A Local Authority v The Mother & Ors [2023] EWFC 166

Case No MK22C50123IN THE MILTON KEYNES COUNTY COURT[2023] EWFC 166Milton Keynes County Court51 Silbury Blvd,Milton KeynesMK9 2DTDate 15 th September 2023
Before
Mr. Justice Williams
Between
A Local AuthorityApplicant
Mr. Aidan Vine KC and Mr. Simon Miller (instructed by Emily Taylor) for Local AuthorityMr. Darren Howe KC, Miss Michelle Christie & Miss Charlene Henderson (instructed by Denise Higgins of Woodfines Solicitors) for MotherMs. Taryn Lee KC, Miss Hannah Mettam & Mr. Andrew Duncan (instructed by Keri-Anne Bradley of Family Law Group Solicitors) for FatherMr. Jonathan Sampson KC and Mrs. Hena Vissian (instructed by Jennifer Browne of Machins Solicitors) for children through their GuardianHearing Hearing dates: 27, 28, 29, 30 June and 3, 4, 5, 6, 7, 11, 12, 13, 17, 18, 21, 28 July 2023 and 15 th September 2023
Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court..............................

Mr. Justice Williams:

[1]I am concerned with five children; i) A ii) B iii) C iv) D v) E[2]Now, for nearly 5 weeks, I have been carrying out a fact-finding hearing within the care proceedings brought by the Local Authority. The first respondent is the mother of the five children. The second respondent is the father of the five children. The five children are represented by their children’s Guardian. Each of the parties have been represented throughout this hearing by Leading and Junior Counsel. In the case of the local authority, the mother and the father, they also had the assistance of second junior in order to analyse the extensive data downloads from the parents’ digital devices.[3]At the commencement of the case, the Local Authority threshold document in summary alleged that the children were suffering significant harm ‘attributable’ to the care of the parents. Alternatively, it was alleged that the children were likely to do so as set out below in plain script. Following the expert evidence, the position began to shift, as the Local Authority moved away from allegations of deliberate introduction of faecal matter into the Ventriculoperitoneal shunt [VPS] or External Ventricular Drainage [EVD] and, after the close of the parents’ evidence, the Local Authority filed a Revised Schedule: The parents’ responses are summarised also. They denied that the Threshold was met in their responses filed in June 2023. i) Firstly, Mother interfered with the management of C’s gastrostomy PEG on 3rd March 2021 (paragraphs 7 and 8); No Finding Sought – given the evidence as to C’s feeding regime in hospital. ii) Secondly, C sustained faecal bacterial infections on 15/16th June 2022 and 19th/22nd June 2022, and did so as a result of either accidental or negligent manipulation of her ventriculoperitoneal shunt, or the deliberate introduction of faecal matter into the same, by either Mother or Father, and that in the event this was accidental any accident involved significant recklessness (paragraphs 9 to 25); 15.06.2022 to 22.06.2022 polymicrobial CSF/shunt infections. No finding is sought any longer in respect of this infection episode – given the evidence as to the absence of any plausible mechanism for this to be caused by parental act at the relevant time. NEW: 21.01.2022 (to 01.02.2022) polymicrobial blood and CSF infections. Mother introduced these infections through careless or reckless management of C’s EVD line system, or in some other manner known only to her. The parents question the origin of the bacteria and point to the possibility of poor hygiene in the changing of sheets, the nurses not wearing gloves when handling the EVD and C herself playing with her hair/head with possibly contaminated hands. They say they maintained good hygiene practice and M says she did not handle the EVD catheter. iii) Thirdly, Mother caused two ‘pin prick’ punctures to C’s EVD line on 3rd July 2023, and these were acts of deliberate sabotage and recklessness (paragraphs 26 to 31); Mother caused the two puncture holes to C’s EVD line using a narrow gauge syringe needle, for reasons known only to her. She did so sometime between 10 am and 10.15 am on 03.07.2022. These actions, in and of themselves, risked causing C significant harm, given the consequential infection risk, albeit there was no associated infection episode that followed. The Mother denies this. Both parents identify other incidents of damage to EVDs in this period which are unexplained. iv) Fourthly, Father removed C from the hospital ward on 12th and 13th August 2023, against medical advice, and that he did so on the latter occasion to facilitate unauthorised contact with Mother (paragraphs 32 to 34); The Allegation of removal against medical advice is withdrawn. The allegation of facilitating unauthorised contact is maintained. The mother and father both admit this. v) Fifthly, C sustained a further faecal bacterial infection on 14/16th August 2022, and did so, again, as a result of either accidental or negligent manipulation of her ventriculoperitoneal shunt, or the deliberate introduction of faecal matter into the same, by either Mother or Father (paragraphs 35 to 47); No finding is sought any longer in respect of this infection episode – given the evidence as to the absence of any plausible mechanism for this to be caused by parental act at the relevant time. vi) Sixth, Mother and Father have subjected each of the children to excessive chastisement and punishment (paragraphs 48 to 49); These are maintained and include; the mother putting washing up liquid in their mouths; both parents smacking A, B, C, D and E on the legs, arms, bum and face; the father pinching B, D and A on the penis and the mother smacking them on the penis; the mother and father locking A, D and B outside in the cold and dark ; A and B being smacked for getting up in the night to use the toilet; The parents deny the detail of the allegations but admit some incidents arising from their struggling to care for the children including: Putting A and B in the garden for punishment (both parents); Mother threatening to pack A’s bags and to kick him out of the home; Smacking A and B in isolated occasions (both parents); Mother punching B on one occasion; Mother smashing the boys’ toys. Mother also required A to pack his own bags, vii) Seventh, Mother and Father have neglected the children (paragraphs 50 to 61); Aggressive behaviour at school, inability to use of cutlery and B’s delayed development) are maintained; Neglect relating to the family dogs is maintained to the extent that dog faeces was left in the garden and inside the home in August 2021, as admitted at A109 §11; and dog faeces were still being left in the garden in July 2022, The historic dirty state of the family home is admitted by Father in respect of the state of the property in 2019. We do not suggest that the family home was constantly dirty, and do not seek a finding in relation to the historic state of the family home beyond the admission made by Father. A and B presenting as dirty and hungry at school is maintained. The mother and father admit aggressive behaviour and delayed development but deny any link with their parenting. They admit isolated occasions of dog faeces being present at their home when they had not had time to clear up. They deny the children were ever dirty or hungry as a result of neglect. viii) Eighth, Mother and Father have breached safety plans and or bail conditions by Mother being in sole care of A, B, D and E, and or by having unauthorised contact with C on three occasions (paragraphs 62 to 64). On 8 August 2022, Mother was at home with A, B, D and E in breach of the local authority safety plan. On 13 August 2022, Father facilitated contact between Mother and C in breach of her bail conditions and the local authority child protection plan. On 9 September 2022, Mother was at home with A, B, D and E in breach of the local authority safety plan. The parents admit these occasions but say in respect of the breaches of the safety plan that they were expecting family members to be present to supervise. Fact Finding: The Law The burden and standard of proof

Fact Finding: The Law

[4]In order to make a care or any public law order the Local Authority must prove that the situation justifies the intervention of the State. This means that the Local Authority must establish the statutory threshold set out in s.31(2) Children Act 1989. (2) A court may only make a care order or supervision order if it is satisfied –(a) that the child concerned is suffering, or is likely to suffer, significant harm; and(b) that the harm, or likelihood of harm, is attributable to – (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child's being beyond parental control.[5]In respect of the task of determining whether the ‘facts’ have been proven, the following points must be born in mind, as referred to in the guidance given by Baker J in Re L and M (Children)[2013] EWHC 1569 (Fam) confirmed by the President of the Family Division in In the Matter of X (Children) (No 3) [2015] EWHC 3651 at paragraphs 20 – 24. See also the judgment of Lord Justice Aikens in Re J and Re A (A Child) (No 2) [2011] EWCA Civ 12, [2011] 1 FCR 141, para 26[6]The burden of proof is on the Local Authority. It is for the Local Authority to satisfy the court, on the balance of probabilities, that it has made out its case in relation to disputed facts. The parents have to prove nothing, and the court must be careful to ensure that it does not reverse the burden of proof. As Mostyn J said in [Lancashire v R 2013] EWHC 3064 (Fam), there is no pseudo-burden upon a parent to come up with alternative explanations [paragraph 8(vi)].[7]The standard to which the Local Authority must satisfy the court is the simple balance of probabilities. The inherent probability or improbability of an event remains a matter to be taken into account when weighing probabilities and deciding whether, on balance, the event occurred [Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 at paragraph 15]. Within this context, there is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not [Re B at paragraph 2]. If a matter is not proved to have happened or as in this case is no longer pursued I approach the case on the basis that it did not happen.[8]Findings of fact must be based on evidence, and the inferences that can properly be drawn from the evidence, and not on speculation or suspicion. The decision about whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors [A County Council v A Mother, A Father and X, Y and Z [2005] EWHC 31 (Fam)].[9]The court considers expert evidence alongside all the other evidence. Rather, it must take account of a wide range of matters which include the expert evidence but also include, for example, its assessment of the credibility of the witnesses and the inferences that can properly be drawn from the evidence. 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 a conclusion. In this case the parents urge the court to place the local authority’s case in the context in particular of the positive reports of the parents care of the children and the multiplicity of reports which observe positive parenting[10]Thus, the opinions of medical experts need to be considered in the context of all of the other evidence. 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. Cases involving allegations of this nature often involve a multi-disciplinary 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. When considering the medical evidence in cases where there is a disputed aetiology giving rise to significant harm, the court must bear in mind, to the extent appropriate in each case, the possibility of the unknown cause [R v Henderson and Butler and Others [2010] EWCA Crim 126 and Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam)]. Today's medical certainty may be discarded by the next generation of experts. Scientific research may throw a light into corners that are at present dark. “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."[11]In BR (Proof of Facts), Re [2015] EWFC 41 Peter Jackson J (as he then was) stated: “8. Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility. 9. When assessing alternative possible explanations for a medical finding, the court will consider each possibility on its merits. There is no hierarchy of possibilities to be taken in sequence as part of a process of elimination. If there are three possibilities, possibility C is not proved merely because possibilities A and B are unlikely, nor because C is less unlikely than A and/or B. Possibility C is only proved if, on consideration of all the evidence, it is more likely than not to be the true explanation for the medical findings. So, in a case of this kind, the court will not conclude that an injury has been inflicted merely because known or unknown medical conditions are improbable: that conclusion will only be reached if the entire evidence shows that inflicted injury is more likely than not to be the explanation for the medical findings.[12]The evidence of the parents and of any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them [Re W and Another (Non-Accidental Injury) [2003] FCR 346].[13]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 the balance of probabilities [Re S-B (Children) [2009] UKSC 17], the first stage being to identify any person who had the opportunity. 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. The court must not assume that because Person A is more likely to have inflicted the injury than Person B that this establishes on the balance of probability that it was Person A. 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, neither can be excluded from the pool [Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 11348; Re D (Children) [2009] 2 FLR 668 and Re S-B (Children)]. The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or she cannot do so, then, in accordance with Re B (2019), he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.[14]Where a perpetrator cannot be identified, the court should seek to identify the pool of possible perpetrators on the basis of the real possibility test, namely that if the evidence is not such as to establish responsibility on the balance of probabilities, it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. The obvious conceptual conflict this presents with a binary approach mandated by authority is obvious, but it has been endorsed by the Supreme Court and logically is not inconsistent with the section 31 statutory threshold. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case [Re S-B (Children) at paragraph 43]. The need for care to be taken not to reverse the burden of proof when the court considers the pool of perpetrators was considered in B (Children: Uncertain Perpetrators) [2019] EWCA Civ 575. [para 48] “Centrally, it does not alter the general rule on the burden of proof. Where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did. No one can be placed into the pool unless that has been shown. This is why it is always misleading to refer to 'exclusion from the pool': see Re S-B at [43]. Approaching matters in that way risks, as Baroness Hale said, reversing the burden of proof.”[15]In cases where there may be a number of people potentially in a pool because they had access to the child at the relevant time the court must scrutinise whether that access included the opportunity to cause injury. In the North Yorkshire County Council case [2003] 2 FLR 849, para 25/26 Peter Jackson LJ said “the extension does not stretch to ‘anyone who had even a fleeting contact with the child in circumstances in which there was the opportunity to cause injuries”.[16]Where there are only two possible perpetrators the court must survey the evidence as a whole as it relates to each individual in order to arrive at a conclusion about whether the allegation has been made out in relation to one or other on the balance of probabilities. Evidentially this will involve looking at them separately and together no doubt comparing the probabilities in respect of each of them. The question the court must ask is “does the evidence establish that this individual probably caused this injury” and not who is the more likely. [Re B (a child) 2018 EWCA civ 2127, set out at paragraph 21.][17]Drawing on this Lady Justice King in A (Children) [2018] EWCA Civ 1718stated that: “57. I accept that there may occasionally be cases where, at the conclusion of the evidence and submissions, the court will ultimately say that the local authority has not discharged the burden of proof to the requisite standard and thus decline to make the findings. That this is the case goes hand in hand with the well-established law that suspicion, or even strong suspicion, is not enough to discharge the burden of proof. The court must look at each possibility, both individually and together, factoring in all the evidence available including the medical evidence before deciding whether the “fact in issue more probably occurred than not” (Re B: Lord Hoffman). 58. In my judgment what one draws from Popi M and Nulty Deceased is that:(i) Judges will decide a case on the burden of proof alone only when driven to it and where no other course is open to him given the unsatisfactory state of the evidence.(ii) Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances.(iii) The court arrives at its conclusion by considering whether on an overall assessment of the evidence (i.e. on a preponderance of the evidence) the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen) and not by reference to percentage possibilities or probabilities.” 18. The previous jurisprudence stressed that courts should not strain to find a perpetrator, but I would emphasise that neither should courts shy away from making findings because the evidence is finely balanced. The civil standard of proof of more probable than not is in the vast majority of cases sufficient to enable a court to reach a factual conclusion on perpetrator – more probable than not entertains the possibility of many and significant matters potentially counting against that conclusion but if one is faced with two perpetrators, with the volume of evidence normally available to the court it is my experience rare for the court to be left in a position where it cannot reach a conclusion on the question of whether it is more likely than not that person A did it or more likely than not that person B did it. The move from a conclusion that Person A is more likely to have done it than Person B to a conclusion that Person A is more likely than not to have done it and the corollary that Person B is not likely to have done it may not involve much further analysis.[19]In R v P (Children: Similar Fact Evidence)[2020] EWCA Civ1088 the Court of Appeal at paras 24-26 considers when and how the court should rely upon propensity/similar fact evidence:
“24. This analysis, given in a civil case, applies also to family proceedings. There are two questions that the judge must address in a case where there is a dispute about the admission of evidence of this kind. Firstly, is the evidence relevant, as potentially making the matter requiring proof more or less probable? If so, it will be admissible. Secondly, is it in the interests of justice for the evidence to be admitted? This calls for a balancing of factors of the kind that Lord Bingham identifies at paragraphs 5 and 6 of O'Brien. 25. Where the similar fact evidence comprises an alleged pattern of behaviour, the assertion is that the core allegation is more likely to be true because of the character of the person accused, as shown by conduct on other occasions. To what extent do the facts relating to the other occasions have to be proved for propensity to be established?... 26. Again, this analysis is applicable to civil and family cases, with appropriate adjustment to the standard of proof. In summary, the court must be satisfied on the basis of proven facts that propensity has been proven, in each case to the civil standard. The proven facts must form a sufficient basis to sustain a finding of propensity but each individual item of evidence does not have to be proved.”

Lies/Withholding Information

[20]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 at all times that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. The fact that a witness has lied about some matters does not mean that he or she has lied about everything [R v Lucas [1981] QB 720]. It is important to note that, in line with the principles outlined in R v Lucas, it is essential that the court weighs any lies told by a person against any evidence that points away from them having been responsible for harm to a child [H v City and Council of Swansea and Others [2011] EWCA Civ 195].[21]The Family Court should also take care to ensure that it does not rely upon the conclusion that an individual has lied on a material issue as direct proof of guilt but should rather adopt the approach of the Criminal Court, namely that a lie is capable of amounting to corroboration if it is(a) deliberate,(b) relates to a material issue, and(c) is motivated by a realisation of guilt and a fear of the truth [Re H-C (Children) [2016] EWCA Civ 136 at paragraphs 97-100]. All remind the court that lies about one aspect of the case, for instance criminality, should not lead the court to conclude that there is a lack of honesty throughout. I have no difficulty in accepting this proposition. If the witnesses have been dishonest in various ways it does not mean they have been dishonest in every respect and it does not mean their evidence can in effect be ignored. However conversely if I find someone to be dishonest in a significant way on one category of allegation inevitably it will impact upon the weight that I’m likely to attribute to their evidence on other issues, on the need to search for corroboration and thus the balance that may ultimately emerge. The weight rightly to be given to the evidence of those who are transparently honest and reliable might outweigh medical and other factual evidence leading to a local authority being unable to prove a case on the balance of probabilities. On the other hand, the same medical and other evidence might establish the local authority’s case when the parent or intervenors evidence can be given little weight because it is transparently dishonest and unreliable. That does not reverse the burden of proof but is simply the outcome of the evaluative exercise of the weight to be given to the various pieces of evidence before the court.[22]I am also alert to the danger of placing too much weight on inconsistencies which may emerge from the giving of multiple accounts over time. In Lancashire County Council v The Children [2014] EWFC 3 (Fam), Jackson J (as he then was) said:
“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 accounts. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural - a process that might in elegantly be described as ‘story-creep’ - may occur without any necessary inference of bad faith.”
[23]I bear in mind the observations of Leggatt J in the Gestmin case [2013] EWHC 3560 (Comm) about the fallibility of memory. As with most issues of evaluation of evidence it is of course always a question of fact and degree in which the consistency of evidence with previous accounts or with other evidence must be the subject of scrutiny and balance. Evidence may be honestly and sincerely given but be false. The passage of time and the repeating of allegations in court and discussion outside court can undoubtedly result in memory creep. Inconsistency in accounts separated in time does not necessarily mean the accounts are not honestly given. As with most issues of evaluation of evidence it is of course always a question of fact and degree in which the consistency of evidence with previous accounts or with other evidence must be the subject of scrutiny and balance. The consistency of witness testimony with earlier accounts given by the same witness, its consistency with other witness or documentary evidence particularly contemporaneous records or digital footprints, the internal consistency or credibility of an account are all (non-exclusive) matters that go into the overall evaluation of witness reliability or credibility. In some cases where the only evidence available is that of two individuals – a rare case as there will usually be some other evidence from other domains which sheds light on their reliability or honesty or from others as to the dynamic between them which might illustrate the probability of the matter – then the behaviour or demeanour of each in giving their evidence might assume a greater importance but even then the court is unlikely to be left with only their behaviour or demeanour as a gauge for their honesty or reliability because the content of their testimony together with what the court can gauge of the dynamic that exists between the two from their behaviour in court or even the way their case is put will form part of the totality of the light that is available to the court to illuminate where probability lies. I would add that seeking to draw inferences from how an individual behaved at the time must also be approached with caution particularly in acutely distressing circumstances such as serious injury to a child. Caution should be exercised in passing judgement on how one should be expected to behave in such circumstances.[24]I have, in the particular circumstances of this case, reminded myself when assessing and weighing the impression I form of the mother of the observations of Macur LJ in Re M (Children) [2013] EWCA Civ 1147: [12] Any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so.[25]The need for caution in how one evaluates the credibility of a witness and the reliability of their evidence by reference to demeanour and the need for caution in the weight to be given to demeanour in the evaluation of evidence was also articulated by Leggatt LJ in Sri Lanka v Secretary of State for the Home Department [2018] EWCA 1391.[26]I should emphasise that this is not to say that the demeanour of a witness or party in giving evidence or their behaviour in the witness box is irrelevant to the evaluation of their credibility. What the cases caution against is placing too much reliance on demeanour or behaviour in particular where there is other evidence against which the reliability of evidence can be evaluated. Some witnesses are confident liars, others are hesitant truth tellers. However, demeanour in a broader sense can still be of great assistance to a judge; the evidence of a witness who appears reflective, objective, self-critical, who confines themselves to the facts is likely to be given more weight than that of the witness who is argumentative, subjective, partial, dogmatic. That is not because the former may be easier on the ear to the tribunal and the latter more challenging or frustrating but because those qualities or flaws are relevant to the substantive issue of the likely reliability of the evidence. Observation of demeanour in court may also assist the judge in evaluating how that person might act away from the court arena. The ability to undertake a comparative evaluation of the characters and the dynamic between them may be assisted by the insight gained into their personalities from their demeanour and attitude in the witness box.[27]The approach to the evidence of children has been considered in many cases, in particular in the field of child sexual abuse and the advantages of evidence emanating from an ABE process and the caution which courts should apply to accounts given by children where such safeguards are not in place is well known. That does not mean such evidence should be discounted entirely. Simply that the court should consider the evidence carefully and subject it to rigorous scrutiny to see whether in all the circumstances it should be given weight.[28]Although the general approach is that any fact which needs to be proved by the evidence of witnesses is generally to be proved by their oral evidence (r22.2(1)(a) FPR 2010) facts may also be proved by hearsay evidence. The effect of Children Act 1989 s.96(3), Children (Admissibility of Hearsay Evidence) Order 1993 is to make all evidence given in connection with the welfare of a child admissible notwithstanding its hearsay nature. This would commonly include Local Authority case records or social work chronologies which are very often hearsay, often second- or third-hand hearsay but also extends to witness statements. The court should give it the weight it considers appropriate: Re W (Fact Finding: Hearsay Evidence) [2014] 2 FLR 703 and where hearsay goes to a central issue the court may well require the maker of the hearsay statement to attend to give oral evidence.

