IN THE FAMILY COURT AT BRISTOL
Neutral Citation Number:  EWFC 74
Bristol Civil Justice Centre
Thursday, 5th March 2015
THE HONOURABLE MR JUSTICE BAKER
( In Private)
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF HB (A CHILD)
B E T W E E N :
A LOCAL AUTHORITY Applicant
- and -
HB (by her children’s guardian) (3) Respondents
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MR STUART FULLER and MR PHILIP BAGGLEY appeared on behalf of the local authority
MR NKUMBE EKANEY QC and MR STEPHEN ROBERTS appeared on behalf of the First Respondent (Mother)
MR PAUL STOREY QC and MISS TANYA ZABIHI appeared on behalf of the Second Respondent (Father)
MR KAMBIZ MORADIFAR appeared on behalf of the Child's Guardian
J U D G M E N T
MR JUSTICE BAKER:
1 These care proceedings concern a little girl H, who was born on 7th July 2014. Her parents are her father CB and her mother AF.
2 The proceedings have been brought by the local authority because in 2013 the mother and father tragically lost their first baby, R, in circumstances which, in the local authority's submission, give rise for concern. In particular, it is alleged by the local authority that R died as a result of physical force inflicted by the father. As a result, care proceedings were started in respect of H immediately after she was born. The proceedings were transferred to the High Court and listed before me for a fact-finding hearing. This judgment is delivered at the conclusion of that hearing.
3 The father was born in 1994 and is therefore now aged 20; the mother in 1996 and is therefore now aged 18. They started their relationship in July 2010 when they were aged 16 and 14 respectively. Shortly afterwards the mother became pregnant but underwent a termination in January 2011. In early 2012, she discovered she was pregnant again. At that stage the couple had moved into temporary accommodation, although it is plain that they were uneasy there because of the activities of another of their neighbours.
4 On 28th September 2012, the mother gave birth to their first child, R, by emergency Caesarean section. The baby was born in good condition, weighing 7 pounds 10 ounces. His progress thereafter was relatively uneventful. The parents engaged positively with medical services, including the health visitor, who visited the family on a number of occasions. Overall there were few concerns. The health visitor observed a close and warm relationship between both parents and between the parents and the child. R put on weight, although the rate of growth diminished after several months, a development which the health visitor attributed in part to the fact that he was becoming more active. The health visitor also had considerable concerns about the untidy nature of the accommodation and also on one occasion about the "atmosphere" between the parents. As a result, the family were categorised as requiring slightly more assistance than the basic universal health visitor support. The main reasons for this slightly elevated attention was the parents' young age, the fact that R was the first baby and the generally unsatisfactory nature of their accommodation.
5 In January 2013, the family moved to a flat in a different part of the city close to where the maternal grandmother and her husband lived. In February 2013, the mother was referred to Sure Start. It was also suggested by the health visitor that the father might benefit from attending a fathers' group, although in the event he did not do so. In April 2013, the parents both started working for a sports retail company under zero hours contracts. Thereafter, they were engaged on shift work and things were arranged so that each of them worked at different times while the other looked after the baby.
6 On 1st May 2013, the mother went to work in the afternoon, leaving the father to look after R. R was put down for an afternoon nap in his cot as normal. It is the father's evidence that, later in the afternoon, he suddenly heard R screaming in a different way from usual. He went into the bedroom and found him lying in his cot on his side with his face against the bars of the cot and his arms extended through the bars. When the father went into the room, R rolled onto his back and the father noticed some blood on his upper lip and just below his nostrils. The father assumed that he had bumped his face on the side of the cot. He picked him up, soothed him, gave him a bottle and as a result the baby began to settle.
7 At about this time, the parents' telephone records show the father telephoned the mother on six occasions in rapid succession, each call lasting but a few seconds as if the call was going straight through to voicemail. Shortly afterwards, the mother arrived home from work and found the father consoling R in the sitting room. The mother was concerned about what had happened and therefore phoned the surgery out of hours service and was given an appointment for 9 p.m. that evening at the local hospital. The surgery records contain the following note taken by the receptionist: "Today seems weak. Some blood, not sure from mouth or nose. Blood now cleared." The parents were advised to bring R to the local hospital. The mother telephoned the maternal grandmother, who came over and drove the couple and R to the out of hours surgery at the hospital.
8 The family arrived early for the appointment and were seen at 8.44 that evening by Dr J. The note of her consultation shows that she was given the account set out above of how the father had found R in the cot. The doctor noticed that R looked well. There were no signs of ongoing bleeding, but that he had a small bruise to the right side of his forehead. In oral evidence, Dr J said that she could not remember whether she examined R's mouth or, in particular, or his frenulum, although she thought that, if he had had a torn frenulum at the time of the consultation, she would have seen it. The parents were advised to give R some Calpol and they duly took him home.
