A County Council v AB & Ors [2015] EWFC 82

Case No SQ15C00019[2015] EWFC 82
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/10/2015
Before
THE HONOURABLE MR JUSTICE KEEHAN
Between
A COUNTY COUNCILApplicant(1) ABRespondent(2) CDRespondent(3) ERespondent
Mr John Vater QC and Mr Christopher Watson (instructed by County Council Solicitor) for ApplicantMs Vanessa Meachin and Ms Victoria Edmonds (instructed by Mosleys) for First RespondentMs Elizabeth McGrath QC and Ms Clare Dillon (instructed by Gardener Champion) for Second RespondentMr Christopher Adams (instructed by McGuinness Legal Ltd) for Third RespondentHearing Hearing dates: 5 October 2015 to 22 October 2015
JudgmentThe judge gives leave for this judgment to be reported in this anonymised form. Pseudonyms have been used for all of the relevant names of people, places and companies.The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by his or her true name or actual location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.Mr Justice Keehan :Introduction
[1]In the late evening of 28 April 2014 or the early hours of 29 April 2014 F died. He was 61 days old having been born on 27 February 2014. The circumstances in which and how he died are the subject of the fact finding element of this composite final hearing.[2]F’s mother is AB, she was born on the 19 July 1996 and is 19 years of age. His father is CD, he was born on 26 November 1992 and is 22 years of age. They now have a daughter, E, who is the subject of these care proceedings brought by the local authority, A County Council, on 16 January 2015. E was born on that date and so she is 9 months old. She was made the subject of an interim care order on 4 February 2015. She was then placed in the care of her paternal grandparents with whom she remains living.

Findings of Fact Sought

[3]The local authority invites the court to make the findings of fact set out in the Final Schedule of Findings Sought dated 21 September 2015 namely: a) Prior to his death, F sustained an injury in the form of bruising to his right forearm which is compatible with a human bite and which was not caused accidentally or during resuscitation. It resulted in immediate and continuing pain. This injury was inflicted upon him. b) Between 2 and 12 hours before he died, F sustained 3 fractures to his anterior left 2nd, 3rd and 4th ribs as a result of significant compression applied to the front of his chest. The force applied was beyond normal handling. These factures were caused non-accidentally in that they were inflicted upon him. c) Prior to his death, F sustained bruising to his chest and a bruise to his right wrist. These injuries were caused by the application of inappropriate force and were inflicted upon him. d) For the avoidance of doubt, the injuries described at paragraphs 1 – 3 above were caused by culpable trauma. e) F died on or around 29.04.2014 whilst in the care of his parents. The mode of death was asphyxia. It is asserted that F’s airways were deliberately obstructed, during which process he sustained numerous facial abrasions. f) Either AB or CD is responsible for causing the injuries described above and for deliberately obstructing F’s airways. g) The person not so responsible failed to protect F from the other. Neither parent has told the truth about the events of the 28th – 29th of April 2014. h) In the alternative, and in circumstances were the court is unable to identify the person responsible, both AB and CD are in the pool of possible perpetrators.[4]In summary the local authority contends that the totality of the evidence supports a conclusion that F died as a result of an asphyxial event and that the perpetrator was either his mother or his father. Further, it submits that the evidence conclusively demonstrates that the non-perpetrator parent was aware of and/or collusive in circumstances which led to F’s death and that he or she failed to protect him.[5]The parents each contest those principal findings. They each deny harming their son or doing anything which caused his death. They each deny being aware of anything untoward occurring in the family home on 28 or 29 April which could account for the injuries found on F’s body on post mortem examination or his sudden death.[6]The guardian has properly taken a neutral stance but has nevertheless tested the evidence in cross examination and sought to assist the court in evaluating the written and oral evidence.

The Parents

[7]Throughout my consideration of this case I have borne well in mind that both of the parents are very young and are very inexperienced as parents of a young baby.[8]I accept the well founded submissions made on behalf of both of the parents that I should take into account and give considerable weight to the following matters: a) F was a much wanted and much loved child; b) Up to the 28 April 2014 his parents’ care of him had been excellent and no health professional who came into contact with the family had any concerns about F’s care nor his progress; c) He was a well and thriving baby save for the episodes of colic from which he suffered from time to time. The parents had appropriately sought medical advice about his colic and treated it as advised; d) The family home was clean, ordered and tidy; e) There were no episodes of domestic violence; f) When the maternal grandmother visited the parents and F on the late afternoon of 28 April she had no concerns about F or about either parent; all appeared to be well; g) It is evident from the recording of the 999 call made in the early hours of 29 April that both parents were in a state of distress and found the process of undertaking cardio-pulmonary resuscitation difficult; h) An analysis of 4000 pages of the parents’ mobile telephone records disclosed no untoward, sinister or suspicious communications between the parents before and after F’s death; i) Similarly a relatively short lived period of covert surveillance of the parents by the police disclosed no untoward, sinister or suspicious discussions between them.[9]All of these powerful factors are part of the wider context of this case and I bear them in mind when evaluating the totality of the evidence I have had placed before me.[10]Further, it was submitted by counsel on behalf of both parents and, in particular on behalf of the mother, that the parents have not been treated fairly during these proceedings. I do not understand the factual or evidential basis for such an assertion. I am in no doubt, whatsoever, that the parents have been treated entirely fairly and courteously throughout this hearing. Moreover, I do not understand why it was raised that the parents may have been disadvantaged by their youth, social background and/or lack of income. There is, in my judgment, no factual or evidential basis for suggesting the same and I find that neither have been so disadvantaged.[11]It was asserted by counsel for the parents that the parents were unfairly and/or inappropriately cross examined by leading counsel for the local authority. I entirely reject that assertion. The parents were cross-examined politely but rigorously as the facts, evidence and the very serious issues in this case demanded and required. Had I taken the view that the cross examination was breaching the boundary of fairness, I would have intervened. I did not. On the contrary I found the cross examination to be a most useful exercise. When the parents asked for breaks in their evidence, their requests were immediately granted at whatever stage in their cross-examination.[12]I was reminded by counsel for the parents that I should guard against reversing the burden of proof. I have done so. The parents’ case is that F was always in the care of one or, more usually, both of them. It is one matter to reverse the burden of proof, it is quite another to expect and require the parents to give a clear account of the last hours of their son’s life in their home.

