England and Wales Family Court Decisions (other Judges)

		64 Victoria Street Blackburn
		2nd August 2017

1. THE JUDGE: These proceedings concern a little girl, L, born on 13^th May 2016. At the end of September and the beginning of October 2016 when she was four months old she had two episodes when she appeared to have stopped breathing and had to be revived. The allegation in this case is that these episodes were both due to something done to her by her father.
2. The Local Authority seeks a care order pursuant to section 31 of the Children Act 1989. Section 31, in so far as is material, reads as follows:

"(1) On the application of any local authority … the court may make an order—

(a) placing the child with respect to whom the application is made in the care of a designated local authority; or

(b) putting him under the supervision of a designated local authority.

(2) A court may only make a care order or supervision order if it is satisfied—

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to—

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him …"

3. This judgment relates to a fact-finding exercise pursuant to the Local Authority's case that L has suffered significant harm attributable to the care given to her by her parent.
4. The local authority has been represented by Miss Gillian Irving QC and Miss Jacqueline Wall, mother by Mr Karl Rowley QC and Miss Danielle Woods, father by Mr Will Tyler QC and Miss Kathryn Korol, and L by Miss Samantha Bowcock. I am grateful to all of them for their written and oral presentations of their cases and for the manner in which this emotionally charged case was conducted.
5. This judgment is concerned with five allegations that the Local Authority seeks to establish. They are as follows:

(a) On 27^th September 2016, the father caused and induced L to suffer an acute life-threatening episode which necessitated her urgent admission to hospital. The child stopped breathing and became cyanosed and floppy. She required resuscitation. The mother was present in the home at the time of the event.

(b) Thereafter, the father failed to disclose what he had done to any health or social care professional. L remained in hospital until 29^th September 2016 and was subjected to unnecessary testing as a consequence.

(c) On 2^nd October 2016, the father caused and induced in L a further acute life-threatening episode. She stopped breathing. Her peripheries became cold. She was floppy and unresponsive. She required resuscitation. An urgent admission to hospital was necessary, where she remained until her discharge into foster care on 11^th October 2016.

(d) Thereafter, the father failed to disclose what he had done to any health or social care professional. L underwent unnecessary testing and examination as a consequence.

(e) On a balance of probability, on both occasions the father caused the child's airways to be obstructed.

Although recording that the mother was present in the house at the time of the first incident the local authority do not suggest that mother had any responsibility for what happened to L nor that she should be held responsible or accountable. The findings pursued are against father alone. Other allegations contained within the local authority Threshold document have been the subject of substantial admission.

Background

6. The father was born in 1991 and the mother in 1992. They had begun their relationship when she was about ten years of age and he was about twelve years of age. They began a sexual relationship when the mother was 13 years of age. They have lived together on and off from the time the mother was 15 years of age, first of all living at the home of the mother's aunt, who was the mother figure for L's mother and, thereafter, in accommodation of their own. Their relationship has not always run smoothly and there have been periods when they have been separated. Both parents, but particularly the mother, had difficult childhoods.
7. In about 2009 – so when she would have been 17 or 18 years of age – the mother was diagnosed with depression. She was admitted to a psychiatric unit but was discharged after about four weeks. In February 2011, the mother was suffering from recurrent episodes of depression and was self-harming. She took an overdose.
8. In November 2011, the couple's first child was born. In December 2012, they had a second child. Sadly, that second child died on 1^st January 2013. The conclusion of the paediatric pathologist who examined that child's death was that she died as a result of bronchopneumonia.
9. At around that time, the father was gambling heavily on fruit machines. That caused a separation for the parents. His gambling had been a problem on and off for some years. In consequence of his gambling the mother demanded a separation.
10. In July 2013, the couple's first child suffered a collapse while being cared for by his father. He had apparently gone floppy and pale and he was admitted to hospital overnight.
11. By August 2013, the couple's relationship was in difficulties again, with ongoing arguments about money. The mother told the father that she wanted to separate.
12. On 18^th August 2013, the parties' eldest child was found dead in his pram on a day when he had been looked after by his father. Investigations into that child's death could find no medical reason and his death was given as unascertained and an open verdict ultimately recorded by the Coroner.
13. The mother's reaction to the second death was to suffer again from depression. In September 2013, she took an overdose and was admitted to a psychiatric unit.
14. It has been recorded during the course of case management that the Local Authority does not and cannot assert that there is any corroboration for its allegations to be found from the material concerning the deaths of the couple's elder two children. All that the Local Authority seeks to draw from the material generated following the children's respective deaths is that (a) metabolic and genetic studies revealed no abnormality in either child and (b) there was no evidence of any cardiovascular abnormalities in either child.
15. I have a wealth of material generated during L's short life. I have statements from social workers and other professionals who have been involved with the family. I have notes and reports generated by medical professionals who have investigated L and who have looked after her in hospital and those to whom her case was referred to for further advice. I have recordings of "999" calls and statements from ambulance personnel. I have statements from other family members as well as her mother and father. I have reports and statements from L's Guardian Ms Jane Walwin-Holm.
16. I have reports from five medical expert witnesses instructed to report to the court:

a. Dr Colin Wallis, Consultant Paediatrician Respiratory Unit Great Ormond Street Hospital for Children;

b. Dr Anand Saggar, Consultant in Clinical Genetics Harley Street London;

c. Dr Robin Martin, Consultant Paediatric and Adult Congenital Cardiologist Bristol Royal Hospital for Children;

d. Dr Kathryn Johnson, Consultant Neonatologist Leeds General Infirmary;

e. Dr Stavros Stivaros, Honorary Consultant Paediatric Neuroradiologist Royal Manchester Children's Hospital.

The Law

17. Before I deal with the facts and the evidence that I have heard, let me address the question of the law.
18. The following general points are of relevance in this case:

(1) The burden of proof lies at all times with the Local Authority.

(2) The standard of proof is the balance of probabilities.

(3) The finding of fact must be based on evidence, including inferences that can properly be drawn from the evidence, but not on suspicion or speculation.

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

(5) 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.

