England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT BRISTOL
HIS HONOUR JUDGE MARSTON

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 July 2015

Sir James Munby, President of the Family Division :

1. This is an appeal, pursuant to permission given on 2 January 2015 by Lewison LJ, from a judgment and order of His Honour Judge Marston sitting in the Family Court at Bristol on 31 October 2014.
2. Judge Marston had been conducting a finding of fact hearing in the course of care proceedings relating to a little boy, L, and his siblings. L was born on 10 January 2013. The judge made a number of findings against L's mother. Far and away the most significant was about the circumstances in which L had almost drowned on 18 August 2013, when he was therefore only some seven months old. The judge found that the mother had deliberately harmed L by drowning. The mother accepts that she had been negligent in leaving L unattended in the bath for a short period, but denies deliberately drowning him. Through her counsel, she argues before us that the judge's decision against her was wrong.

The undisputed facts

3. Shortly after 9.30 pm on 18 August 2013, the mother made a 999 call, which was recorded. The recording starts at 21.34:48. The mother was in a highly distressed condition. She said "my baby, my baby has fallen in the water", going on to say that the baby had "drowned" but was "breathing". After about 15 minutes, during the whole of which time the line had been open and the call being recorded, a paramedic arrived.
4. The judge's summary of the paramedic's evidence, both written and oral, has not been challenged. So far as material for present purposes it was as follows:

"He describes seeing M waiting "calmly and quietly" in the garden of her address. She was holding L in her arms over her left shoulder. "The female was so calm that I felt that the detail given by control may have been wrong". They went into the house into the conservatory area and he had a closer look at L. "I saw that he looked awful, his skin was pale his eyes had dark areas below them and were closed and his lips and mouth were dark in colour. I felt that this baby was clinically very unwell". He asked for the child to be put on the sofa and examined him. He was wet, unresponsive, his eyes were rolled back, he had a faint pulse and he was not breathing. M told him about leaving L in the bath for 5 minutes and then finding him drowned and that she had got some water out of him. He ventilated L who brought up some water. M, on his request, got L's red book then asked "he will be alright"? He replied "he is very poorly". She became "instantly hysterical" "the very opposite of how she had been previously". She also attempted to grab L off the sofa. He asked her to stop and she began to pace the room. He had put L on his left side to allow fluid to drain and he began to breath himself then he wheezed and stopped breathing, so he worked on the child again. L then brought up more water and started to cry, he was breathing with a notable wheeze by now. Colleagues then arrived and arrangements were made to take L to hospital. By this stage he was struggling to breathe on his own and was responding to treatment."

As the judge went on to say, it was the paramedic, Dean Mahoney, who by his skill and good work saved L's life.

The recording of the 999 call – what can be heard?

5. At the heart of the case, both before the judge and, on appeal, is the question of what it is that can be heard on the recording of the 999 call. It is common ground that, until the paramedic arrived, there were only two people present, the mother and L. For some of the time during the recording it is the mother who can be heard: some of the time speaking, some of the time screaming, some of the time what can only be described as 'roaring'. For much of the time all that can be heard is the operator repeatedly trying to attract the mother's attention: "Caller can you hear me. Come back to the phone. Caller can you hear me. Come back to the phone so I can help you." For some of the time, however, it is clear that it is L who can be heard. Crucial to understanding what had happened before the 999 call and what was happening during the 999 call is the question of what exactly it is that can be heard of L.

The trial

6. The finding of fact hearing extended over nine days from 23 September 2014 to 3 October 2014. The mother was represented by Leading Counsel of well-known skill and ability, Mr Nkumbe Ekaney QC, leading Ms Judi Evans. In relation to this aspect of the hearing the judge had evidence from a number of witnesses: in addition to the mother and Mr Mahoney, various police officers and, for present purposes of more direct significance, the evidence of various medical experts.

