England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/03/2005

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Charles J:

Introduction

1. The child who is the subject of these proceedings is a young girl (the subject child). She is now three. She is the daughter of the first and second respondents (the mother and the father) who are not married.
2. The proceedings are brought under Part IV Children Act 1989. This is a fact finding hearing.
3. The parents had two other children. The youngest H died on 27 August 2003 at the age of seven months. The oldest L died on 2 February 2004 at the age of three years and nine months. In the periods immediately leading up to their deaths these two children were in the sole care of their mother. This is common ground and the father's absence from the house on each occasion is established clearly by independent third parties.
4. The essential issues before me relate the cause of L's death. I have heard no detailed evidence of the events leading up to, surrounding and after H's death and in my view correctly it was common ground that I am not in a position to make any finding as to its cause.
5. The overarching threshold finding sought by the local authority is that on the relevant date (2 February 2004) the subject child was at risk of suffering significant harm from her mother and continues to be at risk of suffering such harm if returned to the day-to-day care of her parents, due to the care given to her not being what it is reasonable to expect from a parent.
6. This is based on the submission that I should find that the mother caused the death of L.

A general background history

7. The father was born in 1957. He has two children from an earlier marriage who were born in 1989 and 1991. The father does not have contact with these children who live with their mother.
8. The mother was born in 1978. She has a sister and a brother who are in their early twenties. Her parents separated when she was about 15 and at that time she wanted a fresh start away from her mother and went to stay with an aunt in Sheffield. She says that she became epileptic at about this time and was advised by her doctor to return to London for treatment. She returned in around 1996 and lived in hostels.
9. The parents met in 1999 on the father's birthday. At that time they were both studying information technology. The mother says that she felt an instant attraction to the father who had overheard her talking about her problems to a fellow student and had offered her support and invited her to drop by for coffee. She took him up on the offer and, as she told a social worker, "never left".
10. The mother became pregnant with L shortly after the parents met and at around this time they obtained a flat together. They lived together from that time in 1999. The parents individually and together describe their relationship as a happy one.
11. L was born on 16 May 2000, the subject child was born on 3 September 2001 and H was born on 21 January 2003. The father was present at the birth of all three children and he had attended the antenatal appointments. L was an unplanned child but both parents say that they were happy when they discovered that the mother was pregnant with L. The other two children were planned.
12. Shortly after L's birth the father began working but that job only lasted about two months. He was unemployed until February 2002 when he obtained employment for about six months which involved shiftwork and some weekend work. That employment ended after about six months. The father attended a job club twice a week from 4 August to 25 September 2003. So the father was employed for two months when L was a small baby and for about six months in 2002 when L was 2 and the subject child was under one. He attended the job club in the weeks shortly before the death of H. Apart from those periods of employment and attendance at the job club the father was at home and helped the mother look after the children. The parents shared the care of the children. They both took a full and active part in the running of the household.
13. H died on 27 August 2003. On that morning the father was at the job club. The mother telephoned for an ambulance at around 10.30 a.m.. The transcript of that telephone call demonstrates, as does the statement of a neighbour (Mrs H), that before she called for an ambulance the mother had summoned assistance from neighbours. The transcript contains the exchanges set out in Part I of Schedule E to this judgment.
14. H was taken to hospital but the team at the hospital was unable to resuscitate him. The short summary on sudden infant death for pathology and clinical record made by the hospital includes the following:

" Time of death: 11:20 a.m.

History: briefly from distressed mother, baby fed at 9.30, was put in cot upstairs, found not breathing, pale and face in pillow with some foaming near the mouth, sometime after 10 o'clock. Attempt at resuscitation, neighbour 'phoned ambulance.

The paramedic informed that resuscitation had been given at 10.47, arrival time around 11.05 the resuscitation continued but was unsuccessful. The infant was of large size, the skin was mottled and cool, no dysmorphic features, no abnormal marks or bruises. Body temperature 34.8. Clinical examination (Dr Sokale), including the back of the child showed no abnormal marks "

15. The social service record records that the mother had fed H breakfast, left him in his bouncer with his sisters for a while then put him to bed and had returned during the morning to find H face down in his cot not breathing and with deposits around the mouth.
16. The post mortem report concluded that the cause of H's death was staphylococcal pneumonia.
17. The initial assessment of the family carried out by the local authority after H's death contains the following comments:

"Family and social relationships.

The family are extremely close, but tend to keep themselves to themselves. Their neighbours have offered a helping hand since H died and the family have felt enveloped within the neighbourhood. [The father's] parents have died and his siblings live in different parts of the world, he has very little contact with them. [The mother] has her extended (sic) living in Hastings. She has a couple of aunts that are not in good health and elderly grandparents. Contact with them all is seldom due to [the parents] being busy with the three children. [The maternal grandmother] is at present living in Surrey, her aunt telephoned her mother to say that H had died. [The mother] is upset that her mother's reply was that she probably would not be able to come down to the funeral. [The mother] does feel unsupported by her mother and states that her mother is not a proper grandmother. Both [the parents] stated that their relationship is very strong and that they support each other, and this was evident when they were speaking to me about their family and the death of H.

Summary

H was a much loved child, who completed [the parents'] family. All three children are close in age, the tragic death of H has affected [both parents] considerably. Both [L and the subject child] are too young to understand the concept of the death and just refer to H as being asleep. ------------------ The coroner has explained that H's body could be in London for a couple of months before his body is released for burial. The couple have an appointment with DSS about the cost of the funeral. The couple feel the need to remain together at this present time, as they are grieving the loss of one of their children. There are no concerns about this family they present as a close-knit family that manage really well living off of a low income

[The father and mother] are being enveloped in compassion within the community. ------------------ They both feel that there is nothing much more they can do until H is returned to them. Both [the mother and the father] are not asking for help at this present time, but do understand they can contact social services at any time they want some support. ---------- [The mother] could find that in the future she needs some space from the girls to deal with her feelings of loss. "

18. As appears from those extracts social services had no child protection concerns about the family following the death of H.
19. Following the death of H the relationship of the family with the local vicar (Rev M) became a lot closer. She took H's funeral service and after that became a reasonably regular visitor to the parents' house. The mother and the children also became quite regular attendants at Sunday services with the father coming too on occasions. The children also attended the monthly children's hour and L played Mary in the Christmas nativity. Rev M gave pastoral care to the mother who occasionally came to the vicarage for a chat. I shall return to the part played by Rev M on the day of L's death and her views of the family. At this stage I simply pause to record that early in her statement to the police Rev M says that she has always been impressed by the care of the children by the mother and the father and that the children were well-behaved well presented, happy and contented.
20. Towards the end of 2003 H's headstone was put in place. In his evidence the father told me that in his view this was a significant event for the mother and after it had taken place her mood began to worsen. He told me, and I accept, that he first became aware that this was significant and that his proposed return to work early in 2004 was worrying the mother at a party around Christmas time when the mother had had a couple of glasses of wine which went straight to her head. Rev M in her evidence said, and I accept, that around Christmas the mother was depressed and was telling her that she was prepared to walk away from her family. Rev M was sufficiently concerned to offer to put the mother in touch with a doctor in connection with her depression; she did not do so and the mother did not see a doctor about this.
21. The father told me, and I accept, that he sought to reassure the mother that his new job would be of benefit to all the family. In his view this reassurance was successful and both he and the mother were looking forward to him returning to work and their attempts at making a fresh start in 2004.
22. Rev M last saw the family on 21 January 2004 (the anniversary of H's birth); her view was that they had turned a corner in their life and they discussed the fact that both of them had now done their grieving, albeit at different times. The impression of Rev M and the evidence of the parents was that by this stage they were both looking forward to the future which looked brighter given the father's new job. On this occasion they told Rev M of their intention to marry and asked her if she would conduct the service.
23. This background is a short and therefore necessarily not a full description of the life of the family up to 2 February 2004, the date of L's death. However I hope that it adequately conveys the position for present purposes, and that the family were regarded by outsiders (including social services and Rev M) as a close-knit and loving family who had suffered the tragedy of the death of their youngest child of natural causes and about whom there were no child protection concerns. Further by mid January 2004 Rev M was of the view that they were coming to terms with their grief, had turned a corner and were optimistic about the future and pleased that the father was starting a new job in February 2004.
24. The father started his new job on 2 February 2004, the day L died. This was therefore the first day for some time that the mother was left alone to look after the children. She was also alone with them on the day that H died. She had however looked after her children on other occasions, for example when the father was working in 2002 and when he was at the job club in 2003.

General points as to my overall approach at law

Nature of the hearing

25. This is a fact finding hearing concerning the establishment of the threshold set by s. 31 Children Act 1989. I was reminded of what I said in Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755, at 772 (with emphasis as provided by counsel) namely:

" ------ the approach in practice at the threshold stage, where the local authority has to establish the existence of the threshold criteria on the basis of facts proved to the civil standard, and thus, on that basis, that the parents have not acted as it would be reasonable to expect a parent to act, is largely an adversarial process. Further at that initial stage, the test that the court is applying is not one as to what would best promote the welfare of the child, rather the issue at that stage is whether the threshold or trigger exists to enable public authorities to interfere in the lives of a family and thus possibly remove children from their parents.

Human nature and the respective roles of the parties at that stage of public law proceedings have the result that those proceedings are treated at that stage as being adversarial or as having a substantial adversarial element."

My comments as to the nature of the threshold hearing were adopted by all counsel. In other parts of the judgment I refer to the inquisitorial function of the court and aspect of the proceedings. I add that I remain of that view and consider that it is not contradictory to the references to, and points made by the President in paragraphs 13 and 27 of Re U Re B (cited below) in respect of the partly inquisitorial approach of the court and its quasi-inquisitorial function in dealing with cases concerning children. Naturally I acknowledge and accept that those remarks are correct and that at the threshold stage (or later) the possibility that the court may require further evidence, or instigate an investigation, distinguishes cases concerning children from cases that are exclusively adversarial (notwithstanding their case management by the court).

Fact finding

26. It has recently been confirmed by the Court of Appeal in Re U (Serious Injury: standard of proof); Re B [2004] 2 FLR 263 that the leading authority is the decision of the House of Lords in Re H and R (child: sexual abuse [1996] 1 FLR 80 reported as Re H and Others (minors)(sexual abuse)(standard of proof) [1996] 1 AC 563. At paragraph 13 of Re U Re B it is said by the President (emphasis added):

"The standard of proof to be applied in Children Act cases is the balance of probabilities and the approach to these difficult cases was laid down by Lord Nicholls of Birkenhead in his speech in Re H. That test has not been varied nor adjusted by the dicta of Lord Bingham of Cornhill or Lord Steyn who were considering applications made under a different statute. There would appear to be no good reason to leap across a division, on the one hand, between crime and preventative measures taken to restrain defendants for the benefit of the community and, on the other hand, wholly different considerations of child protection and child welfare nor to apply the reasoning in McCann to public, or indeed to private, law cases concerning children. The strict rules of evidence applicable in a criminal trial which is adversarial in nature is to be contrasted with the partly inquisitorial approach of the court dealing with children cases in which the rules of evidence are considerably relaxed. In our judgment, therefore, Bodey J applied too high a standard of proof in the case of Re ET and the principles set out by Lord Nicholls of Birkenhead should continue to be followed by the judiciary trying family cases and by magistrates sitting in the family proceedings courts".

