England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT

		15 July 2014

Mr Justice Peter Jackson:

Introduction

1. This case concerns A, who is 4 years 9 months old. She has been in foster care since September 2013, having been removed from her parents when they were arrested on suspicion of having murdered her younger brother, K, two years earlier.
2. K was 6 weeks old when he died suddenly and unexpectedly in the care of his parents on 11 July 2011. He was a premature baby who had remained in hospital for the first month of his life. He died after being at home for just thirteen days. At post-mortem he was discovered to have brain injuries and a fractured skull.
3. A was then aged 22 months. She was removed from her parents and placed with an aunt for three weeks before being returned home. There she remained for the next two years before being removed again in September 2013, as described above. At that point the Family Court became involved for the first time.
4. I will describe and comment on the investigations into K's death below. For the moment it is enough to note that although fully 3 years have passed since K died, the Coroner's inquest into his death has not been completed. Even now, the parents remain on bail and the Crown Prosecution Service has not reached a decision about whether either of them should face criminal charges, nor is there any sign of when it will do so.
5. The issues at this hearing are:

(1) Were K's injuries inflicted, as opposed to being due to natural causes?

(2) If they were inflicted, were the parents responsible?

(3) If so, is it possible to identify which parent was responsible?

(4) What decision should now be made about A's future?

The Law

6. I adopt and apply the principles summarised by Mr Justice Baker in A Local Authority v (1) A Mother (2) A Father (3) L & M (Children, by their Children's Guardian) [2013] EWHC 1569 (Fam):

1. First, the burden of proof lies at all times with the local authority.

2. Secondly, the standard of proof is the balance of probabilities.

3. Third, findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation …

4. Fourthly, when considering cases of suspected child abuse, the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.

5. Fifthly ... whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision.

6. Sixth, cases involving an allegation of non-accidental injury often involve a multidisciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others.

7. Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability.

8. Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720).

9. Ninth, as observed by Dame Elizabeth Butler-Sloss in an earlier case "The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research would throw a light into corners that are at present dark." This principle, inter alia, was drawn from the decision of the Court of Appeal in the criminal case of R v Cannings [2004] EWCA 1 Crim. In that case a mother had been convicted of the murder of her two children who had simply stopped breathing. The mother's two other children had experienced apparent life threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was no evidence other than repeated incidents of breathing having ceased. There was serious disagreement between experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances, the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable possible explanation. In the course of his judgment, Judge LJ (as he then was) observed: "What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge."

10. With regard to this latter point, recent case law has emphasised the importance of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause. The possibility was articulated by Moses LJ in R v Henderson-Butler and Oyediran [2010] EWCA Crim. 126 at paragraph 1: "Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown."

11. In Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam), Hedley J, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further. At paragraph 10, he observed: "A temptation there described is ever present in Family proceedings too and, in my judgment, should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.

12. Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator. In order to make a finding that a particular person was the perpetrator of nonaccidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so."

7. To these matters, I would add that where, as a result of significant delay there has been a repeated retelling of accounts, the court must think carefully about the significance of any discrepancies, given the natural fallibility of memory over time.

Family background

7. The mother is aged 25 and the father 33. They began to live together in 2008. They did not marry but the father has parental responsibility for A. They first lived in the mother's flat, then with the mother's mother and finally in February 2010, when the mother was pregnant with A, they moved to a street where two of the mother's half-sisters and their mother also have houses.
8. The mother had an unhappy childhood. She was seriously neglected by her parents and her name was placed on the child protection register at various times. Between the ages of 13 and 18 she was in the care of the local authority. During this time she committed a number of criminal offences, including a violent kidnapping of another girl, for which she received a sentence of detention for 18 months when she was only 14 years old. She has two convictions for possession of a knife, one when she was aged 13 and the other when she was 18, and a conviction for assault at the age of 16. She has had no significant convictions since 2008.
9. The father was not known to social services before A's birth. He has a number of convictions for minor offences relating to alcohol and public order. He has until recently worked regularly.
10. After the parents began to live together, there were numerous short periods lasting a few days when the father would leave the family home. These would follow arguments, which were mostly about money or the father's drinking. The police were called on three occasions.
11. A was born on 6 October 2009. She was discharged home after five days, during which time the hospital had made a referral to the local authority because of the behaviour of the mother and her mother on the ward. A was made subject to a Child in Need plan, but the case was closed to Children's Services in about January 2010. Thereafter no concern was expressed about the parents' care of A, who was meeting all her milestones, but it is clear that the agencies were not aware of the degree of disharmony in the home. Indeed, one of the parents' short separations occurred in the days leading up to K's birth.
12. K was born at 31 weeks gestation on 29 May 2011 following an uneventful labour. Clinical examination showed no significant abnormality. His condition improved and he was discharged home on 30 June 2011 when he was 32 days old. Thereafter his parents reported that he appeared well and no concerns were expressed by the Health Visitor who saw him on 1 July 2011.
13. While K was in hospital, the parents reunited and the father began to visit the ward from time to time. Once K was at home, between 30 June and 11 July, the parents both took part in his care, with the mother mainly in charge while the father worked at night and at the weekends. The mother also had the support of her sisters, who were close at hand.
14. The parents' relationship, always volatile, suffered further after the death of K and they finally separated following their arrest on 27 September 2013. It is accepted by all that the separation is permanent. The father has been living elsewhere and is now homeless and without work.
15. The father describes himself as having been a binge drinker in the past, but his alcohol dependency now appears to have taken hold. During these proceedings, he has not cooperated with social services or the Children's Guardian and his attendance at contact became so irregular that contact had to be stopped. Despite witness summonses, he attended voluntarily on only two days of the hearing and it was regrettably necessary for a bench warrant to be issued on the eve of the day when he was due to give evidence, so that he was arrested and brought to court for that purpose. Having completed his evidence, he took no further part in the proceedings.
16. The mother has fully cooperated with the process of assessment and has participated fully in the hearing. She has almost daily contact with A. This has been of consistently outstanding quality.

