England and Wales Family Court Decisions (other Judges)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

 

Case No NG14C00087

IN THE FAMILY COURT IN NOTTINGHAM

 

Date: 20.2.15

Before HH Judge LEA

Sitting as a Judge of the High Court

 

 

 

 

In the matter of

Re J (a child): Fact-finding

 

 

Counsel for the Applicant Local Authority: MISS SHONA ROGERS

Counsel for the Respondent Mother : MR STEPHEN ABBERLEY

Counsel for the Respondent Father : MISS NASSERA BUTT

Counsel for Miss C : MR SIMON BICKLER QC and MISS JOANNE CROSSLEY

Counsel for the Guardian : MISS JUDY CLAXTON

 

Heard in Chambers on 9,10,11,12,13,16, 17 and 18^th  February 2015.

 

 

JUDGMENT

Introduction and background

 

1. I am concerned in these public law care proceedings with a little girl “J” born on 14^th April 2012. In order to take informed decisions as to her future care I need to investigate the events surrounding the death of her half-sibling, baby “M” on 21^st July 2014 and to make such findings as I can on the evidence I have heard. J’s anonymity is protected by a Reporting Restrictions Order made by Moylan J on 1^st August 2014.

 

2. I first identify the parties with a brief background history.

 

3. J’s mother is AA. She had a relationship with a married man BB and conceived J giving birth on 14^th April 2012. The long-standing adulterous relationship between AA and BB was destructive with separations and reconciliations. It was characterised by cross-allegations of domestic abuse, drug and alcohol abuse and criminality. The local authority took care proceedings. On discharge from hospital when just a few days old J was placed with BB’s sister (paternal aunt).  I identify her in this judgment simply as Miss C.

 

4. Assessments by the local authority of AA and BB were negative. Assessments of Miss C were by contrast wholly positive. On 2^nd May 2013 the care proceedings were concluded and Miss C was made J’s Special Guardian.

 

5 AA again fell pregnant. She gave birth to baby M on 17^th May 2013. It was initially believed that BB was also M’s father.  M was accordingly placed with J in the care of Miss C following his discharge from hospital on 29^th May under an interim care order. On 12^th June 2013 DNA tests revealed that BB was not in fact M’s father. Miss C made it clear that this fact made no difference to her desire to care for M as well as J.  Following a further positive assessment of her Miss C was made a Special Guardian to M by Order dated 14^th October 2013.

 

6. No concerns were raised about Miss C’s care of either J or M until 19^th July 2014. On that day at some point before 1.35 in the afternoon and whilst in the sole care of Miss C, M sustained global hypoxic ischaemic brain damage which rendered his life unsustainable. Treatment was withdrawn with the consent of his mother AA and Miss C as his Special Guardian on 21^st July and he died shortly afterwards at the QMC here in Nottingham.

 

7. The first explanation given by Miss C for M’s collapse was given in the 999 call that she made when seeking an ambulance [H 4-8]. I have a transcript. The tape of the call was played in Court. She said at various points in that call “my baby can’t breathe” and “he’s suffocated under the blanket”. 

 

8. Examination of M at hospital revealed that he had sustained a number of scrapes and bruises as identified on a body map but of greater significance were widespread bilateral multi-compartmental retinal haemorrhages seen on ophthalmic examination. More than one treating clinician expressed concern about the history provided by Miss C. Dr Davies noted that he had not encountered a similar case of a child of M’s age (14 months) suffocating in their bedding. Child protection procedures were commenced. An inquiry began into the extent and cause of M’s injuries. The police began an investigation which is still ongoing. The home of Miss C was closed as a crime scene and photographs were taken in the early evening of 19^th July.

 

The findings sought

 

9. The local authority relies upon a number of facts in satisfaction of the “threshold criteria” pursuant to section 31(2) of the Children Act 1989. These are set out in full numbered 1-11 at A107-109 in the bundle. It is unnecessary for me to rehearse the findings sought as against AA and BB (findings 1 and 2). They are not in dispute being based largely on admissions and have not therefore been litigated in the course of the fact-finding hearing which began on 9^th February and concluded with submissions on 18^th February. Whatever findings I may make by way of threshold findings as to the circumstances of M’s death neither AA nor BB asks to be considered as a long-term carer for J.

