Strand, London, WC2A 2LL
B e f o r e :
| A Local Authority
|- and -
|K, D and L
Miss A Ball QC and Miss A Le Prevost (instructed by Goodall Barnett James) for the First Respondent
Miss R Brown (instructed by Holden & Co) for the Second Respondent
Mr S Cobb QC (instructed by Stephen Rimmer & Co) for the Third Respondent
Hearing dates: 22 / 26 and 29 November to 3 December 2004 and 24 / 28 January 2005
Crown Copyright ©
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
A general background history
" Time of death: 11:20 a.m.
History: briefly from distressed mother, baby fed at 9.30, was put in cot upstairs, found not breathing, pale and face in pillow with some foaming near the mouth, sometime after 10 o'clock. Attempt at resuscitation, neighbour 'phoned ambulance.
The paramedic informed that resuscitation had been given at 10.47, arrival time around 11.05 the resuscitation continued but was unsuccessful. The infant was of large size, the skin was mottled and cool, no dysmorphic features, no abnormal marks or bruises. Body temperature 34.8. Clinical examination (Dr Sokale), including the back of the child showed no abnormal marks "
"Family and social relationships.
The family are extremely close, but tend to keep themselves to themselves. Their neighbours have offered a helping hand since H died and the family have felt enveloped within the neighbourhood. [The father's] parents have died and his siblings live in different parts of the world, he has very little contact with them. [The mother] has her extended (sic) living in Hastings. She has a couple of aunts that are not in good health and elderly grandparents. Contact with them all is seldom due to [the parents] being busy with the three children. [The maternal grandmother] is at present living in Surrey, her aunt telephoned her mother to say that H had died. [The mother] is upset that her mother's reply was that she probably would not be able to come down to the funeral. [The mother] does feel unsupported by her mother and states that her mother is not a proper grandmother. Both [the parents] stated that their relationship is very strong and that they support each other, and this was evident when they were speaking to me about their family and the death of H.
H was a much loved child, who completed [the parents'] family. All three children are close in age, the tragic death of H has affected [both parents] considerably. Both [L and the subject child] are too young to understand the concept of the death and just refer to H as being asleep. ------------------ The coroner has explained that H's body could be in London for a couple of months before his body is released for burial. The couple have an appointment with DSS about the cost of the funeral. The couple feel the need to remain together at this present time, as they are grieving the loss of one of their children. There are no concerns about this family they present as a close-knit family that manage really well living off of a low income
[The father and mother] are being enveloped in compassion within the community. ------------------ They both feel that there is nothing much more they can do until H is returned to them. Both [the mother and the father] are not asking for help at this present time, but do understand they can contact social services at any time they want some support. ---------- [The mother] could find that in the future she needs some space from the girls to deal with her feelings of loss. "
General points as to my overall approach at law
Nature of the hearing
" ------ the approach in practice at the threshold stage, where the local authority has to establish the existence of the threshold criteria on the basis of facts proved to the civil standard, and thus, on that basis, that the parents have not acted as it would be reasonable to expect a parent to act, is largely an adversarial process. Further at that initial stage, the test that the court is applying is not one as to what would best promote the welfare of the child, rather the issue at that stage is whether the threshold or trigger exists to enable public authorities to interfere in the lives of a family and thus possibly remove children from their parents.
Human nature and the respective roles of the parties at that stage of public law proceedings have the result that those proceedings are treated at that stage as being adversarial or as having a substantial adversarial element."
My comments as to the nature of the threshold hearing were adopted by all counsel. In other parts of the judgment I refer to the inquisitorial function of the court and aspect of the proceedings. I add that I remain of that view and consider that it is not contradictory to the references to, and points made by the President in paragraphs 13 and 27 of Re U Re B (cited below) in respect of the partly inquisitorial approach of the court and its quasi-inquisitorial function in dealing with cases concerning children. Naturally I acknowledge and accept that those remarks are correct and that at the threshold stage (or later) the possibility that the court may require further evidence, or instigate an investigation, distinguishes cases concerning children from cases that are exclusively adversarial (notwithstanding their case management by the court).
