of their choosing  (Professor Nussey) to look at the totality of the clinical features and medical records, to see whether there was anything that pointed clinically to this child having – firstly a Vitamin D deficiency and secondly that this might have led to Rickets, and finally, that the rickets might have led to the fractures being caused non-accidentally.

 

Those representing the child simultaneously instructed Jo Delahunty QC to represent the child, knowing that she had at her fingertips, the wealth of information from Al Alas Wray about Vitamin D deficiency and fractures; to look at the case and advise on whether there was a problem here that needed resolution.

 

 

The conclusions of the expert are set out here

 

  1. The following would seem to be the important highlights from Professor Nussey’s reports.

a) Blood results for baby C’s mother during the period of pregnancy demonstrate vitamin D deficiency in her system. Professor Nussey therefore states:

“thus, it is likely that C was subject to vitamin D deficiency for the majority of his inter-uterine life”;

b) Haematology results for baby C’s mother indicate that:

“she became progressively iron deficient during pregnancy though this was not confirmed by formal iron studies and it seemed to improve without iron supplements between August and October 2009.”

Professor Nussey explains that iron plays a role in collagen (the protein affected in osteogenesis imperfecta) synthesis and is an essential part of the enzyme that converts inactive vitamin D to its active form in the kidney. The professor knows of no studies examining the effects of combined vitamin D and iron deficiency during pregnancy and infancy;

c) Whilst it is likely that C was born with vitamin D deficiency and low iron stores, it is clear that C was bottle fed with vitamin D and iron supplemented proprietary feed. By 6th November 2009 all readings relating to baby C reflected a normal serum vitamin D concentration.

d) Professor Nussey concludes:

“Thus, whilst it is recognised that the quantities of vitamin D in formula feeds are calculated to prevent rickets rather than to optimise bone mineralization it is, on the balance of probabilities, unlikely that vitamin D deficiency played a significant role in bone fragility predisposing the fractures which C presented”;

e) Later Professor Nussey also concludes:

“There appears to be no medical condition linking the presentations due to fracture and its sequelae on 2nd November and 4th December 2009 to that on 26th October 2009.” (The latter date being the day that C was taken to A&E with symptoms around his genitals).

f) The final question asked of Professor Nussey was “having considered the medical evidence available to you, please indicate whether or not you have sufficient material to conclude whether or not the child has a medical condition to account for his injuries and if not, what further evidence you would require to draw a conclusion”. To which Professor Nussey replies:

“From the material available, within my expertise in endocrinology, I do not think there is a medical condition to account for C’s injuries. “

 

 

None of which is probably what the parents were hoping for, and it seems to get worse and worse as you go down the list.

 

The Court of Appeal were greatly helped by the involvement of Jo Delahunty QC, and set out her useful interventions here

 

  1. Miss Delahunty is rightly critical of the way in which this matter was presented to me in September. The 2010 fact finding judgment and bundle of expert opinion was not then made available to the Court of Appeal. In view of the need for urgency in resolving this issue I was persuaded to grant the adjournment sought rather than take further time seeking additional paperwork. However, Miss Delahunty argues that the fact finding judgment, which was plainly in the possession of the solicitors acting for the parents, would have demonstrated that HH Judge Carr had before her experts who had a particular expertise in bone disorders and vitamin D deficiency. These experts had been particularly asked to consider the very points now being made relating to the mother’s vitamin D deficiency and the possibility that the baby may have had vitamin D deficiency at birth and that that in turn may explain some or all of the fractures. The experts were also asked to consider if the birth itself could cause fractures and a neonatologist was specifically instructed to address the birth process.
  1. Miss Delahunty took the court to the report of Dr Takon, a consultant paediatrician with expertise in rickets who confirmed (page E128) that “rickets does not resolve without treatment”. She also referred to the evidence of Professor Bishop (page E108) where he stated that “it would be difficult to see how C could have been severely deficient at birth, have normal-looking X rays and normal blood tests four weeks later without treatment-level intervention.”
  1. Having looked at this matter in depth Miss Delahunty summarises the position as follows:

“From different specialism the same answers were given: birth could not account for the fractures. Neither could vit D or bone density disorders. The experts gave clear answers to clear questions. Vit D deficiency, even had it existed at birth, could not account for the type and age of the fractures identified upon admission.”

  1. In dealing with the oral submission now made by Mr Shrimpton, Miss Delahunty challenges counsel’s assertion that the clinical consequence of vitamin D deficiency is rickets. She accepts that vitamin D deficiency at birth may progress to rickets, but it does not equate to rickets. Miss Delahunty challenges Mr Shrimpton’s approach of cherry picking small parts of the expert evidence from the fact finding process when the total picture presented by all of the experts was entirely contrary to the argument now made.
  1. Miss Delahunty characterises the mother’s vitamin D deficiency as “very minor” and therefore the potential for this factor affecting the child’s bones is remote. She describes the parent’s argument as “without hope” and the application for a further adjournment to disclose papers to experts as being totally unjustified.
  1. The point made is that vitamin D could go from being down at birth but normal at four weeks, but weakened bones could not go back to normal in that time. It is submitted that Mr Shrimpton seeks to conflate the former, which is established by Professor Nussey, with the latter, which was the position of the experts at the fact finding hearing. The experts’ position is therefore unaffected by Professor Nussey’s insight into the intra-uterine vitamin D levels and that is confirmed by Professor Nussey’s own opinion that the vitamin D is, on a balance of probability, not related to the fractures.
  1. I have been impressed by, and grateful for, the thorough process that Miss Delahunty QC and Miss Denise Marson, her junior, have undertaken. I propose to extract section E and F from their skeleton (pages 13 – 19) and publish them as an addendum to this judgment in order that both the thoroughness of the exercise and its clear conclusions can be understood.

 

 

My reading of this is that there’s a risk in assuming that a possibility of vitamin D deficiency amounts to There was a vitamin D deficiency, the Vitamin D deficiency caused rickets, rickets caused the fractures; and one has to be careful in establishing that there is a clinical and medical case for advancing from each stage to the next.  Even establishing a Vitamin D deficiency does not establish that the fractures were caused by rickets, merely that this needs to be explored.

 

 

The totality of the conclusions, and the decision of the Court of Appeal was therefore that the findings made by Her Honour Judge Carr were not only robust and properly formulated, but not overtaken by medical developments that were more widely disseminated by Al Alas Wray.

 

[My broader conclusion is that you want to get on the phone to Jo Delahunty’s clerks at 4 Paper Buildings as soon as you can if you have a case where there’s a suggestion of Vitamin D deficiency, before anyone else beats you to it. It might be a stretch to suggest that she is the Perry Mason of family law – as he never ever ever lost a case, but I’d certainly suggest that having her on your team is rather like picking Lionel Messi to be in your five-a-side football team – you certainly would come to regret the other side having them instead of you.   If  Ms Delahunty wishes to use  “She is the Lionel Messi of the family bar” as a quote for Chambers Directory or the Legal 500, she would do so with my blessing]

 

 

The Court of Appeal felt that there were portions of her skeleton which warranted broader circulation, and annexed them to the judgment. I would agree, so here they are:-

 

 

 

  1. EXTRACT FROM SKELETON ARGUMENT ON BEHALF OF THE CHILD FOR THE ‘PERMISSION TO APPEAL’ HEARING LISTED BEFORE McFarlane LJ ON THE 1ST NOVEMBER 2012

E THE MAIN ARGUMENT? VIT D DEFICIENCY AS A BENIGN CAUSE FOR THE INJURIES

This submission made on behalf the parents lacks a fundamental understanding of the interplay between Vit D Deficiency and rickets and ignores the following:

  1. The skull is one of the first bones to lose bone density as its supply of Vit D and the formulation of calcium is sacrificed to the brain, blood and nerves. Vit D deficiency affecting the bones can manifest itself by wormian holes or craniotabes (softening or thinning of the skull). Baby C was delivered by Forceps. Dr Takon (Consultant Paediatrician with specific expertise in Vit D deficiency) advised that ‘rickets result from deficiency in Vit D which affects adequate bone formation. This is a disease of the growing bone and does not occur in utero. It can be caused by nutritional causes such as when there is a diet deficient in Vit D. Rickets does not resolve without treatment. Children with malabsorbtion and abnormal renal function which affects Vit D can present with rickets. C’s kidney functions, liver function and blood results were all normal. C had normal Vit D levels. The classic clinical signs of rickets are bone deformity. In infants the skull, the upper limbs and the ribs are the most affected due to the rapid growth of these bones during this period (Kruse). Deformity of the skull bones and bulging of the ribs are some of the bony changes that can be seen in addition to abnormal laboratory results. C had none of these biochemical or clinical features. He had normal Vit D levels’.
  1. If baby C was born with congenital rickets derived from Vitamin D deficiency in utero, Vit D supply would have been its lowest at birth and from that point on would have robbed the bones of their supply before the Vit D supplements provided by the formula milk had taken effect.
  1. The dating of the fractures, in any event, takes the point of infliction of them from after birth: the oldest was the 6th rib. Even if we reject the expert opinion that this was not birth related and assume it may be ( because of problems with dating the healing rate of calcium deficient bones ) that leaves the

a. Posterior fractures of the right 10th and 11th ribs;

b. 8 metaphyseal fractures of both distal and both proximal tibiae, left proximal fibula; both distal tibiae and right distal fibula;

c. Transverse fracture of the right femur.

