England and Wales Family Court Decisions (High Court Judges)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Birmingham Civil Justice Centre The Priory Courts Bull Street Birmingham
		24th October 2014

MR JUSTICE KEEHAN:

1. On the 1 January 2014, the mother, Y, gave birth to a son, C1, in the female toilets at P, where she worked.
2. The mother says that he was born into the toilet bowl in Cubicle 1 of the toilet block. As a result of that method of delivery, C1 has suffered brain damage.
3. The mother has two other children who live with the maternal grandparents in Poland, and they are C2 who is six years of age, and C3 who is four years of age.
4. The police and the local authority were involved in the aftermath of C1's birth. The mother is the subject of criminal charges of wilful neglect, and they have yet to be concluded. This matter is listed before me for a composite hearing both as to findings of fact to determine whether the threshold criteria of Section 31(2) of The Children Act 1989 are satisfied and to make welfare decisions about C1's future.
5. The findings sought by the local authority are set out in the schedule at A80 to 81 of the trial bundle.
6. In relation to matters of welfare, the local authority contend that C1 should be made the subject of a care order, and he should remain in the long term care of his current foster carers. That proposal has the complete support of the children's guardian.
7. The mother contends that the threshold criteria are, in the circumstances of this case, not satisfied. If they are, she seeks to resume C1's care and seeks a further parenting assessment of her by a Polish social worker.

The background

8. The mother is Polish. She lived in Poland up until July 2013. She has, as I have said, two children C2 and C3. Very sadly C3's father died in a car accident before he was born.
9. The mother was educated to degree level in Poland. It was in Poland that she met a man who is known in these proceedings simply as Mr. X. They soon began a relationship. She travelled with him to the United Kingdom in July 2013, and they set up home together.
10. The mother has a history of difficult pregnancies, both in relation to C2 and C3, and both were delivered by Caesarean section.
11. The mother asserts that she had particular difficulties in her relationship with Mr. X. She asserts that he did not want the child and when he learnt that she was pregnant, he told her to get rid of it. She asserts that he did not wish to be involved in the unborn child's life at all.
12. That description and those assertions by the mother are to be contrasted with what she told the police in January at the end of her police interview when they undertook what was called a Domestic Violence Assessment. During the course of the discussion with the police, she asserted that 'he [Mr X] looked after me too much', and said to the effect that her relationship with Mr. X was the best thing that had happened to her.
13. A close friend of Mr. X was Z. He and his wife lived across the road from the mother and Mr. X. His wife was pregnant at the same time as the mother and was due to give birth some two weeks after C1's birth.
14. Until this hearing it appeared to be agreed that the mother and Mr. X lived alone, until about October 2013 when two Lithuanian men joined the household as lodgers. In her oral evidence the mother asserted, for the first time, that she had a female friend living in the accommodation in or about July/August of 2013.
15. It was with the assistance and at the suggestion of, Mr. X that the mother began work in the summer of 2013 at P.
16. As a result of the circumstances of his birth, as I have mentioned, C1 has suffered brain damage, that has resulted in him being deaf and having very poor eyesight. There is some evidence of motor skills impairment. Whether he has suffered any damage to his cognitive function, and especially higher cognitive function, has yet to reveal itself. I was told by Professor Wyatt that it was unlikely that the degree of cognitive damage, if any, could be assessed until C1 was of school age, or even older.

The law

17. In relation to the fact finding element of this hearing, I remind myself that the burden rests throughout upon the Local Authority. The standard of proof is the simple balance of probabilities, as set out by the Supreme Court in Re B [2013] UK SC33.
18. In relation to matters of welfare I remind myself that C1's welfare best interests are my paramount concern, Section 1(1) of the 1989 Act. In determining what is in his welfare best interests, I bear in mind all of those matters set out in the welfare check list of Section 1(3). The Article 6 and Article 8 rights of the mother and C1 are engaged in this matter, but I remind myself that where there is a tension between the rights of the child on the one hand and the rights of the mother on the other, the rights of a child prevail: Yousef v The Netherlands [2003] 1 FLR 210.
19. In relation to the threshold criteria of Section 31(2) of the 1989 Act, I bear in mind that I must be satisfied before being determined that that threshold criteria is satisfied, that C1 has suffered significant harm, or is at risk of suffering significant harm and that that harm is attributable to the care given, or not given as the case may be, by his mother.