"The standard of proof to be applied in Children Act cases is the balance of probabilities and the approach to these difficult cases was laid down by Lord Nicholls of Birkenhead in his speech in Re H. That test has not been varied nor adjusted by the dicta of Lord Bingham of Cornhill or Lord Steyn who were considering applications made under a different statute. There would appear to be no good reason to leap across a division, on the one hand, between crime and preventative measures taken to restrain defendants for the benefit of the community and, on the other hand, wholly different considerations of child protection and child welfare nor to apply the reasoning in McCann to public, or indeed to private, law cases concerning children. The strict rules of evidence applicable in a criminal trial which is adversarial in nature is to be contrasted with the partly inquisitorial approach of the court dealing with children cases in which the rules of evidence are considerably relaxed. In our judgment, therefore, Bodey J applied too high a standard of proof in the case of Re ET and the principles set out by Lord Nicholls of Birkenhead should continue to be followed by the judiciary trying family cases and by magistrates sitting in the family proceedings courts".
"The balance of probabilities standard means that a court is satisfied an event occurred if the court considers that on the evidence the account of the event was more likely than not."
(See the [AC] report 586E and [FLR] report 96B)
The phrase "more likely than not" in that passage identifies a sense in which the word "likely" can be used, and perhaps its primary usage. It follows that in applying the balance of probabilities test, the court is not determining whether there is a real possibility that the relevant event occurred, but is determining whether it is more likely than not that it did so.
"When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious that allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.........."
He goes on to point out that some things are more likely than others and then says:
"Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It only means that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether an event occurred. The more improbable the event the stronger must be the evidence that it did occur."
Further (at 587E of the [AC] report and 97C of the [FLR] report) Lord Nicholls makes it clear that it is best to stick to the established law on the standard of proof, and Lord Lloyd, who gives one of the minority judgments, agrees with this view (see 577E [AC] report and page 87C of the [FLR] report).
"The starting point here is that courts act on evidence. They reach their decision on the basis of the evidence before them. When considering whether an applicant for a care order has shown that the child is suffering harm or is likely to do so, the court will have regard to the undisputed evidence. The judge will attach to that evidence such weight or importance he considers appropriate. Likewise with regard to disputed evidence which the judge accepts as reliable. None of that is controversial. -------------------"
I emphasise this reference because it confirms the basic point that the court has to reach its conclusions on the evidence before it. Lord Nicholls goes on to say (at 589E of the [AC] report and 99B of the [FLR] report):
"In my view these unresolved judicial doubts and suspicions can no more form the basis of a conclusion that the second threshold condition in s 31(2)(a) has been established than they can form the basis of a conclusion that the first has been established."
"At trials, however, the court normally has to resolve disputed issues of relevant facts before it can reach its conclusion on the issue it has to decide. This is a commonplace exercise, carried out daily by courts and tribunals throughout the country. This exercise applies as much where the issue is whether an event may happen in the future as where the issue is whether an event did or did not happen in the past. To decide whether a car was being driven diligently, the court will have to decide what was happening immediately before the accident and how it was being driven and why. Its findings on these facts form the essential basis for its conclusion on the issue of whether car was being driven with reasonable care. Likewise, if the issue before the court concerns the possibility of something happening in future --------------------------------------------------- A decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom."
As appears therefrom this applies to all stages of public law proceedings and thus when the court is considering the question of whether a child has suffered inflicted harm, whether a child is "likely to suffer harm" (when the word "likely" has a different meaning) and when a court is considering "risk" at the welfare or disposal stage.
" I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts including the history of members of the family, the state of relationships within a family, proposed changes within the membership family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue."
i) that the roles of the court and the expert are distinct, and
ii) that it is the court that is in the position to weigh the expert evidence against its findings on the other evidence, and thus for example descriptions of the presentation of a child in the hours or days leading up to his or her collapse, and accounts of events given by carers.