Background

[13]The mother and the father met in 2012.[14]The father has another child, G, who was born on 22 March 2008. Her mother is AG. The relationship between the father and AG ended in April 2009. G was later found to have sustained injuries in her mother’s care, for which the father could not have had any responsibility, and she was the subject of care proceedings. She now lives with her paternal grandfather.[15]F was born fit and well albeit that he was delivered by caesarean section (‘C section’). For the first two weeks of his life he was breast fed but then the mother decided it was best to bottle feed him. Initially F slept in a Moses basket in the family living room with his mother and father. The mother slept on the sofa because she was recovering from the C section scar. F later slept, during the day in his own room and, at night, he slept in the parents’ bedroom, first in the Moses basket and then in a cot.[16]The routine decided upon by the parents was that the mother would feed and be responsible for F during the night time and the father would feed and be responsible for him during the day time. This arrangement was arrived at principally because the father was ‘not good’ at waking during the night.[17]On 11 April 2014 F was admitted to hospital having been unsettled and not having fed for 9 hours. He was diagnosed with colic and was prescribed medication. When seen by midwives and/or health visitors, especially on 15 April and 24 April, he was noted to be a thriving and well cared for baby with no concerns recorded about him at all.[18]On 27 April HI, the mother’s step grandmother, visited the family and stayed for about an hour. All appeared to be well and F was happy and smiling.[19]On 28 April, at about 5.30pm, JK, the mother’s maternal grandmother, and her husband, LK, visited the family’s home for about half an hour. Once more, all appeared to be well and F was smiling. She noticed a scratch under his eye which she thought was self inflicted, which the mother confirmed. JK cuddled F for ten or fifteen minutes during which time he was happy, smiling, and settled.[20]According to the parents, however, it was a difficult day. Most unusually F would not settle for his daytime naps. He would cry if not held; the mother described it to the police as somewhere between whingeing and crying. The most sleep he had that day was for about half an hour at around 2pm. The father told the police that F would scream if he was not being held throughout the course of the day.[21]F had his usual early evening bath, he was changed for bed and then he was fed a bottle by his mother. He was then put into his cot and after some little time he fell asleep.[22]The subsequent events of that evening and the early hours of the next day are either unclear or in dispute. The parents have, from time to time, given different accounts and their neighbours gave descriptions of what they saw and heard that evening which is at variance with the parents’ accounts. I will address all of these matters when I consider the evidence of the neighbours and then of the parents.[23]Suffice to say there came a time in the early hours of 29 April when F was discovered in a collapsed and unresponsive state. The mother called the ambulance services at 2.42am. A paramedic, an ambulance technician, and a student paramedic attended at the family home at 2.51am. They undertook resuscitative procedures and then transported F to X Hospital where he arrived at 3.40am. The hospital crash team took over performing cardi-pulmonary resuscitation (‘CPR’) until 4.03am when F was pronounced dead. From the time of the arrival of the ambulance crew at the family home until the time he was pronounced dead F exhibited no signs of life; there was no cardiac output, no circulation and no breathing.

The Law – Fact Finding

[24]Throughout the fact finding element of this hearing the burden of proof is on the local authority. The mother and the father have nothing to prove.[25]The standard of proof is the balance of probabilities: Re B (Children) [2008] UKHL 35.[26]In cases such as this the court must survey a wide canvas and must take into account the whole of the evidence and consider each piece of the evidence in the context of all of the other evidence: Re T [2004] EWCA Civ 558.[27]In A County Council v. K, D & L [2005] EWHC 144 (Fam), Charles J. observed at paragraphs 39, 44 and 49 that:
“It is important to remember (i) the roles of the court and the expert are distinct and, (ii) it is the Court that is in the position weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he (or she) is the person who makes the final decision. …In a case where the medical evidence to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof …. The other side of the coin is that in a case where the medical evidence that there is nothing diagnostic of a non-accidental injury (or human agency) and the clinical observations of the child, although consistent with non-accidental injury (or human agency) of the type asserted, is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that on the balance of probability there has been a non accidental injury (or human agency) as asserted and the threshold is established.”
[28]In A County Council v. A Mother & Others [2005] EWHC 31 (Fam) Ryder J, as he then was, said:
“A factual decision must be based on all available materials, i.e. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be.”
[29]I must have regard to the fact that today’s medical certainty may be discarded by the next generation of experts: Re U, Re B (Serious Injury: Standard of Proof) [2004] EWCA Civ 567. Further, I must take into account the possibility that F’s death resulted from an unknown organic cause as emphasised by Moses LJ in R v. Henderson, Butler & Oyediran [2010] EWCA Crim 126 and Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam). In the latter case, Hedley J observed:
“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.”
[30]Desirable though it is for a court to identify the perpetrator of inflicted injuries, the court should not strain to do so: Re SB (Children) [2010] 1 FLR 1161. The test for inclusion in the pool of possible perpetrators is whether there is a likelihood or a real possibility that the individual was the perpetrator of the inflicted injury or injuries: North Yorkshire County Council v. SA [2003] 2 FLR 849.[31]The relevant legal principles were helpfully summarised by Baker J. in A Local Authority v.(1) A Mother(2) A Father(3) L & M (Children by their Children’s Guardian [2013] EWHC 1569 (Fam). I adopt and apply the same.[32]Peter Jackson J. added to that summary in the case of Lancashire County Council v. The Children (by their Children’s Guardian), M & F [2014] EWHC 3 (Fam) when he said, at paragraph 9:
“To these matters, I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as "story-creep" may occur without any necessary inference of bad faith.”
[33]When considering the evidence, I bear in mind that a witness may tell a lie for very many reasons and that such a finding does not necessarily lead to a conclusion that they have lied in all aspects of their evidence or to a conclusion of guilt: R v. Lucas [1981] QB 720. I must only take into account the lie of a witness if I am satisfied that there is no reasonable explanation or account for them lying to the court.

