IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: A & B (CHILDREN)
B e f o r e :
|Re: A & B (Children)|
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Counsel for the Mother: Ms F
Counsel for the Father Ms H and Ms J
Counsel for the Guardian/Children: Ms Z
Crown Copyright ©
"It therefore cannot be said that the threshold criteria are met on the basis that the children were suffering significant harm as a result of neglect at the relevant date. The proper evidential basis for crossing the threshold is that, on the basis of past neglect there was, on the relevant date, 31st March 2013, a likelihood, in the sense of a real possibility, that they might do so."
The threshold is, indeed, crossed. I will return to consider further matters of law which are to be applied in respect of K's death and injuries at a later stage.
(a) Missed health appointments, within the latter years, dental decay for both A and B, B's eyesight suffering, late antenatal presentation for K;
(b) Poor school attendance;
(c) Poor supervision with both A and B at times being put at risk;
(d) A lack of boundaries and routine;
(e) Poor engagement with professionals, including hostility, tape recording and simple refusal to cooperate;
(f) Volatility in the relationship between mother and father; and
(g) short-term progress followed swiftly by regression.
"It is for the purpose of satisfying that threshold that the local authority seeks to prove specific facts against the parent or parents. Only if it succeeds in that task can its application for a care or supervision order proceed. Thus the preliminary issue of fact constitutes the gateway to a judicial discretion as to what steps should be taken to protect the child and to promote his welfare."
She goes on to deal with the overall position.
" For the Judge invariably surveys a wide canvas, including a detailed history of the parents' lives, their relationship and their inter-action with professionals. There will be many contributions to this context, family members, neighbours, health records, as well as the observation of professionals such as social workers, health visitors and children's guardian. In the end the Judge must make clear findings on the issues of fact before the Court, resting on the evidence led by the parties and such additional evidence as the Judge may have required in the exercise of his quasi-inquisitorial function. All this is the prelude to a further and fuller investigation of a range of choices in search of the protection and welfare of the children. A positive finding against a parent or both parents does not in itself preclude the possibility of rehabilitation. All depends on the facts and circumstances of the individual case."
The judge in care proceedings we are reminded 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 which are presently dark.
"The mother accepts that she has failed to provide good enough care for the children and this has been the case at various times over the years. Whilst at times her care has been good, at others it has, on many occasions, fallen below an appropriate standard."
They ask the court to take a balanced view of the past as far as mother is concerned and Miss F, on behalf of father, similarly stresses the positives in respect of E's parenting.
"The episodes of neglectful care occurred over a long period of time but the situation was improving."
It is further set out:
"Mother has already accepted that her care was not consistently good enough and this occurred over a long period, although, by February 2013, their physical, education and emotional needs were not being neglected."
"Denied, though father accepts that, over the years, the needs of the children were not met consistently."
"Mother has no recall but does not dispute the records."
"As to (c), father accepts he largely left day-to-day responsibility for care to mother who failed to offer consistent standard of care to the children (see below) which he failed to recognise or be sufficiently enquiring about."
"Are accepted, save when father took appropriate possibility. (d) [that is boundaries and routines] is accepted, save when father was physically present. (e) [cooperation with professionals] is partially accepted, in that the father regrets he was not always fully cooperative with the professionals."
"I did not realise they were not at school for a lot of years."
"I was ignorant of what was going on a lot of the time. I was not there."
"If I am not there, how can I ensure anything?"
Miss F submits that the Local Authority have focused overly upon the historical negatives, rather than looking at the very positive picture that existed prior to K's death and both Local Authority and guardian, she says, have failed to properly evaluate the future.
"I was ignorant of what was going on a lot of the time. I was not there. When I realised how bad things were, I did step up to the mark. I was shocked when [S] pointed out how bad it was. I was kept in the dark with a lot of things."
He also said:
"If I'm not there, how can I ensure something? I should have been a lot more enquiring, until I realised something was going wrong and then I worked with everyone."