 

10. Findings 3 and 4 are not in dispute. The following is thus agreed. At 1.35pm on 19 July 2014 Miss C telephoned 999 and requested an ambulance, reporting that she had found M , “his stomach was bloated up” and that he had “suffocated under the blanket” [HI, H5-8]. Paramedics arrived on the scene at 1.45pm and Miss C informed them that she had put M in his cot approximately one hour earlier and had later found him in his cot struggling to breathe. Miss C later explained to the police that a duvet cover was wrapped around his face/head, at least twice, and that he was face down, with his bottom in the air (finding 3). At the time of these events M was a normal well-developed 14 month old child who would ordinarily be expected to be able to regulate his temperature and to extricate himself from his own bedding (finding 4).

 

11. Findings 5,6 and 7 are also not disputed as follows.

 M was conveyed to the Nottingham Queen’s Medical Centre where he was later found to have sustained the following:

a. Global hypoxic-ischaemic brain damage with severe brain swelling

b. A single area of axonal damage at the edge of one of the spinal nerve roots  

c. Bi-lateral, widespread, retinal haemorrhages seen in all areas but predominantly intraretinal in all retinal layers with occasional subhyaloid and focal subretinal components. The optic nerves showed optic nerve sheath haemorrhage at various levels throughout the orbit, most notably immediately posterior to each eye with the left much more affected than the right. There was bleeding within each optic nerve focally. There were petechial haemorrhages in the orbital tissues (finding 5)

M’s brain injuries were such that his life was unsustainable and life-supporting measures were withdrawn, leading to his death at 6.30pm on 21 July 2014 (finding 6).

The injuries described under finding 5 were on the balance of probabilities contemporaneous with one another and were more likely than not to have been sustained very shortly before M presented as acutely unwell on 19 July 2014 and at a time when he was in the sole care of Miss C (finding 7).

 

12. The facts sought under finding 8 are in part agreed and in part denied. It is agreed that M was observed to have florid petechial haemorrhages across the forehead, periorbital region, temples, behind both ears, neck, upper back and the tops of both shoulders and to the organs of the chest. It is also agreed that there is a post mortem photograph that shows that M had a red bruise to the upper right abdomen, 2.5 cms above and 2 cm to the right of his belly button. There is an issue as to when this abdominal bruise was first seen. There is also an issue as to how this bruise was caused. It is the case of the local authority that the abdominal bruise was not sustained during the course of normal handling, play or in the process of the child learning to walk and/or mobilise. It is asserted on behalf of Miss C that the bruise could have been caused as part of the treatment process once he fell ill so that it would not have been sustained during the course of normal play or handling. The matter is perhaps somewhat clumsily pleaded combining as it does the petechial haemorrhages with the abdominal bruise.  The real issue I have to decide here is whether this bruise can properly be described as a non-accidental event at the hands of Miss C.

 

13. Findings 9, 10 and 11 go to the very heart of the case and occupied almost all of the evidence at the hearing. It is alleged that the injuries sustained by M were caused by a non-accidental event (9): that it is more likely than not that this non-accidental event was asphyxiation (10) and the perpetrator of this non-accidental event was Miss C (11).

 

The legal approach

 

14. There is no dispute as to the legal approach to be followed in a case such as this. I have been provided with a bundle of the relevant authorities. Mr Bickler QC for Miss C invites me to model my approach on that set out in the judgment of Her Honour Judge Swindells QC in Lincolnshire County Council v TM and others (2014 WL 4423390).

 

15 The legal burden of establishing the existence of the threshold conditions in s.31 (2) CA 1989 rests on the local authority applying for the care order. Thus it is for the local authority to establish that the injuries sustained by M were non-accidental. It is not for Miss C to prove an innocent explanation for them. The fact that she has provided explanations and given evidence about what she says happened on 19^th July 2014 does not indicate an obligation to prove her case.