(6) 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 maybe out of fear that the truth will not speak loud enough. The fact that a witness has lied about some matters does not mean that he or she has lied about everything.

(7) The legal concept of proof on a balance of probabilities must be applied with common sense.

(8) The court should have regard to the inherent probabilities but this does not affect the legal standard of proof. This proposition was enunciated by Lord Hoffman in Re B (Children)(Care proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35 where, at paragraph 15, he said this:

"There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely."

(9) The fact that the parents failed to prove on a balance of probabilities an affirmative case that they have chosen to set up by way of defence does not of itself establish the Local Authority's case.

(10) Parents may, in some respects, be good parents. That does not necessarily mean that they are willing and able to protect their children in the way that might otherwise be expected.

(11) Where repeated accounts are given of events, the court should think carefully about the significance or otherwise of reported discrepancies. They may arise for many different reasons, such as lies, faulty recollection or contamination from other sources. They may simply be the effect of the human reaction of unconsciously filling in the gaps.

(12) Expert evidence has to be viewed against the broader canvas of all the relevant information before the court "the expert evidence has to be carefully analysed, fitted into the factual matrix and measured against assessments of witness credibility" Wall LJ in Webster v Norfolk County Council [2009] 1 FLR 1378. The expert advises, the court decides.

(13) It is perfectly acceptable (and not uncommon) for the court to reach a conclusion that a medical condition or presentation has an unknown cause.

(14) The court must bear in mind that "today's medical certainty may be discarded by the next generation of experts, or that scientific research will throw light into corners that are at present dark" – Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567.

(15) It is open to the court, on the basis of the totality of the evidence, to reach a conclusion which does not accord with the conclusion reached by the medical experts – A County Council v K, D and L [2005] 1 FLR 851.

(16) It is in the public interest that those who cause non-accidental injuries to children should be identified. The court should not "strain" the evidence to identify on the simple balance of probabilities the individual who inflicted the injuries. If it is clear that identification of the perpetrator is not possible the court should reach that conclusion – Re K (non-accidental Injuries: Perpetrator: New Evidence) [2005] 1 FLR 285 CA.

(17) If a court cannot identify a perpetrator or perpetrators it is still important to identify the pool of possible perpetrators by asking whether the evidence establishes that there is a "likelihood or real possibility" that a given person perpetrated the injuries in question – Re S-B (Children) [2009] UKSC 17.

(18) The court's function is to make the findings of fact that it is able on the evidence and then analyse those findings against the statutory formulation. The gloss imported by the use of unexplained legal, clinical or colloquial terms is not helpful to that exercise. The threshold is concerned with whether the objective standard of care which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is attributable to the care actually provided – per Ryder LJ in Re S (A Child) [2014] EWCA Civ 25.

19. There are particular legal issues arising on the facts of this case which require a more detailed examination. Mr Tyler QC and Miss Korol on behalf of father have developed detailed arguments under four headings:

a. Burdon and Standard of Proof;

b. Unknown Cause and "the prosecutor's fallacy";

c. The role of the expert; and

d. Lucas: probative lies, irrelevant lies and innocent inaccuracies.

I do not need to set out in detail the submissions in relation to the burden and standard of proof and the role of the expert as I have summarised them above. I have of course noted the additional citations.

20. It is the father's case as propounded by Mr Tyler and Miss Korol that the most likely explanation for what has happened to L is that her two episodes of collapse were caused by something that is currently unknown to medical science.
21. They have referred me to R v Angela Canings [2004] EWCA Crim 1 and Re U; Re B (Serious Injury: Standard of Proof) [2004] EWCA Civ 567. Most relevant to my deliberations are the following propositions:

a. The cause of an injury or an episode that cannot be explained scientifically remains equivocal;

b. Recurrence is not in itself probative;

c. The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.

22. It is always possible for a judge to decide that the cause of an injury or an episode remains unknown despite extensive medical investigation. This was expressed by Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam) as follows:

"In my judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made."

23. The medical evidence is clear: there is nothing unusual about L's makeup, in particular in relation to her heart or her genes, that could explain the two episodes with which I am concerned. Nothing in the investigations into the death of her siblings suggests any problem common to any of them.
24. That is not to say that the medical evidence was unchallenged. Those challenges are part of the factual matrix and the credibility of all the witnesses, expert and lay, are for me as the judge to analyse as part of my examination of the totality of the case.
25. Father has accepted that he has lied. I am alive to the fact that when in the throes of a family breakdown people can behave in ways that they would not normally do and that their focus can be on their perception of the battle they are fighting.
26. I am equally alive to the fact that memory is an unreliable tool, particularly at a time of heightened emotion. L's collapses when set against the background of the death of her two older siblings must have caused untold anguish for those who loved her and cared for her. It is difficult to put oneself in the position of a parent faced with a life threatening incident in these particular circumstances. To expect every detail to be remembered with accuracy is wholly unrealistic.
27. Neither is memory fixed. What is "remembered" can change over time and can be influenced by many different factors that might include the writing of witness statements and the preparation for trial. Repeated discussion with people who shared the experience as well as with others who did not can allow the memory to develop so that it becomes sometimes false.
28. During the course of the hearing I heard evidence from the following witnesses: L's social worker, L's maternal aunt and her partner, the ambulance crew who attended on the second incident, the paediatrician who was responsible for L when she was admitted to hospital on both admissions following the two episodes I am concerned with, Dr Martin, Dr Wallis, L's mother and father, and L's Guardian Ms Walwin-Holm. The evidence I heard was wide ranging. Not all of it has turned out to be relevant or to provide illumination on the matters I have to decide. Where I can I will incorporate my findings as I set out what has happened to L.