Domestic violence

17. There are three documented occasions when the police were involved after altercations between the parents.

• In December 2008, the mother called police, saying the father was smashing things up. They arrived to find that the father had been drinking and that the mother was shouting at him and sounding more aggressive than he was. The police considered that the mother had exaggerated to get a faster response.

• In March 2010, a third party called the police to report that the father was at the mother's address and that there was a lot of shouting. The father's face was cut. He said he had fallen and hit his head on the banister.

• In January 2012, a third party called the police to report the parents pushing each other and shouting and swearing in the street. The parents were deemed to be as bad as each other and were both arrested and cautioned.

18. In May 2011, two days before K's birth, there was an incident when the father, who had been off drinking for several days, tried to get into the family home at night. The mother, heavily pregnant, tried to stop him getting through the front door. He pushed the door open and the inside handle hit the mother in the stomach.
19. That was the extent of the domestic violence described until this hearing began. At that point, the father, who had hitherto been supporting the return of A to her mother, filed a further statement alleging frequent violence by the mother towards him. He says that this ranged from hitting and pushing to more serious incidents. In particular, he described her throwing a tin of varnish at him and, when he tried to clear it up, hitting him in the face with a frying pan so that his nose bled. He also described an incident when she attacked him with a kitchen knife, causing three small wounds around his shoulder and upper arms. Giving evidence, he called her "a complete animal", and said that he would be worried about A being placed in her mother's care.
20. The local authority and the Guardian ask me to make findings about these allegations, and I return to this below.

K's death

21. K died on Monday 11 July 2011. The medical evidence shows that he suffered a catastrophic head injury at the time of death and a lesser brain injury 2 or 3 days earlier. It is therefore necessary to relate the events of his very last days.
22. On Saturday 9 July, the mother and her sister A took the children into town for a shopping trip. In the afternoon, they returned to sister A's house, where sister A looked after K for a short time while the mother and A went on home. Sister A then returned K to the mother. Soon after 6 pm the father returned from work and took over care of the children while the mother prepared for a night out, her first for a long time. The mother, sister A and the mother's close girlfriend, M, then went into town in a taxi. A and K were left in the care of their father for the first time. He describes feeding K twice during the night while the mother was out.
23. On Sunday 10 July, at about 3 am in the morning, the mother and M returned from town. M stayed overnight. Just before 6 am, the father woke the mother on his way out to work and she was responsible for the children throughout the day. She was tired, hung-over and occasionally sick and there were periods when her sister D and her friend M helped her out.
24. The parents describe K as feeding well and behaving normally throughout the weekend. This is confirmed by the mother's sisters and by her friend M, all of whom spent time with him. The mother describes him as "fine, taking feeds, pooing regularly, a proper little baby".
25. The father returned home shortly after 6 pm, and he and the mother were from that point on alone in the house with two children. There are a number of differences in their accounts of the exact sequence of events and timings, but I do not consider them to be of significance. The broad picture is as follows.
26. A was put to bed in the early evening. The parents then ordered and ate a Chinese takeaway and the mother, who was very tired, went upstairs to bed. The father was responsible for K throughout the night. At that stage, K was being bottle-fed every two or three hours.
27. After the mother went up to bed, the father saw to K and then put him down in his Moses basket beside the bed in which the mother was sleeping. Sometime after midnight, K woke up and the mother called the father who took him downstairs and gave him his bottle. During the course of the night, the father fed K twice more. His evidence about whether he returned K to the bedroom on the first occasion is not clear, but he did so on the second occasion and K was in his Moses basket beside the bed shortly before 8 am.
28. Both parents describe the mother being in bed, asleep or half asleep, and the father coming into the room and pointed out that K had a mark on his head. This is described as a mark or line on his forehead that was no longer there a few minutes later.
29. The mother got up and saw the mark. She says K was still and cold. She immediately picked him up in panic and ran with him to her sister A's house four doors down, telling the father to call an ambulance,
30. At 8.02 am an emergency call was made by the sister's partner, a simultaneous call being made by the father. At 8.05, a paramedic (Mr B) arrived, followed by an ambulance at 8.10. It was apparent to the paramedics, as it had been to the mother, that K was already dead. Attempts at resuscitation at the scene were unsuccessful. The ambulance, carrying the parents and K, arrived at hospital at 8.24 and K was pronounced dead at 8.47.
31. Two post-mortem examinations were carried out in the week after K died (Dr Sri Annavarapu on 13 July and Dr Mark Egan (Home Office Pathologist) on 15 July. A skeletal survey was carried out on 11 July.
32. After K died, the conclusion was reached that the cause of his death was unascertained and that the parents were not responsible. In March 2012, the Crown Prosecution Service decided that there should be no further action and the local authority closed the case.
33. There matters stood for a year, and there they would have rested had K's file not been routinely reviewed in March 2013 by Dr Nicola Cleghorn, Designated Doctor for Child Protection. She expressed concern about the previous conclusions. She contacted the Coroner who commissioned an overview from Dr Martin Ward Platt, consultant paediatrician. His report was received by the Coroner in May 2013. It concluded that on the balance of probabilities inflicted injuries were at least a significant contribution to, and probably the main cause of, K's death.
34. Faced with this further information, the police retained Dr Ward Platt's report for three months before disclosing it to social services on 26 September 2013.
35. In the early morning of 27 September 2013, the parents were arrested on suspicion of murder. They were interviewed and released on police bail. The arrest took place in the home and in front of A, who was described by her social worker as bewildered and confused.
36. On the same day, the local authority applied for an Emergency Protection Order and a care order. An EPO was granted and A was placed in foster care. Between 4 November and 12 December 2013 she moved to live with the mother's sister D, but this placement did not work out and she moved again to a new set of foster parents, where she has remained.
37. The case has been now referred for a Serious Case Review. Cumbria Safeguarding Children Board has appointed a lead reviewer and it is expected the first meeting of the panel will be in September 2014.
38. The medical findings from the post-mortem examinations and skeletal survey have now been reconsidered by a number of specialists within these proceedings, who have reached agreed conclusions.