 

16 The standard of proof is the simple balance of probabilities. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.

 

17. In considering the standard of proof the Court should apply the binary system confirmed in Re B (Children) [2008] UKHL 35, namely that if a legal rule requires a fact to be proved (a fact in issue) a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the Court is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it a value of 1 is returned and the fact is treated as having happened (Lord Hoffman at para [2]).

 

18. Given the seriousness of a finding that a special guardian has inflicted a fatal non-accidental injury to a child in her care there is a clear public interest in the court making such a finding where on the evidence it can properly do so or exculpating an innocent carer where on the evidence it can properly do so.

 

19 The Court must decide whether the threshold criteria are made out on the facts proved on the balance of probability before it – suspicion is not sufficient (Re M and R (Child Abuse : Evidence) [1996] 2 FLR 195: Re B and W (Threshold Criteria) [1999] 2 FLR 933.

 

20. I remind myself of the case of In re U : Re B [2004] 2 FLR 263 and the guidance given at para 23 by Dame Elizabeth Butler-Sloss P and to other authorities which elaborate on the approach to be taken to expert evidence. In particular I remind myself that properly reasoned expert evidence carries considerable weight but it is for me to make the final decision as to non-accidental injury having regard to all of the evidence – to the wider canvas as Mr Bickler QC called it - and not simply to the medical evidence. As was said in Re T [2004]2 FLR 838 .. “ evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and 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”.

 

21. The assessment of credibility generally involves wider problems than mere demeanour which is mostly concerned with whether a witness appears to be telling the truth as he or she now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore, contemporary documents are always of the utmost importance.

 

22. A further thought about demeanour which I hold to be important when considering the evidence of Miss C.  The tape of the 999 call was played.  On first impression Miss C appeared quite flat and unemotional. I then heard her questioned in Court over several hours. The human voice is an important conveyor of emotion as any great actor knows. Variations in pitch and modulation can be considerable. Voices are said on occasion to crack with emotion. The injury that Miss C sustained in her teenage years has robbed her of the ability to convey emotion through her voice. She can only speak in a flat whisper with no variation of pitch or modulation. I bear this in mind when assessing her evidence.

 

23. Finally when considering whether a witness may have lied either in a witness statement or to the police or in Court when giving evidence I take into account by way of self-direction that lies do not of themselves prove guilt but may support adverse findings if there is no reasonable explanation for those lies.

 

The medical evidence

 

24.  There are those cases where the medical evidence points so clearly to a non-accidental cause that the only issue for the Court is to determine which of a number of potential perpetrators might be responsible. That is plainly not this case.

 

25. M’s death was as a result of hypoxic/ischaemic injury. His brain was starved of critical amounts of oxygen. Oxygen is delivered in the blood supply. The brain requires a rapid turnover of oxygen so that if the supply is interrupted for more than a few minutes cell death will begin.  Cell death itself will lead to brain swelling and thus raised intracranial and venous pressure. The blood and thus oxygen flow to and from the brain will become further impaired as a result so that the process can become self-perpetuating. It can be associated with a build up of carbon dioxide in the head.

 

26. There were no clinical or pathological signs of head injury such as might result from an impact or severe shaking. Thus the local authority does not seek to argue that there was an inflicted head injury.

 

27. What might therefore have caused M’s brain to be starved of oxygen? Miss Rogers in her helpful written submissions summarises the range of possible causes which I adopt as accurately reflecting the evidence that was given. They can be summarised in this way. There could have been compression placed upon the chest which caused a raise in intravenous pressure so as to stop or restrict blood oxygen and carbon dioxide flow out of the head and of raising intracranial and intrathoracic pressure. It seems to me that it is unlikely that a lay person would select such a method if intent on asphyxiation. It seems to me that compression against an unyielding object would probably also be a necessary component. Such a mechanism could not be caused as a result of M entangling himself within his own bedding.