L's history and her parent's relationship breakdown

29. L was born on 13^th May 2016. Following her birth, her mother was reported as being tearful and in low mood. In the light of what had happened to her older siblings, special arrangements were put in place for the future medical care of L, allowing her parents immediate access to the paediatric unit at their local hospital without having to go through any triage system.
30. On 1^st July 2016, L was seen as an outpatient for examination at the hospital. Her examination was recorded as normal. On 14^th July, L had her first set of immunisations at the baby clinic and had her eight-week check. Her development and growth were recorded as satisfactory.
31. On 17^th July, L was presented to the paediatric assessment ward, pursuant to the open access to which I have referred, because her mother was concerned that she felt warm to the touch and had a cough and was unsettled. She was discharged shortly before midnight, following a period of observation, and all was recorded as well.
32. A home visit was made by the health visitor on 5^th September 2016. No problems were identified other than that mother had begun weaning L somewhat earlier than was advised. Advice was given and no other concerns were identified.
33. On Sunday, 18^th September 2016, L was christened. What should have been a happy occasion, sadly, turned out to be very much otherwise. After the christening, when L had been left with her paternal aunt for the night, her parents went out to celebrate the occasion at a local public house. Both accept that they had a lot to drink. During the course of the evening, the couple had an argument. Father had been standing by a fruit machine and mother is adamant that she saw him putting money in, resuming his problematic gambling. There was also an argument about a suggestion by mother that father had taken the money for L that had been given by friends and relatives in her christening cards. The upshot of the row was that mother told father that their relationship was over and that she wanted to separate. She left him in the public house and walked home, only to find that she had no keys to get into the house.
34. At about 11.00 or 11.30 that evening, father rang mother's sister telling her that the mother had gone missing. He said he had reported her missing to the police. He said he had been driving around in a taxi looking for her and that she was not at home. He said she was drunk and raised concerns about her mental health. Mother's sister rang the mother who said she was outside her home but without a key. An examination of the police records revealed no recording of mother being reported missing on that occasion. The couple slept separately and the following morning father left early to go to work. When he returned, mother confirmed to him that their relationship was over.
35. The circumstances in which it came about that father left the house with L that evening are somewhat in dispute. It is the mother's case that, after pleading with her to take him back, she says father turned nasty and took her keys, mobile telephones and L. He took L to his mother's house. She alleges that he said to her, "You hurt me so I'm going to hurt you."
36. Later on that evening, recorded at 10.32 pm, father reported mother as missing to the police. His account was that he had returned from work to find her sitting on a bed with a knife in her hand. He alleged that she had told him to leave and take the child with him. That was a story he repeated to mother's sister. Searches were then commenced by mother's sister and her partner and by the police to try and find mother. In fact, the mother was at home and this was confirmed by the police an hour after the initial telephone call. Father refused to return L to her mother.
37. The following day, mother and her sister went to the home of father's sister with whom L was then staying. An unpleasant altercation took place in the house as mother tried to recover L, ending up with mother biting father's sister on the arm, as a result of which mother was arrested, held in custody, interviewed – in which she made a full admission – and cautioned by the police. A referral was made to Children's Services by the police.
38. The following day, a social worker was allocated to the case. She saw L and made arrangements for mother to see L supervised by the father. The mother denied to the social worker that she had behaved as alleged by the father (holding a knife and telling him to leave with L), asserting that her mental health was good and giving her consent for the social worker to speak to her GP. Her GP confirmed that he had not seen mother for some time and knew of no immediate concerns about her mental health.
39. By Saturday, 24^th September 2016, L had developed a cold. She was taken by both her parents to the out-of-hours general practice and a history was given of her coughing on and off over the last few days with the parents being recorded as "anxious". On examination, L was found to be alert and conscious. She was smiling throughout the consultation. She had no wheeze and her throat was clear. An upper respiratory tract infection was diagnosed. The parents were reassured and were advised to keep her well hydrated.
40. On 26^th September 2016, the social worker spoke to the father who, at that stage, was still refusing to return L to her mother's care. He said he might do so in a few days' time but he again raised concerns about mother's mental health and raised the incident with his sister on 20^th September as an example of her poor mental state.

The first episode

41. The 27^th September 2016 was the date of the first incident in respect of which the Local Authority seeks a finding of fact. At that time, mother was staying with her sister, and the father took L to that house so that the parents and L were together. At 11.32 am, a 999 call was made and an ambulance was sent to the mother's sister's house. The circumstances of what happened are much in dispute.
42. It is the father's case that, at a time when L's mother and mother's sister were upstairs with L's mother's sister's young daughter and he was in charge of L (who was in her pram, initially in the kitchen and then in the living room), he left her momentarily to go outside to get cigarettes and have a smoke. His cigarettes were kept in his car parked outside the house. It is his case that he left the door to the house ajar and, as he returned with his cigarettes, although proposing to smoke outside, he heard L coughing, but coughing in such a way as to cause him concern so that he went in and looked at her. What he saw was L in her pram, blue around the lips and not breathing. He called out to mother and her sister and made a "999" call.
43. It is mother's case, supported by her sister, that L had been left downstairs with her father in the kitchen whilst they were upstairs. All they heard was the slam of what sounded to both of them like the front door. Mother thought that odd as L was asleep but anticipated that the sound she had heard was the father going to his car for cigarettes. Neither L's mother nor mother's sister say they heard any coughing. The first thing that alerted them to the fact that anything might be wrong was father's shout upstairs to them, when they recognised a sense of panic in his voice.
44. The earliest independent history was that given to the ambulance crew, who filled in a form on their way to the scene and/or on their way to hospital having collected L. It recorded a viral infection, that the child had been "sleeping this am; has ? choked on phlegm". That explanation that she had possibly choked on phlegm can only have come from father.
45. One of the difficulties that this case presents is that father is a credible, albeit at times dishonest, historian. When he had described mother on 19^th September as sitting on her bed with a knife, telling him to leave and take the child with him, he was believed by mother's sister. He now accepts that that account was entirely fictitious. It was a deliberate lie on his part but a convincing lie. Only he says he heard L cough. If she did not cough then there was no choking on phlegm. The only mention of phlegm up to and prior to 27^th September is that reference in the ambulance notes, emanating, as it must, from father. As a convincing liar, if he was being untruthful, the likelihood is that he would have convinced the paramedics and he would have convinced mother and her sister that, in fact, although they may not have heard it, L choked, or may have choked, on phlegm.
46. An examination of L was carried out by the ambulance crew. The recordings of her vital signs have been carried through into the medical evidence. At hospital, L was examined, but, by the time the paramedics had arrived, she had made a full recovery and was only admitted to hospital because of the history of previous child death. She was returned home on 29^th September 2016.
47. On 30^th September, a home visit was made by the social worker to the home of mother's sister where she and L were then staying. L is recorded as being and looking well and she was reported as sleeping and eating well.
48. On 1^st October 2016, both parents took L to the out-of-hours GP service. She had a cough. The parents were reassured and told to keep her well hydrated. The doctor was told that she was sleeping and eating normally and that she was not struggling to breathe. Her temperature was normal. The cough was recorded as being a dry cough and the doctor formed the view that she had an upper respiratory tract infection.

