England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
CARLISLE DISTRICT REGISTRY

		28 March 2014

Mr Justice Peter Jackson:

1. These proceedings concern five of the seven children of a 29 year old mother. The children, in respect of whom Cumbria County Council seeks care orders, are three girls – AM (10), J (7) and A (nearly 6) – and two boys – C (3) and S (2).
2. The mother's other children are her daughters PM (13) and P, S's twin sister, who was born on 20 October 2011 and died on 12 December 2012 at the age of 13 months.
3. P's death while in the care of her parents was sudden and unexpected. On admission to hospital and at post-mortem she was found to have an earlier fracture of her right lower leg and suspected acute injuries in the region of the anus. The main purpose of this hearing is an inquiry into the causes and circumstances of these injuries. The parents deny causing any harm to P whatsoever.
4. The mother was only 16 years old when PM was born. In January 2002, she was found to be drunk in charge of the child. Care proceedings were issued and PM was later adopted.
5. AM was born when the mother was 19. Care proceedings were issued in 2003 and resulted in a care order, with AM being placed with the mother. The placement was successful and the care order was discharged in 2007. Until P's death, none of the other children was subject to statutory intervention by the local authority and the mother cared for them all satisfactorily. There were no concerns reported by health, education or social agencies.
6. AM's father has no contact with her and plays no part in these proceedings. J and A's father is believed to be deceased.
7. The father of C, S and P is 46 years old. I will refer to him as 'the father'. He has parental responsibility for those children by being named on their birth certificates. He has two older children by previous relationships but does not have contact with either child.
8. The father was informally interviewed by the police in 1995. No independent documentation was presented to the Court, but the father's account is that this arose from his association with someone who may have committed offences against children. In 2003 an unrelated allegation was made by his then stepson. He was not informed of that allegation, which was retracted and not professionally investigated. I mention these sketchy and unproven matters only because they feature in the history of the investigation into P's death. They have no other relevance.

The allegations against the parents

9. The essential findings sought by the local authority are that:

• The fractures to P's leg were inflicted by the mother or the father.

• Each parent was culpable in failing to seek medical attention for the leg injury.

• The injuries to the anus were caused by a penetrative assault by the father on the night of her death.

• On the totality of the evidence, P died as a result of that assault.

10. The mother denies causing the leg injury, or being aware of it, or failing to seek medical attention for it. It is accepted on her behalf that she should have noticed that something was wrong with the leg, though this did not come from her in evidence. The mother now supports the local authority's allegations against the father in relation to the events surrounding P's death.
11. The father strongly denies each of the allegations.
12. The Children's Guardian submits that the injury to the leg is more likely to be non-accidental than accidental, and that neither parent can be excluded as a possible perpetrator. On her behalf it is submitted that, depending upon the conclusions reached about the post-mortem examination, the court can conclude that P was sexually assaulted and that her death resulted shortly thereafter.

The law

13. While these allegations are extremely serious, the normal approach to findings of fact applies. The burden of proof remains throughout upon the local authority. The parents do not have to prove anything. The standard of proof is the balance of probabilities.
14. In A Local Authority v (1) A Mother (2) A Father (3) L & M (Children, by their Children's Guardian) [2013] EWHC 1569 (Fam), Mr Justice Baker summarised the legal principles in this way:

1. First, the burden of proof lies at all times with the local authority.

2. Secondly, the standard of proof is the balance of probabilities.

3. Third, findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation …

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

5. Fifthly ... whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision.

6. Sixth, cases involving an allegation of non-accidental injury often involve a multidisciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others.

7. Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability.

8. Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720).

9. Ninth, as observed by Dame Elizabeth Butler-Sloss in an earlier case "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 would throw a light into corners that are at present dark." This principle, inter alia, was drawn from the decision of the Court of Appeal in the criminal case of R v Cannings [2004] EWCA 1 Crim. In that case a mother had been convicted of the murder of her two children who had simply stopped breathing. The mother's two other children had experienced apparent life threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was no evidence other than repeated incidents of breathing having ceased. There was serious disagreement between experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances, the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable possible explanation. In the course of his judgment, Judge LJ (as he then was) observed: "What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge."

10. With regard to this latter point, recent case law has emphasised the importance of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause. The possibility was articulated by Moses LJ in R v Henderson-Butler and Oyediran [2010] EWCA Crim. 126 at paragraph 1: "Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown."

11. In Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam), Hedley J, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further. At paragraph 10, he observed: "A temptation there described is ever present in Family proceedings too and, in my judgment, should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.

12. Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator. In order to make a finding that a particular person was the perpetrator of nonaccidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so."

15. I adopt this framework in the present case, which engages every one of these principles to a greater or lesser extent.

Family background

16. The mother and father are not married. They first met in 2008, formed a relationship in 2009 and moved in together in early 2010. The mother became pregnant with C a short time after. They separated and reunited frequently, with the father moving out to stay with friends but keeping in touch and seeing his children regularly. From the beginning of September 2012, until P's death in December, the parents and children were all together under the same roof.
17. S and P were born by caesarian section on 20 October 2011. There were no complications. P was seen by the health visitor when required and all immunisations were up to date. She was generally a healthy child. She was never referred for acute or chronic constipation.
18. In April 2012, the father, who is not circumcised, underwent a vasectomy. He did not go for a follow-up appointment to establish whether he had become sterile. At all events, the operation did not affect his sex drive or his ability to ejaculate seminal fluid.
19. The parents had been living apart when the twins were born, but by the summer of 2012 they had formed a plan to move as a family from Cumbria to Kent. The father made two reconnaissance trips, the second one being between 17 September and 2 October. In his absence, the mother had the care of the twins.