  1. These were all dated at less than 11 days as at 2.11.09 i.e.: sustained on or after the 22nd October 2009, Baby C’s date of birth being 3.10.09 (Dr Halliday Page E39 (paragraph 5.4).
  1. It is significant

a. that they were thus most proximate to the normal Vit D reading obtained from Baby C on 6.11.09. and

b. That they showed signs of healing (see the well formed callus on the Right femur between 30.10.09 and 4.12.09 and the signs of healing on other fractures between the X rays of 2.11.09 and 12.11.09). The healing process demonstrates that Baby C’s bones were capable of utilising calcium to regenerate and form new bone.

  1. This point was emphasised and addressed further by Professor Bishop (whose evidence was accepted by HH Judge Carr QC) at no. 7 page E108 “It would be difficult to see how he could have been severely deficient at birth, have normal-looking x-rays and normal blood tests 4 weeks later without treatment-level intervention (3000 IU vitamin D/day; milk formula contains 40IU/100ml)”;[1]
  1. Dr Takon agreed ‘calcium metabolism in the foetus usually involves transfer of calcium from the mother to the infant. The growing foetus does require increasing calcium requirements which continue to be derived from maternal supply through the placenta. During delivery , when the baby is born, there is an abrupt drop in the supply of calcium which then stimulates the baby’s calcium regulating hormones kicking in and gradual stabilization of the calcium levels in the new born. The calcium levels can therefore be low at birth and then trigger secretions of Vit D in the infant to help stabilize the levels’ … E 128)
  1. Prof Nussey agrees on this critical issue (@ CoA bundle 100) ‘whilst it is likely that (baby C) was born with vitamin D deficiency and low iron stores, it is clear that C was bottle fed with Vit D and iron supplemented proprietary feed. In a population study in Canada a small number of bottle fed children with rickets have been reported (Ward et al Ref 5). However, the serum 25 hydroxyvitamin D on 6.11.09 was 76.7nmol/l and the serum calcium, phosphate and parathyroid hormone were all normal reflecting this serum Vitamin Concentrate. This, whilst it is recognised that the quantities of Vit D in formula feeds are calculated to prevent rickets rather than to optimise bone mineralisation it is ,on the balance of probabilities unlikely that vitamin d deficiency played a significant role in bone fragility pre disposing to the fractures with which C presented’
  1. It is highly relevant that all bar one of the bony fractures were

a. of the same age ( less than 11 days old)

b. of which 8 were metaphyseal

c. posterior re ribs

The fractures (in position and type) were considered to be highly indicative of NAI

It is not just that those fractures which were present were characteristic of inflicted injuries but the absence of others which might tend to suggest rickets that is relevant

•    No multiple fractures of multiple ages;

•    No fractures where the majority were the oldest and most proximate to birth (before the fortified milk had ameliorated any deficiency);

•    No fractures to the skull or the shoulders during the birth process and applied forces within it ;

•    No fractures thereafter to those parts of the body most commonly handled in bathing, changing nappies and dressing / undressing.

We suggest that not only were the type of fractures sustained by Baby C most commonly associated with inflicted injury but he did not have those fractures which are suggestive of early onset of, and gradually resolving, bone fragility.

  1. Not only were the fractures not those of the type, distribution and multiple ages suggestive of rickets but there were also no radiologically evident signs of rickets

For example see Dr Halliday @ E 119 just as an example: who had looked at the x rays for signs of oesteopenia (where the bones appear less white on an x ray) and wormian holes (small bones within the sutures of the skull). Nor were there visible signs of widening and splaying of the growth plates or widened periosteal reactions.

By itself, it may be that this was not conclusive evidence of the absence of rickets, BUT it is to be seen in conjunction with the point above and the points below.

10 Bone Density/ Appearance. Baby C’s scans and x rays were examined by treating medics and experts for signs of any bone abnormality. This included the skeletal X rays and CT skull imaging.

None were found. Again, by itself it may be argued that this does not conclusively rule out rickets but it is highly relevant when considered in conjunction with the other matters in this section.

Dr West (Const Paed): ‘no radiological of any underlying bone abnormality’ (E3)

Dr Halliday (Neuro Rad) ‘there is no evidence of abnormality of C’s bones on the radiograph which make him particularly susceptible to fracture. In particular there is no evidence of osteogenesis imperfecta or brittle bone disease (E38) and again @ E119 ‘rickets is also associated with osteopenia. Together with widening and splaying of the growth plates (cartilaginous strips at the end of the bone) and some times a wide spread perisosteal reaction. These features were not present on C’s films’

Prof Bishop (Prof Paed Bone Disease) ‘the size and architecture of the bones looks normal to me. There is no evidence of loss of bone mass’. and then @ E108 ‘there is no evidence of any bone abnormality or bone fragility. The pattern of fractures is characteristic of non accidental injury rather than bone disease. In my opinion C’s bones are normal and he has been the victim of non accidental injury.

11 Vitamin D deficiency affects the whole of the central nervous system of a baby’s body, it is essential to feed the nerves and brain cells, it follows ( as Al Alas explored at length) that its absence makes the baby –

1. vulnerable to seizures ( prone to hypocalcaemic fits)

2. with an increased susceptibility to infection and

3. with a decreased ability to recover from infection

These are the clinical signs of Vit D deficiency. (see Dr Takon @ E47)

Baby C exhibited none of them either at the time of his admissions or on report of the parents between them. He did not have an infection. (see Dr Takon @ E48/ E 50/ E 55/ E 126)) If he did have an infection he had been able to fight it off.

Clinically Baby C did not show signs of Vit D deficiency

Conclusion: In Baby C’s case all the multiple ways of detecting rickets and Vit D deficiency pointed in one direction and away from it being a causal factor in the fractures he sustained:

•    The absence of the type, number and age of fractures more likely attributable to rickets

    • The presence of fresher fractures close to the normal Vit D testing and their type
    • the lack of radiological evidence of rickets
    • the lack of biochemistry results indicative of Vit D deficiency
    • the lack of clinical indicators of Vit D deficiency

These factors, individually and collectively demonstrate that whatever condition Baby C may have been born with, rickets and on going Vit D deficiency does not provide a benign cause for the fractures he sustained.

This is not news . Dr Takon in her report @ E 60 considered and pulled together the significance of the mothers Vit D levels, her bone density scan and concluded that baby ‘C does not show any physical, biochemical or radiological features of Vit D deficiency’ . As did Prof Wyatt @ E 100 and Prof Bishop @ E 107.

Moreover, Baby C did not only suffer from fractures found to have been inflicted, he also sustained genital injuries which were found to have been inflicted. There is no link identified by Prof Nussey between the genital presentations and the fracture related presentations.

F THE GENITAL INJURIES

Whilst baby C’s genital symptoms (injuries) seen by Mr Roberts on the 26.10.2009 were initially diagnosed and treated by him as an infection for which he prescribed antibiotics, there is in fact, no objective evidence of infection. There were no clinical signs of infection, C’s temperature was normal, C’s blood test results were normal[2]. (see Dr Takon @ E56) . Baby C had no other treatment or diagnosis for infection in the first four weeks of his life. The conclusion of those experts who considered Baby C’s genital injuries were that they were ‘unusual and worrying’ and the result of traumatic injury where no accidental explanation had been given by the parents (e.g.: see Prof Wyatt @ E 93)

With no evidential base for rickets/vitamin D deficiency and no evidential base for infection, there is no underlying reason why C should present with injuries to his genitalia.

Prof Nussey agrees and can see no linking cause between the presentations.

Ms Jo Delahunty QC
Mrs Denise Marson

Note 1   The jointly instructed expert , Prof Bishop , and his conclusions at E107: ‘ C underwent a number of blood tests including two bone profiles, and had his serum PTH measured twice and his serum Vit D level measured once. His levels of calcium and phosphate were at the upper end of normal range for age as is frequently observed following fracture. His serum alkaline phosphates was not elevated (272 and 260 IU/I) and his PTH was suppressed (&) probably because his calcium level was higher than average. His Hydroxyvitamin D level was very good (76.7 n/mol/l on 6.11.09: higher than is seen in infants at that age. These are normal responses following fracture in a Vit D replete individual; prior vitamin D depletion would be unlikely given the formula feeds he had been on ( which contain Vit D and his normal serum PTH and alkaline phosphates. His platelets were slightly elevated and on of the clotting test times were reduced, neither of these are associated with bone fragility. Maternal 25 Hydroxyvitamin D has also been measured and is sub optimal at 39 n/mol/l on 13.11.09 in association with a PTH is close to the upper limit of the normal range at 6.25 pmol/l; however this is not a particularly low level of Vit D for a pregnant mother and one would not expect it to impact on the Vit D status of the new born on transplancental calcium transfer (which is not dependent on Vit D).     [Back]

Note 2   It is of significance that the blood was taken from C whilst at Rotherham District Hospital (RDH) this was prior to antibiotics being prescribed at Sheffield Children’s Hospital (SCH), see F23 from the original care proceedings bundle re discharge from RDH, and F173 – F174 re admission to SCH. See also further reference at page 98 of Prof Nussey’s report. The lack of infection ‘markers’ was NOT as a consequence of antibiotics having been prescribed.    [Back]

 

 

 

 

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J’accuse .. no, I don’t… wait, yes I do (oh no you don’t)

Posted on October 24, 2012 by suesspiciousminds

 

A discussion of  Re W (Children) 2012 EWCA Civ 1307

 

 http://www.familylawweek.co.uk/site.aspx?i=ed102911

 

This appeal centres on whether, having made allegations and then subsequently consented to an order saying that findings in relation to them would not be pursued, a party can then resile from that and seek to reopen the findings.