" Contrast [with the position in Cannings] the role of the judge conducting the trial of a preliminary issue in care proceedings. The trial is necessary not to establish adult guilt, nor to provide an adult with the opportunity to clear his name. The trial of a preliminary issue is the first, but essential, stage in a complex process of child protection through the medium of judicial proceedings.
 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. In those circumstances we must robustly reject Mr Cobb's submission that the local authority should refrain from proceedings or discontinue proceedings in any case where there is a substantial disagreement amongst the medical experts. For the judge invariably surveys a wide canvas, including a detailed history of the parents' lives, their relationship and their interaction 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 had 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 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. ---------- (emphasis added)
The value and weight of expert medical evidence - Expert evidence and the judicial function
"The court invariably needs and invariably depends upon the help it receives from experts in this field. ... The expert advises, but the judge decides. The judge decides on the evidence."
In the same case, Butler Sloss LJ said (at p.674F):
"Family judges deal with increasingly difficult child cases and are much assisted in their decision-making process by professionals from other disciplines: medical, wider mental health and social work among others. The courts pay particular attention to the valuable contribution from paediatricians and child psychiatrists as well as others, but it is important to remember that the decision is that of the judge and not of the professional expert. Judges are well accustomed to assessing the conflicting evidence of experts. "
"Many if not all family cases involving children feature expert opinion evidence ... In cases involving children, expert medical and psychiatric evidence from paediatricians and allied disciplines is often quite indispensable to the Court. As Parker L.C.J. said in Director of Public Prosecutions v A & BC Chewing Gum ltd. 1 Q.B. 159 @ 165A, when dealing with children, the court needs 'all the help it can get'. But that dependence in no way compromises the fact that the final decision in the case is the judge's and his alone"
Later (at 211A-B) she said:
" "...the passing of the [Civil Evidence Act 1972] should not operate to force the court to, in Wigmore's words, 'waste its time in listening to superfluous and cumbersome testimony' provided that the judge never loses sight of the central truths: namely that the ultimate decision is for him, and that all questions of relevance and weight are for him. If the expert's opinion is clearly irrelevant, he will say so. But if arguably relevant but in his view ultimately unhelpful, he can generally prevent its reception by indicating that the expert's answer to the question would carry little weight with him. The modern view is to regulate such matters by way of weight, rather than admissibility.
But when the judge is of the opinion that the witness' expertise is still required to assist him to answer the ultimate questions (including, where appropriate, credibility) then the judge can safely and gratefully rely on such evidence, while never losing sight of the fact that the final decision is for him". (emphasis added)
" The submission seems to me to ignore the very different functions of the professionals in a judicial investigation of this sort. It is important to focus on those functions and not to confuse them.
 The expert of ultimate referral was there to guide the judge as to the relevant medical and scientific knowledge, inevitably expressing himself in medical language. The judge's function was a very different one. He had to consider the question posed by s 31 of the Children Act 1989 as to whether L was a child suffering or likely to suffer significant harm and whether that harm or likelihood of harm was attributable to the care given to the child, or likely to be given to him, if the order were not made.
 It seems that on that very carefully stated and carefully balanced appraisal the judge would have been failing in his primary protective function if he were to have acceded to some submission that because the doctor had not been prepared to say in medical language that there was a confident diagnosis therefore there was no evidence of risk of harm. The elevation of a medical opinion to the status of a confident medical diagnosis is very much a matter of art and bounded by medical conventions that are fully recognised and, indeed, negotiated at a professional level. What this doctor was saying was that the child's condition was entirely consistent with non-accidental injury and that there was no other more probable explanation. The case, in my view, is as straightforward as that. Although Mr Storey sought to say this is some dangerous invasion of the right of parents to presumptions of innocence and to safeguard from adverse findings absent the strongest and clearest of evidence, those submissions, in my opinion, are not realistic in the facts and circumstances of this particular case."