27. In Re H and R the House of Lords deal with the standard of proof and the basis upon which a court is to make findings in respect of the threshold conditions. I have had particular regard to the passages concerning these issues in the speech of Lord Nicholls and thus, for example, to the points made therein that (a) my findings have to be based on evidence and not suspicion, and (b) the seriousness of the issues is a factor to be taken into account.
28. Further in my view in determining the facts, a court should have regard to the guidance given in R v Lucas [1981] 1 QB 720, in particular at 74G and F/H, and R v Middleton [2000] TLR 293. As appears therefrom, a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B. Also I accept that there can be many reasons why a person might not tell the truth to a court concerned with the future upbringing of a child. Further, I of course recognise that witnesses can believe that their evidence contains a correct account of relevant events, but be mistaken because, for example, they misinterpreted the relevant events at the time or because they have over time convinced themselves of the account they now give.
29. Further, I have had regard to the guidance given by Wall J (as he then was) in Re CB and JB, [1998] 2 FLR 211 as to the relevance and use of evidence concerning propensity. In my judgment the guidance given by Wall J in that case has to be considered and applied to the facts and circumstances of individual cases, and in particular, having regard to the nature of the issues of fact which fall to be decided either at the threshold or the welfare stage.
30. The test or standard of proof to be applied in determining the facts is the civil test or standard, and in describing it the majority of the House of Lords in Re H and R say that:

"The balance of probabilities standard means that a court is satisfied an event occurred if the court considers that on the evidence the account of the event was more likely than not."

(See the [AC] report 586E and [FLR] report 96B)

The phrase "more likely than not" in that passage identifies a sense in which the word "likely" can be used, and perhaps its primary usage. It follows that in applying the balance of probabilities test, the court is not determining whether there is a real possibility that the relevant event occurred, but is determining whether it is more likely than not that it did so.

31. Thus, in concluding that a particular person injured a child the court has to be satisfied that it is more likely than not that that person did so.
32. The majority of the House of Lords in Re H and R also make it clear that where a serious allegation is at issue the standard of proof is not higher because, as Lord Nicholls says (at 586G in the [AC] report and 96D in the [FLR] report) (with my emphasis):

"When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious that allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.........."

He goes on to point out that some things are more likely than others and then says:

"Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It only means that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether an event occurred. The more improbable the event the stronger must be the evidence that it did occur."

Further (at 587E of the [AC] report and 97C of the [FLR] report) Lord Nicholls makes it clear that it is best to stick to the established law on the standard of proof, and Lord Lloyd, who gives one of the minority judgments, agrees with this view (see 577E [AC] report and page 87C of the [FLR] report).

33. In my view the points made in the preceding paragraphs mean that expressions such as "cogent evidence" and the civil standard "elevated in accordance with ..... Re H and R" when they are used by judges are shorthand for the explanation given in Re H and R and do not introduce a different standard of proof or approach.
34. In deciding whether an event occurred to the appropriate standard, the court must do so on evidence, facts found to that standard and reasoning based thereon. Suspicion is not enough. As to this Lord Nicholls makes the point at 589C in the [AC] report and at 98H in the [FLR] report that:

"The starting point here is that courts act on evidence. They reach their decision on the basis of the evidence before them. When considering whether an applicant for a care order has shown that the child is suffering harm or is likely to do so, the court will have regard to the undisputed evidence. The judge will attach to that evidence such weight or importance he considers appropriate. Likewise with regard to disputed evidence which the judge accepts as reliable. None of that is controversial. -------------------"

I emphasise this reference because it confirms the basic point that the court has to reach its conclusions on the evidence before it. Lord Nicholls goes on to say (at 589E of the [AC] report and 99B of the [FLR] report):

"In my view these unresolved judicial doubts and suspicions can no more form the basis of a conclusion that the second threshold condition in s 31(2)(a) has been established than they can form the basis of a conclusion that the first has been established."

35. Lord Nicholls makes a number of points as to the nature of evidence and the resolution by courts of disputed issues of relevant facts (at 589F to 590D in the [AC] report and 99E to H in the [FLR] report). Including the following:

"At trials, however, the court normally has to resolve disputed issues of relevant facts before it can reach its conclusion on the issue it has to decide. This is a commonplace exercise, carried out daily by courts and tribunals throughout the country. This exercise applies as much where the issue is whether an event may happen in the future as where the issue is whether an event did or did not happen in the past. To decide whether a car was being driven diligently, the court will have to decide what was happening immediately before the accident and how it was being driven and why. Its findings on these facts form the essential basis for its conclusion on the issue of whether car was being driven with reasonable care. Likewise, if the issue before the court concerns the possibility of something happening in future --------------------------------------------------- A decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom."

As appears therefrom this applies to all stages of public law proceedings and thus when the court is considering the question of whether a child has suffered inflicted harm, whether a child is "likely to suffer harm" (when the word "likely" has a different meaning) and when a court is considering "risk" at the welfare or disposal stage.

36. Having set out his reasons for the conclusion that a finding by a court that the threshold conditions are satisfied, must have a factual base, and that an alleged but unproved fact, serious or trivial, is not a fact for this purpose, Lord Nicholls goes on to indicate the width of the range of the facts that may be relevant when the court is considering threshold conditions. As to that, I refer to 591E to G in the [AC] report and 101B in the [FLR] report, (which in my view applies equally to the issue whether actual harm has been inflicted as it does to the issue of whether there is a likelihood of future harm to which it is specifically directed) where Lord Nicholls says:

" I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts including the history of members of the family, the state of relationships within a family, proposed changes within the membership family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue."

37. To my mind, the above shows that in a case such as this, and indeed in many other cases, that the court reaches its conclusions on the issues before it to the relevant standard by reasoning based on evidence and facts which are undisputed or which it has found to that standard.

Expert evidence

38. The opinion of an expert is evidence (see s. 3 Civil Evidence Act 1972).
39. In cases such as this it is effectively inevitable that there will be some medical evidence. To my mind it is important to remember:

i) that the roles of the court and the expert are distinct, and

ii) that it is the court that is in the position to weigh the expert evidence against its findings on the other evidence, and thus for example descriptions of the presentation of a child in the hours or days leading up to his or her collapse, and accounts of events given by carers.

40. In respect of the points and citations that follow I acknowledge my thanks and those of other counsel in the case to leading counsel for the Guardian (Mr Cobb) for his written submissions.
41. The point that medical expert evidence is but one part of the evidence available to the court at the fact-finding stage of the case is supported and demonstrated by Re U; Re B at paras. 25, 26 and 27, where the President said:

"[25] Contrast [with the position in Cannings] the role of the judge conducting the trial of a preliminary issue in care proceedings. The trial is necessary not to establish adult guilt, nor to provide an adult with the opportunity to clear his name. The trial of a preliminary issue is the first, but essential, stage in a complex process of child protection through the medium of judicial proceedings.

[26] It is for the purpose of satisfying that threshold that the local authority seeks to prove specific facts against the parent or parents. Only if it succeeds in that task can its application for a care or supervision order proceed. Thus the preliminary issue of fact constitutes the gateway to a judicial discretion as to what steps should be taken to protect the child and to promote his welfare. In those circumstances we must robustly reject Mr Cobb's submission that the local authority should refrain from proceedings or discontinue proceedings in any case where there is a substantial disagreement amongst the medical experts. For the judge invariably surveys a wide canvas, including a detailed history of the parents' lives, their relationship and their interaction with professionals. There will be many contributions to this context, family members, neighbours, health records, as well as the observation of professionals such as social workers, health visitors and children's guardian".

[27] In the end the judge must make clear findings on the issues of fact before the court, resting on the evidence led by the parties and such additional evidence as the judge may had required in the exercise of his quasi-inquisitorial function. All this is the prelude to a further and fuller investigation of a range of choices in search of the protection and welfare of children. A positive finding against a parent or both parents does not in itself preclude the possibility of rehabilitation. All depends on the facts and circumstances of the individual case. ---------- (emphasis added)

The value and weight of expert medical evidence - Expert evidence and the judicial function

42. In Re B (Care: Expert witnesses) [1996] 1 F.L.R 667 (at 670 C-E) Ward LJ commented that:

"The court invariably needs and invariably depends upon the help it receives from experts in this field. ... The expert advises, but the judge decides. The judge decides on the evidence."

In the same case, Butler Sloss LJ said (at p.674F):

"Family judges deal with increasingly difficult child cases and are much assisted in their decision-making process by professionals from other disciplines: medical, wider mental health and social work among others. The courts pay particular attention to the valuable contribution from paediatricians and child psychiatrists as well as others, but it is important to remember that the decision is that of the judge and not of the professional expert. Judges are well accustomed to assessing the conflicting evidence of experts. "

43. In Re M & R (Child Abuse: Evidence) [1996] 2 FLR 195 the Court of Appeal laid to rest the uncertainty as to whether an expert could express an opinion on the 'ultimate issue'; the court declared that the expert could do so. Butler Sloss L.J. giving the judgment of the court said (at p.205H-206A):

"Many if not all family cases involving children feature expert opinion evidence ... In cases involving children, expert medical and psychiatric evidence from paediatricians and allied disciplines is often quite indispensable to the Court. As Parker L.C.J. said in Director of Public Prosecutions v A & BC Chewing Gum ltd. [1968]1 Q.B. 159 @ 165A, when dealing with children, the court needs 'all the help it can get'. But that dependence in no way compromises the fact that the final decision in the case is the judge's and his alone"

Later (at 211A-B) she said:

" "...the passing of the [Civil Evidence Act 1972] should not operate to force the court to, in Wigmore's words, 'waste its time in listening to superfluous and cumbersome testimony' provided that the judge never loses sight of the central truths: namely that the ultimate decision is for him, and that all questions of relevance and weight are for him. If the expert's opinion is clearly irrelevant, he will say so. But if arguably relevant but in his view ultimately unhelpful, he can generally prevent its reception by indicating that the expert's answer to the question would carry little weight with him. The modern view is to regulate such matters by way of weight, rather than admissibility.

But when the judge is of the opinion that the witness' expertise is still required to assist him to answer the ultimate questions (including, where appropriate, credibility) then the judge can safely and gratefully rely on such evidence, while never losing sight of the fact that the final decision is for him". (emphasis added)

44. These citations are examples which demonstrate the point that in cases concerning alleged non accidental injury to children properly reasoned expert medical evidence carries considerable weight, but in assessing and applying it the judge must always remember that he or she is the person who makes the final decision.
45. The Court of Appeal's decision in Re B (Non-Accidental injury) [2002] 2 FLR 1133 is relevant in this respect, in particular the judgment of Thorpe LJ at para.16, 17, and 25. In that case, three medical experts had agreed that it was unusual to find subdural haemorrhages of the character described unaccompanied by any other physical injury in non-accidental cases. The medical experts had apparently said that it was never more than a possibility that the illness of the child in the instant case was caused by injury, and all were agreed that it was impossible to elevate it beyond possibility to anything approaching either a confident diagnosis or a convincing diagnosis. The expert opinion in Re B was that "it is known that trauma, including shaking, can often cause these" (see para.2 of the judgment). It was therefore possible for Dr De Sousa, a Consultant in paediatric neurology, to state that the subdural haemorrhage "was entirely consistent with non-accidental injury" (para.25) because non-accidental injury (shaking or impact injury) is one of the recognised causes of subdural haemorrhages. Dr. De Sousa had indicated in Re B that of the other possible explanations for subdural haemorrhages, "none of those recognised causes [of subdural haemorrhages] had any application to L's case". Moreover, Dr. De Sousa's evidence (possibly contradicting the previous point) was that of the number of possible causes of the subdural haemorrhages, the "front-runner possible cause of subdural haemorrhage is non-accidental injury" (para.18).
46. In Re B it was submitted (on behalf of appellant parents) that having regard to the expert evidence it was quite impossible for a judge to find, on a balance of probability test that he was satisfied that there was a non accidental injury. Thorpe LJ addressed the submissions on behalf of the appellant parents (above) thus:

"[16] The submission seems to me to ignore the very different functions of the professionals in a judicial investigation of this sort. It is important to focus on those functions and not to confuse them.

