AND that there be liberty to apply for variation or discharge of this Order to the High Court.IN THE MATTER OF LB (A CHILD)
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (FAMILY DIVISION)
The Hon Mrs Justice Bracewell
Strand, London, WC2A 2LL
B e f o r e :
| THE PRESIDENT LORD JUSTICE THORPE
and LORD JUSTICE MANTELL
(1) LU (A Child)
(2) LB (A Child)
Mr Andrew McFarlane QC and Mr Christopher Gibbons (instructed by Mushtaq and Co.) for the Appellant
Miss Glenda Vencatachellum (instructed by Pye-Smiths) for the father.
Miss Judith Rowe QC and Miss Sally Stone (instructed by the Respondent Local Authority)
Miss Margaret Hodgson for the Child by her Guardian ad Litem
Mr Stephen Cobb QC (instructed by Harman and Harman) for the Appellant
Mr Charles Howard QC and Ms Sarah O'Connor (instructed by the Respondent Local Authority)
Miss Eleanor Grey and Miss Janet Waddicor (instructed by the Department for Education and Skills) as Intervenor in both cases.
Hearing dates : 3rd/4th March 2004
Crown Copyright ©
Dame Elizabeth Butler-Sloss, P:
The standard of proof in civil family cases
"Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle. There are exceptions such as contempt of court applications, but I can see no reason for thinking that family proceedings are, or should be, an exception. By family proceedings I mean proceedings so described in the Act of 1989, sections 105 and 8(3). Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise very serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J. expressed this neatly in In re Dellow's Will Trusts (1964) 1 W.L.R. 451, 455: "The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it."
This substantially accords with the approach adopted in authorities such as the well known judgment of Morris L.J. in Hornal v. Neuberger Products Ltd. (1957) 1 Q.B. 247, 266: This approach also provides a means by which the balance of probability standard can accommodate one's instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters."
"that the person is a sex offender;" and
in subsection (1)(b)
"that the person has acted, since the relevant date, in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him,"
then the chief officer may apply for an order under the section.
"In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrates' court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In deciding whether the condition in section 2(1)(b) is fulfilled the magistrates' court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them."
"Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: In re H (Minors)(Sexual Abuse: Standard of Proof)  AC 563, 586D-H per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But, in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard."
"…Although the result is much the same, this [the cogency requirement] does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred."
So it may very well be that, in looking at these more recent dicta, one is (as Miss Ball put it) somewhat 'dancing on the head of a pin'; and no counsel has gone so far as to submit to me that, in a serious case such as this, it is now the criminal standard which should in terms be directly applied.
I therefore propose, in applying the civil standard and the re H (Minors)(Sexual Abuse: Standard of Proof)  AC 563…cogency test here, to have well in mind the dicta in the latter two cases just cited. So, whenever in this judgment I 'find' something occurred, or expressed myself 'satisfied' or 'persuaded' of some fact or other, it is in the light of the authorities which I have just been discussing and on the basis that, in this very serious case, the difference between the civil and the criminal standards of proof is 'largely illusory'."
Conclusions on the standard of proof
The Impact of the Judgment in R v Cannings on Children Act Proceedings
"…If after full investigation, the deaths or ALTEs, continued to be unexplained, and there was nothing to demonstrate that one or other incident had resulted from the deliberate infliction of harm, so far as the criminal process was concerned, the deaths continued properly to be regarded as SIDS, or more accurately, could not properly be treated as resulting from unlawful violence."
i) The importance of extraneous evidence, particularly where the expert medical evidence is not unanimous.
ii) The danger of interpreting the mother's behaviour as corroborative of guilt, when it may equally be construed as consistent with anxiety and distress.
iii) Nothing is proved by the adage that 'lightning does not strike thrice in the same place'. The absence of an acceptable alternative explanation does not establish an unnatural cause.
iv) The frontiers of medical science are always expanding. A natural cause at present unrecognised may emerge in the foreseeable future. The exclusion of causes known to medicine does not therefore justify a finding of abuse.
a) The 'lightning does not strike three times in the same place approach', coupled with the building of a case on statistics.
b) The absence of a satisfactory alternative explanation does not prove deliberate infliction.
c) Where experts testify at the frontiers of scientific knowledge, and particularly where they disagree in such areas, absent cogent extraneous evidence, causation must remain unknown.
a. The need to recognise the limits of medical certainty.
b. The dangers of an over-dogmatic approach.
c. The recurrence of medically inexplicable events does not, on its own, entitle the Court to assume a sinister cause.
d. Particular care is required in cases involving a serious disagreement between medical experts. If a body of expert opinion allows that natural cause cannot be excluded as a reasonable possibility, particular caution is required.
e. In care proceedings surrounding evidence of families' circumstances is likely to be as abundant and as probative as medical opinion. The requirements for cogent evidence may be satisfied by a combination of the medical evidence and the extraneous evidence.