P's death

20. On 11 December 2012, P got up at her usual time of around 6.00 to 7.00 am and had breakfast as normal. The mother says she seemed to have a bit of a cold and she slept for rather longer than usual during the day. C, S and P were left at home with the father while the mother took AM, J and A to school, and then returned home. A friend of the mother's called round with her daughter. P was put in her cot to sleep and woken by her mother. The mother says she felt warm and that she gave her Calpol. The mother then left to collect the children from school, leaving P and S with the father. When she returned, the maternal grandparents came round to the house with their three grandchildren. They stayed for about half an hour. After they left the only people in the home for the rest of the night were the parents and the six children.
21. P was given her tea. She was changed and put to bed around her usual time of 7.00 to 7.30 pm. I find that it was the father who changed her and the mother who put her into her cot. Having regard to the garments that P was wearing when admitted to hospital, I find that the mother is probably correct in her memory that she was put to bed wearing a nappy, a vest that fastened between the legs with poppers and a pair of pyjamas. I prefer this to the father's statements that she was wearing a babygro or an all in one suit.
22. There are three upstairs bedrooms. The three older children shared one bedroom. P slept alone in a box room in a cot. C and S slept in cots in the parents' bedroom.
23. By about 8.00 pm the children were all in bed. The mother, who often slept downstairs on a large settee, carried out some household tasks and then watched television. At about 9.00 pm the father went upstairs with his laptop and went to bed. He followed some sports results on which he had gambled and then watched pornography, which he describes as involving adults, before falling asleep at about 10.00 pm.
24. At about 2.00 am the mother, who had not yet been to sleep, went upstairs to fetch the laptop for her own use. She may have got into the bed briefly but, noticing that S was snuffly, she took him downstairs to sleep with her. After using the laptop for a short while, she fell asleep. At some point in the night, A, who is a poor sleeper, came downstairs to sleep on the settee.
25. The father says that he was woken in the early hours by a scream or a cry from P. He went into her room and found her sitting in the corner of her cot. She was rigid and stiff and he thought that she may have had a bad dream. He picked her up and cuddled her and took her to his room. He sat down on the edge of the bed with P on his lap. He tried to give her her dummy, but her teeth were clenched and she would not open her mouth. He thought that she was trying to pass a stool and he undid her clothing to see what was in her nappy. He describes loosening the sticky tabs on the nappy. He thought from the smell that she had passed a stool. She became relaxed and stopped screaming. He laid her on the bed crossways with her head on a pillow. At this point AM woke and shouted 'P's woke me up' and came to the doorway of her room. He told her to go back to sleep. He then went downstairs to fetch a clean nappy. While there, he exchanged a few words with the mother about what he was doing, and then went back upstairs. P was quiet so he did not disturb her but instead got into bed himself. After a few minutes he for some reason put out his hand and touched P. He realised that something was wrong. She was limp. He picked her up and ran downstairs, calling for the mother to get an ambulance.
26. The mother says that she was woken by P crying out loud and then heard the father upstairs. Thinking that he was dealing with her, she went back to sleep. She was aware of him coming downstairs and mentioning the time and that P had pooed. She then drifted back to sleep and was woken by the father shouting. She immediately got up and met him at the bottom of the stairs, carrying P in his arms.
27. At 5.56 am the mother called 999. The father attempted to perform CPR, placing P on a chair and then on the floor. He removed her nappy and pulled up her clothing. An ambulance arrived at 6.05 am. The paramedic describes P as being very pale, waxy and obviously not breathing. She picked her up and ran out of the door with her. On picking P up she noticed she was slippery and wet around her bottom. The paramedic was wearing gloves which were thrown away in the ambulance.
28. P was taken to hospital in the ambulance, accompanied by her father. On the journey, the paramedic and the father continued to attempt resuscitation. The cardiac monitor showed that P's heart was not beating.
29. At 6.11 am the ambulance arrived at the hospital. A staff nurse collected P from the ambulance and took her immediately to the resuscitation room.
30. After P was collected from the ambulance, the paramedic who had been with her saw a mixture of blood and faeces on the stretcher sheet. The sheet was not preserved. She went into the resuscitation room and noticed there was blood on P's bottom. She went to the relatives' room and spoke to the father. She mentioned the blood and recalls the father saying P had been constipated for the last couple of days and had only been passing light brown 'rabbit droppings'.
31. Present in the resuscitation room during the attempt to resuscitate P were Dr B, Locum Consultant Paediatrician who led, Dr A, Associate Specialist Anaesthetist, Dr M, Associate Specialist in Accident and Emergency, and a number of nurses.
32. Unsuccessful attempts to resuscitate P continued for about 57 minutes, during which time she received fluids and adrenaline. A needle was inserted into each lower leg before venous access was obtained through the left femoral area. Difficulties were experienced by Dr A in the insertion of endotracheal and nasogastric tubes and in the end a tube was passed through the mouth by Dr B. The mother arrived at the hospital during the course of the resuscitation.
33. Resuscitation ceased and P was pronounced dead at 7.07 am.
34. After P was pronounced dead she was examined by Dr B. He observed fresh bright red blood in the area of the anus and some faeces. In his medical note he described the blood as "pouring from her rectum" and said that the anal opening was "large and irregular". In oral evidence Dr B (whose first language is not English) said that "dribbling" was a more accurate description than "pouring". However, because he was not asked about this for over a year, the difference of emphasis only became clear during his evidence at this hearing.
35. Sometime before 7.30 am P was moved to the children's ward. A nappy was put on her. She was then moved to the mortuary at around midday and was subsequently transferred to the Royal Manchester Children's Hospital where x-rays were taken on 14 December.

The actions of the police

36. The police were alerted to the situation and two officers arrived at the home before the ambulance left. One (PC H) remained until 7.22 am when she was relieved, while the other went on to the hospital. PC H noted a used nappy on the floor near the fireplace. This is now believed to be the last nappy worn by P.
37. The paternal aunt arrived to look after the other children. The mother then left with the grandparents to go to the hospital. At 7.40 am the grandparents returned to the property.
38. After her arrival, the aunt removed the used nappy from the floor. She placed it in a bag and put it into a bin outside, telling one of the officers that she was doing so. She describes the contents as containing shades of dark brown very runny stool, like diarrhoea. She says that "there was a lot of it, too much to fasten the nappy tightly, or it would have seeped from the sides … it was bad".
39. At 9.40 am a Crime Scene Investigator attended the property and took photographs and a video. She returned at 15.30 and took further photographs.
40. Between 3.10 and 4.15 pm four officers carried out a search of the home. Five used nappies were retrieved from the kitchen and from the outside bin but these did not include the nappy that the aunt had disposed of. After the search was completed no officers remained at the home.
41. In the meantime, P's clothing was retained at the hospital. It consisted of a grey pyjama top and a pink baby vest.
42. At 10.15 am DI S, the senior investigating officer on the scene, attended hospital with a colleague. They spoke to Dr B and saw P's body. Her clothing was removed for that purpose. They observed no visible injuries or bruising. There was no blood in her ears, nose or mouth. There was some bleeding coming from the anus which appeared when P was moved and which trickled onto her leg.
43. Both parents were spoken to at hospital. At 7.35 am Dr B spoke to the father in the presence of PC B [G22a]. At about 8.00 am Dr. B spoke to the mother in the presence of PC C [G26b].
44. During the course of the morning, the father visited the toilet to urinate on at least one occasion.
45. Between 12 noon and 4.05 pm a detailed account was taken from the father by DC C at the hospital and then at the police station [G104a]. At the conclusion, swabs were taken from the shaft and tip of the father's penis.
46. The mother's first account was taken by DC B [G122a].
47. On 14 December, a skeletal survey was performed, revealing the broken bones in the leg.
48. Following P's death, the family moved to live with the grandparents. The local authority requested the mother to supervise the father's contact with the children. On 3 January, the mother told the allocated social worker that they would be moving back home because conditions at the grandparents' home were overcrowded. In response, the parents were invited to an informal interview with police and social services the following day, when they were informed for the first time that the leg fractures had been found. Neither parent could account for them. The family was then allowed to return to the family home with the agreement of police and social workers. There was no requirement placed on the mother to supervise the father's contact with the children.
49. It was not until 9 January 2013 (four weeks after P's death) that the surviving children were medically examined. No skeletal surveys were carried out.
50. P's body was released by the Coroner and she was buried on 19 February 2013.