[17] The expert of ultimate referral was there to guide the judge as to the relevant medical and scientific knowledge, inevitably expressing himself in medical language. The judge's function was a very different one. He had to consider the question posed by s 31 of the Children Act 1989 as to whether L was a child suffering or likely to suffer significant harm and whether that harm or likelihood of harm was attributable to the care given to the child, or likely to be given to him, if the order were not made.

[25] It seems that on that very carefully stated and carefully balanced appraisal the judge would have been failing in his primary protective function if he were to have acceded to some submission that because the doctor had not been prepared to say in medical language that there was a confident diagnosis therefore there was no evidence of risk of harm. The elevation of a medical opinion to the status of a confident medical diagnosis is very much a matter of art and bounded by medical conventions that are fully recognised and, indeed, negotiated at a professional level. What this doctor was saying was that the child's condition was entirely consistent with non-accidental injury and that there was no other more probable explanation. The case, in my view, is as straightforward as that. Although Mr Storey sought to say this is some dangerous invasion of the right of parents to presumptions of innocence and to safeguard from adverse findings absent the strongest and clearest of evidence, those submissions, in my opinion, are not realistic in the facts and circumstances of this particular case."

47. In Re A (A minor)(Retinal Haemorrhages: Non-accidental injury) [2001] 3 FCR 262 Bracewell J said:

"[9] It is undoubtedly true that the frontiers of medical science are constantly being pushed back and that the state of knowledge is increasing all the time. That is why I find that when presented with a speculative theory based on an unlikely hypothetical base an expert will rarely discount it and will in effect never say never. Fanciful speculation is not an appropriate method of inquiry. What is needed and what the experts have done in this case is to piece together all the available information and look at the differential diagnosis. Many of the experts in this case specialise within a particular and very narrow field and by reason of being experts of referral at centres of excellence they acquire special knowledge and skill. However, concentration on a very narrow area of expertise can sometimes render it difficult for the expert to see the whole picture. In this regard I find that the pathologists are at a disadvantage when compared with the clinicians.

[10] The judge has the duty of sifting the evidence from the experts, who form their assessments within their particular area of expertise, and the judge has to decide the case by reference to the various issues. Although the medical evidence is of very great importance it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear, convincing picture of what happened." (emphasis added)

Later she said:

"[56] -------------- I do not accept the contention of the parents that the Bolam test must be applied in determining whether a responsible body of opinion can be held so that if there is a respectable thesis to be advanced in contradiction to other opinions it must be accepted (see Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582). The test for reasonable treatment procedure is in my judgment very different from determining what actually happened to a baby. In care proceedings the court has to test the evidence, piece together the parts of the jigsaw in order to determine whether a clear picture emerges." (emphasis added)

48. I also note that in Re U; Re B the court took the view in the case of LB that even though the only tenable conclusion on the medical evidence was that the 'injuries' were "inexplicable and unexplained" the court – having regard to the "wide canvas" – could nonetheless conclude that the mother was responsible for the administration of an unidentified infected substance to her child while on the hospital ward (see in particular paragraphs 149 to 153).
49. In my judgment it follows from the approach set out in the above citations, which illustrate the judicial function that:

i) The court has to take into account and weigh the expertise and speciality of individual experts and is often assisted by an overview from, for example, a paediatrician.

ii) In a case where the medical evidence is to the effect that the likely cause is non accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof.

iii) The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury (or human agency) and the clinical observations of the child, although consistent with non accidental injury (or human agency) of the type asserted, is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that on the balance of probability there has been a non accidental injury (or human agency) as asserted and the threshold is established.

iv) Such findings have to be based on evidence and findings of fact to the civil standard and reasoning based thereon.

50. I return to questions concerning (a) the rejection of, or departure from the expert medical evidence, and (b) the court making a finding that does not accord with the conclusion of the medical experts as to what is the likely cause of the death, injury or harm that is in issue.

R v Cannings [2004]1 FCR 193, [2004] 1 AER 725

51. Cannings is as criminal case and as is made clear in the judgment of the Court of Appeal it is dealing with the criminal standard of proof. However the judgment in Cannings has, amongst other things, reminded the family court that even the most distinguished expert can be wrong, of the possible dangers of an over-dogmatic expert approach and of the likelihood in the future of change and revision of medical views having regard to research, for example at paragraphs 22 and 177/8 the court said:

"We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research both here and internationally become available."

"Experts in many fields will acknowledge the possibility that later research may undermine the accepted wisdom of today. "Never say never" is a phrase which we have heard in many different contexts from expert witnesses. That does not normally provide a basis for rejecting the expert evidence, or indeed for conjuring up fanciful doubts about the possible impact of later research. With unexplained infant deaths, however, as this judgment has demonstrated, in many important respects we are still at the frontiers of knowledge. Necessarily, further research is needed, and fortunately, thanks to the dedication of the medical profession, it is continuing."

52. In Re U, Re B the Court of Appeal considered submissions as to the approach to be adopted in public law family cases having regard to the decision in Cannings and at paragraphs 22 and 23 stated:

"[22] In family proceedings the procedures and the rules of evidence are different from criminal trials. In the first place the material available to the court is likely to be much more extensive than would be admitted in a criminal trial. In the second place the standard of proof to be applied before reaching a conclusion adverse to the parent or carer is, as we have set out above, also different. Given a similar background to that in R v Cannings a judge would be required to ask himself which of two possible explanations, human agency or unascertained natural cause, is the more probable. If persuaded by clear and cogent evidence that it was more likely to be the former the court is entitled to reach a conclusion adverse to the parent or carer.

[23] In the brief summary of the submission set out above there is a broad measure of agreement as to some of the considerations emphasised by the judgment in R v Cannings that are of direct application in care proceedings. We adopt the following:-

(i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.

(ii) Recurrence is not in itself probative.

(iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause. (emphasis added)

(iv) The Court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.

(v) 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."

53. In my view the family court should also remember that as was said in Re U, Re B at paragraph 14:

" In a criminal case for murder or manslaughter arising out of a series of sudden infant deaths a jury is not entitled to convict and a guilty verdict cannot be deemed safe unless a natural cause of death, whether explained or unexplained, can be excluded as a reasonable (and not fanciful) possibility. " (emphasis added)

54. So on that description in a criminal case, where the criminal standard of proof is engaged, what has to be excluded is a reasonable possibility as compared with a fanciful one. However in a family case where the civil standard of proof is engaged the court is entitled (and indeed will regularly have to) make a finding as to the cause of a death or an injury when competing reasonable causes of that death or injury have been identified on the evidence as reasonable (and not fanciful) possibilities. Indeed that is the function of the court. It follows that the reasonableness of suggested and different causes (whether natural or non accidental) and thus the reasoning that supports them as possibilities has to be carefully considered.

Resolving the conflict of evidence between experts

55. In a family case where there is a conflict between experts, the court should address and where possible resolve that conflict insofar as it is relevant to the issues before the court and it is entitled to give greater weight to the opinion of one expert as against that of another, provided that proper reasons are given: Re J (Expert Evidence: Hearsay) [1999] 2 FLR 661. See also (in a non-family case) Flannery v Halifax Estate Agencies [2000] 1 WLR 377, a judge has to give reasons for preferring the evidence of one expert to another, and that a failure to do so may be valid grounds for an appeal, and for remitting the case back for a re-trial. (I have already referred to the point that a finding on the balance of probability is based on evidence, findings of fact and reasoning.)
56. Medical issues can be complex. An example is a case involving issues of brain injury, subdural haematomas or retinal haemorrhages which were the subject of Re A and D (Non-accidental Injury: Subdural Haematomas) [2002] 1 FLR 337. That case contains a review of the then 'current learning' in this complex medical area, and in particular the issue of the degree of force required to cause subdural haematomas. In her judgment, the President said, per curiam, (and in my view to general effect) that the court should be careful not to jump to conclusions, nor accept too readily the diagnosis of non-accidental injury in "brain injury" cases; equally, there is no research that entitles judges to dismiss out-of-hand the clinical experience of paediatricians and other medical experts derived from examining these children.
57. To my mind Re A and D demonstrates (as do other cases) that the courts should continue to deal with medical evidence on the basis of generally recognized medical opinion, and the reasoning that lies behind it and in that way giving appropriate weight in the individual case to any challenge to that opinion and the reasons for the challenge and thus, for example, new research.

Departure from / rejection of the views of the expert witness

58. The court is entitled to depart from the opinion of an expert, but if it does so, it must explain its reasons: see Re B (Care: Expert Witnesses) [1996] 1 FLR 667 (referred to above) in which Ward LJ said (at p.670D):

"By their special allocation to this work, they [i.e. Judges] acquire a body of knowledge which, strictly speaking, cannot be substituted for the evidence received, but which can be deployed to spot any weakness in the expert evidence. That is the judicial task. The expert advises, but the judge decides. The judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the court which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it. There is, however, no rule that the judge suspends judicial belief simply because the evidence is given by an expert."

And Butler Sloss LJ (at 674F):

"… it is important to remember that the decision is that of the Judge and not of the professional expert. Judges are well accustomed to assessing the conflicting evidence of experts. As Ward, LJ said, Judges are not expected to suspend judicial belief simply because the evidence is given by an expert. An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be. It is, however, necessary for a Judge to give reasons for disagreeing with experts' conclusions or recommendations. That, this Judge did. A Judge cannot substitute his views for the views of the experts without some evidence to support what it is he concludes."

59. In Re B (Split Hearing) [2000] 1 FLR 334, Otton LJ (at p.240H) said:

"The circumstances when judges of the High Court can reject the evidence of a body of medical opinion are rare. This situation was considered by the House of Lords in Bolitho (deceased) v City & Hackney Health Authority [1998] AC 232 … at 243:

'In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion … But if in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of medical opinion is not reasonable or responsible.'

I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable … It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed."

60. However the judge is not entitled to develop his/her own medical theory against the evidence of the expert witness (see Deveron Joinery Company Ltd. v Perkins [2003] Lawtel 30^th July 2003).
61. It seems to me that if these two Re Bs are read in isolation they might (in my view incorrectly) be said to found an argument that in a case where the expert medical evidence is to the effect that it is more likely than not that the cause of an injury, was X, the court:

i) cannot depart from that view unless it can give valid reasons for departing from the medical reasoning that supports that view, and

ii) unless it can give such reasons it has to find that X is the cause of the injury having regard to the weight to be given to expert evidence based on sound reasoning.

