R & S (Minors) (Salt-Poisoning) (No.1: Fact-Finding), Re [2024] EWFC 439

This is the redacted version of a confidential judgment 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 or reporting of the same, the anonymity of the children and members of the family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.[2024] EWFC 439Before Mr. William Tyler KC, sitting as a Deputy High Court Judge
Between
A MOTHERRespondentsA FATHERR (A MINOR)S (A MINOR)MGM, IA, IB, IC, ID, IE and IFIntervenersKarl Rowley KC and Mark Saunders of counsel for local authority, instructed by Lois Monks of JWP Solicitors.Martin Kingerley KC and Karen Lennon of counsel for mother, instructed by Jamil Ismail of Petherbridge Bassra Solicitors.Jonathan Sampson KC and Nathaniel Garner of counsel for father, instructed by Bradford Family Law.Louise McCallum and Hannah Whitehouse of counsel for children, R and S, through their Children’s Guardian, instructed by Emma Grayson-Bollon of Chivers SolicitorsKarim Andani of Ashwells LLP for intervener, IA
[1]I am concerned with the interests and future of two children, R and S. R was born on [a date in] 2017, so is nearly seven years old; S was born on [a date in] 2022, so is one and a half.[2]The applicant for Part IV orders pursuant to the Children Act 1989 (“CA 1989”) is [a Local Authority] (“the LA”). The LA was represented before me at this fact-finding hearing by Messrs. Rowley KC and Saunders.[3]The mother of both children, “M”, was represented before me by Mr Kingerley KC and Ms Lennon.[4]The father of both children, “F”, was represented before me by Messrs. Sampson KC and Garner.[5]The children were represented before me, through their Children’s Guardian (“the CG”), by Miss McCallum and Miss Whitehouse.[6]There have been seven family members intervening in this case. Of those, one, IA, was represented by Mr Andani, a qualified Litigation Executive, whom I permitted to do so, notwithstanding his not having formal rights of audience. The other intervening family members, the maternal grandmother (“MGM”), IB, IC, ID, IE and IF have all represented themselves. Precipitating events[7]The Part IV proceedings were issued because the LA alleges that someone deliberately poisoned S, when still a small baby, with salt, an action which, the LA further alleges, could easily have led to his death.[8]S was presented to [a hospital] on 27 November 2022 with a history of being dehydrated, with a depressed fontanelle and poor feeding. Blood tests from a sample given shortly after admission established significantly raised blood sodium levels. Medics sought to treat S, who continued to refuse his feed, by the insertion of a nasogastric tube, through which he was fed the milk made up for him from the powder brought in from home. The improvements which had been expected did not materialise; indeed, S’s blood sodium levels continued to rise to a dangerous degree.[9]In the early hours of 29 November, a senior nurse, having discussed the possible causes of the continuing raised sodium levels with a senior colleague, decided to make up some of the formula milk from the powder brought in and to taste it. It tasted strongly of salt. Feeding with the contaminated milk was immediately discontinued.[10]However, the way in which and the rapidity with which S’s sodium levels were brought down to normal limits led to the development of seizures, which, I have been told, could have been fatal. As it turns out, S has made a full recovery and is unlikely to suffer any adverse consequences of the poisoning or its sequelae. This, though, could very easily have been otherwise.[11]In due course, testing confirmed that table salt had been mixed with the powdered formula in both the tin of formula feed brought to the hospital from home and in an almost-empty tin recovered from the kitchen in the family home. It is now accepted by all involved that this salt was introduced to the tins of formula feed after both their purchase and their having been brought into the home. None of the parties or interveners advances a case that the formula powder was contaminated during the manufacturing, distribution or sales process.[12]This long and factually complicated fact-finding hearing was conducted in order to ascertain the circumstances in which S was poisoned and, to the extent that it is possible, where the responsibility for this lies. Family structure[13]The family at the heart of this case is a large extended British-Asian family.[14]The maternal grandparents (“the MGPs”), MGM and MGF, are themselves paternal cousins. They were both born in Pakistan. They moved to England as teenagers and were later married. They, and their children and grandchildren, have lived in [a county] ever since.[15]The MGPs have seven, now adult, children and seventeen grandchildren as follows: - The eldest child is ZA, in her early forties. ZA is married and has two sons, one of whom is IF. ZA has not featured in this case, although IF, due to his presence in the MGPs’ home at relevant times, is an intervener. - The second child is ZB, in her late thirties. ZB is married and has three children. ZB’s eldest child is ZC, a girl, mentioned now as she features in the narrative below. ZB was called as a witness in the trial on behalf of M. - The third child is ZD. ZD is divorced and has three children. ZD was also called as a witness in the trial on behalf of M. - M is her parents’ fourth child. As set out above, she is married to F, and they are the parents to the two subject children, R and S. F and M are first cousins, their respective fathers being brothers. ◦ IB, who is married to, ID. ID is [from a North African country] and speaks Arabic but little to no English or Punjabi. IB and ID have two children, ZE, who was born in July 2020, and ZF who was born in February 2023 (it being of some relevance to the narrative that, at the time of the precipitating event, ID was pregnant with ZF). IB and ID are both interveners. ◦ IC, who is divorced from ZG, the mother of his young son. - The seventh child is IE, aged 31, who is married to IA. They met as teenagers and their marriage is a ‘love’ as opposed to an arranged marriage. They are the parents of a little girl (“EK”) born in November 2023, so conceived after the precipitating event.[16]The maternal grandparents live in a large house in [a city], which has been home, at various points both to their married sons (and their wives and families), and to M, without F, when S was newly born. At and around the relevant time in November 2022, IF, then as now a student, was a regular visitor, staying over at weekends. The then 12-year-old ZC, ZB’s daughter, was also a frequent weekend overnight guest. The home – immaculately kept, as is apparent from police body-worn video (“BWV”) footage – was clearly a warm and vibrant hub for this large and close extended family. MGM would spend several hours each day cooking for whomever was in residence on any particular day. The shape of the fact-finding hearing[17]Due to various significant complexities, it has taken a regrettably long time for this case to come to trial. The fact-finding hearing was initially due to begin, after painstaking preparation, in November 2023. Due to the slightly earlier than expected birth of IE and IA’s daughter, coupled with the newly crystallised centrality of IA’s role in the trial (of which, more below), on her application, I vacated that fixture.