Evidence

20. For the purposes of this hearing I heard evidence from five women who worked at P and were involved with the events of the late evening of the 1 January, D, G, S, M and L.
21. I also heard helpful evidence from the consultant neonatologist Professor Wyatt. Some brief evidence from the social worker, from the Children's Guardian, and, of course, most importantly from Y, the mother, and Z.
22. In addition to the written materials I have, at the invitation of the parties, watched a DVD recording from the CCTV cameras around the toilet block at P.
23. I have seen extracts of a DVD of Z's Police interview and listened to a recording of Z's initial telephone call to the Police. Further I have seen numerous photographs of the toilet block taken by the Police shortly after C1's birth.
24. Professor Wyatt gave evidence and helpfully answered some supplementary written questions that were asked of him after he had completed his evidence. He told me that as a consequence of being born into the toilet bowl and being in water, the diving reflex would have been engaged, that meant that C1 would not breath and accordingly would not drown. But the adverse consequence of that is that his body was starved of oxygen. He suffered hypoxic-ischaemic damage, a secondary consequence of which was brain damage. There was an issue about what would have happened if C1 had been immediately removed from the toilet bowl after his birth rather than remaining in the toilet bowl for a considerable period of time.
25. Professor Wyatt advised the Court as follows, quote:

"If C1 had been immediately removed from the toilet bowl, then he would have avoided a period of minutes during which he was immersed in water. However there would still have been a prolonged delay before the ambulance crew arrived, during which he would have been exposed to severe hypoxaemia, which would have probably stimulated the diving reflex and hypothermia. In addition there would have been a further delay before he arrived at the hospital.

In my opinion it is more likely than not that he still would have sustained some degree of brain injury, however, in my opinion it is more likely than not that the brain injury would have been materially less severe."

That opinion is not accepted on behalf of the mother, but no other medical evidence is called or relied upon to gainsay Professor Wyatt's opinion.