62. All counsel before me agreed that this argument was incorrect having regard to the other cases and propositions set out above. The main reasons for this are that in a case where the experts have identified and accepted that there are other causes which provide possible and reasonable explanations, but not in their view the explanation that is more likely than not to be the cause, a conclusion (a) that having regard to such possibilities the explanation that the experts have concluded is more likely than not to be the cause has not been established on the balance of probability, or (b) that such a possible explanation is on the balance of probability the correct explanation:

i) would be based in part on the view of the experts, and their reasons for concluding, that there are other possible explanations to the one they have concluded is more likely than not to be the cause of the relevant death or injury,

ii) can be reached in reliance upon that view, the reasoning that supports it, other evidence and additional reasoning, and thus without disagreeing with or challenging the reasoning of the experts by reference to the matters they have taken into account, or their expertise, and

iii) in short would be relying on the possibility or possibilities identified by the medical experts without rejecting their conclusion for a medical reason.

Naturally a factor in the reasoning behind such a conclusion is the view of the experts as to how possible or likely it is that what they regard as possible explanations, rather than probable explanations, may be correct.

Upshot

63. I am therefore able to reach a conclusion as to cause of death and injury that is different to, or does not accord with, the conclusion reached by the medical experts as to what they consider is more likely than not to be the cause having regard to the existence of an alternative or alternatives which they regard as reasonable (as opposed to fanciful or simply theoretical) possibilities. In doing so I do not have to reject the reasoning of the medical experts, rather I can accept it but on the basis of the totality of the evidence, my findings thereon and reasoning reach a different overall conclusion.
64. As the onus is on the local authority to establish that the threshold set by s. 31 Children Act has been met (and thus prove to the civil standard the facts upon which they assert it is satisfied) the finding can be made by reference to whether the facts asserted by the local authority have been proved and the threshold is met on the balance of probability. The court does not have to make positive findings on the other possibilities advanced.

My approach to the two deaths of H and L

65. The medical experts in this case have agreed that the cause of H's death was not staphylococcal pneumonia and that his death should be described as unexplained (which encompasses the term unascertained). They also agreed that no link based on a natural cause of death can be established between the deaths of H and L. This was common ground before me.
66. Also as I have mentioned I did not hear evidence relating to the circumstances of, and surrounding, H's death.
67. In my judgment it was correctly common ground that:

i) My findings should be limited to L's death,

ii) H's death could not be relied on to indicate either that L's death was less suspicious or more suspicious than it would have been if her brother H had not died and H's death is thus probative of nothing, or put another way in determining the cause of L's death no weight can be attached to, or inference drawn from, H's death, and

iii) H's death and matters relating to it are only relevant as a part of the history and experience of the family.

68. It is for this reason that I have only set out what I understand to be uncontroversial facts concerning the events immediately surrounding H's death by reference to what was recorded at the time.
69. I shall therefore confine myself to a consideration of the cause of L's death.

Comment, the mother's position and my approach

70. A parent who has not injured his, or her, child but is the only possible perpetrator of injuries or actions causing non accidental harm, or death, is in an invidious position because he, or she, does not know what has happened or why the child has been injured or died.
71. In this case the mother asserts that she does not know the cause of L's injuries and death. She asserts (and has throughout lengthy police interviews asserted) that she did not cause L's death. She does not assert that anyone else could have done so. She therefore, through her representatives, (a) has identified what she asserts are possible natural causes of L's collapse and death, and causes of her injuries and the other marks on her body that do not involve any culpable human intervention, and (b) argues that when all the circumstances of the case are taken into account I should conclude on the balance of probability that L died of natural causes, or alternatively that given the gravity of the findings sought by the local authority and their consequences I should conclude that they have not been established to the civil standard applying the approach in Re H and R.
72. I therefore have to consider all the competing possible explanations and the likelihood of each of them being the correct explanation.
73. In doing so my task is to consider all aspects of the evidence including the reasoning of the experts, the accounts of the other witnesses, the account of the mother and how the competing possibilities fit with the evidence and my findings thereon. In my judgment, particularly in respect of the medical evidence, so far as possible each matter should first be considered in isolation and then in the overall context. So I have considered each clinical presentation and each injury and mark and their possible causes in isolation and then considered the conclusions reached on that basis having regard firstly to the combination or constellation of those matters and then having regard to the overall circumstances. At the second of these stages the court is uniquely placed because it has heard all the evidence.
74. An important part of my consideration of the overall circumstances is an assessment of the mother's description of events and her credibility against the background that she may have caused L's death. Indeed the view of the medical experts is that this is more likely than not to be the cause of L's death. Thus I have to consider her evidence and whether, as the local authority assert (a) she has not given a full and accurate account of relevant events, and (b) she is concealing information about what happened to L to cause her collapse and suffer the injuries and marks that were found, and for which she is responsible.
75. A conclusion that the mother was providing the court with a full and accurate account to the best of her recollection would naturally be a strong factor in support of a finding that she did not cause L's death or the injuries and marks found to her body and that I should conclude that the cause of L's death was one of the possibilities accepted by the medical evidence rather than the deliberate infliction of suffocation and injury which the medical experts have concluded is more likely than not to be the cause of L's death. Indeed, I pause to make the general comment that it seems to me that in a case where (a) the court is satisfied that the reasoning underlying medical evidence is sound, and (b) that evidence is that a non accidental cause inflicted by an identified person is more likely than not to be the cause, the court would be most unlikely to reach a different conclusion unless it was satisfied that the possible perpetrator was giving a full and accurate account of what occurred (or there is some reason why he or she is not doing so which does not point towards a conclusion that the possible perpetrator is concealing what happened).
76. Thus a conclusion that the mother is not giving the court a full and accurate account would be a factor in favour of a conclusion in line with the medical opinion that she was responsible for causing L's death and the injuries and marks to her body, unless a reason for her failure to do so which demonstrated that she was not seeking to conceal, or was not concealing, what happened is established.
77. As I have indicated, and as appears later, the mother puts forward possible causes of L's death and the injuries and marks that were found. Naturally I shall consider them in the manner set out above and, for example, assess their reasonableness and likelihood. At the end of day her case is that having regard to the totality of the evidence including views as to her character and the rarity of a mother suffocating her three and a half year old child I should:

i) conclude that one or more of the possible causes she advances are more likely than not to be the cause of L's death and the injuries and marks to her body, or in any event that they provide a reasonable explanation for them, and

ii) refuse to find that she caused L's death and the injuries and marks to her body.

78. I heard a considerable amount of expert and other evidence. I have dealt with the detail of it in schedules to this judgment.

Comment on the approach of the experts in this case

79. I have been assisted by a number of experts who have written reports, attended an experts' meeting , given oral evidence and considered points put to them as a result of later oral evidence namely Professor Risdon, Dr Djurovic Dr Lawler, (pathologists) Professor David, Professor Gardiner, (paediatricians) Dr Drucker (a microbiologist) and Professor Klein (a Professor of Infectious Diseases). I cover their evidence more fully in Schedule C to this judgment.
80. It was clear from their evidence that they were all experts in their fields and had given careful consideration to the issues in this case. They have considerable experience and I am grateful for the assistance they gave to me.
81. In my judgment when their written and oral evidence is considered together it is clear that they have all taken a proper approach to giving their evidence and views as experts. Thus, for example, in my view they have considered each clinical feature, injury and mark separately and then as a part of the overall picture as known to them, or have properly recognised that having regard to their particular expertise they are considering a point from a particular perspective.
82. Professor David was instructed to provide an overview. He apologised for the length of, and some of the detail in, his report. In my view that apology was not necessary or appropriate. His report was thorough and helpful.
83. As appears from Schedule C Professor Risdon explained that his reports had to be read having regard to the fact that he had prepared them in the context of a criminal investigation (and thus the criminal standard of proof) and that if the civil standard of proof was applied he agreed with the other pathologists as to what was more likely than not to be the cause of L's death and injuries. This explained and indeed removed potential differences between the pathologists or between Professor Risdon and the other experts as to what was more likely

than not to be the cause of death and the injuries.

84. Professor Risdon has considerable experience of giving evidence and is clearly very aware of the standards of proof applied by the criminal and civil courts. The other doctors in this case also have experience which has given them that awareness. This may not always be the case.
85. Although, as I have mentioned, an expert is entitled to give his or her opinion on the "ultimate issue" and therefore that he or she can express a view on that issue by reference to the civil standard:

i) the perception at the early stages of this case that Professor Risdon and Dr Djurovic were in disagreement, or might disagree, in the context of family proceedings, and

ii) the respective roles of medical experts and the judge set out above (and in particular the point that the decision maker is the judge),

cause me to suggest that:

a) it should be considered whether it would be better not to ask experts in a case concerning children to express their views by reference to the "balance of probability", and

b) in any event at an early stage when reports written for a criminal investigation are introduced into family proceedings the relevant expert should be asked whether it has been written against the criminal standard of proof and thus whether a possible or plausible explanation, or cause, is being put forward as being reasonable (as opposed to fanciful or simply theoretical) in that context, and his or her view as to how likely that possibility is.

86. Naturally I accept that this suggestion can be said to be only presentational and linguistic because (a) the criminal and civil standards of proof are described in terms that do not have a technical meaning and in criminal cases are applied by a jury rather than a judge, and (b) in a civil case the experts have to be asked what in their view is more likely than not to be the cause or causes of a death, injuries or harm on the information available to them.
87. I also accept and make clear that I am not in a position to comment on the manner in which experts should be invited to write their reports, and give evidence, in criminal cases.
88. The presentational nature of the suggestion is demonstrated by the questions posed for the experts' meeting in this case which are set out in Schedule B to this judgment. They include a reference to the balance of probabilities and resulted in the experts carrying out a proper examination of the issues in this case.
89. Nonetheless it seems to me that in civil cases concerning children it might (a) assist all involved, (b) better reflect the roles of the expert and the judge, and (c) demonstrate that the expert is not the decision maker as to whether the relevant death, injuries or harm is the result of non-accidental human agency and whether the threshold is satisfied, and does not have all the relevant information, if the medical experts were not asked to express a view as to the cause of the relevant death, injuries or harm on the balance of probabilities but were asked to:

i) identify possible causes of the relevant death, injuries or harm setting out in respect of each the reasons why it might be a cause and thus why it should be considered,

ii) state their views as to the likelihood of each possibility being the cause of the relevant death, injuries or harm and the reasons why they include or reject it as a reasonable (as opposed to a fanciful or merely theoretical) possible cause,

iii) compare the likelihood of the cause (or causes) identified as reasonable possibilities being the actual cause of the relevant death, injuries or harm,

iv) state whether they consider that a cause (or causes) is (are) the most likely cause (or causes) of the relevant death, injuries or harm and their reasons for that view, and

v) to state whether they consider that a cause (or causes) is (are) more likely than not to be the cause (or causes) of the relevant death, injuries or harm and their reasons for that view.

90. I accept that there is a potential for overlap in the steps making up that progression of reasoning to a view by reference to whether a cause (or causes) is more likely than not to be the cause (or causes), and thus by reference to the civil standard of proof. In a number of cases it may not be necessary to go through each step. But it seems to me that there could be distinctions to be made between each of the steps. Thus, for example, it may be that the number of possibilities, or the difficulties and uncertainties that exist, would found a distinction between the last two stages and that a cause (or causes) may be identified as the most likely cause(s) but not as the cause (or causes) that are more likely than not to be the cause(s) of the relevant event, injuries or harm.