The second episode

49. The following day, 2^nd October 2016, is the second occasion in respect of which the Local Authority seeks findings against the father. L's mother and L's mother's sister had gone to L's parent's home where the family had been living until the parents separated on the 19^th September; indeed, it was father who took them. The idea was that they were getting the house ready for mother and L to take up occupation there on their own with father living elsewhere. L was left with her father at the aunt's home. Also present was the aunt's partner and his friend and the aunt's young child.
50. Father has given differing accounts as to what happened. In his statement in these proceedings dated 11^th November 2016, at paragraph 46, he records the event as follows:

"Mother and her sister left to go to mother's house leaving myself, mother's sister's partner and their children. I had L in my arms. She was unsettled so I was trying to soothe her so she could go to sleep. She fell asleep but after only a minute or so she awoke as if she was in shock and her eyes started to look as if she was going back to sleep, but I didn't like the look of her. She was quite pale and I said to mother's sister's partner, 'Do you think she looks right?' He agreed that she didn't. I put her down on the floor. Normally she wakes up if you do this but she didn't. She was very pale and when you tried to move her she was unresponsive but she appeared to be breathing okay.

47. I phoned for an ambulance. When the paramedics got there, they said all her OVS were fine but her temperature was high at about 34 degrees, I think they said. They were worried about that so took her straight back to the hospital."

51. I have a transcript of the telephone call for the ambulance. In fact, the phone call was made by mother's sister's partner, not father. He was doing his best under questioning from the "999" call handler to describe what was going on. In the early part of the telephone call, he recounts this:

"'She's, she's breathing but she's struggling. She's drow… She's going drowsy.'

Question: 'Does she have difficulty crying between breaths?'

Response: 'She's not crying now but she was crying a bit but she was struggling to cry.'

Question: 'Is she changing colour?'

Response: 'She's gone… Yeah, she's gone white and her lips are going blue.'

Question: 'She's gone blue, all right?'

Response: 'Yeah.'

Question: 'Stay on the line for me.'

Response: 'She's going really cold as well.'

Question: 'All right. We're coming as fast as we can on lights and siren. Okay? Is she clammy?

Response: 'Is she clammy? No, not really, no, but she's not breathe… She's not making no noise now and she's making weird noises breathing. She's struggling really bad.'"

Mother's sister's partner described different stages where L was going drowsy, where she was breathing "really, really quickly" and she was breathing heavily but not waking up. He referred to L being "freezing cold". Throughout, she was breathing but she was described at one stage as going floppy.

52. During the course of the ambulance call, mother and her sister returned to the house following, they explained, a call from father telling them that L was unwell so that by the time the ambulance staff arrived there were four adults in the house.
53. Towards the end of the conversation, the call handler asked how long she had been like this. Mother's sister's partner sought information from father and relayed that it had been about 10/15 minutes; then he said this:

"Just a few minute. Just before I rang you, he was trying to get her to sleep and she's just, she's just gone like this."

Again towards the end of the conversation, there was a further exchange between mother's sister's partner and the call handler. Mother's sister's partner said:

"'It happened again the other… This happened the other day as well.'

Question: 'All right. Okay. What happened?'

Response: 'She were, she were in hospital the other day but they said that she'd choked on summat, but it's not that.'

Question: 'She's not choked on anything?'

Response: 'No, she's not choked on anything.'"

54. The father's account from the witness box of this incident was significantly different. He told me that his attempts to get L to sleep had caused him to go upstairs away from where mother's sister's partner and his friend were playing downstairs on the X-box, and that the point at which L became unwell was when they were upstairs. He said that she had been lying on his arms, which in turn were resting on his legs, while she slept, but, for the very first time from the witness box, he said that there had been a bang which had woken her so that she had opened her eyes but then become floppy and unresponsive. He then took her downstairs when the "999" call was made to which I have referred.
55. The history recorded by the ambulance staff was as follows:

"Patient was said to have a coughing episode, following by becoming unresponsive and vomiting x 1."

It is not clear to me on the evidence where that explanation came from but it fits not at all with what father has said in any of his explanations; nor does it fit with what mother's sister's partner was saying to the call handler whilst the ambulance was on its way.

56. It is undoubtedly the case that, although L's vital statistics as recorded were below par, she very quickly recovered and, whilst being examined by the paramedics, was recorded as alert and playful. Whilst the paramedics were present, L began to cough and experience one episode of vomiting. There has been a dispute as to the nature of the vomit. It is the father's case, supported by the mother and mother's sister, that the vomit was of relatively clear liquid. The evidence of the paramedics, in so far as they could remember this, was that it was a regular vomit of a milky substance. It seems to me more likely that L would have brought back something she had digested and that the descriptions given by her parents and her maternal aunt have been confused over time in their, no doubt repeated, discussions as to what happened. They suggested that the paramedic had described this vomit as being something from her lungs. Such a liquid from her lungs would have been highly unlikely in any event and does not fit with the rest of the descriptions of her. It suits father's case to think that L might have choked for a second time but the evidence simply does not support that.
57. When L was seen in hospital, the history was noted with no reference to her vomiting before the paramedics arrived. Given that there was no mention of vomiting in the "999" call, I think it unlikely that she vomited other than the once when being attended to by the paramedics.