26. I have no hesitation in accepting the evidence of Professor Wyatt and accordingly I find that on the balance of probabilities that although C1, by reason of the circumstances of this birth, would have suffered some brain damage, the extent of his brain damage was increased and exacerbated by the prolonged period in which he remained in the toilet bowl.
27. The mother gave evidence that she gave birth to C1 very shortly after she went into Cubicle Number 1 at P.
28. We know from the CCTV recording that would have been about 22.10. He was not removed from the toilet bowl for some 24 minutes thereafter.
29. Professor Wyatt has advised that there is not a simple linear relationship between the duration of immersion in water and the degree of brain damage consequently suffered. But I am satisfied that on the evidence that he gives to me that I am entitled to find, as I do, that the degree of his brain damage was materially and significantly greater than it otherwise would have been if C1 had been immediately removed from the toilet bowl.
30. The five fellow work colleagues of the mother from P did not know her prior to the events of the 1 January. She did not know any of them.
31. I watched all of them carefully as they gave their evidence. It was plain to me that to varying degrees all of them were affected by the events that they witnessed on the 1 January. They were, in my judgment, measured in the evidence that they gave. I note that they were all interviewed by the police within a matter of days of the events of the 1 January. It is of note that their evidence bears a considerable degree of consistency and similarity. It is suggested that on behalf of the mother that in material parts of the evidence that they give, in particular about what the mother did or did not say to them, they are wrong and mistaken. I do not accept that submission.
32. I am satisfied that they were doing their best when they gave their oral evidence to assist the Court in discovering what happened during the late evening of the 1 January. I do not accept that the evidence of any of them was as the result of gossiping between them, or other employees at P, or that it is tainted by cross-contamination.
33. Z was a reluctant witness to this Court, indeed a witness summons was issued to secure his attendance. In considering his evidence, I have regard to his police statement made in August of this year, G878, where he sought to withdraw and/or downplay some of the allegations that he made against the mother, or to say that he could not now recall clearly some of the things the mother had said to him. In those circumstances, I am invited on behalf of the mother to reject entirely Z's evidence, and in particular his evidence about what the mother said to him when he visited her in hospital on 2 January and 5 January this year.
34. Moreover, the mother alleges against Z that he was aggressive towards her in the late part of 2013, when the mother asserts he demanded money from her, £700, which it was said Mr. X owed him, but had failed to pay.
35. Secondly the mother alleges that Z was a business partner of Mr. X, in that they bought and traded in motorcars.
36. Third, the mother asserts that when Z did visit her in hospital in January, he first of all told her not to reveal that Mr. X was the father, and to assert that she did not know that she was pregnant.
37. Fourth and finally, the mother asserted that Z had threatened her not to tell anyone of the discussions that he had had with her.
38. That last matter, the threat not to tell anyone, was not mentioned by the mother to anybody or mentioned at any time prior to her giving evidence in this case. That allegation is in marked contrast to her assertion to the police in early January of this year, during the course of the domestic violence assessment when she was asked whether anybody else had ever been aggressive towards her, or was she afraid of anyone. To that question the mother said, "No."
39. I also note that the police observed during the course of that particular conversation on the issue of domestic violence, that the mother was plainly laughing. The whole purpose of that domestic violence assessment was to ensure that if the mother returned to the home where she lived with Mr. X, she would be safe. If the mother truly felt threatened by and/or afraid of Z, I do not understand why she simply did not give an account to the police of what she now says Z has done.
40. In relation to the allegation that Z was a business partner of Mr. X, I reject that allegation, I prefer and accept the evidence of Z that whilst they may both occasionally have bought cars and repaired them and sold them on, there was only one car which they jointly purchased and worked on.
41. In relation to what are said to be the threats in hospital the mother's account is she did not tell the Police, for example, whom she said was the putative father of C1 because of the threats made by Z. What undermines that allegation is that when in the toilet block after the birth of C1, the mother asserted to one of the female workers when she asked the question, "Who is the father of the baby?" that she did not know. That was long before any alleged threat from Z.
42. Accordingly I reject all of the allegations made by the mother against Z. I ask myself why has she made those false allegations, as I find them to be, against him? I am satisfied that she has made those allegations in order to attempt to persuade the Court to conclude that Z's allegations, or Z's account of conversations with the mother in hospital, are false.