9 On Saturday 4th May, the father was at work in the morning. R spent the day at home with his mother. On Sunday 5th May, R woke as normal, seemed fine, and took eight ounces of milk and some rice cakes for breakfast. At lunchtime the mother left for work, leaving R in the care of the father. At some point after 1 p.m. the father put R to bed for his afternoon nap. Initially, R was positioned sideways across the bed. Shortly afterwards, he was seen cuddled up against the pillow which the parents had put in his cot. He was heard to be playing with a soft toy for a few minutes before silence descended, apparently because he was asleep. The father says that he checked R on three or so further occasions, on each occasion finding that the baby had moved into a different position. He himself slept intermittently during the course of the afternoon.
10 At about 4.50 that afternoon, the mother telephoned the father on her way back home from work. The telephone call lasted just over 13 minutes. According to the mother, she noticed nothing unusual about the father's behaviour during this call. At the end of the call, she asked the father to check on R. His account is that, having completed the call, he went into the bedroom. There,he found R laying face down in his cot. He turned him over to wake him. R's face was lifeless with purple patches. The father panicked. He was unable to feel any breath when he put his hand up to R's mouth.
11 At 5.08 p.m. the father telephoned the mother. This telephone call lasted 20 seconds. He told her that R was not breathing. The mother hung up and called an ambulance as she ran home. A transcript of the telephone call lasting some 10 minutes or so has been produced together with a tape-recording of the call, which I have listened to. It demonstrates the mother to be in an understandable state of extreme panic and distress throughout the call. Arriving home, she found R lifeless and blue. The ambulance control gave verbal instructions to the mother for resuscitation and both she and the father attempted to bring R round by cardio-pulmonary and mouth-to-mouth resuscitation. They were unable to get any response.
12 At about 5.20 p.m., the paramedics arrived and shortly afterwards an air-ambulance landed nearby with a doctor, Dr Roberts, on board. They discovered R lying lifeless with signs of hypostasis, plus rigor mortis in his jaw and in one leg. They attempted to resuscitation by intubation but were unable to do so because although his lips were open his jaw was closed tight as a result of the rigor mortis. At 5.35 p.m. the doctor on the air-ambulance crew pronounced that R was dead.
13 The family was taken to hospital in the ambulance with the mother holding R's body. They arrived at the hospital about 6.24 p.m. One doctor, Dr H, took samples of blood and other samples for analysis. Another doctor, a community paediatrician called Dr G, embarked upon the initial assessment carried out under the protocol concerning the deaths of children. The father was noted to be quiet and withdrawn, whilst the mother gave a detailed account of what had happened.
14 In her physical examination Dr G made the following observations. R's body felt cold and rigor mortis had set in. There was patchy livedo over his face, trunk, legs and feet and Dr G observed the following marks: (1) a small bruise over the right forehead measuring seven by seven millimetres about 25 millimetres above the eyebrow; (2) a small oval dark-purple mark on the pinna parallel to the rim of the ear with two small petechial marks on the other side of the pinna, i.e. the side closer to the skull (Dr G was clear in her report, and at all material times thereafter, including her oral evidence, to refer to this oval mark as a mark rather than a bruise;l (3) a tear of the upper frenulum. Dr G reported that the parents had given two possible explanations for the forehead bruise – that R had banged his head on the cot or, alternatively, banged it on the floor whilst attempting to crawl. They were unable to give any specific explanation as to how the mark on the ear or the torn frenulum had been sustained. The combination of these injuries, coupled with the fact that the child had died in unexplained circumstances, led Dr G to have significant concerns that R had sustained non-accidental injuries.
15 As part of her enquiries Dr G, accompanied by a detective sergeant, then visited the family home. They found it in a generally untidy condition, with food contains and personal property scattered over the floors and surfaces. R's cot in the largest bedroom was also untidy, containing a pillow on top of a blanket, various toys and four used empty bottles. A towelling cot sheet was stained with dribble and a small patch of blood measuring 20 by 50 millimetres by the pillow.
16 R's body was sent to Great Ormond Street Hospital for a post mortem, but unfortunately that procedure was delayed by some 15 days and did not take place until 20th May. This delay was in breach of clear guidance given by the working group convened by the Royal College of Pathologists and the Royal College of Paediatrics and Child Health under the chairmanship of Baroness Kennedy QC, headed “Sudden Unexpected Death in Infancy”, which recommends that post mortem examinations in such circumstances should take place within 48 hours of the infant's death where possible.