L's health subsequently

58. L was admitted to hospital and was found to be well. Since her discharge she has been cared for by foster carers and has been well. There have been no more episodes of her turning blue and/or becoming unconscious or floppy. She is developing nicely.
59. Both at hospital and since L has been subjected to a battery of tests to try and identify anything that might explain the two incidents I have described. So far as medical science can demonstrate she is a well child with no abnormalities in her heart or her genes. She has no identifiable condition to explain what happened to her.

The Facebook Conversations

60. As the court so frequently sees, L's parents had a parallel relationship to their real life relationship, one that they were conducting via social media. On one such occasion it appears they had such a conversation whilst sitting in the same room. The relevant messages began on the 21^st September 2016 with someone sending messages to the mother from the father's Facebook account trying to revive their real relationship. Father told me that those messages were not from him and that his account had been hacked. That was plainly nonsense with the messages accurately reflecting his desperation for the relationship to be resumed. I find it difficult to understand why he lied about this and why he chose to maintain this particular lie when it was so obviously a lie.
61. The potential relevance of this evidence is that it demonstrated father's motivation at the time of the two incidents concerning L. Mr Rowley QC and Miss Woods suggest that it shows that mother was determined in her desire to separate and that father realised that his family was about to be permanently fractured. His experience following the death of L's siblings was that the tragedy had brought him and mother closer together. That thinking by father might provide an explanation of why he might harm L, something that would be otherwise almost impossible to understand.

The position of the parties to the case

62. It is the local authority's case that her father has directly caused the problems on each occasion by somehow blocking her airways so that she was starved of breath and thereby oxygen causing her to turn blue and lose consciousness or go floppy. The fact that that obstruction was a temporary one when she was otherwise well has allowed her to make a full recovery very quickly.
63. There is no direct evidence of what it is that L's father is said to have done. I am therefore invited to infer from all the evidence that he must have done something to temporarily starve her of oxygen – such as putting a pillow over her face – but then allowing her to recover by being able to breathe again.
64. Why ever would a parent do such a thing to their child? To most parents it would be unimaginable. However the local authority contend that such is the level of co-dependency between these parents that there is an explanation. At a time when he feared that his relationship with the mother might be over the father decided to take drastic action. Both parents said that the death of their older children had had the effect of drawing them closer together as they tried to come to terms with their shared grief. The local authority suggest that in causing a near death experience for L her father was hoping that he would be seen by mother as the person who saved L and/or that it would draw them back together as yet another dreadful shared experience. It is contended that he knew that L was the most significant thing in mother's life following the death of her two other children.
65. Having listened to all the evidence mother too has concluded that L's collapse on both occasions was because of something done to her by her father. This was a conclusion that understandably she did not want to reach and throughout the proceedings she has hoped that the court would be able to exonerate the father. Her view of him was as a good father. She hoped there might be a medical explanation that might explain what happened to L and that might also cast some light on the deaths of her other children.
66. As is apparent from the description of the events around L's two hospital admissions following her episodes of stopping breathing, her parents had continued to spend time together and with L even though they appeared to be locked in a dispute about who should be caring for L and with father making false allegations about the state of mother's mental health. This is an example of their co-dependency and was clearly something father wished to foster despite what he was saying about mother.
67. However it goes much further than that. During the early months of 2017 at a time when the local authority made it clear that their case was that L's difficulties were caused by the actions of the father, mother says she and the father resumed their relationship in secret. She revealed this at the beginning of the Finding of Fact hearing when her leading counsel asked for permission to file a statement on the subject from the mother.
68. At first blush that seems an extraordinary thing for mother to say to the court. If it is true it is difficult to understand why she would resume her relationship with someone accused of threatening the life of her remaining child. Father was adamant that it was not true and he denied that the relationship had been resumed. If it was false it would be even more difficult to understand why mother would say such a thing as her actions in deceiving the local authority would clearly put at risk any prospect of her resuming the case of L.
69. Upon hearing of what mother was now saying L's Guardian asked for both parents to hand over their mobile telephones so that they could be interrogated and to see what they showed. Father claimed not to have his with him. When he gave it up analysis showed he had interfered with the password immediately before handing it over making it inaccessible. Why would he do that if he had nothing to hide as he asserted? In the event the telephone analysis provided no real help.
70. L's father is adamant that he has done nothing to harm his daughter. He accepts that L was in his sole care at the time of both episodes but suggests that was a mere coincidence. He denied that he was motivated to harm L as a strategy to save his relationship with L's mother particularly set against the loss his two other children. Through his counsel he suggested that the most likely explanation was an unknown medical cause.
71. L's Guardian having heard all the evidence supports the local authority in seeking the findings I have set out.

Assessment of the evidence of the parents

72. The most important part of this case is my assessment of the parents and in particular my assessment of the father.
73. I heard evidence form the mother at an early stage in the case. The advocates had agreed that as the full medical picture was not yet available and the medical evidence that was available had not been tested that questions about what mother had concluded had happened to L when in the care of her father would not be asked. At the conclusion of mother's evidence I decided that I needed to hear from her about her understanding of the case and the conclusions she was coming to, albeit that she might still change her mind.
74. Mother struck me as an unsophisticated young lady with a trusting nature. It was clear that as far as the case was concerned she was more than content to be led by her legal team. She clearly did not want to believe that her partner was capable of doing what the local authority were alleging against him. When mother's sister gave evidence there was a significant contrast between the two women. Mother's sister appeared to have more insight and a more worldly-wise attitude to the events concerning L. I have no reason to doubt that mother was telling me things as she remembered them and there was nothing in her evidence to suggest that she would lie or try to deceive anybody. I got the impression I was seeing a naïve and trusting young women who had suffered some dreadful experiences when she had lost her two previous children. My impression was that she was bewildered by what had happened to L and the allegations made by the local authority. Her sister impressed me as a straightforward historian. Her partner was also very matter of fact and appeared entirely reliable.
75. Of course there is a further part of the assessment that I must have firmly in mind. A witness does not need to deliberately tell a lie to give evidence that is not accurate. The emotional turmoil that must have been caused to L's mother to find her third child struggling to breathe is unimaginable. I must put my assessment of the parent's evidence in its full context.
76. What did I make of L's father? He is clearly an intelligent and resourceful young man who holds down a responsible job. His relationship with L's mother appears to be vitally important to him although at times he has said things about her that are untrue and appear to be designed to hurt her, such as referring to her mental health. It must not be forgotten that he too has suffered the death of two young children. If he has harmed any of his children then he will have had to deal with issues of guilt and responsibility.
77. By his own admission L's father has lied during these proceedings. He has admitted he lied to L's mother's sister and to the police about L's mother having a knife in the bedroom. He repeated that lie to the police. Having accepted that it was a lie to the social worker he then sought to later revive that lie and repeated it. His evidence from the witness box differed to a substantial degree from his written evidence. This had the effect that his version of events in relation to the second incident was not considered by the single joint medical experts.
78. What is the significance of the variations in his account? I would have been suspicious if his account had remained 100% consistent throughout. That is not how memory usually works. However his accounts were not merely inconsistent but sometimes contradictory. He acknowledged that he had lied about the knife incident. In other words he had made up an account of something that simply did not happen. Is there scope for his evidence to have been affected by the emotional turmoil of having the care of his daughter when she suffered two episodes where her breathing stopped due to reasons that medical science cannot yet explain?
79. For the reasons I have spelt out above, L's father has given evidence that I cannot accept as being reliable and accurate. That does not prove the local authority case against him. The fact that he has lied about some matters does not mean he has lied about everything. What I need to go on to do is to consider what I regard as the key incidents or aspects of the evidence in order to inform my overall assessment.