 

An interesting appeal, arising from private law proceedings.  Within the course of the proceedings, a very detailed set of allegations was drawn up on behalf of the mother. These were very grave allegations indeed.

 

At a relatively early stage of the fact finding hearing, in August 2009, counsel for mother appears to have given the mother certain robust advice about the prospects of succeeding in proving such allegations.

 

Counsel for both parents asked to address the Judge in chambers, and taking appropriate precautions to ensure that both clients were aware and content with this and that the discussion was recorded, this took place.

 

5. Trying to summarise the discussion, it seems that mother’s counsel, acknowledging the standard of proof that was upon the mother and the allegations over many years on a monthly basis, said to the judge that it would be difficult to see how the court could make a positive finding or indeed a negative finding and the judge may therefore come to the conclusion she could not make a finding one way or the other.  She posed the question one has to ask, namely where that would take the court in the terms of the proceedings then before the court, which seemed to be concentrating on the father’s contact.  The judge acknowledged that, and there was therefore some discussion about the allegations set out in the Scott schedule.

6. Counsel for the mother then indicated to the judge that mother had expanded upon her complaints and was now also complaining about his behaviour to the children, though the only specific matter she could relay to the judge was an allegation that mother had seen father hitting the boy about the head.  She explained that her instructing solicitor was making further inquiries and would detail those further allegations as soon as possible during the course of that day, because the judge made it perfectly plain that she would deal with any further allegations there and then without delaying the case any further.

7. So those further inquiries were made and they are now set out on a further schedule, which recites with regard to the children that the father would hit the boy about the head almost on a daily basis and call him stupid; that he would punish the boy; that he did not treat the children equally; and fourthly that the father would touch the daughter inappropriately, not in a father-daughter manner but more intimately than expected by a father. As I read the transcript, of the proceedings I am not sure that the judge was made aware of that fourth allegation.

8. The judge, that is to say HHJ Black — pragmatically and sensibly in my view — enquired what the true nature of the dispute was going to be.  And if and insofar as it was a matter of contact, it was important, she considered, to understand the mother’s case.  She said:

“Now if that was her case so she was saying ‘No contact ever because I emotionally will never be able to deal with this’ which I would have a great deal of sympathy with, I think probably all of us would have a great deal of sympathy with and be on her side.  So this was a complete no contact case, I can understand that …

But I cannot understand…Even with the new allegations, what I will always want to know as a start point is…she is the mother of these children…  If she is coming in to say, notwithstanding all of this, ‘This is what I think is the way safe contact for my children can continue’ short term, long term et cetera, et cetera, that is how I would be informed.  And I would like you firstly to find out, whatever happens, there will be contact starting as soon as it can be sorted out.  There is no reason why it shouldn’t be.”

9. So the judge was asking instructions to be taken about whether the mother was saying no contact at all or whether she was accepting that there should be contact, which would progress if it was shown to be successful and the case was therefore adjourned for mother to be advised.

10. Counsel then took instructions and returned to the judge and, in a long passage which I need not read in full, counsel for the mother made it plain as follows:

“My client’s position is this.  That notwithstanding any of the allegations that she still generally believes are true that she would like the children to see their father in a controlled environment and if he is able to behave appropriately and have a father, child relationship with them she would wish contact to progress.”

And she then set out how that would happen. Counsel told the judge:

“She understands that that would mean drawing a line in the sand in respect of her allegations both the ones she has detailed in her statements to the court and those she has raised today in respect of dad’s conduct towards the children specifically.”

And I omit further words:

“She is very clear she wants the children to enjoy their relationship with their father.”

I omit more passages:

“Your Honour, as I say, my client does understand that this will be drawing a line under her allegations.  She is not withdrawing them in the sense that she does not accept they are fabricated and if I could say that does not strike us as a situation where this woman genuinely believes what she is saying. Whether that is objectively how events have occurred is a different matter and I know that it is a point that troubles my learned friend.”

11. So, in the light of that discussion, the judge was being asked not to proceed with the hearing before her and left it to counsel to prepare a draft order, which had recitals giving full effect to the understanding they had reached. 

 

 

There’s then what I consider to be a very neat bit of drafting, to dance on the head of a pin, and reflect that the allegations were not being pursued or relied upon in relation to the issues of contact and residence before the Court, but neither was there any acceptance on behalf of either party as to whether or not they were true.

“UPON HEARING COUNSEL for each of the parties. 

AND UPON the Respondent Mother not seeking to pursue positive findings in respect of the allegations raised by her in the Scott Schedule and in the list here attached.  It being noted by the court that the allegations made on the list were first made at Court today. 

AND UPON the Respondent Mother understanding that notwithstanding that fact that she is not withdrawing her allegations, she will not be able to put forward specific allegations as reason(s) for a bar against contact or future progression of contact between the children and the Applicant Father or in relation to residence and the Mother understanding that matters will proceed on the basis that [I think it should be] no negative findings have been made against the Father. 

AND UPON the Court recording that no findings of fact have been made against the Applicant Father and that the Applicant Father continues to deny all allegations made against him by the Respondent Mother.

AND UPON the Court recording that as no allegations have been proved against the Applicant Father, no professional assessment of him should be on the basis of the concerns against him by the Mother in the Scott Schedule and list attached herewith, and any assessment should proceed on the basis of events as described by the Mother as having not occurred.”

 

 

Sadly for counsel for the mother, she was no longer representing the mother by the time of a hearing on February 2012  (perhaps due to diary clash, perhaps – as can be seen by mother’s complaints, more a clash of personality than diary), and mother instructed her subsequent counsel to seek to revive the allegations.  This is what she says in her witness statement for the February 2012 hearing.

 

12.  I know it sounds dramatic but I would use the word tyrannical to describe [counsel’s] approach.  I was very scared and I do not believe she gave me balanced advice.

13.  [She] suggested that she should go and see what the judge had to say and I agreed.  I recall she came back and indicated that the judge had said that she would have difficulty in making a positive or negative finding but that we could do things by way of recital.  I think at that point that [she] was doing all that she could to dissuade me from testifying and although she did not say it I was left in no doubt she thought I was wasting the court’s time.  I felt bullied and I had lost all confidence.”

17. It may be that that allegation should be contrasted with how she had earlier approached the hearing before HHJ Black.  In a witness statement of 22 December 2009, that is to say some four months after the hearing before HHJ Black, she said only this:

“I am aware I am no longer allowed to bring these matters into the Children Proceedings, but can confirm I am still on the waiting list to see a counsellor from the Portsmouth Rape Crisis Team but I will not let the past, in respect of myself, have any weight to my views and the children’s views of contact with their father.”

In the same witness statement she dealt with the harm that the children could suffer and she said:

“I am aware this cannot be brought up again in these proceedings.”

18. There are certainly no mention of bullying or of her not fully understanding the nature of the compromise there had been effected.  She put in her own witness statement in January 2012 when she was without legal advice and there she said:

“When the fact-finding hearing came up I had an alternative barrister, who advised me that the hearing would not achieve anything, as the Judge viewed the evidence and had said that even with testimony from all the parties involved, she would find it very difficult to make a decision either way.  It was not made clear to me at the time that the fact finding hearing it was necessary for the facts of the case to go on record, whichever way the Judge ruled.  I felt, and still feel that some elements are central to the case, and [father’s] ability to parent (such as the fact that he abused me and raped me throughout our marriage, and that I was in fact under the age of consent when he first attacked me)”

Again, there is not a complaint of being put under pressure by counsel through bullying nor of a failure fully to understand the compromise she had reached.

The Judge on 12th February refused to reopen the allegations and to undo the order made, and this is the order that was appealed.

 

Counsel for mother in the appeal put her case skilfully (and as the Court of Appeal describe, valiantly) on the basis that the allegations are so serious that they cannot sensibly be ignored and a determination of them central to the issues in the case.

 

The Court of Appeal declined to overturn the case management decision of 12th February 2012, saying that it was not only not plainly wrong but that was plainly right.