17 The post mortem was carried out by Professor Anthony Risdon, the well-known consultant paediatric forensic pathologist, accompanied by Dr Liina Kiho, consultant paediatric pathologist. The post mortem report confirms the following injuries were found on the body: (1) a small reddish/red bruise to the right side of the forehead measuring five by five millimetres; (2) a purple “bruise”, to use the word applied by Professor Risdon, on the outer surface of the right pinna just below and slightly obscured by the outer helix, accompanied by on the inner aspect of the right pinna opposite to the other bruise by petechial haemorrhages over a slightly wider area than the bruise; (3) a fresh tear of the upper frenulum; (4) apparent mucosal ulceration on the inferior, i.e. lower, frenulum; (5) needle puncture marks on the anterior aspect of the chest in the supra-pubic region and upper lumbar spine with a sutured incision on the lateral aspect of the right thigh; (6) internal bleeding at three locations: (a) in the pericardial sac, five millilitres of blood with two needle puncture marks in the parietal pericardium; (b) in the plural cavity, heavily blood-stained fluid measuring 35 millimetres to the left and 20 millilitres on the right, with a small collection of blood in the left pectoralis minor associated with a needle puncture mark in the parietal plural membrane; (c) in the peritoneal cavity, five millilitres of blood-stained fluid for which no source of reading was identified; (d) a number of petechial haemorrhages and a tiny collection of blood on the surfaces of the thymus.. Further histological examination revealed evidence of haemosiderin-laden macrophages in the alveoli in the lungs, indicating episodes of previous lung haemorrhage for which no cause at post mortem could be established.
18 The pathologists concluded that the presence of blood in the three internal airways identified above was an unusual finding and in a child of this age would normally point to a traumatic injury to an internal organ. A careful examination was carried out but the pathologists were unable to establish any source for the bleeding. The pathologists thought that the needle puncture marks on the pericardium and left chest might explain the presence of blood in those two areas, but no cause was found for the peritoneal blood.
19 The pathologists concluded that the examination showed that number of concerning features, including bruises on the forehead and pinna, a torn frenulum and haemosiderin-laden macrophages in the lungs, together with bleeding in the cavities described above were present. However, no evidence of potentially fatal trauma or natural disease was identified and the pathologists therefore gave the cause of death as unascertained.
20 Subsequently at a child death review meeting it was concluded that, whilst suffocation could not be excluded as a possible cause of death, overall there was no evidence of an inflicted cause and the case was therefore classified as sudden infant death syndrome. There were a number of features commonly associated with an increased risk of sudden infant death syndrome, including a mother under the age of 18, a hazardous sleeping environment involving a cushion or pillow and the presence of superficial injuries. The police enquiry, relatively superficial for a case of this sort, involved no direct interview of the mother and no interview of the father under caution, but simply a police statement. No charges were brought. At the inquest on 22nd October the coroner returned an open verdict.
21 By the beginning of 2014 the mother was pregnant again. The local authority concluded various strategy and pre-birth planning meetings. A psychological assessment of the parents did not identify any current mental health problems or underlying personal pathologies. Dr G, however, reiterated her view that the enquiry into R's death had given rise to "a very concerning collection of features" and expressed the opinion that it was "a very significant consideration that R's death could have been abusive".
22 On 7th July 2014,,, the mother gave birth to her second child, H. On 9th July the local authority, very properly in the light of Dr G's recommendations, filed an application for an interim care order. Initially H was placed with foster carers but subsequently moved to live with the maternal grandmother, where she still lives. There has been very frequent contact with her parents and no concerns of any sort have been raised as to their conduct with the baby. In the course of the hearing the grandmother gave evidence. H also attended court and she is plainly thriving in the care of her grandmother. She is a delightful child and loved by the whole family.
23 As stated above, the care proceedings were transferred and listed before me for a fact-finding hearing. The local authority in its threshold document initially indicated that it would be seeking a finding that H was likely to suffer significant harm as attributable in section 31(2)(b)(i) of the Children Act 1989. To establish that likelihood, the local authority sought to prove the following facts: (1) H full brother R died on 5th May 2013 having been in the care only of his parents throughout that day and the previous night; (2) R's death was the result of suffocation by one or both of his parents and if by only one parent then the other failed to protect R from the actions of the perpetrator; (3) within the few days before 5th May 2013 R suffered injuries caused by one or both of his parents and if by only one parent then the other failed to protect R from the actions of the perpetrator, those injuries being (a) damage to his respiratory system caused by a suffocating mechanism not being suffocation which resulted in the death; (b) a bruise to the right side of the forehead; (c) a bruise to the outer surface of the right pinna and petechial haemorrhaging of the inner aspect; (d) a tear of the upper frenulum; (e) ulceration to the base of the inferior frenulum; and (f) internal injuries causing a bleeding to the pericardium, plural cavities and peritoneum.