The expert evidence

7. I start with the report prepared jointly by Dr Simon Lenton, a Consultant Paediatrician in Community Child Health, Dr Diana Howlett, also a Consultant Paediatrician in Community Child Health, and Dr Lisa Goldsworthy, Consultant Paediatrician in the Children's Emergency Department of Bristol Royal Hospital for Children. Having listened to the recording of the 999 call, they reported as follows:

"Normal baby vocalisations are clearly heard at approximately 49 seconds, 1 minute 25 seconds, 2 minutes, 2 minutes and 15 seconds, 3 minutes and 10 seconds, 4 minutes and 5 seconds, 5 minutes to 5 minutes 50 seconds, 6 minutes and 11 seconds, 6 minutes and 31 seconds, 7 minutes and 24 seconds, 8 minutes … till 9 minutes, and 9 minutes 56 seconds. Normal baby vocalisations included polysyllabic babble and normal multi-tonal crying.

…

During this first ten minutes there are no audible respiratory sounds that might suggest recent drowning, such as coughing, grunting, wheezing or inspiratory stridor (noisy breathing on taking a breath).

…

The initial sounds heard on the recording of the baby's 'voice' are not compatible with recent drowning requiring resuscitation by the mother at home. There are no sounds of any form of respiratory distress, indeed the polysyllabic babble and crying sounds do not indicate the baby is in any immediate physical distress."

They conclude that:

"Essentially there is a disparity between the history given by the mother, the "auditory history" given by the baby in the course of the 999 call and the clinical findings on the arrival of the emergency services."

8. I turn to the report of Dr D S James of the Wales Institute of Forensic Medicine at Cardiff University. It was accurately and sufficiently summarised by Judge Marston in his judgment as follows:

"He says if you ignore the content of the 999 call M's description of immersion, apparent respiratory arrest, gradual recovery after rescue breaths and presentation to paramedics after 10-15 minutes wet, cold and in respiratory distress but responding well to oxygen with an eventual good recovery is in keeping with the pathology of near drowning. If the child was not in respiratory distress and apparently vocalising normally for an infant of his age ie "well", the description of a very unwell infant, cold, quiet and collapsed raises the question why there has been a significant and sudden deterioration in his condition. In his report the doctor puts two possibilities, either it is a complication of the immersion or "there has been a further episode of immersion causing L to collapse". In his conclusions he says the baby would not usually be normal for 10 minutes prior to a sudden deterioration but the consequences of near drowning are complex and variable and there are pathophysiological mechanisms which merit consideration by paediatric clinicians."

9. Finally, I go to the report of Dr Stephen Playfor, Consultant Paediatric Intensivist in the Paediatric Intensive Care Unit at the Royal Manchester Children's Hospital. Dr Playfor's report contains a very careful and detailed analysis of what can be heard on the recording of the 999 call. He constructed what he called "a robust timeline of events". His opinion, on the balance of probability, was that L was drowned during the interval of 49 seconds between 21.43:28 and 21.44:17. (Since the recording started at 21.34:48, this corresponds with the interval between 8 minutes 40 seconds and 9 minutes 29 seconds.) He opined that the likelihood of the respiratory distress which can be heard subsequently on the recording occurring as a physiological response to an episode of drowning before the making of the 999 call is "very small (<5% chance)." He said:

"A single episode of drowning occurring before the recorded 999 call … is not compatible with the sounds contained within that recording."

He added:

"L can be heard to vocalise and cry normally during the first 8 minutes and 40 seconds of the recorded 999 call without any sign of respiratory distress. During this period I am confident that he was conscious, 'near normal' and not in any need of resuscitation."

The judgment

10. The judge sent the draft of his written judgment to the parties. As she was entitled to, the mother sought clarification of parts of the judgment. The judge did not alter the wording of the written judgment but, at a further hearing on 31 October 2014, read out certain comments he had prepared. We have a transcript of that hearing.