43. It is remarkable how Z could have spoken to the police about the events of the 1 January when he was not there, because the account he gives to the police of C1's birth chimes in almost all particulars with the evidence given to me by the female work colleagues of the mother. It is asserted on behalf of the guardian that although there was publicity in the local media about the birth of C1, none of them that have been seen went into details of precisely what happened, and so I reject any notion or suggestion that Z gleaned what he told the police from the media.
44. I also take into account Z's demeanour when he gave evidence. As I have mentioned his wife was pregnant at this time. It was plain when he was giving his evidence that he became distressed at what it was he said the mother had told him about the baby and about leaving him in the toilet pan. He paused for a considerable period of time. He said in terms that he could not understand how a mother could treat her baby like that. I am satisfied that Z was genuinely affected by what the mother said to him of the circumstances of C1's birth. I accept his evidence that since that time he has tried to forget what was said and tried to put matters behind him. I conclude that it is that reluctance, that attempt to put matters behind him, which caused him to be reluctant to come to Court to give evidence. I particularly note that he says that after his last conversation with the mother he was awake until 3 o'clock in the morning concerned about what he had heard.
45. In relation to the mother, I accept that in relation to C2 and C3 she was a capable and caring mother.
46. I accept that she is an intelligent woman having been educated to degree level in Poland. I also accept that the mother's lack of English when living in this country would, of course, have caused her some difficulties in her daily life in the United Kingdom. Notwithstanding the language barrier, I am satisfied that the mother has been able to take a full and informed role, not only in the assessment process undertaken by the local authority, but also in this Court hearing having had the benefit of interpreters, both for the purposes of communicating with her legal team, but also with the use of Court interpreters for the purpose of giving evidence.
47. When assessing the mother's evidence and her credibility, I make all due allowance for the fact that the mother was giving evidence through an interpreter. I was invited by Miss Langdale QC, on behalf of the mother to give myself a Lucas direction so that if I found that the mother had been untruthful, I should consider whatever surrounding reasons there might be for her lying to the Court and only if I am satisfied that there was no other reasonable explanation for the lies should I conclude that the lies were made to avoid her being blamed or held responsible for what happened to C1.
48. I have considered the mother's evidence with care, and I watched her carefully when she gave evidence. I regret to conclude I found her to be a most unsatisfactory witness.
49. During the course of her evidence she was asked why she did not cry out for help after she had given birth to C1 as and when various work colleagues came into the toilet block. She said quote: "I was scared, I didn't want- I couldn't think about anything at that time."
50. When pressed about what had happened in the toilet block in particular immediately after C1's birth, the mother asserted on a number of occasions that she could not remember.
51. She was asked about the press coverage. She said she was ashamed of what had been said in the press about her being accused of being a murderer and of having no feelings. What is noteworthy is that in giving that answer there was no reference to C1, no reference to his brain damage.
52. When asked about how Z knew of the detail and of the work colleagues being present in the toilet block, she said that she did not know where he got that from, but she asserted she did not tell him.
53. There was evidence found by the police when they searched the mother's laptop of certain sites having being accessed in July 2013 in relation to spotting as a result of pregnancy. Later there was access to sites on how to cause a termination of a pregnancy and/or to harm a child in utero.
54. There were further website searches in relation to prostitution. When asked about this the mother asserted that she had never searched any of those sites. She said that in the summer there was another woman living in the house who was a friend of hers. That, as I mentioned, had never been asserted before. It was put to Z, but not asserted by the mother in her evidence, that in terms he had access to her laptop and he, it was implied, searched those sites and/or Mr. X did. I do not accept those assertions. I am satisfied that those websites were accessed by the mother, and it is of note that it was in July that she accessed the site about pregnancy and spotting. I am satisfied on the basis of that, that she knew in July 2013 that she was pregnant and not, as she has asserted in evidence before this Court, it was only in December 2013.
55. Whilst I accept it is possible for a woman to be pregnant but not realise it, the notion that a woman who has previously had two children would by six or seven months not realise she was pregnant is exceedingly unlikely and an explanation and an account that I do not accept.
