England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/11/2012

Mrs Justice Pauffley :

Introduction

1. Just after 8 o'clock during the evening of 22^nd October 2011 a 'phone call was made to emergency services by the mother of an 8 week old baby girl who, after a bath, had been sick, turned "pure white" and was unconscious. The infant was admitted to Stoke Mandeville Hospital where she was found to be pale and floppy with no respiratory effort and a poor pulse. A CT scan showed extensive blood in and around the baby's brain. She was transferred to the John Radcliffe Hospital in Oxford, arriving there at around 1 o'clock in the morning of 23^rd October. Sadly, very sadly, at no time after her admission to hospital did the baby show any brain function; there was no spontaneous movement and no reflexes of any kind. Neither was there any respiratory effort. Treatment was withdrawn and she died at 18.10 on 24^th October.
2. The primary purpose of this hearing has been to establish the cause of death and also how other, older injuries were sustained. If there was non accidental, that is inflicted, injury then it is my task to identify if possible who was responsible. And the reason for so doing is that the parents of the child who died have two other children together, a girl who is almost five and a boy who is two and three-quarters. It is obviously necessary when considering the long term arrangements for those two children to have an adequate understanding of the circumstances surrounding their younger sibling's death; and to establish whether either parent presents any kind of risk either as an individual who has inflicted injury or knowingly failed to protect from physical harm.
3. The baby who died was E; she was born in August 2011. The eldest child of the family is K. Her younger brother is H. The children's mother is 27 years old. Their father is aged 30. They met in about May 2003 and started to live together at about Christmas time 2004. Since E's death there have been times when they have lived together and other times when they've been apart. Most recently, on 11^th September 2012, the mother removed her belongings from the family home and went to live with her grandmother.
4. Since 23^rd November last year, when they left the care of their maternal grandparents, the two children have been living in a short term foster home. Providing them with a long term and secure placement is now a priority and must be achieved, if at all possible, before the date set for the next hearing, namely 4^th March 2013.
5. Mr Archer, Counsel for Buckinghamshire County Council, has produced what he describes as an Advocate's Chronology. It extends to 26 pages and contains, amongst other things, an almost minute by minute account of events on the day of E's collapse, including many important extracts from the medical records, parts of the statements made in these proceedings as well as salient material gathered by the police. The entire chronology is helpfully cross referenced to the source documents. If he will permit me to say so, it is unquestionably one of the best documents of its kind. For me, and others I suspect, it has been an invaluable forensic tool; and it would be an unnecessary duplication if I were to include details already fully set out there. I am quite content to adopt it as the framework for my consideration of the several issues for decision.

The medical framework

6. The medical outline against which I must consider the parents' evidence about what happened during the last three and a half weeks or so of E's life is very largely uncontroversial. Moreover, notwithstanding some bold suggestions made to four medical experts in cross examination, particularly by Mr Routley on behalf of the father, the expert consensus remains unchanged. It is that in all probability E died as the result of non accidental head injury with associated bruising and rib fractures; and, in addition, she sustained inflicted posterior rib and tibial fractures within the period 10^th to 14^th October, so between 10 to 14 days of her death.

Presentation – how E would have responded in the aftermath of injury

(i) Earlier rib and tibial fractures

7. As for how E would have reacted in the immediate aftermath of injury and in the days that followed, there is broad agreement between those experts who have given an opinion. Dr Alison, consultant paediatrician, instructed within these proceedings, agreed entirely with the written opinion of Dr Alan Sprigg, consultant paediatric radiologist instructed by Thames Valley Police.
8. The symptoms from both the rib and metaphyseal fractures are of pain and screaming at the time of injury and for several minutes thereafter followed by non-specific irritability on handling, dressing, bathing and so on over a period of a few days. Dr Sprigg would have expected the person with the baby at the time of injury to recognise the infant had been handled with excessive and inappropriate force and that the baby was in pain.
9. A non perpetrator who had not seen or heard the event that caused the rib or tibial fractures might not recognise there had been an injury unless in relation to the metaphyseal fracture there was associated swelling or bruising which is uncommon. Symptoms of irritability lasting for a few days after the event might be misattributed to the infant being unwell for other reasons. A non perpetrator may not realise there were rib fractures or a limb injury.