24 In the course of the hearing, the local authority after very careful consideration informed the Court that it no longer sought to persuade me that the mother carried out any act that led to the death of the child or that she had attempted previously to suffocate him. It continues to assert, however, the evidence permits a finding that the father caused the child's death and had attempted to suffocate him on a previous occasion. The local authority continues to allege that the mother failed to protect the child as asserted above.
25 The hearing took place over nine days, including one reading day, in February and March 2015. In addition to the pathologists who conducted the post mortem examination and the treating clinicians, the Court had the benefit of written expert opinion from Dr Stephen Leadbeater, consultant pathologist, and Dr David Robinson, consultant paediatrician. At the hearing oral evidence was given by the following witnesses in the following order: Dr Kiho; LW, a health visitor; Dr G; Detective Sergeant Turner, a police officer; Professor Risdon; Dr Leadbeater; Dr Roberts, the critical care doctor who attended with the air-ambulance; HM, a further health visitor; Dr J; Dr Robinson; LN, a paramedic; Dr H; the mother; the father; the maternal grandmother, and finally a further paramedic, PS.
26 The Court had the benefit of expert representation by Mr Stuart Fuller and Mr Philip Baggley on behalf of the local authority, Mr Nkumbe Ekaney, QC and Mr Stephen Roberts on behalf of the mother, Mr Paul Storey, QC and Miss Tanya Zabihi on behalf of the father, and Mr Kambiz Moradifar on behalf of the guardian. The Court is very grateful to all counsel and their instructing solicitors for their assistance in this sensitive case. The Court commends the advocates for the sensible and constructive way in which they approached the sensitive issues arising in these proceedings.
27 The law to be applied in care proceedings concerning the allegation of child abuse is well-established. I have summarised it in a number of reported cases and have those principles and the authorities from which they are derived firmly in mind. What follows below is only a summary of the relevant legal principles.
28 The burden of proof rests on the local authority. It is the local authority that brings these proceedings and identifies the findings that they invite the Court to make. The standard of proof is the balance of probabilities. Findings of fact must be based on evidence and the Court must be careful to avoid speculation. When considering cases of suspected child abuse the Court surveys a wide canvas and must take into account all the evidence and consider each piece of evidence in the context of all the other evidence.
29 In A County Council v K, D and L  EWHC 144 (Fam), at paragraphs 39 and 44 Charles J observed:
"It is important to remember (i) the roles of the court and the expert are distinct and, (ii) it is the Court that is in the position 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 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 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) of 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."
As Ryder J, as he then was, observed in A County Council v A Mother and Others  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."
30 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. I also bear in mind that medical opinion is evolving and that today's medical certainty may be discarded by the next generation of experts and that scientific research may throw a light into corners that are at present dark. The Court always bears in mind the possibility of the unknown cause.
31 The evidence of the parents and any other carers in these cases is of utmost importance. It is essential that the Court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the Court is likely to place considerable weight on the evidence and impression it forms of them. It is common for witnesses in these cases to tell lies in the course of an investigation and the hearing and the Court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, distress and the fact that a witness has lied about some matters does not mean that he or she has lied about everything s ee R v. Lucas  QC 720. In cases where repeated accounts are given surrounding injury and death the Court must think carefully about the significance or otherwise of any reported discrepancies which may arise for a number of reasons other than as deliberate lies. For example, faulty recollection, confusion, stress, poor record-keeping, delay, repeated questioning and the phenomenon of false memory - see Lancashire County Council v. Children  EWHC 3 (Fam), per Peter Jackson J and Lancashire County Council v R  EWHC 3064 (Fam), per Mostyn J.
32 In order to make a finding that a particular person was the perpetrator of non-accidental injury, the Court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator to be identified, although where it is not possible for a judge to identify him or her on a balance of probabilities the judge should not strain to do so. 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.
33 I turn now to consider the evidence, the medical evidence initially, concerning the various injuries.
34 I start my consideration of the injuries by looking at the feature which the pathologists considered to be the most unusual and significant and to which they devoted the greater part of the post mortem report, namely the internal bleeding in the three sites identified above.