The judgment – the written judgment

11. Mr Ekaney does not allege any error of law on the part of this very experienced judge. There was none. I can take this part of his judgment very quickly. Judge Marston directed himself that it was for the local authority to prove its case on the balance of probabilities. He gave himself a Lucas direction. He reminded himself of the learning that judges must be cautious where medical experts disagree, guard against the over dogmatic expert and not forget that today's medical certainty may be disregarded tomorrow. He recognised that the medical evidence is only part of the picture and that all the evidence has to be considered in assessing the pieces of the jigsaw.
12. Addressing the expert evidence, Judge Marston dealt first with the evidence of Dr Howlett and her colleagues:

"Diana Howlett … is a consultant paediatrician of 20 years. She and two of her colleagues of similar experience, Dr Goldsworthy and Dr Linton, who had been asked to listen to the recording of the call. Her report is at G87. Putting its contents very simply all the three doctors say there is a disparity in their view between the history given by the mother (the child had been found drowned a few minutes prior to the phone call) and the "auditory history" of the child on the call, ie the crying and other sounds L was making in the first 10 minutes of the call and his presentation when medical help arrived at the house. They concluded that they can hear the sound of running water after 10 minutes and the explanation is that it is at this point the child is being drowned. In their written submissions Mr Ekaney QC and Miss Evans ask me to treat this evidence very carefully. The doctor said in cross-examination "we were asked to give an opinion but none of us would consider ourselves experts in this area. It raises more questions really". I do not intend to put any significant weight on this evidence. They heard what they heard, the baby appeared to be crying while mother was shouting things like "don't die", "stand up", and in particular "wake up, wake up" when from the noise he was making he appeared to be awake. I have to say I heard that too."

13. The judge next considered the evidence of Dr James. I have already set out what the judge had to say of it.
14. The judge then turned to Dr Playfor:

"He qualified 22 years ago and has been in paediatric intensive care for 14 years and sees 4 or 5 children who have drowned each year. He says … that he is familiar with the pathology of drowning and frequently cares for children who suffer respiratory distress and who suffer respiratory arrest due to other mechanisms. He is attacked for the limited number of reports he does for court and for example having to ask what the standard of proof was in the Family Court. Let me make it clear he is in my view a properly qualified expert with appropriate experience."

15. The judge continued, describing Dr Playfor's analysis of what can be heard on the recording:

"His view is the vocalisation of the child for the first 8 minutes 40 seconds of the 999 call is normal and without any sign of respiratory distress. It is not consistent with a recent submersion that would subsequently lead to respiratory arrest. Nor are the sounds made by L in the first 5 minutes 40 seconds consistent with a child drifting in and out of consciousness. Between that time and 9 minutes 29 seconds there is no sound save for one scream by Mother. Then the baby is heard again grunting and coughing then in further respiratory distress and suddenly stops breathing at 10 minutes 48 seconds, the state he was found in by Mr Mahoney at 21:47."

16. The judge then summarised Dr Playfor's opinion:

"There are in his opinion 2 possible explanations, either a drowning takes place in the 49 seconds between 21:43:28 and 21:44:17 or there is an atypical development of one of the pathological processes which may contribute to a deterioration in the respiratory status of patients who have previously made an apparent full recovery following an episode of drowning … he examines the possibilities that might cause such a deterioration and discounts them. Then … he concludes that L's respiratory distress and arrest is caused by his having been drowned during the interval of 49 seconds between 21:43:28 and 21:44:17. Later in the report he says the likelihood of drowning prior to the phone call is very small (less than 5%). He is criticised for that as being a classic example of the over dogmatic and definitive expert. Anyone who remembers the Cannings case knows that trying to import mathematical calculations into this area is not helpful but if the doctor had just said "very small" I cannot see how he could be criticised and I do not see this as a flaw in his report. I have read the points set out [in] the Mothers closing submissions. The point which concerned me is that Mr Mahony sees the recovery and collapse in the few minutes he is treating the child, yet the doctor says a collapse pre-999 call recovery and second collapse at the time when Mr Mahony arrives is extremely unlikely. The point is made that what Mr Mahony saw was a child in and out of consciousness which was consistent with the child post the drowning in the bath. The doctor was asked about this that what Mr Mahony saw was all part of the same event. Certainly the time span is much shorter here than it would be with a collapse prior to the call and a second collapse on Mahony's arrival. Also the doctor has, in his opinion, worked through and discounted any causes for such a second collapse in this long time frame."