Medical opinion

39. This has been provided by:

Dr Daniel du Plessis, Consultant Neuropathologist

Dr John McCarthy, Consultant Opthalmic Pathologist

Ms Helen Fernandes, Consultant Neurosurgeon

Professor John Wyatt, Consultant Neonatologist

Professor Anthony Freemont, Consultant Osteoarticular Pathologist

40. Their conclusions are contained in an agreed summary of the medical evidence.

(1) The injuries:

(a) Brain swelling

The brain swelling was reasonably severe. Brain swelling could be accounted for by hypoxic-ischaemic injury or traumatic brain injury. In K's case the hypoxic-ischaemic changes represent a hyperacute event and there would not have been sufficient time for a hypoxic-ischaemic injury to have cased severe brain swelling. Trauma is therefore a more plausible explanation for the severe brain swelling seen in K.

(b) Subdural haemorrhage

There was thin film bilateral acute subdural haemorrhage, more posterior in its distribution. The bulk of the haemorrhage was fresh representing a hyperacute event. There was microscopic evidence of very early neo-membrane formation which would have required at least a day to develop. That implies there was earlier episode of subdural bleeding. The earlier episode of bleeding could have been trivial.

(c) Subarachnoid haemorrhage

There was a sub-arachnoid haemorrhage in a mainly basal distribution with extension into the Sylvian Fissures on both sides. [Du Plessis]. The sub-arachnoid haemorrhage was in continuity with the subpial bleeds over the temporal lobe which was the probable source of the blood. There was evidence of a macrophage response in the leptomeninges reflecting a component of the sub-arachnoid haemorrhage which is likely to be a day or more old. The absence of haemosiderin makes it unlikely to be more than 2 days old. The earlier episode of sub-arachnoid haemorrhage could have been trivial.

(d) Subcortical scar/tear

The cortical tear showed more established gliosis and a macrophage response, early haemosiderin deposition and some axonal injury. This pathology is more than a day in age.

(e) Subpial haemorrhage

There were subpial bleeds which were temporal in location. Early gliosis in the margins to the subpial bleeds indicate that a component of it is not hyperacute. The presence of subpial bleeds suggests an impact or compression of the skull. Subpial bleeds are an unusual bleed in the substance of the brain said to be more common in premature infants. [Du Plessis]

(f) Intradural and epidural spinal nerve root bleeding

The intradural and epidural spinal nerve root bleedings are non specific. They could be accounted for by hyperacute hypoxic-ischaemic injury, but there is an absence of vital response associated with the epidural bleeds and they are a well-recognised post-mortem artefact.