The evidence

[29]The documentary evidence in the case comprised three separate bundles; one provided on Caselines and two in PDF form (the medical records bundle and the Local Authority records bundle). In addition, I heard oral evidence from the following i) G, Consultant Neurosurgeon in C’s neurosurgical team; ii) H, the nurse on duty when C deteriorated and was admitted to PICU and a syringe was found in the mother’s bag in March 2021; iii) Professor Vloeberghs, Part 25 Consultant Paediatric Neurosurgeon; iv) Dr Jacobs, Part 25 Forensic Scientist; v) Dr Cowling, Part 25 Consultant Microbiologist; vi) Dr Ward, Part 25 Consultant Paediatrician; vii) Nurse I; viii) Nurse J; ix) Nurse K; x) Mrs. L, Teacher; xi) Nurse N; xii) Dr O, Registrar in C’s Neurosurgical team; xiii) Mr. P, Consultant in C’s Neurosurgical team; xiv) Nurse Q; xv) Nurse R; xvi) S, respite carer; xvii) T, Foster carer; xviii) The Mother; and xix) The Father.[30]Large parts of the evidence, together with aspects of my evaluation and conclusions, are contained within the chronology which accompanies this judgment.

Expert Evidence

[31]Professor Michael Vloeberghs, a consultant paediatric neurosurgeon was instructed to provide the report as a single joint expert. He reported on 20th March 2023, participated in the experts meeting and gave oral evidence on 3rd July. He provided answers to further written questions on 19th July 2023. In his evidence he said (amongst much else) the following. i) C sustained numerous infections to the shunts and external ventricular drains. These included more commonly encountered infections related to skin bacterium which could be introduced into the wound during surgery, and which will spread via blood. She also sustained pseudomonas infection which are: hospital bacteria and can colonise the whole body. She also sustained infections related to faecal bacterium. The faecal infections long predated the puncture of the EVD discovered on 3rd July 2022. Faecal infections in shunts are seen with children, very young children. It happens and you can’t differentiate between deliberate and negligent, accidental or non-accidental causation. The polyculture of faecal bacteria is most unusual – perplexing and confounding. They are very dangerous – life threatening infections. You can rule out translocation, bowel perforation and underlying Central Nervous System [CNS] abnormalities. ii) Infections of EVD’s are a much greater risk than VPS because they involve an opening in the scalp through which the proximal catheter emerges after tunnelling for up to 10cm from the burr hole. The proximal catheter is joined to the distal catheter by a plastic joint and secured with suture (like a jubilee clip). There is a one-way valve. The catheter is coiled and secured to the scalp with three sets of sutures. The distal catheter then attaches to the collection system. Intrathecal drugs can be injected into the skull via the port in the collection system. It is carried out by neurosurgery as it requires neurosurgery levels of hygiene, as it is injecting antibiotics into the ventricular space. An alternative form of EVD is a long-tunnelled version where the catheter emerges not from the scalp but is tunnelled under the skin to the collar bone or abdomen. iii) Hygiene is most important with EVD and if C had loose stools and her sheets were not changed (as there are records of them not being) this would be a risk factor for EVD contamination. A child may well pull at their hair or scratch a shunt incision and introduce faeces into the wound. In his opinion, there were multiple opportunities to contaminate the EVD system i.e. at the level of the wound on the head, when touching the exit point of the drainage system on the head and when the connectors to the collection system are touched. He had seen it, although the scratching had left an open wound. He did not think faecal bacteria could gain entry via an abrasion and then leave intact skin but cause an infection under the skin layer. The August infection is likely linked to the surgery. A child with an EVD will not be discharged home because of the risk of infection. There is a link with CSF fluid leaking from EVD. CSF leakage from an EVD can lead to life threatening subdural haematoma from the brain decompressing (not an infection issue) but if fluid can get out something else can get in. iv) Infection of a VPS was different, as it was all enclosed under the skin. The most common sources of infection were bacteria which were introduced at the time of the operation to insert a shunt, which could lie dormant for weeks or months before it caused symptoms. After implant of a VP shunt, there were in his opinion equally ample opportunities to contaminate the surgical wounds at the head and at the level of the abdomen in these conditions. The VPS kit is very vulnerable and sensitive to intra-operative infection. Professor Vloeberghs’ preference was to shave hair prior to surgery in order to eliminate the risk of bacteria but there were differences in approach, even if there was left in place hygiene protocols that would minimise the risk of introducing bacteria from hair. However, it was possible that faecal bacteria could be in the hair and introduced during an operation. The literature supported the possibility of infections emerging in VPS long after the operation. The risks were higher whilst the incision wounds were healing and they may not be covered by dressings, and the risk reduced as the incisions healed. Professor Vloeberghs had seen faecal infection introduced through a child scratching a wound, but it was an open wound. Poor hygiene around faeces could increase the risk but it was unlikely faeces could get to the shunt from a skin abrasion. v) Professor Vloeberghs had personal experience of polymicrobial infections of EVDs and shunts systems, the latter in conjunction with Necrotising Enterocolitis or bowel perforation. Professor Vloeberghs makes a direct connection between his experience of polymicrobial infections and bowel pathology. His later general comments draw together his earlier specific points, although his conclusion that C may be an unusual example of shunt misery (by implication infections arising 'naturally') remains. vi) The accepted knowledge and clinical experience shows most infections in the CNS of cranial/ventricular implants are due to contamination by skin bacteria. Low grade skin bacteria i.e. Streptococcus Milleri are common findings in shunt infections and often present as shunt blockages i.e. raised intracranial pressure and becoming acutely unwell without significant clinical symptoms of infection. vii) Contamination of the Cebrebral Spinal Fluid [CSF] after intestinal pathology is seen, for example, in premature babies with Necrotising Enterocolitis. Even when the Enterocolitis is adequately treated, there is infrequently CSF contamination with E. Coli. For this reason, his clinical practice is to sample CSF prior to a shunt implant for hydrocephalus to avoid 'Coliform (sic Dr Cowling)' shunt infections which cause devastating ventricle and brain infections. viii) The accepted knowledge and clinical experience shows most bacterial CNS and bacterial infections in general, are caused by a single bacterial species. Mixed cultures of an infected area are seen in open and surgical wounds where there is ancillary contamination from skin bacteria. Another possibility is when there is bowel perforation/damage, which is a rare complication in ventriculo-peritoneal shunts, either as a surgical complication at the time of implant or erosion of the bowel by the peritoneal catheter, which can occur spontaneously. ix) It is a known phenomenon for pockets of bacteria to lie dormant and be unaffected by antibiotic treatment and for them later to emerge. The brain can make small pockets of scar tissue which isolate bacteria and they remain. In October 2022, the evidence of adhesions in the ventricles was likely evidence of the pockets which the brain had isolated. They can withstand even intrathecal antibiotics. He had personal experience with 'dormant' CNS infections because of remnant contaminated pockets within the ventricles of the brain and the brain substance (access format) where, despite antibiotic treatment, infection persists and re-operation i.e. access drainage, ventricular wash out or 'deloculation’ (i.e. opening of closed off pockets), is required. x) In June 2022 C had an infection at the shunt site. There was redness and swelling and, when operated, there was fluid around the reservoir and pus material around the catheter distal to this. She had infection in the ventricles which required a wash out and extensive antibiotic treatment. The infection was related to multiple organisms usually found in gut faeces and MRI found no peritoneal/spinal source for the infection. The bezoar [a mass of hair and undigested feed] found did not grow the organisms found in the CSF and so that was unlikely to be a source of these infections and there was no pus or perforation in the abdomen to explain them. xi) A puncture to the EVD at the proximal catheter would require a change of the EVD and an operation. A puncture to the distal catheter would require a change in the distal catheter but this would not require an operation. A puncture with a needle would be likely to leak fluids soon after it was caused, particularly if a surgical needle was involved. Although the pressure within the catheter is not necessarily very high, one would expect it to leak. There were no medical interventions carried out which might inadvertently result in the damage to the EVD. It was thus unlikely that the puncture to the proximal catheter seen on 3rd July 2022 occurred during the operation to insert it on 22nd June 2022. Incidents of punctures to adult collection line tubes don’t seem relevant to a puncture to the EVD catheter and packaging gets damaged but you don’t then use it. xii) The management of C was complicated by a stream of infections which is uncommon but a known outcome in my experience. It is known as shunt misery. The number of infections is beyond the common range but in a frail child, with risk factors as described above and likely compromised skin because of dietary reasons (PEG fed) and successive surgery in the same areas, it can in my opinion, on balance of probabilities, still be considered an unfortunate natural sequence of events. She is doubly incontinent and so contamination of the pelvic and abdominal areas occurs/is a risk. She has a PEG-J (a device inserted into her abdomen to allow feeding by tube into her jejunum and delivery of medications or fluids via a tube into the stomach) which created open communication between the stomach and the outside world. Pictures show leakage of material from the PEG-J site. The incision site for the insertion of the peritoneal shunt or the exit of a long-tunnelled EVD is near the PEG-J. A sequence of events involving the insertion of shunts, infections, replacement with EVD’s, clearing of the infection proved by clear CSF, insertion of another shunt and the pattern repeating itself is not uncommon. You return to ground zero. With poorly children with spina bifida, the risk of infection is greater and the skin quality can be reduced because of the general health. The literature supports the percentage risk increasing with each shunt and EVD infection occurring. This continues until, usually, infections are cleared and the shunt settles: see Diagnostic Approach to Health Care- and Device-Associated Central Nervous System Infections and Current Perspectives on the Diagnosis and Management of Healthcare-Associated Ventriculitis and Meningitis for rates of infections and the time-lapse between operation and infection that can occur. xiii) His opinion remained unchanged. C had an uncommon, unfortunate sequence of infection but her underlying condition i.e. 'double incontinence', gastrostomy and limited compliance increased the risk. A sequence as described in C's history is uncommon but, in his opinion, cannot be excluded. xiv) The change in carers for C is not necessarily a link to the resolution of the infections as it can just happen. There may be other factors including the use of intrathecal antibiotics (which also limit the production of CSF), the endoscopic washout, the shaving of her hair – all might contribute to the eventual resolution of her shunt misery. xv) The most likely cause of the faecal infections was introduction at the time of the operation. To deliberately introduce infection would require puncturing the skin and introduction into the reservoir of the VPS. This is a specialist operation, to sample CSF from a reservoir – done by a surgeon, not a nurse, as it is hard to find and most unlikely by a parent. xvi) The Intracranial Pressure monitor operation in May 2022 is not likely to be linked to the infection found in June 2022, as it is a different site and it is unlikely to disturb a dormant cluster of bacteria linked to the VPS operation. xvii) The incident of vomiting in March 2021 was likely related to the build-up of CSF in the skull, as the EVD was clamped and then unclamped and 20ml of CSF was released.[32]Dr Jacob is a forensic scientist with 20 years’ experience of many forms of forensic examination including damage to items although none specifically in relation to punctures of medical equipment. She provided a written report on 28th March 2023, attended the experts meeting and gave oral evidence. Relevant aspects of her evidence are as follows: i) She examined the EVD removed from C during the operation on 5 July and which had been seen to be damaged on 3rd July 2022. She also examined an unused EVD and a number of items including earrings, syringes or needles. The unused EVD was used to test the items to see if they marked or penetrated it. ii) Microscopic examination of the yellow part of the EVD tube revealed two small holes 25cm from the end of the tube, which were approximately 0.5mm in size. They were smooth, very clean and sharp-edged and consistent with a sharp implement piercing the tube. They were not circular but elongated and could be described as bar shaped. They were not consistent with a fraying or tearing. The damage was not near any weak point or joint. iii) Testing of the items provided on the unused EVD revealed the following: a) The earrings did not easily penetrate the tubing, but dented it, a possible break was caused but was different in shape to the puncture holes. b) The Dalteparin needles (used by the parents to administer the anti-coagulant intramuscularly) were 0.5mm gauge with a chamfered point. It easily penetrated the tubing and created a hole similar in appearance to the puncture holes. c) The Safety needle had a gauge of 0.6mm and had a chamfered point. It easily penetrated the tubing and produced a hole which was similar in appearance to the puncture holes. d) The blunt fill needle had a gauge of 1.2mm and had a tubular point. It easily penetrated the tubing and produced a hole which was different in appearance to the punctures. e) The Eclipse needle had a gauge of 0.5mm. The tip was chamfered and easily penetrated the tube and made a hole which was similar in appearance to the puncture holes. iv) In my opinion, the damage in the EVD tubing of C had the appearance of puncture marks. There were two such marks in approximately the same position on either side of the tubing. This is typical of that which I would expect to see had the damage been sustained through the tubing having been pierced by an implement or tool. The damage present did not have the appearance of wear and tear or product failure. It was not possible to comment on when the damage was done. v) The tube leaked when it was moved into position under the microscope. She was unable to comment on whether it might leak intermittently or constantly.[33]Dr Cowling is a Consultant microbiologist and infection control doctor with expertise spanning 30 odd years, although his direct experience of shunt infections was dealing with the acute phase, as his region does not have a neurosurgery centre within it. He has extensive experience of implant infections although not CNS device infections. He said he would defer to the consultant neurosurgeons on device infection. He provided a report [E108], email answers [J53] and participated in the Joint Experts Meeting. He also provided written answers to further questions after he had concluded his oral evidence and following on from Dr Ward’s evidence. His evidence included the following. i) The history of infections that C sustained were serious and life-threatening, requiring urgent antibiotic treatment, including intrathecal into the brain itself and removal of implants. They were unusual both in their repeated development (9 CNS infections) and in the polymicrobial nature of them. He said he had no direct experience of repeated infections such as this but he deferred to Professor Vloeberghs and accepted that his clinical practice did not cover a neurosurgery ward. ii) C had infections or bacteria in polymicrobial infections which are often seen in skin flora, in hospital environments and in water and some of her reported infections were not faecal related. However, others were. The cause of C’s infections could be different. iii) The dates of the CNS infections were 20 May 2018; 13 - 14 June 2018; 9 - 10 March 2018; 30 - 31 January 2021; 4 - 7 February 2021; 3 - 4 January 2022; 21 January - 1 February 2022; 14 - 22 June 2022; 14 - 16 August 2022. He considered them to be separate as there were quiescent periods microbiologically and clinically between them. a) The 3rd-4th January 2022 infection was likely related to skin bacteria which infected both the PICC line and the VA shunt or one was infected, and it infected the other. Although the bacteria (staphylococcus) can be found in faeces, it is usually derived from skin and C had eczema and a PEG site infection caused by this. b) The 21st Jan – 1st Feb 2022 infection was caused by closely related bacteria: Enterococcus faecalis and Enterococcus faecium (the latter was also grown from a blood specimen). Beyond reasonable doubt they are faecal in origin and both are resistant to many usual antibiotics. In his report he had opined that the infection originated in a distant anatomical site such as an intravascular cannula with blood infection leading to CSF infection but, when he gave oral evidence, he said he had thought about it further and considered the more likely explanation was CSF infection leading to blood infection and the source was gross contamination of the shunt. He clarified when asked that by shunt he included the EVD and he said knowing this was an EVD it confirmed it was more likely initial infection of the CSF. His evidence on what amounted to gross contamination was somewhat hard to follow as he referred to significant volumes of ‘material’ like that seen in dirt on a victim of an RTA but also referred to faeces stained bedding as falling into the category of gross contamination and he was clear that a microscopic amount of faeces (which contained more bacteria than all the population of the world that had ever lived) could cause an infection. His opinion was that it was improbable that a microscopic amount of faecal material being present at the scalp exit point of the EVD would cause the infection but accepted that risk factors including CSF leaks, the EVD exit site not being covered by a dressing and the child touching the site would increase the risk of infection. In part, his reasoning that it must be more than a small amount was because if small amounts of faecal material caused polymicrobial infections one would see it more commonly as a result of minor breaches of hygiene protocols, which do happen but polymicrobial infections are rare. If it were linked to poor hygiene protocols, you would expect more examples and the Hygiene Team to have identified a lapse in their rCws and addressed it. He thought that the defensive systems in the skin might eliminate bacteria and thus leave no infection in the EVD tunnelling. His most likely source of the infection was thus the injection of faecal matter into the EVD catheter or into the tunnel under the scalp. He thought touch infection was less likely. Once present in the CSF, there would be clinical consequences within minutes or hours. A localised infection of the skin would not necessarily be present. c) 14th June 2022. Lactobacillus rhamnosus was found in sub-galeal fluid and in CSF on 13th and 14th June. This ultimately originated from faecal matter. [It is not clear from the Appendix where the assertion that the La Rh bacteria were found in CSF comes from as there is no entry for them in the Appendix] d) 15th-22nd June. This was a prolonged multi-pathogen CNS infection caused by faecal bacterial flora. On 15th June, the old shunt tubing was contaminated with Klebsiella pneumoniae and Acinetobacter baumannii. The CSF from the old shunt grew Klebsiella pneumoniae, Enterobacter cloacae, Streptococcus oralis and Enterococcus faecalis. The CSF from the new EVD grew the same as the CSF from the old shunt. The proximal shunt grew Acinetobacter baumannii, Enterobacter cloacae and the distal shunts Acinetobacter baumannii, Enterobacter cloacae Klebsiella pneumoniae Streptococcus vestibularis Enterococcus faecalis. The shunt reservoir grew Klebsiella pneumoniae, Enterobacter cloacae, Streptococcus oralis and Streptococcus vestibularis. Further samples on 16th, 19th, and 22nd June (after the EVD was installed), including tissue from the endoscopic wash out, grew differing combinations of the previously found bacteria and some new like Stenotrophomonas maltophilia. The fact that not every species isolated was found in all of the specimens tested from 16th-22nd June was, on a balance of probabilities, the result of technical laboratory factors and the administration of antibiotics to the child. It is of no relevance that the specimens grew different permutations of the various species. Beyond reasonable doubt, there was a gross contamination of the VP shunt arising from a serious breach of reasonable hygiene precautions that led to this episode of infection. In terms of gross contamination and in the context of a VP shunt, Dr Cowling considered what might cause it. In his experience, polymicrobial infections had only arisen from perforation of the bowel and peritonitis and so the distal end of the shunt had been exposed to bacteria which had caused a retrograde infection travelling up the distal catheter into the one-way valve, reservoir, proximal shunt and into the ventricle itself. If there was no bowel perforation, there was no bacteria which could pass up the distal catheter. He was not able to address the possibility of spontaneous bacterial peritonitis and suggested that be explored with Dr Ward. Absent a source of the faecal bacteria from the bowel, he considered for a VP shunt the mechanism by which a polymicrobial infection would be present would involve inoculation into the shunt itself by the injection of faecal material. He had referred in his report to accidental manipulation of the shunt and negligent manipulation of a device, but this seemed to evaporate as a possibility on further exploration as it was not capable of being handled and, in any event, would need to rupture the bowel although it might be relevant to EVD contamination after it was inserted on 16th June. This could be in microscopic amounts as any bacteria in the CSF was infective as CSF is sterile and does not have inflammatory cells (as in the blood) which would attack bacteria. He said faecal bacteria could be found in VP shunts without bowel perforation but not of a polymicrobial nature as small amounts of bacteria would be neutralised by immune cells. His evidence of the risks of contamination of an EVD was explored in relation to the January EVD infection. e) 19th-22nd June 2022 (EVD in place) CSF from the new EVD grew Klebsiella pneumoniae and Stenotophomans (faecally derived bacteria) which could represent a continuing infection from 15/16th June. The bezoar removed from her stomach was tested and was not found to be a source of any of the bacteria. f) 14-16th August 2022 (post insertion of new VPS on 18th July). On 14th August 2022, blood cultures collected from the central intravascular catheter grew Streptococcus gallolyticus in one of two samples. A later specimen of CSF, from the shunt tap collected on the same day, also grew this bacterium and Clostridium perfringens. [127] A specimen labelled 'peritoneal fluid from distal VPS catheter' grew E. coli, Enterobacter cloacae, Enterococcus faecalis and Staphylococcus aureus. A gram's stain showed occasional gram negative bacilli, gram positive cocci, and gram positive bacilli with pus cells +++. This gram's stain indicates that, beyond reasonable doubt, this fluid was grossly contaminated with large numbers of bacteria of several species. [128] The ultimate origin of most, or all, of these species was, beyond reasonable doubt, faecal. A swab of the wound around the shunt disclosed staphylococcu aureas which was likely the child’s skin flora. CSF collected from the 'new catheter' also grew Streptococcus gallolyticus and Clostridium perfringens. [130] A further specimen of CSF collected on 16th August 2022 grew Streptococcus gallolyticus and E. coli indicating ongoing infection of the CSF by faecal derived bacteria. The conclusion of cause was gross contamination of the shunt in the way explored in relation to the June VPS infection. A continuation of the earlier infection was unlikely – chronic polymicrobial infection is unheard of and the child would be life-threateningly unwell. iv) Other causes of CNS infections were unlikely: a) Bowel perforation – no evidence found and even with a bowel perforation polymicrobial VPS infection is rare. b) Indirect from infected intravascular cannula cannot be ruled out but is unlikely as it would require a massive blood infection to infect the CSF and this would be clinically visible. Small amounts of bacteria would be dealt with by the blood immune defences. c) Indirect from blood as a result of urinary tract infection. Unlikely as secondary blood infection from UTI is almost never polymicrobial and would be associated with a serious event like bladder perforation. d) On balance, direct inoculation into the EVD or VPS is the route – although it could be accidental, careless or deliberate. In the experts meeting, all seemed to agree the source was faecal but it could arise from accidental to careless to deliberate. Whilst this would apply to the EVD infections, it would not seem relevant to the VPS infection: how can one accidentally inoculate faecal material into a system that exists beneath the skin? e) An infection could enter through an open wound – scratching at a wound and re-opening it could lead to infection but an abrasion to the surface would not enable the bacteria to penetrate the layers of skin and the immune systems which would attack the bacteria – so a polymicrobial infection in the CNS (in a VPS situation) via an abrasion is not a viable mechanism. f) A shunt tap carried out by a professional under aseptic conditions should not introduce a polymicrobial infection. Possibly a single bacteria. v) He accepted that infections of implanted devices could arise after an operation, with delays being mostly within 2 weeks but some being months or years after. He said delayed infections were usually caused by streptococci and other skin bacteria rather than faecal bacteria. Faecal bacteria contaminating an operation site is almost unheard of because of the aseptic preparation. The explanation for persistent infection was that bacteria could protect themselves from the immune system by developing a ‘slime’ cover (a bio-film) that protected them from the body’s immune defences and antibiotics, and so might lie dormant, but this was almost never something that occurred with faecal bacteria but was usually a single species associated with skin or mucous membranes. Enterococci (of faecal origin) may produce biofilm and are common in blood isolates and could cause CSF infection or be caused in the blood by a CSF infection. Coliforms (of faecal origin) are rarely involved in chronic, recalcitrant implant infections and are almost never polymicrobial but almost always single species. Coliforms also had other virulence factors which result in acute, life-threatening infection, which is different to the smouldering infections arising from skin flora within biofilms. He said coliforms could produce bio-films and were encountered in urinary tract infections which were set apart from those in C’s case, because the urinary tract is in direct communication with polymicrobial faecal flora ascending from the perineal region which could colonise a catheter where biofilm formation might play a role. A sterile implant like a VPS was quite different to a urinary catheter. Coliform infections were more likely in a hip implant because of its proximity to the perineum and the risk of contamination of an operating wound. As a matter of logic this would suggest that in the ‘wrong’ circumstances faecal contamination of an operation wound on the head would potentially lead to infection.But in such cases, it is almost always a single species of coliform identified. With the exception of gram positive enterocci, slime production in faecal bacteria does not have the same clinical or pathological significance as gram positive skin flora. vi) He said that bio-films formed on inert material like implants, not-living material such as the brain tissue or the ventricles. However, the proximal catheter extends up to 10cm into the ventricle and so would be an inert surface on which a biofilm might form. vii) He accepted that it was possible that following an infection, ‘debris’ in the form of damaged cell tissue could overlie bacteria which might then not have any active role in causing infection until the debris was disturbed (this was Mr G’s snow globe example) but this also, he thought, would involve skin bacteria not faecal because for gram negative coliforms at least they have other virulence factors which impart a strong tendency towards clinical manifestations of serious sepsis. Enterococci have a greater propensity to attach through biofilm formation and are harder to treat. viii) He also accepted that the brain could compartmentalise or ‘wall-off’ bacteria in the form of an abscess which could range from a space occupying abscess to tiny abscesses. This seemed to align with Professor Vloeberghs’ answers and the presence of adhesions in the brain visualised in the October 2022 ventricular washout. ix) He considered the risk of introducing infection at operations was minimised by the use of prophylactic anti-biotics and aseptic technique but he accepted that the literature studies showed a risk of infection both of VPS (8% he said but accepted a range) and EVD (8% but a range of 2-22%) and of lengthy delay between operation and infection arising. He accepted that there was at least one case study where a polymicrobial infection of a VPS was reported but considered it of little relevance as the authors had given no aetiology for that infection. [In accordance with the approach to the medical relevance of papers a single case study would lie at the lowest value]. In relation to the other literature, he noted that they all involved only one form of bacteria, even those where coliforms were involved. x) He said shunt misery was not known to him but accepted that mathematically if there is a chance of infection at each event there was a risk of infection that might be fulfilled in each operation. He said the risk was greater if it was not random but there was an element of deliberation involved. xi) There seemed to be acceptance that the basis of his conclusions relating to the removal of C from hospital was based not on a one-hour walk but her removal from hospital and returning 2 days later. xii) The Appendix to the report lists all the microbiology tests of C over the years and there are very very many which disclose no infection. xiii) His overall conclusions were: a) Polymicrobial infections of implanted devices (not just CNS devices) with faecal bacteria are rare and, when they occur, are nearly always associated with serious bowel pathology. b) Chronic, recalcitrant infections of implanted devices (not just CNS devices) are nearly always caused by skin or other mucosal flora and these organisms have a clinically significant and pathologically significant propensity to produce biofilms. c) Gram negative 'coliforms', whilst having the ability to produce slime and biofilms, rarely cause chronic, recalcitrant infections of implanted devices. d) Not only did C have polymicrobial device infections caused by faecal bacteria but she had repeated polymicrobial infections and these continued to re-present after removal and replacement of the devices.[34]He was clearly highly knowledgeable and gave his evidence confidently. He had a slight tendency to assume a higher degree of knowledge of the listener. As with Professor Vloeberghs, there was an initial tendency not to distinguish as clearly between answers as they related to PVS or EVD as seemed to be required by the situation. He accepted his clinical experience of complex neurosurgical infections was limited because his geographical area of responsibility did not involve a neurosurgery ward and children with a neurosurgery condition would be transferred to another region, so his clinical experience of infection control in that context was limited. His approach was more direct than Professor Vloeberghs or Dr Ward and he tended more to clear delineation and determinations on balance of probability or beyond doubt than the more nuanced approach of the other experts.