 

24. I, of course, entirely agree that it is in the interests of justice and in the interests of the children that the truth be known where the truth can be established, but in all of these cases the court is required by Section 1 of the Act to have regard, among other matters, to delay which is inimical to the well-being of the children.  In this case there is nearly three years of delay or two-and-a-half years of delay and, as HHJ Marston rightly observed, matters had moved on considerably since that hearing.  Matters had moved on because mother had suffered a further breakdown in her mental health.  She was unable to care for the children.  They were placed with father.  They were subject to supervision by the social services department, who were well aware of the fact that these allegations had never been tried out one way or the other, but being alive to that fact nonetheless came to the very firm conclusion, as I have recited from the report of the social worker, that the best interests of the children lay with their remaining with their father.

25. The appeal has to be, in my judgment, an appeal against, in effect, a case management decision by HHJ Marston as to whether or not this matter should be re-opened.  It may be a matter of debate as to whether the more appropriate course would have been to have appealed.  This is not a case where the court is being asked to consider fresh evidence or different evidence from that which had been presented to the court which had undertaken the exercise.  Here, in effect, the gist of the application is to set aside HHJ Black’s order and to have a rehearing. That, one may think, was better a matter for appeal rather than to go back to the same or a different county court judge, but I need not express a concluded view on technical issues of that sort.

26. Treating this as an exercise of discretion, Ms Earley attacks it as being plainly wrong.  In my judgment it was plainly right. The judge was fully entitled to look at delay, to look at the way of the mother’s allegations of bullying had gradually grown as the case progressed, and to have regard to the fact that the mother was perfectly happy to leave these children in the father’s care unsupervised and unsupported for weekends and over holiday periods.  She consented to all of those orders.  She was aware of the effect of the compromise in August when she agreed those orders.  She did not then complain.  She complained only when the case had changed and she was now the one seeking residence from father, who had the backing of the social services in retaining the children in his care. 

27. To re-open the matter would undoubtedly cause further delay; the effect on the boy who suffers sadly from a problem of his ill health would be severe; and the judge, taking all of those matters into account, was fully entitled to say that it was far too late to re-open matters.  He was correct, moreover, to take the view that it would have been disproportionate, because one has to ask what prospect was there on the face of the papers before the court of mother succeeding in establishing the vague allegations she was relying on, allegations over many years with no corroboration apart from a broken tooth, which could have been explained as easily on the father’s account as on her account.  There was little medical evidence, it seems, to corroborate her account.  She was on her own admission inconsistent in her explanations of misconduct, in her reports to the psychiatric team who were advising her.  She was inconsistent about the events of March 2011 when she suffered an injury, as she at first put it, in the course of sexual activity, which was to say the least unusual.

28. Taking a view as to the prospects of her success, they could not be put as anything like reasonable.  On the contrary, they appear, as the judge concluded, to be weak.  What was the benefit to the children?  In my judgment not a great deal.  The allegations against the mother do not appear to have impacted upon his treatment of the children, who as I have repeatedly said are thriving in his care. 

29. For all those reasons, I conclude the judge was right to draw the line where he did.  I would therefore dismiss this appeal.

 

 

Much of this obviously turns on its facts – the huge passage of time between the allegations being ‘left on the file’ and the attempt to resurrect, the lack of credibility given later evidence filed that mother had been ‘bullied into this by counsel’ and the inconsistencies in mother’s allegations, but there are the wider points that it is legitimate for a Court to conclude a finding of fact hearing with an agreed order on the basis set out in August 2009, and that the parties need to be advised with care that reopening such findings laid to rest may be extraordinarily difficult if not impossible, and that they should be sure about that before consenting to such an order.

 

 

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and said ‘oh oh, smother me mother’

Posted on October 3, 2012 by suesspiciousminds

Tasteless title, for which I apologise, but it is a Smiths song.  (the passing of time, and all of its sickening crimes, is making me sad again)

A consideration of AA (A Child) 2012 EWHC 2647 (Fam)  – especially for John Bolch, as I am now taking requests  (other than of the ‘why don’t you just eff off’ variety)

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2647.html

Firstly, either Justice Baker has had the most difficult caseload of all time, or (more likely) he’s had a pile of published judgments in his in-tray waiting to be signed off for a while and has done about six in a week, because this is him again.

Secondly, its another in the developing body of High Court caselaw where Judges who might have been accepting of medical evidence (particularly if it stood up to cross-examination) are now setting it in a broader judicial context of the totality of the evidence to be assessed, and recognition that today’s medical dogma might well be tomorrow’s “well, we USED to think”  – I have been told today of a very interesting judgment forthcoming on this topic where the conclusion is that an earlier fact finding on very serious injuries resulted in a miscarriage of justice.

But anyway, onto RE AA.

Here is the opening background, and one can tell immediately that the mother is going to be under pressure in the finding of fact hearing

    1. This is a tragic and extremely difficult case. On 6th January 2011, a little boy, whom I shall refer to as J, died while in the sole care of his mother. Twelve weeks later, on 1st April 2011, his older brother, whom I shall refer to as B, then aged four, was found in a state of acute collapse, also whilst in the sole care of his mother, and died three days later in hospital.

 

  1. Police began an extensive investigation, which is still ongoing, into the causes of those deaths. The local authority started care proceedings in respect of the surviving younger sister of the boys, whom I shall refer to as A, now aged two. The local authority contends that the threshold under section 31 of the Children Act for the making of care orders is crossed in this case and seeks findings, first, that the mother neglected her children and, secondly and more seriously, that she was responsible for the deaths of the two boys by asphyxiation. The proceedings were transferred to the High Court and listed before me for a fact-finding hearing held in Portsmouth. This judgment is delivered at the conclusion of that hearing.

Regardless of how things play out, it is plain to see that professionals are going to have high levels of anxiety about this case.  Particularly given the existence of a third child.

And here’s a warning that idle remarks, made without any malice, can take on horrible significance when looked at through the cold microscope of forensic analysis

On another occasion in November, the mother became drunk when caring for the children, who were taken round to DA’s house. There is evidence that on occasions the mother expressed frustration about the demands for caring for the children. She was a regular user of text-messaging and the internet MSN message service and, when chatting to friends by these means, she would on occasions grumble about the children. One example, on the evening prior to J’s death, contains the statement that she could have “fucking killed” B, because he had made J cry and been disobedient, and added an additional remark: “I wish I didn’t have fucking kids.”

The case sets out the detailed medical history, which I won’t go into – I couldn’t summarise it better than the Judge has already done, and if you want to read it, I would go to the source.

The Judge sets out the legal position on reliance on medical experts, with the Cannings case unsurprisingly looming large in that regard.

The approach to expert evidence

    1. It is particularly important to bear in mind the point just made above where, as is invariably the case in cases of suspected physical abuse, the evidence adduced includes the opinion of the medical experts. As Ryder J observed in A County Council v A Mother and others [2005] EWHC Fam. 31,

 

“A factual decision must be based on all available materials, i.e. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be.”

    1. Whilst appropriate attention must be paid to the opinion of the medical experts, their opinions need to be considered in the context of all the circumstances. In A County Council v K D & L [2005] EWHC 144 (Fam) at paragraphs 39 and 44, Charles J observed,

 

“It is important to remember (1) that the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision.”

Later in the same judgment, Charles J added at paragraph 49,

“In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus  human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof … The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established.”

    1. In assessing the expert evidence, I bear in mind that cases involving an allegation of smothering involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers where appropriate to the expertise of others (see the observations of Mrs Justice Eleanor King in Re S [2009] EWHC 2115 (Fam).

 

    1. On behalf of the mother, Miss Judd and Miss Pine-Coffin invite me to bear in mind the decision of the Court of Appeal in the criminal case of R v Cannings [2004] EWCA 1 Crim. In that case a mother had been convicted of the murder of her two children who had simply stopped breathing. The mother’s two other children had experienced apparent life-threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was no evidence other than repeated incidents of breathing having ceased. There was serious disagreement between experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances, the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable possible explanation.

 

    1. The impact of the Cannings decision on care proceedings was considered by the Court of Appeal in Re U, Re B, supra. Dame Elizabeth Butler-Sloss P identified the following considerations arising from the Cannings decision as being of direct application in care proceedings:

 

“(1) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.

(2) Recurrence is not in itself prohibitive.

(3) Particular caution is necessary in any case where the medical experts disagree, one opinion declined to exclude a reasonable possibility of natural cause.

(4) The court must always be on the guard against the over-dogmatic expert, the expert whose reputation is at stake or the expert who has developed a scientific prejudice.

(5) The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research would throw a light into corners that are at present dark.”

    1. Usually, it is unnecessary for the Family Court to go further into the analysis by the Court of Appeal in Cannings, but in this case Miss Judd invites the court to have regard to the whole of that decision. I remind myself that it was a criminal case involving the deaths of infants under the age of six months, whereas these are family proceedings involving the deaths of two children aged two and four. Nevertheless, I find the analysis by the Court of Appeal of what Judge LJ, as he then was, described as two critical problems, as relevant to the current case.