"Parents to ensure that [A] and [B] attend school punctually every day.
Parents to ensure that [B's] squint is reviewed at [Hospital C] with it likely that her care will transfer to a local optician.
[C] to fully engage with midwifery services, to attend all antenatal appointments and work with [Organisation A] when they resume her care.
Parents to allow a social worker to visit the home regularly and complete further assessments with both announced and unannounced home visits.
[C] to engage with [Organisation A], to attend all appointments and complete urine samples as required.
[E] to take full responsibility for the care of the children. It is expected that [C] will not be on her own with either of the children until it is agreed by the Local Authority for [C] to have some care of the children.
[C] has recently been into hospital for a detox and while she states she is remaining abstinent, the Local Authority require information from urine analysis to confirm this. [V] will provide this information to the Local Authority. She is expecting to be taking weekly urine analysis.
[E] will have a discussion with his mother to ask for her assistance in being with [C] while he is out of the family home.
Both parents to attend all meetings.
Both parents to inform the social worker of any difficulties being experienced in order for the social worker to provide support.
[E] and [C] to inform the social worker of any changes in circumstances.
[E] and [C] to work with family recovery programme that will be in place to monitor the family and provide support following the birth of the baby. It will be anticipated that this will include morning visits to enable assessment of the early morning routine and late evening to assess the night-time routine.
Will sign the written agreement."
"She was at the house and saying how well things were going and I asked her if I could go to work now and she said, 'Aye'."
E said that he left C in the house by herself to go to meetings and that he did not think going to work was any different.
"I wasn't aware [E] was at work. If I was aware he was working night shift, under the contract of expectation, he would have asked his mum and I would have done some assessment work."
S said at the meeting on 28th March that the professionals were aware upon that occasion that C was looking after the children during the course of that meeting. S said that she was satisfied at that meeting that E was not concerned around mother's presentation on that day. S said what was discussed was that C was not to be left on her own with the children but that she was aware that E was coming to meetings leaving C and, on those occasions, she would be at home with the children. S did not accept that she agreed that E could go to work as often as he wanted as long as the children got to school, which was E's contention in evidence.
"It was plainly the case that all involved were working on the basis that mother would be the hands-on primary care giver to the newborn baby with father being more active in the care of the older children. The suggestion that [E] had to supervise the mother's care of her baby is not supported by the evidence and in oral evidence [S] was far from clear that emphatic guidance had been given to the father and was plainly not prepared to state with certainty that the conversation father says he had with her about going to work did not occur. It is submitted that the Local Authority cannot reasonably sustain its position given their own evidence."
S in evidence said that she did not recall saying father could go to work. It has been suggested that the court should be aware that because of the tragic circumstances, a serious case review was required which may have had some influence on what S recollected as she was the social worker allocated to the case when K died. I reject that interpretation and I am satisfied and find that whatever latitude there may have been in relation to how father carried out the role of supervising, it did not include the possibility of leaving mother on her own with the care of all three children overnight and I am also satisfied that father knew that in staying out overnight, he had been in breach of what was expected of him. It seems that father was working quite extensively and I am satisfied that the Local Authority did not know because he had not informed them of just how many hours he spent outside the home and away from the family. It was incumbent upon him, in accordance with the agreement, to inform the Local Authority of any change in circumstances and any difficulties. Thus I find this was a significant deceit which did fundamentally undermine the safeguarding plan. Sadly, therefore, the tragedy occurred which would not have occurred had E been, as was expected of him by the Local Authority, present overnight in the house.
"On the Tuesday before K died, I took her round to show her to one of my friends. My friends offered me some amphetamine, which I took. Amphetamine did not usually have much effect on me, other than giving me more energy, and I never suffered any come down effect. I now realise this was irresponsible behaviour when I had K in my care."
Thus it seems there were at least two occasions in the two weeks two days that K was at home that mother took amphetamine. She also took temazepam and was continuing to take prescribed methadone.