17. Finally, the judge turned to consider the mother's evidence:

"I now turn to consider the final part of [the] jigsaw, M's evidence. She deploys a number of powerful points before she even gets into the witness box. First there is the inherently unlikely nature of the allegation that a mother would drown her own child. Her father, for example, thought such a possibility here as absurd. That does not of course change the standard of proof but it is something I must have strongly in mind when considering the case. Next there is something called the wider canvass. Here I am dealing with the loving, kind mother who it is said was without external stressors and who gave a consistent account throughout. I do not agree on the external stressors point as I already have found she was in a violent relationship with someone she expressed fear of on several occasions. Only a month before she had been ringing the police about the baby being taken (obviously by S). As to the consistency of her account, that I will consider in a moment. However it is right that there is no evidence of psychiatric problems or of drink or drugs (save for one passing comment in a police report of her home smelling heavily of cannabis). Mr Ekaney QC and Miss Evans highlight these points and I take them into account."

18. Having thus set the scene the judge went on to consider the mother's account of the events of 18 August 2013. I need not set out the whole of this part of his judgment, but I do need to draw attention to this passage:

"In cross-examination the details of the events in the house after the drowning were continually made vague by M. Her account in the interview was continually contradicted by her account in the witness box. Did she turn off the stove or did she just take the pan off? What happened to the burned food? Where did she administer CPR? I do not propose to go through this in detail but there was a very indistinct picture. On the other hand the broad outline was maintained. She said she was roaring at the baby to keep him from going unconscious but could not explain why the child was heard crying while she was shouting at him to wake up and so on. Her explanation for the lies in the hospital was frankly ludicrous – she was lying because she was afraid her parents, from whom she was already alienated, might find out she was not training to be a doctor, something they already knew. I remind myself of the direction in R v Lucas, that just because you lie about one thing it certainly does not mean you lie about another thing. In the context of care cases, as Mr Justice Baker said, people tell lies for a number of reasons the important question is why is M lying not just to me but to the police and most of all to the doctors at a time when clarity and the best information about every issue could be vital for L's recovery? I found earlier that she had lied over the other findings to conceal the truth of her relationship with S. I find here that she is lying to the doctors to give herself a reason for not staying on the line on the 999 call. She had medical training so she was best placed to deal with L without advice. Was there some other reason why she went off line? What about her vague and contradictory evidence about what she did alter finding L. Is that because she is describing a series of events that did not happen? Why is she lying about why she lied, what is she trying to conceal?"

19. The judge's conclusion is in a passage which I must set out in full:

"The medical evidence all points in the same direction. The baby was normal until about 8/9 minutes into the 999 call. There is no reason related to an earlier drowning incident that would cause the post 10 minutes in collapse. The Mother's evidence of what happened is not substantiated by any external matters eg a pan of burned food or a full baby bath, there is some evidence of what might be brown flecks of faeces in the bath but no other bit of the Mother's story is supported The Mother's evidence is shot through with so many lies and so much vagueness that I am forced to conclude she is trying to hide something. The only thing that she can possibly be attempting to hide is that there was no incident of drowning in the bath and that she is responsible for attempting to drown the child after 8 minutes and 40 seconds of the phone call for about 47 seconds. Most likely this was under the tap in the conservatory. I cannot speculate on why she made the call in the first place or why she did what she did. It seems to me that at the point where she seeks reassurance from Mr Mahony that the baby will be alright and he says the child is seriously ill she becomes hysterical because she realises what she has done. It may be that she did not intend to kill the baby. Until the mother tells the truth we are left with speculation.

I find [the] allegation proved on the balance of probabilities."