Alternatively there could be compression pressure placed upon the neck at a point between the chin and the base of the neck. This it seems to me could be caused if a thin fabric became wrapped and tightened around the neck. Dr Bonshek and Dr Hollingbury differed to an extent on the issue of whether there would need to be a restriction at both sides of the neck. It seems to me that is must be a question of the degree and severity of the compression combined with the length of time over which the compression continued.

There could of course be a combination of both forms of compression. Finally a process of smothering or covering of the airways- so stopping the child breathing. This could cause a rise in intravenous pressure. The process of smothering would require the child to be unable to escape.

 

28. Dr Cartlidge raised the possibility of obstruction of the airways as a possible factor by M inhaling vomit at some point prior to his arrival at hospital Vomiting of itself would not have been a cause of the hypoxia. The ambulance staff detected no evidence of vomit. There is no evidence of vomit on M’s bedding. It seems to me that it is most likely that vomit occurred- if that is what the white chunks were at the point of attempts to intubate M. Some vomit was aspirated and required suction. This played no causal role in M’s death.

29. I have little difficulty on the evidence in attributing the retinal haemorrhages as a consequence of M’s coagulopathy which was a consequence of M’s brain injury and not a cause of his brain damage. Dr Bonshek did not exclude the possibility that the optic nerve sheath haemorrhage could also have been the consequence of the coagulopathy. On balance I think it was but as Miss Roger’s points out it is not necessary to resolve the precise mechanism. The clear conclusion from the medical evidence is that M’s death was caused by a severe asphyxia which involved a restriction of blood flow to and from the brain. The petechial bruising is consistent with that. The crucial question is whether the medical evidence taken as a whole is able to distinguish between an inflicted asphyxia or an accidental asphyxia as demonstrated by Miss C.  I have concluded that it cannot principally for this reason. Much turns on the length of time that forces were being applied, the possible combination of such forces and the degree of such forces. Moreover the account given by Miss C combines the potential blocking of airways or smothering as M’s face is pushed down into the bedding he is standing on, so that there is as Miss Butt pointed out a postural component here, as well as a strangulation effect from the duvet or possibly the much thinner cover of the duvet being wrapped around the neck. It is possible that the more M struggled the tighter the compression. I am conscious that I am in danger of seeing the medical evidence in isolation from the wider canvas, which I shall shortly turn to.

 

30. I deal finally before doing so with the abdominal bruise. Dr Cartlidge was of the opinion which I accept that this was consistent with a pinching of the skin or a pressing upward of the skin against the bony surface of the rib cage. This could be imposed accidentally or non-accidentally. As Miss Rogers concedes this bruise is neither pivotal nor determinative. What is striking is that when the body map of M was very carefully drawn the abdominal bruise was not depicted. I can only draw the conclusion that at that time it was not visible, which seems to me to be more likely than the suggestion that it was visible but was missed. If it was not visible that raises the question of timing and the difficulty of ageing any bruise. I can only conclude that on the balance of probabilities I am not persuaded that the bruise was non-accidental in origin.

 

 

 

The wider canvas

 

30.  I struggle to see any causative relevance or connection between M’s death and Miss C’s unfortunate accident as a teenager. It is a striking coincidence and I do not criticise Miss Rogers for drawing the Court’s attention to it. What she has failed to show is any relevance.  Miss C was asked about the accident and the impact on her life of such an injury. I thought she dealt impressively with it. The evidence suggests that Miss C has succeeded in life despite the injury and that she has adjusted well to it. She held down a responsible job for many years. She contracted a marriage which was happy for some years before it ended in divorce. There is no medical evidence of depression or of a morbid preoccupation or fascination with asphyxia or strangulation because of the injury she sustained which would be needed if a case for relevance were to be made out.

 

31. There is no evidence to suggest that Miss C was less committed to M once it became known that BB was not in fact his father. I find the reaction of Miss C to the application by AA for contact instructive. It is not the reaction of someone who has little affection or feelings towards M.