[35]Dr Kate Ward is a consultant paediatrician with extensive experience across paediatric practice and as an expert. She provided a report dated 8th May 2022, [E164], answered further questions [E436], participated in the experts meeting and gave oral evidence. Amongst her instructions was to provide a paediatric overview of C alongside opining on the causes of the shunt infections, the cause of the EVD damage and the impact on C of her being removed from hospital in August. The paediatric overview instruction resulted in the production of an immensely long medical chronology which contributed to a report which ran to 272 pages. Aspects of her evidence are also reflected in the Chronology. Her evidence included the following:[36]C was born with lumbar myelomeningocele (a type of spina bifida where part of the spinal cord is exposed at the bottom of the back), which required surgical closure in the neonatal period. She also has associated Chiari II malformation and hydrocephalus. Below is an overview of her conditions, the associated complications and how they might have increased her risk of infection: Condition (associated with spina bifida) Associated complications Hydrocephalus Hydrocephalus/CSF drainage C was diagnosed with hydrocephalus in the neonatal period, related to Chiari II malformation. CSF shunt surgery – insertion of right VP shunt – took place on the sixth day of life. Hydrocephalus is a disorder in which excessive amounts of cerebrospinal fluid accumulates within the cerebral ventricles resulting in ventricular dilation. Learning disability Grossly delayed motor skills; no useful movement in lower limbs; delayed verbal communication, tending to communicate by smiling, gesture, and vocalisations; limited play skills. It is likely that there was a primary global developmental delay as a result of the Chiari II malformation, though repeated shunt blockage and episodes of ventriculitis/meningitis were likely to have contributed significantly to C’s developmental delay. Seizures Seizures occur in 10-25% of children with myelomeningocele. C has had generalised seizures, which often required rescue treatment with buccal midazolam, or rectal diazepam and, on occasions, more aggressive treatment with rectal paraldehyde or intravenous therapy. Absence seizures were thought to be anti-epileptic in origin and may have been related to behaviour (staring/dissociation), or possibly behaviour associated with gastroesophageal reflux. The generalised seizures were most likely associated with the underlying Chiari II malformation and associated cerebral abnormalities, though it is clear that, on occasions, seizures were increased when C was unwell with ventriculitis, infected shunt, or shunt malfunction. Under these circumstances seizures were not fully controlled with antiepileptic drugs and were considered to be drug resistant. Urinary tract complications/neurogenic bladder Nearly all patients with myelomeningocele have bladder dysfunction (neurogenic bladder), which increases the risk of UTIs. C’s neurogenic bladder was managed with clean intermittent catheterisation (CIC). UTIs are a common concern in individuals who perform CIC. C’s likelihood for UTIs may have been increased due to the fact she has a horseshoe kidney (kidneys fused together), although she had no other obvious problems associated with horseshoe kidney. Shunt malfunction or infection can mimic the symptoms of a UTI. On occasions, C had concurrent, positive blood or CSF cultures and urine cultures. It is possible that on these occasions, UTI was mimicking blood or CSF culture and that the organisms found in the urine were the result of colonisation. The question arises as to whether the infected shunts/EVDs/cerebrospinal fluid were related to UTIs. It is highly unlikely that this is the case, as the CSF infections were polymicrobial (involving several organisms) whereas UTIs tend to be the result of a single organism. In order for organisms from a UTI to pass to the CSF there would need to be an associated septicaemia with blood borne infection. Bowel dysfunction In almost all individuals with myelomeningocele, innervation of the bowel and anus are affected leading to dysmotility and poor sphincter control and often to faecal incontinence. Decreased bowel motility frequently leads to constipation and faecal impaction which causes an elevation in intra-abdominal pressure and can lead to shunt malfunction. In C, bowel management consisted of treatment with Movicol and bowel washouts. Whilst faecal organisms were cultured from CSF, there was no evidence of any gut pathology, perforation or peritonitis which would predispose to contamination of the peritoneal end of the shunt or septicaemia. Orthopaedic problems C’s orthopaedic problems (club foot and dysplastic hips) explain her need for therapeutic input and hospitalisation apart from admissions with infections and shunt complications.[37]Condition (not directly associated with spina bifida) Associated complications Eczema C has had recurrent exacerbations of eczema. At times it has become infected and whilst it might act as a focus for infection with skin pathogens, it would not explain infections associated with faecal organisms. Atrial septal defect In the neonatal period, C was noted to have a small atrial septic defect (a hole in the wall that divides the upper chambers of the heart). This closed spontaneously without complications. She is now considered to have a normal heart. This will not have played a role in the causation of shunt infections. Gastroesophageal reflux/feeding problems C had recurrent feeding problems in the first year of life, requiring the surgical insertion of a gastrostomy on 29.05.20, which was later converted to a PEG-jejunostomy in February 2021. Her feeding issues eventually improved in autumn 2022. C had signs of localised wound infection around the PEG stoma. She has not had evidence of severe spreading infection, or abdominal sepsis, associated with the PEG, such as peritonitis or necrotising fasciitis. At times when C presented with sepsis, or vomiting, an ultrasound scan was undertaken to exclude peritonitis, or perforation, and no evidence of this was found. Intussusception associated with gastro-jejunal tube tip On 22.06.22, a laparoscopy was undertaken because of concerns about her abdomen and findings on MRI scan of an intussusception of the jejunum around the jejunal extension of the gastro jejunostomy. Although an unusual finding, this is not unique in patients having jejunal feeds. Bezoar A bezoar is an indigestible conglomeration trapped in the gastrointestinal tract formed of a variety of materials that were intentionally or accidentally ingested. The bezoar found in C on 22.06.22 included hair, and it was noted that she did engage in hair pulling and putting hair in her mouth. The finding of a bezoar in association with a gastrojejunostomy is not unique. Vascular access Vascular access was essential for C, for provision of her anti-epileptic meds; prolonged antibiotic therapy during periods of sepsis; and intravenous fluid/nutrition administration when she was unable to tolerate enteral fluids and feeds. Various types of catheters were used for C. Catheter related bloodstream infection should be inspected in any patient with a catheter and symptoms or signs of sepsis. C did experience infections which were likely to be related to central catheters. Such infections are generally based on single organisms, often skin related bacteria and are not usually multiple gut related organisms.[38]In relation to the infections her evidence was as follows: i) Infection of the CSF is a life-threatening condition. You would see symptoms within minutes or hours of the bacteria being present in the CSF and the combination of one or more bacteria or sequential infections would not magnify how they presented clinically. Repeat infections might affect her developmentally and what was seen in the weeks before the June 2022 infection was discovered might have been a combination of the impact developmentally of the February infection with the clinical signs of the later infection emerging. ii) Shunt infection is a common complication occurring in approximately 5-15% of procedures. Shunt infection can occur at any time, but most occur in the first six months after placement. Increasing abdominal pain associated with peritoneal signs and/or fever is a common presentation of shunt infection in patients with VP shunts. Shunt infections most frequently develop via colonisation of the shunt with skin flora. This may occur at the time of surgery or post-operatively via breakdown of the wound or overlying skin. These infections occur in the early weeks after shunt placement and staphylococci are the predominant pathogens. Early infection with skin flora is the most common type of CSF fluid infection. She was aware of the possibility of biofilms shielding a bacteria but deferred to the neurosurgeons and microbiologists on the issue; likewise the relevance of debris and shielding of bacteria. Shunt infections may also develop via direct contamination of the distal end of the shunt or via haematogenous seeding (spread through the bloodstream). Distal end contamination of ventriculoperitoneal shunts occurs in the setting of bowel perforation or peritonitis whereas contamination of externalised devices occurs via catheter irrigation or tracking of microorganisms along the exit site. These infections tend to occur months after shunt placement and account for about 10-15% of shunt infections. They may be due to a variety of organisms including streptococci, gram negative bacteria including pseudomonas aeruginosa anaerobes. iii) The infection detected on 3.1.22 likely gained entry via the Hickman line causing infection in the blood and subsequently infection in the CSF and VP shunt. It was not perplexing presentation. iv) The infection (a single bacteria) detected in blood on 21st February 2022 was possibly from a venous cannula to CSF. Those detected in CSF and tubing on 22nd and 23rd January 2022 were likely infections caused by organisms which are faecal in origin. She showed clinical signs on 21st January. It could be from blood to CSF or CSF to blood and the presence of an EVD makes direct infection into CSF more likely. Bacteria can pass from blood to brain or brain to blood. v) The finding of multiple faecal organisms on 15th and 16th June 2022, in CSF and shunt/shunt tubing, was perplexing and could not be the result of any simple or medical explanation. The description of the parents of her in the fortnight before might be a combination of developmental impact and emerging infection. The possibility of bowel pathology, such as peritonitis or perforation of the bowel, was considered but was not clinically plausible. No evidence of spread from a central venous catheter or blood. The presence of multiple species, all of faecal origin, was most consistent with direct contamination of the shunt. Consideration was given to the possibility of a connection between the spinal column and the abdomen – no radiological evidence that this was the case. Possibility of an infected clot from internal jugular venous thrombosis considered but no evidence of positive blood cultures at this time. Dr Ward did not have direct clinical experience of a faecal infection of a VPS. vi) The infection found on 14th August 2022 was a perplexing presentation with multiple bacteria of faecal origin in CSF and the ventriculoperitoneal shunt. Single culture of streptococcus gallolyticus from one bottle of culture. Unlikely that a blood born infection of a cannula would yield multiple organisms. No evidence of intra-abdominal pathology such as bowel perforation or peritonitis. Most likely direct contamination of VP shunt with bacteria of faecal origin. She didn’t have signs of gut sepsis but the aspirated CSF from the distal catheter grew bacteria but she deferred to microbiology on their significance. One of the bacteria – Enterobacter is resistant and the use of intrathecal antibiotics is more effective as it does not need to pass the blood/brain barrier. vii) She was aware of the literature and noted that the VPS contamination with E coli was a single bacteria case not polymicrobial. In respect of the case study of a polymicrobial infection of a VPS she said it was rare but not unheard of, and one had to accept rare events take place and there are occurrences which doctors sometimes do not understand. viii) In relation to the possible routes of infection she said: a) Direct inoculation from a perforated bowel – Unlikely to have occurred because she had no clinical signs of perforation or peritonitis, and radiological imaging showed no signs of perforation or cyst formation. Neither the intussusception nor the bezoar provide an explanation. There was no underlying bowel pathology or appendicitis. The possibility of leakage and spontaneous repair or some other unknown pathology would require, not only that it happened and left no sign, but also that it re-occurred and left no sign and resolved after August 2022. Spontaneous bacterial peritonitis requires some other infection like a pneumococcal infection so one would see that bacteria and you would have clinical signs of it which are not present in C. b) Indirect inoculation from blood as a result of an infected intravascular cannula - Two episodes of infection were identified in which blood cultures collected through and intravascular cannula grew a single species of bacteria which were identified as causing CNS infection at the same time. These CNS infections were polymicrobial. On balance of probability, indirect inoculation of the CNS device via the bloodstream from an intravascular cannula did not happen but cannot be entirely discounted. Inoculation from blood as a result of an infected intravascular cannula did not explain the polymicrobial nature of the CNS infections; this would have required a massive contamination of the intravascular catheter such as is not seen in clinical medicine. Such a massive contamination would have caused septicaemic shock in the child. c) Indirect inoculation from blood as a result of a urinary tract infection – Such secondary infections by bloodstreams are almost never polymicrobial and would be associated with a serious event such as perforation of the bladder. This mechanism was discounted because it fails to explain the polymicrobial nature of CNS infections. d) Direct inoculation from external sources – Introduction of faecally contaminated material into a CNS device, such as VPS or EVD, is, on balance of probability, the route by which the bacteria were inoculated into the devices. This would have been accidental, careless, or deliberate manipulation of the devices. Given the VPS is buried, it would require considerable skill to inject through the plastic tubing. Deliberate inoculation into the EVD would be much easier. She did not have experience herself of faecal infection of a EVD but deferred to Professor Vloeberghs on whether it could occur. She accepted that with an EVD there was a significant risk of faecal contamination with there being evidence of C being incontinent, having diarrhoea, sheets being unchanged and C being able to touch her face and hair. She thought Dr Cowling had moderated his views upon understanding the context of the EVD better.[39]In relation to the damage to the EVD tubing, she deferred to Dr Jacob in respect of it but also said she could not identify from the records any event which would explain how a puncture could have arisen and that wear and tear was not an explanation for these holes. She said that the absence of any contamination being detected on testing showed this was not consistent with an attempt to contaminate the catheter and no direct harm to C was caused. It emerged that the EVD was due to be changed on the 6th July in the course of the planned ventricular washout so the only risk was the possibility of infection gaining access via the puncture: a risk which did not come to fruition. She considered that the other examples of punctures to drain tubes was significant although part of the significance she attributed seemed to be based on the incorrect assumption that two were discovered on the same day as C’s.[40]In relation to C’s removal from the ward on 12th August 2022, she said it did not appear to be unusual and discharge planning had been under discussion on 11th August. She could not say her deterioration on the 13th was a result of her being taken off the ward.[41]In many respects, C’s presentation was not unusual for a child with a surgically repaired myelomeningocele and associated Chiari II malformation. It is not unusual for children with this condition to require frequent hospitalisation and complications of the underlying condition and treatment required. Seizures occur in a significant portion of affected children. C’s presentation was unusual in that her seizures were reported to be resistant to antiepileptic treatment and she received up to five different antiepileptic medications. Feeding was challenging; she required enteral feeding via gastrostomy and, later, PEG-jejunostomy and gastroesophageal reflux and presumed aversive feeding related to gastroesophageal reflux, prolonged periods of hospitalisation and interrupted feeding. Her parents had been actively involved in managing her feeding. Not uncommon for children with myelomeningocele/Chiari II malformation to experience sepsis related to ventriculoperitoneal and ventriculoarterial shunts and also to central venous lines. It is not always possible to know why it happens. However, in C, the frequency of infections, the type of infections and the presence of multiple bacteria in CSF and blood cultures was perplexing. She agreed with Professor Vloeberghs that children like C are complex, sustain infections and have multiple entry/exit points for flora including the PEG but she also took Dr Cowlings point that such infections are usually single bacteria infections from skin flora. She was aware that shunt misery (a vicious cycle) was a phenomenon. In C the situation was difficult for professionals as they were searching for a possible explanation for recurrent infections with unusual and multiple organisms. This was part of the perplexing presentation. For some time, professionals could not exclude the possibility of underlying pathology such as translocation of gut bacteria, causing sepsis or possible gut pathology. It was difficult to confirm FII. There was a culmination of concerns in relation to C’s presentation and ultimately the inexplicable finding of pinprick holes in the EVD tubing on 3rd July 2022, which led to the formal referral to the police and social care. C’s subsequent improvement, associated with the removal of her mother, consolidated professional opinion in relation to FII. C suffered progressive perplexing symptoms associated with sepsis. Importantly she has suffered recurrent sepsis with gut related organisms. No underlying immunological condition or genetic predisposition to infections was identified and the pattern of infection was not explained by the presence of ventricular shunts/drains and central venous catheters. When separated from her mother she gradually improved and began to take oral foods with reduced dependence on gastrostomy feeds. C would have found it confusing when her parents were not allowed to visit and as a child with compromised cognitive development and communication difficulties this would make it confusing for her.[42]Professor Vloeberghs, Dr Cowling, Dr Ward and Dr Jacob met to discuss the case on 22nd June 2023. The meeting Agenda was ‘set’ by the various written questions which had been drafted seeking clarification of the experts reports rather than by the preparation of an agenda focussing on the issues. This proved unhelpful as it did not follow a particular logical order and focussed on particular issues of which clarification was sought. I have read the transcript and some albeit not extensive reference was made to it during the hearing. Particular points which emerged as seemingly agreed included: i) The CSF infections were unusual in their polymicrobial nature. They could have occurred non-accidentally, accidentally, negligently or deliberately. They were perplexing or abnormal or confounding. C was a child with complex presentation and her incontinence and PEG provided more sources of infection. ii) The faecal CSF infections required contact with faecal matter from some source. Bowel perforation would be one source. Operation wounds can be a means by which infection gets in if the environment is highly contaminated with faeces. There was no evidence of bowel pathology or another source direct from the bowel, translocation, intussusception, fistula, bezoar or otherwise. EVD’s are more susceptible to infection as there is an open entry and infection can arise via the wounds and via a CSF leak. iii) The CSF infections were life-threatening. iv) Some patients experience shunt misery with repeat infections, removal of the VPS, insertion of an EVD, cleared infection, insertion of the VPS and repeat. v) They were agreed the infections were faecal in origin but the method by which they occurred was uncertain.[43]Nurse H’s evidence was contained in statements given to the police and by the trust. The central thrust of that evidence is contained in a note: C Father earned herself a place in PHDU last night following an acute drop in GCS (7) and probable seizure activity. This came after a very settled night the previous night with no concerns and C waking very bright and happy and tolerating feeds. This continued through the day (02/03) until around 19.15 when she suddenly vomited several times following administration of her evening medications given by Mum….. At the time this was going on, Mum was texting and did not seem overly concerned that C was unresponsive and requiring input from a significant amount of people. Her concern was as to whether we were going to continue to replace the losses from the PEG. At the time this was going on, Mum was texting and did not seem overly concerned that C was unresponsive and requiring input from a significant amount of people. Her concern was as to whether we were going to continue to replace the losses from the PEG.On tidying the room, a 60ml oral syringe with around 25ml of what appears like stomach losses, was found inside one of mother's bags together with other personal belongings and food. The PEG has been on free drainage since Sunday (28/02).[44]An exploration of the notes of the nurse who had been on the day shift (Nurse H who came onto the nightshift) shows that C’s EVD had been clamped at the proximal end unknown to Nurse K and when it was unclamped it drained approximately 20ml of blood-stained CSF in ½ hour. Her medications were prepared at around 7pm and given to the mother at about 7.15 to administer, however they were not administered until 7.30 because she was vomiting from about 7.20. Her condition deteriorated with her pulse dropping and her legs beginning to twitch. Her GCS score fell to 7 and she was unresponsive. Her pulse dropped to 30 bpm and neurosurgery and PICU attended as a result of which she was taken to PDHU. Professor Vloeberghs said that the vomiting was a product of the sudden release of CSF fluid which had been building pressure in the brain.[45]When C had been taken to PDHU, Nurse H was tidying the room to allow it to be used for other patients when she saw a syringe in the mother’s handbag with what appeared to be gastric contents in it. She said she was alarmed by this and on exploration of why the following emerged. C’s PEG-J was being allowed to freely drain any excess stomach contents. They did not need to be aspirated with a syringe. Furthermore, the fluid levels (which it was important to keep in balance) were being maintained by the administration of intravenous fluids and so she did not need to have gastric contents which had freely drained to be re-injected via the PEG-J into her stomach. The mother’s case is that she does not recall this incident but in general terms refers to the fact that she was advised (later documents support this) to maintain fluid balance by re-injecting aspirated fluid. Implicit in Nurse H’s alarm was what the contents of the syringe actually were, why it hadn’t been disposed of properly and the mother’s apparent lack of concern at C rapidly deteriorating and being admitted to PHDU. The syringe was sent for testing, but the sample appears to have been lost so no results were obtained.[46]Nurse I’s evidence dealt with the risk of contamination of the EVD with faeces and this is set out in the Chronology.[47]Nurse J gave evidence about aspects of her involvement with C, including being tasked to search for a missing syringe. The chronology contains relevant aspects of her evidence. She didn’t find it but found plenty of medical equipment in the mother’s/C’s bag which showed the mother was well prepared for aspects of C’s care including changing her urinary catheter.[48]Nurse K dealt with the lead-up to the syringe being found in the mother’s bag after C had been taken to PDHU on 3rd March 2021. The chronology contains relevant aspects of her evidence. Her evidence was to the effect that prior to giving medication, aspiration might occur via the gastrostomy with a purple syringe, that water would then flush the tube and medication then be administered. She accepted it was common for the process to be shared between parent and nurse and the mother in this case would be trusted to undertake it alone. Her notes (which were what she could remember) recorded her preparing the medications to be given by the mother but they were not delivered until 7.30 because C started vomiting after the unexpected EVD clamp was released. Although it is a mystery how it came to be clamped as Nurse K did not clamp it at that position, it was not suggested the mother had done it with some malign intent. She could not recall more and so whether the mother had aspirated stomach contents and flushed with water before the vomiting or after or at all was not disclosed by the notes. She said she would not have been surprised if the mother had aspirated stomach contents (in contrast to what Nurse H said) but what was alarming was that the syringe had not been put in the usual place but in the mothers/C’s bag. She also gave evidence about the attempts to send the contents of the syringe to the lab for testing and the ruse that was undertaken to ensure the mother was not alerted to suspicions. The sample went missing and although Nurse K said by the time she saw it 18 hours after it was removed it was grey and unlike C’s usual stomach aspirate, she was unable to help with the issue of what aspirate would usually look like after 18 hours.[49]L is B’s teacher and has been for nearly two years. Her statement focussed on the period from 12th September to 12th November 2022 and recorded what B had said about his mum being arrested and being in foster care. Ms L’s evidence was that he dealt with this in a rather unemotional way but I would hesitate to read anything at all into that given the huge disruption it represented, including being separated from his siblings as well as his parents. Children react to such events in widely different ways. She also dealt with some comments B had made about his mother washing his mouth out with washing-up liquid and his being put outside late at night. The context of these are explored in the Chronology and are considered in the context of whether B can be regarded as reliable in these accounts. Mrs L also dealt with Bs demeanour and behaviour across the time she has taught him and she noted a marked improvement in his attitude and engagement. He changes from a reserved, aggressive, and fragile child to a much more confident, sociable, engaged child who was now trying hard in his work and being kind to others. The school logs would tend to support this summary of his change. She also dealt with the attitude of the parents and her log from July 2022 (which was drafted around the time the mother was arrested) sets a scene where Bs needs were being significantly unmet at home in terms of support with homework, engagement with the school and more basic issues around cleanliness and feeding. She said – and the e-mail exchanges in July 2022 support this – that the school had not raised concerns with the parents as they were low level and they were aware of the challenge the parents faced with C. She also considered, and again the school records would tend to support it, that the parents were not straight with the school in various respects over the children’s absences. In a sense, much of what she said was not a surprise given the huge challenge the parents must have faced. What was a surprise was the extent to which the integrity and appropriateness of conduct of Mrs L was challenged in cross-examination, which was obviously done on instructions and which in effect amounted to a challenge to the overall accuracy of her depiction of B and the parents. Whilst Mrs L seemed to have re-framed her recall in the light of what the parents were now accused of and of the change in B, the core of her account was clearly supported by the documents. She was clearly aware that B had the capacity to tell fibs or lies and did not seek to assert that he was telling the truth on any particular matter.[50]Nurse N gave evidence about the discovery of the holes in the EVD line in July 2022. Her evidence is set out in the Chronology.[51]Mr V was another of C’s treating neurosurgery team and is a consultant neurosurgeon well versed in giving Part 25 expert evidence in contrast to his role in this case as a clinician. He gave evidence about his involvement with C. i) He saw her on 15th June 2022 and his examination led him to conclude that she had an infected valve. The area around it was red and swollen. Her abdomen was tender and the operation looked for evidence of the shunt having perforated the gut but this was not found. He thought more likely the infected CSF had travelled to the abdomen. ii) He also operated on the 6th July to conduct the ventricular wash-out and insertion of a new EVD. He said the type of infection was unusual in its polymicrobial nature when usually they would see single organism skin coliforms. They were concerned as to whether there was an abnormal source in C – a fistula connecting the gut to the spine which C’s condition made her vulnerable to but it would have been corrected and wasn’t found in C after multiple MRI’s. iii) At the operation on 6th July they were aware that the infection had travelled into the spine and there was concern the spinal CSF might not be susceptible to the antibiotics being administered into the brain. There were areas of debris from the infection and the aim of the wash-out was to reduce the bacterial load as much as possible to give the antibiotics the best chance of success. On that occasion they did not see adhesions or scar tissue.[52]Nurse Q was involved primarily in relation to C’s feeding. She confirmed that returning stomach aspirate to maintain fluid balance was an accepted part of the route of C’s care and communications from 2020 and 2022 appear to confirm this. She also said that even when C was in hospital being fed by an IV system that aspirate from the gastrostomy might be reinserted into the jejunum to maintain her fluid balance.[53]Nurse R [H2209] was on duty overnight on the 2nd/3rd July 2022 when the leak in C’s EVD was first noticed. She examined the EVD under torchlight but only noted that C’s hair was wet. Not directly at the exit site and coil but a little removed and when she examined it later the gauze she had placed over it was dry but the hair appeared wet. This would be consistent with fluid leaking from a puncture rather than the exit point itself, although it seems her initial assumption was that it was from the exit site. Dr U who saw it refers to it having been pulled. It seems likely Nurse R and Dr U made assumptions based on what usually happens with EVD exit sites and leakage.[54]Dr O deals with the inspection of the EVD on 3rd July 2022. She took numerous pictures of the punctured tube. She had a hand-over from Dr U who had inspected the EVD during the night as a result of the concerns that CSF fluid had leaked from the exit site. He had felt the EVD had been knocked out of place. She later participated in the ward round with Mr P and completed her notes at 8.05am. She was later bleeped by Nurse N and when she attended C was irritated and crying in contrast to the earlier ward round. She spoke with Nurse N and the mother before carrying out an inspection of the line. She found wetness at one end of the line - in evidence she said she saw a dimple in the line - and called the neurosurgery registrar. They both inspected the line and saw a clear pinprick hole located about 3 cm away from the exit site. She was unable to say whether it was only leaking when stretched or not. She noted the EVD tube around the exit site was clean and dry. Mr P was then called.[55]T, the foster carer of A and B gave evidence [C129, C143, C153 & C216] about the boys and things they had said to her. Much of her evidence is contained within the extracts from her logs which are included within the Chronology. She gave evidence for the best part of a day. It was clear that she had begun to feel both a considerable attachment to the boys and a sense of protectiveness towards them. Much time was spent exploring her evidence to establish whether her emotional commitment to them had led her to exaggerate, misreport or misinterpret what they had said and whether they had improved to the extent she maintained. Whilst she had a tendency to use turns of phrase which had a slightly dramatic quality (“violence” “lying all day”) her detailed accounts from memory (which broadly corresponded to her written records) gave the impression of clearly lived experiences. She is committed to being a foster carer and is a qualified nurse and so record keeping and accuracy are part of her day-to-day work method. She clearly kept regular and fairly detailed logs on a broadly contemporaneous basis and whilst her evidence suggested she considered she was able to remember verbatim what was said several hours before (which we know is unlikely to be so) it was clear that her records contained what she believed to have been said. It was suggested that a component of her fostering had involved inappropriate behaviours in discussing the children with the school community, involving other parents and even running a stall at the school fete in support of fostering with the children present. Some of these criticisms she accepted (the comments on WhatsApp) but mostly she said she had done what she thought was appropriate and I accept she was trying her best, perhaps a little over-enthusiastically but in the main I conclude the criticism of her ‘professionalism’ was misplaced and indicated more about the parents’ attitude to her than hers. Part of her attachment to the boys seems to be under-pinned by an acceptance that they have suffered abuse at the hands of the parents and that she had kept them safe and given them a different and better life. It seemed clear that this had impacted on how she perceived what they said and her interaction with the parents. Given her records of what the children said to some degree mirrors what is recorded elsewhere and what the parents accept in their statement, the core of aspects of what they have said is credible and thus her ‘acceptance’ of the abuse the children had experienced is not surprising. Her newness to the role of fostering has, to some degree, left her more susceptible to feelings of protectiveness, pity and dismay than a more long-established foster carer who would have a thicker skin and maintain a greater detachment than T does. However, at a fundamental level, and even allowing for her emotional investment she is a professional, whose records are contemporaneous and accurate, whose motives are appropriate and who is clearly sincere and honest in the evidence she gave the court. A degree of frustration with the parents, a tendency to strong emotion and expressions of it may mean that her evidence has to be seen in that light but does not undermine the substance of it. How reliable the boys’ complaints are is a separate issue to which I will turn. She said when they first came to her A was often aggressive to B (in and out of her sight) and B complained about A but as time passed, they began to get on better with each other and to play nicely. B and A had both improved their school behaviour and engagement – B more than A. B’s improvement is noted by Mrs L his teacher. They have had some ups and downs, but I accept that the trajectory of their behaviour and confidence is broadly upwards. Of course, having the benefit of an experienced parent, a professional, the financial advantages, and living in a 2-child household will all have contributed but it seems inescapable that a significant part of the sea-change noted by T and by the school is attributable to their removal from a household which was permeated with problems.