35 As Professor Risdon indicated, he would normally expect a traumatic aetiology for internal bleeding found at post mortem, but on this occasion, despite extensive examination by one of the country's most experienced forensic pathologists, no traumatic cause was found. Looking for other signs that might be linked, he and Dr Kiaho were unable to find anything. There were, for example, no extensive bruises or other marks linked with the areas of bleeding except, in the case of the bleeding into the plural cavity and pericardial cavity, puncture marks inflicted by a needle. The puncture of the pericardium was inflicted by Dr H in the course of taking samples on R's arrival at hospital. Dr H explained that it is normal practice to seek to obtain a sample of blood, often extremely important for the analysis of cause of death, and that where a child has been dead for some time the best location for obtaining the blood sample is in the vicinity of the heart. Dr Leadbeater in his report and oral evidence expressed concern about this practice which is, as I understand it, routinely carried out, because it interferes with the state of the body. In his view, where there has been what is called an intra-cardiac stab and no other injury has been demonstrated for the presence of bloodstained fluid within the chest cavity and pericardium, then, however unusual that constellation of injuries may be, he could not see how another source of injury is to be invoked as a more likely explanation. Here there were two puncture marks of the pericardial sac and it is possible that the needle penetrated the pericardium through one hole and exited through the other. As described by Dr H in his evidence, it is a process carried out without any micro-imaging. Plainly, it is possibly for blood to leak out in the course of this process.
36 Professor Risdon was unwilling to be drawn as to any possible cause in his oral evidence beyond what he had said in his report. It therefore seems to me that there were three possible explanations for the internal bleeding: (1) that it was inflicted traumatically in circumstances that I explained, for which there was no other direct evidence; (2) that it was inflicted in the course of obtaining samples or other processes carried out by medical staff after R had died; or (3) there is an unknown cause. Of course, as with all the other evidence, I can draw no conclusions about this aspect in isolation, it must be considered alongside all the other evidence.
Haemosiderin-laden macrophages .
37 Another finding at the post mortem following the histological examination was the presence of haemosiderin-laden macrophages, iron pigmented cells in the alveoli, in the bronchi in the lungs, indicative of episodes of old bleeding. As Professor Risdon and Dr Kiaho and Dr Leadbeater advised, there are a number of possible causes for haemosiderin-laden macrophages, one of which is airway obstruction. The presence of haemosiderin-laden macrophages is consistent with an earlier occasion of airway obstruction, including attempted suffocation. It is not, of course, diagnostic of that because, as the experts agree, there are a number of potential causes.
Bruise to the forehead .
38 A bruise on the forehead was seen by Dr J when she examined R at the out of hours clinic on 5th May. A bruise was subsequently seen in the same or at least a similar location when R was examined by Dr G after death on 5th May and at post mortem. The measurements of the bruises are not exactly the same and it is, therefore, possible, though in my view highly unlikely, that the two bruises represent two separate injuries.
39 By this age R was mobile, he was crawling and he was standing up in his cot. As Dr Robinson and others state, children of this age do sustain bruises through falling and knocking into hard objects and the location of such bruises is typically on the bony prominences, including the forehead. It is not surprising, therefore, that R sustained a bruise on his forehead.
40 Dr Robinson's experience is that such bruises are invariably explained by some account from his parents or carers as to how the bruises were sustained and, in the absence of such an explanation, concern is elevated that the bruise may have been sustained non-accidentally. In this case the parents have given two possible explanations. First, that R sustained the bruise by hitting his head on the floor while trying to crawl; secondly, that he sustained the bruise when he banged his head on the cot on 5th May. The father's oral evidence, however, was that he thought the bruise on the forehead had occurred before R was found screaming in his cot on 1st May. Irrespective of this bruise, the parents' representatives stress that the bruise was in a place typically found in a child of this age, that the parents have provided explanations accepted by professionals as plausible, and that there was an immediate referral for medical treatment on 1st May.
41 Mr Ekaney submits that this latter point has a wider significance. He describes the mother's actions as a powerful pointer to her openly seeking advice from professionals when she had concerns, however small. He submits that the notion that the mother deliberately harmed R by inflicting injuries upon him and not bringing it to the attention of medical professionals is, to use Mr Ekaney's word, ludicrous. Furthermore, he submits that it is patently unlikely that she had knowledge of the father hurting R and concealed it.
42 The evidence from Dr G’s examination and Professor Risdon post mortem examination is that R had a torn upper labial frenulum. There was also some ulceration of the lower frenulum consistent with an earlier tear, although not diagnostic of it, since there are other causes of mouth ulcers.
43 The tear in the upper frenulum was described by Professor Risdon as fresh, which he explained in oral evidence as meaning that it must have occurred no more than 24 or at most 48 hours earlier. In his report Dr Leadbeater queried whether it was in fact a tear at all, suggesting that it might be "granular erosion", but he was, of course, dependent purely on the images in the photographs, whereas Dr G, Professor Risdon and Dr Kiho conducted a physical examination. There was notably an absence of any real evidence of blood associated with this torn frenulum, if indeed it was torn. Dr Kiho thought that there might have been some blood, but she withdrew that suggestion in oral evidence, preferring to say that it was reddening. I conclude that there was on a balance of probabilities no blood or at least no significant bleeding. This conclusion is itself significant because, as Dr Robinson observed, the frenulum, like other areas of the mouth, is rich in blood vessels and when cut tends to bleed profusely.