[18]The soonest the trial could be reheard was over a number of weeks in March and April this year, so some 16 months after the precipitating event. Very unfortunately, given that this is an observant Muslim family, but unavoidably, the revised fixture coincided almost exactly with the month of Ramadan and the attendant daytime fasting. In the event, and in light of the various measures in place, I do not consider that any disadvantage was caused to any party, intervener or witness in consequence of this. The unconnected fact that, due to my other professional commitments and Bank Holidays over the Easter period, the case was heard on three days only of each of the three weeks over which evidence was heard will have serendipitously allowed real respite for the protagonists.[19]The conduct of the trial itself was complicated by a number of features. Principal among these has been the number of interveners. Originally there were eight; however, the LA more latterly indicated that it no longer pursued any case against MGF (in summary, due to his chronic poor health and the unlikelihood of his having been in a position, or in any way motivated, to contaminate the feed in the way alleged). Of the seven remaining, IA, against whom M has advanced a positive case, has been represented by Mr Andani, a Litigation Executive to whom I granted permission to appear, who acted pro bono throughout these proceedings. The remaining six, also not entitled to public funding, have acted in person. On most days on which they were not themselves giving evidence, the respective interveners have attended remotely, while the parties, the legal teams and I have attended in person in court in Leeds.[20]The proceedings were further complicated by the need for interpreters, in different languages, for MGM (Mirpuri) and ID (Arabic), with pace adjusted accordingly, and hourly breaks interposed.[21]Over nine full, sometimes very long, days of evidence, I heard from: Wed 20 March - Dr Malcolm Coulthard, Honorary Consultant Paediatric Nephrologist Thurs 21 March - IF, adult cousin, intervener - A social worker (“SW”) Fri 22 March - MGM, intervener Mon 25 March - ZB, maternal aunt, witness - ZD, maternal aunt, witness Tue 26 and Wed 27 March - The mother Wed 3 April - The father - ID, maternal aunt (by marriage), an intervener Thurs 4 April - IA, maternal aunt (by marriage), an intervener Fri 5 April - IC, maternal uncle, an intervener - IB, maternal uncle, an intervener - IE, maternal uncle, an intervener[22]I received very helpful submissions in writing from the legal teams for each of the parties and IA, to which the advocates briefly spoke on the morning of Wednesday 10 April, and I received short written submissions from the interveners MGM, IF and IC. Rider[23]This case has generated a vast amount of documentation. I have a running main bundle with a little over 1,500 pages, a disclosure bundle of more than 3,100 pages, and an additional disclosure bundle of more than 2,600 pages. A fair number of further or new documents were produced or filed during the trial. In addition, the written closing submissions (together with two schedules) produced on behalf of the five represented parties and intervener, while very helpful, total approximately 150 pages.[24]In those circumstances, and in the knowledge that this judgment will in any event be of some considerable length, it is self-evident that I cannot set out every piece of evidence, every potentially relevant event or conversation, anything even resembling a complete summary of every witness’s oral testimony, or a full and comprehensive summary of the parties’ closing submissions. I bear all I have read and heard, and all of the arguments rehearsed before me in writing or orally, firmly in mind, even though I can record only a fraction of this material in the judgment which follows. The law

General principles

[25]This has been a fact-finding hearing. In that context, there are a number of legal principles which circumscribe the way in which I am bound to conduct the exercise of resolving disputed facts in Part IV CA 1989 proceedings. These principles are very well known. In setting them out in bullet point form below, it can be taken that I have firmly in mind the longer (and oft-repeated) quotations from the appellate authorities from which are drawn the following propositions: - It is for the LA to prove its case and each fact it asserts. - Corollary to this, and very importantly, there is no burden or pseudo-burden on the parents (or, in the context of this trial, the interveners, or any of them) to prove their innocence. It is for the LA to disprove a reasonable explanation put forward by a parent. Where a party seeks to establish an alternative explanation, but fails to do so, that failure does not, of itself, establish the LA’s case, which must still be proved to the requisite standard. - The standard to which the LA must prove the facts for which it contends is the simple balance of probabilities. The inherent probability or improbability of an event is a matter to be taken into account, as appropriate on the facts of any individual case, when weighing the probabilities and deciding whether, on balance, an event occurred. - The court can proceed only on the basis of proven facts, which can include inferences from proven facts, only to the extent that those inferences are reasonably drawn. - The court must survey the broad canvas of evidence, considering each piece of evidence in the context of all the other evidence. - Expert evidence is only one part of that canvas. It must be weighed together with the other evidence including, very importantly, in a case of alleged non-accidental injuries (or other abusive harm), the evidence of the parents (and interveners). - The evidence of family members is of the utmost importance, and the court should form a clear assessment of credibility and reliability. In that context, however, the court must bear in mind the dangers inherent in drawing conclusions as to truthfulness from witness demeanour. Greater assistance is likely to derive from matters such as internal consistency, logicality and plausibility, detail given (or not) and consistency with other sources of evidence (including what the witness has said on other occasions) or other known or probable facts. - Although not determinative in themselves, I should have in mind, when considering any findings, the presence or absence of any other risk or protective factors. - Lies are not necessarily probative of guilt save in the very constrained context of the so-called revised Lucas Direction. - The repeated telling of a story can lead to innocent inaccuracies. - Testimony based on memory is intrinsically fallible.[26]In the current case, three particular topics require further and more detailed exposition, as I must have the closest regard to them if my decision-making process is to be sound. Those topics are: - memory and lies; - identification of a perpetrator / uncertain perpetrator; - circumstantial evidence.