[56]S, a respite foster carer, also gave evidence. She confirmed she was an experienced foster carer and recorded notes at the first opportunity she had on her lap-top. Relevant entries are included in the Chronology including Bs allegation that his mother put washing-up liquid in his mouth and that they had said they were put outside as a punishment. The circumstances in which the allegations were laid were explored in some detail in oral evidence. S seemed a sympathetic and professional foster carer. She also identified some occasions when the boys had told fibs or otherwise been ‘dishonest’. They seemed run-of-the-mill young child fibs rather than anything more serious from her description.[57]Mr P gave evidence about the punctures in the EVD on 4th July 2022. His evidence broadly was i) He had never encountered a puncture in the lines in the many hundreds of other patients he had treated. He approached the case on the basis he was looking for a leak of CSF from the exit site but what he saw when the punctures were noted was 2 punctures opposite each other (he did not see a third) which leaked, and he was being careful to not move the EVD other than in a minimal way so as to rotate it. ii) He said that the punctures had not led to any further operations as C was due to have a ventricular washout the next day and this would have involved an EVD change anyway, but there was a risk of infection from a puncture and hence the holes were sealed with a covering pending the operation. iii) He said the case had been difficult as he had experience of infections of shunts and EVDs but the continuing nature of them and the polymicrobial nature including faecal bacteria had stumped them. This included the W infectious diseases and Neurosurgery teams. He said they had considered issues such as dormant infections in compartments in the brain or microfilms but could not recall what had been said but it was clear from the X notes of the meeting with W that they had not considered those routes explained the position as the ultimate outcome was that the situation was unexplained.[58]Mr G is C’s neurosurgeon and has been part of the team managing her since before she was born. Although he gave evidence as her treating clinician, he acts as an expert witness in other cases and clearly has a very high degree of expertise in the field of neurosurgery. However, his evidence has to be viewed against the backdrop that he has a long relationship with C and the parents. His evidence included the following: i) C’s spina bifida is at the more complex and serious end of the spectrum of the condition. Even allowing for that she has had extensive and very rare complications which have proved challenging for her clinical team to understand and to treat. He said nothing seemed to work. He said she was a very unlucky outlier even considering the most complex and unfortunate patients he had looked after in more than twenty years of practice. She had multiple infections, seizures and was well known to multiple teams including neurosurgery, neurology (and urology) and many attendances at accident and emergency. She suffered from double incontinence involving catheterisation and daily bowel washouts. She was fed via a gastrostomy – initially PEG and then PEG-J. She had an intravenous line in place for administration of antibiotics and hydration. The parents were trained in the use of syringes to administer anti-coagulant medication as she suffered from thromboses. ii) Since she went into foster care, the medical pathway has altered for the better with fewer complications including infections. iii) He explained the various mechanical devices used to address C’s hydrocephalus. a) The VPS (ventricular peritoneal shunt) (or occasionally ventricular and atrial shunt) would drain cerebrospinal fluid CSF from the four ventricles of the brain into the abdominal cavity (the CSF adds to the lubrication of the intestines etc). This consists of a tube running from one of the four ventricles of the brain, through the skull to a small chamber attached to a one-way valve on the other side of which was a long catheter which ran all the way under the skin down to the peritoneal cavity. It would be visible in a child running under the skin and above the fascia of the muscle. This system would involve an operation involving two incisions, one into the scalp with a burr hole being drilled through the skull and another incision into the abdominal cavity. After the operation the wounds would be sutured and sometimes a dressing applied. Antibiotics would be given in the course of the operation and thereafter. Hygiene precautions including washing areas of the operation would be undertaken although C’s hair was not shaved off, save for the immediate area around the incision. C would remain in hospital whilst the wounds healed and the mechanical operation of the drainage was confirmed. The reservoir between the ventricle and the valve enabled sampling of CSF to be undertaken by the needle of a syringe being inserted through the scalp into the silicon reservoir and fluid being drawn off. The valve and chamber could be felt under the scalp. The puncture through the scalp would be small and heal and the silicon of the reservoir would be expected to close up thus avoiding the leak of CSF from the reservoir into area between the skull and scalp. The mechanics of the system operated such that the build-up of CSF in the ventricles of the brain (the hydrocephalic brain being unable to re-absorb CSF in the way which usually occurs) would expel CSF through the proximal catheter, into the reservoir and through the one-way valve, running down the distal catheter into the peritoneal cavity. Dr G said this was intended to be a one-way only route and the valve was designed as one-way only to allow CSF out of the skull and so peritoneal contents could not travel up the distal catheter. This was of relevance for infection purposes as he said he had only come across one example (a case report) where an infection had travelled up the distal catheter from the peritoneal cavity to the brain. b) The external ventricular drain [EVD] operated in a similar way but the distal catheter remained outside the body and drained into an external reservoir. He said that the EVD was only used where there had been an infection in the VPS. The EVD distal catheter would be tunnelled under the scalp for around 9-11cm before exiting to the open air to reduce the chance of infection getting into the brain via the entry point and the distal catheter was coiled and stitched to the scalp to prevent accidental pulling out of the EVD. This form of drain carried with it a greater risk of infection and C would remain an in-patient when she had an EVD in situ. It would remain in situ until the infection was cleared at which point a VPS would be re-inserted and C discharged when the incisions had healed. iv) He said that despite the most careful precautions it was not unexpected for an infection to occur some weeks after the VPS had been inserted and after the incision wounds had healed, as bacteria could lay dormant or be controlled by antibiotics but then multiply and create an infection sometime after. The first two days were the most risky for wound breakdown infection. For a well-nourished child, the incision would heal in a week and after two weeks the child would be able to do anything they wanted. C might have more prolonged healing time and be more vulnerable to infection due to her condition. He said that after serious infections visual appearances could be deceptive and bacteria could lie hidden in debris which were not reached by the antibiotics delivered intravenously. An infection six weeks after an operation would most likely be linked to the operation. He said the antibiotics used during operations were not designed to address faecal bacteria, as far as he was aware. He said C would not be operated on if she had diarrhoea but incontinence is different to diarrhoea. He said that intrathecal antibiotics were deployed in August 2022, he thought, because the intravenous antibiotic approach had not eliminated infection. v) He said C’s operations related to infected shunts when the VPS was removed and an EVD put in a place. A number of the infections were subsequently found to have been by uncommon organisms including faecal organisms vi) On 14th June 2022, C was presented by her mother to Mr G as she was frequently upset and regressing in terms of her ability to sit up unsupported. She appeared to be unwell with an infection. On 15th June she was admitted as an emergency and an operation was undertaken (see the chronology). MRI showed severe infection of the brain (in the ventricle spaces) and a number of operations took place to remove the VPS, insert an EVD and to wash-out the ventricles. Examination of the VPS and fluids showed multiple uncommon germs associated with faecal material. The infectious diseases team were unable to explain how they might have come to be present. She was in a critical condition and nursed in the intensive care unit. Subsequent scans showed additional brain damage. She was finally discharged in November after a further VPS had been put in place. vii) In relation to the June infection, he noted that pus had been seen on the distal catheter but he was unable to identify whether that came from the peritoneum or the skull or somewhere along its length. As it was pulled out through an area where there was an infection, it could be from there or elsewhere. He said that some turbid fluid was aspirated from the distal catheter. CSF should be ‘gin-clear.’ The general surgeons and the scanning had not supported there being an infection or source of infection from the peritoneal cavity. The conclusion seemed to be that the infection was mainly in the brain and had spread infected CSF into the peritoneal cavity, rather than there being an infection in the peritoneal cavity. viii) Although not an infectious diseases expert, he said he did not think that faecal material could have got into the VPS or brain through intact skin even by C scratching herself in the area over the valve/reservoir, as the germs would have to get through the layers of skin. ix) He said that he had interacted with C’s parents on numerous occasions and had considered them to understand and be familiar with C’s condition and her treatment. He said he had never had any reason to believe that information offered by them was inaccurate or misleading in that he never had the impression that she was suffering harm in the care of her parents. He said that dealing with his area of expertise there were often signs, symptoms and events that are difficult to and sometimes remain unexplained. He was aware that some concerns around hygiene had been raised at some time relating to the parents and so C was kept on the ward for slightly longer allowing for that. x) He had been on leave when the puncture holes in the EVD were found and was unaware of other incidents of holes being found. He thought the holes were within 1-2cm of the coiled catheter on looking at the photos. xi) When I asked him how he would attempt to recreate the infections from faecal material he said he would inject water/faeces from a syringe into the reservoir. He said that the equipment would not be sent for examination for defects after removal during an operation and a syringe hole in a reservoir would not be visible save under microscope. The MDT had considered many possibilities and had not been able to identify a medical cause – the infectious diseases team could not explain the ‘zoo’ of bacteria which were found.[59]The mother’s formal evidence is contained within her 3 statements, although it also appears within her police interviews. The cognitive assessment of the mother by Dr John Dowsett identified that the mother’s IQ put her in the low average range of functioning and did not have a learning disability. Dr Dowsett identified some difficulties in her auditory processing of information in that she may need support in taking on board and retaining information given to her. There was no evidence of any specific processing disorder. She did not require the assistance of an intermediary for purposes of understanding and engaging in the court process or giving evidence. In her witness statements, her oral evidence and in her communications with third parties including the hospital and others she seemed to me to demonstrate a level of intelligence and understanding consistent with Dr Dowsett’s assessment. In relation to C’s medical treatment and the routines, she demonstrated a high degree of knowledge and familiarity with medical equipment, medicines and procedures for caring for C. It was thus a little surprising that when asked about the VPS shunt she said that she had little understanding of how it worked or its component parts or how it would be tapped and ascribed this to the variety of equipment that had been used with C. Given the very clear evidence that had been gone into during the course of the hearing and more particularly considerable familiarity with other aspects of C’s care and the contents of communications with others at the time of C’s operations, I find it hard to accept that her level of knowledge is as limited as she claimed it was. However, as she was not pressed on this, or on what she had witnessed when she had been present for shunt taps, this observation is based on more limited evidence than it might have been. Only with some of the more convoluted or abstract questions did the mother demonstrate any difficulty in quickly assimilating and dealing with the question. I’m satisfied that the arrangements made for her to give evidence without an intermediary but with breaks every 40 minutes enabled her to give evidence to the best of her ability given the circumstances.[60]The mother was clearly anxious at times. On rare occasions she seemed to agree with a question without perhaps fully understanding its import. However, this was rare. The stakes for the mother are clearly huge both in terms of her future relationship with her children but also potentially in terms of a criminal process following-on. Thus, anxiety and a degree of distress were entirely understandable. The mother was frequently tearful, particularly during the earlier part of her evidence were being cross-examined. At times her upset was contextually understandable (when speaking about hurting C) at other times it seemed more reflective of the fact that her anxiety and distress simply live very close to the surface which is perhaps part of her emotional make-up. At times her tears seemed more self-pitying than anything else; when she was addressing the fact that she had lied in her initial statements about the abuse of the boys and had said it was they who were lying. The mother seemed almost entirely unable to accept responsibility for anything for which she might be criticised. Her behaviour towards the boys (which she was forced to accept in various respects) was because they knew how to wind her up and they did not take into account the strain she was under. It did not appear to have occurred to her that at 5/6 or 6/7 that these little boys would not have the capacity to ‘act’ as adults or that she was the adult and they were little boys who she has the responsibility for caring for. I note that this tendency to deflect responsibility and to blame others was something HHJ Brown noted 10 years ago. Her approach to the evidence which emerged from T, the foster carer for A and B, was one characterised by a root and branch attack upon her integrity and motivation across the course of a day which was somewhat undermined by the emergence on the same day of the Agreed Facts document which conceded various aspects of abusive behaviour towards the boys (albeit not all) which all formed part of the challenge to the foster carers evidence. Even in respect of the matters which she admitted, at no stage did she ‘own’ it but rather saw herself as a victim of others’ behaviour – even the children. It was evident that after being accused of damaging C’s EVD line her response (and that of the father) was to turn on the X and to accuse them of being responsible for the serious ongoing problems that C was suffering although earlier she had admonished the father for not being grateful to them for saving C’s life on numerous occasions. Those who are unable to take responsibility for their actions find it hard to reflect, learn and adjust.[61]The mother’s initial response to the local authority’s case was an absolute denial of every aspect of it. She maintained that A and B had lied in what they had said to T or anyone else about how they were treated/at school. She even said that some of the stress she and the father had experienced and some of the arguments they had had related to the falsity of what the boys had said. She denied hurting any of her children, breaching safety plans, interfering with medical equipment. She said “I deny all of the allegations raised”. That statement was signed on the 14th of June 2023. In her evidence she said that she had now conceded in the agreed facts document that she had lied in that statement because in effect she realised it was wrong to do so. This was wholly disingenuous; it is self-evident that she only conceded certain facts when confronted with the evidence contained within her own messages once they were downloaded and analysed. Her case up until that time had proceeded on the basis that all that the boys said about her behaviour was a lie, possibly elicited as a result of the inappropriate behaviour of the foster carer. During the course of oral evidence, she backtracked even on the agreed facts document maintaining that she had only ever smacked A and B once each. Her concessions when tested, in particular by the Guardian, were to minimise every aspect of even those which she conceded. She seemed unable to accept that her denial as a matter of logic meant she was saying her children were liars and again said she had denied it because there were a lot of pressures at that time. Her breaching of the safety plan and seeing C in breach of bail was only conceded when the message exchanges between the parents, where the meeting was hatched and where the intention to delete all evidence, emerged from the downloads of the parent digital devices. In evidence in chief, she had maintained that she had forgotten about her bail conditions and the safety plan. Within an hour or so she was forced to concede that she had been well aware of the restrictions on her. She did it because her time had been reduced and they had never explained why, so their fault not hers. Thus, in relation to any matter which appears to reflect badly on her it is impossible to place much weight on the mother’s denials alone. She is simply not honest in this regard.[62]Going beyond her denial of the abuse of the children, she denied any action which might have contributed to C’s infections whether it was ever touching any part of the EVD – although inevitably given her approach to responsibility, C did touch it and the hospital had no strategy to stop her - or denying providing an unhygienic household (the photographs and her own messages again painted a very different picture).[63]She said about tapping the shunt “I knew they used a needle; I knew it went into her head but I didn’t know where it went … she had had so many shunts she didn’t know what was what but knew it had to go into the shunt.” She was asked if she had inserted a needle into C’s head to extract fluid. She scoffed or laughed in apparent incredulity at this suggestion in a way which was unusual. The Local Authority did not even at this stage when her evidence was being given put to her that she had deliberately contaminated the shunt. Only after they concluded cross-examination and I queried how the case was put did they put to the mother that possibly she had deliberately contaminated the shunt (explaining that the expert evidence made this difficult in their view).[64]Her denials in relation to hitting C, D and E were all emphatic (orally similar to the written emphatic denials of hitting A and B which were subsequently demonstrated to be lies) and so the vehemence of the mother’s denial and her demeanour are unreliable indicators of the truthfulness of her evidence. Indeed, she seems to deny as a matter of default and there was not an example of her spontaneously admitting to something which reflected badly on her - only when cornered by incontrovertible evidence would she make an admission.[65]She maintained that life was more stressful with C in hospital than it was with C at home, which seemed counter-intuitive when one considered the huge task that C’s care involved and how hard it was for her to devote time to the four other children whilst caring for C. She said she had a good support network which contradicted her own complaints to the father, frequently repeated, that she was doing it all alone.[66]She gave oral evidence over the course of about 4 hours, of which about 2 hours was conducted by the Local Authority, and which was carried out in a non-confrontational manner which carried with it little challenge and so her evidence was not tested in the robust way that some advocates would have adopted. The brevity of the cross-examination also meant that issues were approached in a broad-brush way without the detailed exploration of the circumstances of the days leading up to the main allegations being explored in any detail by reference to the data downloads or anything else. Given the cross-examination of the mother in respect of the principal allegations of interference with, or sabotage of C’s, medical equipment, and the deliberate or negligent introduction of infective material covered no more than 20 minutes, significant areas that were not explored in detail or by reference to contemporaneous material were: i) The situation between the mother and father and at home at the time of the infection in late January 2022; ii) The domestic circumstances (as between the parents, the schooling of the boys etc.) immediately leading up to the infection in June 2022, the appointment with Mr G and what was undertaken during that appointment; iii) Her knowledge of how a shunt might be tapped – her account of the time she had seen it seemed to suggest that C’s head had been on the other side a bed and out of her line of site whilst she was holding C’s arms which might have led to further exploration, but which was not undertaken; iv) The circumstances in which the mother came to write her Notebook or her complaint and when she had begun to feel dissatisfied with the treatment C was getting. Earlier references in Social Work records and the subsequent enquires about transferring C’s care to Y were not explored; v) The events of the evening of the 3rd July when the family visited the Harvester immediately before the mother returned to the hospital and discovered the CSF-stained pillow case and sent the picture and message to the father (which was not in any event explored with her) and thus shortly (hours) before the puncture holes were found in the EVD line or the morning of the 4th July. I was told by Mr Vine that there were no communications from the mother prior to 11.16am on the 3rd July although it was later accepted that there were earlier communications although none were put in evidence; vi) The lead up to the illicit meeting with C on 13th August 2022, the mother’s attitude to the hospital and her allegations of negligence about C’s treatment, what occurred during the meeting and the taking of the photograph of the mother with C. No exploration occurred of the messages which referred to deleting messages to hide the illicit meeting and whether any other material had been deleted. As a consequence, the pieces of the jigsaw available in relation to the local authority’s challenge to the mother’s evidence for this was much less numerous than they might have been. The approach to the cross-examination of the mother was in marked contrast to that which was undertaken by Ms Lee of T the foster carer for A and B. An uninformed observer that happened upon each of the cross examinations might have easily mistaken T as the individual facing serious accusations and the mother as a peripheral figure. Ms Lee’s cross examination of T took significantly longer than the local authority’s cross examination of the mother. Of course, cross-examination does not need to be lengthy to be effective but in a case with such voluminous evidence and with such serious allegations in play it was something of a surprise that the balance fell that way.[67]The mother did accept that there was a lot of stress in her household and that managing was hard. She also seemed very attuned to C’s care needs and seemed to have an organised system in place for the provision of C’s needs, was well-aware of them and well able to explain them. She clearly loves the children and she does seem able to discern changes in C’s patterns of behaviour as are evident in the lead up to June 14th 2022 and are evidence in her messages at times. Her evidence of the syringe incident in March 2021 seemed to fit with what is known and this was an area where she accepted peripheral facts relevant to whether it might be a harmful act (which I think she would have a tendency to deny if she thought it had repercussions for her) and it seemed improbable she would put a syringe in a food bag when she had a medical equipment bag there at the same time.[68]Overall, the mother’s evidence can only characterised as lacking frankness on any area where she might fear criticism. Aspects were plainly and seriously dishonest with concessions only being made when confronted with overwhelming evidence. The chronology evidences a long track-record of dishonesty and inability to accept responsibility in the courts, deceit and misleading of social services and dishonesty with police, the hospital and social services in the build up to and within these proceedings. Her long-standing propensity to deny responsibility and to shift blame to others including most obviously, and reprehensibly, the boys but also the hospital and others has both an impact on the weight that can be given to her evidence but also how one evaluates the future. She seemed entirely absent of any remorse for having accused her little boys of lying in order to save her skin and to have put the foster carer through the process of an attack on her integrity and motives when ultimately the foster carer’s evidence in significant aspects was corroborated by the mother’s late concessions. Other areas remained obscured by an absence of exploration. Others were well-evidenced including her attachment to her children and her knowledge of how to care for C. In so far as her evidence relates to the allegations against her it regrettably can carry little weight, given she clearly will not admit any fault unless and until faced with incontrovertible evidence to the contrary. That, of course, does not mean that any allegation against her is established by default – she does not have to prove her innocence – it simply means that when considering the evidence in relation to allegations which are made that her evidence will carry less weight that it would have had she been a credible witness and thus that the weight of evidence to establish an allegation may be less weighty than it might otherwise have; albeit always subject to needing to establish that it is more likely than not that the alleged event occurred.[69]The father’s evidence was contained in his response to threshold, his amended response to threshold, his statement dealing with domestic violence and in his admission of certain facts. For reasons which were not explored, he did not file evidence in support of his response to Threshold as had been directed in the Case Management Orders. He gave evidence for about 3 hours. He also was subject to a relatively non-confrontational cross-examination by the local authority, although was tested more robustly in cross examination by Mr Sampson on behalf of the Guardian. In the course of his evidence and following enquiry by me, the Local Authority made clear they no longer pursued an allegation of deliberate contamination of the EVD or VPS shunt by him or by the mother (a further withdrawal since the Thursday prior when deliberate contamination by the mother had been pursued). The issues at stake for the father are also huge although he did not face allegations in quite the same way as the mother did; she was the principal target of the serious tampering allegations. He, like the mother, attended almost every day of the trial, absenting himself only for the purposes of contact with children. He appeared to have a good memory for dates and events. He gave his evidence in a very subdued, quiet and indeed flat way, rarely if ever showing any emotion, whether distress, irritation and anger or confusion. The contrast with the mother could not have been more marked. When talking about incidents of abuse which were admitted, he seemed quite unable to put himself in the children’s shoes or to empathise with how they might have felt. Reading some of the volatile and highly aggressive messages and trying to transport the father to the scene and think about how A might have felt as a 6-year-old in the face of his mother’s loss of temper prompted no emotional response at all. He similarly appeared unable to articulate and, I thought, to empathise with the mother’s regime of caring for the children, only strains that were put upon her. His description of why she was a good mother was that she was loving and caring, praised them and bought them gifts. This seemed significantly at odds with the other evidence of how she treated the boys; a recurring theme in the Social Work documents is her lack of warmth and engagement with the boys. His response to the sometimes quite shocking language and emotions expressed in the mother’s messaging to him was bland and showed no concern. When pressed by Mr Sampson for the Guardian about his response, he appeared unable to comprehend the implicit criticism of him and the sort of response that most objective observers would have expected. He belatedly said he had remonstrated with her, but this does not sit easily with his passivity shown by the messages. Whether this was because he simply does not understand the inappropriateness of the language and behaviours the messages demonstrated, whether he lacks empathy, is fearful of the mother’s response if he were to remonstrate or acknowledge it in court, or had become immune as a result of too frequent exposure, or considered her responses appropriate and deployed pretty much the same himself was hard to gauge from his account. Having regard to the content of the messages and the admissions made it seems on balance to be a mixture of him deploying similar behaviour himself and a lack of empathy for the children. Although he did not tend to overtly blame the boys in the same way as the mother, he clearly saw them as the cause of the problem and seemed entirely unable to grasp that it was the parenting that they experienced which under-pinned the behaviours they demonstrated. He also suggested that the boys had a tendency to lie when in foster care as a means to back up his denial of their allegations.[70]He had of course initially denied all the allegations made in relation to over-chastisement and neglect. In his initial response to Threshold he had denied the allegations completely and had also sought to deflect by saying the boys were liars. It was his counsel who so vigorously examined the foster carers on the basis that they had behaved inappropriately and were nurturing the allegations. He only made concessions when forced to. He also tended to minimise his own responsibility – seeking to find situations which led to bad behaviour rather than being able to accept that he and the mother were responsible for what occurred in their home and with their children. Indeed, he suggested that the boys were more badly behaved at school or in foster care than they were at home which seemed at odds with the evidence of the school and the messages.[71]Like the mother, he maintained that life is harder when C was in hospital although he also said that they managed between the two of them and with support from family. He said that there was never a time when the mother was not able to manage C but he thought the nurses didn’t listen to her at times. As in the police interview, he gave a detailed account about C’s infections and how they were managed and denied any role in the introduction of the infections or awareness of the mother doing so.[72]The father was not as forthright as the mother but tended to respond with one word answers where possible. He often appeared passive when answering questions and I thought was suggestible in a way which the mother rarely was. I wondered at times whether he fully understood or heard the questions asked and made significant concessions by agreeing to propositions which appeared to conflict with the account he would give when pressed to give a free answer or to give detail. Examples of this included; The boys do not tend to lie; the children haven’t made allegations about the foster carers; We had lost control.[73]He tended to minimise the allegations or the seriousness of what the messages depicted. He said that he rarely smacked them but gave, as an example, that they would be smacked if they jumped on the sofa or weren’t listening, which from the overall picture painted would seem likely to have been behaviour they demonstrated on a very regular basis, which would suggest they were smacked very regularly. His assertion that the boys didn’t tell him of occasions when the mother had behaved in inappropriate ways could only be explained (having regard to the content of the messages) as it was such a frequent aspect of their lives that it wasn’t something worthy of telling their father. That, or he was not being honest when he told me they never complained about the mother’s behaviour. He maintained he had never been aware of the children being put outside as a punishment, either by the mother or by himself. The father has also been significantly dishonest in relation to the allegations. He accepted (unlike the mother) that his admissions were a result of the disclosure of the messages. He was also not frank in his police interview on various matters, (for instance his having a child with another woman during the relationship as being a reason for the separation, mum being a loving and caring mum) The reality would seem to be they were carrying on pretty much disregarding the bail conditions and written agreement and hoping they wouldn’t be discovered. In evidence he said that after the mother was accused, he was a lot more careful in his approach to the mother being with the children which is flatly contradicted by his leaving the children alone with her and was clearly said as it was the ‘right’ thing to say. The evidence of the messages, the interviews and their remaining together all demonstrate that the father does not consider the mother to be a risk and I have little difficulty in concluding he would leave the children with her without hesitation.[74]His evidence overall presented a challenge in drawing any themes although this was in part a product of the lack of detailed exploration of various areas. He seemed a far more passive individual, liable to allow things to wash over him rather than take the initiative or to respond at all or in an active way. However, his account of their life with the children was as unreliable and dishonest as the mother’s. No doubt there were good times but there were also frequent bad times and his denial of the reality for the boys and his dishonesty with the police, social workers, and this court, poses a real problem with placing reliance on his evidence in relation to anything critical of him or the mother, save where corroborated.