" It is undoubtedly true that the frontiers of medical science are constantly being pushed back and that the state of knowledge is increasing all the time. That is why I find that when presented with a speculative theory based on an unlikely hypothetical base an expert will rarely discount it and will in effect never say never. Fanciful speculation is not an appropriate method of inquiry. What is needed and what the experts have done in this case is to piece together all the available information and look at the differential diagnosis. Many of the experts in this case specialise within a particular and very narrow field and by reason of being experts of referral at centres of excellence they acquire special knowledge and skill. However, concentration on a very narrow area of expertise can sometimes render it difficult for the expert to see the whole picture. In this regard I find that the pathologists are at a disadvantage when compared with the clinicians.
 The judge has the duty of sifting the evidence from the experts, who form their assessments within their particular area of expertise, and the judge has to decide the case by reference to the various issues. Although the medical evidence is of very great importance it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear, convincing picture of what happened." (emphasis added)
Later she said:
" -------------- I do not accept the contention of the parents that the Bolam test must be applied in determining whether a responsible body of opinion can be held so that if there is a respectable thesis to be advanced in contradiction to other opinions it must be accepted (see Bolam v Friern Hospital Management Committee  2 All ER 118,  1 WLR 582). The test for reasonable treatment procedure is in my judgment very different from determining what actually happened to a baby. In care proceedings the court has to test the evidence, piece together the parts of the jigsaw in order to determine whether a clear picture emerges." (emphasis added)
i) The court has to take into account and weigh the expertise and speciality of individual experts and is often assisted by an overview from, for example, a paediatrician.
ii) In a case where the medical evidence is to the effect that the likely cause is non accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof.
iii) The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury (or human agency) and the clinical observations of the child, although consistent with non accidental injury (or human agency) 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.
iv) Such findings have to be based on evidence and findings of fact to the civil standard and reasoning based thereon.
R v Cannings 1 FCR 193,  1 AER 725
"We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research both here and internationally become available."
"Experts in many fields will acknowledge the possibility that later research may undermine the accepted wisdom of today. "Never say never" is a phrase which we have heard in many different contexts from expert witnesses. That does not normally provide a basis for rejecting the expert evidence, or indeed for conjuring up fanciful doubts about the possible impact of later research. With unexplained infant deaths, however, as this judgment has demonstrated, in many important respects we are still at the frontiers of knowledge. Necessarily, further research is needed, and fortunately, thanks to the dedication of the medical profession, it is continuing."
" In family proceedings the procedures and the rules of evidence are different from criminal trials. In the first place the material available to the court is likely to be much more extensive than would be admitted in a criminal trial. In the second place the standard of proof to be applied before reaching a conclusion adverse to the parent or carer is, as we have set out above, also different. Given a similar background to that in R v Cannings a judge would be required to ask himself which of two possible explanations, human agency or unascertained natural cause, is the more probable. If persuaded by clear and cogent evidence that it was more likely to be the former the court is entitled to reach a conclusion adverse to the parent or carer.
 In the brief summary of the submission set out above there is a broad measure of agreement as to some of the considerations emphasised by the judgment in R v Cannings that are of direct application in care proceedings. We adopt the following:-
(i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.
(ii) Recurrence is not in itself probative.
(iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause. (emphasis added)
(iv) The Court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.
(v) The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark."
" In a criminal case for murder or manslaughter arising out of a series of sudden infant deaths a jury is not entitled to convict and a guilty verdict cannot be deemed safe unless a natural cause of death, whether explained or unexplained, can be excluded as a reasonable (and not fanciful) possibility. " (emphasis added)
Resolving the conflict of evidence between experts
Departure from / rejection of the views of the expert witness
"By their special allocation to this work, they [i.e. Judges] acquire a body of knowledge which, strictly speaking, cannot be substituted for the evidence received, but which can be deployed to spot any weakness in the expert evidence. That is the judicial task. The expert advises, but the judge decides. The judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the court which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it. There is, however, no rule that the judge suspends judicial belief simply because the evidence is given by an expert."