Expert Evidence

[34]No less than 9 forensic experts were instructed in these proceedings and gave evidence before me. The first six experts set out below were initially instructed by the West Midlands Police in the course of their criminal investigation into F’s death but were subsequently instructed to report in the care proceedings. The experts were: a) Dr. Malcolmson, a forensic paediatric and perinatal pathologist; b) Dr. Kolar, a forensic pathologist; c) Professor Freemont, a consultant osteoarticular pathologist; d) Dr. Lloyd, a forensic scientist; e) Dr. Lawler, a forensic pathologist; f) Dr. Rosie, a consultant odontologist; g) Dr. Evans, a consultant odontologist; h) Dr. Cartlidge, a consultant paediatrician; and i) Professor Mangham, a consultant osteoarticular pathologist.[35]Two experts’ meetings were convened. The first was held on 12 August 2015 which was attended by all of the experts save for Dr. Lloyd and Professor Mangham and the second was held on 29 September 2015 which was attended only by Professors Freemont and Mangham and Drs Malcolmson and Kolar. This second meeting was convened to consider solely the cause and dating of the identified rib fractures.[36]Dr. Malcolmson commenced a post mortem examination of F’s body on 2 May 2014. On identifying, what has been termed in this hearing, as the putative bite mark, he halted the same until a forensic pathologist could be present. He and Dr. Kolar, performed the full post mortem on 3 May. They identified the following non-medical intervention marks, bruises and/or injuries on F’s body at post examination and/or after further forensic testing, namely: Head and Neck a) In between the ante-helix and the helix of the right ear, just above the external auditory meatus, a linear area of reddening measuring 0.3cm in length; b) Just below the left peri-orbit, an obliquely orientated, broadly in the 2 o’clock to 8 o’clock orientation, fine linear scratch measuring 0.7cm in length; c) On the right cheek just above the nasolabial sulcus, slightly interrupted linear red abrasion measuring 1.2cm by 0.1cm. Between the outer aspect of the right-sided upper lip and the right-sided nasolabial sulcus, a possibly slightly parchmented, reddened abrasion measuring 0.9cm by 0.4cm; d) On the right side of the nostril, a reddened abrasion measuring 0.5cm by 0.5cm; e) On the left-sided nostril, a reddened abrasion measuring 0.5cm by 0.2cm; f) On the tip of the nose, a reddened abrasion measuring 0.3cm by 0.2cm; Left Upper Limb None identified Right Upper Limb g) Arising 2cm above the right wrist, a patterned injury was noted. It comprised of opposing arcs of blue bruising with more centrally placed shortened bands of either intradermal red bruising or reddened abrasions or possibly a combination of both. The blue bruising comprised of two vertically orientated arcs whose contours essentially opposed each other, the medial measuring 1.2cm by 0.4cm and the more lateral measured 2cm by 0.5cm. The gap between them ranged from 0.9cm to 1.1cm. The shorter marks were just out with and central of the blue bruising and more centrally placed. These comprised of short, relatively narrow rectangular shaped components somewhat resembling incisor type contact marks. Again these components seemed to oppose each other. Two were laterally placed, the more superior measured 0.5cm to 0.7cm by 0.2cm, the more inferior measured 0.7cm by 0.2cm. The more medial was more closely approximated with the more superior on the lateral side and measured 0.4cm by 0.1cm. Overall, the marks were reminiscent of a bite mark, but formal odontological opinion is sought; h) On the medial right wrist, a blue bruise measuring 0.5cm by 0.5cm; Front of Chest i) On the mid-part of the right-sided chest, 2cm medial to the nipple, a stippled red bruise measuring 0.8cm by 0.3cm; Abdomen None identified External Genitalia None identified Left Lower Limb None identified Right Lower Limb j) On the lateral malleolus of the right ankle, an area of reddening measuring 1 cm in maximum diameter. This was not associated with any deep bruising later on dissection. Back of Body None identified Scars None identified Deep Skin Dissection Deep skin dissection was undertaken of the back of the body, both upper limbs and the right lower leg. No injuries were noted in addition.[37]There was no dissent amongst the forensic medical experts about the presence of all of those marks, bruises or injuries.[38]The expert evidence focussed on eight principal issues – some of which were agreed and some of which initially were in issue between one or more of them. They were: a) can the cause of F’s death be identified; b) did it result from an asphyxial event or from a known or unknown medical or natural cause; c) were the petechial bruises identified on his face, around his nose and mouth, inflicted injuries or did they result from resuscitative attempts; d) was the bruising/marks identified on F’s right arm caused by a human bite mark and, in any event, was the mark an inflicted injury or was it sustained post mortem as a result of the resuscitative attempts; e) was the bruising identified on F’s right wrist sustained ante mortem and, if so was it an inflicted or accidental injury, or was it sustained post mortem as a result of the resuscitative attempts; f) were the three identified rib fractures sustained ante-mortem or post mortem and if the former, how long before death; g) could the vigorous attempts of cardiopulmonary resuscitation have resulted in the three fractures or are they inflicted injuries; and h) do the answers to paragraphs (c) to (g) above inform or assist in determining the most probable cause of F’s death.[39]In respect of the other marks and bruises identified at post mortem and set out in paragraph 36 above, the medical experts were agreed that it most likely that these were sustained in the course of the attempts to resuscitate F and/or were otherwise accidental or non-suspicious injuries. I agree and I accept the expert medical evidence on this issue. The only caveat I enter is in respect of the chest bruise and facial abrasions which I will consider below.[40]Before considering the expert medical evidence in detail, I propose to deal with the parents’ broad case on the issue of the alleged inflicted injuries sustained by F. It was asserted on behalf of the parents that all of F’s apparently inflicted injuries were sustained post mortem and as a result of or in consequence of the vigorous attempts at CPR.[41]There was ultimately, however, complete consensus between the medical experts that the following injuries on F could only have been sustained in life and were not injuries that could have been sustained post mortem, namely: a) the extensive petechial haemorrhages identified by the pathologists on F’s face; b) the congestion found on F’s upper chest and face; c) the ‘bite mark’ found on F’s right forearm; d) the bruise found on F’s right wrist; and e) the three antero-lateral rib fractures.

The Paramedics and the Treating Clinicians

[42]Three members of the emergency services attended the family home as a result of the 999 telephone call. AC was a very experienced paramedic. He is now a university lecturer in emergency care. RW was an ambulance technician and the driver of the ambulance. He is now a paramedic. AW was and is a student paramedic; this was her first emergency paediatric call out.[43]AC told me that he had completed the patient record form. There was no cardiac output, no circulation and no breathing at any point in his treatment of F. He took charge of bagging F and of attempting to insert an intra-osseous needle which was not successful. He attempted to intubate F with the use of a laryngoscope but that was not successful because he was unable to view F’s vocal chords. He never saw any signs of life in F but neither did he observe any signs of injury on him.[44]RW spoke to the father as he drove the ambulance to X Hospital. He took a history from him which he reported to AC after they had handed over F to the crash team at the hospital. The account given by the father is set out on the patient record form as follows:
“Baby was fed at 0015 hours and put back down in his cot to sleep. Dad went back in 0045 hours as baby was crying and tried to soothe by giving him a dummy. At 0145 hours found baby to be unresponsive so then tried to wake mother. 999 called at 0242 hours”
RW saw no signs of life during his involvement with F.[45]All three described seeing mucousy or pinky fluid or vomit around F’s nose and/or mouth. None of them attached any significance to the same and none considered the presence of the same to indicate that F was at any time alive; they were the consequences of cardio-pulmonary resuscitation.[46]Dr S was the paediatric registrar who led the crash team in seeking to resuscitate F at the hospital. He took charge of F’s airway whilst other clinicians sought to restore F’s circulation. At no time during these procedures at the hospital was any sign of life seen and, accordingly, at 4:03am Dr S pronounced F dead.[47]He remained with or around F’s body until 9am. In the early hours of the morning of 29 April he and a consultant paediatrician, Dr W, undertook an examination of F’s body. They completed a body map. Areas of what they describe as ‘bruising’ to F’s face are recorded which they ascribed to the process of bagging F. They identified a bruise on the right side of F’s chest. They did not identify nor describe the two bruises reported by the pathologists on F’s right arm. I accept they conducted a comprehensive assessment of F’s bodily marks and injuries.