Parties’ Submissions

[75]The parties made oral submissions across the course of one day. The mother’s team provided a helpful route map addressing the central points. I do not intend to rehearse the parties’ submissions at this stage of the judgement but have sought to consider the central points made by each party in support of their respective case in the evaluation section of this judgement. Other aspects of my conclusions may be found in the Chronology or in my evaluation of the witnesses above.[76]The local authority, in particular, focused on the evidence relating to the allegation of faecal contamination of the EVD in January 2022, the puncturing of the EVD catheter in July 2022 and the physical chastisement issues.[77]The parents broadly made common cause and Ms Lee adopted Mr Howe’s submissions. His route map focussed on i) the concessions made in relation to chastisement and emotional care and the allegations the mother denied; ii) a non-acceptance that neglect met the threshold; iii) the admissions of the breaches of the safety plan and the acceptance of harm caused by removal in consequence; iv) C’s care. The non-pursuit of the allegations of contamination of the VPS shunt and the March 2021 syringe interference undermined the rest of the case. The evidence relating to the EVD contamination in January 2022 was more consistent with accidental contamination from any number of sources; v) Damage to the EVD line. Evidence pointed to the damage being caused prior to 3rd July 2022, no harm was caused, the unlikelihood of the mother perpetrating such an act on an open ward, other occasions of damage of catheters. All these meant the allegation could not be established on balance of probability.[78]Ms Lee focussed her submissions on a critique of the reliability of the boys’ allegations, including the circumstances in which the allegations were made and the encouragement to make allegations created by the circumstances; the criticisms of the foster carer’s care and her attitudes, which called into question her reliability, the role that the separation may have played and how the evidence relating to D, E and C is very different to that relating to the boys.[79]The Guardian was neutral in relation to the allegations which dealt with C’s care. The Guardian invited the court to conclude that the account given by the boys and the evidence established what the boys had experienced was a systemic pattern of physical and emotional abuse and neglect. Mr Sampson drew attention to particular incidents where there was no suggestion that there was any form of leading of the boys, where there was no tacit encouragement or inducement to make allegation against the parents, how the allegations were often unprompted and were so detailed that it was hard to imagine them being fabricated and that a theme of the allegations related to punishments for being naughty. The Guardian also relied on the historic pattern of engagement with social services and the long-standing nature of the boys’ behavioural problems as tending to support their exposure to abusive behaviour. The change in behaviour after their removal into care was, in the Guardian’s view, significant and was unlikely to be simply a product of the removal of stress from their lives.