"On Thursday - I think it was Thursday - before K died, I had an argument with E about his son [X]. [X] had stayed over at our house on Wednesday night as he often did. [X] is a difficult teenager who treats the home like a hotel. [X] never clears up after himself and would help himself to anything out of the cupboards or fridge. I was really cross that [X] had simply left all of his dirty dishes in the sink for me to wash up. I was obviously tired because I was the mother of a young baby and I was waking up during the night to ensure she had regular feeds. I told [E] that he should take [X] back to his home. It can be seen from the police photographs that I like my kitchen to be kept clean and tidy, particularly because this was where I was preparing K's bottles and medication. [E] was annoyed with me for telling him to take [X] home and he always accuses me of not liking [X]. I think [E] lets [X] get away with things because he feels guilty that he has not always been there for [X]."
It is apparent from this paragraph that there was an argument, that mother understandably was angry that, as a mother of a new baby who had all the duties and responsibilities involved in looking after a new baby and getting up at night to feed the baby, she was tired and resented, understandably, X, who she said was treating the house like a hotel. In oral evidence, mother accepted there had been an argument but said she did not tell the police about it because it did not really seem important. It was about dirty dishes. She said it was a disagreement. She was not that annoyed over a few dishes.
"On Thursday, 28th March, [E] worked a night shift. After work, we went to his house. We both went in the house and I stayed at his home on my own whilst he and [C] did the school run and sorted out their daily routine. Both [C] and [E] returned with [K] at around 9.30am to 10am. [E] and I had a sleep in the living room until lunchtime. I remember [E] and [C] began arguing about [E's] grown-up son from a previous relationship [X]. I cannot remember exactly what the argument entailed. I seem to remember it being something about how [E] got in trouble if he ever tells [A] off. [A] is [C's] son from a previous relationship and she gives [E] a hard time if he ever tells [A] off. I got the impression that this had an impact on the argument when [C] was complaining about [X]. As a result of this argument, [E] told me that he and I were to go to the unit and prepare for the evening."
It is clear that the argument was sufficient for Y to note it. He went on to say within that statement:
"Usually, we would go back to [E's] but he said we were to go back to the unit as he did not want to go home as a result of the argument."
"Q. You woke up at 5am?
Q. Took the time from the television?
Q. Changed the nappy?
Q. There was a dirty nappy and you remembered the oramorph?
A. Yes, I fed her. I made up the feed. I gave her the oramorph first. I was bottle feeding her. I would measure the oramorph into the syringe and put the oramorph in the teat of the bottle and let K suck it. K was in her Moses basket. I changed her bum and put her back in the Moses basket when I put the kettle on to make the bottle. I came back in and gave her the oramorph. If was in a little plastic box. It took no longer than five minutes. I put her back in the Moses basket and then made the bottle up. I put the cold tap on to cool the bottle. Then I fed her. I winded her. I was talking to her for about half an hour after I'd done other things. I think I fell asleep with her after that. No longer than half an hour was spent. I talked to her for half an hour. It was getting on to 6am.
I remember A coming down and saying K didn't look right. When I looked at her, she didn't look right, so I rang the ambulance. They told me how to give her CPR. I knew deep down it was too late but I was still trying."
"Astonishingly, the mother's account of events leading up to [K's] death is of an uneventful evening during which [K] presented normally and gave no cause for concern. The mother had always been consistent in her account that she had fallen asleep with [K] lying in the crook of her left arm, closest to the back of the sofa, both mother and baby covered with a duvet which did not obstruct the baby's breathing, exactly the same position as when woken by [A].