(ii) Fatal head injuries

10. In relation to the fatal injuries, Professor Risden's written response to questions indicated that collapse and unconsciousness would have been "immediate"; and there would not have been a lucid interval. In evidence he said it would have been a matter of seconds only between the insult and deterioration in E's condition though it is very difficult to say exactly what happened. This "sort of injury" can occur within a very short time.
11. Dr Stoodley, consultant paediatric neuroradiologist, fundamentally agreed with Professor Risden whilst repeating his own view that the change in E's behaviour at the time of injury is likely to have been "very significant." He did not agree that unconsciousness necessarily would have been immediate. He said that in some cases the child will become unconscious; the change in behaviour results from the hypoxic ischaemic injury which is instituted at the time of the causative event.
12. Dr Sprigg's view is that given the extensive changes seen on the scans, it is likely that whatever caused her brain damage would have been associated with rapid deterioration in clinical state rather than an event happening several hours earlier followed by neurological deterioration a while later.
13. In his opinion, if there are acute cerebral symptoms (e.g. sudden collapse, stopping breathing or acute onset of fitting with collapse) in the presence of acute subdural haemorrhage, then it is very likely that the causative event was closely related in time to the onset of symptoms.

The mother's oral account of events on the evening of 22^nd October 2011

14. The search, as it always would be in a case of this kind, has been for some explanation sufficient to account for what was found when E was examined both during her life and after death, at post mortem. Thus it is necessary to chart in summary what has been said at various times and in several settings.
15. The key elements of the mother's account of events that evening arising out of her written statements distil to this. That the evening had been uneventful. After the children had been fed, both parents went upstairs to get the children ready for bed. The father had got into the bath with H and K. The mother had passed E to him. She was held on his lap. The mother then went downstairs to start tidying up. She was there for about 10 minutes before going back upstairs where she took H out of the bath and prepared him for bed, giving him a bottle and putting him into his cot. She then went back into the bathroom, took E out of the bath, got her dressed and ready for sleep. She had sat on the bed, given her a bottle, winded and then placed her into the Moses basket. E had been a bit grizzly or grumpy but this was not unusual after coming out of a warm bath. The mother had given E her dummy. The father had said he would settle her down whilst the mother finished tidying up downstairs. Overall, the mother estimates she was upstairs for about 15 minutes. She went down and started to Hoover.
16. After about 10 – 15 minutes the mother heard the father calling her. He sounded very anxious and said E did not look right. She had run upstairs, saw E lying in his arms; she had looked both very floppy and very pale. The mother could see she was not breathing properly. He had explained to her that E had started choking. He had stuck his fingers down her throat to try to clear any obstruction. She had been sick on the carpet. The father had explained that when E had not responded, he had thrown her up in the air and shaken her so as to try to get a response. He had also thrown some water over her face.
17. The mother's account from the witness box as to events in the early evening of 22^nd October 2011 merits inclusion here. She accepts that E was normal when she had been in the bath with her father and siblings. She didn't know whether E had been whingeing or crying loudly enough in the bedroom for it to be heard by the father who was in the bathroom, as he has suggested. The mother said the bathroom fan makes a loud noise and whilst E might have been whingeing for her bottle she wouldn't say she was crying loudly.
18. The mother went on to describe how she had been sitting on the bed with E in her arms giving her a "bit of milk". She had taken a little; then she had winded her and given her a "bit more". E had "burped and she was fine". She had tried her again but she took no more milk. The mother placed her in the Moses basket and the father who had "popped in from the bathroom", had said he'd take over. Asked about how E had been, the mother said she was just "like tired, like after her bath…there was nothing unusual about her" when she had gone back downstairs. He, the father, had said he would "try to settle her back down with some more milk".
19. In cross examination by Mr Archer, the mother added a little more detail to her account, saying she had "creamed" E, put her vest and babygro on; she had whinged a bit, been given her dummy which she'd spat out and she had given it again. Then E had been given her bottle, been winded and put her in the Moses basket with her blanket and "cuddles" (which I took to be some soft toys). The father, according to the mother, had come into the bedroom whilst she'd been feeding E. She could not remember what he'd come in for. The mother had lain E down; she was gurgling, "just making a little noise". He had said he'd take over and try to settle E.