Conclusions on effect of R v Cannings on family proceedings
i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.
ii) Recurrence is not in itself probative.
iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause.
iv) The Court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.
v) 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.
"(a) That the child concerned is suffering, or is likely to suffer, significant harm; and
(b) That the harm, or likelihood of harm, is attributable to –
the care given to the child or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him;" see Section 31 (2) of the Children Act 1989.
The background in the case of LU
The Medical Findings
"Drawing together the strands of the medical evidence, no natural explanation has been put forward as a likely explanation of [LU's] admission to hospital and the most likely explanation is that of suffocation.
I find that, on the medical evidence, [LU's] presentation is most likely to be as a result of smothering."
The Non-Medical Findings
"Although the medical evidence is of very great importance, it is not the only evidence in the case. Explanations given by carers and observers and the credibility of those involved with the child are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form a clear and convincing picture of what happened and whether section 31 is satisfied."
"If reliable, the evidence of the four members of the family is extremely damaging to the mother's case because the evidence is of an observed illness for which there is no medical explanation."
"There are many positives to be taken into account in relation to mother. She loves her daughter, she is attached to her, she is able to comfort her. No criticism has been made of the quality of care and there is no hint of any neglect of her daily needs. ….But it does appear to me that father, by reason of his inexperience of parenting, has failed to spot the signs of stress, and he has underestimated just how difficult and challenging was the mother's position. He failed to recognise her lack of ability and her lack of confidence as a parent.
In conclusion, I find that the combination of medical evidence, the lack of credibility of the mother and the stresses to which she was subject all compel me to a finding that, to the standard of proof envisaged by H and R, this mother has on four occasions between 5th August and 13th October deliberately obstructed the upper airway of [LU] thereby causing her harm which involved hospital admissions and invasive investigation."
The Medical Evidence
"The original referral to Social Work was not made by myself although I concur with the reasoning. The basis for the referral is that although there could be a medical cause for these 4 presentations of not breathing, such a number of presentations without medical cause found makes it more likely that there may well be a non-medical cause for these and investigation for non-medical causes is as important, if not more important, than any medical investigation at this point."
"In 4.1, Dr.[D] has stated that the medical evidence supports the diagnosis of induced illness in the form of imposed upper airways obstruction. It is my opinion that this explanation of L's problems is the most likely and it is hard to think of medical reasons for the reported problems, although, children with laryngomalacia and gastro-esophageal reflux, (the two frequently go together), can have similar events without their being interval signs of upper airway stridor or recognisable vomiting."
"Q – How much notice would you have taken of the earlier episode which occurred on the 5th August?
A – A lot, because as we said it is unusual to repeat these things. We are all used to seeing 'one-offs' and we could entertain two, but when we get a second one, in this situation, you're working the statistics out. Also if you get a different presentation, but still within the well-described area of parents causing problems, you take a lot more notice. So I think people did. . . . One's grappling with all of those things but the second episode on top of the first one is very important. It is the start of what is the cumulative effect."
"It could be an innocent cause in the sense that we see children with this story the first time they come in, the only time they come in generally. It is not unusual and we do not know what causes it and they don't do it again. That's what I meant by innocent. We don't know but it's a one-off.
We come back to this thing of adding things up statistically. I think we are going to come back to this statistic of one plus one, plus one, plus one, plus one."
"Q – Clearly, Dr. R, you can only speak from your experience, but can you give us any idea of how often you have seen, starting with two presentations to hospital, similar to [LU]?
A – Starting with a group that presents in that kind of way with a first episode, I would feel that it is certainly much less than one in twenty of those children that have anything similar subsequently.