Memory and lies

[27]There are a number of aspects of these particular proceedings which, it seems to me, I must bear particularly in mind when assessing the evidence: a. First, during this trial, witnesses have been asked to recall minute details about events which took place some 16 months before their oral testimony, which events, at the time, were likely to have been (assuming the witness in question was not a perpetrator of harm) of little, if any, contemporary significance. i. all family witnesses knowing that it is said that an individual member of their own family has committed a heinous act; ii. each such witness having both strong bonds of love and loyalty to some or all other members of the family; and iii. in all likelihood, each such witness having a strong but subjective belief in the innocence of all or certain other members of the family. c. Thirdly, each family witness has given their evidence, sometimes about intimate or personal incidents or beliefs, while being watched by many other members of their family. d. Fourthly, the various family witnesses will have discussed these matters between themselves, both in small groups of confidants or with a spouse, and en famille or in larger groups. They will have speculated endlessly, desperately groped for innocent explanations, and relived or retold events. This is entirely natural, given the turmoil into which a large extended family has been cast by this intrusive and destructive process. e. Finally, the stakes are extremely high. In terms of ongoing state intrusion into family life and possible criminal process and sanction, there is great incentive on a perpetrator to lie and on a non-perpetrator, whether or not consciously, not to give evidence or to remember or to present past events in a way which might tend to implicate a loved one.[28]The cautionary comments of Mr Justice Leggatt (as he then was), as set out in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm), in relation to testimony based on memory, are of particular relevance in a case such as this:
“An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute.”
[29]Peter Jackson J in Lancashire County Council v The Children & Others [2014] EWHC 3 (Fam), having directed himself on the relevant law, said:
“[9] […] [W]here repeated accounts are given […] the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as ‘story-creep’ may occur without any necessary inference of bad faith.”
[30]In the event that I conclude that a particular witness has lied, I must exercise caution in attributing significance to the lies told, bearing in mind that a witness may lie (whether during an investigation or in preparation for or during a trial) for many reasons, including 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 (see R v Lucas[1981] QB 720). Where the court is satisfied that a lie is capable of amounting to corroboration of an allegation (having regard to the four conditions set out in R v Lucas) in determining whether the allegation is proved, the court must weigh that lie against any evidence that points away from the allegation being made out (see H v City and Council of Swansea and Others[2011] 1 FCR 550). The application of the principle articulated in R v Lucasin family cases should go beyond the court merely reminding itself of the broad principle. The four relevant conditions that must be satisfied before a lie is capable of amounting to corroboration are set out by Lord Lane CJ in R v Lucasas follows:
“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.”
The approach to be taken in the family court to the treatment of proved lies is no different to that which applies in the Crown Court (see Re H-C (Children) [2016] EWCA Civ 136, [2016] 4 WLR 85 and Re A, B and C (Children) [2021] EWCA Civ 451, [2022 1 FLR 329).

Identification of a perpetrator

[31]Peter Jackson LJ in Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575, [2019] 2 FLR 211 clarified the proper approach to be taken in respect of so-called ‘uncertain perpetrator’ cases. At paragraph 46, he ‘state[d] the obvious’ by highlighting that the concept does not arise where the allegation can be proved to the civil standard against an individual in the normal way, or where only one person could possibly be responsible.[32]The judge went on to set out that the concept of a ‘pool of perpetrators’ does not upset the general rule in relation to the burden of proof: it is still for the LA to show, in respect of any potential perpetrator that there is a ‘real possibility’ that they inflicted the harm in question.[33]With those two provisos in mind,

the judge set out the approach to be applied in every such case:

“[49] ... The court should first consider whether there is a “list” of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain, to do so: Re D (Care Proceedings: Preliminary Hearing) [2009] EWCA Civ 472, [2009] 2 FLR 668, para [12]. Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list: “Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?”
Only if there is should A or B or C be placed into the “pool”.”[34]The Court of Appeal, in Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348, [2023] 1 FLR 565 subsequently indicated that the additional judicial self-direction to avoid ‘straining to identify a perpetrator’ had outlived its use. Rather:
“[34] […] 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.”
The process contemplated by the Court of Appeal in Re A was this:
“[36] […] [T]he judge had to determine: (i) Whether there was a list of people who had the opportunity to cause the injury. Here it is common ground that there was a list of two, namely the father and the mother. (ii) Whether he was able on the balance of probability, to identify the actual perpetrator. In this case […] [t]he question for the judge was whether such a finding could be made to the proper standard of proof in respect of the mother. (iii) If, and only if, the court was unable to make such a finding to the appropriate standard of proof, should he have resumed his scrutiny of the list and in respect of each person on the list, considered whether there was a real likelihood or possibility that one of those individuals inflicted the injury/injuries. In this case this meant, could the judge be satisfied that there was a real possibility that the father was the perpetrator of the older injuries? If so, the [other candidate] was a possible perpetrator with all the serious consequences which follow from such a finding.”