The judgment – the clarification

20. For present purposes there are two clarifications to be noted. First, in relation to the 999 call, the judge said this:

"With regard to the 999 call I have to conclude that the 999 call was instigated for a reason I can only speculate about, and I do not think it is appropriate for me to speculate. My finding is that at the start of that call the child had not been subject to an incident of drowning. I made that finding specifically on all of the evidence that I heard; the medical evidence; the evidence from all of the parties who gave evidence; and the witnesses that were called. I do not know why the mother was distressed during the first part of the call. She was certainly at the time of the arrival of the paramedic in a calm condition, and became distressed – in fact hysterical according to the paramedic – after she was told, as I pointed out in my judgment, the condition of her baby was very serious. I rely on the totality of the evidence about the 999 call. I gave only marginal weight to the three paediatricians who were not jointly instructed experts and who, one of whom in Mr Kenny's cross-examination, conceded that they were only again marginally connected with the case. I obviously give a great deal more weight to the jointly instructed experts, and I have listened to the call myself and read the transcript."

21. Secondly, in relation to Dr Playfor and the recording, the judge said this:

"With regard to Dr Playfor's expertise I comment that he is a properly qualified expert, related to the expertise in the area of drowning in children. The context of my comment was in relation to the attack on his experience and understanding of his task made during cross-examination by leading counsel for the mother. The totality of the evidence and listening to the tape drew me to the conclusion that during the first part of the tape I am listening to a child who is not in the condition that the mother said he was in. I do not know why she was roaring at the child. Certainly for the first half of the tape it was not to prevent him from going unconscious as a result of drowning, because as I have found there had been no such drowning incident. With regard to my comment, "mostly under the tap in the conservatory," that is not a finding of fact. There are several possible explanations as to where the incident took place. I am not in a position to make a finding about them. My use of the expression, "most," does not in any way suggest that I have made a finding on that point on the balance of probabilities. There are a range of possibilities. Perhaps I unwisely allowed myself for a moment to go into the grounds of speculation and patently where the incident took place had no effect on my findings in this case."

22. In his order dated 31 October 2014 the judge gave directions for a pre-trial review on 15 December 2014 and a final hearing on 5 January 2015. That has not yet taken place.

The appeal

23. Judge Marston refused the mother permission to appeal. She renewed her application to this court. It was refused on the papers by McFarlane LJ on 7 December 2014, who observed that:

"the judge was fully entitled to place substantial weight upon the sound of an apparently well and vocal child [L] during the bulk of the 999 call which, on admissible expert evidence, was incompatible with a child who was unresponsive following a period of drowning and which was also incompatible with the state of the child subsequently upon attendance by the first paramedic."

Following an oral hearing on 2 January 2015, Lewison LJ gave permission.

The grounds of appeal

24. In his grounds of appeal and skeleton argument, as in his oral submissions, Mr Ekaney complained (I summarise his detailed and subtle analysis) that Judge Marston failed to analyse the significance and relevance of the 999 call, in particular failing to consider why a mother who had no psychiatric history and no psychological problems should have made such a call if no accident had taken place before the call was made, and failing to consider what he says was the evident urgency and distress and palpable sense of panic and confusion in the mother's voice; that the judge's findings in relation to the suggested mechanism of drowning went beyond anything that could be heard on the recording, took the experts outside their areas of expertise and was not supported by any physical signs noticed, when they arrived, either by Mr Mahoney or the police officers; and that the judge's findings against the mother involved him in effect reversing the burden of proof, equating the mother's inconsistency with culpability and treating speculation as proof. On this, Mr Ekaney points to the judge's comment that "Until the mother tells the truth we are left with speculation." Mr Ekaney contrasts what he submits was Dr James's cautious and very careful evidence with Dr Playfor's evidence, which he characterises as inflexible to the point of being dogmatic. He submits that there was no consideration of 'unknown aetiology'.