The injuries to L and the histology / microbiology

91. The detail of this is set out in Schedule A to this judgment.

The Experts' Meeting on 19 November 2004

92. At the meeting questions submitted by the local authority and the mother were considered and answered. The solicitor instructed by the guardian prepared a note of the answers which were agreed by all the experts with some minor amendments. A copy of those questions and answers (with the minor amendments) is attached as Schedule B to this judgment. They are self explanatory.

The Experts' evidence

93. All the experts mentioned in paragraph 79 above gave evidence before me and agreed questions were put to them having regard to evidence given after they had all given their evidence. I deal with their evidence in more detail in Schedule C to this judgment.
94. They were questioned in particular by leading counsel for the mother by reference to what was called the "infection model". This expression (and possibilities or theories it refers to) was a shorthand used by counsel by reference (initially) to the reports of Professor Risdon.
95. The questioning did not cause them to change their view. As appears from the answers to the questions put to them at the experts' meeting this view is that it is far more likely than not that the cause of L's death was asphyxiation as a result of compression to her neck which caused obstruction to her airway and venous return.
96. The essential approach and reasoning of the experts is as follows:

i) they consider Professor Risdon's infection model and exclude as highly unlikely streptococcal septicaemia, toxic shock syndrome, laryngeal reflex and any other illness arising from an infection that was virulent or could have led to extremely rapid death, and impairment of natural reflexes,

ii) they accept that L might have vomited from a low grade infection or simply because she was unwell,

iii) they point out the strong instinctive protective mechanisms that children of L's age have against inhaling vomit,

iv) they point out that none of the other injuries could have been caused by infection,

v) they point out that petechial haemorrhages of the amount and distribution seen on L are caused by an obstruction to venous return and are commonly seen where death is caused by compression to the neck which has this effect, and they do not accept that it is at all likely by comparison that they could have been caused by choking or CPR,

vi) they agree that the bruises and the marks to the neck and shoulder are consistent with a struggle and do not accept that it is at all likely by comparison that they were caused in rough play, or during CPR, or during the transportation of L from the helipad to the hospital, and

vii) they agree that (a) looked at individually each of the relevant features is consistent with the conclusion they have reached, and (b) the constellation of those features is also consistent with, and thus supports, that conclusion.

97. I am very conscious that the above is a short outline and does not sufficiently describe the detailed and careful reasoning of the experts, which is why I have included more of the detail in Schedule C. As appears from that Schedule and Schedule B the overall result of the consideration of this case by the experts (having regard to their various specialisms) is that they have agreed that it is far more likely than not that the cause of L's death was inflicted and was asphyxiation by compression to her neck which caused obstruction to her airway and venous return.

The possibilities advanced by the mother

98. In their closing submissions, and having regard to the written and oral evidence of the experts (and other witnesses) and some research material which they put before me and put to the experts, counsel for the mother put forward the following modes of death and explanations for the other injuries:

First model.

Stage 1

Low grade infection (or possibly the child being sick).

(Possible) compromise to reflexes.

Vomit/regurgitation of stomach contents without expellation, or laryngeal spasm with the same effect.

Aspiration of vomit followed by asphyxiation/choking (on bolus or liquid) leading to some petechials.

Convulsive phase of asphyxiation leading to rearing up and hitting head on headboard or attempt to move from bed and falling on headboard.

Stage 2

Marks to neck (superficial and variously described) caused by a chaffing from cardigan or resuscitation attempts (e.g. when exposing the neck and/or cutting open the clothing and/or adjusting the head position and/or intubation).

Underlying bruise to the nose caused by pinching during CPR.

Small abrasions on mandible not seen until hospital, possibly caused by a strap holding on the mask.

Bruises to back caused by a vigorous and prolonged CPR especially on the journey from the helicopter pad to the hospital.

Prominent petechials caused by a vigorous and prolonged CPR.

Second model

Stage 1

Epileptic fit.

Convulsive phase when the head wound was caused on the headboard.

Leading to vomiting.

Compromise to reflexes.

Vomit not expelled.

Inhalation of vomit – choking/asphyxiation.

Stage 2

As in the first model.

Third model

Stage 1

Child feeling unwell.

Attempts to move from bed and falls on the headboard.

Concussion leading to vomiting.

Stage 2

As in the first model.

99. These models are based on the "infection model". But in advancing them counsel in my view correctly abandoned (a) the possibility of streptococcal septicaemia raised by Professor Risdon, (b) toxic shock syndrome and any other illness arising from an infection that was virulent or could have led to extremely rapid death, and thus (c) impairment of natural reflexes as a result thereof. As to this abandonment the evidence of Professor Klein was no doubt of central importance. In my judgment that evidence was well reasoned and convincing.
100. As can be seen from the models they have two stages and therefore suggest different causes for (a) the death, and (b) the bruising and other marks. Stage 2 is the same in all three models. I shall return to them.

Examination of the house by the police

101. As one would expect the police carried out a thorough examination of the house. The photographs which they took show that there is a headboard to L's bed a small part of which abuts a wall behind the bed but the majority of which extends over an alcove with the result that that part of the headboard is some distance from the wall behind it. This means that a child could fall on to the headboard and cut his or her forehead. The photographs also show that one side of L's bed is against a wall.
102. It was common ground between all the doctors that unless the cut to L's forehead took place at, or very close to, the time of death, or after death it is highly likely that it would have bled profusely. Traces of blood and a clean up were looked for.
103. Marks which were subjected to DNA STR testing and thereby identified as L's blood were found on the edge of the headboard, on her pillow and at the head end of the upper side of the mattress protector on her bed. None of these marks are indicative of extensive bleeding. The mother's counsel accepted (and indeed asserted) that it was likely that the marks on the headboard and pillow were associated with the cut above L's left eyebrow. Indeed it was part of their case that the cut was caused by L falling onto the headboard. They pointed out, as I understood the evidence correctly, that the mark on the mattress protector was not dated and could have been there for sometime.
104. Forensic examination of the bedsheet did not find any trace of urine or faeces, also no traces of vomit were found on the pillow or the bedsheet. Further, and although I do not think they have been forensically tested, there is no evidence that the knickers and trousers L was wearing show any signs of urine or faeces.
105. One pair of obviously soiled knickers were found in the washing machine together with another pair of knickers and a pair of pyjama bottoms which showed a slight staining from faeces.
106. L's trainers were found on the mantelpiece in the sitting-room.
107. The police searched for a site where the cut to L's forehead might have taken place but did not identify one. No evidence or signs of a clean up after copious bleeding was found. For example, no wet patches were identified on the carpets, no clothes or bedding were found with blood on them or freshly washed.
108. Other marks were found but these could have been caused by the family's dog and the parents gave evidence that another mark on the landing was the result of their cleaning up after the family's cats. In my judgment these other marks do not provide any assistance in determining the cause of L's death.
109. The lack of evidence of a clean up is a pointer in favour of (a) a conclusion that the cut to L's forehead did not bleed profusely and thus that it was suffered at, or very close to, the point of death, or after death and (b) a conclusion that the cut to L's forehead was caused by impact with the headboard.
110. No traces of blood were found on the mother's clothing or rings.
111. In my judgment the forensic evidence does not provide any convincing support for a cause of death and points away from a conclusion that the cut to the forehead occurred before death and anywhere other than in the bedroom.

The sequence of events on 2 February 2004 – the date of L's death

112. I set this out in Schedule D.
113. It shows that:

i) The mother was seen with both girls in the village during the morning (between 10 and 10.30) by a lady who knew the family and who spoke to L, who was her normal self.

ii) At about 1.15 the father telephoned home and noticed nothing odd during the conversation and heard the children playing in the background.

iii) The mother telephoned Rev M at about 3.10 in a state of distress telling her that she had found L collapsed. Rev M told her to ring for an ambulance immediately.

iv) The mother then telephoned the father and only after Rev M arrived did she telephone for an ambulance.

v) Rev M attempted mouth to mouth resuscitation and the mother got a neighbour (Mrs H) to come and help her. Both Rev M and Mrs H heard a gurgling noise when doing this.

vi) L was removed to the ambulance very shortly after its arrival. She was transferred to a helicopter and flown to hospital. In the helicopter she was sick when she was intubated, her mouth and airways were then cleared by using a suction catheter and resuscitation by bag and mask was recommenced. At that time understandably the paramedic was of the view that further ventilation was more important than any further clearing of her mouth and airway and it was common ground that the further ventilation caused air to enter L's lungs. I pause to comment that this evidence provides, what in my view is a compelling explanation for vomit being found in L's airways (see for example the report of Professor Gardiner cited at paragraph 36 of Schedule C).

vii) The people involved in the resuscitation attempts before L arrived at hospital noticed marks on her neck, but give varying descriptions of them. The cut to her forehead was obvious. None of them noticed the petechial haemorrhages and these were not noticed until the consultant at the hospital pointed out a rash (which was then subtle) after the attempts to resuscitate L had been abandoned. Shortly after that the rash (the petechial haemorrhages) became obvious.

viii) No-one involved in the resuscitation attempts before L was sick in the helicopter noticed or smelt any vomit.

ix) At no stage during the resuscitation attempts was there evidence of any natural cardiac activity or circulation.

x) The father drove the mother to the hospital after he arrived home from work. On his way home he saw L being transferred to the helicopter and spoke briefly with an ambulance man.