44 In their closing submissions Mr Fuller and Mr Baggley remind me of the blood seen in R's cot by Dr G and Detective Sergeant Turner when they visited the flat on 5th May; blood was seen on the bed sheet in the cot. Mr Fuller and Mr Baggley suggest that this is more likely to be the result of the inflicted torn frenulum than anything else that might have happened, for example with a call against the cot bars that the father says happened on 1st May. They rely on the location of the bloodstain, which was in the side of the cot nearest to the wall as opposed to the position that R was allegedly found by his father when he entered the bedroom on 1st May and found R screaming with his hands through the bars of the cot. Mr Fuller and Mr Baggley submit that common sense suggests that it is highly likely that a hurt, shocked and screaming child who had fallen against the bars of the cot would land at one side of the cot, lie there for long enough to deposit blood on the sheet and then roll all the way to the other side, ending up with his face against the bars, all without causing blood to be smeared across the sheet. With respect to Mr Fuller and Mr Baggley, it seems to me that this is the type of speculation that this Court must be careful to avoid.
45 I note that the parents' case is that on the 1st May blood was seen on and under R's nose and above his mouth. This would, therefore, be consistent with bleeding from a torn frenulum. On the other hand, Dr J, an experienced GP, did not observe a torn frenulum when she examined R that evening, and Professor Risdon's description of the tear as fresh would appear to rule out the possibility that it had occurred as long ago as 1st May, five days before R died.
46 The issue of the torn frenulum is complicated by a further aspect of the case. The accounts given by the parents, the evidence of the 999 call, which I have listened to, and the accounts given by Dr Roberts and the paramedics who attended the scene all show that persistent attempts were made to resuscitate R over a period of perhaps 15 minutes, perhaps longer. These included about 10 minutes of efforts made by the parents, (who understandably were plainly increasingly frantic, as illustrated by the 999 call), to resuscitate him by CPR and mouth-to-mouth resuscitation. When the paramedics arrived one of them attempted to intubate R by inserting a rigid plastic tube but was unable to do so because his jaw was stiff due, clearly, to rigor mortis, and she was unable to prise his mouth open to allow the tube to be inserted. As a result the tube was only inserted for about half a centimetre or so beyond his lips. Later attempts were made to apply a bag mask. It is therefore suggested on behalf of the parents that those efforts may have caused the tear to the frenulum. In my judgment this is a possible explanation and, in particular, the aborted attempt to intubate R, in which the paramedic attempted to insert the tube between the teeth and gums where the tongue was protruding slightly, may have been responsible for the torn frenulum. If so, it would explain the presence of a fresh tear and the absence of blood, R being asystolic by this point so that no blood was being pumped round his body.
47 This tear in the frenulum, as I find it to be on a balance of probabilities, is, of course, consistent with an act of physical abuse, either the forcible insertion of a bottle or other object into the mouth or a blow to the mouth externally or to a twist of the upper lip. But it also, in my view, consistent with being accidentally inflicted in the course of desperate attempts to resuscitate him, as described above.
The mark to the ear
48 The mark on the ear consists of an oval mark at the top of the pinna, as described above, on the outer aspect, i.e. opposite from the skull, and some marks on the inner aspect. The local authority relies on Professor Risdon's analysis, supported by Dr Robinson, to submit that these marks are bruises – a bruise on the outer aspect, petechiae on the inner aspect – and that the most probable explanation is that they were inflicted by a twisting action.
49 To this the parents respond as follows. First, they question, through counsel, whether the larger mark on the outer aspect is in fact a bruise at all. Professor Risdon robustly insisted that it was a bruise and was very dismissive of any suggestion to the contrary. In the circumstances it was interesting to note that his colleague, Dr Kiho, was careful in her evidence to say that it would not be safe to describe the mark as a bruise. Secondly, Dr G, who conducted the initial examination, described the mark on several occasions as a mark as opposed to a bruise and was careful to adhere to that description in her oral evidence. Thirdly, the marks on the other side of the ear called petechiae cannot in fact be established as petechiae post mortem because the blanching test on which clinicians commonly rely is not possible. The description of them as petechiae, therefore, depends on appearance alone. Fourthly, there was no evidence that the marks on the ear were seen before Dr G's examination by the parents or any of the paramedics or by Dr Roberts. Fifth, R had plainly been dead for some time before the marks on the ear were seen. On other aspects of his body there was livedo or hypostasis which had commenced, as had rigor mortis. Clearly, the post mortem process of decay was underway and inevitably that affected the appearance of the body overall. Sixth, there was no coagulation study carried out of R's body. Seventh, there was no histological examination carried out to determine whether the mark on the ear was indeed a bruise. Dr Leadbeater said that it was his practice always to take a histological sample for analysis. Professor Risdon demurred, saying that he had regard for the sensitivities of the families when considering procedures that would result in a disfigurement of the face. Whilst acknowledging this point made by Professor Risdon, I think there is force in Dr Leadbeater's observation that the consequence is that the evidence in this respect is incomplete.