Evaluation

[80]At the outset of the case and until the conclusion of the father’s cross-examination by the Local Authority the allegations made had included at their most serious the deliberate introduction of faeces into the VPS resulting in a life-threatening infection. This had resulted in a very extensive inquiry in this court with the instruction of 4 expert witnesses as well as the calling of numerous clinicians. The 4-week time estimate given to the case is in itself a strong indication of the extent of the enquiry. No indication was given at the conclusion of the local authority’s case that the trajectory had changed and, indeed, the most serious allegations were still pursued. This seems inconsistent with their approach to cross-examining the mother but nonetheless represented their position. Prior to the father commencing his evidence, the local authority did not indicate a change in position; only during the course of the father’s evidence did the local authority indicate that they no longer pursued deliberate interference with medical equipment. I directed that the local authority make clear what allegations they pursued in the form of an updated threshold document on day 18 (we paused to await the answers to further questions from Professor Vloeberghs) and when it was filed the local authority had indeed withdrawn all allegations of deliberate contamination of the VPS in June or August 2022 and only pursued the mother for negligent contamination of the EVD shunt in January 2022 and puncturing the EVD line in July 2022.[81]The local authority’s position in not actively pursuing in cross-examination of the mother or the father the most serious allegations of deliberate contamination of the VPS or EVD shunt was a little hard to understand in the context of the forensic process that was still then underway. This was in contrast to the position in relation to the March 2021 allegation relating to interference with medical treatment involving the syringe containing possible gastric contents which was quite properly not pursued after the completion of the evidence including the mother’s which pointed to the likelihood that this episode was a misinterpretation of an appropriate aspect of C’s care regime which arose through the unexpected discovery of the syringe in the family food bag. In the course of cross-examination of the mother, the local authority did not seek to explore in anything other than the most light touch way the circumstances surrounding the three principal allegations where deliberate contamination was originally alleged. Nor was reckless or accidental contamination explored in any detailed way. In relation to the VPS shunt infection of June 2022, the only possibility put to the mother initially was the question of whether she had sought to withdraw fluid from the VPS shunt although when I queried whether the local authority were pursuing an allegation of deliberate contamination it was confirmed that the local authority were and that allegation was then put in the barest of terms. By the time the father gave evidence and in response to a query by me during the course of the evidence, Mr Vine confirmed that the local authority was not pursuing deliberate contamination in respect of either of the parents. I say the development of the position was hard to understand in the forensic process because a fact-finding process is a non-compartmentalised panoramic process where the expert medical evidence is considered alongside all of the other evidence, including that of the parents at the conclusion of which one seeks to evaluate the totality and to reach conclusions.[82]The local authority position appears to have been more the result of a linear evaluation where they took the view from the expert evidence that it would require knowledge and skill to introduce a needle into the catheter under the skin or the reservoir under the scalp and this pointed away from deliberate contamination and ultimately away from even reckless contamination of the VPS shunt. This can only have been as a result of the Local Authority’s conclusion that the mother was not capable of undertaking the insertion of a needle into a part of the VPS shunt whether for the purpose of deliberate inoculation of faecal material or to conduct her own examination of the CSF to see if it supported the existence of an infective process being underway in the course of which faecal material may have been introduced. As a result of that predetermination, the evidence which could have informed a more detailed consideration by the court of whether the mother and/or father had the knowledge and skill to use a syringe in the way necessary, were sufficiently familiar with the VPS components, were sufficiently aware of what to look for in CSF and were sufficiently unhappy with the way X were responding to their concerns was not explored in the sort of detail that would have been required. However, this approach affected much of the local authority presentation as I have identified earlier in relation to the unexplored territories in the mother’s and father’s evidence. The local authority’s approach was akin to exploring a new land by flying over it in light aircraft rather than tramping up the hills, down the dales, through forest, river and meadow, taking measurements and readings, making sketches and collecting samples.[83]I observe that from the judicial perspective there was material that might, indeed which I assumed would be explored, in order to enable me as the determiner of facts to reach a conclusion on the allegation that deliberate or reckless contamination of the VPS or EVD shunt had taken place. Given that the Local Authority maintains the allegation that the mother deliberately punctured the EVD line on 3rd July 2022, the withdrawal of the allegations relating to the VPS shunt, whether recklessly or deliberately, leaves that allegation to be considered in isolation and where the conclusion is only of marginal relevance to the other allegation pursued in relation to C’s medical conditions, namely careless or reckless management of the EVD line in Jan/Feb 2022. I say it is of marginal relevance because the puncturing of the catheter is more likely a deliberate act and is pursued on that basis and so would appear more relevant to other acts of deliberate interference with medical equipment than negligent or reckless handling.[84]However, that being the way the Local Authority chose to run its case, the evidential landscape was so limited in relation to the parents that the die was effectively cast. There having been no forewarning before the mother gave evidence in the form of notice that the local authority did not intend to pursue those aspects of the allegations, which might have led to some argument and judicial consideration on the extent to which it was appropriate to undertake a quasi ‘no case to answer’ exercise with an incomplete evidential picture was rendered impossible. Any possibility that the Guardian or indeed the court itself might have insisted that the allegations be fully explored and subject to judicial determination was not one which would have been procedurally fair to the parents and would have required the parents to be subjected to an extensive further cross examination by the Guardian or the court itself which was neither fair or forensically possible given the preparatory work that would have been required to underpin them and may have been inappropriate even for a Guardian who chose the proactive role envisaged by Hayden J. What the outcome of such an exercise would have been, I cannot tell and my dissatisfaction with the course the process has taken should not be taken as any indication of what the outcome might have been. The outcome for the parents is binary – the allegation of deliberate or reckless contamination is not pursued and so there is no finding that they did – the family court works on the basis that they did not. For the parents that may itself be enough – although they themselves might have preferred the sort of positive determination that may have been possible following a fuller enquiry in the form of the court concluding, contrary to the Local Authority case, that on balance of probabilities they had not recklessly or deliberately contaminated the VPS or EVD shunt. That may have led to a swifter resolution of the criminal investigation but regrettably that outcome is not open to the court and the police will have to take their own view of where their investigation leads in the absence of a clear determination by the court. I express no conclusion on the allegations that originally formed the heart of this 4-week trial – they have not been pursued in the evidence of the parents or findings ultimately sought and so a nil return is the forensic consequence.[85]The linear or compartmentalised approach the Local Authority adopted led to an attenuated analysis and exploration of the evidence and to the pursuit of two rather forensically disconnected allegations where the court’s hands (or at least one of them) had been tied behind the back and so far from being able to undertake a non-compartmentalised and panoramic survey of the evidence in relation to the allegations, the court was constrained by the withholding of various pieces of the jigsaw or the discarding of others which means that the overall picture which emerges is inevitably less complete than it might be. Whether particular sections of the jigsaw are sufficiently complete to enable, on balance, findings to be drawn as to what they depict is the exercise that I now need to undertake, recognising as I do that a curtain is drawn over parts, others are shrouded in mist and perhaps only some are visible in a clear and unobscured light. The civil standard of proof of course admits of the possibility of items of evidence pointing against a ‘more likely than not’ determination or items of evidence not being present. Ultimately, the court has to take account of the evidence before it to see whether a balance of probabilities outcome can be reached notwithstanding gaps, or countervailing evidence.[86]The majority of the early part of the evidence, both expert and clinical focussed on the allegations which are in the main no longer pursued, albeit it remains of relevance to both the puncturing of the EVD line and the reckless or negligent handling of the EVD line and having heard and considered it I feel it appropriate to make some observations on aspects which are no longer strictly capable of determination. I do so because I consider that after such a detailed and resource heavy process that it is the interests of the parties and the ends of justice to do so to enable this court, the parents, the clinicians and the experts to understand to some degree the effect that the evidence had had.[87]The evidence in relation to issues of emotional and physical abuse and neglect was traversed in more detail, in particular by the guardian, and so the jigsaw is much more complete in that respect. Indeed, it seems a fairly clear picture emerges with relatively few missing or damaged pieces.[88]In so far as I can I will, with all elements of the allegations made against the mother and father, seek to undertake insofar as it is possible given the limitations I have identified, a panoramic and non-compartmentalised evaluation of the evidence. Inevitably, in cases such as this the focus is on the deficiencies in the parenting, but it is important to bear in mind that the panorama also contains the positive aspects of the children’s lives with the parents and their positive qualities as individuals. Contamination of VPS and EVD shunts.[89]The evidence of the experts and of the neurosurgeons makes clear the very significant distinction that must be drawn between VPS shunts and EVD’s. A VPS shunt carries with it the risk of infection being introduced during the course of the operation either on the implanted device or through the operating wounds. Thereafter, there is a risk that an infection may enter until the wounds are healed. Thereafter, the evidence demonstrates that an infection entering from an external source is almost impossible absent deliberate act. The proximal catheter lies within the ventricle of the brain inside the skull, running through the skull to the reservoir and one-way valve lying under the scalp and the distal catheter runs under the skin into the abdominal cavity. Absent some event which exposes them (the skin being removed somehow) the only way in which bacteria could enter the VPS are through something penetrating the skin and the shunt system (or conceivably penetrating the skin and skull thus accessing the ventricle and gaining entry through that route). Thus, once the operation wounds had healed it would be expected that a patient could be discharged home and this was the practice that was adopted with C. The risk of infection from an external source whilst C was at home was minimal as there was no means by which bacteria could gain access to the VPS system from the external environment. Infections of the VPS might arise from one of the means by which bacteria might lie dormant on the implant, or might arise from other internal physiological processes including infections passing from the blood to the brain or from gastro-intestinal pathology but not from external sources. The evidence was clear that the child scratching at the operation site after it had healed and abrading the surface would be insufficient to allow bacteria to gain access to the shunt system under the scalp. Only by reopening the wound before it had healed or by some other penetration of the full thickness of the scalp could bacteria gain access to the shunt system; the body’s immune system dealing with bacteria which might lie on an abrasion to the skin. Thus, infection of a VPS shunt whilst C was at home through some external source was extremely remote as a possibility.[90]The evidence in this case ultimately identified only two viable possibilities for external contamination; the possibility of accidental contamination through the tapping of the reservoir or deliberate contamination through the insertion of a needle into any part of the shunt system. Accidental contamination through shunt tapping by clinicians was a remote possibility as such an exercise would only be conducted by the neurosurgical team in aseptic conditions. If it were undertaken by someone unqualified, the risks would be materially different. A shunt tap would be undertaken to sample the CSF by visual inspection or by microbiological testing. CSF should be ‘gin-clear’ and any sign of turbidity or opaqueness would be a probable sign of infection. It was clear that, although in clinical practice, experience was usually of infections travelling from the head to the abdomen, it was possible for an infection to travel up the distal catheter from the abdominal space or indeed anywhere along the distal catheter (if penetrated) and cause an infection in the ventricle.[91]A number of sources of infection existed internally with a VPS shunt. A distinction could be drawn here also by reference to the type and variety of bacteria present in the infection. A single bacterial type, in particular the type found on the skin was commonly encountered in infections of the VPS and the evidence of Professor Vloeberghs, Dr Cowling and the clinicians suggests would be responsible for the majority of the infections found and identified in the literature. The evidence would suggest that these infections are likely to be associated with the biofilm mechanism which might allow them to remain ‘dormant’ for months after the operation. The evidence of the experts, the clinicians and the literature would also support the possibility of single coliform bacteria being responsible for some infective processes. The expert evidence, the clinical evidence (including the MDT rCw) and the literature make clear that polymicrobial faecal infections are very rarely encountered and, when they are they are almost always associated with an identifiable pathology linked to the bowel. The polymicrobial faecal infection identified in the case study did not have an identifiable aetiology and in that sense could be said to be similar to this case, but as Dr Cowling pointed out the single case study ranks at the bottom of the hierarchy of medical literature in terms of value in evaluating other cases and from the court’s perspective, whilst it is interesting and cannot be ignored it is of relatively little assistance, save to confirm that there may be cases which are confounding, perplexing or inexplicable.[92]The evidence of Dr Cowling and also the weight of the evidence of Professor Vloeberghs and Dr Ward is that polymicrobial faecal infections are not associated with bio-film and that some of the bacteria have virulence qualities which are responsible for severe pathology. It therefore seems unlikely or improbable that a polymicrobial infection could be introduced in the way that a single skin or coliform bacteria might and lie dormant under a microfilm for many months. Thus, whilst such a process could not be ruled out it was not a process which the experts had encountered; including Professor Vloeberghs according to his supplementary answers.[93]It is however clear that once a serious polymicrobial infection has occurred, it can take a lot of treatment for it to be cleared as some of the bacteria may attach to debris from the original infection and lie in the ventricles; hence the need for a ventricular washout to reduce the bacterial load and give antibiotics (including intrathecal antibiotics) the best chance of success. It is also clear that tissues in the brain may form around infective material ranging from the very small to space occupying abscesses, which might also lead to an infection lying dormant and emerging sometime later. The presence of scarring or adhesions would be evidence that such a process had taken place.[94]Another source of polymicrobial faecal infection would be some internal pathology which allows bacteria from the bowel or gut to gain access to the VPS distal catheter and to infect it in reverse. The experts considered the various possible mechanisms by which this might occur and concurred that there was no real evidence to support this; no evidence of penetration of the bowel by the distal catheter, no evidence of a fistula, no evidence of translocation, nor intussusception and no evidence the bezoar could have been responsible. This expert opinion was consistent with the clinical opinions, including those recorded in the multidisciplinary team discussions including those with W.[95]The position relating to an external ventricular drain (EVD) is fundamentally different. An EVD is usually deployed as a short-term measure to deal with, for instance an infection, whilst the infection was brought under control, cleared (demonstrated by regular testing of the CSF) to be followed up by the insertion of the VPS as the long-term mechanism for controlling the pressure of CSF within the brain. The EVD consists of a catheter running from the ventricle of the brain through the skull running under the scalp and exiting through the scalp where it would be coiled and stitched to the scalp (to prevent pulling of the catheter from the ventricle) and where the remaining length of the proximal catheter will be joined to the distal catheter or drain which would run to an external reservoir/bag which would collect the CSF. The pressure within the system could be controlled and the draining of the CSF could both be controlled by the placing of clamps and monitored by the levels of fluid draining into the reservoir/bag. For the purposes of infection, the risks are materially different to a VPS because the catheter runs directly from the ventricles of the brain under the scalp to an exit point through the scalp. The tunnelling of the catheter from the burr hole in the skull to the exit point through the scalp would be maximised (up to 10 cm) in order to reduce the opportunity for infective bacteria to gain access to the skull and brain. In some cases, a long tunnelled EVD would be used to further reduce this risk with the catheter running under the skin to a collarbone or abdominal area and exiting at that point. This was used with C in the summer of 2022.[96]Practice when conducting operations to insert VPS or EVD systems varied in relation to whether the hair was shaved from the skull or only the area immediately around the operating sites. At X the practice was to shave only the area immediately around the operating site. Professor Vloeberghs preferred to shave the whole of the skull in order to minimise the opportunity for bacteria to remain in the hair, although he said this was due to his very cautious approach to infections and that good aseptic practice in advance of an operation should remove the possibility of bacteria remaining in unshaven hair in any event. There was also a degree of difference in practice in relation to covering of the exit point of the catheter and the coiled catheter stitched to the scalp. It was clear that in relation to C, and photographs from January 2022 and July 2022 confirm the position, that when an EVD was in place there were times when the exit point and coil were not covered with any dressing. The experts and the clinicians identified the highest risk of infection as being related to the leakage of CSF from the ventricle through the burr hole (not the catheter) and running under the scalp and exiting from the EVD exit point; it thus not exiting through the EVD itself. This provided an opportunity for bacteria to gain access through the leaking CSF into the skull. Dr Cowling said that this risk was a limited one because the body’s immune system in the tissues under the scalp would attack such bacteria and neutralise them in many cases. His evidence was to the effect that gross contamination of the child’s environment with faecal material, or indeed gross contamination of the EVD exit site itself would explain an infection gaining access through external contamination, but it was unlikely that it would explain it otherwise. His evidence in relation to this seemed at one stage to suggest that it was only through this level of contamination that it could be explained, although I think on closer consideration (and consistent with the approach that he tended to adopt of looking for balance of probabilities or beyond reasonable doubt explanations) his evidence was that this level of contamination would provide a most likely rather than the only explanation. His evidence did not rule out the possibility of faecal material gaining access through the exit point in other circumstances and in particular his evidence that tiny amounts of faecal material contained huge numbers of bacteria allowed of that possibility. Part of his rationale for rejecting accidental contamination of the EVD by faecal bacteria in January 2022 was that if such lapses in good hygiene practice led to such infections one would see many more of them as hygiene audits demonstrated that lapses in good practice was common but faecal contamination and faecal infections following operations (save when in close proximity to the bowel or perineal area) were rare. He said that the most effective way for them to gain access if one wanted to deliberately introduce them would be to use a syringe to run under the scalp and introduce infected material as close to the burr hole as possible.