This simply cannot be given the post-mortem findings of the full thickness skull fracture 40mm in length and the expert evidence of the force required and mechanism for such an injury to occur. [K's] death occurred before the body's healing process had time to react. There was no fibrin formation in the bone. The underlying bruise had not had time to develop and be visible to the eye and there was no injury to the brain. [M] considered that it was plausible that the head injury had been sustained within minutes of death and probably less than two hours. [O] indicated that the presence of hypostasis at 9.12am suggested death had occurred at least an hour or two before, therefore between 7 and 8am."
"It is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for various reasons, such as shame, misplaced loyalty, panic, fear, distress and the fact that the witness has lied about some matters does not mean that he or she has lied about everything."
"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."
"It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on other evidence. The judge must always remember that she or he is the person who makes the final decision."
"In my judgment a conclusion of unknown aetiology in respect of an infant represents neither a provision of 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 acknowledgement that we are fearfully and wonderfully made."
"The cause of death in this case remains unknown. That conclusion does not represent a failure of the forensic process. Rather more, it is the forensic process at its most rigorous and fair. Here, the cause of death may be asphyxia caused by the mother overlaying on a sofa stacked at a hazardous angle. It may be death for the reasons which cause sudden infant death syndrome deaths. The evidence does not enable the court to make any clear findings, certainly not that death was an immediate or almost instantaneous result of head injury.
The cause of the fracture also remains unknown. It is inherently unlikely that this mother, who, whatever her faults, loved her baby and was gentle with her would inflict serious injury on her beloved baby. The extraordinary angle of the sofa and the associated pressure caused by gravity, make a crush injury the likely cause. Such a crush injury may well have happened while mother was in a deep sleep, unable to know what position she moved in and out whilst asleep."
(a) it is not mentioned by mother as a possible explanation during her police interviews on 31st March or 3rd April 2013, even though during the latter interview mother was telling the police about her very recent fit and confirmed that she does not suffer from epilepsy;
(b) it was first raised by father rather than mother on 19th April 2013;
(c) it is not mentioned by mother to the police as a possible explanation until 21st August 2013 and only then at the prompting of mother's solicitor;
(d) AA, who has known mother for many years and has particular expertise in treating drug addicts, had not considered seizures to be a significant problem for mother and had pointed to a gap of at least seven years during which no seizures had been reported;
(e) T, who has a similar close and longstanding involvement with mother, confirmed in evidence that mother had never spoken to her about the fits.
"(1) if she had a seizure, she would be awake when it started;
(2) she would be aware that she had had a seizure;
(3) he said, "I think people all always know that they had a seizure afterwards";
(4) "I cannot exclude the remote possibility she had a seizure but there is no evidence she did and I think it is most unlikely she did."
"It is also important to take into account the fact that her seizures are followed by drowsiness. She could have woken, had a seizure of which she recalls nothing, to be followed by drowsiness and a return to sleep."
"The next question is: to what extent do the experts favour crushing as a possible or probable mechanism for the fracture?"
"It is the same answer, really, that statistically this injury is usually the end result of a baby's head being bashed against something but if you accept the mother's or the court accepts the mother's version of events, that was, well, they went asleep to the sofa and you ask the question, 'could This injury be the result of crushing?' then I think the answer has to be, 'Yes'.
N: Again, I agree with [O]. I think particularly in this case in the context of being on a sofa, particularly the way the sofa was edged up at front, creates a particularly hazard sleeping environment and I think with regard to section (d) of the question... I think this needs to be considered also as a possible cause of injury or the fracture.
M: Yes, I think we've got three possibilities here, (d(1), (2) and (e). Whilst, you know, I'm sure [O] is right, I think everything points rather more towards a very rapid blow against or with a hard object, rather than a sort of slow crushing type of injury leading to this fracture and the lack of any underlying brain problem. So, yes, it's a possibility but, like [O], I think it's... in terms of probability, it's much less probable than either (1) or (2)... sorry, (d)(1) and (2).
O: Essentially, my position... I mean the other thing that I don't like for it being pressure is the amount of bruising that was present, so I think, you know, that in addition... that in addition points to it being a blow or an impact of some sort but I couldn't exclude the possibility that it is crushing.