The post-mortem

51. HM Coroner instructed Dr Armour, Consultant Pathologist and Dr Bitetti, Consultant Paediatric Histopathologist to conduct the post-mortem. Because of their commitments, this could not take place until 17 December, five days after death.
52. Immediately before carrying out the post-mortem, Dr Armour and Dr Bitetti were orally briefed by DI S and DS C. During that discussion, mention was made of the old allegations against the father. DS C says that before embarking on the post-mortem Dr Armour referred to the leg fractures and said that she believed that this was a case of child abuse. I make no finding about this; it was not put to Dr Armour as it only emerged during cross-examination of DS C some days after Dr Armour had left the witness box. At all events, the officers and their superior officer DCI F considered the pathologist to have made a rash statement.
53. On 18 December, Dr Armour telephoned DI S to express concerns that there could have been penetration of the anus by a penis or object and that she was very worried about bruising to the thorax. She also described the fracture as being very unusual for a child of this age. Nonetheless, on the same date, DCI F refused to authorise the forensic testing of any samples or items seized, save for P's blood.
54. The pelvic organs were retained for formalin fixing and were examined by Drs Armour and Bitetti on 21 December.
55. On 24 December, Dr Armour again telephoned DI S to inform her that she did not think that death was due to natural causes but rather to an unlawful act, and that the anal injuries were due to insertion or penetration.
56. Extraordinarily, Dr Armour's report was not completed until 25 June 2013 and Dr Bitteti's final report not until 3 July 2013 (though in her case an interim report was filed in February). Dr Armour explained that in a case of this seriousness, she wanted to have all the histology results before committing herself. However, this should not have prevented her from filing an interim, albeit provisional, report.
57. The post-mortem reports identify: -

1. Healing fractures of the right fibula and the right tibia.

2. Anal injuries comprising: -

(i) distended and dilated anal orifice;

(ii) bruising/haemorrhage; and

(iii) tears and abrasions.

3. A bruise to the parametrium (the fibrous tissue that separates the supravaginal portion of
the cervix from the bladder) measuring 2.5 cm by 1 cm;

4. Bruising to the pharynx/oesophagus;

5. Nasal bleeding; and

6. Intra-alveolar haemorrhage - bleeding into the lungs.

58. The reports indicate that the cause of death is unascertained. There is no disease process evident that could account for the sudden death of P.
59. Dr Armour opines that the anal injuries result from penetration by a penis or penis-shaped object. As to cause of death, she proposes two possible mechanisms, referred to below.
60. Whether Dr. Armour's opinion is correct is heavily in dispute.

Forensic science

61. In August 2013, Mr Michael Scarborough of LGC Forensics was instructed by the police to carry out forensic tests. He reported on 21 August that tests showed P's DNA was present on the shaft of the father's penis, but there was no DNA from P on either the glans (the tip) or the coronal sulcus (where the tip and shaft join). Nor was there any blood or faecal matter on the penile swabs, as would be expected if there been insertion of the penis into the anus, though this would not be inevitable.
62. Mr Scarborough advises that there is no test that could attribute the DNA found on the father's penis to a particular bodily fluid. It is possible that the presence of DNA on the shaft of the penis is the result of secondary transfer, with the DNA finding its way onto the father's hands during attempts to resuscitate P and then being transferred to his penis during urination. DNA could have been removed from the tip of the penis by wiping or washing it, something the father says he did not do on the day in question.
63. Tests for semen on swabs taken from P's mouth proved negative. The sheet taken from P's cot proved negative for blood and for semen.
64. In November 2013, Mr Scarborough reported the results of tests for semen on swabs taken from P's anal rim and rectum. They were negative. Mr Scarborough advises that if the father's vasectomy was effective it would be more difficult to test for semen and you would not expect to find sperm cells. Any material deposited in the anus could have been washed away by blood or defecation.
65. In February 2014, Mr Scarborough reported the results of tests carried out on one of the nappies retrieved from the bin outside the property [SS/8]. No blood was found in the nappy, which contained significant amounts of DNA from P and a male other than the father, but no evidence of the father's DNA.

The parents' arrest

66. Having considered the reports of Drs Armour and Bitetti and Mr Scarborough, the police decided to arrest the parents. On 27 August 2013, they were arrested in the family home in the presence of the children. Bail conditions were imposed: the mother was to have no unsupervised contact with a child and the father was to have no contact with a child under 13 years old.
67. The parents were interviewed on 28 August. Transcripts of their interviews appear in the papers. They remain on bail.
68. The police sought further medical opinions and convened a meeting with another pathologist and a paediatrician on 10 September. No formal minute was taken, although a number of the participants took notes. The opinions expressed at that meeting do not form part of my consideration of the matter and anyhow do not advance matters.
69. The papers have been with the Crown Prosecution Service since November 2013 but no charging decision has been made. The solicitor for the police has made an application for disclosure of reports obtained in these proceedings and it would appear that a decision on whether to prosecute awaits the outcome of this hearing.

The actions of the local authority

70. The local authority held a strategy meeting chaired by an Independent Reviewing Officer on the day that P died and a series of meetings involving the police and other professionals were held at later dates. At the meeting on 12 December Dr W, the paediatrician with responsibility for safeguarding, is recorded as saying "She suffered from chronic constipation and it would be normal for the anus to be dilated and for there to be blood" and that "Chronic means 6 months or more so it is not surprising that she became ill." I have not heard from Dr W, but this view can only have come directly or indirectly from the parents or from a misunderstanding. It is wholly inaccurate, was not based on any medical evidence, and is not the version of events now put forward by the parents. However, it was accepted as fact without challenge and must have influenced many of the decisions that followed.
71. The result of the meeting was that the local authority decided to await the outcome of the police investigation before deciding what action to take in respect of the five surviving children.
72. On 9 January 2013, a further strategy meeting took place, chaired by the same Independent Reviewing Officer. The meeting was poorly attended. The outcome was a decision for 'no further action' in relation to safeguarding procedures. It was only on that date that the children were medically examined, five days after they had gone back to live at home. The findings from those examinations were within normal limits.
73. The local authority approached its safeguarding responsibility by asking the grandparents and the mother to supervise the father's contact with the children. This was explained as routine procedure since the father was the last person to see P alive. No formal arrangement was entered into and it is difficult to see how this plan could have been effective either before or after March 2013, when the parents again separated for a time.
74. On 2 August, social services became aware that the father was staying at the home. A polite letter was written by the allocated social worker requesting that unsupervised contact should not be allowed. Following the parents' arrest on 27 August, arrangements were made for the maternal grandmother to supervise the children's contact with the mother. On 25 September, the local authority became concerned that the mother was breaching her bail conditions by having unsupervised contact with the children. Once again, the local authority decided not to issue care proceedings.
75. The mother was asked to sign an agreement with the local authority but refused to do so, feeling that the restrictions that required her to be supervised at all times were unnecessary. She made this position clear on 17 October.
76. It was only then that the local authority moved to bring proceedings in respect of all five children on 23 October 2013. The clear inference is that it was only the position taken by the mother that drove the local authority to take this step. By then it was over 10 months since P's death.
77. On 8 November, interim care orders were made in respect of all the children. The original interim care plans were for them to be divided between several foster placements. After discussion with the Children's Guardian, the plans were changed and the children were placed with their grandmother who had been given temporary approval as a local authority foster carer. However, the grandparents, who were already looking after the three children of the mother's sister, came to find the task of looking after so many children too much. The five children were moved on 8 January 2014 to a single placement out of county where they are having regular contact with the mother and appear to be thriving. The father has no contact at present owing to his bail conditions.