And Butler Sloss LJ (at 674F):
"… it is important to remember that the decision is that of the Judge and not of the professional expert. Judges are well accustomed to assessing the conflicting evidence of experts. As Ward, LJ said, Judges are not expected to suspend judicial belief simply because the evidence is given by an expert. An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be. It is, however, necessary for a Judge to give reasons for disagreeing with experts' conclusions or recommendations. That, this Judge did. A Judge cannot substitute his views for the views of the experts without some evidence to support what it is he concludes."
"The circumstances when judges of the High Court can reject the evidence of a body of medical opinion are rare. This situation was considered by the House of Lords in Bolitho (deceased) v City & Hackney Health Authority  AC 232 … at 243:
'In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion … But if in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of medical opinion is not reasonable or responsible.'
I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable … It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed."
i) cannot depart from that view unless it can give valid reasons for departing from the medical reasoning that supports that view, and
ii) unless it can give such reasons it has to find that X is the cause of the injury having regard to the weight to be given to expert evidence based on sound reasoning.
i) would be based in part on the view of the experts, and their reasons for concluding, that there are other possible explanations to the one they have concluded is more likely than not to be the cause of the relevant death or injury,
ii) can be reached in reliance upon that view, the reasoning that supports it, other evidence and additional reasoning, and thus without disagreeing with or challenging the reasoning of the experts by reference to the matters they have taken into account, or their expertise, and
iii) in short would be relying on the possibility or possibilities identified by the medical experts without rejecting their conclusion for a medical reason.
Naturally a factor in the reasoning behind such a conclusion is the view of the experts as to how possible or likely it is that what they regard as possible explanations, rather than probable explanations, may be correct.
My approach to the two deaths of H and L
i) My findings should be limited to L's death,
ii) H's death could not be relied on to indicate either that L's death was less suspicious or more suspicious than it would have been if her brother H had not died and H's death is thus probative of nothing, or put another way in determining the cause of L's death no weight can be attached to, or inference drawn from, H's death, and
iii) H's death and matters relating to it are only relevant as a part of the history and experience of the family.
Comment, the mother's position and my approach
i) conclude that one or more of the possible causes she advances are more likely than not to be the cause of L's death and the injuries and marks to her body, or in any event that they provide a reasonable explanation for them, and
ii) refuse to find that she caused L's death and the injuries and marks to her body.
Comment on the approach of the experts in this case
than not to be the cause of death and the injuries.
i) the perception at the early stages of this case that Professor Risdon and Dr Djurovic were in disagreement, or might disagree, in the context of family proceedings, and
ii) the respective roles of medical experts and the judge set out above (and in particular the point that the decision maker is the judge),
cause me to suggest that:
a) it should be considered whether it would be better not to ask experts in a case concerning children to express their views by reference to the "balance of probability", and
b) in any event at an early stage when reports written for a criminal investigation are introduced into family proceedings the relevant expert should be asked whether it has been written against the criminal standard of proof and thus whether a possible or plausible explanation, or cause, is being put forward as being reasonable (as opposed to fanciful or simply theoretical) in that context, and his or her view as to how likely that possibility is.
i) identify possible causes of the relevant death, injuries or harm setting out in respect of each the reasons why it might be a cause and thus why it should be considered,
ii) state their views as to the likelihood of each possibility being the cause of the relevant death, injuries or harm and the reasons why they include or reject it as a reasonable (as opposed to a fanciful or merely theoretical) possible cause,
iii) compare the likelihood of the cause (or causes) identified as reasonable possibilities being the actual cause of the relevant death, injuries or harm,
iv) state whether they consider that a cause (or causes) is (are) the most likely cause (or causes) of the relevant death, injuries or harm and their reasons for that view, and
v) to state whether they consider that a cause (or causes) is (are) more likely than not to be the cause (or causes) of the relevant death, injuries or harm and their reasons for that view.