(g) Bilateral optic nerve sheath bleeding

There were hyperacute bilateral optic nerve sheath bleeds (but no retinal bleeds) which occurred shortly before death. The most likely cause of the optic nerve sheath bleeding is trauma. [Sch 17]

(h) A full thickness linear parietal skull fracture

There is a full thickness linear parietal fracture through the skull bone which is likely to have been caused by a significant impact on a hard flat surface or straight edge. It could not occur as a consequence of movement trauma in the absence of impact. The injuries to the brain did not make K more susceptible to a skull fracture [Fernandes]. Precisely when the fracture occurred cannot be determined by examining the fracture under the microscope. What can be said is that the fracture occurred in the perimortem period, that is in the period immediate prior to the cessation of the heart beat and up to 60 minutes after death [Freemont]. There was no evidence of bony abnormality.

(2) The triad:

This case does not have the pattern of injury seen in the classic triad. In the classic triad you see mainly subdural bleeding following the bridging veins. In K there was injury outwith that area, injury to the brain lobe, and an absence of retinal haemorrhages. The concept of the triad is not useful in interpreting K's case [Dr Fernandes].

(3) Prematurity:

Prematurity may make K more susceptible to spontaneous subpial bleed and more susceptible to sustaining subpial bleeds than a full term child when exposed to trauma. Even at birth subpial bleeds are associated with trauma [Du Plessis]. Prematurity does not account for the subdural haemorrhage or the optic nerve sheath bleeds or the skull fracture. Prematurity per se does not account for the structural injuries to K's brain, all of which are explained by trauma.

(4) Timing:

There were at least 2 episodes of injury. The hyperacute intracranial injuries would have occurred within moments of K's collapse. The non- hyperacute intracranial injuries would not have occurred within 24 hours of K's death, and probably occurred 2 to 3 days before [Du Plessis].

(5) Cause of injuries:

Movement trauma and impact would account for the full spectrum of findings in K. Even absent the skull fracture, the injuries imply an impact [Du Plessis]. The original cortical tear and subpial bleeding could have originated from an unidentifiable cause but movement trauma is the more likely. Lesser force could be required for re-bleeding into areas already damaged [Du Plessis].

(6) Natural disease:

There is no evidence of any diagnosable natural disease condition which would account for the findings. Specifically, Terson's Syndrome is excluded.

(7) Symptoms:

The hyperacute intra-cranial injuries were catastrophic. It is likely to have been a short time between the insult and K being in a moribund state [Du Plessis]. If he were not immediately unconscious, K would have been profoundly and progressively unwell from the moment of injury. The more usual scenario is rapid, near-instantaneous collapse and progression to a moribund state.

The non-hyperacute intracranial injuries were less traumatic and could have been trivial. They may not have produced symptoms which would have alerted a carer who was not present when they were sustained that the child was unwell [Du Plessis].

(8) Cause of death:

The most likely explanation for K's collapse and death is a hyperacute traumatic head injury which occurred at the time of K's collapse and cardiac arrest. The mechanism for K's death is either (i) a sudden pressure rise because of brain swelling causing cardiovascular arrest or (ii) damage to the brain stem causing cardiovascular arrest [Fernandes]. None of the intracranial bleeds would individually or in combination cause the arrest [Fernandes].

There is no evidence of any diagnosable natural disease condition which would account for K's death. There was no pathological evidence of Cortical Vein Thrombosis (CVT) and the absence of clotting in the major venous sinus almost rules out CVT as a cause of death [Du Plessis].

Trauma could easily explain everything found in this case and appears to be the only explanation based on the clinical and pathological features. [Du Plessis].

The cause of K's injuries

41. I accept the unanimous medical opinion in this case, which was articulated in oral evidence by Dr Du Plessis and by Ms Fernandes. Taking this evidence together with the wider information, I find that:

(1) K suffered two assaults.

(2) The first occasion was about 2 days before death, when he suffered some bleeding to the brain as a result of being shaken. This had no noticeable effect on his behaviour.

(3) The second occasion was within minutes of his death, when he suffered a fractured skull and catastrophic bleeding to the brain as a result of an incident that included an impact to the head. This led immediately to his death.

(4) The matter having now been investigated, I find that no injury (and in particular no head injury) was caused to K during resuscitation at the scene, or on the way to hospital, or at the hospital.

(5) There is no real possibility of either of the episodes of injury having been caused by anyone other than one of the parents.

(6) It is overwhelmingly likely that the same parent was responsible for both episodes of injury.

(7) On the first occasion, the parent who was responsible will have realised that he or she had behaved inappropriately, but may not have realised that injury had been caused.

(8) On the second occasion, the parent who was responsible will immediately have realised that serious injury had been caused.

(9) There is no evidence of collaboration or cover-up on the part of the parents. The parent who did not cause the injuries will not have known what had happened.

