B e f o r e :
Sitting at Lancaster Castle
| CUMBRIA COUNTY COUNCIL
Karl Rowley QC and Michael Kennedy (instructed by KJC Solicitors) for the Mother
Susan Grocott QC and Carolyn Bland (instructed by Bleasdales Solicitors) for the Father
Ian Lewis (Bendles Solicitors) for the Child
Hearing dates: 1- 15 July 2014
Judgment date: 15 July 2014
With post-script: 6 May 2016
WITH POST-SCRIPT: 6 MAY 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Peter Jackson:
(1) Were K's injuries inflicted, as opposed to being due to natural causes?
(2) If they were inflicted, were the parents responsible?
(3) If so, is it possible to identify which parent was responsible?
(4) What decision should now be made about A's future?
1. First, the burden of proof lies at all times with the local authority.
2. Secondly, the standard of proof is the balance of probabilities.
3. Third, findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation …
4. Fourthly, when considering cases of suspected child abuse, the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.
5. Fifthly ... whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. 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 the other evidence. It is the judge who makes the final decision.
6. Sixth, cases involving an allegation of non-accidental injury often involve a multidisciplinary 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.
7. Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability.
8. Eighth, it is common 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 many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas  QB 720).
9. Ninth, as observed by Dame Elizabeth Butler-Sloss in an earlier case "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." This principle, inter alia, was drawn from the decision of the Court of Appeal in the criminal case of R v Cannings  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. In the course of his judgment, Judge LJ (as he then was) observed: "What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge."
10. 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  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."
11. In Re R (Care Proceedings: Causation)  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.
12. Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator. In order to make a finding that a particular person was the perpetrator of nonaccidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so."
7. To these matters, I would add that where, as a result of significant delay there has been a repeated retelling of accounts, the court must think carefully about the significance of any discrepancies, given the natural fallibility of memory over time.
Dr Daniel du Plessis, Consultant Neuropathologist
Dr John McCarthy, Consultant Opthalmic Pathologist
Ms Helen Fernandes, Consultant Neurosurgeon
Professor John Wyatt, Consultant Neonatologist
Professor Anthony Freemont, Consultant Osteoarticular Pathologist
(1) The injuries:(a) Brain swellingThe brain swelling was reasonably severe. Brain swelling could be accounted for by hypoxic-ischaemic injury or traumatic brain injury. In K's case the hypoxic-ischaemic changes represent a hyperacute event and there would not have been sufficient time for a hypoxic-ischaemic injury to have cased severe brain swelling. Trauma is therefore a more plausible explanation for the severe brain swelling seen in K.(b) Subdural haemorrhageThere was thin film bilateral acute subdural haemorrhage, more posterior in its distribution. The bulk of the haemorrhage was fresh representing a hyperacute event. There was microscopic evidence of very early neo-membrane formation which would have required at least a day to develop. That implies there was earlier episode of subdural bleeding. The earlier episode of bleeding could have been trivial.(c) Subarachnoid haemorrhageThere was a sub-arachnoid haemorrhage in a mainly basal distribution with extension into the Sylvian Fissures on both sides. [Du Plessis]. The sub-arachnoid haemorrhage was in continuity with the subpial bleeds over the temporal lobe which was the probable source of the blood. There was evidence of a macrophage response in the leptomeninges reflecting a component of the sub-arachnoid haemorrhage which is likely to be a day or more old. The absence of haemosiderin makes it unlikely to be more than 2 days old. The earlier episode of sub-arachnoid haemorrhage could have been trivial.(d) Subcortical scar/tearThe cortical tear showed more established gliosis and a macrophage response, early haemosiderin deposition and some axonal injury. This pathology is more than a day in age.(e) Subpial haemorrhageThere were subpial bleeds which were temporal in location. Early gliosis in the margins to the subpial bleeds indicate that a component of it is not hyperacute. The presence of subpial bleeds suggests an impact or compression of the skull. Subpial bleeds are an unusual bleed in the substance of the brain said to be more common in premature infants. [Du Plessis](f) Intradural and epidural spinal nerve root bleedingThe intradural and epidural spinal nerve root bleedings are non specific. They could be accounted for by hyperacute hypoxic-ischaemic injury, but there is an absence of vital response associated with the epidural bleeds and they are a well-recognised post-mortem artefact.(g) Bilateral optic nerve sheath bleedingThere were hyperacute bilateral optic nerve sheath bleeds (but no retinal bleeds) which occurred shortly before death. The most likely cause of the optic nerve sheath bleeding is trauma. [Sch 17](h) A full thickness linear parietal skull fractureThere is a full thickness linear parietal fracture through the skull bone which is likely to have been caused by a significant impact on a hard flat surface or straight edge. It could not occur as a consequence of movement trauma in the absence of impact. The injuries to the brain did not make K more susceptible to a skull fracture [Fernandes]. Precisely when the fracture occurred cannot be determined by examining the fracture under the microscope. What can be said is that the fracture occurred in the perimortem period, that is in the period immediate prior to the cessation of the heart beat and up to 60 minutes after death [Freemont]. There was no evidence of bony abnormality.