[35]As to the test for inclusion within the ‘pool’, that of a ‘likelihood or real possibility’ of the person in question being the perpetrator of the harm, I note that ‘this does not stretch to ‘anyone who had even a fleeting contact with the child in circumstances where there was the opportunity to cause injuries’: North Yorkshire at para [25]’ (per Peter Jackson LJ, Re B (supra), para 50).[36]With reference to Baroness Hale’s reminder, in Re B (Children) (Care Proceedings: Standard of Proof) (Cafcass intervening) [2008] UKHL 35, [2009] 1 AC 11, that the judge ‘is not allowed to sit on the fence’ when determining disputed facts, lest ‘our civil and family justice systems […] rapidly grind to a halt’, Hayden J, in Lancashire County Council v M, F and J (By their Children’s Guardian) [2023] EWHC 3097 (Fam), said this:
‘[44] All of this applies with equal rigour to the obligation upon the Judge to identify not only harm that may have been sustained by a child but the likely perpetrator of that harm. The exercise is a parallel one and, for the reasons that Lady Hale has identified in the passage above, the obligation on the Judge every bit as exacting. There will, inevitably, be cases where the identity of the perpetrator will be uncertain. Paradigmatically, injuries to a child occur in the hands of a parent or carer. Section 31(2) of the Children Act 1989 requires the court to focus not only on the significant harm sustained by the child but on its attributability. Inevitably, within the home environment, there are unlikely to be witnesses. The investigative process must track down ascertainable facts from the broadest canvas available and, where possible, draw such inferences as those facts will support. It is frequently a difficult task, but it is not one that can be shirked. The danger in failing to confront it is that an innocent individual may be tainted by a finding that has a direct impact, both on her and on the child. A finding which leaves a parent in a pool of potential perpetrators is likely to adversely influence the nature and extent of the contact arrangements or indeed, on where and with whom the child will live in the future. Of course, the imperative of child protection must not generate a reason to burden unsatisfactory evidence with a greater weight than it can legitimately support. That would create injustice to all, not least the subject children, but neither does it absolve the Judge of the responsibility to confront the findings that the evidence properly establishes. The same obligation for forensic rigour applies to the lawyers.’ ‘[63] It also requires to be stressed, in my judgement, that identifying a perpetrator, on the ‘balance of probabilities’, is a duty imposed upon a Judge, where the facts permit. Built into the civil standard of proof is an inevitable risk of error, with which conscientious practitioners, litigating very serious injury to a child are sometimes uncomfortable. The civil standard of proof applies in Children Act proceedings because it gives effect to the central objective of the Act itself, namely, to promote the welfare of the child. Any application of an elevated standard of proof runs the risk of leaving an unnecessary pall of suspicion over a non-perpetrating parent which may hinder the construction of clear and effective strategies, designed both to protect the child and promote the full range of opportunities for her relationship with either or both parents. Indeed, the impact of an ‘uncertain perpetrator’ finding is more likely to limit the options for a child than to expand them. For this reason, it is to be avoided if possible. Declining to identify a perpetrator, where the evidence establishes it, is not merely erring on the side of caution, it is a failure to exercise the duty imposed by law. The test is simply whether an identified individual is more likely than not to have caused the injuries, “nothing more, nothing less”.’

Circumstantial evidence

[37]As Messrs. Rowley KC and Saunders pointed out in their written opening:
“With respect to the evidence the court is required to consider, it is very often the case that, when determining allegations of non-accidental injury, the Family Court is faced with a case advanced by a LA in which no independent witness saw or heard the alleged harm being caused or, as here, the steps preparatory to such harm. In these circumstances the Court is often required to consider circumstantial evidence: that is, circumstances which, although not directly establishing the existence of the facts the LA seeks to prove, render those facts probable by reason of their connection with or relation to them.”
[38]In relation to the proper approach to circumstantial evidence, in Re A (Children: Care Proceedings: Burden of Proof)[2018] EWCA Civ 1718, [2018] 4 WLR 117, [2019] 2 FLR 101, King LJ cited the following passage from the judgment of Toulson LJ (as he then was) in Milton Keynes Borough Council v Nulty[2013] 1 WLR 1183:
“[34] A case based on circumstantial evidence depends for its cogency on the combination of relevant circumstances and the likelihood or unlikelihood of coincidence. A party advancing it argues that the circumstances can only or most probably be accounted for by the explanation which it suggests. 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. As Lord Mance observed in Datec Electronics Holdings Ltd v UPS Ltd [2007] 1 WLR 1325, paras 48 and 50, there is an inherent risk that a systematic consideration of the possibilities could become a process of elimination ‘leading to no more than a conclusion regarding the least unlikely cause of loss’, which was the fault identified in The Popi M. So at the end of any such systematic analysis, the court has to stand back and ask itself the ultimate question whether it is satisfied that the suggested explanation is more likely than not to be true. The elimination of other possibilities as more implausible may well lead to that conclusion, but that will be a conclusion of fact: there is no rule of law that it must do so. I do not read any of the statements in any of the other authorities to which we were referred as intending to suggest otherwise.”