The injuries to L and the histology / microbiology
The Experts' Meeting on 19 November 2004
The Experts' evidence
i) they consider Professor Risdon's infection model and exclude as highly unlikely streptococcal septicaemia, toxic shock syndrome, laryngeal reflex and any other illness arising from an infection that was virulent or could have led to extremely rapid death, and impairment of natural reflexes,
ii) they accept that L might have vomited from a low grade infection or simply because she was unwell,
iii) they point out the strong instinctive protective mechanisms that children of L's age have against inhaling vomit,
iv) they point out that none of the other injuries could have been caused by infection,
v) they point out that petechial haemorrhages of the amount and distribution seen on L are caused by an obstruction to venous return and are commonly seen where death is caused by compression to the neck which has this effect, and they do not accept that it is at all likely by comparison that they could have been caused by choking or CPR,
vi) they agree that the bruises and the marks to the neck and shoulder are consistent with a struggle and do not accept that it is at all likely by comparison that they were caused in rough play, or during CPR, or during the transportation of L from the helipad to the hospital, and
vii) they agree that (a) looked at individually each of the relevant features is consistent with the conclusion they have reached, and (b) the constellation of those features is also consistent with, and thus supports, that conclusion.
The possibilities advanced by the mother
Low grade infection (or possibly the child being sick).
(Possible) compromise to reflexes.
Vomit/regurgitation of stomach contents without expellation, or laryngeal spasm with the same effect.
Aspiration of vomit followed by asphyxiation/choking (on bolus or liquid) leading to some petechials.
Convulsive phase of asphyxiation leading to rearing up and hitting head on headboard or attempt to move from bed and falling on headboard.
Marks to neck (superficial and variously described) caused by a chaffing from cardigan or resuscitation attempts (e.g. when exposing the neck and/or cutting open the clothing and/or adjusting the head position and/or intubation).
Underlying bruise to the nose caused by pinching during CPR.
Small abrasions on mandible not seen until hospital, possibly caused by a strap holding on the mask.
Bruises to back caused by a vigorous and prolonged CPR especially on the journey from the helicopter pad to the hospital.
Prominent petechials caused by a vigorous and prolonged CPR.
Convulsive phase when the head wound was caused on the headboard.
Leading to vomiting.
Compromise to reflexes.
Vomit not expelled.
Inhalation of vomit – choking/asphyxiation.
As in the first model.
Child feeling unwell.
Attempts to move from bed and falls on the headboard.
Concussion leading to vomiting.
As in the first model.
Examination of the house by the police
The sequence of events on 2 February 2004 – the date of L's death
i) The mother was seen with both girls in the village during the morning (between 10 and 10.30) by a lady who knew the family and who spoke to L, who was her normal self.
ii) At about 1.15 the father telephoned home and noticed nothing odd during the conversation and heard the children playing in the background.
iii) The mother telephoned Rev M at about 3.10 in a state of distress telling her that she had found L collapsed. Rev M told her to ring for an ambulance immediately.
iv) The mother then telephoned the father and only after Rev M arrived did she telephone for an ambulance.
v) Rev M attempted mouth to mouth resuscitation and the mother got a neighbour (Mrs H) to come and help her. Both Rev M and Mrs H heard a gurgling noise when doing this.
vi) L was removed to the ambulance very shortly after its arrival. She was transferred to a helicopter and flown to hospital. In the helicopter she was sick when she was intubated, her mouth and airways were then cleared by using a suction catheter and resuscitation by bag and mask was recommenced. At that time understandably the paramedic was of the view that further ventilation was more important than any further clearing of her mouth and airway and it was common ground that the further ventilation caused air to enter L's lungs. I pause to comment that this evidence provides, what in my view is a compelling explanation for vomit being found in L's airways (see for example the report of Professor Gardiner cited at paragraph 36 of Schedule C).
vii) The people involved in the resuscitation attempts before L arrived at hospital noticed marks on her neck, but give varying descriptions of them. The cut to her forehead was obvious. None of them noticed the petechial haemorrhages and these were not noticed until the consultant at the hospital pointed out a rash (which was then subtle) after the attempts to resuscitate L had been abandoned. Shortly after that the rash (the petechial haemorrhages) became obvious.
viii) No-one involved in the resuscitation attempts before L was sick in the helicopter noticed or smelt any vomit.
ix) At no stage during the resuscitation attempts was there evidence of any natural cardiac activity or circulation.
x) The father drove the mother to the hospital after he arrived home from work. On his way home he saw L being transferred to the helicopter and spoke briefly with an ambulance man.