 

    1. First, I note the paragraphs specifically cited by Miss Judd, in particular paragraphs 10 to 13 of the judgment in Cannings, which amplify point 2 in Butler-Sloss P’s summary in Re U, Re B cited above.

 

“(10) It would probably be helpful at the outset to encapsulate different possible approaches to cases where three infant deaths have occurred in the same family, each apparently unexplained and for each of which there is no evidence extraneous to the expert evidence that harm was or must have been inflicted, for example, indications of or admissions of violence or a pattern of ill-treatment. Nowadays such events in the same family are rare, very rare. One approach is to examine each death to see whether it is possible to identify one or other of the known natural causes of infant death. If this cannot be done, the rarity of such incidents in the same family is thought to raise a very powerful inference that the deaths must have resulted from deliberate harm. The alternative approach is to start with the same fact, that three unexplained deaths in the same family are indeed rare, but thereafter to proceed on the basis that if there is nothing to explain them, in our current state of knowledge at any rate, they remain unexplained and still, despite the known fact that some parents do smother their infant children, possible natural deaths.

(11) It would immediately be apparent that much depends on the starting point which is adopted. The first approach is, putting it colloquially, that lightning does not strike three times in the same place. If so, the route to a finding of guilt is wide open. Almost any other piece of evidence can reasonably be interpreted to fit this conclusion. For example, if a mother who has lost three babies behaved or responded oddly or strangely or not in accordance with some theoretically “normal” way of behaving when faced with such a disaster, her behaviour might be thought to confirm the conclusion that lightning could not indeed have struck three times. If, however, the deaths were natural, virtually everything done by the mother on discovering such shattering and repeated disasters would be readily understandable as personal manifestations of profound natural shock and grief.”

Later at (13):

“Reverting to the two possible approaches to the problems posed in a case like this, in a criminal prosecution we have no doubt that what we have described as the second approach is correct. Whether there are one, two or even three deaths, the exclusion of currently known natural causes of infant death does not establish that the death or deaths resulted from the deliberate infliction of harm. That represents not only the legal principle, which must be applied in any event, but, in addition, as we shall see, at the very least, it appears to us to coincide with the views of a reputable body of expert medical opinion.”

    1. Secondly, in considering the Cannings judgment, I note the observations of Judge LJ at paragraph 22, which amplifies point 5 in Butler-Sloss P’s summary in Re U, Re B cited above.

 

“We have read bundles of reports from numerous experts of great distinction in this field, together with transcripts of their evidence. If we have derived an overwhelming and abiding impression from studying this material, it is that a great deal about death in infancy, and its causes, remains as yet unknown and undiscovered. That impression is confirmed by counsel on both sides. Much work by dedicated men and women is devoted to this problem. No doubt one urgent objective is to reduce to an irreducible minimum the tragic waste of life and consequent life-scarring grief suffered by parents. In the process however much will also be learned about those deaths which are not natural, and are indeed the consequence of harmful parental activity. We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research, both here and internationally, become available. What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge.”

    1. With regard to this latter point, recent case law has emphasised the importance of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause. The possibility was articulated by Moses LJ in R v Henderson-Butler and Oyediran [2010] EWCA Crim. 126 at paragraph 1:

 

“Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown.”

    1. In Re R, Care Proceedings Causation [2011] EWHC 1715 (Fam), Hedley J, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further. At paragraph 10, he observed,

 

“A temptation there described is ever present in Family proceedings too and, in my judgment, should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden

of proof is established on the balance of probabilities.”

    1. Later in the judgment, at paragraph 19, Hedley J added this observation:

 

“In my judgment a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury, merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgment that we are fearfully and wonderfully made.”

Long term readers of this blog will know that I am a huge admirer of Hedley J, and this observation is very well made. I think on shaking cases we are getting very close, judicially speaking, to a conclusion that we simply cannot be sure until all of the evidence is tested forensically whether a child is likely to have been shaken or not, and as a result, I suspect that we may relatively soon get an appeal on an interlocutory decision to place in foster care,  a child suspected of having been shaken.

The Local Authority had run their threshold in parallel – on neglect, and on the far more serious allegations that the mother had smothered and killed two children. The Judge found that they had proved the neglect allegations.

    1. The local authority alleges that the mother is culpable of serious and repeated acts of neglect of her children and has set out this allegation in the schedule of findings filed in these proceedings. In their response on behalf of their client, the mother’s representatives have very substantially accepted the allegations. Some issues, however, remained and they have formed part of the hearing before me.

 

    1. Having considered the evidence, written and oral, I make the following findings on this aspect of the case:

 

(1) There is evidence that the mother struggled to cope with all of the children. In the early days after B was born, she was unable to cope with his care and often left him in the care of other people, including DA. On one occasion, feeling unable to manage, she left him at the social project where she was receiving support. Later she found it difficult to care for J and A together. As a result she did not always provide adequate attention, stimulation or boundaries for the children.

(2) The mother failed to prioritise her children’s physical and emotional needs, on occasions putting her own needs and interests first. She spent significant periods of time on the internet, including extensive periods communicating with friends via internet chat rooms. The children were expected to fit around the mother’s own wishes and needs. This was a particular concern for the experienced health visitor who gave evidence before me.

(3)On occasions the mother was emotionally neglectful towards the children. On one occasion she announced that she was placing the children in care and packed their bags before being talked out of this by support and social workers.

(4)The home conditions in which the children lived were frequently poor. The mother struggled to keep her home clean and tidy, despite repeated reminders from others, including DA. The home was often left cluttered with rubbish.

(5)On a number of occasions the mother failed to protect and supervise the children so that their safety was at risk. In September 2009, B covered himself in bleach. In October 2009, he was found sitting in bleach. In October 2009, J was taking to hospital having ingested Sudocrem. Stair-gates were fitted but on occasions left open. On other occasions dangerous items were left within the reach of the children, cans of spray, loose wall sockets, paracetamol, scissors, cleaning fluid and medication. On one occasion, J was observed by a health visitor to be in a position to turn a fire on and off. The mother failed on occasion to supervise the children in the street, on one occasion allowing J to walk so far ahead that he was able to cross a road by himself.

(6)The mother struggled to manage the care of the children so as to ensure that they were kept clean and had their nappies changed with sufficient regularity. J was noted on occasions to have a very dirty nappy and to be dressed in dirty, wet and sometimes inadequate clothing. As a result on occasions J and A had very sore bottoms and nappy rashes.

(7)The mother struggled to provide the children with appropriate food. She delayed starting B on solid food. She would give the children inappropriate food on occasions and rely excessively on junk food. J would be fed chocolate biscuits for breakfast. The mother struggled to manage A’s feeding regime as a baby and did not always follow advice on this topic. She told the health visitor that she could on occasions put J straight to bed without giving him any meal if they were late arriving home.

(8)The mother found it difficult to manage the children’s behaviour. She resorted on occasions to harsh chastisement of the children that was both inappropriate for their age and generally excessive. She would smack the children, perceiving their behaviour as “naughty,” not realising that it was often simple normal conduct to be expected of a lively, inquisitive toddler. She would shout at B when he was a baby in a vain effort to keep him quiet. She would resort to corporal punishment to an inappropriate and excessive extent. In October 2010 she was observed to slap B on the legs. She would threaten to smack the children by raising her hand. On occasions she put J in his room for excessive periods and sent him to bed at inappropriate times. On one occasion, as I find, she slapped B on the back of the head after he had run off.

(9)In November 2010 the mother was found drunk in charge of J and A. There is no evidence that this was anything other than an isolated incident; nonetheless it is a matter for considerable concern and jeopardised the safety of the children.

(10)The mother was provided with considerable support throughout the intervention of Social Services. Whilst there is some reason to question the level of support provided, the mother was not always as cooperative with the support workers who asked to assist her. The health visitor felt that her failure to take her advice was wilful. I bear in mind, however, that this mother suffers from a learning disability and I am unsure about the extent to which this was taken into account by the professionals who were trying to help her.

    1. There is a further allegation which concerns the father of the two younger children, GM. The mother reported that she had seen him poke J’s genitals with his finger. Despite her concern about this alleged behaviour, the mother continued to allow GM contact with the children. She states that she found it difficult to say no to him and still had feelings for him. The father has played no part in these proceedings. There has been no oral evidence about this matter and I am not in a position to make a finding about whether he did behave in a sexually inappropriate way towards J. I find however that the mother, knowing of the allegation that the father had behaved in that way, failed to protect J from further contact with him.

 

  1. Taken together, these findings about the mother’s treatment amount to serious and chronic neglect at a time when she was receiving considerable support through Social Services, as well as from her own mother, DA, and from friends and neighbours. Miss Davis and Miss Dewhurst, on behalf of the local authority, have rightly taken the view that it would be disproportionate to conduct an enquiry into each and every allegation about which there is documentary evidence that the mother was unable to cope, but I have heard enough to reach a clear conclusion. I conclude that this mother was simply unable to cope with the demands for caring for her children.