Assessment of the possibilities advanced on behalf of the mother

114. As I have already mentioned the models are advanced as possibilities rather than probabilities. I accept that a fair overview of the expert evidence was that these possibilities were not rejected as fanciful or only theoretical. Degrees of likelihood were not gone into in detail in the evidence but again in my judgment a fair overview of the expert medical evidence was that each of the possibilities suggested on behalf of the mother was far from being a strong possibility and was less likely than the cause that the experts had agreed was more likely than not to be the cause which I shall refer to as the possible inflicted cause (which I accept is a shorthand description which covers a series of events that caused inflicted compression to L's neck, obstruction to her airway and venous return, her death, the cut to her forehead, the bruises to her back and the marks to her neck).
115. As I have indicated earlier I shall consider the reasonableness and likelihood of the models advanced on behalf of the mother. Having done so I will go on to consider the rival possibilities (i.e. those models and the possible inflicted cause) in the light of the mother's evidence. At both stages I acknowledge the point (repeated later) that the rival possibilities are all unlikely in the sense that if they occurred they would all be a very rare event. The comparison of likelihood is therefore between rare, and thus by reference to that criteria unlikely, possibilities. However it is not made against a background of uncertainty as to result because, very sadly, L died and there is no dispute that she suffered the injuries identified and agreed by the pathologists. All the possibilities are also based on the common ground that L was asphyxiated.
116. Thus in this case, given that all of the range of reasonable possibilities would be a very rare event, an assertion or conclusion that one of the possibilities is very unlikely is, of itself, not indicative that it is not the cause that is more likely than not to be the actual cause. In my judgment the questions I have suggested might be put to medical experts (see paragraph 89 hereof) show the questions that the court should put to itself, and thus the reasoning process that the court also has to go through in reaching a conclusion as to whether amongst the reasonable possibilities advanced for a very rare event one (or more of them together) is (are) more likely than not to be the actual cause or causes for L's death and her injuries.
117. I will deal first with Stage 2 of the models advanced on behalf of the mother. In it the possibilities advanced are that (I) marks to the neck were caused by chaffing, (II) bruising to the nose was caused by pinching during CPR (and probably by either or both Rev M or Mrs H) and (III) the bruises to L's back and the prominent petechials were caused after L's collapse.
118. As to (I) I accept the evidence of Rev M and Mrs H that there were marks to L's neck before her cardigan was removed. In my view their description of the marks and the fact they noticed and remembered them, taken together with the absence of any evidence that the cardigan which had been worn by L fairly regularly had caused any chaffing or discomfort before, mean that not only is it very unlikely that these marks were caused by chaffing but that it is more likely that they were the result of the possible inflicted cause.
119. As appears from Schedule D (a) those involved in the attempts at resuscitating L noticed marks to her neck which they remember and which caused some of them concern, and (b) their descriptions of the marks vary. It also became common ground that an attempt to correlate their observations, and those of Rev M and Mrs H, to the description of the marks in the post mortem reports was extremely difficult and was not a productive task.
120. In the light of the descriptions of their actions and observations and the views of the experts I have concluded that the possibility that some of the marks were caused during the attempts that were made to resuscitate L, and to prepare L for resuscitation, cannot be ruled out but (a) it is unlikely that any of the marks (if different to those observed by Rev M and Mrs H) were so caused, (b) it is very unlikely that all of those marks (if any) were so caused and (c) it is more likely that most (if not all) of those marks were the result of the possible inflicted cause.
121. As to (II) the mother relied in particular on the evidence of Rev M who indicated that she had held L's nose very firmly whilst giving mouth to mouth resuscitation. Mrs H also pinched her nose. In the light of their evidence and that of the experts I accept that it is possible that one or both of them might have accidentally caused the bruising to L's nose and thus that this is a possibility. In my judgment, having regard to their training it is less likely that any of the other persons involved in the resuscitation attempts would have caused this bruising. Professor David had not seen such bruising caused by intentional suffocation or resuscitation and saw no reason for preferring one cause over the other.
122. I also accept and find that it is possible that the abrasions on the mandible were caused by the strap holding the mask used in the resuscitation attempts.
123. As to (III) the mother relied in particular on the evidence of Mr Flaherty.
124. The expert witnesses discounted the possibility that the bruising to L's back had been caused during the attempts to resuscitate her. The manner in which L was transported from the helipad to the hospital and the way in which Mr Flaherty carried out CPR by kneeling over her on trolley that was wheeled over a rough surface was not appreciated until he gave his evidence. The detail of this is included in Schedule D. This possibility was put back to the medical experts. Having regard to the evidence of Mr Flaherty, his skill and experience in CPR, the distribution of the bruises and the expert evidence I have concluded that it is very unlikely that these bruises were caused by Mr Flaherty during his attempts to resuscitate L (or by him and others who attempted to resuscitate her) and more likely that they were the result of the possible inflicted cause.
125. Mr Flaherty also gave oral evidence that in his experience petechial haemorrhages can be caused by CPR. This coincided with points put to the experts from research material. It also appeared that Mr Underhill (the consultant in A&E) who had pointed out the rash to Mr Flaherty (when it was still subtle) might support the view that petechial haemorrhages can be caused by CPR and the possibility that they were so caused in this case. As a result he was asked to give a statement and was called. His evidence did not provide this support although it did not undermine the evidence of Mr Flaherty. This was because what he and Mr Flaherty discussed was a rash rather than petechial haemorrhages, and Mr Underhill made it clear that he had only a limited knowledge of the causes of petechial haemorrhages.
126. I was impressed by Mr Flaherty as a witness and it was clear that he had considerable skill and experience in CPR. The summary of his evidence on this point is in paragraphs 74 and 75 of Schedule D which are in the following terms:

"He also told me that in his view, based on his experience, petechial haemorrhages can be caused by resuscitation attempts on children that sadly have proved unsuccessful. He told me that he had seen such petechial haemorrhages usually on the upper part of the body and specifically referred to the neck and face. He also told me that he had seen one small infant with a rash on the lower limbs. He was of the view that vigorous CPR and attendant medication (which he said was nearly always given during resuscitation in hospital) can cause petechial haemorrhages. As I understood it he accepted in answering questions put on behalf of the mother that in cases where there was a combination of increased air blockage, cardiac compression and medication, the result can be that pressure can change and vessels can be so affected that although an ECG is not recording any electrical impulses the circulation caused by compression can produce petechials. This was in line with the opinion expressed in literature put to the medical experts by leading counsel for the mother.

He accepted that if the pathologists and paediatricians were stating that the petechial haemorrhages in this case were not caused by the attempts at resuscitation he would defer to their view. He also accepted that it was possible that in this case the petechial haemorrhages were present whilst he was performing resuscitation and he did not notice them. He also accepted that it was possible that in other cases where he had observed petechial haemorrhages on a child following failed attempts at resuscitation that those haemorrhages could have been present before those attempts began. But he stated that if the pathologists and paediatricians in this case were stating that CPR did not cause petechial haemorrhages he would have to differ having regard to his own experience in connection with the resuscitation of children. As I have said that experience is extensive."

127. It was also the case as pointed out by counsel for the local authority that points as to the extent and distribution of the petechial haemorrhages he had seen as compared with those seen on L, were not explored. Nor were issues such as the cause of death or the need for resuscitation in those other cases. The effect of his evidence was put back to the experts. Their response is in Schedule C. They did not change their view as expressed (a) in answer to the questions put by reference to the research relied on by counsel for the mother, and (b) earlier in their reports. At all stages they acknowledged the possibility that petechial haemorrhages could be caused by CPR even though natural circulation was not restored, but were of the view (which I accept) that the amount and distribution of the petechial haemorrhages seen on L meant that it was very unlikely that the main or only cause of them was CPR, and it was more likely than not that they were the result of the possible inflicted cause. Indeed that is putting their combined view at its highest, because some of them discounted CPR as a possible cause of L's petechial haemorrhages.
128. In Schedule C I deal with the point that to the lay observer the facts that the petechial haemorrhages were not noticed by anyone before they were seen as a subtle rash by Mr Underhill and that shortly afterwards they were very obvious to, for example, the parents indicate that they might well have been caused by CPR at the hospital. The answer of the experts was that they were not surprised that the petechials were not noticed earlier, and thus they were not surprised that they were less obvious earlier. As I say in paragraph 50 of Schedule C:

"During their oral evidence extracts from reports of research were put to the doctors, including Professor David, by counsel for the mother. These extracts were to the general effect that petechial haemorrhages could be caused during, and as a result of, resuscitation. The validity of this research material was not challenged by the doctors but it did not change their view. They remained firmly of the view that the extent and distribution of the petechial haemorrhages in this case were a strong factor in favour of the conclusion they reached as to the likely cause of death. They also remained firmly of the view that the petechial haemorrhages were present throughout the attempts at resuscitation from around 3.10 p.m. onwards and that they had not been noticed."

129. I accept that view. If follows that in my judgment it is more likely that the petechiae were the result of the possible inflicted cause than CPR.
130. Pausing at this stage, in my judgment for the reasons set out above, with the exception of the bruising to the nose and the abrasions to the mandible, the possible inflicted cause is more likely than the possibilities advanced at Stage 2 to be the actual cause(s) of the matters referred to.
131. As to the bruising of the nose in my judgment the points made in respect of the other bruising and marks, and the petechials, mean that when this bruising is looked at having regard thereto, rather than on its own, the likelihood that it was accidentally caused by Rev M and/or Mrs H reduces. But I accept the evidence of Professor David that there is no medical reason for preferring one cause to another and I proceed on that basis.
132. I proceed on the same basis in respect of the abrasions to the mandible.
133. I now turn to Stage 1. Here three possibilities are advanced. There is little difference between the first and third. As to them in my judgment the lack of anything that would be likely to affect and impair L's natural reflexes against inhaling vomit is an important factor which not only renders the possibilities very unlikely but provides strong support for the view that the possible inflicted cause is more likely to be the actual cause.
134. As to epilepsy, this is a specialism of Professor Gardiner. He regards it as a very unlikely cause. In his report he said

An epileptic seizure as cause of death

L did not have a diagnosis of epilepsy, but epilepsy starts with a first seizure and it is conceivable that she developed epilepsy on the day of her death. Her mother has a diagnosis of possible epilepsy, which might, depending on whether the diagnosis is correct, and if so which sort of epilepsy she has, increases by a small amount, L's likelihood of developing epilepsy. It is possible, but extremely unlikely, that L had undiagnosed epilepsy.

Patients with epilepsy, including young children, have an increased incidence of sudden unexpected death, referred to by the acronym SUDEP. Data on this condition do not strictly apply to L, as she did not have epilepsy. However, it is conceivable that similar risk factors and mechanisms of death could apply to a first seizure.

135. He maintained that view in his oral evidence and I accept it. This founds the conclusion that epilepsy is a less likely cause than the possible inflicted cause.
136. In Model 1 laryngeal spasm or reflex is included as a possibility. Professor David dealt with this in detail and I accept his view that it is very unlikely that L suffered a laryngeal spasm or reflex and the possible inflicted cause is more likely to be the actual cause (see paragraphs 54 to 56 of Schedule C).
137. As to all three possibilities, in my judgment strong pointers that they are less likely to be the actual cause than the possible inflicted cause are (a) the evidence that in the helicopter L was sick when she was intubated, and after that her mouth and airways were cleared by using a suction catheter and resuscitation by bag and mask was recommenced, which, as I have mentioned, in my view provides a compelling explanation for the presence of vomit in her airways, and (b) the evidence, which I accept, of all involved in her resuscitation that they did not smell or notice any vomit until she was sick in the helicopter, which is an indication that L had not vomited earlier.
138. Both Rev M and Mrs H heard a gurgling sound when administering mouth to mouth resuscitation. I do not accept that it is likely that this was caused by vomit that had not been expelled and which was completely inhaled or swallowed before the ambulance men checked L's mouth and airway. I however acknowledge that it is a possibility. Professor David pointed out that if the neck is not fully extended (hyper extended) during resuscitation the tongue can fall back, that this cannot be checked once mouth to mouth resuscitation has started and that this could explain the gurgling heard by Rev M and Mrs H. In my view this is the more likely explanation of the gurgling sound heard by Rev M and Mrs H notwithstanding the point that Rev M stopped when she heard this noise and checked that L's tongue was not in her throat. Rev M was worried that she did not tilt L's head far enough back, but as I say in Schedule D in my view both ladies should be praised for, and proud of, their efforts to resuscitate L and for their humanity and pragmatism in the difficult and distressing circumstances they found themselves in.
139. In Model 1 there is a reference to some petechials being caused by aspiration of vomit followed by asphyxiation/choking. I accept the evidence of the medical experts that this is a very unlikely cause for petechials of the amount and distribution seen on L and it is more likely that they were the result of the possible inflicted cause. I also accept Professor David's evidence relating to a procedure of gastric lavage which resulted in massive choking and gagging but not in petechiae of the amount and distribution seen on L and consider that it provides strong support for this conclusion (see Schedule C paragraphs 46 to 53 and in particular paragraphs 52 and 53).
140. The cut. The models put forward the possibility of a convulsive stage, or of L trying to get out of bed and falling on the headboard. In my judgment normal human experience founds the conclusion that both are very unlikely, although I accept possible. With the exception of the possibility of epilepsy in my judgment the likely lack of impairment to L's natural reflexes strongly supports the view that these possibilities are less likely than the possible inflicted cause.
141. As appears later these possible explanations do not accord with the descriptions of the mother as to how she says she found L and her evidence that she did not hear anything. In my view this supports a conclusion on the facts of this case that these explanations are less likely than the possible inflicted cause because they cast doubt on the mother's account of events.
142. The lack of evidence of profuse bleeding is a puzzle because (a) there was some limited associated bruising, and (b) the medical evidence, which I accept, was that if the cut had been caused during life it is highly likely that it would have bled profusely. This puzzle relates not only to the possibilities advanced on behalf of the mother but also to the possible inflicted cause and thus a conclusion that part of the events surrounding the compression to L's throat included a struggle, or other event, that led to the cut to her forehead. In respect of the possibilities advanced on behalf of the mother she does not refer to there being any "clean up", such possibility exists on the alternative of inflicted injury but the forensic examination of the house indicates that any "clean up" would not have been of profuse bleeding. The explanation is therefore that the cut took place at, or very close to, or after, the point of death. The small amount of blood found on the headboard is consistent with the possibilities advanced on behalf of the mother but it is also consistent with the cut being inflicted.
143. Pausing at this stage of the analysis, having regard to the points and comments made in respect of the possibilities advanced on behalf of the mother, in my judgment it is very unlikely that they provide an explanation of the cause of L's death and the injuries she suffered and the far more likely explanation is the possible inflicted cause (and thus the cause agreed and advanced by the expert medical witnesses).
144. As appears above I have looked at matters separately. I add that in my view, although the possible inflicted cause involves a series of events, the point that it provides an explanation with a common theme for the death, and all the injuries and marks compared with the need for the mother to advance Stage I and Stage 2 and thus unlikely causes:

i) leading to L's collapse, the cut and perhaps marks to her neck (those seen by Rev M and Mrs H), and some petechials (from asphyxiation/choking) before, at, or just after that event, and

ii) after it for the bruises to her back and perhaps petechials (from CPR, and the emphasis was on the petechials being caused by CPR rather than asphyxiation/choking), and perhaps further marks to her neck,

is a further factor pointing to a conclusion that the possible inflicted cause is more likely than the possibilities advanced on behalf of the mother.

145. As I have explained that is not the end of the analysis and I go on to consider the other points advanced to support the mother's arguments and the conclusion she invites me to reach.

Views of the mother's character and behaviour / rarity of the possibilities advanced

146. A psychological assessment of the mother, carried out by Dr Tully, provides support for the view that she is, or is likely to be, a poor and inaccurate historian. Her interviews and oral evidence also indicate that she is inclined to be voluble in her answers to some questions. In my judgment the totality of her written and oral evidence, taken alone, or together with the report of Dr Tully, indicate that she is a poor and inaccurate historian. I have taken this into account in assessing her evidence.
147. Rev M, and indeed Mrs P and others were impressed by the family. As I have said social services had no child protection concerns following the death of H. Notwithstanding that Rev M, as she accepts, is inclined to identify and emphasise the good in people I accept that her complimentary observations of the mother (and the family) are a true reflection of her overall and informed view and are not coloured by this tendency. In my view Rev M was an impressive witness who took considerable care in expressing her views in a fair way. In their final submissions counsel for the mother extracted from the evidence a number of points made about the mother and her family by Rev M, Mrs P, the playgroup supervisor, the health visitor, the social worker and a neighbour which are complimentary and found the view that if the mother caused L's death this was wholly unexpected in the eyes of third parties who had had discussions with, and observed the behaviour of, the mother (and the whole family) following the death of H. I accept this. Further points that also support that conclusion are that the mother and father were in a stable relationship which had lasted for about 5 years and was perceived by outsiders to be a loving and supportive one, they appeared to be managing well on a low income, the children appeared happy and well looked after, the home and lifestyle of the family bore none of the hallmarks or warning signs associated with abuse of children, and outsiders had not seen or heard the mother lose her temper.
148. I agree, as her counsel accepted, that the evidence supports the conclusion that at times the mother (a) demonstrates a childish nature, (b) behaves unusually and incongruously and (c) does not keep as close an eye on her children when out in the village as other might do. But this does not undermine the points made in the preceding paragraph.
149. Counsel for the mother took me to mortality statistics which had been laid before Parliament pursuant to s. 19 Registration Service Act 1953 simply to make the point that, as one would expect, an assault and deliberate asphyxiation by a mother of her three-year-old daughter causing her death is a very rare and unlikely event. It was pointed out to me by counsel for the local authority, and I accept, that the same statistics indicate that the possible causes or models advanced on behalf of the mother for L's death would also be very rare and unlikely events. In his report Professor David pointed out that whatever caused it, the death of L was most unusual. He went on to say that mere rarity of the circumstances does not itself distinguish between a natural or an unnatural cause. I agree. Further, as I have pointed out earlier, I consider and have reminded myself that having regard to their rarity all the reasonable possibilities could be described as being very unlikely and that part of the reasoning process in this case is to compare and contrast competing possibilities for a rare result.
150. I accept that the informed view of third parties who know the family that if the mother caused the death of L this would be wholly unexpected, is a factor to be borne in mind when considering her evidence and the circumstances of this case. In my view in the circumstances of this case it warrants a generous approach being taken to her evidence but cannot itself found a conclusion that she did not cause L's death.
151. As appears in Schedule D, and as the mother accepts her behaviour following the arrival of Rev M at her home on 2 February 2004 and following the death of L, has fairly been considered by a number of people (some with experience of parents suffering shock and distress following the death or injury of a child) to be incongruent and unusual. In this context I acknowledge the enormous shock and strain on a parent whose child has died, or who is seriously ill, and that people in such situations can behave in ways that they cannot explain and are odd. In the circumstances of this case, and as part of my generous approach to the assessment of the mother's evidence, I have not relied on this incongruent and unusual behaviour as a factor in favour of a conclusion that the mother has not given the court, and others, a full and accurate account of events on 2 February 2004, or a conclusion that she caused L's death and injuries.

The mother's evidence and account of events

152. The mother had an interview with a police officer on 2 February 2004 but a record of that interview is not available. She had a taped interview on 4 February 2004 which lasted several hours. A solicitor was present. She had a second long taped interview on 7 May 2004, again a solicitor was present. Some aspects of the description of events given by the mother are consistent between the two interviews, others are not. Some inconsistency would be expected of a mother in the position of this mother who was attempting to give a full account of events to the best of her recollection.
153. I shall not attempt to discuss all aspects of the mother's interviews and her evidence. I divide them up under headings but acknowledge that some of the points could have been included under one or more of those headings.

Consistencies

154. The mother has consistently said that she put L to bed at around two o'clock (and thus after her telephone conversation with the father at 1.15) and that when she went in to check her very shortly before she telephoned Rev M at 3.10 she found her in a state of collapse.
155. The mother's description of how she found L has been consistent throughout. It is that L was lying with her face in her pillow and that (a) her duvet was undisturbed and up to her shoulders, and (b) her clothes were not in any disarray. This description does not fit with any of the models advanced by counsel on behalf of the mother because each of them involve L at least rearing up and hitting her forehead on the headboard and it is very unlikely that she could have done so and then fallen back onto her bed (a) leaving the duvet lying tidily over her, and (b) her clothes, and in particular her cardigan, in no disarray. This was acknowledged by counsel for the mother who therefore had to accept that this part of the mother's account was probably inaccurate.
156. To my mind no convincing reason was advanced on behalf of the mother to explain this account in the context of the models she advanced as possibilities, or more generally. Naturally I accept that if she had taken no part in the events leading to L's collapse and the gash to her forehead, the mother would have been shocked on finding her and that such shock and distress would have continued over the following hours, days and weeks. But in my judgment this does not explain why she has given an account which is inconsistent with any of the models she advances as to the cause of L's collapse and the cut to her forehead. An account which would have been consistent with those models is one in which the duvet, and some of her clothing, was disturbed. In my judgment (a) a distressed and shocked mother who had had no part to play in the collapse of L and the gash to her forehead would have been likely to notice this and to have given an accurate account of it, even if she was a poor historian, and (b) this mother would have been likely to do so if she had had no part to play in the collapse of L.
157. Rev M told me, and I accept, that when she first saw L the duvet was turned back and her clothing was tidy. I accept that evidence. There is some inconsistency in the mother's accounts as to whether she turned back the duvet after she had found L in a state of collapse and took her pulse. In my view this inconsistency can easily be explained by the shock and distress of the situation and the frailty of memory.
158. The mother has also given another consistent account to the effect that there was a terrible smell of vomit or faeces in the room when she found L, although she has been inconsistent as to what she saw on the sheet and L's clothing. In my judgment the evidence of Rev M and Mrs H together with the absence of any evidence of vomit or faeces demonstrate that this was clearly not so.
159. If follows that in my judgment the mother's account of how she found L:

i) does not match the models she advances as to the cause of L's death and cut to her forehead, and

ii) is inaccurate in respect of the smell she says she noticed.

160. I accept the point made on behalf of the local authority that the description the mother gives has a considerable overlap with the circumstances surrounding the death of H who was in his cot, and when it seems that there would have been a smell of vomit. It was not suggested that she was muddling the two events and in my judgment she was not doing so. This raises the question whether she has given a description which matches what occurred when H died.
161. The mother has consistently said that while she was downstairs she heard nothing and would have expected to hear L if she had cried out or hit her head on the headboard. Her account and evidence was that she was very sensitive to noise from the children and could hear what was going on in their bedroom from downstairs. She and the father were both aware that it was easy to hear movement and noise throughout the house and it seems to me that this means that it is likely that the mother would acknowledge and assert, as she consistently has, that she would have expected to have heard L if she had cried out or hit her head on the headboard. This evidence again does not fit with the models advanced on behalf of the mother. A qualification to this point is that it is less easy to hear what is happening in the children's bedroom from the kitchen and that the mother had gone into the kitchen during the early afternoon. I accept that this might explain why she did not hear the events leading up to, and surrounding, L's collapse if she took no part in them, but it would require the coincidence of those events taking place during the short time that she was in the kitchen. I also accept that the mother has not advanced any excuse or reason, such as the TV being on loud, to explain why she did not hear L collapsing and cutting her forehead and that she might have done so if she was giving a false account.