50 On balance I am not persuaded that the marks on the ear were bruises. They may have been bruises but, in my judgment, the local authority has not proved that they were.
51 Before reaching any further conclusion as to the cause of the injuries and the local authority's allegations as to the cause of death I must consider the rest of the evidence under the heading "the wider canvas". I turn to consider the evidence of the parents as to their life and lifestyle and I begin by recording my impression of them as witnesses which, as the case law establishes, is a crucial aspect of my analysis.
52 I say straight away that having listened carefully to the evidence of the parents I found them to be impressive and reliable witnesses who were trying their best to tell me the truth. They are very different individuals. The mother is outgoing, talkative and emotional; the father is introspective, quiet and reticent. But I was struck listening to their evidence, to their evidence about R, their evidence about home and at no point did I have any concerns about the truthfulness of what they were saying to me.
53 In cross-examination and in submissions, Mr Fuller very properly focused on certain aspects of their account which he submitted demonstrated inconsistencies and also oddities and on matters which were unexplained. I stress that I have all of Mr Fuller's submissions on those points firmly in mind. What struck me, however, was how relatively few examples there were. Mr Fuller focussed, for example, on the fact that the father was unable to explain why he had telephoned the mother six times for a few seconds each on 1st May shortly before she returned home, or indeed even to recall doing so. It seems to me, however, having listened to his evidence, that this was simply something that he had forgotten. In this context, I bear in mind, of course, the observations I have already alluded to of Peter Jackson J and Mostyn J in the Lancashire cases.
54 Mr Fuller also relies on what he submitted was a conflict of evidence as to whether or not R was a planned or unplanned baby. In my view, with respect to Mr Fuller, nothing turns on that. This couple planned to have a baby at some point but not at the point when the mother became pregnant. That, it seems to me, is the obvious interpretation of their various statements about that matter.
55 Mr Fuller also relied on different accounts given by the father about how frequently he had checked R on the afternoon of 5th May. Again, however, having looked carefully at these different accounts, I do not interpret them as indicating a deliberate attempt to lie or an unreliable account at all. It seems to me that this is another example of how accounts given by a witness may vary in some respects over time.
56 Mr Fuller raises a number of other factors which he submits indicate culpability. He points with justification to the young age and inexperience of this couple, to the undoubted untidiness of their flat, to their housing problems during R's life, to their relative social isolation, to their failure to take up offers of help, to the pressures they experienced going back to work and the restrictions it imposed on their routine, and to a number of other factors which he submits overall led to an increased pressure on this young couple. Mr Fuller submits that the parents have provided at times what he describes as an exaggerated positive image of their life with R, when the reality is that the circumstances were much more difficult and stressful than the parents were prepared to concede. The local authority does not assert that R's environment amounted to the sort of neglect that would lead to intervention by itself, but rather that it indicates that R was not necessarily as much at the centre of the parents' lives as they would like the Court to believe.
57 On the other hand, I am satisfied, having heard and considered their evidence and all the other evidence, of the following matters. First, I find that they were devoted to R, as evidenced by the father's touching comment that "he made life worth getting up for". Secondly, I take account of the contemporaneous evidence, in particular that of the two health visitors and the maternal grandmother, that these parents were caring and attentive towards their baby son. Thirdly, I take account of the fact that R was generally doing well and meeting all his milestones. Fourthly, I am satisfied that the parents cooperated well with the health visitors and other professionals and ensured that all meetings and appointments were kept. Fifthly, I note their close and mutually supportive relationship with each other. Sixthly, I am satisfied they did have support from their extended family, in particular the grandmother. As a result, Mr Storey submits, with considerable force in my judgment, there is not a single witness who has a bad word to say about this couple.
58 Mr Fuller relies on an interpretation of the telephone calls on 5th May, to which I should refer. I have already earlier recited how the mother telephoned the father at about 10 to five for about 13 minutes and shortly afterwards the father telephoned back, on his account, having found R lifeless in the cot. On behalf of the local authority Mr Fuller and Mr Baggley invite the Court to infer that the father knew R was dead by the time of that call but had not worked out how to deal with the situation. It seems to me that that again is straying into the area of speculation. For my part I find it improbable, notwithstanding his generally quiet and reticent nature and notwithstanding the likelihood that the mother was doing most of the talking, that the father would have been able to persist with the pretence of 13 minutes that nothing was wrong if he really knew that his son was lying dead in the room next door.