Select background[39]The parents were introduced by their families. They are paternal first cousins (their fathers being brothers). They were married under Islamic law in 2014. R was born very prematurely (at 26 weeks) on 20 June 2017, following two unsuccessful pregnancies. He remained in hospital until 24 October 2017.[40]The family had been known to the LA since August 2017, when the police raised concerns around domestic abuse between the parents.[41]In October 2017, further issues of concern in relation to the parents’ relationship came to the attention of social services. A single assessment was carried out, which concluded that there was no role for the LA at that time. The outcome of the assessment was that there was conflict within the extended family members and M expressed the desire to remain at her parents’ home with R. M stated that she did not feel fearful or unsafe if she returned to F, but that she preferred to live with the MGPs. The assessment closed on the basis that M was not at risk if she returned and that she stated that she wanted in any event to remain at her parents’ home.[42]On 27 October 2017, R was taken to [a hospital] following a choking episode. He returned on 22 November 2017, was diagnosed with bronchiolitis, and was discharged.[43]On 24 October 2017, contact was again made with social services. M had contacted 111 as R was unwell, described as limp and floppy. M did not wish R to be taken to A&E as she did not want to wait there. An ambulance was dispatched. No action was taken by the LA.[44]On 29 November 2017, R was taken to A&E at [a hospital], and thence transferred to [another hospital]. While at [that hospital], it was discovered that R had rib fractures, leading to the LA being notified on 4 December 2017. A s.47 investigation was undertaken. The parents stated that R had been dropped by F when feeding him, although no medical attention was sought at the time. The LA assessment focussed on domestic abuse and the ‘dysfunctional dynamic’ between the parents. It was concluded that no further intervention was required and the case was closed in early 2018.[45]In relation to the rib fractures, it was concluded that the most likely cause was R’s prematurity and the associated bone weakness. Within these proceedings, I allowed further ex post facto investigation of the likely causation of the rib fractures. Expert opinion was obtained from Dr Jeremy Allgrove, Consultant Paediatric Endocrinologist (with specialist interest in metabolic bone disorders), Dr Karl Johnson, Consultant Paediatric Radiologist, and Dr M J Crawford, Consultant Paediatrician. The consensus of that expert opinion confirmed in essence the conclusions reached in 2017/18 that the rib fractures were likely the result of underlying bone fragility secondary to R’s prematurity. In consequence, the possibility of abusive causation was abandoned by the LA and has formed no part of the current fact-finding process.[46]The LA has alleged that the parents did not adequately engage with medical services and did not consistently attend all appointments for R during his infancy. I ruled at an earlier stage that these issues did not warrant separate investigation as part of process of consideration of the s.31 CA 1989 jurisdictional criteria.[47]It is conceded by both parents that F was on occasion domestically abusive towards M in the early part of their marriage. There was an incident at the neonatal unit, after R was born, during which F, seemingly feeling marginalised from his prematurely born baby son, threatened to break M’s nose. Even before that pregnancy, M refers to F kicking her twice on one occasion. To the police, closer to the time, she spoke of him hitting her and kicking her, and on more than one occasion, although she seeks now to distance herself from those accounts of more extensive abuse.[48]Extracts from M’s medical GP records give an indication of what she was saying to various health professionals in relation to her relationship with F during the period from 2017 to August 2019. These include: 1 Aug 2017 ‘[…] Neonatal nurse expressed some concern [to HV] regarding mother who has reported she has split from her husband and has moved back in with her parents. […] There has been an incident of hostility towards staff I have advised [nurse] I will contact mum on this new number and plan a support visit as soon as possible.’ 3 Aug 2017 Meeting with HV:
‘Given advice about domestic violence – separated from her husband he and his family have shown little interest in new baby and this is very upsetting for [M]. […]’ 22 Aug 2017 Telephone call from Neonatal Outreach: ‘[M] and her partner are separated and he has been heard to be abusive towards her. They have been asked to visit separately but this does not always happen. He was heard to say that he would break [M]’s nose if she did not put the baby back in the incubator. Police were informed. Staff statements were taken and police arranged [M] to be on Neonatal Unit but she did not attend. […]’ 11 Sept 2017 Home visit by HV: ‘[…] Talked about her baby’s father. They are not together and he is aggressive. He visits in the evenings and [M] visits during the day and they have a minimal contact. She is well supported by her own parents and other family members, slightly worried about when the baby is discharged home and not having nurses to support. Explained that [M] will not be alone and family and Neonatal Outreach and Health Visitor will assist her. [M] is happy about this.’ 23 Oct 2017 Home visit by HV: ‘[…] [M] explains that after much consideration she will be moving back in with her husband. She explains she has really thought about this decision and has not had any external influence. I explained to [M] that I will contact her once discharge has been confirmed and arrange a home visit.’ 30 Oct 2017 Home visit by HV: ‘[M] was anxious about bringing the baby home but after an extended stay and transitional care is feeling more confident. […] Domestic abuse advice: has been previously difficult relationship with her husband and Social Services intervention on the ward after an altercation between [M] and Husband. Her husband keeps referring to the fact they belong with him, however [M] has returned to her parents and he visits daily. Advised [M] of staying put and to call police if ever in fear of safety. Also that she must not return to the home address if she feels the relationship is in any way unsafe despite any family pressures. Observations: tender and very loving interaction mother to child.’ 24 Nov 2017 Home visit by HV: ‘[…] Still staying with parents and intends to stay there. No instances of aggression from husband. He continues to visit son at [a city]. [M] does not want to move in with her husband’s parents as they smoke and she is aware this is a huge risk to the baby.’ 1 Feb 2018 Routine enquiry about domestic abuse by nurse at [a city]: ‘[…] Reported husband also controlling. Does not like her talking to Drs and preferred to talk to them himself. Also reported he does not financially contribute to their son. Denied any physical abuse. [M] reported that she does not intend on getting back with her husband at present needs to think about it as also he is related and will affect family relationships. Made aware of services that offer support. To contact the police if feels necessary. [M] is currently living with her parents. Reported that they are supportive.’ 