Unusual features of her evidence

162. The mother has consistently said that she put L to bed fully dressed and with her trainers on. In her evidence she said that she did not want to "fight with L" (meaning having an argument with her) but this explanation does not fit with the general description of L, namely that she was a well-behaved and easy child. The trainers were found on the mantelpiece in the sitting-room. No explanation as to how they got there, if as the mother has said L was wearing them when she put her to bed, has been given. It is possible that someone took them off during the attempts to resuscitate L and has forgotten about this; but this seems very unlikely. In my judgment it is also very unlikely that the mother simply got this wrong and that when she was putting L to bed, in the manner and circumstances she asserts, L was not wearing her trainers and therefore no issue, or potential dispute, as to her taking them off arose between mother and daughter. In my judgment the most likely explanation for the mother's evidence that L went to bed fully clothed, and with her trainers on, is that the mother put L into bed in different circumstances to those she has described and thought that in those circumstances she had her trainers on. In my view it is very unlikely that those circumstances would have been normal.
163. The mother described L's face as being purple around the eyes cheeks and mouth on a few occasions during her first taped interview. She also described her body as being as stiff as a board. However, on her general account, only a few minutes later Rev M arrived and found her to be pale and floppy. I accept the evidence of Rev M and the divergence between her description and this description of the mother is a factor in favour of conclusions (a) that the mother is not giving a full and accurate account of the events that took place and the things she did and saw before the arrival of Rev M, and (b) that a full and accurate account thereof would include her having seen at one stage of the events that actually occurred L's face with a purple colour around the eyes, cheeks and mouth.
164. The mother's failure to telephone for an ambulance is also odd and unusual as is her failure to take any steps herself to try to resuscitate L. Naturally I accept that people will act very differently, and possibly very strangely and inexplicably, in moments of shock and panic and that finding one's child in a state of collapse is something that would be exceptionally distressing. The mother's failure to telephone immediately for an ambulance has been remarked on by some of the doctors, in particular Professor David, as being an unusual feature of this case. Those remarks are based on their experience of witnessing the reactions of parents in similar situations. However if this point had stood alone I would not have attached great significance to it because of the difficulties in assessing and criticising the actions of someone suffering from distress, shock and panic. Further I accept the point that this mother did not put on a show of concern and distress to the people she summoned which is something that Professor David commented is sometimes done by a perpetrator of a non accidental injury who has not called an ambulance. Indeed, as I have mentioned, a number of people remarked that the behaviour of this mother was unusual and incongruent.
165. But the mother had experienced the circumstances following the collapse of H during which she had, following instructions from the operator, given mouth-to-mouth resuscitation. She was thus very aware of the potential benefits of mouth-to-mouth resuscitation and of the point that an ambulance could and should be called. The mother has said that she thought Rev M had told her that she would call an ambulance. I do not accept that Rev M said this and indeed the mother accepted in her evidence that Rev M had told her to call an ambulance immediately. The father told her to do the same thing in explicit terms when she spoke to him at about the time Rev M got to the house. In my view it is relevant to note that in his account of this conversation the father does not say that the mother told him that Rev M was calling an ambulance, which would have been her natural response to his question whether she had done so if she had thought it was the case. I acknowledge the possibility that by the time of this conversation with the father Rev M had made it clear on her arrival at the home that the mother was to call an ambulance. But if that is the explanation it is not easy to see why the mother continued with her call to the father before calling for an ambulance.
166. I therefore conclude that the failure of the mother to call an ambulance and to take part herself in any resuscitation is an unusual feature of this case which cannot be adequately explained as an unusual reaction of an innocent mother suffering distress, shock and panic. To my mind it is therefore a factor which points to a conclusion that the mother is not giving a full and accurate account of what happened. However in my view, of itself it would not found that conclusion.
167. In her first taped interview the mother says that when she went into L's room at around three o'clock she saw the cut over L's left eyebrow and a smear of blood towards her left ear. This smear of blood was not something that any of the other witnesses recall seeing. If it had been there I am confident that both Rev M and Mrs H would have noticed it and remembered it. Both ladies had a clear view of the left side of L's face when they were attempting to resuscitate her and have a consistent and clear recollection of the cut and the very limited associated bleeding. Indeed Mrs H remembers thinking how clean L's face was. Also none of the ambulance men remember any smear of blood.
168. Additionally the mother's description as to how she saw the cut and the smear of blood is unconvincing because she said that all she felt able to do was to tilt L's head, and her description of how she did that did not indicate that she would have had a good view of the left side of L's forehead and thus the smear of blood. Also this account does not sit easily with the evidence of Rev M, which I accept, that when she entered the room L was lying on her side. As to this it needs to be remembered that the mother has consistently said that she found L lying with her face in the pillow. It follows that if all the mother did was to tilt L's head in the manner she described, how L came to be lying on her side is unexplained.
169. In my judgment a comparison of the mother's account of seeing the cut and a smear of blood with the evidence of Rev M and Mrs H (which I accept) provides an indication that the mother is not giving a full and accurate account of what happened. Also in my judgment the mother's reference to there being a smear of blood is an indication that there was one, and if this was the case it had been cleaned away before Rev M and Mrs H arrived at the home. Further in my judgment the evidence of Mrs H provides clear support for the view that L's face had been very recently cleaned. All these points taken together in my view found a reasonably compelling indication that the mother is not giving a full and accurate account of what happened.
170. The mother's evidence as to how she knew that L was not breathing and checked for a pulse in L's neck is also unconvincing if, as she says, she only felt able to tilt L's head. As to this in her first taped interview she said that she could see her nose was not inflating, her cheeks were not moving and her eyes were not moving and that she couldn't find a pulse and that her reaction was "Well she is not breathing, I've got to get an ambulance. I've got to get help." She then asserts that she telephoned Rev M. I accept the submission made on behalf of the local authority that it is unlikely that the mother would have concluded in this way, and from this observation, that L was not breathing and had no pulse.

Inconsistencies

171. The mother told the emergency service operator that L had stopped breathing and she thought that she had had a fit or something. Later she told the operator that at 2 o'clock L was perfectly all right, that she had said she was tired and that she went upstairs and laid on her bed and went to sleep at about 2.30. She added that it was the second time this had happened to her in six months, that she didn't know if L had had a fit but she had obviously banged her head on the headboard or something and she had got a cut above her left eye and she had totally stopped breathing.
172. The reference to L "obviously" banging her head on the headboard does not fit easily with the mother's description of what she says she saw and did and her reaction when she went in to see L at about three o'clock. This is because on that description she had a limited observation of L, she did not move her and she would have been unlikely to have noticed (and she does not mention having noticed) any mark or blood on the headboard. Further, as already mentioned, the mother says that the duvet was undisturbed and L's clothing was not in any disarray. Also the mother's description of her panic and shock, together with the action she then took, do not lend themselves to her making this deduction albeit that if she had entered the room finding the duvet in some disarray and for example L sprawled out on the bed it would be a logical deduction. Further I accept that it is a deduction that can readily be made particularly after the discovery of the blood on the headboard. But in my view this early assertion of the mother that L had obviously banged her head on the headboard is an indication that she has not given a full and accurate account of what happened and that the mother knew that this is what had happened.
173. The mother did not tell Rev M, Mrs H, the father, the treating doctors and nurses or the police on 2 February 2004 that L had showed any signs of being unwell. Also she did not mention this in her first taped interview. However when she came to give her second taped interview the mother asserted that before she took L up to bed she was demonstrating signs of illness and that she thought that L might be going down with meningitis. In the second taped interview she gives quite a detailed account of this saying, for example, that L was very pale, she was white and she did feel hot, and that she checked her temperature. She said that she had not mentioned this in her first interview because she didn't have a very clear head at that time and she had had time to think things over by the time of the second interview.
174. By the time of the second interview the earlier reports of Professor Risdon were available and had been provided to the parents in these proceedings. These reports raise the possibility that L suffered from an infection which led to a chain of events resulting in her death. I was unclear from the father's evidence whether the mother gave a description of L being unwell to him before she gave it to the police. He accepted the mother's explanation as to why she had not mentioned this before. I do not accept that explanation.
175. In my judgment it is simply incredible that if L had been demonstrating the signs of illness described by the mother and she had taken the steps she says she took and had thought that L might be going down with meningitis, she failed to tell anyone about it at that time (or for some time thereafter). In my judgment the coincidence of the emergence of this account after Professor Risdon had reported is too great to ignore and it is his introduction of the "infection model" which provides the reason for the mother giving this new description.
176. In my view the Lucas warning is particularly relevant in respect of this change of account and inconsistency. If it is looked at in isolation I would accept that the second and in my judgment untrue account might be put down to a misplaced attempt by an innocent mother to bolster the possibility that L suffered an infection which led to a chain of events which caused her death. However, even on that basis, this change of account (a) is an example of the mother failing to give a true account of the events leading up to L's death to the best of her recollection, and (b) does not, in my view, indicate that the first account of L feeling tired and therefore going to bed is correct.
177. The mother has given inconsistent accounts as to "accidents" she says L had which resulted in her soiling her knickers. The inconsistencies relate to whether this happened on one or two occasions, whether it happened in the morning or after lunch and whether she soiled the loo seat. It is common ground that it would have been very unusual for L to soil herself and that she did not mention such an accident to the father when they spoke at lunchtime. In some of the accounts the mother says that she rinsed out the soiled knickers. The mother has not provided a convincing explanation as to why one pair of obviously and fairly heavily soiled knickers, together with another pair of knickers and a pair of pyjama bottoms, which were lightly soiled, were found in the washing machine.
178. I would readily accept that someone seeking to give an account of a child soiling herself and as to the contents of the washing machine might give descriptions that contained inconsistencies on different occasions. However here the inconsistencies, particularly as to the number of accidents, go beyond what I would expect particularly as L was not in the habit of soiling herself. Thus it seems to me that the inconsistencies relating to L soiling herself are indications that the mother is not giving a full and accurate account of the events leading up to L's death.
179. There is at least potentially a linkage between this evidence and the mother's evidence that there was a terrible smell in L's room.

Miscellaneous

180. The mother told the police that she was suffering no stress regarding the father's return to work or over Christmas 2003. This is at odds with the evidence of the father and Rev M, and indeed with the mother's evidence taken as a whole. In my judgment the mother was concerned regarding the father's return to work and the fact that he would not be available to assist with the care of the children between 8 a.m. and 5 p.m. five days a week. On its own I would not regard this as a particularly significant point because it is understandable that an innocent mother might play down the concerns and worries she had had in this respect, and that she had been depressed over the Christmas.
181. In her first taped police interview the mother said that L had been annoyed because the father had taken the library card to work with the result that no books could not be taken out from the mobile library. In her second taped interview she denied this. In her conversation at lunchtime with the father she spoke of going to the mobile library but it seems did not raise the point that the father had taken the library card with him to work. I accept the submission made on behalf of the local authority that this is an indication that she did not wish to tell the father about a clash between herself and L that morning. But it seems to me that any failure or decision by the mother not to tell the father of problems she was having in looking after the children can easily be explained by her not wishing to admit this, or to worry the father, and therefore that as such they do not have any sinister connotation.

Conclusions on the mother's evidence

182. In my judgment, notwithstanding the generous approach I have taken to the mother's evidence, the points made under the previous heading, and in particular those made in paragraphs 154 to 156, 158/9, 161 to 163 and 167 to 179 (which relate primarily to descriptions of specific events, actions or observations rather than to the mother's reactions or her behaviour) point strongly towards and found the conclusion I have reached, to the civil standard, that the mother has not given a full and accurate account of the events in the house on 2 February 2004 and thus of the events relating to L's death and injuries.

Overall conclusion

183. My conclusion as to the mother's evidence supports rather than undermines the conclusion I have reached at the earlier stage of my analysis by reference to the possible causes of L's death and injuries.
184. For the reasons I have given, I have concluded that it is far more likely than not that:

i) L's death was caused by compression to her neck which caused obstruction to her airway and venous return,

ii) the mother inflicted that compression to L's neck as part of a series of events that also caused the cut to L's forehead, bruises to her back and marks to her neck, and thus that

iii) the mother, who is the only possible perpetrator, caused L's death and injuries.

185. It was common ground that this finding establishes the existence of the threshold criteria.