56. When asked about the circumstances of his birth she asserted that she was sitting on the toilet at the time that C1 was born and that in terms 'everything came away.' It was put to her that she had in fact given birth off the toilet and then put the baby in the toilet. She said she could not remember and then she said she would definitely not have put the baby in the toilet, she "would not harm my baby." She said "I repeat for the 100^th time that I was sat on the toilet. I don't know what happened next, I really do not remember." She claims that she had suffered no pain when giving birth.
57. She was asked about the timing and the fact that she removed C1 from the toilet bowl at 22:46 and that, therefore, C1 had spent some 24 minutes in the toilet bowl. She was asked, "Do you think you harmed your son?" There was then a very, very, very, long pause during which the mother gave no answer, in contrast to much of the rest of her evidence she was not crying, and she showed no emotion. She ultimately said "I didn't realise. It was a huge shock and a traumatic event. It was not intentional. It was not planned, it just happened. I did not do anything wrong to my son." When asked whether she was trying to hide the birth of the baby, she said, "No." She denied telling the work colleagues that she was menstruating and it was just a bad period. She denied telling G that she was not pregnant when asked. She said she did not remember any of those conversations. When asked why she did not scream for help she said, she did not know. When asked why she did not immediately open the door of Cubicle Number 1, when the first, second, third or fourth of her work colleagues arrived she said she did not know, she could not remember.
58. When asked if she had said that she did not want the child, she denied it and said she had not said that, she said, "I have never said 'I do not want the baby',"
59. I asked her that if the Court found that when C1 was removed from the toilet bowl he had no blood on him, how she could explain the absence of blood when it is plain from the photographs that there were vast amounts of blood on the toilet floor of Cubicle 1, extending out to the hot air hand drier. There were splashes of blood on the walls and around the toilet. There was bloodied water at the bottom of the toilet bowl. After again a very long pause the mother said that she did not know.
60. There is an issue about whether after giving birth the mother walked from Cubicle 1, to any bin in the toilet block and removed a plastic rubbish bag. This arises for two reasons. First, a plastic bag containing discarded plastic cups was found to the right hand side of the toilet in Cubicle 1, it too was covered in blood; and (b) because whilst there were pools of blood in Cubicle 1 extending out to the hand driver, whilst I accept, as was submitted by Miss Langdale, that the to-ing and fro-ing of various people there are various bloodied footprints on the floor of the toilet block, what is of note is there are spots of blood going from the toilet block towards where the bin was, and I do not find that those spots were caused by contamination of people entering and leaving the toilet block.
61. There is an issue about how the mother eventually removed C1 from the toilet. After a considerable period of time of being coaxed by her fellow workers to leave the toilet Cubicle 1, she came out, pulled the door to and went and sat on the toilet in Cubicle 2. Then after some time, probably around the time that L heard a noise from Cubicle 1, the mother said there was a baby in the toilet in Cubicle 1.
62. L told me that she went to the toilet in Cubicle 1, looked in and could not see a baby. She told the mother, "There isn't a baby there." It was then that the mother got up, walked into Cubicle 1 and L describes her with one hand removing something from the toilet bowl and then with both hands under his arms, picking C1 out of the toilet bowl, turning around and handing C1 to L. She, in preparation had taken off her fleece, emptied her pockets and wrapped the child in the fleece. She described the child as being blue and a darker blue than the carpet in this courtroom.
63. The mother then was then asked to lie down on the floor, work colleagues attempted to reassure her, They began some form of resuscitation of C1, advised and guided by the ambulance control over the telephone until the paramedics arrived. They started resuscitative procedures and C1 and the mother were both taken to hospital.
64. I note that in keeping with what is said by some of her work colleagues that the mother said she did not want the baby or she wanted it put up for adoption. When in hospital, she did not want to see the child and she said that she wanted the child put up for adoption. It was not until the first Court hearing in these proceedings in very early February, that the mother indicated that she wanted to have contact with C1.
65. Whilst it is accepted by the local authority and the guardian that the mother undoubtedly loves C1, and has warm feelings for him, it is consistently noticed that she holds C1 in her arm with him facing away from her. I am told that she has been advised, repeatedly, that it is very important for a small baby, but particularly important in respect of a child who is deaf, that you look the child in the eye so that the child can see your lips move, and that will assist him, in due course, speaking despite his disability and lack of hearing.
66. It is plain that the mother understood what was said to her because it is said, and I accept, that she advised her partner T that is what should be done. But notwithstanding, that advice to T, the mother has consistently not followed that advice and even now, for most of the time, holds C1 in a position where he is facing away from her.