These proceedings

78. In contrast to earlier events, these proceedings have been rapid. The assembly of the parties' evidence, the obtaining of police disclosure and the gathering of expert evidence represented a very considerable challenge, but it has been met. This hearing could not have been effective without the outstanding cooperation and expertise shown by the parties and their representatives, leading and junior counsel and solicitors. I particularly pay tribute to the efficiency of the local authority solicitor, Ms Haughin, who gathered a very large amount of witness evidence within a very limited timescale, and to the Guardian's solicitor, Mr Lewis, who has marshalled the expert evidence. The hearing itself has been conducted by the advocates with an economical focus on the real issues, both orally and in writing.
79. Further expert evidence has been commissioned from Dr Sprigg (consultant paediatric radiologist) and Mr Scarborough (forensic scientist), both of whom had been previously consulted by the police. Dr Stephen Leadbeatter (consultant pathologist), and Dr Victoria Evans (consultant forensic physician) were also jointly instructed. An experts' meeting took place on 25 February 2014 and a schedule of agreement and disagreement resulted.
80. Oral evidence was given over the course of eight days by:

Dr Alison Armour, consultant pathologist

Dr Stefania Bitetti, consultant paediatric histopathologist

Dr Stephen Leadbeatter, consultant pathologist

Dr Victoria Evans, consultant forensic paediatrician

Dr Alan Sprigg, consultant paediatric radiologist

Ms L, paramedic

Ms B, ambulance driver

Dr B, locum consultant paediatrician

Dr M, associate accident and emergency specialist

Dr A, specialist anaesthetist

Nurse M

Nurse V

Nurse C

Sister W

Detective Inspector S

Detective Sergeant C

Detective Constable C

Police Constable B

Police Constable L

Police Constable H

Mr Michael Scarborough, forensic scientist

The mother

The father

81. Counsel have presented detailed written submissions and supplemented them orally. The parties have produced three agreed documents that have in no way blunted the sharply contrasting submissions; on the contrary the way in which the evidence has been collated allows for closer attention to be paid to the detail upon which so much turns in this case. The documents are:

• A narrative document

• A schedule of the medical evidence

• A schedule setting out the Guardian's analysis of the failures of process

Concerns about the professional response to P's death

82. This hearing is not an inquiry into the performance of the police or the local authority. However, during the evidence, it became apparent that actions taken or not taken at the time and in the months that followed are of potential relevance to this court's ability to make findings of fact. I will enumerate the features of concern so that their relevance to my findings can be understood.
83. A further purpose is to enable those with ultimate responsibility for these services to decide whether action is required in the context of this case or generally.
84. I will direct the Guardian's solicitor to send copies of this judgment (and in the case of those marked * the Guardian's schedule of failures of process) under cover of a letter making clear that there must be no onward disclosure to others without the permission of the court.

• The Chief Executive of Cumbria County Council

• The Statutory Lead Member for Children's Services, Cumbria County Council

• The Chair of Cumbria County Council's Scrutiny Advisory Board - Children and Young People *

• The IRO service manager for Cumbria

• Ofsted

• The Independent Chair of the Cumbria Local Safeguarding Children's Board *

• The Department of Education (for the attention of the national panel of independent experts of Serious Case Reviews)

• The Chief Constable of Cumbria Constabulary *

• The Police and Crime Commissioner for Cumbria

• The Independent Police Complaints Commission

• The Crown Prosecution Service *

• The Chair of the University Hospitals of Morecambe Bay NHS Foundation Trust

• The Care Quality Commission

• HM Coroner *

• The Chief Coroner for England and Wales

• Drs Armour, Bitetti, Leadbeatter, Sprigg and Evans

85. The observations below are made in the context of these good practice protocols and regulations, which appear to have had no effect in this case:

• The national multi-agency protocol: Sudden Unexpected Death in Infancy (SUDI), known as 'the Kennedy Protocol'. This provides a framework for the collaborative investigation of all unexpected deaths in infants and children up to the age of 2 years. The emphasis is on finding the cause of an infant's death, incorporating both medical and forensic investigation. Responsibility for oversight of the operation of the protocol rests with the Local Safeguarding Children Board.

• Cumbria LSCB's own complementary protocol at the time of P's death: Sudden and Unexpected Deaths in Children and Young Persons. This guidance, since updated, applied to the sudden and unexpected death of a child under the age of 18 years.

• The Local Safeguarding Children Boards Regulations 2006, which set out the criteria for holding serious case reviews.

Cumbria Constabulary

86. It can come as no surprise that, well over a year since the death of this child, no decision has been taken about a criminal prosecution. As a result of the police view that Dr Armour may have jumped to conclusions, a decision was then taken by senior officers not to investigate until her report was received. Due to the extreme delay in that process, there was no real investigation into P's death for nine months. Such minimal investigation as thereafter took place was inevitably affected by the delay and by actions not taken at an earlier stage. Instances may include:

• Items at hospital not preserved for forensic analysis: ambulance sheet, paramedic's gloves, hospital stretcher sheet.

• Items at home not preserved for forensic analysis: P's pillow, her clothing (pyjama bottoms if any), the parents' sheet, any possibly penetrative item, the father's computer.

• Scene not secured: loss of P's last nappy despite the presence of police officers.

• Decision by DI S and DCI F not to visit the home, despite it being nearby. According to the national protocol, a senior officer should immediately attend the home to take charge of the investigation and ensure that evidence is intelligently preserved.

• No reconstruction with the parents at home, so that their accounts could be understood and investigations focused.

• No forensic medical examination at the time of death. Swabs were not taken until post-mortem. Under the Cumbria protocol, police are entitled to take anal swabs automatically. Delay in taking swabs may prejudice the forensic analysis.

• No engagement of a paediatrician with specialist knowledge of investigating sexual abuse, in order for there to be a physical examination of the child, a viewing of the home and a report for the pathologist.

• Dr Armour's initial views were not clearly passed on to the local authority for safeguarding purposes.

• The parents were not interviewed formally until August 2013.

• No analysis of either parent's mobile telephone or Facebook accounts.

• Samples were not sent for analysis until after receipt of Dr Armour's report. For example, the swabs from the father's penis, taken on 12 December 2012, were not sent for analysis until 2 August 2013.

• No statements taken from any witnesses (paramedics, nurses, doctors, family members) until September 2013, at which point three statements were taken (from the ambulance crew and from Dr B).

87. Many of these matters were canvassed during the evidence of DI S, who led the enquiry at the outset, and she was driven with evident reluctance to accept a number of failings in the inquiry. Evidence was not taken from DCI F, the senior officer with overall responsibility for the investigation. He may therefore have further information to provide.

Cumbria County Council

88. Given the history, it can likewise come as no surprise that, well over a year after P's death, the family still awaits a decision about the future of the other children.
89. At the outset of the proceedings, the local authority was directed to file a statement explaining its actions. This led to a full account from the Assistant Director of Children's Services. In it, she accepts that

• Legal advice should have been taken at the outset, and certainly before the family returned home. In fact, the first time that legal advice was taken in this troubling and extremely serious case was on 30 August 2013. Even this was reactive (to the parents' arrest) and even then there was no decision to issue proceedings for another eight weeks.

• Proceedings should have been initiated as soon as it became clear that P had suffered injury prior to her death. Had that happened, the court would have been able to get a grip on the matter and ensure that proper investigations were carried out much nearer to the time of P's death. The local authority shares responsibility with the police for the fact that this did not happen.

• Even when legal advice was given on 23 September that care proceedings should be issued, a decision of the Legal and Placement Panel two days later rejected this advice. Another month passed before proceedings were issued in reaction to the mother's rejection of supervision.