(2) The triad:This case does not have the pattern of injury seen in the classic triad. In the classic triad you see mainly subdural bleeding following the bridging veins. In K there was injury outwith that area, injury to the brain lobe, and an absence of retinal haemorrhages. The concept of the triad is not useful in interpreting K's case [Dr Fernandes].
(3) Prematurity:Prematurity may make K more susceptible to spontaneous subpial bleed and more susceptible to sustaining subpial bleeds than a full term child when exposed to trauma. Even at birth subpial bleeds are associated with trauma [Du Plessis]. Prematurity does not account for the subdural haemorrhage or the optic nerve sheath bleeds or the skull fracture. Prematurity per se does not account for the structural injuries to K's brain, all of which are explained by trauma.
(4) Timing:There were at least 2 episodes of injury. The hyperacute intracranial injuries would have occurred within moments of K's collapse. The non- hyperacute intracranial injuries would not have occurred within 24 hours of K's death, and probably occurred 2 to 3 days before [Du Plessis].
(5) Cause of injuries:Movement trauma and impact would account for the full spectrum of findings in K. Even absent the skull fracture, the injuries imply an impact [Du Plessis]. The original cortical tear and subpial bleeding could have originated from an unidentifiable cause but movement trauma is the more likely. Lesser force could be required for re-bleeding into areas already damaged [Du Plessis].
(6) Natural disease:There is no evidence of any diagnosable natural disease condition which would account for the findings. Specifically, Terson's Syndrome is excluded.
(7) Symptoms:The hyperacute intra-cranial injuries were catastrophic. It is likely to have been a short time between the insult and K being in a moribund state [Du Plessis]. If he were not immediately unconscious, K would have been profoundly and progressively unwell from the moment of injury. The more usual scenario is rapid, near-instantaneous collapse and progression to a moribund state.The non-hyperacute intracranial injuries were less traumatic and could have been trivial. They may not have produced symptoms which would have alerted a carer who was not present when they were sustained that the child was unwell [Du Plessis].
(8) Cause of death:The most likely explanation for K's collapse and death is a hyperacute traumatic head injury which occurred at the time of K's collapse and cardiac arrest. The mechanism for K's death is either (i) a sudden pressure rise because of brain swelling causing cardiovascular arrest or (ii) damage to the brain stem causing cardiovascular arrest [Fernandes]. None of the intracranial bleeds would individually or in combination cause the arrest [Fernandes].There is no evidence of any diagnosable natural disease condition which would account for K's death. There was no pathological evidence of Cortical Vein Thrombosis (CVT) and the absence of clotting in the major venous sinus almost rules out CVT as a cause of death [Du Plessis].Trauma could easily explain everything found in this case and appears to be the only explanation based on the clinical and pathological features. [Du Plessis].
The cause of K's injuries
(1) K suffered two assaults.
(2) The first occasion was about 2 days before death, when he suffered some bleeding to the brain as a result of being shaken. This had no noticeable effect on his behaviour.
(3) The second occasion was within minutes of his death, when he suffered a fractured skull and catastrophic bleeding to the brain as a result of an incident that included an impact to the head. This led immediately to his death.
(4) The matter having now been investigated, I find that no injury (and in particular no head injury) was caused to K during resuscitation at the scene, or on the way to hospital, or at the hospital.
(5) There is no real possibility of either of the episodes of injury having been caused by anyone other than one of the parents.
(6) It is overwhelmingly likely that the same parent was responsible for both episodes of injury.
(7) On the first occasion, the parent who was responsible will have realised that he or she had behaved inappropriately, but may not have realised that injury had been caused.
(8) On the second occasion, the parent who was responsible will immediately have realised that serious injury had been caused.
(9) There is no evidence of collaboration or cover-up on the part of the parents. The parent who did not cause the injuries will not have known what had happened.
The credibility of the parents
The parents' first accounts
I went to bed myself. K woke up but I don't know what time. I was playing with K's dummy in his mouth and shouted to [F] to make a bottle. [F] made the bottle then he came and took K and I went back to sleep. I never woke up again until I heard [F] come in the bedroom to check on K. [F] was at the moses basket and said to me "… there's a mark appeared on his face". I jumped right up. I went to the moses basket. I saw the little blue mark above his right eye on his forehead. I place my fingers on his forehead to touch him, I could tell he wasn't breathing. I grabbed K, told [F] to phone an ambulance and run out of the house to my sister's down the road as I didn't want A to see what was happening.
K started to fidget at 5.45 am approx, he appeared to be hungry. I made him another bottle whilst holding K. He took about 2 oz, probably just over. It took about ½ hour to feed him as I had to wind him a couple of times. It was about 6.45 am when I took him upstairs coz I could hear A waking. I put K into his moses basket on his back with his blanket over him. I just put one blanket over him. I had changed his nappy before putting him to bed as it was wet. After I put him to bed A was awake so she came down stairs with me. I gave her a bottle and put the TV on for her. I then went upstairs at approx 7.15-7.20 am to check on K. K was lying on his back with his head to the side. I could see what looks like purple lines on K's face next to his right eye where he was lying into the mattress. [M] got up. I said to her "What's that mark?" [M] touched K and picked him up. She said he was cold and passed me her phone as she ran down to her sister's to call the ambulance. I rang the ambulance.