The Evidence of the Family and Neighbours

[48]JK, the mother’s maternal grandmother, told me that she and her husband visited F and the parents at about 5.30pm on 28 April. All seemed well and F was smiling and happy lying on a mat on the floor. For some 15 minutes before they left, she held F in her arms and cuddled him; he was bonny and fine she said. She told me that the mother had reported that F had been a bit grumpy and wanted to be picked up all day. Nevertheless, she had no concerns at all about F and had no anxiety about him. I entirely accept JK’s account of her visit to the family home.[49]I heard from two sets of neighbours, the Ws and the Xs, who lived in the same block of flats as the parents. A less than happy account is given by each of them about the events of the late evening of 28 April and early hours of 29 April. The Ws lived on the first floor diagonally across from the parents’ ground floor flat and the Xs lived adjacent to the parents on the ground floor.[50]Mr W told me that his wife went off to bed about 11.30pm on 28 April. A short time later she returned to the sitting room and told him that she had heard arguments coming from the parents’ home and the mother crying but ‘not in a normal way’.[51]At about 1am he retired to his bedroom and heard the parents arguing. The arguments continued until he fell asleep at about 1.30am. He was sure it was the parents whom he heard arguing and was firm that he had never heard his immediate neighbours, on the first floor of his block of flats, arguing.[52]Mr W was a particularly careful and impressive witness. He was able to support his timing of events about which he gave evidence with reference to either a chiming clock in the sitting room of his home or to a clock light in his and his wife’s bedroom. I have no hesitation in accepting his evidence. I find there is no basis or reason for him to have exaggerated or invented his evidence. Indeed it was not put to him on behalf of the mother or the father that he had done so.[53]Mrs W told me that at about midnight on 28 April she heard the parents arguing and the mother crying. She described the crying as really distressed; so much so that she felt sorry for the mother. Having fallen asleep, she heard nothing further that night.[54]I found Mrs W to be a clear and credible witness. As with her husband I found no basis or reason for concluding or suspecting that she had exaggerated or invented her evidence.[55]Mr X told me that he heard arguing coming from the parents’ home at about 1am and was awoken by hearing arguments from their home at about 3am. He was a little more circumspect about timings than Mr W but I note the extent to which his evidence independently, as I find, chimes with that given by Mr W.[56]Whilst he was a little more hesitant about the timing of events, I accept his evidence. I found no basis or reason for concluding or suspecting that he had exaggerated or invented his evidence.[57]Mrs X told me that she heard an odd loud noise coming from the parents’ home some time after 10pm and then the mother crying an emotional sob. She then fell asleep and heard nothing more.[58]Mr and Mrs W and Mrs X gave evidence of hearing the parents, prior to the events of 28/29 April, complain or argue about a lack of money, a lack of money to buy baby milk and an inability to afford the baby. I am satisfied that none of these witnesses have colluded in giving these accounts and the similarity between their respective accounts leads me to conclude that they are telling the truth.[59]Mrs W and, especially, Mrs X allowed these matters to lead them to make comments or conclusions about the parents’ care of or connection to F. I make it clear that I accord no weight and take no account of these comments or conclusions. I have had regard only to what they say they had heard.[60]It was suggested to Mrs X that she had discussed F’s death and the parents with a number of neighbours prior to giving her statement to the police. In particular that she had spoken with Mr FD, whose adverse acts with others, had led the parents to leave their home after F’s death. I am satisfied that Mrs X had no such conversations with him or with other neighbours prior to her giving her police statement on 30 April.