Q – So 5% the second time. What about third or a fourth time?
A – Well, I said less than 5%.
Q – I am sorry. So that is less than 5%, and I go on to say what about a third and fourth time?
A – It is to some extent guesswork because we don't have the data. We don't have the data because, I think, it doesn't seem to happen. I suppose in that situation figures as guesses may be meaningless and it may mislead the Court if I were to guess in that kind of way."
"Q – We each perhaps know from our own experience of life that coincidences do occur. Why could there not be a concentration of different explanations such as have been mooted in this case for [LU]'s admissions?
A – There could be. If we knew the specific cause of each presentation or type of presentation and you knew how frequently those things occur, one statistically can work it out by multiplying one by the other and coming out with a very large denominator of one in such a big number. So we could do that but we addressed ourselves to the balance of probabilities rather than the rare statistical chance."
"The significance as part of an evolving pattern of events is obviously far more important as will be seen."
"Of course any child can have a single seizure without necessarily having corroborating features, but in isolation this episode is unusual and as part of a pattern of events it takes on great significance."
a) "I agree. The presence of the three other episodes changes the probabilities in relation to the one. We cannot look at them individually. It is like a child who has four linear bruises on their face. You cannot look for four different explanation for each linear bruise because four of them together add up to a hand mark."
b) "As part of an evolving pattern, I would say it was very worrying."
c) "It is possible that children can have episodes like this for no identifiable reason. It is entirely possible that you could take any episode individually. It is the accumulating pattern which makes the diagnosis. No one episode is diagnostic. . . . In probability terms, the whole history is more likely to be seen in fabricated rather than natural illness."
d) "You have to look at the collective probabilities. You have to look at the fact that each event alters the probability of all the others being due to abuse. It is the probability overall which is what has to be looked at."
e) "This is the reason that we have got to look at the whole thing as a sequence and as a pattern of events. The situation on a statistical argument would mean that any one piece of information could not be diagnostic. It is the sequence of events."
"That is correct. The probability tilts very much towards it being child abuse."
"That is right. The history being a crucial part of that. But I agree with the inference to the question, there is no specific laboratory test or x-ray or anything like that one can do."
"many infants presenting with an isolated, brief apnoea will be found to be healthy on clinical examination and no cause will be elicited." However, having considered the relevant features he stated "although potentially plausible medical explanations could be advanced for some individual episodes, there is no single explanation that unites all the features of each of the four separate presentations of this child . . . therefore, having considered the medical evidence in this case, I have formed the opinion that, on the balance of probabilities, imposed airway obstruction is the most likely explanation for the symptoms and presenting features described."
a) "It is more likely in my view that there is a common thread that explains these than there is a separate medical explanation for every single one of these events. So if you take them all individually we get a picture that I think is the wrong way to look at it – that is my view."
b) "You could advance the case that reflux caused all the episodes and was silent in between . . . on the balance of probabilities it is fairly unusual for reflux to be present in this way. On four occasions with such severe apparent effects on the baby with absolutely nothing in between, when one has a fit, healthy and well-fed infant, this makes it less probable but not improbable."
c) "It goes to what Dr. R has said about when the probability shifts so that the future events do not alter it a great deal. The probability in my view becomes high after the second event and it stays high in this case."
"I am not convinced from Dr. D's report and my re-reading of the medical records that [LU]'s episodes were due to imposed upper airway obstruction. Although it is the most likely explanation, I think there is enough doubt as to make us proceed with caution in determining the outcome care for this child and family, as well as other consequences that might follow."
"I agree with that. I am not sure if the question implies that if there is a medical cause mark it down and if there isn't a medical cause then don't. There is a third way – i.e. that as doctors we can find no explanation in our experience or learning background."
"Q – During the course of the experts' meeting there were times – correct me if I'm wrong – where you appeared to display some underlying unease that the nature of the overall opinion being expressed of upper airway obstruction being the explanation for these four admissions. First of all is that right? Is there in fact a sense of unease that you feel in relation to this diagnosis or opinion and, secondly, if that is the case, why?
A – No, I don't think there's any unease with regards my position with respect to the summary opinion / diagnosis, no unease at all. Whenever you get a group of individuals – doctors are no different than anybody else – in a room, even if they hold the same views that are based on good information they will still have a difference in emphasis. I think that was just what was displayed but it didn't alter the summary of opinion in any way."