The father's account

20. The father's evidence about events that evening appears substantively within his written statement of 12^th December 2011. The account is lengthy and very detailed. In evidence he said it had taken three to four weeks to make the statement. His version of events is a follows: that whilst he was getting dressed after the bath, the father heard a gurgling and choking sound. H was drinking his milk and not making any noise. He went over to E, pulled up the hood of her Moses basket and could clearly see she was choking. He had picked her straight up, placed her on his arm and patted as well as rubbed her back. She was still making choking sounds so he thought there might be something obstructing her airway. He placed his first two fingers in her mouth to check for obstructions and accidentally pressed down on her stomach whilst holding her. She vomited whereupon he took her into the bathroom and shouted for the mother to come upstairs. He cleaned E's mouth with some water. He looked at her and she then "appeared to be breathing fine". In evidence, he added she had looked at him and also gripped on to one of his fingers with her hand.
21. The father then took E back into the bedroom. As he laid her on the bed he could smell that her nappy needed to be changed and he did so. Whilst changing her, E seemed to be normal. After the nappy change, he noticed her face was becoming pale. He lightly touched and tapped her face. E's eyes were open; she was looking at him; but when he touched her face she was not responding. She was not moving her arms and legs. He had shouted for the mother to come upstairs. E was limp. He held her at his eye level and shook her to make her wake up. The father believes he may have squeezed E whilst holding her in his hands but she did not respond.
22. In cross examination by Miss Mitchell, the father said E had thrown up two to three minutes after he'd put his fingers down her throat. The vomit had all gone onto the carpet as far as he knew; there had been about a tablespoon and a half. In response to further questions by Mr Archer, the father said the nappy change had only taken a couple of minutes and it had been a normal change. He had only become aware of the need for a change as the result of the smell. He had only shaken E to try to get her to regain consciousness and, so he said, he had told the medics – the paramedics and the doctors at Stoke Mandeville as well as at the John Radcliffe Hospitals – "exactly what had happened". The father did not agree he'd said to the paramedic that E had vomited heavily; and asked about the remark attributed to him, namely that E had opened her bowels uncontrollably, he said he had "meant she was breaking wind when he was pushing on her stomach" (during the course of attempted CPR). He might have said she had opened her bowels when she was choking.

Burden and standard of proof

23. It is for the local authority to prove its case – in this instance that E suffered non accidental injury. Neither the mother nor the father has to prove anything. I remind myself that the test to be applied to the identification of perpetrators as to any other factual issue in the case is the balance of probabilities, nothing more and nothing less.
24. In relation to inherent improbability, as Baroness Hale observed in Re B (Children) (Care Proceedings: Standard of Proof) [2009] AC11, "It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Someone looking after the child at the relevant time must have done it. The inherent probability of the event has no relevance to deciding who that was. The simple balance of probabilities test should be applied".
25. It is also established that there is no obligation upon a judge to decide who has harmed a child if he cannot. If he can, the judge should identify the probable perpetrator but he should not strain to do so. Where a judge is considering an 'uncertain perpetrator' finding, he must be satisfied in relation to each potential perpetrator that there is a 'real possibility' on the evidence that that individual inflicted the injuries.
26. When considering issues of credibility, I remind myself that there are many reasons why a person in proceedings such as these might lie. They may do so for a whole host of motives. Not necessarily because they are culpable but, for example, to protect someone else; or in an attempt to bolster up a just cause, or out of shame or from a wish to conceal shameful behaviour from their family. The mere fact that a potential perpetrator lies is not in itself evidence of guilt. It would almost never in this situation be sufficient evidence of culpability to establish that someone had lied. It is an altogether more subtle and delicate process than that.
27. It is curious phenomenon that in the quest for the truth, exploration of potential lies and inconsistencies is often key; so, too, is gaining an understanding of the reasons behind obvious deceit and subterfuge. The two most obvious possibilities in the current context for telling lies are self protection or defence of another.