Particular Findings

80. Throughout the days with which I am particularly concerned L had a cold and a cough. That is typical of children of her age and nothing that would be a cause for concern.
81. When the first episode occurred did it begin by L coughing, and in particular did she have a choking cough? The house where L was at the time of this incident was described to me in detail and I got the impression it was a modest sized home. L was downstairs with her father. Her mother and aunt were upstairs. L's father says he heard her cough when he was outside the front door. L's mother and aunt heard nothing. If there had been a choking cough where L was struggling for breath then I am confident L's mother would have heard it. She would have been particularly attuned to L.
82. L's father says that L was lying on her back in the pram. Given her cold Dr Wallis accepted that choking on phlegm was a conceivable explanation given that she had a cold and a cough. He accepted that the cough could have been caused by a small vomit or reflux of milk.
83. The working diagnosis on admission to hospital was that L had choked on her phlegm. The explanation that she had coughed/choked had come solely from her father.
84. My conclusion is that there was no cough or choke. I am confident that had such a thing occurred L's mother would have heard it and I would have expected L's mother's sister would also have heard it. There is no room here for mistaken recollection. L's father has lied about L coughing and choking.
85. That is not the end of the matter. Has L stopped breathing for some unidentified medical reason and her father has felt he must come up with an explanation, even if untrue, to exonerate himself? He had fallen under suspicion on the second infant death the family suffered. That child had been in his sole care during the day when he died in his pram. I discount that as a realistic possibility. Father has demonstrated himself to be a skilful and convincing liar. I am satisfied that his description of L coughing and choking was a deliberate lie. Why did he lie? Was the truth insufficient, he might have feared, to exonerate him? Had something happened that he wished to hide? Before I answer that question I need to consider the medical evidence.
86. When the second episode occurred did it begin with L in her father's arms upstairs being woken by a bang, going back to sleep then becoming pale and unresponsive? This account was given by L's father for the first time when he gave evidence in the witness box after the medical evidence had concluded.
87. In his first statement to the court dated 11^th November 2016 at paragraph 46 he gave this account:

"I had L in my arms, she was unsettled so I was trying to soothe her so she could go to sleep. She fell asleep but after only a minute or so she awoke as if she was in shock and her eyes started to look as if she was going back to sleep but I didn't like the look of her – she was quite pale … I put her down on the floor, normally she wakes up if you do this but she didn't: she was very pale and when you tried to move her she was unresponsive but she appeared to breathing OK [sic]."

88. He accepted that he had told no-one that he was upstairs when the second incident occurred – it was not in the statement, he did not tell the social worker nor did he tell the doctor at hospital who took a history. The suggestion of a "bang" momentarily waking L was given for the first time in the witness box.
89. What happened to L while she was upstairs with her father is known only to her father. He has given significantly differing accounts of what happened. Can I rely on what he tells me? Is there anything to corroborate what he says? The partner of mother's sister was downstairs playing on an x-box. He did not describe hearing a bang. At the time he gave his evidence there had been no suggestion from father that there had been a bang so that he was not asked about it. Had he heard a bang I would have expected him to remember and to tell me. The first he knew that anything was amiss was when L was shown to him by her father. He described her in evidence as "… floppy. I could see her face. Her face looked grey. Her lips looked purple/blue. She was struggling to breath." He then made the "999" call.
90. Miss Bowcock on behalf of L invited me to hear from L's Guardian Ms Walwin-Holm as to whether father had previously said he had been upstairs with L at the start of the second episode. She saw both L's parents by appointment on the 31^st October 2016. She explained that she had asked L's father to give her an account of the second episode during the course of her interview with him. She told me that she had taken contemporaneous notes directly onto her laptop that she had then saved.
91. Her evidence was that L's father had not told her that he had been upstairs at the start of the episode. She was adamant that if he had told her that he was she would have recorded it as she left the interview wondering how anything untoward could have happened to L if her aunt's partner had also been in the room throughout.
92. Mr Tyler took Ms Walwin-Holm to task over this evidence:

a. He suggested that it was not the role of the Guardian to be gathering evidence;

b. He suggested that her interview did not comply with any police type protocol for interviewing someone suspected of committing a serious offence with no complete recording and no opportunity for the person being interviewed to check/correct the note taken;

c. He complained at the late stage in the proceedings when the Guardian proffered this evidence.