90. I would add that the children should have immediately been medically examined and that in S's case, a skeletal survey should have been performed. Furthermore, the local authority's expectation that the mother should supervise the father in relation to this number of children was in my view wholly unrealistic, not to say unfair to her.
91. In the result, the children were returned home without any effective child protection measures being taken. Fortunately there is no evidence of them suffering harm in the ten month period before they were removed from the parents' care.

The Coronial investigation

92. It is not clear, and I have not asked, how HM Coroner proceeded in this matter. Concern has rightly been raised about the gross delay in production of the pathology reports. Cumbria's protocol expects that within 48 hours of the post-mortem, the pathologist will provide preliminary findings to the Coroner. In this case, Dr Armour said that she wanted to have every piece of information before she committed herself. In particular, she was awaiting the results of routine histology on the leg bones. She did not accept the suggestion that the delay was unacceptable. Bearing in mind the interests of the surviving children, that was not a practical approach, though she was not to know that the consequence of her silence was that no other investigation was taking place.
93. I have no information about the decision of the coroner to release for burial the body of a child who died in unexplained and possibly suspicious circumstances when a pathology report had not been received, a decision precluding the possibility of a second post-mortem.

The NHS Trust

94. In the light of the expert evidence, and having heard from the paramedics, doctors and nurses who were present on 12 December, it is apparent that they did everything they possibly could to resuscitate P. It is sadly likely that by the time she came into their hands she had already died.
95. Unfortunately, Dr B, the locum paediatrician, had only been employed at the hospital for less than three weeks. He was not aware of either the national or local protocols for infant deaths. He was therefore unable to lead the forensic medical investigation in an appropriate manner.
96. Neither Dr B nor, more pertinently, Dr W, completed the workbook provided as part of the Cumbria protocol. This would have ensured a methodical examination at the time of death and the timely taking of swabs.

The Local Safeguarding Children Board

97. Regulation 5 of the Local Safeguarding Children Boards Regulations 2006 sets out the functions of LSCBs. This includes the requirement to undertake reviews of serious cases in specified circumstances. Regulation 5 provides that a review must be held where abuse or neglect of a child is known or suspected and the child has died. This is mandatory: see page 66 of the statutory guidance in "Working together to safeguard children" (March 2013). Moreover, a review may be held even when the mandatory requirement does not apply.
98. A sub-group of the Cumbria Local Safeguarding Children Board met on 4 February 2014. The meeting took place at police headquarters and was attended by six persons. The minutes show that DCI F, the principal investigating officer, played a prominent part, although he invited another member to lead the discussion. The conclusion was that the criteria for a serious case review were not met, although the matter would be reviewed in six months following the outcome of the family proceedings and any criminal proceedings.
99. It will certainly be appropriate for the conclusion of the subgroup of the LSCB to be independently reviewed as it would appear to conflict with the regulations.

Collective responsibility

100. While I reach no conclusions, consideration by others of the above matters may lead to the view that P's death did not receive the professional response to which she and her family were entitled.

The reasons for P's injuries and death

101. Against this backdrop, I turn to the medical evidence and the other evidence concerning the allegations of abuse.

The leg injury

102. All the doctors agree that transverse fractures of the right fibula and tibia are seen in the skeletal survey performed at post-mortem. Dr Sprigg (whose opinion is accepted by the other doctors) has confirmed them radiologically. There is a major fracture to the fibula and a minor fracture to the tibia (the larger bone) with healing reaction in both bones. The fractures are between 6 weeks and 3 months old and therefore occurred between 12 September and 2 November 2012.
103. Professor Freemont has confirmed the fractures histologically and advises that there is no metabolic or other bone disorder that could have predisposed P to easy fracturing.
104. Dr Sprigg, Dr Evans and Professor Freemont consider that the fractures could have been caused accidentally or non-accidentally. They are likely to have been caused as part of one significant incident. Dr Sprigg advises that, whether accidental or non-accidental, the fractures in combination are very unusual, particularly in a child of P's age. They are different to a typical toddler fracture. Small children playing do not produce that much momentum. An accidental fall by an older child onto P is unlikely to have caused this. He also notes that it is quite unusual to find a fracture in a baby who dies for other reasons.
105. Dr Sprigg advises that the mechanism of injury is difficult to determine. Considerable force would have been required to cause them. They could be due to a direct blow or bending, from being stood on by an adult or from a blow to the outer aspect of the calf. Or it could be a grab injury, caused if a frustrated carer grabbed the calf and moved it to the side in one forceful pull.
106. Dr Sprigg and Dr Evans advise that fractures hurt and the child will let you know by crying in pain. P would probably have continued crying for many minutes. It would have been obvious to any carer witnessing the incident that she had suffered a significant injury. For some days thereafter, anyone performing care tasks (including nappy changing, dressing and undressing) would have noticed that she was in discomfort. To the extent that P was mobile, a reduction in her mobility and a favouring of the other leg would have been apparent. However if she was crawling she may have got around quite well as the knee bones are intact. Dr Sprigg would not criticise a carer for not noticing swelling at this site.
107. The parents were first informed of these findings on 4 January 2013, three weeks after P's death and about three months after the date of injury. They did not describe any incident that might have caused it. Nor could they recall anything abnormal about P's behaviour that indicated that she had been hurt. The mother says that if she had had any concerns, she would have gone to the doctor straight away.
108. As well as being in the care of her parents, P spent regular time with her paternal aunt and her maternal grandparents. None of them has reported any sign of an injury.
109. The local authority's case is that the fractures are non-accidental injuries inflicted by either the mother or the father. Further, neither parent sought medical attention for the injury.
110. The local authority starts from the proposition that P was for the great majority of the time in the care of her parents over the six weeks in question, though it acknowledges that the father was absent for a fortnight of this period. It also accepts that there were relatively short periods of time when P would have been in the care of her maternal grandparents, and her paternal aunt and cousin. However, it argues (with the support of the Guardian) that there is no real possibility that an injury was caused on these occasions.
111. The local authority bases its case that this was a non-accidental injury on the fact that there is no account of any accidental event. This, it says, suggests concealment. Of course, unless the injury occurred during the fortnight when the father was absent, the concealment would probably have to involve both parents.
112. The local authority further contends that, even if the injury had been caused elsewhere, P would have shown signs of it when she returned to the parents. The fact that they did not report this represents culpable neglect or a serious lack of vigilance.
113. Any major limb fracture to a non-ambulant child is of great concern in the absence of an accidental history. On the face of it, the local authority and the Guardian present a strong case. As a matter of common sense, an injury of this kind calls for an explanation. Nevertheless, the burden of proving the allegation remains upon the local authority. In many circumstances, proof of a broken limb (particularly where a fracture is associated with non-accidental injury) combined with the absence of a reasonable explanation may be sufficient. However, each case depends upon its facts.
114. The peculiarity of this case lies in the course of the investigation. The existence of the fractures was discovered on 14 December. The parents were informed of them on 4 January. They offered no explanation and the surviving children went home on the same date. No effort was made to investigate the injury at a date that was relatively near to the time in question (September/October 2012). It was not until October 2013 that Dr Sprigg reported. All this was a result of the tardiness of the police and the local authority.
115. As part of this court's inquiry, it has heard from both parents. Although in the overall context of the case, there are strong reasons for caution when assessing their evidence, I heard nothing to suggest that they knew and had concealed how the fractures had been caused. It is of course statistically far more likely that they occurred in the care of one or other or both of the parents than of a third party. However, I find it hard to arrive at the conclusion that this was a non-accidental injury by process of logic where there is no reliable evidence relating to the child's actual circumstances at the time.
116. The complete absence of any proper investigation into this injury until a year later, with the child's death intervening, leads me to the conclusion that we simply do not know how this injury occurred. It may have been inflicted cruelly, negligently or accidentally by one or other of the parents, or it may have been an accident that was covered up, but neither possibility has been proved to my satisfaction. Whether it may have occurred when P was with a third party, unlikely though that seems, has never been investigated. The injury is not of a type that is specific for ill-treatment as opposed to accident. The overall family circumstances do not suggest an environment in which physical violence was regularly meted out. There was no recent history of concern from school or health professionals. No external injuries were found on any of the other five children. Rather, the picture is of a small and very crowded house with a great deal of coming and going and rumbustious play. Because the injury was not discovered at the time, it is impossible to fix it in time or place or to ascribe responsibility.
117. Even if I am wrong about this, it would not be safe to assume that the injury occurred during the father's absence. There is no basis upon which responsibility could be attributed to one parent rather than the other.
118. In relation to the question of failure to seek medical attention, the medical evidence, which I accept, is that P would have been likely to show direct signs of the injury in the hours and a few days afterwards. I find that, whether or not they knew that P had been injured, the parents did not act as any reasonable parent would have done by noticing and taking appropriate action in relation to her symptoms. I am unable to say whether they knew something was wrong but did not act, or whether they culpably failed to notice. The latter is a possibility, given the nature of the household and the number of children. This was nonetheless significantly neglectful parenting that crosses the threshold for statutory intervention and I cannot exclude either parent from this finding.
119. I therefore find that the local authority has not proved that the fractures were caused by one or other of the parents, whether deliberately, negligently or by accident, but that it has established that the parents failed to obtain medical care for P in relation to a serious injury that they either knew or ought to have known she had suffered.
120. Having reached this conclusion, I further conclude that the evidence in relation to the leg fracture is of no assistance in my assessment of the cause of P's presentation at death. The two conditions are different in time and type and I cannot in this case bring findings from one to bear upon the other.