Discussion

28. Overall, I would have to say this has been a most unusual hearing. The forensic challenges to the factual information provided to the police by lay witnesses has been non existent though there is evident disagreement on the part of both parents with some elements of what was said, particularly about events on the night of 22^nd October. Several facets of the police material have been used to test the parents' evidence through cross examination and also to bolster their versions of events in certain areas. The maternal grandparents, Mr and Mrs F, each gave police statements but neither was called to give evidence at this hearing. They might well have been able to shed light upon the dynamics of the parents' relationship both historically and in more recent times as well as comment upon their interaction with the children. But they were not called and I did not suggest they were vital to resolution of the case; clearly, they were not.
29. In the result, I heard medical evidence from the three experts already mentioned and also Dr McCarthy, consultant ophthalmic pathologist. The issues raised with them ranged from the assertion that E's condition may be explained to have arisen out of an apparent life-threatening event and / or raised intra cranial pressure to exploration of the baby's likely presentation in the aftermath of injury.
30. When that evidence was complete, the mother and then the father went into the witness box. The mother began mid afternoon on Thursday 25^th October, continued on Friday but could not complete her evidence that day. She was weak from having eaten very little, tired from lack of sleep and had pains in her chest, as I understood it. At all events, she did not finish her oral testimony until just after noon on Monday 29^th October. The father began immediately thereafter, gave evidence for the rest of the court day and finished just before lunch on Tuesday 30^th. In the result, I have had ample opportunity to consider the information the parents have provided, to make assessments of their credibility, to consider the dynamics of their relationship and to arrive at an overall conclusion as to how E died.

Overall finding in relation to cause of death and earlier injuries

31. My overall finding is that E's death was caused as the result of a traumatic shaking-type injury which included an element of impact. She was injured shortly before the call to the emergency services at 20.12 on 22^nd October last year, almost certainly as the result of a brief but violent loss of control by one of her parents. It is not possible for me to say whether the mother or the father was responsible for her collapse and ultimate death. Either parent could have inflicted the ultimately fatal as well as the earlier bony injuries sustained between 10 and 14 days prior to E's admission to hospital.
32. Lastly in this list of my overall findings, I exonerate H from causing E harm of any kind. He was not responsible for injuring his sister. The head injuries, the fractures and the bruises were not inflicted by him but by one or other of his parents.

Head injuries - causation

33. Now I turn to the detail which lies behind those conclusions and take first the issue of E's head injuries. Mr Routley's brave suggestion is that it is "entirely possible" even "likely" that E "experienced an ALTE" as described in a research paper emanating from the Netherlands, annexed to Dr Stoodley's report. In response to that submission I am bound to say there is no medical evidence of any kind to support such a hypothesis. But more important still, there was outright rejection of the suggestion by both Professor Risden and Dr Stoodley when cross examined by Mr Routley.
34. In response to the question as to whether E could have suffered an innocuous ALTE, Professor Risden's response was that there was "clear pathology of head trauma in E's case". He went on to say that "this child had clear pathology at post mortem and the whole point of his examination is to discover the aetiology for a sudden collapse". In this instance, in Professor Risden's opinion, the fatal injuries resulted from a combination of shaking and impact.
35. In similar vein, Dr Stoodley roundly rejected the notion that E's condition could be explained on the basis of an ALTE. He said he was not aware of any naturally occurring medical condition which could reasonably account for the scan abnormalities in E's case. Subdural bleeding is strongly associated with head trauma and he added that the pattern of E's bleeding was not what would be expected in an accidental injury. Neither was the pattern of injury to the brain itself.
36. In his report, Dr Sprigg said that even assuming the father's 'resuscitative shaking' did cause some of the subdural haemorrhages he had not seen intraventricular or subarachnoid haemorrhage related to shaking of that kind. It is more likely, in Dr Sprigg's opinion, that whatever caused the diffuse brain damage happened immediately prior to E's collapse rather than being caused by 'resuscitative' shaking.
37. Thus, and on the basis of what I see as being firm and reliable medical advice from experts who, collectively, have an almost unrivalled depth of experience in the field I reject the suggestion that E suffered an ALTE which subsequently led to her death following on from a resuscitative shake. The cause of her collapse, as I find, was inflicted head trauma; and the acute fractures to her ribs and clavicle almost certainly resulted from the application of excessive force at the time of the 'shaking with impact' insult.