Expert Evidence - Discussion

[61]I now return to consider in more detail the expert medical evidence. It is curious that what are so obviously bruises as reported by the pathologists should have been missed by the paediatricians examining F’s body after death. I make no criticism of the treating clinicians whatsoever. I accept, however, the emphatic evidence of Dr. Kolar that treating clinicians are: a) not trained to identify injuries in the same way that pathologists are so trained; b) they do not examine the child with the benefits of the specialist lighting and conditions that the pathologists have; c) they do not have the benefit of examining the body several days after death, when various changes and processes have taken place which may make bruises, marks and injuries more apparent and obvious; d) they do not have the benefit of examining the body after it has been drained of residual blood; and e) they do not have the benefit of examining a body on and after a post mortem examination.[62]In the premises, I have no reason to doubt or question the post mortem findings of Dr. Kolar or of Dr. Malcolmson. I remind myself that there was no dissent amongst the medical experts about the bruises, marks and injuries identified by the pathologists. Accordingly, in the light of the observations of Dr. Kolar set out above, I am more than satisfied that I should rely on and prefer the evidence of the examining forensic pathologists about the degree and extent of any injuries identified at post mortem rather than on the descriptions provided by the treating clinicians where there is a variance between the two.[63]The purpose and consequence of cardio-pulmonary resuscitation was extensively explored with a number of the forensic experts in oral evidence. They were unanimous in their respective views. First, CPR is not intended and does not have the consequence of restoring a functioning circulation. Second, its limited purpose is to seek to maintain a blood supply to the vital organs (i.e. the brain and the heart) until such time, if at all, when cardiac output is restored. Third, it is extremely unlikely that CPR would achieve a functioning circulation in the peripheries of the body; as Dr. Lawler told me the further away from the centre of the body the less likely it is that CPR would restore the circulation. Fourth, even if some degree of circulation to the peripheries was achieved during CPR it would not provide sufficient blood to result in the bruises identified on F’s right forearm and right wrist – both as to size and extent. Fifth, accordingly both of the forensic pathologists and Dr. Cartlidge were agreed that the rib fractures, the right forearm bruise, the right wrist bruise and the facial petechial haemorrhages did not result from the attempts at resuscitation but resulted from in life events.[64]In contrast is the position in respect of the chest bruise and the facial abrasions. The forensic pathologists described the chest bruise, uniquely, as stippled in appearance. They agreed that rarely such a bruise can appear as a result of CPR. A stippled bruise, especially over a bony area of the body, can result from a post mortem event. This is because such a bruise does not require a functioning circulation and results from the squeezing of residual blood from blood vessels where pressure is repeatedly applied against an underlying bony area.[65]Similarly facial abrasions can occur as a post mortem artefact. Abrasions of the skin do not require a functioning circulation to be sustained. The treating examining clinicians considered these facial marks, which they termed bruises – which they are not – resulted from the application of facial masks during the resuscitative attempts. Dr Lawler accepted this as a possible cause of these injuries but doubted a facial mask would cause abrasions or that resuscitative attempts could cause the degree of abrasions identified on F’s face. Dr Kolar expressed similar reservations especially in respect of the number and extent of the areas of facial abrasions. Both however, could not exclude the real possibility that they were caused by that mechanism. Accordingly, given the fact that facial abrasions can result as a post mortem artefact and that F was the subject of prolonged resuscitative efforts, I am satisfied that these facial marks are more likely than not to be a consequence of the medical equipment used and/or the attempts made to resuscitate F.[66]Earlier this year there was a considerable dispute and debate between Professor Freemont and Dr. Malcolmson, in particular, about whether the rib fractures could have been sustained only in life, with a functioning circulation, or whether they could have been sustained peri-mortem or post mortem as a consequence of the resuscitative procedures. Professor Freemont preferred the former and Dr. Malcolmson advanced the latter. The issue was discussed at length in the first experts’ meeting. As a result of the intervention of Dr. Cartlidge it was agreed that a second osteo-articular pathologist should be instructed and I approved the instruction of Professor Mangham. To his very great credit he prepared a report in very short order.[67]In his opinion the histopathological slide prepared from one of the three rib fractures showed the presence of osteocyte necrosis (i.e. the death of the nucleus of a cell). The presence of this feature was of singular significance. Osteocyte necrosis only occurs in life with a functioning circulation. Moreover it only affects the cells at the site of or adjacent to the fracture. In the slide examined, osteocyte necrosis was only seen in cells at or adjacent to the facture site.[68]If this fracture had been sustained post mortem, then, Professor Mangham told me, there would be no evidence of osteocyte necrosis. The cells would die as a result of autolysis which would affect all of the cells in the bone and not just those at or adjacent to the site of the fracture.[69]In the light of Professor Mangham’s conclusions, a second more limited experts’ meeting was convened. Drs Malcolmson and Kolar readily acknowledged the process of osteocyte necrosis but, it being outwith their field of expertise, they had not previously identified the same. Both readily deferred, at the meeting and in oral evidence, to the expert opinions of Professors Mangham and Freemont.[70]Professor Freemont entirely agreed with the presence of osteocyte necrosis in the slide he had examined and agreed with Professor Manhgam’s opinion on the significance of the same. They were agreed that it would take some two hours after death, or the cessation of a functioning circulation, for the presence of osteocyte necrosis to become evident on staining and subsequent histopathological examination. They were agreed, for the purposes of the experts’ meeting the spectrum ranged from 2 to 12 hours after death. At the upper end of the range one would expect to see evidence of reparative processes which were not identified by either of them. Professor Mangham favoured a time frame for the rib fractures being sustained of between 4 to 8 hours before death, whereas Professor Freemont preferred a narrower time frame of 2 to 4 hours. In the circumstances of this case the differences between them on time frame is of little real significance. The principal importance of their agreed evidence is that these rib fractures could only have been sustained in life and not post mortem.[71]There was considerable criticism of Professor Freemont by counsel for the parents that he had not mentioned the issue of osteocyte necrosis in his reports to the court. He asserted that he had done what was asked of him in dating the fractures, namely that they were sustained in life. I am troubled by Professor Freemont’s failure to mention osteoctye necrosis in any of his reports or to mention the same in the first experts’ meeting. He made no mention of these histopathological findings until the issue was reported by Professor Mangham. I do not understand why he did not do so. The very late introduction of osteocyte necrosis must be very difficult for the parents to understand and is, undoubtedly, frustrating for them.[72]It plainly would have been more helpful if Professor Freemont had referred to this process in his reports but, given the clear opinion of Professor Mangham and the fact that Drs Malcolmson and Kolar readily defer to the opinions of both osteo-articular pathologists, I am not satisfied that that omission undermines his ultimate opinion on the issue of whether the fracture examined was sustained in life or after death.[73]Three further issues arose.[74]First, a considerable time was expended upon the research base for the timings of the detection of osteocyte necrosis. It was plain that all research studies related to adults. Dr. Cartlidge made the powerful point that metabolic and other processes occur faster and more rapidily in children, especially in babies, than they do in adults. Thus he was concerned about whether the time frames postulated by Professors Mangham and Freemont related to adults or to babies. At the end of his evidence Dr. Cartlidge confirmed that he accepted that osteocyte necrosis only occurred in life and his point related only to how fast that would develop and thus be detectable in a young infant. I accept Dr. Cartlidge’s evidence and his concerns. The consequence of it is, however, that F’s rib fractures may have occurred closer in time to his death than opined by either Professor Mangham or Professor Freemont, but nevertheless, it must have resulted from an in life event with a functioning circulation.[75]Second, it was put to Professors Freemont and Mangham that the fact that they had received only one slide of the rib fracture was deficient and impaired their ability to give a clear opinion. Neither had any hesitation in rejecting that assertion and both were clear that one slide of a fracture was more than sufficient for their forensic purposes.[76]Third, it was suggested that slides of the adjacent two ribs ought to have been taken and provided to them. Neither expert accepted the same. I find the implied suggestion that the one rib, of which a slide was prepared, could have been sustained in life, but that the other two adjacent rib fractures could have been sustained in a separate application of force post mortem to be fanciful and unrealistic. I am satisfied that all three rib adjacent fractures were sustained by the same application of force and were sustained in life when there was a functioning circulation.[77]I note that Dr. Malcomson and Dr. Kolar, who are both very experienced pathologists, have changed their practices as a result of this case. They both now have or propose to refer more slides of rib fractures to osteo-articular pathologists for examination. Hitherto they have readily accepted that rib fractures, albeit rarely, resulted from CPR on the basis of the degree of bleeding seen at the site of the fractures. As a result of this case they recognise that further forensic investigations are likely to be required to determine whether those fractures were sustained in life or post mortem.[78]Dr. Rosie and Dr. Evans, the odontologists, were agreed that the mark seen on F’s right arm was a probable, the former, or a possible, the latter, human bite mark. Dr. Rosie considered it was more probably an adult human bite mark. Dr Evans felt constrained, by the visible features, to conclude that it was a possible human bite mark, be that adult or a child. There is no history given by the parents, in whose constant care one or other of them were, of F exhibiting symptoms of pain or crying when in the presence of other babies or small children. I am satisfied, despite Dr. Evans’ reluctance to be drawn on the same, in contrast to Dr. Rosie, that the infliction of a bite mark would have been very painful for F and he would have cried upon the application of the same. Dr. Cartlidge agreed. There is no history of a child inflicting a bite mark on F at which he cried.[79]Both odontologists considered and excluded a number of possible mechanisms of force which could mimic a bite mark. Dr. Cartlidge considered it was a bite mark and could think of no other explanation for the injury. All of the relevant forensic experts were agreed that this was an inflicted injury. The pathologists were of the clear opinion that the extent and depth of the bruising was such that it could only have been sustained at a time when F had a functioning circulation. Furthermore, none of them could postulate a mechanism by which such an injury could have been sustained during the attempts to revive F. Accordingly, I am left with the conclusion of the medical experts that this injury was sustained in life, it was an inflicted injury and, on the balance of probabilities, was a bite mark which was inflicted by an adult.[80]The bruise on F’s right wrist was extensive albeit that it did not descend into the deep subcutaneous tissues. The pathologists were agreed that this was not an injury that could have been sustained in the absence of a functioning circulation. Accordingly it must have been an in life injury. As Dr. Cartlidge explained, absent an accidental cause of which no account has thus far been given, it must be an inflicted injury.[81]F was pronounced dead at 4:03am on 29 April. Is there any evidence to support a contention that F was in fact dead at an earlier time?[82]Dr Lawler analysed the recordings of rectal temperatures taken at hospital after his arrival at 3:40am on 29 April. He said that the rate of loss of F’s core body temperature demonstrated by those recordings led him to conclude that they supported the hypothesis that F’s death occurred 1 hour, or so, before the ambulance was called at 2:42am.[83]Dr Kolar told me that in his opinion F was dead when the resuscitative attempts commenced, he said “All the evidence points to F being dead before CPR commenced”. He agreed with Dr Lawler’s analysis of the rectal temperatures.[84]Dr Cartlidge was very much more circumspect about the significance of core body temperatures and the conclusions that could be safely drawn from the rate of reduction of core body temperature. His opinion was based on the, relatively, large surface area of a young baby and the fact that they can lose peripheral and core body temperatures very quickly. I accept his caution and adopt the same when considering the weight I should attribute to Dr Lawler’s evidence on this topic.[85]Dr Cartlidge told me that on the totality of the evidence, notwithstanding his caution about Dr Lawler’s evidence, that when F was found in a collapsed state by his father he was on the balance of probabilities dead or very nearly dead. He further said that, on the balance of probabilities, F was dead when the 999 call was made to the emergency services.[86]I remind myself that when both parents first saw F in a collapsed state, and accepting that they are not medically qualified, he appeared to them to be dead. The father told me he was not breathing and it was one of the first comments the mother made to the emergency operator “he is not breathing”. Further at no time when CPR was being undertaken by the mother, the paramedic and ambulance crew or by the crash team at the hospital was any sign of life detected. There was no cardiac output, no circulation and no breathing.[87]In the premises Drs Kolar, Lawler and Cartlidge are agreed that, on the balance of probabilities, F was dead when he was found in a collapsed state by his father. How long he had been dead before then, I cannot determine. In taking account of Dr. Lawler’s analysis and conclusions about the rectal temperatures, I have well in mind Dr. Cartlidge’s caution about the same. I make it clear that I have taken them into account only insofar as they are consistent with all the other evidence that I have referred to above.[88]I am urged on behalf of the parents not to exclude the possibility that F died from a known but undetected natural cause of death or from a natural cause of death unknown to medical science. Formally, having not proven a cause of death, the forensic and paediatric pathologists have given the cause of death as unascertained. I have the advantage over them of being able to consider and take account of the totality of the evidence. I bear well in mind that F was of an age when, sadly, very young babies can die suddenly and unexpectedly.[89]In light of the expert evidence about F having suffered inflicted injuries shortly before he died, and which if I accept, his death cannot properly fall within the category of deaths described as Sudden Infant Death Syndrome. Dr Cartlidge reminded me that SIDS now has a very restrictive definition. The forensic and paediatric pathologists cannot completely exclude the possibility that F’s death resulted from an undetected natural cause or a natural cause unknown to medical science.[90]The petechial haemorrhages and facial congestion identified by the examining pathologists and Dr Cartlidge were considered by the relevant forensic experts. It is the degree and extent of the facial petechial haemorrhages and facial congestion which leads them to conclude that these features are of very considerable significance in seeking to establish F’s cause of death.[91]Dr Lawler told me that facial petechial haemorrhages can possibly occur post mortem as a result of CPR but that there is a strong likelihood that the petechial haemorrhages in F’s case resulted from ‘something that went on ante mortem’.[92]Dr. Kolar considered that in the presence of the recently inflicted injuries, the degree and extent of facial congestion and petechial haemorrhages were “sinister” and concluded(1) an asphyxial process had taken place and(2) that the only realistic options for the cause of death were smothering, chest compression or a combination of the two. Dr. Malcolmson told me that those features of facial congestion and petechial haemorrhages were a “red flag” for upper airway obstruction.[93]Dr. Cartlidge agreed with Dr Kolar’s conclusions because it was an unifying diagnosis in the presence of the inflicted injuries. Moreover he told me that the closer the temporal connection between the infliction of F’s identified injuries and the time of his death, the less likely it is that he died from a known or unknown natural cause, as opposed to an asphyxial event.