In my judgment this attack by Mr Tyler was somewhat unfair. As a Guardian Ms Walwin-Holm would not have been doing her job had she not asked of L's father that he give her an account of what happened to his daughter when she was in his care. The nature of the recording of that explanation goes to the weight I should give to it. I cannot give it the weight I might give to a recorded police interview conducted under caution in the presence of a solicitor. What is important in my judgment is that Ms Walwin-Holm was left with the impression that in describing events to her father had placed himself and L downstairs where other people were present. Clearly it would have better if Ms Walwin-Holm had recognised the potential relevance of her evidence on this point at an earlier stage and had volunteered her notes before father gave evidence. That had not happened. Failing that it was right she disclosed the notes she had as they clearly affected her thinking on the case and father was entitled to have all the material that L's Guardian regarded as germane.

93. In fact that massaging of the facts by L's father would be entirely consistent with the way he has explained things throughout, as I have set out above. I can take that into account in my overall assessment.
94. I must ask myself the same questions in relation to this part of father's evidence as I did in relation to the first incident.
95. I cannot accept father as a reliable historian who has given me a complete and accurate account of the start of the second incident. His evidence from the witness box in relation to this had the appearance of him making it up as he went along. Why should that be and what conclusions does it lead me to draw? Again before I do so I need to consider the medical evidence in some detail.

The expert medical evidence

96. All the medical experts were appointed as jointly instructed single experts, each to deal with matters within their field of expertise. All provided written reports and all answered questions drafted by the parties. In the event it was agreed that I only needed to hear evidence from Dr Martin and from Dr Wallis.
97. As to the potential causes of L's collapses in September and October 2016 the following possibilities were identified in the medical evidence:

a. A neurological disorder;

b. A metabolic disorder;

c. An infection

d. An underlying immune deficiency or susceptibility to infection;

e. A mutant channelopathy;

f. A susceptibility to cardiac arrhythmias;

g. A bacterial toxaemia;

h. An unknown medical cause.

98. Some conclusions were unchallenged. There was no evidence of L having a neurological disorder. Scans did not reveal any congenital brain abnormality and there was no evidence of an acquired brain injury or bleeding over the surface of the brain. There was no evidence of L having any infection at birth and basic metabolic and cardiac investigations were normal.
99. Dr Martin was able to explain the current state of scientific knowledge of structural heart disease, disorders affecting the heart muscles, and inherited conditions that render an individual susceptible to death or life threatening episodes where they stop breathing. As far as current knowledge is concerned he concluded that it is unlikely that there is anything within his field of expertise that would explain what happened during L's two episodes, or either of them, particularly since she had remained well since. However he expressed a very clear caveat. Having been asked about current developments in genetic testing he said:

"I think we are more uncertain about things. I think the more we learn about these conditions and the potential for interaction, the more complicated it becomes, I am afraid … we are learning more about the genetic causes for unexplained death and sudden death and often the more we learn the more we do not know …"

100. Dr Martin advised that cardiac causes for life threatening incidents fall into three categories: underlying structural heart disease; inflammatory or genetically determined disorders affecting the heart muscles such as myocarditis or cardiomyopathy; and heart rhythm disorders, in particular what are termed channelopathies which are inherited conditions that render the individual susceptible to fatal ventricular rhythm disturbances. This latter category includes a group of conditions called Long QT Syndrome and a rare group of conditions called CPVT.
101. Channelopathies are conditions related to mutations of genes and Dr Martin accepted that new channelopathies are being found all the time. The testing of L's genes has not identified any variants to be present. Bearing in mind that L's heart function was tested in hospital in October 2016 when her heart showed no rhythm disturbance and that she has gone 7 months without a similar episode, ECG tests have not identified Long QT Syndrome and there is no maternal or paternal history of any cardiovascular condition, Dr Martin concluded that it was highly unlikely that her two episodes would have a cardiovascular explanation.
102. Dr Martin is an experienced witness in family cases and had given evidence on the same topic in A Local Authority v A Mother & GM & DA & AA [2012] EWHC 2647 (Fam) before Baker J. I found him to be impressive and authoritative and I accept what he told me.
103. Dr Wallis is an equally eminent specialist but with limited experience of giving evidence in family proceedings, his experience being limited to civil cases. I am satisfied that he had the correct expertise to be advising the court as he did, that he understood his duties as an expert and he made an impressive witness.
104. In cross-examination Mr Tyler challenged the evidence of Dr Wallis and the local authority case generally on the basis of three propositions:

a. That it is wrongly assumed that the deaths and other incidents concerning L's siblings can provide positive evidence in support of the notion that L has been subjected to inflicted harm. In so far as they relate to the possible abuse of a child they are "non-facts".

b. That it is incorrectly assumed that the two episodes on 27^th September and 2^nd October 2016 necessarily have the same cause.

c. That it is expressly, but wholly wrongly, reasoned that ruling out known causes of such episodes will lead inexorably to the "diagnosis of exclusion" of induced illness.

105. Dr Wallis explained that as a clinician the fact that the death of an older sibling occurred whilst in the sole care of his father was a matter that he could not ignore. Whatever may have informed Dr Wallis's thinking it is a matter that I must ignore and I do. Dr Wallis accepted in any event that relevance would only arise once it was established that L's father was in some way responsible for the death or prior incident involving an older sibling. No such responsibility has been established.
106. As far as a diagnosis by exclusion is concerned, Dr Wallis maintained that the possibility that the episodes were due to unknown causes was a possibility he had in mind throughout. Whatever process of reasoning any expert witness applied it is of course for the judge to carry out the overall analysis that includes the medical evidence as part of the picture, but only one part.
107. Dr Wallis was asked about an account emanating from L's father given to the doctor at hospital in the first episode:

"… This morning in pram with dad, coughing fit, went blue, stopped breathing, floppy."

Dr Wallis explained that there were two different ways that a child can have an apnoea/respiratory event: firstly where the child makes increasing respiratory efforts such as coughing, breathing hard, struggling to get breath, where floppiness is quite a delayed response, and secondly a cessation of breathing where no respiratory effort is made when often the child will go very pale and very floppy. He explained that a child who had something in their throat would make considerable efforts to clear the airways of any blockage. The child might go blue during a struggle to re-establish their airway. A child going floppy would be inconsistent with a child clearing blocked airways.