Impossible to exculpate the mother

38. Next I turn to explain why it is that I cannot exclude the mother as a possible perpetrator. Miss Mitchell and Miss Barrie urged me to exonerate their client saying I should come to the clear conclusion that the father inflicted all of the injuries. It was suggested that the parents' combined evidence about E's normality at the time the mother left the bedroom to go downstairs is very important; that the additional details supplied by him in evidence to bolster up his 'mantra' of shaking E only in an effort to revive her must suggest he is not telling the truth; that it is highly significant he has never accused the mother of harming E; and that he has tailored his evidence so as to blame third parties – on occasions making it up as he went along.
39. Miss Mitchell and Miss Barrie set out their client's case in great detail within their final written submissions. It would add considerably to the length of this judgment were I to relate or even summarise the core of that document. It goes without saying that I have read and re-read their submissions; I have them fully in mind.
40. What then are my reasons for including the mother as a possible perpetrator? First and foremost, on an overall assessment of the factual information, I simply do not know when exactly E's deterioration began or which of her parents, if only one, was in the room with her at the moment of injury. What does emerge as clear is that when the three children were in the bath with their father, E was fine. Thereafter, there is far less clarity. Each parent was alone with E for a period in the bedroom – the mother when she was preparing her for bed, drying, dressing and feeding her; the father when he emerged finally from the bathroom. Prior to that, he had been "popping in and out" but the evidence as to that was somewhat vague. I gained no impression that he'd had a good look at E until after the mother had gone downstairs.
41. The earliest information about what happened at the time of E's collapse stems from the mother's call to the emergency services, in the discussions between the parents and the paramedics, as between the father and doctors at Stoke Mandeville and, finally, as between both parents and the intensivists at the John Radcliffe Hospital.
42. An overall perusal of the material stemming from those conversations impels me to the view that the mother does indeed merit inclusion as a possible perpetrator and that it would be quite unsafe to eliminate her. The salient extracts from the records are set out in full between pages 7 and 9 of Mr Archer's chronology and therefore it is unnecessary to repeat them here. It is sufficient to note that appraisal of the totality gives rise to the very real possibility that E had already been injured by the time she was placed into her cot by the mother and at a time when the father was still in the bathroom.
43. Nowhere within those recordings of the earliest accounts as provided by the parents is there any hint that after the father discovered E to be so unwell in her Moses basket did she resume any kind of normality. Quite the reverse. As the most detailed history – that provided to Dr Harris in the paediatric intensive care unit – reveals, the parents gave information which suggested what might be termed a relentless decline from the moment the father checked on E and found her making a funny noise in the back of her throat. She was pale. He thought she was not right. She seemed "very loose" and was starting to go blue. Taking her to the bathroom and putting water on her head brought about "no change". When the mother came upstairs, E was in the father's arms and "white."
44. The account given by the father at Stoke Mandeville was broadly similar – "Noticed choking whilst in cot – not feeding at the time. Taken out of cot, put back, Vomited – choking + bowels opened. Dad put finger in mouth ? tongue obstructing. Didn't look right – stopped breathing and looked pale. Dad shook her as not responding. No effect. Took to bathroom. Put cold water on head – no response. Called 999".
45. So whilst I acknowledge that the parents' accounts within these proceedings – and especially the father's version of events – suggest an altogether different sequence of events, I cannot ignore what was said during the evening of 22^nd October and in the early hours of 23^rd. Indeed, experience and common sense suggest that it is often the accounts given very shortly after the causative event which are most likely to shed the most light upon what actually happened.

Can the father be excluded?

46. Had the father stuck to or even been prepared to accept that what he said to the doctors and others – at the time – was likely to be true, there would have been some potential for exonerating him and finding that the mother, in all probability, was responsible. As it is, when asked to consider the accounts he gave at the time, his dismissive reply was that he "couldn't remember saying half of this stuff". He does not now recall what he said. According to the father, his statement prepared for these proceedings is where he has said "exactly what (he) did"; and "maybe (he) was getting confused" when speaking at the time because he was "worried about (his) daughter". The father protested that he had been telling the truth in his evidence and that his statement rather than the contemporaneous recordings is true.
47. It may be that he is telling lies now in order to protect the mother. Perhaps he was telling lies at the time to deflect attention away from her or indeed from himself. When credibility is lost, as it surely has been for the father, then the task for the judge in seeking to arrive at safe conclusions as to what actually happened becomes well-nigh impossible.