The anal findings

121. The first task is to identify what physical findings were established at the post-mortem examination and in the subsequent histopathology.
122. Before descending to the detail of their discourse, I should record that in their different ways Dr Armour and Dr Leadbeatter were careful and helpful witnesses. Although Dr Armour holds a clear opinion about the nature of the post-mortem findings, I reject any suggestion that she has jumped to conclusions before, during or after the examination. While I am critical of the unconscionable delay in the production of her report, her evidence was clear and considered and I find that she approached her task with seriousness and skill. Likewise, Dr Leadbeatter gave valuable assistance. He was a cautious witness who measured his words with exactitude, a very proper approach in a case of this kind. In that I am bound in a very few instances to prefer the opinion of one pathologist over that of the other, this implies no criticism of the other.
123. The appearances identified by Dr Armour are these:

• Distended and dilated anal orifice

• Bruising to the external anal sphincter

• Flame haemorrhages to the rectum

• Anal tears

• A bruise to the right parametrium (the fibrous tissue that separates the supravaginal portion of the cervix from the bladder)

124. Dr Leadbeatter is not comfortable with the following findings of Dr Armour:-

• The anal dilation being due to trauma rather than post-mortem artefact

• There being bruising to the anal sphincter

• The tears being real rather than a post-mortem artefact

• The appearances in the parametrium being bruising rather than discolouration

125. During the course of the hearing, the two pathologists explained their reasoning with reference to the post-mortem photographs which were available to the court and to the histology slides that they had jointly reviewed on the day before evidence began. I will review their evidence in relation to each appearance.
126. Anal dilatation or distension as seen in photograph G521.

Dr Armour describes this as a very unusual finding. When seen at post-mortem, the anus of a child is normally tightly closed and you cannot visualise a hole. In over two decades of professional experience, she had seen dilated anuses at death but only in specific types of case such as men who have been practising homosexuals for many years.

Dr Leadbeatter regards this as an indeterminate finding. Like Dr Armour, he has never previously encountered a widely dilated anus in a child under 18 years old. However, he referred to a research paper [Dr Dawn Elder] which draws attention to anal dilatation being a byproduct of death in a significant number of cases of children across the age range and not being a reliable sign of sexual abuse.

Taking account of these matters, the appearance found in hospital and on post-mortem is in my view of potential significance as an indicator of trauma when taken together with the other findings. I place more weight on the combined experience of the two pathologists than on the academic paper, which does not reflect their own findings over many years.

127. Flame haemorrhages to the rectum as seen in photograph G520.

Dr Armour says that these were present at 12 o'clock and 3 o'clock. Where there are flame-shaped haemorrhages alone in a child of this age, with no evidence of underlying natural cause and no infection within the gastro-intestinal tract, she would consider trauma a possible cause.

Dr Leadbeatter agrees that these haemorrhages are obviously present. They are a significant and unusual finding. He has never seen flame haemorrhages in this area in a child at post-mortem. They raise suspicion and require explanation. They would necessarily be caused by something hard going in (such as a penis) or something hard coming out.

In my view these are significant findings.

128. Anal tears

Dr Armour identifies an anal tear 0.5 cm in length at 4 o'clock on slide 71. She describes this as being approximately 6-7 mm from the squamo-columnar junction and lined with red blood cells. She regards this tear as genuine and not artefactual, giving detailed reasons for this view.

Dr Armour said that it is quite difficult to tear the rectal mucosa. Absent trauma, she would expect to see tears associated with inflammation, infection, hypertension or haemorrhoids. She can see how the rectum could tear as a result of a normal disease process but saw no evidence of any natural disease process here.

Dr Armour also identifies a tiny anal tear 0.5 cm in length at 4 o'clock on slide 77. The debate between her and Dr Leadbeatter about this appearance is the same as that over slide 71.

Dr Leadbeatter says that these appearances could be either traumatic or artefactual. It is in his view possible that this is a split caused during the post-mortem dissection. He would not be comfortable calling this a genuine tear as opposed to an artefact in an already congested area.

However, Dr Leadbeatter accepted that if these were not tears, there is nothing to provide a clear explanation of blood pouring or dribbling from the rectum. Bleeding from tears can be quite profuse and would not have occurred with an artefactual tear.

My conclusion on this important issue is that it would be very difficult for the court to arbitrate between the pathologists if the matter rested only upon their interpretations of the microscope slides. Both give reasoned explanations. Dr Leadbeatter did not say that these are not tears: his view was that he was not satisfied that they are.

I find that the anal tears identified by Dr Armour do exist. I reach this conclusion by looking also at the other evidence, and in particular the incontestable fact that P was found to be bleeding from the anus. This blood has to have come from somewhere and Dr Leadbeatter was unable to identify an alternative source.

I exclude any possibility that bleeding was coming from higher up the gastrointestinal tract. I accept the evidence of Dr Armour and Dr Bitetti that they examined the entire tract and opened the large and small bowel. There was no evidence of impacted faeces or of blood. There were no malaena stools (stool with a distinctive appearance and smell as a result of being mixed with blood). This conclusion is strongly supported by the appearance of the stool in the rectum, seen in a photograph, which appears soft and clear of blood. I also note the evidence of Dr B that the faeces that he saw around P's bottom were not malaena stools.