Findings

67. On the basis of the totality of the evidence that I have just described and I have read in the bundle, I make the following findings of fact.
68. First I find that the mother knew she was pregnant in or about July 2013.
69. Second, I find that although she may have told Mr. X that she was pregnant, she otherwise sought to conceal that pregnancy, and so it appears that no family or friends knew that she was pregnant. I also note in support of that finding that even after C1's birth and even after assuring the guardian and the social worker that she had told her parents about C1's birth, in fact it was many, many months before she in fact told the maternal grandparents of C1's existence.
70. Three, I find that she failed to seek antenatal care when there was absolutely no good reason for not doing so. The language barrier might have proved problematic, but, it was one that the mother could, if she had wished, overcome. Indeed, because of her past obstetric history, she should have known that it was essential that she had antenatal care.
71. I entirely accept that the fact that she may have received antenatal care would not have prevented her suffering the sudden abruption which led to the birth of C1 in the toilet, but it gives, in my judgment, an indication of the mother's approach to this pregnancy and to this child.
72. Fourthly I find that Z gave a true account of what the mother said to him about the birth. It is asserted that it was not him who mentioned 'flushed', but the police operator who first mentioned the word 'flushed' during the course of Z's telephone call to the police on the 6 January, but as I am reminded later in that telephone call he did, of his own volition, say to the effect that the mother knew that the baby would not be able to go down the toilet.
73. I accept and find that the mother suffered a traumatic abruption of her womb which caused the sudden birth of C1 on the 1 January.
74. Given that I find the mother to be an unsatisfactory and unreliable witness, I do not know whether C1 was born into the toilet bowl or not. If the mother was sitting on the toilet as she gave birth to C1 and the placenta, I do not know and have been given no explanation as to why there is so much blood across the floor of the toilet block, in particular around Cubicle 1.
75. I accept the evidence of L that prior to removing C1 from the toilet bowl, the mother took something else out of the toilet bowl and put it down by the right hand side of the toilet. I find on the balance of probabilities that that was the plastic bag that was discovered in the Cubicle Number 1 afterwards.
76. I am driven to the conclusion, notwithstanding the traumatic event and the consequences for this mother having given birth in that way, that she then did seek to harm C1. She positively sought to hide his birth. That conclusion is inevitable, when despite aid being at hand, the mother did not cry out. She did not ask for help. She did not immediately say she had given birth and needed an ambulance. She had lied to those work colleagues claiming that she had just suffered a heavy period, when that was simply untrue.
77. The fact that C1 had no blood on him when he was handed to L, in my judgment has only one of two explanations, either, and there was a great quantity of toilet paper on the floor in and around Cubicle 1, the mother, after giving birth to C1 wiped him down and then put him back in the toilet bowl and covered him over with a plastic bag, or she flushed the toilet when he was in the toilet bowl.
78. On the balance of probabilities I find it is the latter that is more likely, because the photographs demonstrate not only a great deal of blood on the floor, but a great deal of water. Professor Wyatt advised that the amniotic fluid would have been somewhere between half a litre to a litre. If the mother gave birth on the toilet, that would all have gone down the toilet. It is far more likely, in my judgment, that the reason for the significant amount of water on the floor, mixed with the blood, was because the toilet was flushed when C1 was in the bowl causing the toilet to overflow.
79. I find that the mother left C1 in the toilet bowl for some 24 minutes. She made no attempts to remove him from that bowl during that time. Quite the reverse. I am satisfied on the basis of those findings and of the expert evidence of Professor Wyatt that C1's brain damage is significantly and materially worse than it would have been if he had been immediately removed from the toilet bowl by his mother, and in my judgment there is no reason whatsoever why she should not have done so. She may not have been able to act rationally but she ought, in my judgment, to have acted instinctively, namely to protect her newborn child. In my judgment the shock or trauma, as she may have suffered, would not have prevented her from acting instinctively. Accordingly I am satisfied that C1 did suffer significant harm immediately after his birth and that that is attributable to the actions that I have just described of his mother. Further, in light of those findings I am satisfied that C1 is at risk of suffering future significant harm, from his mother, and accordingly I am entirely satisfied that the threshold criteria of Section 31(2) of The Children Act is made out.

Welfare

80. Considering issues of welfare, I have to consider whether the mother can safely parent C1 now and whether I have sufficient information before me to make that decision. The guardian advises me that she is satisfied from her enquires and knowledge of the case that this matter has been wholly competently and fully investigated and assessed and that there is no lacuna in the evidence in terms of assessing the mother's ability to parent C1. I entirely agree. I am satisfied that the local authority, and in particular the social worker, has worked closely with the mother and has given her every opportunity to demonstrate that she is able to safely parent C1.
81. I see no grounds, whatsoever, for ordering a further assessment of the mother whether by a Polish social worker or anyone else.
82. Accordingly, in light of my findings and in light of the negatives assessments undertaken by the local authority, I am entirely satisfied that this mother could not meet the needs of C1 now or in the future. In my judgment it is not in his welfare best interest to be cared for by his mother. His needs, as a result of his brain damage, are complex. I am satisfied that the Local Authority's care plan for him to remain in the long term care of his current foster carers, is entirely in his best interests. I am told and I accept that the current foster carers have provided him with an excellent quality of care and with particular dedication for which the Court gives them its grateful thanks.

Conclusion

83. Accordingly I am satisfied that the only order that can be made, and should be made, in the interest of C1 is a care order with a care plan of long term fostering. It is entirely right that the mother should have contact and it is agreed that she will have supervised contact once a month.
84. That is the judgment of the Court.

____________