42. None of these conclusions is disputed. The question is which parent caused the injuries. Each blames the other. The local authority and the Guardian analyse the evidence and invite the court to determine the issue.
43. This task has been made more difficult by the passage of time. The local authority now accepts that proceedings concerning A should have been taken at the time of K's death. The delay of over two years in the matter coming before the court is troubling for what it shows about the approach of those responsible for the child protection investigation, and for the effect that it has had on A's welfare, but I am satisfied that it does not ultimately prevent me from reaching a clear conclusion about where responsibility for K's injuries lies.
44. I have been very much assisted by, and acknowledge, the high quality of the case preparation and advocacy from all parties' representatives. Each has faced different demands, but all have presented an effective case. I would particularly mention Mr Lewis, representing A, whose closing position statement is a model of its kind.
45. I also commend the work of Ms Claire Graham, who has been A's social worker since June 2013. She demonstrated an impressive grasp of the history before her involvement and I accept her evidence in relation to events thereafter.

The credibility of the parents

46. The mother, who was wild and out of control as a young person, has matured since the birth of the children. In her evidence she showed a degree of insight into her earlier life and behaviour. She has also showed an intense commitment to the children and a consistent and appropriate emotional response to events from the time of K's death's up to the present day. Although there have been a number of inconsistencies in the detail, she has always given a clear core account of the events of the critical weekend. She was for the most part unguarded and unshaken in her evidence. Her attitude to the father was plausible. She acknowledged the good aspects of his relationship with the children, but was intolerant of his drinking and angry at the realisation that K's death had been due to assaults.
47. This is not to say that the mother can be relied upon as a universally reliable or truthful witness. Asked about an important personal medical issue, she provided an answer that was contradicted by an entry buried in her medical notes. I do not think that she was being deliberately untruthful about this emotionally laden issue, but it shows that her evidence is not always reliable.
48. The aspect of the mother's evidence about which I felt most unease concerned the level of domestic violence in her relationship with the father, and the part she played in it. She said that she had never laid a finger on him and that his recent allegations were completely untrue. The manner in which she gave this evidence was unconvincing in comparison to the conviction with which she spoke about matters directly relating to the children.
49. In assessing the father's credibility, it is important not to jump to conclusions. His behaviour since being arrested shows him in an extremely poor light, but it does not mean that he was responsible for K's injuries. He has been described, including by the mother, as treating both children well in the past. He was nonetheless an unimpressive witness. His evidence was frequently scarcely audible. He showed himself to be an immature and self-centred man with little sense of the wider responsibilities of parenting. Where there was emotion, it was largely in the form of anger towards the mother for trying to keep control of his wage packet. In contrast, there was very little emotional coherency or convincing detail to his account of the events surrounding K's collapse. I formed the impression that he was fundamentally incurious about why it had happened. His recent allegations against the mother were not motivated by his stated concern for A, but were instead a response to what he sees as unfair treatment by the local authority and resentment towards the mother and her family, who he sees as having got the better of him. This is not to say that there may not be some truth in his account of the mother having been violent towards him: he may not have the imagination to have invented some of the details.

The parents' first accounts

50. The parents have given a series of accounts at various times. The first accounts were given on the day of death in conversations with medical staff and police. In the following week, the parents were interviewed by the police and spoke with social services. There was then a gap of over two years until they were arrested and interviewed under caution. Since then, they have made statements in these proceedings and given oral evidence. In such circumstances, it is important to see whether any conclusions can be drawn from their first accounts.
51. Mr B, the first paramedic on the scene, made up his notes at about 8.30 am after arriving at the hospital. He recorded that "Parents last seen baby alive of at approx 07:30 as he was in his Moses basket". Asked where this information came from, he said it was from the mother, who had been present when he had been performing CPR at the scene. She had been hysterical. Questioned further, he said that he thought it was the mother, but he could not be sure. One of the parents had said 07.30.
52. Mr B's account was also given at a meeting that took place on 12 July. In the note of that meeting it is recorded that "[F] said he had checked K half an hour or so earlier at around 7.30 am when he was in his Moses basket and at that point he was still alive.
53. Mr I, another paramedic, thinks that he can remember some recrimination between the parents in the ambulance, with the mother saying "You were supposed to check him every half hour" and the father saying that he had done. Mr I said that he might be mistaken about this recollection, which had not been mentioned previously.
54. Dr W, the consultant paediatrician who was present during attempted resuscitation at hospital, records the father saying that he fed K at 04.30, taking two and a half ounces quickly, and at 05.45 taking a further bottle well. He put him back in his Moses basket and then went to look after A, who had woken up. He went back to check on K and noticed a straight mark on his forehead/cheek.
55. At hospital, the parents were spoken to by the police. The mother gave this account to DC N at about 11 am:

I went to bed myself. K woke up but I don't know what time. I was playing with K's dummy in his mouth and shouted to [F] to make a bottle. [F] made the bottle then he came and took K and I went back to sleep. I never woke up again until I heard [F] come in the bedroom to check on K. [F] was at the moses basket and said to me "… there's a mark appeared on his face". I jumped right up. I went to the moses basket. I saw the little blue mark above his right eye on his forehead. I place my fingers on his forehead to touch him, I could tell he wasn't breathing. I grabbed K, told [F] to phone an ambulance and run out of the house to my sister's down the road as I didn't want A to see what was happening.