But on the major allegations, that the two children had been smothered (even in the context of those findings that the mother was unable to cope), the Judge did not agree that this was proven.

There were several clinical features which the experts explored . This is the passage of the judgment specifically on the expert evidence as to whether there was evidence of smothering (as opposed to any other possible cause of death)

Evidence of smothering

    1. So far as B is concerned, Dr Cartlidge found no evidence of any general health problems, nor any developmental problems. B was a previously healthy child who died suddenly and unexpectedly at the age of four and a half. Dr Cartlidge described this as “very unusual.” J died suddenly and unexpectedly, aged 28 months. Dr Cartlidge described this also as “very unusual.”

 

    1. Dr. Cartlidge considered that the evidence of a possible intentional airway obstruction in B’s case included: the fact that B was a healthy child; the fact that he had been well no more than half an hour before his collapse; the fact that he had collapsed suddenly without explanation; and the fact that his brother, J, had also collapsed and died suddenly without explanation. On the basis (which I have rejected above), that the petechiae were present on B on arrival at hospital, Dr Cartlidge concluded that they were consistent with, rather than diagnostic of asphyxiation, but stressed that his conclusion did not turn on the presence of the petechiae. Dr Cartlidge concluded that it is most likely that B died unnaturally and “smothering is probable.” He added, however, that “the medical evidence for smothering is not specific and relies quite heavily on the exclusion of other causes and an assessment of the case as a whole.”

 

    1. So far as J is concerned, again Dr Cartlidge found no evidence of any general health problems, nor any developmental problems. Like his brother, J was a previously healthy child who died suddenly and unexpectedly, in his case at the age of 28 months. Once again Dr Cartlidge described this as “very unusual.”

 

    1. Dr Cartlidge considered J’s earlier hospital admissions on two occasions to be significant. On 1st January, J had been well when he went to bed, but two hours later found unresponsive and jerky, with blue hands, feet and face. On admission to hospital some 50 minutes later, he was fully conscious and afebrile, but with petechiae over his chest and upper neck. In Dr Cartlidge’s opinion, this episode considered in isolation would support a diagnosis of a fit, although he noted that the evidence of a fever was weak and the temperature taken in hospital over 37.9 degrees Celsius was not usually sufficient to trigger a febrile fit. So far as J’s second admission to hospital was concerned on 3rd January, Dr Cartlidge noted that once again J had been well or reasonably well at the time he went to bed. Several hours later, he was found pale with staring eyes and possibly twitching of his hands. On admission to hospital, J was found to be suffering from chicken pox, but was very energetic and afebrile. In those circumstances, Dr Cartlidge ruled out the possibility that he had suffered from chicken pox encephalitis on this occasion. Once again Dr Cartlidge considered that this episode, taken in isolation, would not be of significance. However, when considered in the light of the later events, he considers that the admissions to hospital on 1st and 3rd January were concerning. The events that are said to have taken place on those occasions were similar to later events in J’s and B’s lives that resulted in their deaths. However, J’s clinical features on both 1st and 3rd January were not typical of a cardiac arrhythmia. Dr Cartlidge thought that smothering could have caused the clinical features in J on both 1st and 3rd January, as well as those described in both children immediately prior to their deaths. He therefore concluded that smothering was a plausible explanation for J’s death, but added again that medical evidence of smothering “is not specific and relies quite heavily on the exclusion of other causes and the assessment of the case as a whole.”

 

    1. In his oral evidence, Dr Cartlidge said that in his clinical practice he had only come across two cases of children of this age dying without any known cause. He had no experience of two children from the same family dying in such circumstances and he was unaware of any epidemiological study of childhood deaths involving this age group. He was asked to consider a paper produced by counsel for the mother entitled, “Smothering children older than one year of age, diagnostic significance of morphological findings,” by Banaschak and Others (2003) published by Forensic Science International. This paper led Dr Cartlidge to reflect on how B, at the age of four and a half, would have been expected to struggle quite vigorously if an attempt was made to smother him. Cross-examined by Miss Judd, he acknowledged that it was more surprising that there were no marks on the four-year-old child.

 

    1. In his oral evidence, Dr White said that the presence of physical signs of smothering would depend on the size and strength of the victim, the size and strength of the assailant and the method by which smothering was inflicted. In the case of child victims, the older the child, the more likely he or she was to struggle and the greater the likelihood of physical signs. Dr White considered that it was possible that B would have scratched himself in an attempt to prevent suffocation, but the fact that there were no scratch marks observed on B did not rule out suffocation as an explanation.

 

    1. In passing, I remind myself that Dr White noted two small marks, bruises, on the top of B’s head during his post-mortem examination. He did not, however, suggest that they were indicative of a physical assault. The local authority did not ask the mother about these bruises, nor did they feature at all in the local authority’s case.

 

    1. The striking picture provided by the consultant in emergency care, Dr Beardsall, was that B looked like he was sleeping, rather than suffering a life-threatening event.

 

  1. Having found, as explained above, that the petechiae on B’s face were not present when he was admitted to hospital, I conclude that there is no clinical evidence of asphyxiation other than the fact that two children died suddenly with cardiac failure, for which no cause had been identified.

So, the Judge concluded that although the deaths had unusual features, there was not clinical evidence to show that they had been asphyxiated, other than that the deaths had no identified cause.  He reminded himself of the other evidence, the number of genetic factors that were particular to this family and the mother’s evidence (particularly that her emphatic denials were convincing) and that whilst he had found her culpable of neglect such that the threshold was made out, there was still a marked difference between that neglect and deliberate murder of two children.

    1. Miss Judd rightly points out that, whilst the various experts have pointed to the lack of evidence of any disease or condition that could have caused the death of either J or B, there is equally no evidence of smothering. She submits that it is no more likely that this mother smothered each child without leaving any signs, than that the child died of an unknown, probably as yet unrecognised, cardiac cause.

 

    1. This mother has a variety of conditions which are likely to be genetic in origin. Dr Newbury-Ecob accepted that the new variant found in the KCNH2 gene, whilst not a cause of LQTS, might lead to a susceptibility or risk of arrhythmia in the presence of other factors, either genetic or environmental and might be associated with his death in some unknown way. Dr Martin noted that “there are quite possibly a whole host of genetic conditions we know nothing about.” The clear impression from his evidence is that the genetic understanding of cardiac disorders is still evolving.

 

    1. I recall again the observations of Judge LJ in Canningsquoted above, in particular that “where there are one, two or even three deaths, the exclusion of currently known natural causes of infant death does not establish that the death or deaths resulted from the deliberate infliction of harm” and that “a great deal about death in infancy and its causes remain as yet unknown and undiscovered.” I also have in mind the observation of Butler-Sloss P in Re U, Re B cited above: “The cause of an injury or episode that cannot be scientifically explained remains equivocal. Recurrence in itself is not prohibitive. The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research would throw light into corners that are at present dark.” Finally, I remember the wise words of Hedley J in Re R, also quoted above: “there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown …. a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury, merely from the absence of any other understood mechanism.”

 

    1. I have given extremely careful attention to the opinions of all the experts and Dr Cartlidge in particular. I acknowledge that there is a significant possibility that this mother was responsible for the deaths of the boys and my mind has fluctuated during the course of this hearing and in my subsequent deliberations. There may be in due course other evidence that bears upon this issue. Having considered all the evidence put before me, however, I find that the local authority has not proved on a balance of probabilities that this mother smothered either J or B.

 

  1. The consequence of my finding is that, for the purposes of these proceedings, the court and the parties will proceed on the basis that the mother did not smother the boys. For the reasons explained above, however, I have found that the mother was responsible for significant acts of neglect of all the children and on that basis the threshold conditions under Section 31 of the Children Act are satisfied.

This body of caselaw may very well be a watershed moment in care proceedings, where the Courts began taking a stance that the presentation of the parents in evidence can be as pivotal as the seemingly damning medical evidence laid against them, and that mere lack of an alternative plausible explanation than non-accidental injury does not necessarily equate to NAI.  It is liable to lead to the job of Local Authorities in such complex medical cases to be more akin to marshalling and testing the evidence rather than the quasi-prosecutor role that traditionally accompanies trying to prove threshold at a finding of fact hearing.  It is also liable to make senior figures in Local Authorities very nervous about fact finding hearings where the outcomes are now so hard to predict, and the costs so vast.

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A County Council v M and F 2011

Posted on May 4, 2012 by suesspiciousminds

Although judgment was given in this case in 2011, following a finding of fact hearing in the summer of that year, the judgment has only recently been published. I would preface all of this by saying that the case, and this blog will deal with injuries to a young child which resulted in the child’s death, and it is quite likely that some readers might find this blog entry distressing and upsetting.  I don’t want anyone to read this without having that in mind.