108. Mr Tyler and Miss Korol argue that the second episode was a classic example of a true BRUE – brief, resolved, unexplained life threatening episode as defined in "Brief Resolved Unexplained Events (Formerly Apparent Life-Threatening Events) and Evaluation of Lower-Risk Infants" published by the American Academy of Pediatrics, May 2016, and referred to by Dr Wallis. They rely in particular on the fact that after the paramedics arrived L had a short coughing fit and was slightly sick. She then made a rapid recovery. They rely on the description of the mother, the father and the mother's sister that the small vomit was of clear liquid. That is used to support the suggestion that something unexplained was happening that would fit the definition of a BRUE – by definition a matter that medical science cannot currently explain.
109. The "clear vomit" was something that in my assessment had been discussed between L's parents and L's aunt. They all told me that the paramedics had explained that it was from L's lungs. That suggestion was denied by both paramedics as both remembered, as far as they were able, a milky vomit, i.e. something entirely normal, whereas liquid from the lungs would not be normal and was not what they remembered. In my judgment the "clear vomit" memory is unlikely to be accurate and is more likely to be the product of detailed discussion amongst the adults so that they now all "remember" exactly the same thing. Far more likely would be a milky vomit. That was also the evidence of Dr Wallis, who also ruled out the possibility that it was something from L's lungs.

Analysis

110. The question I must ask is whether the local authority has proved on a balance of probability that L's father was responsible for either or both of the two episodes. At the conclusion of the evidence two possibilities remain: either L was harmed by her father on two separate occasions, or L had two episodes that are either capable of explanation on medical grounds or one or both are a BRUE.
111. The starting point is that L was alone with her father on both occasions. His account of what happened is therefore the most important account. Can I rely on him as an accurate historian so that I can use what he says to work through the medical evidence to establish what is most likely to have happened? By reason of the fact that he is an admitted liar, and an accomplished and convincing liar,(the knife incident) and has lied about matters in a brazen way in his evidence (the Facebook evidence) I have real difficulty in taking at face value anything he says when it is not supported by other evidence.
112. His account of the September incident starts from the premise that L coughed/choked before he got to her and then alerted L's mother and aunt. I reject his evidence that she either coughed or choked. In a modest sized house L's mother was at least as likely, if not more likely, to have heard L than her father who on his account may well have been outside the house.
113. If there was no cough and no choke then father has given false evidence and the explanation for why L stopped breathing must be a different explanation from the one advance by her father and on his behalf.
114. What about the October incident? Can I rely on his account being accurate when he had taken L upstairs and when she became unwell? I am afraid I cannot. His account of this incident has varied over time. That of itself would not necessarily be fatal. However two features do cause me to question his accuracy and reliability. Firstly it is clear to me that he wanted those in authority to think that the incident began when he was in a room with other people. Secondly his reference to a "bang" waking L at the start of the episode was first made in the witness box when he gave the impression he was making things up as he went along.
115. For these reasons I cannot accept as accurate and reliable what he told me about the second incident.
116. What can I rely on for the most accurate contemporaneous account? The recording of the "999" call in the second incident where L's aunt's partner was giving the descriptions is likely to be reliable. Where he has consulted father for information I tread with caution. It is for this reason I have set out this conversation at length above. What explanation, medical or otherwise fits best with that evidence?
117. Father had given two accounts to doctors when L was admitted to hospital. Such notes are an important source of contemporaneous evidence but have limits. They are not taken with a view to being used in evidence. They depend on the skill of the doctor both as a questioner and note taker. They are not checked by the person giving the explanation. However they can help when the search is on for a consistent account where the person making the statement has no reason to lie. The account to two treating doctors was to the effect that L was asleep, woke up and then suddenly went floppy and unresponsive. That description would fit with Dr Wallis's description of a child who stopped breathing without struggling for breath because there was a blockage. In those circumstances the child would go very pale and very floppy. In my judgment that is what happened here. L stopped breathing. The question is: has the local authority proved that that was due to something done by her father or was it for some other reason explainable or as yet without explanation?
118. Can the local authority point to any reason why L's father should injure her? A person's motive for doing something can be a fact. Can I make a finding as to father's motives? L's mother had reached a firm position that her relationship with father was at an end. He did not share that view as the social media exchanges made very clear. There was a history agreed by both parents that the loss of the other children had drawn them close together. Did L's father decide to injure L to revive the relationship?
119. It would be an extraordinary way for a parent to behave. It is extremely rare for parent to suffocate their children and rarer still to do that but only to the point of the child stopping breathing and then to seek to revive them. Since these incidents father has been an assiduous attender at contact and has behaved in an appropriate and apparently loving way towards his daughter.
120. L's mother knows the father better than anyone. She has struggled to believe him capable of behaving that way.
121. I am always slow to place much reliance on the demeanour of witnesses when they give evidence in court, particularly when they face serious allegations that could have life changing consequences. They have every reason to battle in any way they know how. Does that explain why L's father would rely on lies? Is that his default mode when put under pressure?
122. Subject to all those caveats, I found L's father a disturbing witness. He appeared able to ignore reality and the truth without a second thought. He gave his evidence in a cold and unfeeling way. He appeared to have no insight into how L's mother might be affected by his threats to "hurt her" issued on the 18^th September.
123. On the basis of everything I have heard and read the most likely explanation for the lies that the father has told is that he did things to L that he should not have done. Having considered everything I am satisfied that this father is capable of doing things to his daughter that most parents would find abhorrent. It is likely that his motive for behaving in this way was a warped perception that this was the best way to restore his relationship with L's mother and that as before tragedy or near tragedy would draw them back together. To protect himself from the consequences of what he has done he has lied. In my assessment he is a very dangerous man. I do not think that L's mother really knows him at all.
124. In order to reach that conclusion I must at the same time reject the possibility that a medical explanation, either known or unknown, could explain what happened to L. I do. It remains for the local authority to prove its case as being the more likely.
125. Having made those findings I reject the notion that one or both of these episodes was a medical event that cannot yet be explained by medical science. What happened to L is readily explicable. Fortunately it remains a rare event for a child to be injured at the hand of a parent.
126. For all the reasons I have set above I am satisfied that the local authority has proved its case against L's father and I make the findings sought.