59 The local authority submits that R died because he was suffocated by his father. It further submits that on at least one further occasion he interrupted R's breathing, probably using the cushion in his cot, thus leading to the presence of the haemosiderin-laden macrophages identified at post mortem. Mr Fuller and Mr Baggley are careful not to contend that R's death was necessarily the desired outcome of the father's actions, but rather may have been the result of frustration and tiredness and a wish to quieten a crying baby. In support of that argument, Mr Fuller and Mr Baggley rely principally on, first, the wider canvas points that I have set out as relied upon by them above; secondly, the fact that R sustained physical abuse, they say, on a number of occasions; thirdly, the inconsistencies in the account as to the events of 5th May and the presence of haemosiderin-laden macrophages.
60 For reasons already stated, I conclude that the wider canvas issues in this case clearly demonstrate that these parents were caring and loving. I accept that they were young; I accept that they were unquestionably untidy, but I emphatically reject Mr Fuller's submission that the factors he identifies undermines their assertions that R was the centre of their lives. On the contrary, I accept that he was the centre of their lives. It is true that they struggled at times and, like all new parents – especially, although not exclusively, young parents – they found it challenging getting used to the demands of a new baby but, looking at the overall picture of this family, I see little support for Mr Fuller's submission.
61 The pathologists concluded that the cause of R's death was unascertained. After a lengthy analysis in the course of a nine-day hearing, the conclusion I reach is that the local authority has not proved that he was killed by his father in the manner alleged. Equally, on a balance of probabilities I am not persuaded that the evidence is sufficient to support a finding of any attempt at an earlier suffocation.
62 I acknowledge the medical evidence of the marks and the torn frenulum, taken individually and together, is capable of being interpreted as evidence of physical abuse, but the courts have repeatedly stressed that judges look at all the evidence and only the judge is able to do that. I remind myself again of the wise words of Charles J. In this case, looking at all the evidence, considering the medical evidence in the context of the parents' own evidence, which I accept, the local authority has not satisfied me on a balance of probabilities that the mark on the ear was a bruise, or that it was inflicted non-accidentally, or that the torn frenulum was inflicted by the parents, or that the bruise on the forehead was a result of an assault by either parent. In the circumstances the allegations against the mother of failing to protect fall away.
63 I therefore conclude that none of the local authority’s allegations in support of the threshold as set out in the schedule have been proved on a balance of probabilities. There is, in my judgment, no likelihood that H would suffer significant harm in her parents' care. The local authority's application for a care order is therefore dismissed.
64 Although this is not the occasion for any detailed general guidance, I wish to draw attention to some concerns that arose about the investigation into the circumstances of R’s death.
65 First, as stated above, the post mortem examination did not take place until 15 days after R died.. This delay was in breach of clear guidance given by the working group convened by the Royal College of Pathologists and the Royal College of Paediatrics and Child Health under the chairmanship of Baroness Kennedy QC, headed “Sudden Unexpected Death in Infancy”, which recommends (at paragraph 7.1) that post mortem examinations in such circumstances should take place within 48 hours of the infant's death where possible. As Mr. Storey pointed out, the reason for this requirement is that the longer the delay in carrying out the examination of the body, the greater the risk of artefact and corruption and the consequent risk of crucial evidence being lost or misinterpreted. One explanation for this delay may be the shortage of suitably qualified pathologists. Sitting as I do each year in a number of cases in which a child has died, it is notable that pathology has become a much more complex and specialised area of science, involving many subsidiary specialists who may have to be consulted and whose detailed opinion may have to be incorporated into the final assessment and report. I am concerned at the apparent shortage of specialist pathologists – forensic and paediatric pathologists, and histopathologists – able and willing to carry out these very important investigations, and the shortage of centres at which the detailed examinations can be performed.
66 Secondly, I am concerned that conversations between the various professionals involved in the investigation may not have been fully or accurately recorded. Where, there is a difference of interpretation of the various signs noticed at post mortem, all discussion about this – whether in person or by email or otherwise – must be fully recorded and summarised in the ultimate report. Mr. Storey and Miss Zabihi remind me of the trenchant observations by Munby J (as he then was) in Re L (Care Assessment: Fair Trial)  EWHC 1379 (Fam) as to the importance of ensuring full and accurate note-taking in family proceedings so as to ensure that the parties receive a fair trial. The same point must surely apply to all forensic investigations.
67 Third, where documents are being transferred between a number of agencies – police, coroner, pathologists – great care needs to be taken to ensure that documents are not mislaid and that an accurate record is kept of the dispatch and receipt of all documents generated in the course of the investigation. Overall, it seems that greater rigour is required in record-keeping around post mortem investigations.
68 I shall draw these observations to the attention of the Chief Coroner.