I am likely to want to return to this and blog on it in more detail, as the judgment is significant, and very detailed. Mr Justice Mostyn conducted the finding of fact hearing, and the structure and methodology with which the Judge deals with the judgment is exceptional.  It would be worth reading in its entireity

http://www.bailii.org/ew/cases/EWHC/Fam/2011/1804.html

Much like the recent case involving subdural haematomas, which I have already blogged about, this case involved the Court being asked to make a binary choice about whether a child in question was killed by his parents, or whether there was an accidental/organic explanation. It is the most serious type of finding of fact hearing which can ever occur.  The parents have either suffered the tragic loss of a child through organic reasons, or perhaps by an action which they could not have suspected would lead to harm and are safe around other children, or they have killed a child and concealed this and lied about it throughout a family court finding of fact exercise. There is either no risk at all, or a very high risk.

As indicated earlier, I think any reader who has an interest in finding of fact cases should read the entire judgment, as the entire thought processes, the analysis of the medical and other evidence and the law as it relates to each discrete point is mapped out with extreme care and skill by the Judge (notwithstanding that my gut reaction is one of some disquiet)

The child in question suffered injuries and died during attempts to resuscitate him. The parents explanation was that the father, a cyclist, had a small trailer or bike buggy which went behind his bicycle, which the child would sit in, and that whilst riding the bicycle at speed,the child may have suffered injuries as a result of going over bumps in the road, bouncing over tree roots and stones. There obviously questions about whether any of the injuries to the child could have been sustained during the resuscitative process.   (There is substantially more to the parental defence than this, and obviously if I could reduce the complexity of the case down to a page, it would not have taken 20 days of High Court time, nor required 13 bundles of evidence, so I apologise for the fact that this summary is by its nature not thorough)

Here are the injuries identified on the child :-

RECENT INJURIES

Of the Head Neck

1. On the right side of the occiput, there was a scabbed abrasion 1 mm in diameter.

2. On the right forehead, 45mm above the outer angle of the right eyebrow, there was a purple bruise 4mm in diameter.

3. A similar bruise was present approximately 45mm above the outer canthus of the left eyebrow.

4. There were two purple bruises on the outer aspect of the inferior margin of the left orbit measuring 5mm and 4mm.

5. There was scabbing of the posterior margin of the right nostril.

6. There was a recent tear of the frenulum of the upper lip which was associated with a little erythema but no significant haemorrhage.

7. There was a red mark 2mm in diameter posteriorily in the midline of the hard palate.

8. Within the upper helix of the right ear, there was a purple nodule 7mm in diameter which on sectioning showed a little haemorrhage.

9. There was a fluctuant swelling 25 x 20 x 7mm with overlying purple discoloration of the skin within the left upper pinna. Sectioning revealed an organising cystic haematoma containing some liquid blood.

10. There was a well circumscribed area of superficial haemorrhage in the middle lower left lip measuring 3 x 2mm in the midline.

Of the Right Upper Limb

11. There were two purple bruises on the ventral aspect of the lower right forearm just above the wrist measuring 3mm and 5 x 3mm.

12. There were scattered blue bruises up to 7mm over the dorsum of the right hand and over the back of the index, middle and ring fingers of the right hand

13. On the centre of the right palm and the palmar aspects of the index, middle and ring fingers, there were similar blue bruises up to 7mm in diameter.

14. There were scattered abrasions on the back of the index finger 3 x 2mm and overlying the proximal interphalangeal joint of the ring finger measuring up to 2mm.

15. There was a red/purple bruise over the metacarpophalangeal joint of the middle finger of the right hand measuring 10 x 5mm.

Of the Left Upper Limb

16. At the centre of the left palm, there were similar blue bruises up to 7mm in diameter with at the base of the index finger, there was a transverse apparently post-mortem skin split.

17. On the back of the left hand and on the back of the left index, middle and ring fingers, there were similar blue bruises up to 7mm.

18. Over the metacarpophalangeal joint of the middle finger, there were small scabbed abrasions.

19. Over the proximal interphalangeal joint of the ring finger, there was an abrasion up to 2mm in diameter.

20. An abrasion 2mm in diameter was present over the proximal phalanx of the index finger.

21. There was a red mark on the proximal phalanx of the index finger.

22. There were two purple/brown bruises on the medial aspect of the left forearm measuring 12 x 9mm and 13 x 9mm separated by 10mm. The bruises showed yellowing at the edges.

Of the Lower Limbs

23. Over the 5th metatarsal of the left foot on the dorsal aspect, there was a purple bruise 5mm in diameter.

There was a great deal of consideration about the medical evidence. It appears to me that the Judicial conclusion is that speaking from a purely medical perspective, the medics are in agreement that the injuries were non-accidental in nature.

[It is worth noting  Justice Mostyn’s comments about the Guardian’s stance – I believe that similar reservations have recently been expressed by Lord Justice McFarlane, though I am still waiting to read the transcript on that authority.  I could not agree more with what Justice Mostyn says here]

The argument on behalf of the guardian of D and S2

    1. Ms D QC and Ms R represent the litigation guardian of D and S2, Ms S. In her written final submissions Ms D QC wrote:

 

“In this hearing the Children’s Guardian takes a neutral and objective position. It is not her role to argue for or against any of the other parties.

Ms S has had the benefit of hearing most although not all of the evidence throughout the hearing. She has had the benefit of the transcripts of the experts and medical witnesses provided. She was represented throughout. She has had the benefit of reading the documentary evidence filed and she has met with and had discussions with the parties. She has met the children. If the Court makes any findings against M or F the Children’s Guardian will be in a good position to consider and formulate her recommendations to the Court for the welfare of the children.

To that end the Children’s Guardian has considered the oral evidence heard, the written evidence submitted and the expert opinion received in the context of the LA’s Schedule of Findings.”

  1. I was surprised to read that. Given that the outcome of this hearing could have a most far-reaching effect on her clients D and S2 I would have thought that I would be offered at least a steer as to what findings I should make. But no, I was firmly told that this is not the practice, and with my slender experience of this kind of work I am not in a position to argue. That said, approaching the matter with an open mind uncluttered by years of experience of this kind of work I would have thought that at the very least the role of the Guardian and those representing her should be akin to Counsel to a Statutory Inquiry, assisting the court in exploring complex scientific evidence and making suggestions to the court as to what findings should properly and tenably be made. The practice of sitting with an assessor has fallen into disuse (notwithstanding that the procedure for appointing an assessor has recently been reiterated in FPR 2010 r25.14), and thus the role of the representative of the Guardian in a case such as this cannot be overstated.

Having heard all of the evidence, the Judge sets out how he proposes to deal with the decision, and sets out this framework

Conclusions

    1. The business of judging in this case is peculiarly difficult.

 

    1. Yet, if I accept Mr S’s submission that there is little, if any, scope for me to gainsay the histological evidence, which must lead me inexorably to find that in the early hours of the morning these parents, acting together, meted out the most extreme sadistic violence to S which involved thrashing his little hands and punching him in the face with sufficient force to snap his fraenulum.

 

    1. The same point is to be made in relation to the allegations in respect of S when the photograph at Exhibit 7 was taken. Standing alone all the allegations suffer from obvious evidential weaknesses, but when viewed through the prism of the histological evidence they present an altogether different image.
    1. But I do not believe that I should judge the histological evidence in isolation. It is part of a wider canvas. This is a recurrent theme from the authorities. I must weigh it against my assessment of the credibility of M and F and the (im)probability, judged from a non-scientific stance, that this ghastly event actually took place. So as regards the components of the evidence the court is, up to a point, in a chicken and egg situation.
    1. What I therefore propose to do is to make judicial observations on:

 

i) The credibility, character and personality of M and F.

ii) The use of generalised empirical statistical paediatric evidence.

iii) The use of photographic evidence.

iv) The reliability of ageing bruises by visual observation.

v) The reliability of the lay evidence from the neighbours.

vi) The histological evidence.

I shall then stand back and pull all the threads together and make my findings applying the law as I have set it out above.

Respectfully, this appears to me to be an entirely sensible and solid approach, taking into account all of the relevant matters and not taking into account anything that is not relevant.

What really appeared to trouble the Judge was that on the binary version of events, either the medics were right and these parents had inflicted horrific injuries on their child resulting in the child dying, and had concealed it and had faked a 999 call;  or the medics were not right and that the injuries were caused in a way that could not be medically explained but was not a deliberate or violent act.

    1. In judging the truthfulness of the parents as to the events of the night one has to reflect on the implausibility of what the LA seeks to prove. Although the LA did not explicitly challenge all the elements of the parents’ account as set out by me above, it should not be taken as accepting any of it, save where it is incontrovertible. Its case is that for the crucial period only M and F can say what actually happened, and they say that they should not be believed. However, stripped to its core elements the sequence that they posit is this:

 

i) At about 3 a.m. one of the parents inflicted extreme injury to S’s palms by repeatedly thrashing them in some way with some weapon. S was also punched in the face with such force that his fraenulum snapped. This would have caused S to suffer extreme pain, and he would have been screaming very loudly. The other parent, if not participating in this awful act, was present and complicit.

ii) D either heard all this, but never mentioned anything to anybody, or slept through the whole thing, even though her bedroom is next to S’s in a very compact area.

iii) None of the neighbours heard anything in this compact estate.

iv) At 7 a.m., as I have found, S died. Either one or both of the parents smothered him, or, by an extraordinary coincidence, he died a cot death.

v) At 8.50 a.m. M dialled 999 and seemingly in great distress told the emergency operator that her baby was dead in his cot.