3 May 2018 Health visitor receives call FSW: ‘[M] and her husband have agreed to start a home parenting programme to discuss parenting and domestic violence. The programme will take about 5 weeks to complete. If the family complete the programme [FSW] feels she will then close the case to the children’s centre. […]’ 29 May 2018 ‘[M] reports good mood and separated from husband. [M] finding his behaviour upsetting at times but she has good family support. Good eye contact, smiling and chatty. Asked appropriate questions regarding the care of her baby. […]’ 23 Aug 2018 HV meeting: ‘[M] said she is well, not feeling low in mood and feels she has come to realise that she will not get back together with her ex husband. She said she is thinking of moving out of her parents home and finding her own house. Good eye contact, smiling and chatty.’ 24 June 2019 HV visit: ‘[M] seen at home completing 2 year check. Reports herself well, good interaction seen with her little boy. Reports lives alone with her child. She does feel lonely at tomes and sometimes visits her mum during the say. Child dad visits little boy she reports they are ok’ 3 Aug 2019 HV visit: ‘[…] [M] welcoming of home visit, she has moved into her own property. She said she is lonely at times but keeps herself busy. She said she has moved on and now realises she will not get back with her ex husband. We discussed the importance of her getting out every day and meeting up with friends. [M] said she feels her mood is getting better and is feels positive for the future. […]’
[49]It came as a surprise to most of those in the courtroom to hear – for the first time – in M’s oral evidence that she now says that when she moved out of her parents’ home in 2018, she and F lived, from the outset, together in the property, and that she deliberately lied to health and social services professionals about this each time they visited or there was an interaction, in order, it seems, to avoid unwelcome attention from social services. Whenever it took place, whether in 2018/19 or later, M and F resumed cohabitation at [an address], [a city], and in early 2022, M became pregnant with S.[50]M’s pregnancy with S was complicated. Given M’s deeply distressing history of late miscarriage, great care was taken by her, and medically, to give the best chances of her carrying her baby to term and of a successful delivery. S was born, after a somewhat traumatic birth process, on 3 October 2022.[51]Until that date, M, F and R had been living at the couple’s address at the [a road] property. M and F agreed that, immediately following S’s birth, M would move to stay with her parents in [a nearby town], while she recovered from the birth, while F and R would move in with F’s parents’ home at [a road], [a city]. This was in the context of M and F also having agreed that they would not return to their previous property, it being unsuitable for various reasons, but would instead move into a property owned by and to be rented from M’s brother. That property required a degree of renovation and redecoration, which was to be undertaken by F.[52]Thus it was, that on S’s discharge from hospital at birth, he and M lived with the MGPs, while F and the then five-year-old R lived with the PGPs.[53]At the point that M moved with the newly-born S into the MGPs’ house in [a town], already living in the house were: - the MGPs, MGM and MGF; - M’s brother IB, his pregnant wife, ID, and their young child; - M’s brother IC; - M’s brother, IE and his wife, IA. M’s nephew (her eldest sister’s son), IF, would visit each Friday and stay for the weekend. M’s niece (the daughter of her second eldest sister, ZB), ZC, was also in the habit of visiting and staying over at weekends, this taking place often, although not, it seems, entirely consistently.[54]On M’s moving in with S, F would visit on Fridays to drop R off with M for the weekend, collecting R each Sunday. F would spend, on his account, 5 – 10 minutes with S on the Friday and perhaps half an hour with him on the Sunday. During the week, during this period after S’s birth, it seems that F or his parents were responsible for taking R to and from school, F was working long hours in a restaurant, and, when time allowed, often after work and into the small hours, was renovating his brother’s property, into which he and M, R and S were to move when it was ready. It is notable that by this arrangement, M saw nothing of her five-year-old son from each Sunday afternoon until each Friday afternoon, F spent very little time (perhaps less than an hour each week) with his newborn son, and M and F, the married parents of two young children, spent virtually no time with each other.[55]S was formula-fed from birth. M’s evidence is that she initially used Aptamil, which S did not take to, spitting it out, with wind and colic-like symptoms. She then decided to use [X Brand] Organic Formula. This she ordered online, her sister, ZB, buying her some [X Brand] First Milk locally to tide her over until the delivery arrived. S was said to have been comfortable with the switch to [X Brand] First, but less so with the switch to the organic version.[56]M describes S taking his feed properly, but her feeling that he was not quite settled, was whingey and troubled by wind. He could cry more at night and was prescribed Colief drops by the GP. M was S’s primary carer; in relation to primary care tasks, she was almost exclusively so, assisted occasionally by MGM. She says that she prepared all of his feeds, she undertook the sterilisation of bottles and she fed him. At the relevant time, S’s feeding regime entailed his being given 120 ml of [X Brand] Organic every three hours.[57]The MGPs’ house, as I have said, was large, with multiple bedrooms. The sleeping arrangements were that: - MGF, who then, as now, was medically unwell, had his own bedroom; - MGM had her own bedroom with two double beds in it; this room was shared with M and S when they moved in; it was in this room that ZC, when she had come round at weekends, had been in the habit of staying, although it was clearly not possible after M and S moved in, for the four of them to sleep in it; - on the same floor of the house and very close to MGM’s bedroom was the room used by IA; - due to his tendency to smoke and to snore, IE generally slept apart from his wife, IA, taking a room on the top floor; this room was shared with IF at weekends when he came to stay; - IC had another bedroom on the top floor; - IB and ID had their own bedroom, with their young child.