Ultimately, Dr Leadbeatter accepts that if there was no other possible source of blood, the appearances seen by Dr Armour may be genuine tears.

I find that the source of the bleeding that was witnessed following P's death were the anal tears identified by Dr Armour.

129. Bruising to the external anal sphincter seen in photographs G591 and G592.

Dr Armour identifies a W-shaped nick and a 0.5 cm bruise on the anal skin at 12 o'clock, and a linear bruise at 2 o'clock 0.5 cm x 0.1 cm.

Dr Armour also identifies a possible tiny bruise (0.1 x 0.1 mm) at 5 o'clock.

Dr Leadbeatter did not refer to these findings in his report and in evidence said that he is not sure that he can identify these findings as haemorrhages.

I was satisfied by the evidence of Dr Armour that these appearances do exist and that on the balance of probabilities they are bruises.

130. Bruising to the right parametrium seen in photograph G600 as fresh tissue and at G499 as a fixed specimen.

Dr Armour identifies this as a bruise 2.5 x 1 cm in size. She says that this injury is very unusual. She has never seen such an injury in 25 years experience. Her opinion is that this is a bruise caused by trauma. It is very difficult to say what type of trauma would have caused it but it would be some sort of trauma around the lower abdomen or pelvic region. It could have been caused at the same time and in the same way as the anal findings, namely by penetrative entry into the rectum. This fits with the architecture of the body.

Dr Leadbeatter did not refer to this finding in his report because he did not regard it as significant. He says that he can see discolouration where Dr Armour identifies a bruise. If it were a bruise, he would expect it to remain in the same position between the fresh and the fixed specimen (it does). If it is not a bruise, he cannot say why there is discolouration. If it is bruising, it could be due to sexual abuse. Taken in isolation, it is worrying and difficult to explain. He has never seen this finding in over 30 years' experience. It is unique and, where one has not seen it before and there is no peer-reviewed research, one is cautious. He agrees that if there is a bruise in the parametrium, this is more consistent with something going in rather than something coming out.

I was satisfied by the evidence of Dr Armour that on the balance of probabilities there is a bruise to the parametrium.

131. It is common ground between the doctors that these findings, if they existed, would have been the result of trauma while P was alive. They would have been caused by something coming out the anus or something being inserted into it.
132. The only way that injuries to the anus could be caused by something coming from within the body would be as a result of a child swallowing something such as a toy, which did not occur here, or as a result of the passage of a hard bulky stool of the kind that results from constipation. Dr Armour said that she had never seen anal injuries such as these as a result of constipation. There is no evidence that P was constipated at or around the time of her death or that she passed a stool of this kind. On the contrary, the reliable descriptions are of her stools being loose. Nor is there any evidence that she had diarrhoea. I find that the injuries to the anal region were not the result of P passing a hard bulky stool.
133. The injury to the parametrium can only be explained by trauma.
134. Dr Armour's hypothesis is that the findings can be unified to explain the features found at post mortem. Dr Leadbeatter accepts this, but only on the basis that the findings exist in the first place. Dr Evans agrees that, at least on the balance of probabilities, the unifying hypothesis should be accepted.
135. I agree with the submissions made on behalf on the father that it would be unsafe to tailor individual medical findings in order to serve a unifying hypothesis. I have not done that. My approach is based upon an assessment of the elements of the medical findings separately and in combination.
136. Having considered the evidence of Dr Armour, Dr Leadbeatter and Dr Evans, my clear conclusion is that the medical evidence points to the injuries to P as having been caused by penetrative trauma from outside the body.
137. However, these medical findings cannot be conclusive. They have to be set against the other evidence in the case. The father relies upon a number of general matters:

• There is nothing to suggest that he was anything other than a loving parent to P, or that he has any propensity to paedophilia, anal sex or sadism.

• It is inherently extremely improbable that he would assault his infant daughter in an overcrowded house with one other young child sleeping in the same room, three others in the neighbouring room, and the children's mother downstairs within earshot.

• The mother's own evidence was that she heard P cry out and the father go to her. This, the father suggests, shows that the cry was not the result of an assault.

138. The father also points to the absence of evidence that would have been expected to be found in a case of anal rape. It is argued by Mr Rowley QC and Ms Scully that this absence amounts to positive proof that the events did not occur. Significant absences are:

• any blood from P or semen from the father on bedding or clothing

• the father's DNA in P's mouth or anus

• P's faeces or blood on the father's penis

• any suggested penis-shaped object

• any suggested lubricant.

139. The father argues that he has provided a broadly similar account at various different stages and that this was not shaken during the course of his evidence at this hearing. His account of P's abnormal appearance that night suggests a real experience rather than an invention.
140. The father moreover points out with justification that the defects in the investigation are of equal concern to him. A proper investigation would have assisted him in proving his innocence.
141. This is a more than usually troubling case. I have given anxious consideration to the question of whether the court's inquiry has been so degraded by the deficiencies in the initial investigation as to make it impossible to draw reliable conclusions. In the end, I have concluded that this is not the case in relation to the anal injuries. Unlike the position in relation to the broken leg, there is still a mass of contemporaneous information about the events of the night on which P died, even though procedures fell far short of good practice.
142. Shorn to its essentials, the situation is one in which a healthy child with no medical condition or illness was put to bed by her mother one evening and brought downstairs eight hours later by her father in a lifeless state and with troubling injuries, most obviously significant bleeding from the anus. Careful assessment of the meticulous pathological and paediatric evidence has clearly established that the injuries were the result of trauma from outside the body.
143. While, as already stated, the father is not called upon to prove anything, I cannot accept his evidence about the events surrounding P's collapse. I was not impressed by his account. His description of being woken by a cry and then removing P from her cot in a most unusual condition (clenched teeth, rigid body) before loosening her nappy and leaving her on the bed was puzzling. It is hard to understand why he should have loosened her nappy or why, having gone downstairs to get another nappy, he should have begun to go back to sleep without changing P while leaving her on the bed. There is also no explanation as to why he would then have reached out to touch P, when his whole object would on his account have been to keep her asleep as long as possible. Moreover, in the overall circumstances, the fact that this was the only occasion (according to the father) when he and P were in the bed together raises concern when taken together with the fact that P suffered injury on that very occasion. Overall, the sequence of events that the father describes is unconvincing as an account of a parent comforting a distressed child in normal circumstances.
144. I have observed the father, not only in the witness box but in the courtroom. In contrast to the mother, who became emotional at understandable points during the hearing, the father's presentation was unusual. He spent large parts of each day in tears and took every opportunity to make eye contact with me from the back of the court as a way of emphasising his predicament. I do not attach much significance to this behaviour during an undoubtedly emotional hearing, but it was nonetheless unusual in my experience.
145. It is not possible to reconstruct the exact sequence of events that led to P's collapse without a truthful account from the father. All that can be said is that at some point after 2 am he removed P from her cot and took off her pyjama bottoms and her nappy. He then inserted his penis or another object into her anus, causing her injury. He probably replaced the nappy, which P filled with faeces at some point before or at the time that she collapsed. The father then realised what he had done and sought help.
146. While it is true that what has happened in this case is extremely unlikely, the position is not to be compared with cases of sudden infant death that occur without any clear signs of abuse. As has been said elsewhere, there is no logical or necessary connection between seriousness and probability. The improbability of the father assaulting P in this way must give way to the evidence that establishes that she was in fact assaulted. As to the argument that this was a crowded house, the fact remains that the father had the clear opportunity to carry out the assault, however risky it might have been. On his own account, the presence of two very young sleeping children in his own bedroom did not stop him from watching pornography.
147. Nor am I influenced by the mother's description of hearing the father going to P. In the circumstances, this is the only normal interpretation that would be likely to occur to her. The most that I gather from the mother's evidence is that the father was moving about. Further to this, I think it likely that the father did experience P going rigid and gritting her teeth, but sadly this will have been in the context of an assault upon her.
148. The father's arguments about the absence of evidence deserve serious consideration. In fairness to him, I approach matters on the broad working assumption that any inquiry that should have been carried out, but was not, would have produced a negative result. For example, that nothing concerning would have been found on his laptop, that his DNA would not have been found in the last nappy, and that other items were properly preserved and tested with negative results. In the circumstances, he is entitled to these assumptions. Likewise, there is a credible innocent explanation for the presence of DNA on the shaft of his penis.
149. Nevertheless, even though Mr Scarborough would have expected further positive results following an act of anal rape, the forensic evidence does not exonerate the father in the manner claimed. Rather, it affects the probabilities and has to be set against all the other evidence.
150. With regard to the absence of P's DNA from the tip of the father's penis, this does not negate penetration by the penis as any DNA may have been lost by washing or ordinary movement; nor of course does it negate penetration by other means. The non-production of sperm that may have followed the father's vasectomy could reduce the likelihood of seminal fluid being detected, particularly as five days had passed before the swabs were taken in a suboptimal way. The absence of any report of P's blood in the bedroom or living room would seem at first sight to be highly significant, but has to be taken along with the evidence that clearly establishes that she was bleeding in the ambulance moments later.
151. These matters weigh heavily in the father's favour, but I find that, when placed in the balance, they are ultimately outweighed by the fact that P suffered injuries causing substantial bleeding from the anus and that she collapsed for no plausible reason. The only explanation for those stubborn facts is that she suffered anal penetration and the only person who could realistically have done this to her was her father.
152. I find that the father perpetrated a penetrative anal assault on P, either using his penis or some other unidentified object.