The Mother

[94]The mother’s accounts are set out fully in her interviews with the police and in her court statements.[95]She told me, and I accept, that F was a cheerful, beautiful baby whom she loved. In relation to the events of 28 & 29 April, she said that she had awoken at her normal time of about 8am. F seemed fine; she fed him and changed his nappy. He was a bit grumpy though and was whingeing or crying but not screaming. He constantly wanted attention and if he was put down he would cry which meant that she had had to hold him most of the day. The father was trying to sort out the bedroom. In the late afternoon the maternal grandmother and her husband visited them for a short time.[96]After they had left, she bathed F, gave him his bottle whilst a new sofa was being delivered and she settled him down in his cot. He cried but she left him and he fell asleep after 15 minutes.[97]She told that she then had a glass of wine. There was a disagreement between herself and the father over a picture of G which she wanted to be hung up so that it would not get damaged. She later asserted that this argument lasted no more than 15 or 20 minutes. She accepted she was tired and emotional. At some time between 9.30-10pm their old sofa was collected by someone who had purchased it over the internet. After having had three glasses of wine she went to bed at 12.02am. She told me that she had asked the father to give F his next feed, to sterilise F’s bottles and to tidy the kitchen. She was too tired to clean her teeth and went to bed. She heard F stir and the father come into the bedroom to take him for his feed. She heard F cry when given some Calpol but stop when he started taking his milk. She went to sleep and was next aware of the father trying to wake her saying “AB there is something wrong with F”.[98]She got out of bed and asked the father to turn the bedroom light on. F’s arms were down and his lips were blue. She telephoned the emergency services and was asked to perform CPR on F which she did; for that purpose she had lifted F out of his cot and placed him on the floor on top of a quilt which the father had put down.[99]The mother did not instinctively and immediately pick up F and cuddle him when she found him in a collapsed state. She was asked about this in cross examination. I cannot understand, however awful the circumstances, that the mother’s first reaction was not to clutch this very young baby to comfort him or to seek to revive him. I asked the mother why she had not done so and I expressed my concern but the mother could offer no explanation. This issue greatly troubles me.[100]In cross-examination by the leading counsel on behalf of the local authority, she agreed she had been told by the police that F had been killed by someone. She said she did not want to think about his suffering but accepted that there was only herself and the father present in the family home that night.[101]She told me that she had not asked the father what had happened to F when she was asleep or what he had done to help F; she could not explain why she had not done so, other than she did not believe he would have done anything to their son because he was a devoted father and because she did not want to upset him.[102]She denied being drunk that night or of asking the father to take charge of feeding F through that night. She told me that she was better getting up at night to F than the father was. She said she did not need that much sleep. There was only one previous occasion when she almost slept through F awaking and crying at night and on that occasion all the father had to do was nudge her and she was immediately up attending to F.[103]The mother was emphatic that she went to bed at 12.02am. She asserted her neighbours were wrong when they suggested hearing arguments between the parents in the very late evening of 28 April or in the very early hours of 29 April. She never heard anything untoward that night and if F had screamed in pain she would have been straight up. If F had been harmed that night, she did not know who had inflicted those injuries. When I asked the mother that if I found the injuries were inflicted that evening then they must either have been inflicted by the father or by her, the mother told me that she had nothing further to add.[104]A little later she told me that the father had told her that he could have bitten F. Despite my warning about the significance of this evidence, the mother maintained she could not now remember this conversation nor how it had started. The father had no recollection of any such conversation.