Conclusion as to the perpetrator of K's injuries
(1) The father had a considerably greater opportunity at the relevant times to cause unwitnessed injuries to K.
(2) The opportunity for the mother to have injured K in the early morning of 11 July at a time when the father considered that he was in charge was extremely limited. I accept her evidence that she had been asleep for several hours before the father came into the room. He himself told the police in 2013 that she had been asleep and that he had had to wake her, an account he changed during his evidence at this hearing.
(3) The whole quality of the mother's reaction to discovering K in the cot makes it inconceivable, to my mind, that she knew anything could be wrong with him before that moment. Her description of taking him out of the house to protect A had the stamp of truth.
(4) In contrast, the father's actions at that moment strongly suggest guilty knowledge. He was unable to explain why he would keep checking K -- in his oral evidence he describes doing so twice in a short space of time, explaining implausibly that he had gone upstairs to the toilet twice. "I just thought I'd go and check on him." His actions in awaking or alerting the mother to the mark on K's face were unnatural: the natural thing for the parent in charge to do would be to pick up the child to check he was all right, not to ask questions of the parent who was not in charge. On the crucial question of whether, at that moment, he thought there was something seriously wrong with K, his evidence was confused and inconsistent. When he called an ambulance, the first thing he said was that the baby was not breathing. It is possible that he learned this from hearing the mother's cries, but I find it more likely that he knew it from the start.
(5) In assessing the probabilities, I am entitled to take into account the wider information about the parents as parents. The mother's behaviour as a devoted parent over a period of years does not eliminate the possibility that she caused these injuries, but it reduces it. The father's behaviour in running away from involvement in the proceedings could have a number of explanations, but his reluctance to assist the court to understand how and why his son died is at the very least consistent with an intention that the court should not find out.
(6) I take account of the parents' credibility, which in this case is central to my assessment. When the mother was describing the events of that morning, I believed her. I did not believe the father. His lack of curiosity about his son's death was striking: "How did K die? I couldn't tell you. I haven't done nothing. I don't know." There is no reason for him to be curious when he knows the answer. This is of a piece with his position at the beginning of the proceedings, which was to support the return of A to her mother. The parents had by then been arrested for murder, so the father knew that if he was not responsible for K's death of K, the mother might well be. Asked why he supported A's return in those circumstances, he said that it was because he was trying to make a go of things. He did not mention the mother's violence in his court statement because he "did not know which way to go around it".
The investigation into K's death
When there was such uncertainty about why K died, as a matter of routine this should have prompted care proceedings. It staggers me that A was sent home. None of the professionals took a forensic approach. There was no legal advice. There appears to have been Groupthink -- a suggestion [post-mortem skull fracture] was floated and everyone thought "Great, we can send A home". There was inconsistency of personnel and zero protection for A under a child protection plan. Having sent her home, there was a repeated failure to review the position. I am staggered by the police evidence that by their own agency they disagreed that there were child protection problems [when, following receipt of the report of Dr Ward Platt, they retained it for several months]. They did not give other agencies or the parents a chance to take a view. A has been lost since K's death. The agencies were pro-sympathetic to the parents. Had anyone sought legal advice at the outset, A would have known what her permanent arrangements are by now. She would have been established with no repeat breakdowns and with certainty for her and for the parents. Instead, she is now nearly 5 and faces great uncertainty and possible further disruptions to her life.
(1) Why, with one brief and apparently ineffectual exception in March 2013, did the local authority not take legal advice in a child death case at any stage between K's death and the parents arrest, a period of over two years?
(2) Why were care proceedings not started at the time?
(3) Why was there apparently such ready acceptance of the opinion of Dr Egan that the skull fracture occurred post-mortem, when the opinion of Dr Landes (consultant paediatric radiologist at Alder Hey Hospital) was that non-accidental injury must be considered?
(4) Why, regardless of the timing of the skull fracture, was there apparently no consideration of the possibility that K's brain injuries were inflicted, this possibility having been clearly stated from the outset?
(5) Why, even if the CPS rightly closed the case in March 2012 on the basis that a conviction was unlikely, did social services also close the child protection case?
(6) Why was Dr Ward Platt's report (dated 16 May 2013) not sent to the police until 18 June 2013?
(7) Why did the police not disclose that report to social services or to the parents until 26 September 2013?
(8) Why did the police decide to arrest the parents in front of A?
(9) Why has the inquest into K's death not yet been concluded?
(10) Why has no decision yet been taken about whether the parents are to face criminal charges?
(1) The Chief Executive of Cumbria County Council v M & Ors;
(2) The Statutory Lead Member for Children's Services, Cumbria County Council v M & Ors;
(3) The Chair of Cumbria County Council v M & Ors's Scrutiny Advisory Board - Children and Young People;
(4) The Independent Chair of the Cumbria Local Safeguarding Children's Board;
(5) The Chief Constable of Cumbria Constabulary;
(6) The Police and Crime Commissioner for Cumbria;
(7) The Crown Prosecution Service;
(8) HM Coroner for North and West Cumbria.