Discussion

25. This appeal comes before us in forensically unusual circumstances. As I have already remarked, at the heart of the appeal is the question of what it is that can be heard on the recording of the 999 call; crucially, what exactly it is that can be heard of L. Each of us has listened to the recording. I have listened to the recording more than once. We are therefore in almost as good a position as the judge to come to a conclusion.
26. The experts described what they had heard on the tape during the first nine minutes or so of the recording. It is apparent from his judgment and his subsequent clarification that their descriptions accorded with what Judge Marston heard. It accords with what I heard when I listened to the recording.
27. Two points emerge:

i) First, during the first nine minutes or so of the recording one hears what Dr Howlett and her colleagues described in their report as "Normal baby vocalisations" including "polysyllabic babble and normal multi-tonal crying." Equally important is what one does not hear: coughing, grunting, wheezing or other sounds of respiratory distress.

ii) Secondly, the layman's impression is confirmed by expert opinion: what can be heard is not compatible – the words used both by Dr Howlett and her colleagues and by Dr Playfor – with a previous drowning.

Put very simply, a baby who presented as L did to Mr Mahoney when he arrived, would not have been vocalising, indeed would not have been capable of vocalising, as L was during the first nine minutes or so of the recording, if he had drowned before the 999 call was made.

28. It was this which drove Judge Marston to his conclusion as to the timing of L's drowning. That was plainly a conclusion properly open to him. Indeed, I would without hesitation have reached the same conclusion. L was not drowned before the 999 was made; he was drowned some nine minutes or so after the recording began.
29. That being so, the only remaining question is whether this drowning was itself accidental or, as the judge found, deliberate. Judge Marston inferred that it was deliberate. In my judgment he was entitled to come to that conclusion. Mr Ekaney submits that the judge was here in the realm of mere speculation. I do not, with respect, agree. Two factors point compellingly in this direction. First, it follows from the ascertainment of the true timing of the drowning, that the mother's 999 call was false. L had not at that time "fallen in the water". There had been no negligence on the mother's part. What an astonishing coincidence that, some ten minutes later, L should actually have suffered an accidental drowning, that precisely what the mother had fabricated should so soon become reality. Secondly, if this drowning was in truth accidental, then why on earth did the mother not say so? Why should she persist in her lies? It would of course expose her to the charge that she had made a false 999 call, and wasted the time of the emergency services, but surely better that than being found to have deliberately drowned her own baby.
30. Where Judge Marston did, correctly, say that he would be entering into the realm of speculation was in relation to two matters: first, the mother's reasons for making the false 999 call and then deliberately drowning L; and, secondly, as to the mechanism she adopted. The fact that, in relation to these crucial matters, he could only speculate no doubt gave Judge Marston pause for thought, just as they have me.
31. Given his, and my, inability to provide anything except the most speculative answers, could he be confident, can I be confident, in relation to the timing of the drowning? That, at the end of the day, as it seems to me, is what this appeal really comes down to.
32. So far as concerns Judge Marston, I have no doubt that the appeal must be dismissed, essentially for the reasons so succinctly articulated by McFarlane LJ. Despite all Mr Ekaney's very considerable and very skilful endeavours, Judge Marston's ultimate conclusion is, in my judgment, unassailable. In the light of all the evidence, and in particular in the light of what he heard when listening to the recording, he was entitled to conclude as he did and for the reasons he gave.
33. That suffices to dispose of the appeal, but in these very unusual circumstances I can, and should, go further. As I have said, having listened to the recording, I am convinced that the judge was right. What I was listening to during the first nine minutes or so was a baby who had not then been drowned. From this it follows inexorably, given all the other evidence, that the mother's 999 call was false and that the drowning which took place at some point thereafter but before Mr Mahoney arrived was indeed deliberate. I have anxiously asked myself whether I can truly be that confident, given that I am left speculating, as was Judge Marston, on important matters to which such a finding necessarily invites attention. I can only say that, despite my inability to provide more than speculative answers to those questions, I am convinced by what I heard. The recording is, to anyone who has heard it, extraordinarily compelling. It drives one inexorably to the conclusion at which Judge Marston arrived.
34. In my judgment this appeal must be dismissed.

Lord Justice Elias :

35. I agree.

Lady Justice Sharp :

36. I also agree.