Suspicions about the mother

48. There are other matters as well which lead me to be suspicious, even highly suspicious, that the mother rather than the father was responsible and it to those that I now turn.
49. There is no room for doubt: E's conception was not a welcome piece of news for either the mother or the father, for that matter. The mother told the police in interview that she "did not want the baby and (the father) didn't either". Whilst the pregnancy could not be said to have been concealed in the sense that those around the mother must have known she was expecting a baby, she did not keep ante natal appointments and she kept it secret from her parents. They were not told of E's arrival until about two weeks after her birth and then by text message. They, the Fs, had not seen the family since February, at about the time of H's birthday celebrations. The mother said in evidence she hadn't told them she was pregnant because they might have been "cross" with her because she hadn't "let K and H grow up a bit and because (she and the father) were not working." More strangely still, when at the John Radcliffe Hospital the mother told Dr Harris she had not known she was pregnant until she went into labour. That was a downright lie as the mother's medical records from April 2011 reveal. She was seen by a consultant obstetrician on 14^th April, was described as being about 22 weeks into her third pregnancy and given an estimated delivery date of 7^th August 2011.
50. In interview with the police in November, the mother said she had only found out she was pregnant 5 / 6 weeks before the birth, that she had missed all her scans and had only been given rough dates. None of that is true when cross referenced to the mother's medical records.
51. Thus there are important and very largely accepted indicators that the mother was shocked to be having another baby for whom she was not prepared and that she had no desire for another child. I gained no sense from her evidence that her feelings changed to any great extent after E was born and even although she said in response to a direct question that she was "happy" about having the new baby. It is also significant that according to the father's testimony the mother should have been more involved in looking after E. He had said to her that she "needed to do a bit more for E. (He) did his fair share. (He) said she needed to get more involved." A subtle but nonetheless important sign that all was not as it might have been in terms of a successful early attachment between the mother and E.
52. There are other significant pieces of this puzzle which lead to the conclusion that the mother was under a great deal of stress in the weeks following E's birth. Again and again throughout her interview with the police on 1^st November, the mother complained about what "hard work" H was. She said she could not control him; he would not listen to her and was "a real handful". In evidence, on three separate occasions, the mother related how H had been a 'Mummy's boy' when little but that as he grew older he would never listen to her and became a 'Daddy's boy'. The mother protested she did not find H difficult but "felt upset" that he wanted to be with his Dad. Ultimately, she accepted there were big problems between herself and H "where he doesn't listen".
53. I pause to remind myself that when E was born, H was only 18 months old. When she died, he was 20 months old. He was quite simply so young and immature in developmental terms that it was unrealistic, in my assessment, to expect him to absorb anything other than the most basic instructions and necessarily to do as he was told. I was left bemused at the mother's preoccupation with the issue of how H would not listen to her. It was another sign that all was not well as between her and the children.
54. But there is more – clear and accepted evidence of how ready the mother was to accuse H of harming E and of her rejecting him in the immediate aftermath of E's death. The father says, and the mother does not disagree, that on 23^rd October in front of a group of paternal relatives, the mother said she wanted nothing to do with H; that "it was all H's fault" and she would not go back to her parents' home if he was going to be there.
55. Miss Mitchell submits that the mother's acceptance of the suggestion that she did not want to see H confirms and supports her case that she had not done anything herself to injure E. I cannot draw the same inference. In fact and because it is such an absurd allegation, I see it as suggestive of personal guilt. Put another way, I regard it as very suspicious indeed that the mother would contend her 20 month old son could have been responsible for E's death. The fact that she did so, to my mind, is more indicative that she herself was implicated than that she was not. Measured against the range of possible parental reactions to the death of an infant, the notion that responsibility should rest with a toddler sibling defies belief.
56. In similar vein, and again on the subject of H's potential as the inflictor of serious injury, I was troubled to read within the mother's Response to Threshold Findings, the assertion that she had seen both K and H trying to pick E up around the chest or lower chest area but she did not know if this could account for the injuries. Within her police interview, the mother was asked whether H had ever picked E up. She replied, "No, never" and "No" in response to a similar question about K. Both claims cannot be right.
57. In evidence, the mother said her "head was everywhere" during the interview with the police and her solicitor had just told her, "Do your best". It seems to me that the mother's clear and unambiguous denial of the children picking E up is the more likely scenario; and that her attempt to infer they may have caused rib fractures is both ridiculous and again arouses suspicion that she was seeking to deflect attention onto others because she herself was responsible.
58. Of much lesser moment but nonetheless worthy of inclusion here is the mother's odd behaviour on the night of E's admission to hospital. The recording of the 999 call is illuminating for the quite 'matter of fact' and detached manner in which she relayed the information about E's collapse. She said in an even and unflustered way, "… my partner's holding her but she's completely KO'd; pure white I think she's died". A few seconds later, she said, "she's just been sick about five minutes ago … not even that and now she's completely KO'd".
59. The mother was noted to be tearful but calm by a neighbour at the time the ambulance arrived. She did not, according to the ambulance personnel, wave or indicate to them when they pulled up outside the family home.
60. At about 2 am on 23^rd October when they arrived at the John Radcliffe Hospital, Dr Swinson noted that although the father seemed stressed, neither parent appeared to have been crying. 40 minutes after their arrival at the hospital, Dr Swinson was surprised to find the parents asleep in the relatives' room. 20 minutes after being taken to see E in the ICU, the parents requested keys to their accommodation where they went and remained until the following morning.
61. On the mother's behalf, it is suggested she has been "very brave" in accepting that E died as the result of inflicted injury; that insofar as the mother is concerned the medical evidence is "very clear;" and that she has been consistent within the proceedings in her stance as to what happened. Mr Archer was right to draw my attention to the document drafted as recently as 24^th September in which, on the mother's behalf, Miss Mitchell describes – for example – her client's lack of knowledge and inability to speculate as to how E sustained her fatal injuries but mentions the resuscitative shake as the only event which might explain what occurred. An overall reading of the mother's document leaves me far from convinced that in fact she has been as consistent as suggested.