 

32 The uncontradicted evidence of the health visitor A.M.  was that M was a social,  alert and smiling baby and that there was lots of care and loving interaction between Miss C and M. Miss C had been assessed as a suitable person to be granted the legal status of Special Guardian. I have no indication that those assessments were not comprehensive or were insufficiently rigorous.

 

34. I see nothing sinister in Miss C’s enthusiasm for selfie’s. There is nothing unnatural in wanting to look good or in seeking to collect photographs of oneself looking one’s best. I suspect there are few of us who have not taken care to ensure that the photographs in our passports show us at our best.

 

 

 

35 Equally I see nothing sinister in Miss C’s holiday searches. Her explanation that to search quickly she would not input full details of those actually likely to travel is quite reasonable. To suggest that she was searching for holidays without M because she had already formed an intention to kill M is a suggestion I cannot accept as in any way plausible.

 

36. I also see no relevance in the flirtatious messages on Miss C’s phone from the gardener U. To suggest that there was more going on than has been admitted by Miss C is to speculate where the evidence simply does not exist. I cannot see how any amorous attention from U. whether welcome or otherwise would cause such stress in the life of Miss C that she would seek to harm M as a result.

 

37. It is suggested looking at M’s room and his bed that he was somehow a less loved child. He did not get to sleep in his Miss C’s bed. He did not spend overnight at his grandparents as J did. It is an experience common to many families that the first child gets the most attention. The first child gets everything new. The second child has to rely on hand me downs. There are usually far more photographs in the family album of the first child the second or subsequent children. I have seen nothing to persuade me that M was any less loved than J

 

38. Reference is made to the fact that Miss C had been unable to have children when married. Miss C was not questioned about this which suggests perhaps there is little relevance to it. What it does explain is why Miss C was so willing to put herself forward to bring up first J and then M. She wanted to have children of her own. This shows if anything a commitment to the children. It also explains her reluctance to allow AA as the mother back into the lives of her children.  Her objection to the mother’s application for contact is very much a child focussed response. There is nothing on the evidence that I have seen to suggest that Miss C was getting fed up with her role as a carer for 2 young children.  Equally the fact that she had support from Uncle K.  and from her own parents suggest to me not that she was stressed by being the mother to 2 young children but that she was well supported in the event that she needed respite or assistance, and would as a result be less stressed than a parent without the benefit of such support.  

 

38. Miss. Rogers spent considerable time going with Miss C through the events of the fateful morning. There is she submits a period of time wholly unaccounted for. I am not sure that is right. For at least some of the time she would have been preparing M’s food. This raises the question of why she would do so if she was intending some form of physical assault upon him. And this raises the question of motive. Mr Bickler QC submits that this cannot be a sudden loss of temper case as one sometimes sees in baby-shaking cases, or cases of inflicted head injury where a momentary loss of temper can result in fearful injury. On any basis a deliberate asphyxiation would take minutes not seconds. Dr Cartledge raised the question of a loss of control which is “snapped out of” after a period of time which could be a significant length of time without the perpetrator being fully aware of what was being done. I think I can see what he was driving at but I somehow doubt that it would be possible for a carer to carry out an asphyxiation act whether of one possible mechanism or in combination for a sufficient period of time without being aware of what was being done. It seems to me if there has been an inflicted asphyxiation it has happened with intent and deliberation.

 

39. I have looked very carefully at the accounts given of what the mother say happened in the order in which they were given. I take account of Mr Cartledge’s evidence based on his own clinical experience that very often there is inconsistency in accounts given particularly when carers are under stress in hospital with a sick child. If there was here an inflicted asphyxiation then any account would be made up and untruthful. I would in such circumstances in fact anticipate a much more coherent and consistent account than has been given. Miss C would have had to invent an account and given the frequency and regularity with which it was given it would become ingrained Looked at from the opposite perspective if Miss C’s account is truthful and she went into M’s room and found him in obvious respiratory distress as she has claimed her first response would be to alleviate that distress by swiftly untangling him. I doubt that in such circumstances too much attention would be paid to the precise location of all the bedding and the precise position in which he was found. Moreover when the full account as now relied on was  given, the medical evidence was not crystallized, that has only really happened since the experts meeting yet the account given is not inconsistent with the medical opinion. Moreover I accept Mr Bickler QC’s  observation as having some merit that here there is an absence of a plainly false account as is often seen in cases of inflicted injury.