Assessment of the possibilities advanced on behalf of the mother
"He also told me that in his view, based on his experience, petechial haemorrhages can be caused by resuscitation attempts on children that sadly have proved unsuccessful. He told me that he had seen such petechial haemorrhages usually on the upper part of the body and specifically referred to the neck and face. He also told me that he had seen one small infant with a rash on the lower limbs. He was of the view that vigorous CPR and attendant medication (which he said was nearly always given during resuscitation in hospital) can cause petechial haemorrhages. As I understood it he accepted in answering questions put on behalf of the mother that in cases where there was a combination of increased air blockage, cardiac compression and medication, the result can be that pressure can change and vessels can be so affected that although an ECG is not recording any electrical impulses the circulation caused by compression can produce petechials. This was in line with the opinion expressed in literature put to the medical experts by leading counsel for the mother.
He accepted that if the pathologists and paediatricians were stating that the petechial haemorrhages in this case were not caused by the attempts at resuscitation he would defer to their view. He also accepted that it was possible that in this case the petechial haemorrhages were present whilst he was performing resuscitation and he did not notice them. He also accepted that it was possible that in other cases where he had observed petechial haemorrhages on a child following failed attempts at resuscitation that those haemorrhages could have been present before those attempts began. But he stated that if the pathologists and paediatricians in this case were stating that CPR did not cause petechial haemorrhages he would have to differ having regard to his own experience in connection with the resuscitation of children. As I have said that experience is extensive."
"During their oral evidence extracts from reports of research were put to the doctors, including Professor David, by counsel for the mother. These extracts were to the general effect that petechial haemorrhages could be caused during, and as a result of, resuscitation. The validity of this research material was not challenged by the doctors but it did not change their view. They remained firmly of the view that the extent and distribution of the petechial haemorrhages in this case were a strong factor in favour of the conclusion they reached as to the likely cause of death. They also remained firmly of the view that the petechial haemorrhages were present throughout the attempts at resuscitation from around 3.10 p.m. onwards and that they had not been noticed."
An epileptic seizure as cause of death
L did not have a diagnosis of epilepsy, but epilepsy starts with a first seizure and it is conceivable that she developed epilepsy on the day of her death. Her mother has a diagnosis of possible epilepsy, which might, depending on whether the diagnosis is correct, and if so which sort of epilepsy she has, increases by a small amount, L's likelihood of developing epilepsy. It is possible, but extremely unlikely, that L had undiagnosed epilepsy.
Patients with epilepsy, including young children, have an increased incidence of sudden unexpected death, referred to by the acronym SUDEP. Data on this condition do not strictly apply to L, as she did not have epilepsy. However, it is conceivable that similar risk factors and mechanisms of death could apply to a first seizure.
i) leading to L's collapse, the cut and perhaps marks to her neck (those seen by Rev M and Mrs H), and some petechials (from asphyxiation/choking) before, at, or just after that event, and
ii) after it for the bruises to her back and perhaps petechials (from CPR, and the emphasis was on the petechials being caused by CPR rather than asphyxiation/choking), and perhaps further marks to her neck,
is a further factor pointing to a conclusion that the possible inflicted cause is more likely than the possibilities advanced on behalf of the mother.
Views of the mother's character and behaviour / rarity of the possibilities advanced
The mother's evidence and account of events
i) does not match the models she advances as to the cause of L's death and cut to her forehead, and
ii) is inaccurate in respect of the smell she says she noticed.
Unusual features of her evidence
Conclusions on the mother's evidence
i) L's death was caused by compression to her neck which caused obstruction to her airway and venous return,
ii) the mother inflicted that compression to L's neck as part of a series of events that also caused the cut to L's forehead, bruises to her back and marks to her neck, and thus that
iii) the mother, who is the only possible perpetrator, caused L's death and injuries.