56. The father gave this account to DC N at about 12.20 am:

K started to fidget at 5.45 am approx, he appeared to be hungry. I made him another bottle whilst holding K. He took about 2 oz, probably just over. It took about ½ hour to feed him as I had to wind him a couple of times. It was about 6.45 am when I took him upstairs coz I could hear A waking. I put K into his moses basket on his back with his blanket over him. I just put one blanket over him. I had changed his nappy before putting him to bed as it was wet. After I put him to bed A was awake so she came down stairs with me. I gave her a bottle and put the TV on for her. I then went upstairs at approx 7.15-7.20 am to check on K. K was lying on his back with his head to the side. I could see what looks like purple lines on K's face next to his right eye where he was lying into the mattress. [M] got up. I said to her "What's that mark?" [M] touched K and picked him up. She said he was cold and passed me her phone as she ran down to her sister's to call the ambulance. I rang the ambulance.

57. The parents gave similar accounts in formal interviews to the police on 15 July.
58. Stepping back, I do not find anything in these early accounts that of itself points to one or other parent as having been responsible for the injuries. Nor, in general, do I gain any assistance from variations in their subsequent accounts, given the passage of time. Specifically, I am not satisfied that it was the mother who told Mr B that K had been seen alive at 7.30 am. Nor, considering that Mr I first mentioned it nearly 3 years after the event, can I find that the parents engaged in recriminations in the ambulance; if they did, I draw no reliable conclusions from it.

Conclusion as to the perpetrator of K's injuries

59. Having considered all the available information, I have reached the clear conclusion that the father was responsible for both occasions of injury to K, and that the injuries on the second occasion caused K's death. On the first occasion, which was probably during the night of Saturday 9/Sunday 10 July 2011, the father shook K in a manner that was clearly inappropriate for such a young baby. On the second occasion, which was minutes before 8.00 am on Monday 11 July, the father struck K's head against a hard surface with enough violence to fracture his skull and cause fatal brain injuries. At that point he realised that K had been hurt, but instead of seeking help, he put him into his Moses basket in the bedroom, hoping that all would be well and determined to conceal what he had done.
60. There is no reason to believe that the father intended any harm to K. It is likely that his actions were the result of tiredness and impatience with the many demands of such a small baby, leading to repeated loss of control. In contrast, his placing the injured child in the Moses basket, his denial of responsibility and his last-minute efforts to throw the blame on the mother were quite deliberate.
61. I find that the mother was not responsible for K's injuries.
62. My reasons are these:

(1) The father had a considerably greater opportunity at the relevant times to cause unwitnessed injuries to K.

(2) The opportunity for the mother to have injured K in the early morning of 11 July at a time when the father considered that he was in charge was extremely limited. I accept her evidence that she had been asleep for several hours before the father came into the room. He himself told the police in 2013 that she had been asleep and that he had had to wake her, an account he changed during his evidence at this hearing.

(3) The whole quality of the mother's reaction to discovering K in the cot makes it inconceivable, to my mind, that she knew anything could be wrong with him before that moment. Her description of taking him out of the house to protect A had the stamp of truth.

(4) In contrast, the father's actions at that moment strongly suggest guilty knowledge. He was unable to explain why he would keep checking K -- in his oral evidence he describes doing so twice in a short space of time, explaining implausibly that he had gone upstairs to the toilet twice. "I just thought I'd go and check on him." His actions in awaking or alerting the mother to the mark on K's face were unnatural: the natural thing for the parent in charge to do would be to pick up the child to check he was all right, not to ask questions of the parent who was not in charge. On the crucial question of whether, at that moment, he thought there was something seriously wrong with K, his evidence was confused and inconsistent. When he called an ambulance, the first thing he said was that the baby was not breathing. It is possible that he learned this from hearing the mother's cries, but I find it more likely that he knew it from the start.

(5) In assessing the probabilities, I am entitled to take into account the wider information about the parents as parents. The mother's behaviour as a devoted parent over a period of years does not eliminate the possibility that she caused these injuries, but it reduces it. The father's behaviour in running away from involvement in the proceedings could have a number of explanations, but his reluctance to assist the court to understand how and why his son died is at the very least consistent with an intention that the court should not find out.

(6) I take account of the parents' credibility, which in this case is central to my assessment. When the mother was describing the events of that morning, I believed her. I did not believe the father. His lack of curiosity about his son's death was striking: "How did K die? I couldn't tell you. I haven't done nothing. I don't know." There is no reason for him to be curious when he knows the answer. This is of a piece with his position at the beginning of the proceedings, which was to support the return of A to her mother. The parents had by then been arrested for murder, so the father knew that if he was not responsible for K's death of K, the mother might well be. Asked why he supported A's return in those circumstances, he said that it was because he was trying to make a go of things. He did not mention the mother's violence in his court statement because he "did not know which way to go around it".