 

40. I was initially concerned by the rabbit that Miss Rogers pulled from the hat when she confronted Miss C with her afternoon web search of the Child Accident Prevention Trust at the close of her cross-examination. I had not spotted it within the pages of telephone evidence. Miss C I infer was also unaware that it was there until she was questioned about it. On reflection I can see why she might have searched the web whilst at hospital. If her account of finding M is truthful she would want to know what had happened and why it might have happened. She would want to know if she was in any way to blame for what had happened. She had asked in the 999 call what the operator thought might have happened. Had Miss C forgotten that she had searched the web in the afternoon or was she covering up? I can understand in the stress of the events of that day Miss C might have forgotten she did so. . She may well have remembered searching but not that she did so on 2 occasions. I see nothing sinister in her accessing the CAPT website in the way and at the times she did.

 

41. A very key part of the investigative process is my assessment of he witnesses and of course primarily Miss C who is the only witness whose credibility is seriously attacked. I have already indicated why I feel it is necessary to make allowances for the fact that Miss C cannot because of her throat injury convey emotion. She remained very calm in giving her evidence which she gave in a careful and dignified way. She showed little physical as opposed to vocal emotion.

There is nothing about her background or her family circumstances to suggest any likelihood that she would react in a violent way towards either of the children she was caring for. I have watched the video of J and M playing in the fountains outside Victoria Leisure Centre the previous day with Uncle K. They appear well cared for and happy. I am satisfied that Miss C has given a truthful account of finding M entangled in his bedding on the 19^th July.

 

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Outcome

 

I have thus come to a firm conclusion in this case that M’s death was on the balance of probabilities a tragic accident. M became entangled and entrapped within his own bedding in his travel cot. Accidents seldom happen without some degree of fault. Criticisms could be made of Miss C. Ideally M should not have been in a travel cot at all given his age and stature. The high sides of the cot meant that any bedding within could not be thrown out or discarded by an infant within. The duvet should not have been left over the side of M’s cot inside the cover and within reach of M in his cot. Had she looked in on M to see why he had been sleeping for so long that morning she might have been able to rescue him before he suffered such an extent of brain damage. Quite rightly Miss Rogers does not seek alternative findings of negligence against Miss C. I am sure since I have no doubt that she loved baby M that Miss C has suffered and will continue to suffer with difficult feelings of guilt. She is bound to feel in part responsible for what has happened since he was in her sole care at the time and the evidence which I have accepted shows that she was a loving and caring parent to both J and M. My concern of course is for J , the subject of these care proceedings. . She should be returned to the care of Miss C without delay. I am sure she will be delighted to be reunited with Miss C.

This has not been a straightforward case. Deaths with this combination of injuries are exceedingly rare. The medical experts rightly proffered their opinions with suitable caution and accompanied with necessary caveats. They did not stray beyond their own specialities and deferred to each other appropriately.

This case will have placed enormous strain on Miss C and those who support her and in particular her family. However the local authority were entirely justified , despite my findings,  in bringing these care proceedings and inviting the Court to investigate as fully as it has the circumstances of M’s tragic death. It has helped the Court process that Miss Rogers has been so conscientious in her preparation and presentation of the case, and in particular in drawing to the Court’s attention for the Courts decision all potential relevant pieces of evidence. I can be satisfied that all the pieces of the jigsaw have been looked at: none have been left behind in the box: so that the Court has been able to see the entire picture before determining what it depicts. This case must also have been difficult for AA, M’s mother to sit through, hearing as she has some distressing details. She has behaved with considerable restraint and dignity. The same can be said of BB although I would have wished he had learnt how to silence his mobile phone. Finally I am grateful to all Counsel for their industry and the assistance they have provided me in enabling me to decide this case.

 

 

                                                           HH J LEA

                                                           Delivered 20.2.15