  1. Obviously, improbable things do happen, but this sequence of events seems very unlikely. It is against this unlikelihood that I have to judge the truthfulness or falsity of the parents’ denials.

[The one element in this that I find problematic, or potentially problematic, is that of course it is very unlikely that parents would do such a thing, but one has to take into account that it becomes less unlikely when faced with a child who HAS those injuries. As the House of Lords considered in Re H and R and  Re B, it may well be inherently unlikely that a parent would abuse a child and the average parent would not, but the unlikeliness of it reduces if the Court is faced with a child who has been abused. I am as certain as anyone could be, however, that Justice Mostyn gave every facet of the case a great deal of care and attention, and it is likely that it is my reading here that is at fault]

His comments on the injuries to the palms show as much

The injuries to the palms, which are the most serious of all, and which can be regarded as a touchstone, are shrouded in mystery. The surface area of the palm of a seven month old infant is very small indeed. No-one, apart from Professor H has ever seen anything like these bruises. He has only seen them twice in people with bleeding disorders. Although Dr L posited that they might have been inflicted by a ruler or cane he admitted that their appearance did not really fit with that hypothesis. In argument I pressed Mr S to advance a likely mechanism but he just fell back on “repeated application of significant blunt force trauma” and declined to be drawn into specificity. So I am being asked to conclude that the parents inflicted with some mystery weapon, which no-one can visualise, repeated beatings on these tiny palms causing bruising the like of which none of these experts, Professor H aside, has ever seen before.

In summarising the medical evidence :-

    1. This evidence leads the four experts to conclude, as confidently as they can, that, by reference to the telos of this science as set out by me at para 40 above:

i) All of these injuries were caused in life and not after death;

ii) The injuries to the ears and knuckle were caused about 3 days before death; and

iii) The injuries to the palms and fraenulum were caused about 4 – 12 hours before death (most likely around 4 hours).

    1. In judging these powerful conclusions, at this stage without reference to the wider body of evidence I have sought to set out and comment on above, I would make the following general observations:

 

i) This science is forensically untested. The reason that I have not been given any medico-legal papers detailing the results of legal cases where responsibility for injuries has been found based on this science is because there have not been any, apparently anywhere.

ii) The science is based largely on research conducted on animals. There is almost no published scientific research in this field performed on humans, and none at all on babies. While it is said that the cellular and vascular features of all mammals are identical, this is mere assertion. I do not have any scientific evidence that tells me that neutrophil and macrophage migration is the same in mice, sheep, human adults and human infants.

iii) Biological science is not nearly as certain or predictable as the science of physics or the laws of mathematics. As Dr L accepted “we have biological systems and so therefore you cannot automatically assume that every one of us in this room will have exactly the same rate of accumulation of polymorphs at the site of inflammation – it doesn’t work that way, and there are other factors that may influence that”.

iv) Science is always moving on. Scientific certainties of a past age are often proved conclusively wrong by later generations. In an address to the British Association for the Advancement of Science in 1900 Lord Kelvin, one of the greatest of all scientists, stated that “there is nothing new to be discovered in physics now. All that remains is more and more precise measurement” and in a 1902 newspaper interview he predicted that “no balloon and no aeroplane will ever be practically successful.”[5]. Thus the warning of the President in Re U, Re B at para 23(v) that “the judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark”.

And the final conclusions – I recommend reading these three or four times, to really let them soak in

My very final conclusions

    1. I conclude:

 

i) Based on my survey of the lay and psychological evidence it is extremely improbable that these parents have ever deliberately inflicted injury on either of these children. It is, however, possible. I do not accept the neighbours’ evidence as to observations of marks or bruises save as to the marks seen by N2 to the backs of S’s hands on the week-end before he died.

ii) However, I believe that injuries to S, were caused by F recklessly taking both children out in the buggy in disregard of plain safety warnings. M would have been complicit in this, up to a point. There was nothing malign in this. It was just stupidity born of an over-enthusiastic and over-energetic immaturity on the part of F, and, up to a point, M. Obviously, it must never happen again, and I do not believe that it ever will.

iii) Based on my survey of the scientific evidence it is extremely improbable that an innocent explanation for S’s injuries is furnished by the eventuation of those things mentioned above. It is, however, possible.

iv) The paediatric evidence from Professor S does not alter my conclusion in (i) above. Nor does the photographic evidence. It is consistent with my conclusion in (ii). The forensic evidence of FS does not alter my primary conclusion. There are perfectly innocent explanations for blood on the sheet, bib and grow-bag. We know that S suffered from nose-bleeds, that he had an erupting tooth, and had bleeding feet.

v) Although the orthodox histological evidence is powerful I am not prepared to rely on it to displace my conclusion in (i) above for the reasons set out by me above. I would venture to suggest that there needs to be consideration within the medico-legal community as to reliance on histological evidence such as this in the forensic process where there is such a dearth of research on humans, and, particularly, babies.

vi) I am not prepared to find that the parents neglected S in relation to his feet. They sought appropriate medical advice for what was certainly a fungal and possibly also a bacterial infection. It is clear to me that there had been a significant postmortem degeneration in S’s feet by the time the photographs of them were taken at the autopsy.

    1. I am therefore left with two improbable explanations namely that S was brutalised and murdered by his parents; alternatively, that he suffered a sequence of pathologically unlikely events that gave rise to his injuries and overwhelmed him. This is a Popi M case. Just as the decision of the House of Lords left no-one knowing why the vessel plunged to the bottom of the Mediterranean Sea, so we are left here with no explanations for the injuries and death of S, other than those I believe were caused in the bike buggy. This is one of those very rare cases where the burden of proof comes (as Baroness Hale put it) to my rescue and so the parents are entitled to the return of Lord Hoffmann’s value of zero, namely that they will be treated in law as if they did not deliberately inflict violence on and to these children.

 

    1. This is not to say that there is not the possibility, even the real possibility (to use the language of Lord Nicholls in Re H and R when discussing the test under the second limb of s31(2) Children Act 1989), that these parents did indeed so grossly mistreat their children. But a suspicion or a risk is not enough on a fact-finding hearing, as the House of Lords so emphatically confirmed in Re B.

 

  1. I appreciate that the parents, and indeed the LA, want definite answers and I am sorry not to be able to supply them. I am only prepared to find on the 51% balance of probability test, having surveyed all the evidence holistically as the authorities mandate I must do, that I am not satisfied that these parents deliberately abused their children (as opposed to treating them recklessly in the buggy), or neglected or murdered S. Thus far I am prepared to go, but no farther.

That is as close as I think one will ever come to seeing a Judge accept that there are limitations to what even the most exhaustive consideration of the situation, with the assistance of extremely able counsel and experts drawn from a range of disciplines can achieve. This was one of those cases where the Court simply has to say that it is impossible to say what happened – whether the medics are right and a child was effectively violently assaulted and died as a result, or whether there is some other cause for the injuries which exonerates the parents. Being unable to decide, the Judge went back to first principles – the balance of proof falls on the LA, and as they could not prove that the parents HAD deliberately abused their children or neglected or murdered one of them, he had to find that they HAD NOT done so  (the test being binary now – mere suspicion falls away – if it is not proved that a person did X following a finding of fact hearing, then it is proved that a person did NOT do X in the eyes of the law)

Read it again – the Judge is essentially saying that both possible versions – the deliberate harm and the accidental explanation are both highly improbable, but not impossible. He is unable, on that basis, to find that either is more likely than not to have happened, and as a consequence, has to resort to the burden of proof to resolve matters. I can’t ever recall seeing a judgment like this – we bandy around the phrase ‘finely balanced’ all the time (and often use it as a substitute for  ‘arguable’  or ‘with some merit’  or ‘not utterly hopeless’, but this really is the finely balanced case.

As I hope I’ve made plain throughout, whilst this conclusion left me very uneasy, I have nothing but admiration for the careful, logical, structured, considered and exhaustive way in which the Judge tackled this exercise. But it does leave huge question marks for the future of really serious injury cases.  There has been a tendency over recent years (and this may well be right considering how badly we now know that cases like Cannings were approached in terms of accepting medical assertions that have since fallen away) to question the medical opinion; not just as to the confidence of diagnosis and differential diagnosis, but that additional step of ‘what you say is consistent with what you currently believe, but it may not always be the case and in time to come, we may find that this medical opinion as to causation of injuries is wrong’

I don’t know what the answer is here  –  a Court choosing between two (or more) competing medical hypotheses each supported by a medical report is a tough situation and perhaps not the best way for a medical controversy to be resolved  (scientific fact isn’t resolved by cross-examination but by science and testing and Poppers falsifiability principles )  but a Court being driven to speculate about the current boundaries of what science believes to be the case is even more difficult.

A fascinating case, which must have been immensely emotionally draining for all concerned.

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