The Father

[105]The father’s accounts are set out fully in his interviews with the police and in his court statements.[106]The father asked me to look at a delightful album of family photographs of F with his parents. He appeared to be a smiling, bonny and thriving baby.[107]The father has a speech impediment, a stutter. Nevertheless and when, no doubt, under very considerable stress and pressure, whilst giving his evidence, he managed extremely well. The father explained that his stutter had and does have a considerable adverse impact on his life; he cannot go shopping alone and has been unable to obtain employment. I accept his evidence on this point.[108]It is the father’s case that he did not telephone the emergency services when he found F collapsed because of his stutter. His stutter alone, however, does not in my judgment explain why the father did not make at least one attempt to contact the emergency services either(1) immediately upon finding his son in a compromised condition or(2) if it be true, when he had real difficulty rousing the mother. I cannot accept that a loving and devoted father would not have at least tried to make a 999 call. Furthermore, the father’s stutter does not explain the increasingly long pauses in his evidence when cross examined by leading counsel for the local authority on difficult aspects of his evidence. During those times he was not even attempting to speak; he was contemplating what he could or would say in reply. Invariably, the response was “I do not know”.[109]The father told me there was no incident of co-sleeping or overlaying of F. He could not imagine that the mother would have hurt F because she was a devoted mother. Moreover, he told me that she could not have hurt F without him knowing about it.[110]The father maintained that “not once” did he feel under pressure in looking after F even if he was tired. He, like the mother, accepted that there were “possibly” more arguments between them after F was born. He accepted that he sometimes said things to the mother to upset her.[111]He confirmed that, although he was not very good at waking at night, the mother was up straight away if F awoke or cried at night. There had only been one occasion when she had not awoken when he had had to nudge her awake.[112]The father accepted that he had drunk more that night than he normally would have done; 7 cans rather than the more usual level of 2-3 or 4 cans. He could not explain why he had more to drink that night but it was not, he said, because he was under any stress or pressure.[113]In contrast to the mother’s evidence, the father described F as screaming throughout the day of 28 April “like he was really scared”. He maintained, however, that F’s screaming had not got to him and he did not once think ‘I wish he would stop’. He denied the mother had asked him to feed and care for F throughout that night.[114]He supported the mother’s evidence that she had gone to bed at 12.02. Shortly thereafter he fed and changed F. It was plainly a difficult session for the father; F was difficult to feed, he vomited, and had to have his nappy changed twice.[115]He denied that he and the mother were arguing at midnight or at 1am to 1.30am. Towards the end of his first day of giving evidence he asserted, for the first time, that he was still up with F at 2.30 before saying he still was up with him to ‘2ish’. That is in marked contrast with what the father told the ambulance technician on the way to the hospital when he described attending to F at various points around midnight but that it was at 1.45 when he went into F and found him collapsed. The father told me that he had no reason to lie to the ambulance driver.[116]The father’s accounts of the time it took to awaken the mother have varied widely. From 45 minutes to 10 or 15 minutes. He has not, to my satisfaction, given any adequate explanation for those widely different time frames. Panic and distress do not provide a satisfactory explanation for the same.[117]In a difficult passage of his evidence, when there were very long or very very long pauses between the father being asked and then answering questions, he could not explain why he did not instinctively pick up F when he last went to see him and found his head cold when he kissed him and picked up his arm and it flopped down.[118]Further he could not explain why, when F was well when the father last checked him, he had “feared the worse” and thought he might be dead when he attended on F for the last time. Nor could the father explain why he had not switched on the bedroom light when he found F save that he feared what he might see. Even when pressed, he could give no explanation for why he feared his previously well and settled child was dead in his cot. I consider this to be an exceptionally important piece of the evidence. It raises the question for me of what happened that would cause the father to fear his son was dead. I warned the father of the potential adverse inference I could draw if he could not explain this, namely that he knew what had happened to F, he did not do so.

Analysis

[119]There are very many positives about the parents’ love for and care of F. I bear all of those in mind when considering my findings of fact in this matter.[120]During the preparation of this fact finding hearing there were many lively debates between the forensic medical experts about how to interpret the post mortem results and the medical findings. That was clearly demonstrated during the course of the first experts’ meeting. I consider it entirely appropriate and proper that forensic experts of the same or of different disciplines should challenge their colleagues on their findings, their conclusions and their reasons for the same. Dr. Cartlidge, as the sole consultant paediatrician instructed in this matter was at the forefront in taking his colleagues to task, which he considered, rightly in my view, to be good clinical practice.[121]I have made clear my concerns, and those of others about the role of Professor Freemont in this case. Even if, however, I put his evidence to one side, I am still left with the powerful evidence of Professor Mangham on the presence and significance of osteocyte necrosis in the slide of one of the three antero-lateral rib fractures. Neither of the forensic pathologists nor Dr. Cartlidge sought to gainsay any of his evidence on that issue. The latter took some issue with the time of the detection of osteocyte necrosis in very young babies, but the import of Dr. Cartlidge’s evidence was that the rib fractures were likely to have occured at a time closer to F’s death than that opined by Professor Mangham or Professor Freemont. Dr. Cartlidge did not begin to suggest that ostecyte necrosis could have developed after F ceased to have a functioning circulation.[122]At the conclusion of the evidence there was a broad and powerful consensus between the forensic experts on the cause of F’s suspicious injuries and marks identified on post mortem examination and on the cause of his death.[123]As I have indicated above I found the evidence of the neighbours to be compelling and persuasive. I can detect no reason why any of the four of them were lying in their evidence to me. Moreover, whilst it is possible that their timing of events might be out by a few minutes or so, it makes no material difference to the import of their evidence. I very much doubt that either Mr W or Mrs W have made may significant error in their timing of events given the cogent evidence they gave in support of the same.[124]In reaching all of those conclusions, in relation to the evidence of the neighbours, the only possible consequence is that I am not satisfied that the parents are telling me the truth about the events of the night of 28 April and the early hours of 29 April. I am fortified in coming to that conclusion on the basis that, independently of that evidence, I have come to the decision that the parents have lied to me in their respective accounts, given in writing or in oral evidence, about the events of that night and that morning.[125]The day of 28 April and the early hours of 29 April were far from a normal day in the family’s routine for the following reasons: a) F was extremely unsettled and was whingeing and crying or screaming to an unusual degree; b) He could not be put down without crying or screaming; c) He had to be held by his mother for most of the day; d) he only slept once during the day for some 30 minutes at about 2pm and did not have his usual daily naps; e) the father drank far more that evening than on a normal evening for reasons which he could not explain; f) the father was at pains to explain that he felt under no pressure or strain and at no point thought or wished that F would stop screaming; g) for the first time ever the mother did not immediately awaken when F awoke or cried; h) for the first time ever, the father claims to have taken a very considerable period of time to rouse and awaken the mother; i) as devoted, loving and caring parents, neither could offer any explanation whatsoever as to why, when they respectively discovered their beloved child in a compromised state, they did not immediately and instinctively seek to cuddle or hold him; and j) neither parent appears to have questioned the actions or inactions of the other parent at any point since F’s death notwithstanding the most unusual features of that day and night.[126]In the premises, I find that the mother lied about the following matters: a) Her denial that she and the father were arguing late into the night and into the early hours of 29 April; b) Her denial that during these times she was heard to be sobbing; c) The fact that from shortly after 12.02am until the father woke her, she saw and heard nothing of F; d) The time taken to call the emergency services from when she first saw F in a collapsed state; e) The failure to explain why she did not immediately pick up and hold F when she first saw him in a collapsed state; and f) The complete failure of the parents subsequently to ask each other any questions about the events of the night, other than the question “did you do anything to F?”.[127]In the premises, I find that the father lied about the following matters: a) his denial that he and the mother were arguing late into the night and into the early hours of 29 April; b) his failure to explain the reasons why he drank so relatively heavily that particular evening; c) his failure to explain why he “feared the worse” and thought F was dead when he found his forehead cold when he kissed him goodnight and his arm floppy when he lifted it when just some 20 minutes earlier F had, on the father’s evidence, been perfectly well and normal; d) his failure to switch on the bedroom light or to attempt immediately to call 999; e) in his varying and inconsistent accounts of the time it took to wake the mother, if in fact she was asleep; f) the time at which he found F in a collapsed state; g) his failure to remember the conversation told to me by the mother that he had told her that he could have bitten F; and h) in his assertion that he felt under no pressure or stress during that day and that night.[128]In the premises I can discern no innocent reason for the parents to tell those lies.[129]In the light of all of the evidence I have no hesitation in accepting the expert medical evidence which I have set out at paragraphs 35-40 and 61-86 inclusive. I am satisfied that, on the balance of probabilities the experts are correct in their respective conclusions.[130]In all of the circumstances of this tragic case I am drawn to the conclusion and despite all of the positive features known and recognised about the parents, that there is only a sinister explanation for the parents’ respective lies namely that one or other of the parents inflicted the identified injuries on F and caused his death.[131]It would be wrong of me to speculate about what drove or caused one or both of the parents to act as they did. I cannot know what precisely happened in the family home that night because they have chosen not to tell me. Given all I know of the family’s home , of their routines and on the basis of their own evidence that they were always together, especially on the night of 28/29 April, it follows that if one of them hurt or caused F’s death, the other parent would have known of the same either at the time or very shortly thereafter. F, on the expert evidence available to me, could not, on the balance of probabilities, have been successively injured and then suffocated in complete silence.[132]Only the parents know what happened in their home that night. I hope that one or both will, in the course of time, tell the truth about what occurred and what befell F.