P: I think there are three things here, isn't it? There's the bruise, the fracture and the underlying brain and I think, putting all of those three things together, it seems to me much more likely to be a blow either of the head against something or something against the head but I agree with [O]: you cannot completely exclude this due to crushing."
"And, as we said earlier regarding the pliability of an infant of this age, still I think that would tend to favour [and he is referring to the impact injury]."
P comes back and says:
"I agree with the comment just made. There's a tilt in favour of impact rather than crush."
"The absence of brain injury did lead to consideration of the significant possibility of crush injury, yes, on the information made available to me, child sleeping with the mother, and in that context it needed some serious consideration whether that mechanism could cause an injury like that."
"The amount of bleeding that I saw makes me think, and the absence of any fibrin at all makes me think, that this was much closer to... the interval between fracture and death was much less than six hours but it's just that, you know, it would be very easy for someone to come along and say, 'Well, can you be certain of that? Can you give me a much more accurate timing?' and the answer is not it's within six hours but, in all probability, much closer to the time of death than six hours."
"The mothers in the two groups differed in other ways. Those using methadone tend to present late for antenatal care, arrive for delivery unbooked and are more likely to smoke during pregnancy and their infants present with poor foetal growth. The fact that maternal methadone use is associated with a higher infant mortality does not, therefore, mean that methadone causes sudden infant death syndrome."
"Thus, a full and detailed post-mortem examination, including histology, toxicology and three specialist options has failed to provide a definite explanation for [K's] death. Specifically, there was no evidence that she died as a result of poisoning, with the toxicology being essentially negative; no natural disease was identified that might have caused or contributed to the death by way of, for example, congenital disease or infection; and the only injury present, a large bruise under the scalp with a related skull fracture, was not accompanied by any significant damage to the brain and, therefore, does not provide a definite explanation for death. [P's] report should be consulted for the detail but whilst head injury could explain death, the usual types of abnormality seen to the brain and surrounding membranes in fatal head injuries in children were not present. It is well recognised that infants of [K's] age can simply be found dead in the morning and that a full and detailed post-mortem examination may not provide an explanation for death. In these circumstances, the label 'sudden infant death syndrome' is applied. While such a mechanism of death could explain [K's] death, by convention the label 'sudden infant death syndrome' is not applied when features such as significant injury are evident."
He concludes, therefore, that as far as he, the pathologist is concerned, the cause of K's death remains unascertained.
"For many years, [E] has used amphetamine. When we were living together with the children, he would take the amphetamine every day. [E] knew that drug testing would reveal his amphetamine use and this is why he shaved his hair, so that testing could not take place. I assume that [E] is not using amphetamine now because he knows that he is going to have another drug test."
"[E] knew drug testing would reveal his amphetamine use and this is why he shaved his hair, so testing could not take place. I assume [E] is not using amphetamine now because he knows he is going to have another drug test."
"Right from the outset, I have made it clear to everybody involved in the case that I will provide a hair strand test, blood, urine, drugs samples, whatever."
Yet he continued to shave his body hair even after the court direction was made on 5th July. It is difficult to reach any conclusion other than he wished to avoid testing. The expert evidence to which I have referred allows for the possibility of contamination but the explanations put forward by E of contamination by finishing off drinks in a nightclub would require, according to the expert, very regular contact with contaminated drinks and otherwise contamination would be by direct contact between hand and hair. It is possible but I find unlikely.
"I can remember two occasions during my relationship with [E] when he has been physically violent towards me. On one occasion, when I was having a disagreement with [E], he kicked me in the face while wearing his steel-cap boots. [A], who was little saw, this incident and was very distressed. I sustained a black eye as a result of this. There was another occasion when [E] slapped me across the face. As a result of these incidents, I am quite scared of [E] when he shouts at me. [E] has never raised his hands to [A] or [B] and he knows I would never allow that to happen."