63. In relation to domestic violence, I find that there will have been fairly regular altercations between the parents that did not find their way into official records. I also find that, while the mother's cause for complaint may have been the stronger, she is no stranger to violent behaviour and is likely to have given as good as she got. However, I make no specific findings in respect of the incidents newly described by the father (the frying pan, the kitchen knife). These events may have happened but the evidence is insufficient to prove that they did happen. The only evidence comes from the father, whose credibility and motivation are suspect.
64. Even if the father's evidence about these incidents had been accepted, it would not alter my overall assessment of A's welfare. Appalling though such behaviour would be, there is no indication that the mother represents a physical threat to a child -- on the contrary, she is by nature protective -- and the emotional damage from such domestic violence arose in the context of the parents' relationship. I reject the father's characterisation of the mother as an unsuitable parent. I accept the Guardian's ultimate view that if instances of violence were relatively isolated, the focus should be to work with the mother to ensure no repetition.

Outcome

65. On the basis of my findings of fact, it is in A's interests to return to the care of her mother and to have no direct contact with her father.
66. The threshold for intervention in this case is not only crossed because of the circumstances of K's death. The mother is vulnerable and A is not surprisingly thoroughly confused. The relationship between the parents is extremely hostile and the father's reaction to the outcome of the proceedings cannot be predicted. There is no knowing when the criminal investigation will reach any conclusion.
67. In all the circumstances, the appropriate orders are a child arrangements order providing that A shall live with her mother, a prohibited steps order limiting the father's contact to annual indirect contact and preventing him from entering the street where A lives, and a supervision order to the local authority for a period of one year. This should be underpinned by a supervision and support plan agreed between the local authority, the mother and the Children's Guardian.
68. The local authority has not specifically sought a supervision order in these circumstances, but the Guardian recommends it. I accept that the mother would very likely continue to cooperate with social services, but I do not consider that anything less than a supervision order will meet A's immediate needs and find that such an order is necessary to ensure that she has the best opportunity to recover from the tragic difficulties and disruptions that have marked her short life.
69. The removal of the father from A's life will in some ways be at a loss for her. There have been positive aspects to that relationship, but of late the father has withdrawn from it. He had ruled himself out as a carer even if findings have not been made against him. As matters stand, his direct involvement in her life could only be surrounded by conflict and bitterness at a time when she needs stability and calm.
70. The Guardian has raised the possibility of the father's parental responsibility being removed in the event of the above findings. I do not consider that this drastic step is necessary. If the father behaves in a harmful way in future, wider injunctions can be sought and, in an extreme case, an application to discharge his parental responsibility could be made.

The investigation into K's death

71. The actions of the statutory authorities (the police, HM Coroner, the local authority) are only of direct concern to the court to the extent that they affect its ability to carry out its fact-finding and welfare responsibilities. It is not my function to conduct a free-ranging enquiry into the conduct of other agencies. However, where it is apparent that significant concerns arise about these matters, the court is bound to identify them so that they can be considered in the proper quarters.
72. In this case, after the death of her brother at the hands of her father, A (then aged just 21 months) was removed from home for a month and then returned home for over two years before being removed again to a sequence of placements for the next 10 months. Had K's death been effectively investigated at the time, A's future would long since have been settled.
73. At the end of his evidence, the Children's Guardian, Mr Coldham, spoke of what he saw as agency failures in this case:

When there was such uncertainty about why K died, as a matter of routine this should have prompted care proceedings. It staggers me that A was sent home. None of the professionals took a forensic approach. There was no legal advice. There appears to have been Groupthink^[1] -- a suggestion [post-mortem skull fracture] was floated and everyone thought "Great, we can send A home". There was inconsistency of personnel and zero protection for A under a child protection plan. Having sent her home, there was a repeated failure to review the position. I am staggered by the police evidence that by their own agency they disagreed that there were child protection problems [when, following receipt of the report of Dr Ward Platt, they retained it for several months]. They did not give other agencies or the parents a chance to take a view. A has been lost since K's death. The agencies were pro-sympathetic to the parents. Had anyone sought legal advice at the outset, A would have known what her permanent arrangements are by now. She would have been established with no repeat breakdowns and with certainty for her and for the parents. Instead, she is now nearly 5 and faces great uncertainty and possible further disruptions to her life.

74. If the Guardian is right about this, it can at least be said that the consequences might have been even worse. Despite what happened to K, no physical harm came to A after she was returned to her parents. Also, whether as a result of the delay or otherwise, it might not have been possible to identify which parent was responsible for K's death. The consequence might have been that A could not safely be returned to either parent and the passage of time might have meant that she lost the opportunity to be readily adopted if that had proved to be necessary.
75. Among the questions that arise are these:

(1) Why, with one brief and apparently ineffectual exception in March 2013, did the local authority not take legal advice in a child death case at any stage between K's death and the parents arrest, a period of over two years?

(2) Why were care proceedings not started at the time?