Findings

[133]On the totality of the written evidence, which I have read, and oral evidence which I have heard and for the reasons given above, I make the following findings of fact, on the balance of probabilities: a) the slide of one of the three antero-lateral rib fractures examined by Professors Freemont and Mangham demonstrated osteocyte necrosis and accordingly that rib fracture was sustained ante-mortem and at a time when F had a functioning circulation; b) the probability that this one fracture was sustained ante-mortem but the other adjacent two fractures were sustained post mortem is unlikely in the extreme and accordingly, all three rib fractures were sustained at a time when F had a functioning circulation; c) those rib fractures are inflicted injuries; d) the bruise on F’s right forearm results from an inflicted injury, namely a human bite mark and was sustained ante mortem; e) the bruise on F’s right wrist is an inflicted injury and was sustained ante-mortem; f) the only perpetrators of these 2 inflicted injuries are the mother and/or the father; g) there was a substantial degree of upper chest and facial congestion; h) there were substantial and extensive petechial haemorrhages on F’s face; i) the only credible and realistic cause of those post mortem findings is an ante-mortem or a peri-mortem asphyxial event; j) the only realistic cause of that asphyxial event is: i) imposed upper airway obstruction (i.e. smothering); ii) chest compression; or iii) a combination of smothering and chest compression k) both of the parents have lied about the events in the family home of the late evening of 28 April and the early hours of 29 April; l) each of the parents know what took place in their family home on the late evening of 28 April and the early hours of 29 April but they have each chosen not to tell the court; m) the telephone call to the emergency services was unreasonably and unnecessarily delayed after F was found in a state of collapse and was only made about one hour later; n) F was dead by the time the mother commenced CPR shortly after making the call to the emergency services; o) F was dead when the paramedic and ambulance crew attended at the family home at 2.51am on 29 April; p) there is no history of co-sleeping on the night of 28/29 April and no account of either parent overlaying F; q) accordingly, the cause of F’s death was imposed upper airway obstruction (i.e. smothering) or imposed and sustained chest compression or a combination of the two acts; r) the only perpetrators of those acts is either the mother and/or the father; s) the perpetrator or perpetrators of the inflicted rib fractures and bruising injuries referred to above and/or the perpetrator or perpetrators of F’s death have chosen not to disclose the same to the court; and t) insofar as only one of the parents inflicted the rib fractures and bruising injuries referred to above and caused F’s death, the other parent was, at the time or subsequently, aware of the same but has chosen not to disclose the same to the court.[134]In the premises I find that the threshold criteria of s.31 (2) Children Act 1989 are satisfied in respect of E. Accordingly, I must consider the care plan proposed by the local authority and what course is in the welfare best interests of E.

The Law – Welfare

[135]I have regard to and have taken account of the provisions of s.1 (1) and s.1 (3) Children Act 1989. E’s welfare best interests are my paramount consideration.[136]I have regard to and have taken account of the Article 6 and 8 rights of E and the parents. Nevertheless, where there is a tension between the Article 8 rights of the child, on the one hand, and the rights of the parents, on the other, the rights of the child prevail: Yousef v. The Netherlands [2003] 1 FLR 210.

Care Plan

[137]I announced my principal findings of fact in advance of this judgment in order to enable the parties to consider their respective positions in relation to the future care arrangements for E. The local authority concluded that, in light of my findings of fact, E could not safely be returned to the care of either of her parents.[138]I gave permission for the social worker to discuss my principal findings of fact with the paternal grandparents. I am told, and accept, that they understood and accepted those findings in relation to the death of F.[139]Accordingly, the local authority filed and served a care plan proposing that E should live, for the remainder of her minority, in the care of her paternal grandparents under the auspices of a special guardianship order. The local authority filed and served a special guardianship report and a special guardianship support plan. I am satisfied that each of those documents satisfied the necessary statutory and procedural requirements.[140]The local authority proposed the parents should have regular but closely supervised contact with E.

The Parents

[141]In light of my findings of fact, the parents accepted that they could not realistically seek E’s return to the care of either of them, whether they remained in a relationship or if they separated.[142]The parents agreed with the local authority’s care plan and consented to the making of a special guardianship order in respect of the paternal grandparents.[143]Each were content with the frequency of contact they should enjoy with E and accepted that this contact would, for the foreseeable future, have to be supervised.

Children’s Guardian

[144]The Children’s Guardian wholly supported the local authority’s care plan and its proposals for the parents’ future contact.

Conclusions

[145]I am entirely satisfied that the care plan and contact proposals advanced by the local authority are in the welfare best interests of E. I am very pleased that the paternal grandparents have accepted my findings of fact and have agreed to care for E during her minority. I recognise, notwithstanding the enormous great pleasure they each enjoy in caring for her, that it is a very considerable commitment.[146]I wish them and E well for the future.[147]The parents are both very young. They are likely to have other children in the future. I do hope they will reflect very carefully on my judgment not only for their own benefit but for that of any children they may have in the future.[148]Finally I would like to express my gratitude to all leading and junior counsel for their assistance in this tragic case and for their full and helpful submissions.

Cited in 1 later judgment