The parents' relationship: potential for collusion

62. Turning to a different theme, I should relate what is known about the way in which the parents have conducted their relationship in the 12 months since E died because of its likely relevance to the issue of potential collusion.
63. There were a few periods when the mother went to stay with her grandmother, notably for a while over Christmas 2011, and for a night or two following the father being charged with manslaughter at the end of July. However, my strong sense is that until 11^th September this year – so 6 weeks before this hearing began – the parents were a couple who lived together for the majority of the time. They were together at the time when their December statements were being prepared; and until very recently indeed, they seemed to be suggesting an identical case in relation to almost every contentious issue.
64. On Tuesday of last week, 23^rd October, the parents met up by chance, it is said, on the platform at Holborn station. They travelled together on the Underground to Ealing Broadway and for a while sat with one another in a park. According to both of them, their conversation included expression of a shared wish that they could go back to being a normal family again. The mother agreed that the father had said he missed and still loved her; and also that his head "was all over the place" with everything that was going on. The mother had said to him that she "felt the same way" but explained in evidence she did not love him as she had before. She continued by saying it felt as if she had lost everything – E, the kids; she is "still in shock", her "mind is all over the place" so returning to him was as much for comfort as anything.
65. At the end of it all, I was left far from convinced that the parents, in fact, have separated or that their physical separation of the last six weeks is anything more than an arrangement which has suited the mother, in particular, in the period preceding this hearing. I gained no sense that there has been an emotional separation; quite the reverse. Both clearly retain strong feelings for one another. Neither gave a description of any emotional disengagement each from the other. The reverse is the case.
66. They have weathered the very considerable adversities of the last year, for the most part, together. Events a week last Tuesday suggest there must be a strong possibility that they will resume their partnership so soon as this hearing is over.