EVD Infection in January 2022

[97]The allegation the Local Authority pursue at the conclusion of the case is that the polymicrobial blood and CSF infections which C sustained between 21st January 2022 and February 2022 were introduced by the Mother through careless or reckless management of C’s EVD line system, or in some other manner known only to her. The Local Authority argue that the soiling event which was noted by Nurse I occurred after the onset of symptoms and did not appear to involve gross contamination of the environment C was in and that this, taken together with the expert evidence that faecal contamination of an EVD was unusual, allowing for lapses in good hygiene, that the balance of probabilities pointed to the mother as having introduced it. This seems to be based on the assumption that faecal matter was introduced at some point during the day when the mother was present, such that the contamination had time to convert into clinical symptoms; this presumably being based on the evidence of Dr Cowling that once bacteria were present in the CSF they would give rise to symptoms within minutes or hours. They added that, in the event the court concluded that the entry of the EVD catheter on 3rd July 2022 was a deliberate act by the mother, this supported the conclusion that this infection was one introduced by the mother as a result of negligent or reckless management of the EVD line. The local authority conceded that there were no communications between the parents at that time which supported the allegation or rather that there was nothing in the communications between the parents pointing to the mother having a motive for contaminating the shunt or even being frustrated with C.[98]This submission that a deliberate act of sabotage to C’s EVD on 3rd July 2022 supports an act of reckless or negligent management of C’s EVD in January is a tenuous one. Logically it would be more probative of an act of deliberate contamination. Given the inaccuracy of the Local Authority’s submission that there was no communication between the parents on 3rd July 2022 before 11.16am, I am somewhat hesitant to base part of my conclusion on their assertion about the state of communications at this time although in this case the local authority appeared to be accepting that an absence of communication with anything probative is at best neutral or possibly undermines the case. Given the huge amount of communication between the parents using digital devices it seems likely that there was communication between them on the 21st January 2022 and I approach it on the basis that it contains nothing which supports a conclusion that the mother was negligent or reckless in her handling of the EVD that day. The messages from the evening of the 22nd January 2022 in fact suggest the mother might have touched the EVD (“…if it gets on the catheter I cant [d]o much I clean it the best I can..”), but she was not questioned about this and the general tenor of those later messages the following day do not support the mother being responsible unless she is deploying a double bluff of appearing concerned that they would blame her for a lack of hygiene, knowing that in fact that was precisely what she had been recklessly or negligently guilty of.[99]The faecal bacteria were detected first from a blood sample taken at 18.18hours on 21st January 2022 and then from CSF samples taken at 00.29 hours on 22nd January 2022 and from further CSF samples taken at 1750 and 17:51 hours on 23rd January 2022 [E153]. The expert evidence did not provide a clear answer to the question of how long it would take for faecal matter at the EVD exit site to make their way along the tunnel under the scalp and into the ventricles so as to cause an infection detected in the CSF or how long an infection in the CSF would take to cross the brain/blood barrier so as to be detectable in blood at 18.18 on the 21st January 2022. Nor did it provide a clear answer to how long it would take for a blood infection to cross the blood/brain barrier so as to be detectable in CSF removed from the EVD at 00.29 hours on the 22nd January 2022. What is not relevant in this context – or at least only marginally so – was the evidence that once bacteria were present in the CSF in the brain that clinical symptoms would become apparent within minutes or hours. The critical question in EVD terms is how long it takes for an external contaminant to make its way from the exit point into the CSF within the ventricle. The fact that faecal bacteria was detected in the blood sample taken at 18.18hours on 21st January 2022 would suggest that if it originated from the CSF the external contaminant at the EVD exit site was quite some time earlier, although what that window is I do not think the expert evidence told us.[100]C had been admitted on 3rd January 2022 when blood and probable CSF infections arising from Staphylococcus aureus bacteria had occurred. This led to the VA shunt (draining to the heart not the abdominal cavity) being removed and an EVD being inserted. The medical records disclose a number of problems thereafter including C suffering from blood clots requiring intramuscular anticoagulant injections that initially the mother and later both parents were trained to undertake. A Hickman line was removed and a PICC inserted on 6th January 2022 and on 16th-17th January 2022, the records show an EVD blockage and CSF leakage (the page references given in Mother’s submissions for a leak and a stitch being inserted appear unrelated to this time). There was a further leak from the EVD recorded on the 20th January 2022 and even on the 21st January 2022, the notes at MB6907 recording a CSF leak and the area being stitched by the neuro-team. A nursing record later that day [MB6904] records C having a large explosive diarrhoea (apparently separate to the one recorded by Nurse I later in her notes at MB8234) and that the nurse records C groaning and covering/wiping her eyes and the nurse being worried about her. Nurse I records an episode of diarrhoea and C being cleaned but the sheets not being changed at that point.[101]The expert evidence of Dr Cowling was originally that the source of this infection was probably contamination of an intravascular cannula or similar. Dr Ward’s evidence also supported the origins of this infection as originating in the blood possibly from a venous cannula and spreading to the CSF. The possibility of this originating from the failed PICC line insertion or the midline insertion on 19th January does not appear in the expert evidence. Professor Vloeberghs considered that EVD infections from faecal bacteria were explicable as arising from her complex presentation and the multiple opportunities this gave for contamination.[102]The evidence does not disclose the times the mother was present on the ward with C on the 21st January 2022. Whether it might have been capable of being ascertained by extraction of information from the memory sticks provided by the police is something I do not know; it has either not been done or if it has been I’ve not been informed of the outcome. The medical records of 21st January 2022 do not answer the question but given the time window for the introduction of faecal material at the EVD exit point so as to be detectable in blood at 18.18hrs on 21st January 2022 is unclear, I am not sure that identifying the 21st January 2022 as being the point at which faecal bacteria entered C’s body is a reliable starting point in any event and in particular any time window within that day.[103]The nursing records do not disclose (as far as counsel have been able to identify) any occasion on which the mother was seen to touch the proximal catheter on the EVD (i.e the part of the EVD at the exit site or the coil) and she says that she would never touch that part only the part leading to the reservoir/bag after the joint with the proximal catheter (the yellow part). Of course, if she punctured the proximal catheter on the 3rd July 2022 that would wholly undermine her evidence on this point. However, it seems potentially significant that none of the nurses or the doctors noted the mother touching the EVD at the exit site, coil or nearby in a way which raised their concerns about the risk of infection and poor adherence to good hygiene either at this time or as far as I can ascertain any other.[104]The mother’s evidence was This infection must have been as a result of poor hand hygiene; as far as I can remember I have always washed my hands each time that I have handled C, although I cannot be certain. I have raised numerous times about the poor hygiene in the JR, for example, I have seen dirty and stained bedsheets, medication and syringes being used and left by C's bedside. I spoke to the ward sister Z about the fact the nurses did not wear gloves when they touched C's EVD; the only time they wore gloves was when they were administering medicine into her. They should have worn gloves whenever they were going anywhere near her EVD, but they did not.[105]In general terms, the nurses appear to have considered the mother to be an appropriate carer for C in the hospital. Mr G said that earlier there had been concerns about when C should be discharged home as there were general concerns about the state of hygiene within the house. In their later complaints about the X, poor hygiene on the ward was one component including nurses handling the EVD without gloves and failure to change sheets after accidents. This might be a strategy of deflecting attention from their own failure to take care but they were made much later, when the mother was in the frame, not for lack of hygiene but deliberate sabotage or interference with the catheter, and so this seems less likely. The photos of the organisation of C’s room and equipment, the fact that the mother carried supplies into hospital with her would all suggest that she tried to care for C as best she could. That there were times when she might be overcome with stress or emotion and less attentive or careful as a result is also probable but, as the Local Authority submit, there is nothing in the messages or indeed elsewhere in the notes to point to the mother being particularly overwhelmed at this moment in time on the 21st January 2022.[106]The Agreed Facts document contains this entry: Mother and Father exchanges thousands of messages during times C is admitted to hospital where they work together to communicate in relation to C’s welfare and the parents show a genuine concern for C, appear protective, caring and advocate for appropriate clinical care including the cleaning of bed sheets.[107]In any event, the evidence from the numerous messages about C, from the clinicians as to the mother’s attitude to C, the evidence she gave about C, and the evidence of the degree to which she was organised around C’s care, all point to the unlikelihood of her deliberately harming C in the way originally alleged.[108]All of the above issues bear upon the conclusion as to whether the mother recklessly or negligently introduced faecal material into the EVD on 21st January 2022, thus causing the serious infection that C suffered then and which persisted until 1st February 2022. Although I have concluded below that the Mother was responsible for the puncturing of the EVD on 3rd July 2022, the totality of the other evidence set out above leads me to the conclusion that the Local Authority cannot establish it is more likely than not that the mother recklessly or negligently handled C’s EVD line on 21st January 2022, thereby contaminating it with faecal material leading to the infection in blood and CSF detected on 21st 22nd and 23rd January 2022. The evidence points much more towards the probability that the infection originated either via contamination at an intravenous site (as Dr Cowling and Dr Ward seemed to agree) which made its way across the blood/brain barrier causing CSF infection or that the EVD exit point was contaminated by faecal material (as Professor Vloeberghs considered) which originated from C but which made its way to the exit site either through C touching herself (she is noted to wipe/touch her face and pull her hair) or through other accidental contamination from an episode of diarrhoea and its aftermath, including handling of dirty nappy/sheets by nursing staff or the mother but which ultimately arose in a way to which no blame attaches.

VPS Infection

[109]Although not requiring a finding as I have set out above it seems appropriate for me to set out what was emerging from the evidence in order to clarify to some extent for the parents, hospital, experts and any other agency including the police where the evidence seemed to have taken us.[110]Thus, in relation to the VPS infection that occurred in June 2022 it seems that the most likely explanation is that the shunt was contaminated in some way by an external source within a relatively short period of time prior to C being seen by Mr V and Mr G. The condition C was in when seen by Mr G could be consistent the infection being present then and becoming more extensive over the ensuing hours until seen by Mr V but might also be due to other factors including the impact on her of the earlier infection. Bacteria lying dormant would have been introduced during the operation in Feb/March and lain dormant for some time. The parents’ account of a deterioration in C's presentation was described by Dr Ward as consistent with the impact developmentally of the damage caused by earlier infection and the possibly developing infection. This sort of grumbling progress though would be more consistent with what Dr Cowling describes being associated with a skin related bacterial infection rather than the more virulent infection associated with faecal bacteria.[111]Given the local authority no longer seek a finding and given the evidence was not explored in sufficient detail with the mother and father, it is neither necessary nor appropriate from a process point of view to go beyond this, but evidentially I am unable to go beyond this ‘most likely’ conclusion. Thus, I do not make a finding that the June infection was on balance of probabilities due to innocent, negligent or deliberate contamination but simply conclude that the most likely explanation is that faecal material had relatively recently contaminated the shunt from an external source.[112]In relation to the subsequent infections which plagued C from June until October it seems that the most likely explanation (albeit not one I need reach on the balance of probabilities for the same reasons as explained above) is that the June infection was a severe infection and that despite the efforts of the X team to eradicate it by ventricular washouts and intrathecal antibiotics, that some part of the infective bacteria remained in the ventricles either attached to debris or in compartments and that although CSF testing resulted in negative results that following the insertion of the VPS in July 2022, the infection regained a hold. The ventricular washout in October disclosed adhesions or scar tissue which, according to Professor Vloeberghs would support the conclusion that this was a serious infection which had, through these mechanisms, remained present. The specimen testing from 16th August onwards did not disclose a further infection, so the adhesions seen during the ventricular washout in October would appear likely related to the August infection. Although the re-emergence of a polymicrobial infection on 14th August 2022 in a VPS is unusual or perplexing taken in isolation, given how extensive it was and how prolonged it was from June and the findings on wash-outs and inspections which disclosed debris and adhesions, the likelihood of the August infection being a consequence either through debris or adhesions or bio-film or a combination seems the more likely mechanism than a deliberate contamination; internal causes being very unlikely given the findings. That improbability of deliberate contamination is particularly so given that C was in hospital throughout and the only time the mother saw her (or at least the only time that this process has been asked to find that she saw her) without supervision was 13th August when there was already evidence of an emerging infection in the temperature spikes and other clinical observations.[113]The fact that C had clinical symptoms consistent with an infection prior to the 13th August 2022 would be inconsistent with an infection being introduced then anyway. The question of whether the mother and father had met prior to that was not pursued.[114]Thus, on what originally constituted the most serious allegations against the parents, no findings are sought or made. The court works on the basis that the parents were not responsible for them in any way. Puncturing of the EVD Catheter.[115]The Local Authority seek a finding that the mother deliberately punctured the EVD catheter on the morning of the 3rd July 2022 between 10 -10.15am when she was alone with C after she had been moved from her bed. The local authority rely on the sequence of ‘facts’ outlined below i) The EVD was put in on 22nd June and the damage occurs some 11 days later with no obvious explanation from any incident which accounts for it either at the operation (as explained by Professor Vloeberghs) or subsequently. ii) The reason is unknown to the Local Authority but it is a reckless act as to the possible consequences even if there is no deliberate contamination seen. iii) The evidence of Nurse R of observations at 1040, 2345 and 0005 were consistent with a leak from the insertion site. Also, Dr U’s focus was on the insertion site and no leak from the catheter was noted. iv) The observations of the morning of 3rd July by Nurse N and Dr O do not reveal any leaking from the catheter. v) The evidence of the mother and Nurse N is consistent that the leak in the catheter became apparent after 10.15. If an accident had occurred there would be no reason for the mother not to tell the nursing staff. vi) The mother’s account of not looking at the insertion site is improbable, and it is reasonable to infer that when she was explicitly looking for the source of the leak, she was aware of where it was. vii) The subsequent inspection of the line discloses a puncture hole passing through the EVD line. They must be mistaken in identifying the third hole. viii) The mother has access to the dalteparin syringes which are consistent in size and shape to the hole found in the EVD line. ix) The identification of other occasions when packaging or drain lines have been punctured are different and do not undermine the case.[116]The mother in response relies on the following: i) It is not proved that the damage was caused on 3rd July. The cross examination of Nurse R and Nurse N supports leaking in same area from 10pm 2nd July when the mother returned from birthday meal for A. See photo at C201. ii) No harm was caused to C as the mother reported leak on both nights so leak addressed and EVD working adequately. What motive would the mother have? iii) EVD tube and CSF tested and no contaminants found as demonstrated by the evidence of Mr P in cross examination and MB3377. iv) The mother and C were on an open ward and the nurse left them for just 5 minutes – according to the cross examination of Nurse N. v) There have been other occasions of unexplained holes in tubing or its packaging at the X hospital. vi) Findings can only be made on evidence or reasonable inference from evidence. It is not a reasonable inference that damage caused by the mother.[117]The evidence of those who inspected the EVD catheter, including the forensic scientist Dr Jacob, establishes with a high degree of probability that the catheter was punctured on each side within a few centimetres of the coil stitched to C’s scalp. The evidence of Nurse N, that there was third hole is an outlier in the descriptions and seems likely to be an error either in her observation or in her memory. The evidence of Dr Jacob in particular, but also the other observation evidence, establishes to a high degree of probability that the holes were the product of a sharp implement penetrating through the catheter from one side to the other and therefore occurred in one action. The shape of the holes were consistent with a sharp implement capable of producing a clean edged bar shaped hole not wholly circular. They were not consistent with wear and tear arising from kinking of the line, fraying or similar. The testing conducted by Dr Jacob produced holes of similar size, shape and appearance when chamfered 0.5/0.6mm syringe needles were used to puncture the line.[118]The evidence of Professor Vloeberghs and the clinicians support the unlikelihood of accidental puncturing of the yellow catheter during the operation and unlikelihood of it lying undiscovered for the 10 days that followed. No other incident was noted by the neurosurgical team, the nursing team or the parents in which it might have been punctured by a sharp item including a needle. On 2nd July the medical notes of the nurses and of Dr O support the improbability of the yellow catheter having been punctured during the course of that day.[119]It seems reasonably clear from the medical notes prior to the 3rd July that there was no observation of any leak from the catheter of the EVD. It was subject to regular inspections, C was moved in her bed and to her chair and she had moved from the paediatric intensive care unit onto AAward following the insertion of the EVD, so movement of the system was not an unusual occurrence, but no leak was noted in the yellow catheter. The EVD insertion (exit) site was inspected periodically on 2nd July and Nurse BB changed the collection bag with another nurse noting that, at that point, the EVD site itself was clean and dry. The mother and father had visited during the day. Neither give any account of leaking being noticed during the day or of any event which might have punctured the EVD catheter. The mother says that when she left C there was no stain on her pillow.[120]It is not entirely clear when the mother left C, but the messages would suggest that the family were celebrating A’s birthday together from about 5pm until about 9pm and the mother arrived back on the ward at some after 9 o’clock, as the first message sent by her was 21:23. In between her leaving and her return, the EVD had been checked by Nurse R at around 8pm and no concerns were noted. The mothers message timed at 21:25 corroborates that she had been checked earlier in the evening although the mother’s message says “..t 7..” [I assume at 7pm] which would be broadly consistent with the medical records. The photographs sent by the mother at 21:23 shows a fairly significant stain on the pillow suggesting a quite significant leak (more than a drop or a few drops) – C had clearly been moved away from that part of the pillow to enable the photograph to be taken (her right knee – or possibly her elbow appears).[121]The evidence of the mother and Nurse R points to the conclusion that C’s hair was wet in the area beneath the coil of the EVD. Although the evidence of Nurse R in cross examination could be interpreted as identifying that the wet patch was separated from the EVD coil by a dry patch or that the gauze over the EVD was not wet meant that the fluid seen later could not have emanated from the exit site, I do not think this was the overall effect of the totality of her written and oral evidence and nor was it that of the mother. Nurse R spoke of the exit site oozing later and wetting her hair but not the gauze. Nor do I think the photograph of the stain on the pillow would be consistent with a small leak from the catheter itself. The mother, Nurse R and Dr U interpreted the stain on the pillow as being a mix of CSF and blood, possibly from a clot and as having originated from the EVD exit site. The findings of the operation undertaken on 6th July found an organised proteinaceous clot adherent to the ependyma, debris was washed out and other debris removed with cups and aspiration with a large bore EVD then being inserted. On the balance of probabilities, it seems that the leak of fluid evidenced by the stain on the pillow and C’s wet hair was a result of a leak of CSF stained by blood emerging from the EVD exit site, possibly exacerbated by C having changed position and the EVD drain line being kinked and not draining freely for a period of time. Later observations of the EVD site seemed to confirm some oozing but nothing significant. On the balance of probabilities the EVD line was not punctured at this point in time.[122]On the morning of 3rd July, Nurse N took over care. A check of the EVD insertion (exit) site showed it was dry. She did not note any leak at that point (8am and 9am) and although it is clear that the focus of all the clinicians and the mother had been on a leak from the insertion /exit site both because of what had been seen but also because this was the usual source of any leaks, had the catheter itself been leaking and showing evidence on C’s hair it seems unlikely that it would not have been seen. It was checked again at 10am when the mother and Nurse N were about to move C. In her police interview of September, the mother said she didn’t like Nurse N as a result of an incident over an earlier incident with a Hickman line but that did not feature in either the mother or Nurse N’s oral evidence.[123]The evidence of Nurse N and the mother together is that they removed C from her bed to a chair and that in so doing the EVD drain line (not the catheter) caught on the head rest and stretched. This might also have pulled on the EVD catheter as they are joined but it was the clear drain tube that was caught and so this event would not explain a puncture to the catheter. In her written statement and her oral evidence, the mother’s evidence is that she noticed that C’s hair was wet whilst Nurse N was gone. In her July police interview she also says it was she who noticed it and called the nurse over. Her account in interview – given only 2 days after the events is far more limited in its coverage than her later account in statement and in evidence. Essentially, in her interview she does not deal with the inspection of the catheter, the observation of drops on the catheter or that a hole was noted. Given she was being interviewed specifically in relation to this (amongst other aspects relating to introduction of infections) this is an unusual omission. In her statement she said you could see droplets coming out of the holes although she could not see the holes themselves.[124]The first messages that have been put in evidence are timed at 10.55 which are between the mother and the maternal grandmother. Shortly afterwards there are messages exchanged with the father which suggest some earlier communication (reference to dressing over “It”) but no exploration of these messages or earlier communications was undertaken in cross examination. It is difficult to gain much insight into the mother’s state of mind from these - the use of the word “just” might suggest a level of dissatisfaction in the response of the hospital to the leak. The messages from the night before when the mother returned from the Harvester certainly suggest a degree of unhappiness with the hospital staff; ("Her head is leaking .. ffs?? N they never even noticed .. xx get them to watch i[ad xx" Yeah im m I just let the nurse no as soon as they let me know the doctors r coming I will head up im not happy with them!!!!"). What her state of mind was the night before or the morning of the 3rd was not explored in any detail by reference to what had happened at the Harvester, what conversations had taken place after she returned from the hospital on the night of the 2nd or how things were on the morning of the 3rd either with the mother or the father) and so the window into the mother’s state of mind at this time is a small one. These messages indicate some degree of frustration with the response of the hospital to the leak seen the night before. Previous social services’ work with the family had included reference to there being differences between the parents and the X; the parents seemingly thinking at times that their concerns over C and symptoms they noted not being acted on and the hospital having concerns that the parents were over interpreting or reporting symptoms. The notebook, and the subsequent complaint, also suggest the parents (in particular the mother) felt they were not being listened to and that C’s care was not being managed as well as they wanted it to be. Later messages around 13.34 that day have the mother saying she is seriously on about moving C’s care to Y. That of course also needs to be seen in the context that by this time the mother felt she was under suspicion for puncturing the EVD catheter and so this may have influenced her attitude but it seems more likely having regard to the totality of the messages around that time and the complaints and notebook that the mother didn’t feel she was being listened to and was frustrated about how the X were responding to her concerns.[125]The totality of the evidence of the nursing staff, Dr O and the mother all point to the EVD not leaking from any point in the morning of the 3rd July until the mother pointed it out to Nurse N at sometime after 10am. As noted above, the evidence in its entirety is that the EVD catheter was not punctured when the CSF leak occurred on the night of the 2nd July and there is nothing which would suggest it was punctured overnight but lay dormant until after 10am when the mother noticed it. It is of course potentially relevant that two weeks later further puncture holes were discovered in drain lines in the adult neurosurgical ward which are unexplained. Could there be a member of the hospital staff or someone else with access to AAward or the adult ward who was deliberately puncturing medical equipment either amongst the treating team for C or some other unidentified individual? There is no suggestion that an unidentified individual had access to C on the night of the 2nd – 3rd July. The only crossover between the teams on AAward and the adult neurosurgical ward appear to have been trainees. Dr O accompanied the consultant on the morning ward round on 3rd July. Dr U inspected the EVD site with Nurse R in the early hours of 3rd July. There is no evidence of individuals being alone with C other than Nurse R or Nurse N or perhaps other nursing colleagues in the ward may have had the opportunity to be with C alone and so these cannot be ignored.[126]However, on the basis that the EVD catheter was indeed undamaged until sometime after 8am or 9am on the 3rd July (it had been examined by Nurse N and by the ward round) the likely timing of the damage is when the mother is present on the ward. Of those present at the time who might have inserted a needle into the line to create the puncture mark. Nurse N had the opportunity too, but the mother did not notice anything, and what motive (other than those occasionally seen in reported cases of assaults by medical professionals) would exist? The mother was alone with C at the time the leak became apparent. Could it have lain dormant from earlier damage and emerged from stretching? That is a possibility but also requires some earlier actor to have punctured the catheter. More likely, in terms of opportunity, is the mother, who was alone with C, had it. It would be an act of seconds to use a syringe of the sort the mother had access to with the Dalteparin anti-coagulants to commit the act. That C was in front of the nursing station and that such an act would have been visible to those in the bay or passing traffic is a contra indicator, although the act itself is a tiny movement easily hidden and so easier to perpetrate without being noticed. The issue of why the mother would commit such an act is more of a puzzle though. The evidence overall supports the conclusion that she was in the main committed to promoting C’s care; her concerns about the hospital were that they were not taking her concerns as seriously as she felt they ought to be. However, the mother is a flawed character psychologically. All of the evidence dating back some years to judgements when her first two children were removed from her care, the contents of the messaging which is available to the court covering the two-year period 2020-22, the engagement with social services all point to the mother having the capacity to make poor decisions, to lose control of herself and to say and do things which when in control she would prefer not to. The sense of frustration that emerges in the messages is relatively faintly heard but it seems to support a potential motive that the mother felt that the CSF leak the last night was not being taken seriously by the hospital, had not been acted on overnight and that on the morning of the 3rd July the mother sensed a lack of urgency in the hospital response. Her interview discloses her concern about leaks of CSF leading to infection. Damage to an EVD would require investigation and replacement; a distorted logic but one I conclude the mother would be capable of notwithstanding a general support for C’s care. Thus, the totality of the evidential picture leads me to the conclusion that it is more likely than not that it was the mother who punctured the EVD line on the morning of the 3rd July whilst Nurse N was out of sight. I infer, and I do not consider this to be speculation, that her motive for doing so was to force X hospital into action. The evidence does not support an act intended to harm C – the mother’s general attitude is much more inconsistent with that and of course the testing of the catheter did not disclose the introduction of any faecal or other bacteria which would support a harmful intent. The puncturing of the catheter was highly risky though as environmental bacteria might have gained access had it not been covered rapidly and steps taken to protect it.