"I have come to this conclusion with full regard to High Court rulings that took the view that allegations of more serious abuse, being inherently less probable, should be supported by more compelling evidence than usual. I am satisfied in this case that the probability of induced illness is much greater than the probability of some as yet unrecognised natural illness or innocent environmental factor, both of which I think can be discounted in any practical sense."
"Q – Am I right, Doctor, what you are saying is with a normal child, a child who isn't poorly, it would be highly unusual to get four presentations but it is not highly unusual to get four presentations in a child who might have suffered from some obstruction to their respiratory?
A – That is correct. The probability tilts very much towards it being child abuse. Without droning on too much, if I can just draw a parallel with the issue about two cot deaths which is very widely discussed in the media at the moment and the use of statistics. Now, I am not a great fan of statistics in those cases because if you have two cot deaths then the probability of that happening is small but also the probability of abuse is small. We do know that if you have two cot deaths, the relative probability between that being natural causes or abuse is roughly 50:50. It is not a huge difference in gradient.
Here we have a baby with four presentations with apparently life-threatening events, no medical diagnosis, who is well in hospital, events had occurred to one person and all the other features I have listed in my report. The probability is far, far to the right of 50 per cent; it is very typical of imposed airway obstruction"
"As we have all said and we agreed in the experts' meeting, the diagnosis is based on the pattern of events over time and not on any one incident. We have all agreed that you can take any one snippet of information out of this and find an innocent explanation for it. The overall pattern remains, that this is unlikely to be the result of unexplained natural disease and far more likely to be the result of child abuse."
"As I said earlier, the diagnostic process is detailed history, examination and physical signs. I would say this is not simply a diagnosis of exclusion: there are clear features here to support the diagnosis of fabricated or induced illness."
"Yes, it is very difficult to construct any hypothesis, one natural disease explaining all four episodes. You would probably have to look for two or three different kinds of natural disease, all of them self-limiting to account for the different episodes, and medically that falls into the realms of being quite far-fetched."
"Although potentially plausible medical explanations could be advanced for some individual episodes, there is no single explanation that unites all the features of each of the four separate presentations of this child."
"Therefore, having considered the medical evidence in this case, I have formed the opinion that, on the balance of probabilities, imposed airway obstruction is the most likely explanation for the symptoms and presenting features described. This does not preclude the possibility that an unsuspected disease may present itself at a later stage but I have formed my opinion on the basis of currently available evidence."
"How could the presentations observed been induced deliberately? What actions would have been required of the perpetrator over what period of time?"
"Well the common fact is that the episodes could have been induced by obstructing the child's airway, so that she was going blue. This could have accounted for all of the presentations. This may be so even though they may differ mechanistically."
Q –"Would it be fair – and correct me if I am wrong about this – you have looked at the whole picture of all four admissions and then gone back and considered each one as well?"
A – "I think that is fair. Part of that process is to look at the possibilities that were considered by the medical team caring for [LU] at the time and to consider whether or not there may be some other possible explanation for these events that was or was not considered in those possibilities. Therefore it is important to consider each one in its turn but also to put it into the context of the subsequent events.
So indeed you are quite right that we have to look at each one in its turn. But also, more importantly, in trying to reach an explanation for these events, we have to consider them in the context of there having been other events which were more or less similar to the first."
"So as a clinician there is no doubt that one has to take each event on its merits and try to formulate some sort of idea of what might have caused that specific presentation. However, when one is reviewing a case like this, one has to then put these into context. So, as I was saying before, the probabilities may change as time goes by. I have the advantage of being able to see all four events whereas the doctor seeing the second event did not have that advantage. So the interpretation that we put on that particular event will naturally vary by our experience of subsequent events."
"So I think we have to acknowledge that there are instances where despite intensive investigation there may be underlying pathological disorders that are not brought to light. That is why I made my concluding statement that I could not discount the possibility that something of that nature may present itself at a later stage. But again, as I stated, it is really in medical terms trying to look at a balance of probabilities between various potential explanations for a sequence of events."
Q – "So far as the primary basis of your opinion is concerned, it appears to be that, in the absence of a medical unifying explanation, you are reluctant to look at, in terms of probability, a combination of different medical explanations of these presentations?"