The parents as witnesses and more generally

67. Finally in this part of my judgment, I turn to consider the parents as witnesses whilst recognising how foolish it would be to ascribe responsibility or, for that matter, innocence on the basis of presentation in the witness box. Miss Mitchell recognises that the mother would seem to be "very vulnerable and child-like". Miss Mitchell invites me to accept that the father was the dominant, controlling parent and prays in aid the maternal grandfather's police statement in which he comments that the father was controlling. It should also be recognised though, that Mr F remarked favourably upon the quality of the parents' relationship with one another, saying it was good, as well as to how well they interacted with their children.
68. Ultimately, I'm far from convinced that the father is / was the domineering character Miss Mitchell suggested not least because that was not the impression created by the mother's evidence. At one point, in chief, she said the father had never assaulted her. 30 seconds later she said he had hit her in the past; and she accepts throwing a glass ashtray at his head which hit him causing him, he says, to bleed.
69. There are so many peculiarities in relation to the mother's responses to what is recorded in her medical records about possible domestic violence that it is really quite impossible to know what was reality and what arose out of sympathetic questions directed at a vulnerable young woman. For sure, it would seem that some of the most prejudicial comments which had been thought to relate to the father and a prison sentence have nothing whatever to do with him. Those extracts concern a young man, B, who was known to the mother as a friend but not a boyfriend. Any comparison of the records with the evidence given by the mother suggests that some really quite bizarre things were being said and recorded which may have had very little to do with the truth.
70. It was difficult to hear much of what the mother said in evidence because, for the majority of the time, she spoke extremely softly and in a very high-pitched voice. Everyone in court strained to hear what she said – a phenomenon which lasted throughout the many hours of her testimony which, of itself, is quite unusual. Ordinarily, in my experience, the extremely nervous witness relaxes somewhat as the process wears on and as s/he becomes just a little more confident about speaking in such unfamiliar surroundings. The mother remained seemingly terrified throughout. There never was a time when she appeared to be less on edge.
71. The father was far more forthcoming, confident and prepared to answer questions. He also seemed to me to be much better attuned to and sympathetic towards the children – never better demonstrated than when he said how much he disagreed with the mother's rejecting behaviour towards H after E's death; and in his reaction to the mother's behaviour when she threw H into his pushchair, as I'm sure she did, in about September last year.
72. As time went on, during the father's evidence, he became if anything too eager to provide his response so that I was repeatedly asking him to stop cutting across the question. I am afraid to say that the father is probably not very bright. I doubt he had the slightest idea as to why his initial accounts to the paramedics and doctors are or might be so significant. I question whether in fact he has been able to understand the medical evidence sufficiently well to see that E could well have been injured by the mother whilst he was in the bathroom. He may have retreated into 'mantra' style evidence of what happened when he shook E so as to revive her because he truly believes or has been led to believe that what he did in trying to elicit a response caused her collapse. He may have thought that by so doing he had the best chance of emerging unscathed. In simpler terms, he probably believed that he (and also the mother) would be in less trouble if he stuck to what was in his statement. But most of that is speculation, as I freely admit.

The 'resuscitative shake'

73. One thing though should be made abundantly clear. It is that I am as sure as I can be the father did not cause E's collapse and subsequent death when he shook so as to try to resuscitate her. In all probability, E was already gravely injured by that time. Whether he or the mother was responsible for what had happened just a few minutes earlier when she sustained devastating trauma is impossible for me to say. The evidence does not justify a finding one way or the other.

Collusion or ignorance?

74. Whichever parent is truly innocent of wrongdoing should have realised, by the simple application of logic, that the other must have been responsible. They have remained as a couple, in emotional terms, right up to the present time which leads inexorably to a conclusion that they may be intent upon conspiring together to suppress the truth. The only other possibility is that the innocent parent is too intellectually limited to appreciate the reality of the other's guilt.

Failure to protect?

75. It only remains for me to say that in the light of my findings as to responsibility for the infliction of injury it is very largely unnecessary to deal with the local authority's allegation that the non perpetrator must have been responsible for failing to protect E. All I would say is that the medical evidence, particularly the opinion of Dr Sprigg, does not support a conclusion that the parent who did not inflict injury must nonetheless be seen as having failed to protect. The symptoms and signs in the hours and days following upon the earlier rib and tibial fractures are non specific and would not necessarily have been obvious to the non perpetrator. A vigilant and attuned parent could have picked up that when s/he grasped the infant around her rib cage or grasped her ankle whilst changing a nappy there was pain and discomfort. Equally well, s/he might have concluded there was some other perfectly explicable reason why E was irritable.

Finally

76. Finally, just this – hearings of this kind do mark a watershed in the aftermath of a child's death. For the very first time, usually, events come under the microscope. Material from a wide variety of sources is closely examined including, of course, the accounts of those who were looking after the baby at the time. Parents are obliged to confront the enormity of what happened when for months they may have been trying to push memories away. But a judge can only make decisions about what happened on the basis of information supplied.
77. Sometimes, rarely, new and highly relevant material emerges in the aftermath of a hearing like this. If that were to happen, then I need hardly say I would be prepared to look again at my findings. If there was good reason to come to different conclusions then, in the interests of K and H, I would surely do so. From their perspective, nothing could be more detrimental than that they are deprived of an upbringing with the parent who is truly innocent because of a lack of evidential clarity.