Cause of death

153. Based upon the post-mortem evidence alone, the pathologists agree that it is not possible to prove how P died. No positive evidence exists to establish an unnatural cause for the death. Accordingly the cause of death is medically regarded as unascertained.
154. At post-mortem the identification of possible natural causes was Dr Bitetti's particular focus. She found no natural cause for death. She stated that all known natural causes, including a seizure, have either been ruled out or are highly unlikely. In terms of natural causes, all that is left is some natural cause as yet unknown to science. She stated that infection was the first thing she looked for, but that was excluded. The second is metabolic disease; some investigations for that were made at post mortem with negative results and there was nothing in the clinical history suggesting that this was a child with metabolic disease. A child with metabolic disease would show signs and symptoms, such as being floppy. The finding by Professor Freemont that there was no metabolic bone disease or disorder supports a conclusion that there was no general metabolic disorder. Congenital abnormality of the heart was excluded. While arrhythmia was another possibility, one would expect a clinical history and there was none. It is possible that P was affected by a cause as yet unknown to science.
155. Dr Armour likewise agrees that death by known natural causes can be excluded because:

(a) There is no evidence of a natural disease that could have caused death. Histological examination did show acute focus congestion in the lungs. This might explain P being snuffly but was insufficient to cause her death.

(b) There was no evidence of a congenital heart problem, cardiac myopathy or myocarditis.

(c) There was no evidence of evolvulus or intussusception of the bowel.

(d) There was no evidence of another disease to account for the death.

(e) The rapidity of death is not consistent with a natural process.

156. Dr Armour considers that consequences of a penetrative assault would account for P's speedy death and the findings at post-mortem. She proposes two possible mechanisms.
157. The first would be acute upper airway obstruction (suffocation). This theory arises from

(a) Liquid blood identified in P's nose in hospital.

(b) One petechial haemorrhage in the lining of the lower lip. These can occur in a number of circumstances but are classical for asphyxia.

(c) A punctate [round] mark in the midline of the lower lip

(d) Bruising to the pharynx.

(e) Intra-alveolar haemorrhage involving some 30% of the lungs.

158. Dr Armour excludes resuscitation as the cause of these findings. She is not aware of petechial or alveolar haemorrhaging or bruising to the pharynx resulting from resuscitation.
159. The second mechanism for death would be reflex cardiac arrest. This is a neuronal reflex action best known as the result of pressure on the carotid artery. It sends an electrical signal to the heart to stop beating. Dr Armour states that dilatation of the anus can result in reflex cardiac arrest; this is documented. It is not by reason of shock but a direct nerve pathway.
160. Dr Leadbeatter does not disagree that these mechanisms would account for death. However, he does not accept them as he does not accept all the primary findings. He said there was a possibility that P had had a seizure without any previous history.
161. Dr Leadbeatter regards the punctate mark and the petechial haemorrhage as non-specific findings that could have been caused during the resuscitation process. He states that upper airway obstruction might be a possible mechanism for death but there is no positive evidence for this. He would not ascribe this as the cause of death even on a balance of probability. Nor is he comfortable with conclusions being drawn from the speed of death.
162. He agrees with Dr Bitetti that there is no objective pathological evidence of a discernable natural cause of death. He can think of no area that she did not cover. However one cannot exclude a seizure or arrhythmia as a fatal first event, even though there is nothing to say that it has occurred.
163. Dr Evans deferred to the pathologists in relation to the causation of P's death. She acknowledged it was possible that P had a seizure. However, if there was anal penetration, her view is that on the balance of probability, death was consequent upon that event.
164. As stated, the local authority, supported by the mother and to an extent by the Guardian, invites the court to find that P died as a result of the assault upon her either by suffocation, or from reflex cardiac arrest or from another unidentified cause. Having considered the matter carefully, I have concluded that it would not be appropriate to make that finding. Instead, I find that P died during or shortly after the assault upon her but that the cause of her death is unascertained.
165. I understand the wish to bring as much clarity as possible to such a grave question and I sympathise with the argument that this hearing represents an opportunity to answer it. However, it is neither necessary nor safe to go beyond the finding that I have made. Dr Armour's hypothesis may be correct, but, like Dr Leadbeatter, I consider that the evidence on this question is not sufficiently strong to underpin her conclusion. I have taken account of the post-mortem findings relating to the lip, the throat and the lungs. I conclude that they are suspicious but unexplained. Having heard from Dr A, I cannot exclude the possibility that one or more of the injuries to the pharynx and oesophagus might have been caused by the attempts at intubation during a very difficult process of attempted resuscitation. Likewise, suffocation is not the only mechanism by which the marks to the lip might have been caused. The blood in the nose may be associated with abuse, but I cannot discount the possibility that it may have been caused during the protracted CPR at home, in the ambulance and in hospital. The extent of the intra-alveolar haemorrhages is more than mild but is not diagnostic. In conclusion, it is possible that P died of suffocation, but this has not been proved by the existing evidence.
166. I invite submissions from the parties as to the course that should now be taken to bring these proceedings to a conclusion, and as to any other directions.
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