A – "I wouldn't use the term reluctance. I have very carefully considered all the possible explanations I can think of and have reached a hierarchy of probabilities based on my experience, my reading of the medical literature and my reading of the case."
"Differential diagnosis is the method by which the clinician considers the possible causes of a patient's clinical findings before making a final diagnosis."
The Additional Evidence
The Expert appraisal of the additional evidence
A proportion of the reported deaths appear to have occurred several decades ago when infant mortality rates in the country in question were as high as one in seventeen. Therefore the number of reported infant deaths does not appear significantly greater than the norm for that country.
Infant deaths are reported to have occurred in unrelated arms of the extended family, reducing the likelihood of a unifying hypothesis of a genetic condition.
The Non-Medical Evidence
The background to the case of LB.
"It seems to me that it is entirely inappropriate to try to shoehorn the mother into a particular syndrome instead of ascertaining what actually happened. The question to be addressed is not: "Does mother fit any definition?" but instead: "Has the local authority proved that the mother deliberately injured her child?" I do not find labels helpful at this stage of the inquiry in determining the crucial issues. Thus the relevance of mother's previous history of self-harming and depression is not in respect of any issue of labelling but is to credibility and the history of her commitment to her child."
The medical findings
The non-medical findings
"I find that these recurrent and genuine illness of [LB], combined with mother's recurring depression, were not a happy combination."
"At this time I am satisfied that there was a real rejection of [LB] by mother, which was unobserved by Dr B, who thought that the relationship was good at this time."
"It seems she is still able to be angry and take advantage. She continues to baffle me."
The credibility of the mother
"Mother is undoubtedly a skilled and persistent liar, who over the years has sought to and succeeded in conning doctors, teachers and family in respect of illnesses which she claimed to be genuine but which were self –induced. She has wasted hospital resources and submitted to procedures she knew were unnecessary…
The lies led to significant admissions to hospital with extensive tests…
In effect, at this time [1987-1988] her whole life revolved round a deceit. It is significant that the professionals have found her plausible and sensible until the truth was discovered and she was unmasked.
The truth was that she was attracting attention by manufacturing symptoms and complaining when she was not believed and when she protested her genuineness."
" However, I am satisfied that the extent to which mother admits anything depends upon her own perception of the best presentation of her case. She cannot any longer deny the self-harm, because it is well documented, but I find she did lie to the social services team manager, and to Mr S, the social worker, when she denied using a knife to cut her forearms.
I find mother does manipulate events in order to get what she wants."
"I find mother an unimpressive witness who did not tell the truth about many aspects."
Opportunity and knowledge
"I find that it was very much part of her agenda to show that [LB's] problem was organic as opposed to neglect."
"To summarise the factors which cause me to reach my conclusions that to the appropriate standard and burden of proof the local authority have demonstrated that mother deliberately interfered with the cannula of [LB], I find the following factors.
1. On several occasions [LB]failed to thrive in the care of mother for non-organic reasons, and was neglected by insufficient food intake and attention when, in contrast, she thrived in hospital. A telling description of [LB] at one of her stays in hospital is that of an anorexic waif.
2. The relationship between mother and [LB] before May 2001 showed not only a lack of bonding and resentment of the child, but indeed rejection of her.
3. Mother has a history of lying and deceiving others in respect of herself over a substantial period of time.
4. Mother's agenda to demonstrate [LB]was ill, to divert blame from herself and her tendency to exaggerate.
5. The absence of any rigors prior to the insertion of the cannula.
6. The presence of mother on the ward around the time of the rigors with opportunity and necessary knowledge how to interfere with and contaminate the cannula.
7. The frequency and severity of the rigors with no medical explanation to account for them naturally.
8. The absence of rigors at Great Ormond Street when no cannula was inserted.
9. The incidence of feeding diluted milk in April 2000, the attempt to get [LB]'s admission to hospital on April 15th 2000, the exaggeration of milk intolerance, the removal without permission of the cannula on October 1st 2001, and the reaction to events on May 25th 2002.
10. The evidence of [Mrs N].
11. The conclusion of Dr S and Dr. M that the most likely explanation for the rigors is deliberate interference with the cannula in the absence of any medical cause.