Chastisement and Neglect

[127]The admissions made by the parents in the Agreed Facts document, it is accepted by the parents, would cross the section 31 threshold in relation to emotional and physical abuse of the boys. There is a significant difference between the admissions made by the parents which are limited in their nature and the threshold as pleaded.[128]The threshold if proved would amount to a sustained pattern of emotional and physical abuse of the children over a period of years together with emotional and physical neglect over a period of years. The threshold contemplates the likelihood that the abusive behaviour was not at a consistently high level over the years but that it ebbed and flowed with there being periods of more serious abuse and neglect in periods where life within the household would not have met the threshold. I am of course aware that society and the courts tolerate very wide standards of parenting as described so powerfully by Hedley J in particular. However, the threshold allegations taken even at the level admitted by the parents in the admitted facts document are accepted to cross the threshold of unacceptable parenting. If the threshold is established to an extent significantly greater than the admitted facts, it is self-evident that it would fall well outside the parameters of parenting which society and the courts are prepared to tolerate.[129]Although the Threshold delineates between emotional and physical abuse relating to chastisement and neglect and although Mr Howe and Ms Lee submitted that the neglect issues could and should be viewed separately, and indeed that the neglect issues did not amount to acts or omissions which crossed the Threshold, it seems to me that they ought to be considered as a whole. A recurring theme in the evidence and in submissions of all was that the family were at times overwhelmed by the situation they found themselves in and that this was a or the causal factor in the abusive behaviours which the parents admitted to or which the Local Authority sought findings on and which would of course be liable to contribute to whether the children were being provided with care of an appropriate standard or not in ‘neglect’ terms. Being overwhelmed by circumstances would not mean the threshold was not met but might well be relevant to the ultimate outcome of such threshold findings.[130]Being overwhelmed would usually involve a constellation of factors including ones purely external to the person (money, housing, number and health of children) as well as internal factors (their psychological make-up and parental skills amongst them) but might also include mixed factors such as the dynamic between two individuals.[131]In this case, it is clear that the mother has had underlying psychological problems which were identified as disordered personality traits long ago and which required therapeutic input to address. The records suggest this was not completed. The mother’s presentation from the documents and her personality as far as I can judge it within these proceedings would suggest that she remains a flawed character psychologically. Her emotions lie close to the surface, most obviously distress when she was giving evidence, but the messaging also suggests that frustration or anger also lie very close to the surface as do more positive emotions of love and tenderness. The evidence down the years suggest that these may have moderated to some extent but remain a significant aspect of the mother’s character.[132]The father appears to be a different character, far more detached from his emotions, more focused on his own needs, less empathetic. A frequent refrain in the messaging is the mother’s complaint that he is not doing enough to help her, is more focussed on doing his own thing. He, of course, was working - often nights - so this pattern of existence was out of sync with the needs of a young family and inevitably would have impacted on his availability to assist.[133]The decision of the mother and father to continue to expand their family even after C’s arrival with all of the demands upon them that that imposed was one that they were entitled to take, but adding two more children in the space of 2 more years led to the family unit consisting of 5 children under the age of 6 when E arrived; a significant commitment for even those parents in the most stable and supportive relationship, who were well-equipped emotionally to manage those demands and who had the capacity to acquire the skills as parents to manage not only five young children, but five young children one of whom was seriously disabled. The parents’ relationship has faced significant challenges, not least the father conceiving a child with another woman around the time of A’s birth which he initially denied but later was forced to acknowledge when DNA confirmed he was the father and which has returned periodically to disrupt any progress they were making in re-building trust. Enquiries arising from care proceedings as to alternative carers for the father’s child appear not surprisingly to have ruffled the mother’s feathers and the messages even from 2020 show it was a recurring theme. The parents separated in 2018 for a period of months. The messages between the parents and the ‘Admitted Facts’ show a dysfunctional relationship arising from a number of causes, although also demonstrate times in their relationship which were more positive, loving and supportive and other times when the mother was clearly at the end of her tether, the father appeared unsupportive focused on his needs (sexual being a significant area of conflict) and where there did not appear to be a meeting of their minds as to how to parent the children. Family support appears to have been of fluctuating benefit; the role of the maternal grandfather was a source of serious concern to social services given his track record with the mother and the results of social services enquiries as to his care for the boys.[134]As referred to above, neither of the parents appear to be particularly well-equipped psychologically to deal with the demands that this group of young children were bound to present. The social services records demonstrate periodic interventions in the family life with support being offered, some being taken up, evidence of the parents not being frank in the extent of the problems, with improvements being made leading to a reduction in social services concerns but as social services’ presence receded, the changes not being maintained by the family and social services concerns re-emerged.[135]The Admitted Facts contain a core of behaviour including: i) The mother finding caring for the children highly stressful or intolerable and she struggled with her mental health. This impacted on her care of the home and the children. ii) Physical abuse of A and B by smacking them. iii) Putting the children outside as a punishment. iv) Threatening to throw A out of the home. v) Emotional abuse of the children more generally in terms of managing their behaviour: shouting, breaking their toys etc.[136]The parents, both to an extent, minimised their behaviour in giving their evidence, seeming to reverse from the Admitted Facts, albeit in closing their counsel accepted the Facts documents. This tendency of the parents to minimise was evident throughout their evidence and is a recurring theme in their engagement with social services and the police. The parents deny or suppress when their conduct is criticised. Their dishonesty over their abuse of the children in their police interviews, their court documents and their court statements were only exposed by their digital footprints and accepted only in the face of incontrovertible proof, which they struggled to maintain acceptance of in evidence. Their lies, I am satisfied, were not borne out of shame. The mother said that was the reason, but it was easily dispelled when she could not maintain even the limited admissions she had made. The lies were told to cover up the abusive behaviour and those lies in themselves meet the modified Lucas test for corroborating more extensive abuse of the children. The parents lied on material issues and the only adequate explanation for their lies was they were covering up extensive abusive behaviour.[137]A very considerable focus has been placed on the content of the allegations made by the boys themselves. The parents’ case from the outset was that the boys were unreliable historians, indeed were known liars and that what they said about the parents’ behaviour was simply untrue. The parents suggested that they had been ‘encouraged’ to make allegations to deflect from their own poor behaviour at school or in the care of foster carers; so not only were the boys liars but they were dishonest in order to protect themselves. As it happens the parents’ forced admissions demonstrated that quite the reverse was true. It is the parents who have lied and who have lied to save their own skins but in the course of seeking to save their own skins have accused their own little boys of being dishonest. I hardly need to state how shocking and despicable such behaviour is of the parents of these vulnerable boys.[138]Thus, the parents’ case that the reports of the children, their consistency, the context in which they were made needed to be the subject of the most careful scrutiny to ascertain their truth is largely redundant now that the parents admit that some of the core features of the boys’ accounts are indeed true. The issue is the extent to which the allegations made by the boys which extend beyond the admissions (or which are evidenced by the messages) are established on the balance of probabilities to be true and what the true extent of the boys’ allegations which are admitted in part are true. It is notable that the parents accept what is shown by the messages rather than what is described by the boys. No real concession is made beyond what can be independently proved.[139]It is of course the case that these children have not been interviewed by the Achieving Best Evidence process which contains within it the safeguards considered the best way of securing the most reliable evidence from children. However, that does not mean that other accounts given outside the ABE process cannot be relied upon. In this case, as we know, the children’s account is demonstrably reliable because the parental messages support it and the parents now admit it. The court must of course exercise some caution in determining whether and to what extent the boys’ evidence is reliable, the extent to which accounts may have been embellished deliberately or be the by-product of subconscious factors, to which allegations may have been entirely fabricated to gain attention. In considering the reliability, one must look at the context in which allegations are made, who makes them, what the other child says about them, whether the child had any reason to be giving an untruthful or unreliable account, how frequently they are made and the significance of any inconsistencies of account over time. In its approach the court may look to what others have said (including the parents over time), it may look at the behaviour of the boys to ascertain whether observations by teachers and others are consistent with children who have experienced what they say they experienced. A whole host of considerations go into determining the extent to which the boys allegations should be accepted as being a true and reliable account of their experiences.[140]The evidence set out within the Chronology: i) Physical abuse of the A and B was reported by A as long ago as the Child and Family Assessment in February 2020. The emergence of the allegations from the boys in foster care is repeated in a variety of contexts, some where there might be some suggestion that they are pointing the finger at the parents as a way of deflecting from their own behaviour but in others where there is no such concern. It could be that it became a narrative that they knew got them sympathy and a hug but knowing that the parents admit hitting them now anyway, the core truth of their accounts is established. Was it as B and A said on 22nd September 2022 that it was most days, on the face, arms, legs and bum and that the other children occasionally got hit too or is it limited to the occasions the mother and father accept? When one considers the context of, for instance, this account it is B complaining that A is horrible to him and gets in trouble for it. This seems to be a clearly accurate account by B as T noted it to the extent she considered only continuing to care fora. A. The description accords with the parental messaging too. B’s account of A being more a focus as he was naughtier also reflects what T saw, what the parents seem to depict and so large elements of this account can be verified elsewhere. What reason is there to then say that the frequency and location of the smacks is inaccurate. Whether most days means five days a week, one smack a day or three days may not matter much – the clear import is that smacking is a common occurrence and the default recourse to the boys when they are playing up. The mother said they wound her up – they knew how to push her buttons and blamed them when in reality it was their experience of poor parenting, aggressive, angry, inconsistent and neglectful parenting that was the cause and which prompted a further aggressive response. The consistent message from the boys’ accounts is that A was the principal target, B following with C, D and E being rare targets but targets nonetheless. ii) The parents’ messaging and admissions show that the mother for significant periods over 2021/22 was at the end of her tether and simply unable to manage and resorted to hitting the boys, putting them outside, threatening to leave, threatening to throw them out. I do not accept that she would only have expressed such thoughts in messages to the father. Her messaging is an integral part of her existence and I am quite satisfied that it is more probable than not that such emotions were openly visible and expressed in similar terms in the home and to the boys. How it would have made the boys feel to be told they could fuck off and go live somewhere else, that he could live like a dog (A was noted to act out being a dog at times) or that he was no son of hers, is hard to contemplate. iii) The father appears as a less visible figure in the accounts given by the boys or indeed any parental messages. However, he accepts physical abuse of the boys. His response in cross examination by Mr Sampson to what he did to address the serious concern that any parent would have had emerging from the mother’s messages was he essentially did nothing. This begs the question whether he did nothing because he was so passive and fearful of the mother that he did not wish to provoke a further argument with her or whether he was complicit in the behaviour and adopted a similar attitude himself. The messaging between the mother and father does not suggest that he was in any way fearful of the mother. He was quite able to ask for what he wanted and to engage in arguments over their relationship or to accuse her of infidelity when it suited him. I therefore do not think that he was a fearful bystander. The accounts of the boys of both parents meting out physical punishment, locking them out in the dark and cold and if the core of their accounts in relation to the mother are true, I see no reason why their account in relation to the father would not essentially be true too. He may indeed have been out of the house for much of the time and even when home may have been a more hands-off parent than the mother and so in quantitative terms he may have been the smaller player but in qualitative terms he was also responsible for physical and emotional abuse of the children. He appears not to be as voluble or volatile as the mother who would appear to lash out in heat - the father’s may have been a less demonstrative meter out of punishment- but the evidence leads me to conclude he was nonetheless responsible for much abusive behaviour. iv) The issue of pinching or punching of the willy seems to emerge soon after the boys are in T’s care and features as part of A’s behaviour towardsb. B. A then alleged that his father had smacked and pinched his willy when he was naughty; this being in the context of B telling T about his mum and dad smacking C, D and E. It is possible that A was saying this to become part of the conversation and to gain some approbation from T. B spoke about it a few days later when referencing pain. In December, A was himself in trouble for smacking B in the willy and when pulled up by T seemed to use the fact that mum and dad did it as a justification. The fact of the behaviour being noted as a feature in the boys when they came into foster care suggests it was something that was present before although the parents deny this. It is behaviour which might be picked up at school although the school do not note it as a significant problem in the children in their class. On balance the totality of the evidence leads to a conclusion that it is more probable than not that this was an occasional feature of punishment by the father (primarily) of the boys, they had adopted it and because it hurt, A would subject B to it. v) It is clear that after going into foster care the children’s behaviour did not change overnight and that at school and at foster care there are instances of violent behaviour and dishonesty in taking cars, money and other items, of them lying when confronted about it and seeking to avoid responsibility. However, in the context of the parents’ admitted behaviours and their own propensity to dishonesty and the huge upheaval the boys experienced in being taken into care and separated not only from their parents but their siblings, their behaviour seems unsurprising – indeed less than one might expect from a child who was generally happy at home. This has its own story to tell. vi) The record of concerns noted by the school commence in May 2022 with an allegation from B about washing up liquid being put in his mouth. That re-emerges in various forms in October when B mentions it. T was using pink washing-up liquid. In November when B referred to it and to S during the occasion A was acting out being a baby, when B mentioned it to Ms L when she spoke to them about being picked on, when he referred to it again to Ms L in a spontaneous outpouring. The nature and variety of references to it make this seem an unlikely exaggeration or fabrication. The emergence of allegations at school which escalate after the children go into care might suggest that it was not a feature of their lives as much. The parents’ concerns about what the children might say at school and earlier social services involvement in which A alleged he and B were smacked would suggest that it may have been a feature but not one the children mentioned much at school. The school clearly had some concerns but did not raise them as they did not want to add further to the burdens the family had in late spring 2022 in dealing withc. C. vii) The mother accepts hitting and punching (on occasion) to the extent that she hurt her hand and so must have hurt B in so doing. viii) The mother prioritising the care of C at the expense of A and B has been a concern for at least four years and the father’s messages suggest he saw it this way as well. ix) The issue of the children bedwetting becomes evident when they go into foster care. At ages seven and six it is unusual for boys to be wearing pull-ups as a regular part of their home routine in any event. Bed-wetting may in itself be a sign of anxiety or insecurity and the boys’ description of why they are wearing them and not being allowed to go to the toilet at night is unusual. One could imagine in a full house, with a number of dogs, that going downstairs to the toilet in the middle of the night might create a commotion and disturb those sleeping including the father who may have been on earlies and so there would be some potential pressure to keep the boys in their rooms at night. Although the boys might be expected to be embarrassed at being in pull-ups at that age, the evidence of the foster carers is not suggesting this was the reason why they pointed the finger at the regime in place at home. x) The children give accounts of a home life depicting their needs being neglected at times, although this is a less obvious theme than the household being out of control. Unhygienic conditions are a frequent feature, particularly relating to dog mess and having five children plus a number of dogs (including puppies) was simply too much to manage. The account the boys gave of having to clear up using inco sheets is so detailed it is likely to be true – less obvious is why the parents would deny they were asked to do this. Doing chores is not unusual although for a six and seven year old hoovering and clearing dog cages might be. Lack of hygiene, occasions when they had to get themselves up and feed themselves with the father at work and mother overwhelmed and unable to prepare them for school appear likely. xi) A’s and B’s developmental progress has been a longstanding concern. xii) The neglect issues were present as long ago as 2015 when only A was on the scene and concerns over the parents’ honesty and engagement existed then. The state of hygiene in the house was a feature then and re-appears over the years including 2021 and 2022, with dog faeces in the garden and house being an obvious example of the family inability to keep on top of hygiene. xiii) The parents themselves were both victims of physical abuse as children. xiv) The evidence of the boys’ behaviour itself tells a story of exposure to conflict and aggression which is more consistent with frequent exposure than isolated incidents.[141]The significant change in behaviour of A and B since going into care is potentially important. The school in particular note a sea-change in behaviour both in terms of engagement and attention but also in behaviour. This may be a product of them having attuned and intensive care provided by the foster carer but also may be a product of not being exposed to abusive and neglectful behaviour at home.[142]That the parents are capable of warm and affectionate parenting and meeting the children’s needs in the home and in contact is not so much an issue. The question in this case revolves about their ability to do that on a day to day, month by month basis in a consistent and sustained way.[143]Taken together, all of the above factors lead me to the conclusion that the allegations about the physically and emotionally abusive behaviour of the parents towards A and B in particular, but extending also on infrequent occasions to D, E and C, are established on the balance of probabilities. The admissions of the parents represent only a bare minimum foundation upon which are far more extensive facts that exists where physical abuse (smacking on various parts of the body [more by the mother than father] and occasional pinching or smacking of their genitals [more by the father than the mother], of A and B by the mother and father were frequent occurrences, probably several times a week and occasionally more than once a day. Occasionally, the mother put washing up liquid in their mouths – I infer as a form of punishment for bad language. Given her own proclivity to swear it was hardly surprising her children did. In addition, emotional abuse in the form of shouting, threatening to throw them out, and being unpleasant, were also regular occurrences in particular by the mother. The children were put outside in the dark and laughed at by the parents when they cried; they were told by the mother she would throw them out; they were not allowed to go to the toilet at night and their bed-wetting, probably contributed to by the abuse they experienced, was exacerbated by being forced to wear pull ups and being forbidden from leaving their room. Lastly, at times the children were neglected – most importantly I think in the area of emotional warmth where the mother was primarily focussed on C but this lack of engagement with the boys seems to have pre-dated her arrival and was exacerbated by the intensity of her needs. The father would seem to have been closer to the boys but was also a perpetrator of abuse and was less available as a consequence of his work. There were times when the mother was overwhelmed when the boys physical care was also neglected, although this was less obvious and less frequent than the emotional neglect and physical and emotional abuse.

Conclusion

[144]My conclusions from that detailed evaluation are therefore in summary as follows: i) No findings are made in relation to contamination of C’s VPS or EVD systems. In relation to the allegations of deliberate contamination of the VPS shunt that is a consequence of the Local Authority not pursuing such an allegation. In relation to the pursued allegation of reckless or negligent contamination of the EVD shunt in January 2022, I have concluded that the local authority has not established the allegation on the balance of probabilities but moreover that the evidence established that it was more likely a product of environmental contamination. ii) In relation to the puncturing of the EVD line on 3rd July 2022, I find that it was a deliberate act by the mother, probably motivated by frustration at how the hospital had responded to the CSF leak that occurred in the late evening of 2nd July 2022. It was reckless as to the possible harm that may have occurred from the introduction of a further infection but was not undertaken with the intent so to do. iii) I conclude that all of the children were subject to physical and emotional abuse at the hands of both parents. This was particularly focused on A and B with C, D and E being infrequent targets. This was substantially beyond that which the parents admit and much closer to the characterisation depicted by the boys in their accounts. iv) For significant periods of time the children’s emotional needs were neglected, in particular those of A and B with infrequent occasions when their physical needs were also neglected. v) The physical and emotional abuse and neglect were a product of the mother’s and father’s psychological or emotional qualities which made them unable to cope with the demands of parenthood, in particular parenting five children including one with a disability, where they were unable to acquire and maintain the skills needed to parent demanding children, where their history of dishonesty was such that they were unable to engage appropriately with services provided for them.[145]The parents’ history of dishonesty in engagement with professionals and with authority, including the court, and their inability to make use of social services support that has been available to them together with their poor choices and what would appear to be very deep-seated psychological or emotional ways of operating do not paint a hopeful picture for the future. Further consideration will need to be given as to any further assessments of the mother and father before final decisions can be reached for these children. As matters currently stand it seems almost inconceivable that the parents could resume care of all five of the children. Whether they can resume care any of them will be the subject of further assessment.[146]That is my judgment.