(3) Why was there apparently such ready acceptance of the opinion of Dr Egan that the skull fracture occurred post-mortem, when the opinion of Dr Landes (consultant paediatric radiologist at Alder Hey Hospital) was that non-accidental injury must be considered?

(4) Why, regardless of the timing of the skull fracture, was there apparently no consideration of the possibility that K's brain injuries were inflicted, this possibility having been clearly stated from the outset?

(5) Why, even if the CPS rightly closed the case in March 2012 on the basis that a conviction was unlikely, did social services also close the child protection case?

(6) Why was Dr Ward Platt's report (dated 16 May 2013) not sent to the police until 18 June 2013?

(7) Why did the police not disclose that report to social services or to the parents until 26 September 2013?

(8) Why did the police decide to arrest the parents in front of A?

(9) Why has the inquest into K's death not yet been concluded?

(10) Why has no decision yet been taken about whether the parents are to face criminal charges?

76. I will direct that this judgment, accompanied by the local authority's Written Opening and final versions of its Summary of Investigations document and Police Timeline document shall be sent to:

(1) The Chief Executive of Cumbria County Council v M & Ors;

(2) The Statutory Lead Member for Children's Services, Cumbria County Council v M & Ors;

(3) The Chair of Cumbria County Council v M & Ors's Scrutiny Advisory Board - Children and Young People;

(4) The Independent Chair of the Cumbria Local Safeguarding Children's Board;

(5) The Chief Constable of Cumbria Constabulary;

(6) The Police and Crime Commissioner for Cumbria;

(7) The Crown Prosecution Service;

(8) HM Coroner for North and West Cumbria.

77. I also believe that any agency considering any of these questions will be assisted by the evidence of Ms Graham (A's social worker), Mr Coldham (the Children's Guardian), and the three police officers that gave evidence during this hearing: DI Banks (now retired), DS (now DI) Taylor, and DI Ledingham. The officer with overall responsibility for the investigation, DCI Duhig, did not give evidence in these proceedings. I will direct the local authority to obtain transcripts of the evidence of these witnesses for onward disclosure. In relation to all documents that are disclosed, the recipients shall not distribute them more widely without further permission of the court.
78. This judgment will be circulated to the expert witnesses and the treating doctors, but only after any criminal proceedings are concluded or a decision has been taken not to prosecute.
______________
Post-script 6 May 2016 Nicholas Stonor QC and Carly Henley (Bendles Solicitors) for the Child Peter Rothery (instructed by Cumbria County Council v M & Ors) for the Applicant Karl Rowley QC and Michael Kennedy (instructed by KJC Solicitors) for the Mother Susan Grocott QC and Carolyn Bland (instructed by Bleasdales Solicitors) for the Father
79. The publication of the above judgment was delayed for two reasons. The first concerned the renewal of the criminal investigation into the death of K. As a result, the father was charged with manslaughter. At his trial, during which he exercised his right not to give evidence, he was acquitted by the jury. The second reason related to an issue of police disclosure that had to be resolved before publication. I describe that issue in a separate judgment at [2016] EWFC ...
80. The decision to publish this judgment has been taken after hearing arguments from all parties. It is being published in its original form, with two very minor amendments that are of no significance to the reader. This course was supported by all parties except the father. On his behalf, it was argued by Ms Grocott QC and Ms Bland that publication should be limited to paragraphs 72–79. That would not in my view be a realistic outcome as the publication of a fragment would be unbalanced and perplexing to any reader. The real question is whether the judgment should be published in full or not at all.
81. A decision about whether to publish a judgement in circumstances of this kind always requires careful consideration. The President's Guidance is of assistance as providing the starting point, but it does not determine the outcome. The rights of all individuals and of the public have to be examined. In this case, a good deal of information about the family is already in the public domain as result of the criminal trial, and as a result the family described in these proceedings will inevitably be identifiable. However, I am satisfied on the direct evidence of the social worker that publication is unlikely to be harmful to child A, who is well-supported by her mother and a group of professionals. For her part, the mother would wish it to be on record that she has been exonerated of responsibility for K's death. Publication will undoubtedly have an effect on the father, but not, in my judgement, to a degree that outweighs the public interest in knowing what this court has concluded. In a case of this seriousness, there is a very strong public interest in being informed of the decisions that are made in its name, both in the particular case and generally. There is also the consideration that the Coroner's inquest, a public process, is yet to be held. The parties have also reported that a serious case review by the Local Safeguarding Children Board and a report by the Independent Police Complaints Commission are shortly due to be published.
82. Balancing these matters, I have concluded that the appropriate course is for the judgment to be published by being placed on the Bailii website. This court has not imposed any restriction on what can be reported, but I note that those reporting the criminal trial did not feel it necessary to identify child A. With a degree of confidence, I think it likely that a similarly responsible approach will be taken in respect of any report of these proceedings.

Note 1   Described as a psychological phenomenon that occurs within a group of people, in which the desire for harmony or conformity in the group results in an irrational or dysfunctional decision-making outcome.     [Back]