12. My findings of lack of credibility of mother and my rejections of her explanations.
In those circumstances, I find the threshold criteria are established to the appropriate standard of proof in the following respects.
1. [LB] suffered non-organic failure to thrive from birth until May 2001
2. Mother deliberately administered some unidentified infected substance to [LB], thereby causing the rigors which were potentially life threatening while [LB] was in hospital between September 25th and 1st October 2001. In consequence thereof, [LB] has suffered significant harm within the meaning of s.31 of the Children Act, and I find the threshold criteria are made out by the local authority."
The Medical Evidence
"All the doctors have found this a difficult, complex and puzzling case. Medically, [LB] is an unusual child, as agreed by all the experts. She has a chromosome abnormality. She is of dysmorphic appearance, with some deafness and delay in speech. She has a general development delay, a tongue-tie, a lesion on her palate and some webbed toes. She has had numerous episodes of chest infections, blepharitis, recurrent styes, otitis externa, otitis media, with oozing and pussy ears. She has suffered from skin rashes and infected spots which are not typical of eczema. She has had oral thrush, a suspected cow's milk intolerance, asthma, spiking temperatures and overnight sweats. Questions arise for determination whether at all, and if so to what extent, these pre-existing conditions can be or are relevant to the rigors suffered by [LB]."
"The evidence falls into three sections. 1, the differential diagnosis of [LB's] symptoms, which depends on the medical evidence; 2, the opportunity and knowledge of the mother to act as alleged by the local authority; 3, the credibility of mother."
"However, concentration on a very narrow area of expertise can sometimes render it difficult for the expert to see the whole picture. It is for that reason that I find Dr S is best placed to view the overall picture."
"I think it would knock my view in respect of imposed illness."
"did not inform as to the cause of the earlier rigors."
"The conclusions of the medical evidence considered in isolation from other areas of evidence are as follows:
1. All experts agree that infection is the most likely cause of the rigors.
2. All known natural conditions have been eliminated or are extremely unlikely in identifying the cause, despite very extensive investigations.
3. Dr S and Dr M opine that deliberate introduction of infection via the cannula is the most likely cause of the rigors but they cannot identify the substance.
4. The other experts cannot suggest any cause as more likely than any other and do not know what caused the rigors."
"the factors which cause me to reach my conclusions that to the appropriate standard and burden of proof the local authority have demonstrated that mother deliberately interfered with the cannula of [LB]."
(a) "All this is postulation, that is all that you can say about it. There is no clear objective evidence that faeces were injected, I was just postulating for the court on what mechanisms could be involved."
(b) "I think it marginally comes down on the situation that it is more likely than not that this was fabricated illness…there was never any evidence to show that the mother was seen to do anything, and that is important because in most of the cases I have dealt with there has been that evidence."
"I do accept that there was that inherent problem with my proposition that this was faecal".
"theory causes problems…all the theories leave cause for doubt."
"no cause for this very serious illness was determined."
"So it comes back to my major point, that again I think I have said right the way along that it doesn't fit neatly with a bacterial infection, it doesn't fit neatly with a viral infection, it doesn't fit neatly with a drug, it doesn't fit neatly with injecting material."
"None of it quite fits together with any one story".
"It doesn't quite fit neatly with anything".
"I don't think it fits well with anything".
"I wouldn't argue with Dr K …as I have said in my evidence in chief, I don't have personal experience in dealing with those cases."
"(iv) Evidence of propensity or psychiatric or psychological assessment of one of the parties is unlikely to be of any assistance in resolving a purely factual issue. There will in any event be before the court evidence from the Local Authority and the parents relating to the history of the case and the backgrounds of each of the parents. A psychologist or psychiatrist instructed to undertake an assessment of a parent for the first stage of a split hearing is unlikely to have a complete knowledge of the facts.
(vi) Furthermore, such a witness may, as here, express opinions as to propensity or as to responsibility for a child's injuries which are both prejudicial and wrong. The assessment of adult credibility as to the responsibility for a child's injuries (often the critical factual issue) remains the function of the judge. In my judgment, therefore, a psychiatric or psychological assessment of the parties should not be permitted at the first stage of a split trial unless the particular facts of the case demonstrate that such evidence is or is likely to be directly relevant to the factual issue to be tried."
The Non-Medical Evidence