[58]M’s evidence (largely corroborated by others) is that the tin of formula feed in use at any given time would tend to travel around the house with her and S: when they were upstairs in their room (shared with MGM) it would be in that room with them; when they were downstairs, the tin would probably be in the kitchen, stored in a unit or left out on a worktop. Other events of significance leading up to 25 – 26 November 2022[59]It is on the events of the weekend of Friday 25 to Sunday 27 November which a large proportion of the evidence has focussed, for obvious reasons, given the concession that this is the period during which both S’s formula feed (or at least the canister from which he was being fed) was contaminated, and S was, in consequence, poisoned.[60]However, a number of other incidents in the weeks leading up to that weekend have acquired a degree of prominence, given the relevance which various parties respectively attribute to them when it comes to the question of deciding on the likely perpetrator of the poisoning.[61]One such incident is the unusual interaction on and in the days before 29 October 2022, between M and her older sister, ZB, and then between M and ZB’s daughter, ZC, at the time eleven, nearly twelve years old.[62]It has only come to light that there was any incident of note or issue as between M and ZC because of the discovery of ’phone messages between them, not because M, or any other family member, volunteered the same during the investigation or in their evidence prepared for this court.[63]Interrogation of M’s mobile devices demonstrated the following communications, comprising an exchange between M and her sister, ZB, for approximately one hour during the afternoon, and, separately and immediately afterwards, if very slightly overlapping, an exchange between M and her niece, ZC: 29 October 2022 14:54 – 15:53 Exchange between M and her sister ZB ZB: [ZC] came home yesterday has someone said anything [ID] or anyone cause its nt like her to not stay? M: Dno she probs gets disturbed by the baby lol She might want us gone lil [sic] ZB: My [ZC] dnt think like that why would she want u gone ..she dnt wana ever cum home I find it strange shes wanting to come home… M: Probs cos of baby crying ZB: She loves babies M: I asked her if she was staying She said no ZB: Chal I shall dig Its very strange not like her Ask her M: I told her if she wants to sleep with mum [i.e. MGM] il even sleep down with the baby If she gets disturbed ZB: I will ask her later she upstairs am in kitchen thought i would ask 15:48 – 16:45 Exchange between M and her niece, ZC M: Hi [ZC] How come you didn’t stay yesterday? ZC: Just cause u upset me with things u said M: What things? I asked if ur staying yesterday u said mummy said I have to go home ZC: U shouted at me and hit me M: I didnt shout at u [ZC] I just said sleep in the room and not downstairs You shouldn’t mind what your aunty says I was thinking of u Its cold for u to sleep downstairs We will be gone soon dont worry [ZC] Then u can sleep comfortably we are only here for a short while ZC: Why did u hit me pulled my hair M: You can stay here when u want I didnt pull your hair so stop lying ZC: Yeah I did [sic] M: If you start telling these lies to your mum Then il sort u out myself Once I see u I’m already stressed out with the baby So dont make life difficult I’ve already been crying all night with the baby ZC: But you did hit me and said don’t tell or I will kill you M: So are u gona go and tell your mum all this now? And upset her by saying all this ZC: Then why did you hit and shout at me? M: I just said share the bed with [R] Because its hard [ZC] I dont have my own house right now I have to share So I [sic] have to be understanding ok x You know how much I love u x You shouldn’t mind of these things in life u have to sometimes share to get by x I didnt know that woud upset you x Why don’t u come today 2 calls, M  ZC, not answered ZC: I dnt want to talk Hitting me will upset me M: Answer phone Are u my friend I’ve ordered u a present from Smyths For your birthday ZC: Your my Aunty but you hit me M: Sorry it was by accidentally x Come over today Your mum will get upset by this then [ZC] x Shall I tell [X] to pick u up x [ZC] Its so boring without u Call, M  ZC, not answered M: Il tell your mum to send u today Come over ok[64]M was questioned at some length about this exchange and the underlying events which had given rise to it. She was adamant that she had not hit ZC. Rather, when she was braiding ZC’s hair, she might have pulled tighter than ZC would have liked, ZC having a sensitive scalp. She had not shouted, she said, but might have raised her voice slightly when telling ZC that she, ZC, should take the second double bed in MGM’s room, and that M and S would sleep downstairs. M stated that her rationale for this suggestion had been that it was too cold and uncomfortable in the room downstairs for an eleven-year-old child, but would be fine for M and S, not least as M would be able to warm up the room with a heater. M stood by her assertion that when repeatedly talking about being ‘hit’, ZC was in fact referring to having her hair pulled, the two concepts, on M’s evidence, not being recognisably different to a child of this age (eleven, nearly twelve).[65]ZB gave evidence and was asked about this issue. She described her daughter, ZC, as being a kind and loving child, always looking out for others, who loved babies, especially at this time S, and who loved and had a particularly close relationship with M. ZB denied that ZC had complained to her of being hit or shouted at by her aunt. According to ZB, ZC had said that her auntie had had words with her because she, ZC, had not wanted to stay, in order to give space to S. ZB, when cross-examined by Mr Rowley KC, claimed that she had been alerted to the issue, having seen her daughter’s messages, and had asked ZC if she had been hit, to which ZC is said to have replied that she meant ‘hitting as in pulling hair,’ adding, ‘She was eleven at the time.’ ZB confirmed that ZC was not in the habit of making things up, but she stood by her assertion, ‘I have had a conversation with [ZC]; she’s said she was not hit. If I was worried, I would have raised this. I didn’t find anything worrying in there.’[66]On a date which cannot precisely be identified, but about three weeks or so before S’s presentation to hospital, an incident took place in the kitchen of the family home.[67]M describes entering the kitchen in order to prepare S’s feed. She says in her statement that IA was at the sink, washing something, and that M had to wash a bottle in order to prepare the feed, she asked IA if she, M, could quickly wash it. M describes IA giving her ‘a blank sort of look’, and moving to one side, allowing M access to the sink to wash the bottle. For reasons not clear in her statement, M says that IE, who had been present in the kitchen with his wife ‘was trying to help’, that M told him that the bottle required cleaning in a particular way before being sterilised and that IE would not know how to do this, and that at this point, IA ‘interrupted’, saying something like, ‘Well he wouldn’t know as he doesn’t have any kids.’ M describes IA as ‘appear[ing] annoyed at my comment’, and claims that this marked a turning point in IA’s relationship with M and S, after which IA would give M ‘the cold shoulder’ and ‘stopped showing any interest in [S]’. ‘After this,’ M wrote, ‘she completely ignored S.’[68]IA describes the incident somewhat differently. She says it was IE who had been at the sink, that he had washed the bottle M brought in, to be told by M, as he passed it to her that he had not done it properly. Noting that M seemed frustrated, and knowing the propensity between those two siblings in particular for arguments to appear from the most modest of flashpoints, IA intervened, to diffuse the situation, saying something like, ‘It’s OK, [M]. He doesn’t have any kids of his own yet. He will learn.’ IA states that she was not remotely annoyed, that she was conscious that M may have taken slight offence at her intervention, but that she, IA, thereafter thought nothing more of what was – in her eyes – an insignificant incident of the sort which will frequently arise in a busy household.[69]IE’s version of events largely mirrors IA’s.[70]IA remembers IF having been present in the kitchen at the time. IF does not remember the incident. Given both IF’s understandable difficulties recalling much of the detail of the events of 18 months ago, and the fact that this incident seems to have been relatively unnoteworthy, this is not a significant discrepancy.[71]Another incident, which has taken on a degree of prominence and about which all family members have been asked, occurred in the family home on 19 November 2022.[72]I have heard various versions of the incident, each slightly different. It can be summarised as follows. There was due to be a party to celebrate the third birthday of IC’s son, ZI, to be held at the MGPs’ home on Saturday 19 November. IC was recently divorced from ZG, his son’s mother, and the separation, including disagreement about the appropriate arrangements for their child, had been significantly acrimonious. Notwithstanding the hostility between ZI’s parents, MGM considered that, in the child’s interests, his mother should be invited to the party, for obvious, child-focussed reasons. IE, IC’s younger brother, who had provided emotional support to his brother through the separation and attendant parental discord, disapproved of ZG, and, when he found out about it, was angry that it was suggested that ZG should attend the family home for the party.[73]Howsoever it came about that he found out, there came a point on the day of the party when IE confronted M about the inviting of ZG to the party. This was a curious confrontation, as it was not M who had played any part in deciding that ZG should attend; and it was not IE who was directly affected by the attendance of his brother’s ex-wife. Rather, M seems to have been blamed by IE as she was defending MGM’s right to make decisions about her own home and family, and IE’s anger was seemingly justified in his mind as being a vicarious reaction, on his brother’s behalf. A number of family members recounted in their oral evidence that M and IE, both growing up and into adulthood, would from time to time fall out in dramatic style, even if they soon made up.[74]On the day in question, this is exactly what happened. IE, it seems, lost both his temper and any self-restraint, shouting at M and calling her foul names. M reciprocated, if in a less unpleasant fashion, and is described as leaving the confrontation, walking down the stairs from the top to the middle floors of the property, insults still being traded between her and her younger brother. While M seeks to assert that she had seen IA ‘go into her husband’s bedroom when she found out that [EM] had been invited to the party,’ and blames IA for having told IE of the invitation, on the preponderance of the evidence of others involved or witnessing, it seems clear that it was only at the point that IA was alerted to the argument by its noise, that she climbed the stairs to the top floor, where she tried to find out from her husband the cause of the uproar and sought to calm him down.[75]It is strange, given this chronology, that M should have blamed IA as having somehow been involved in the instigation of the discord. That very day, M messaged her sister, ZD, about this as follows: 19 November 2022 13:32 – 13:38 M: Hi girl [IE] just asked me if [IC’s wife, ZG] is coming then he says dont get pally with that bich I’m pretty sure [IA] went upstairs and told him ZD: Hmm jokes M: Yh he was flipping girl And caused a massive argument Calling me a slag this that 😳 ZD: Calling you it Who’s flipping M: [IE] Swore at me so much And flipping like crazy ZD: Why M: Because I told mum he’s flipping upstairs whu she’s coming And then he came out the room and said listen u little bitch And started ZD: Iv told you many times don’t get involved You don’t learn M: No he got me involved I told mum about [IA] girl I said she’s shit stirring ZD: Girl man M: Girl she purposely causes arguments ZD: I know M: She purposely went upstairs And filled his ears And she thinks I’m unaware Girl we’ll see if they both join today They’d both be hypocrites if they do Girl I told mum so she knows what [IA] is U know last time when [X] came She went home and been telling her mum Shes a bitch girl ZD: I know she is M: Qnd I said to [IE] dont tell ne I cba with them Dont get me involved But he was saying u lot get pally pally with her And u know how he acts Like crazy And out of control ZD: You know there will be no man on earth as kind as [IC] he’s doing it for the sake of his kid and his mental upbringing M: Girl I was minding my own business ironing my own clothes And he says come here I knew he would say something So I just put my earphones in So he came out and said it I swear on my kids life girl I dont know why I always get in the middle of this chaos I’m just waiting for my house to gey done so I can go but these lots wives are drama[76]It is clear from these messages that M, at least while the heat of the confrontation continued to radiate, was resentful towards IA and blamed her for ‘shit stirring’ and for ‘fill[ing] [IE’s] ears’, seeking to enlist her older sister to the same view.[77]M considers that this incident, or the impact of it on IA, provides a part of the motive for IA having – as M asserts – poisoned S. It is noteworthy that the heated argument, on any view, was between IE and M, and that it was not IA who was shouting or arguing or at whom shouting or unpleasant insults were directed. The weekend of Friday 25 – Sunday 27 November 2022[78]I turn, then, to the events of the weekend of Friday 25 to Sunday 27 November 2022.

Friday 25 November 2022

[79]M and F agree that, as per the standard routine, F dropped R off after school at about 15:20 hrs. F spent about a quarter of an hour playing with S, before leaving for work.[80]IF arrived at the family home at about 15:25 hrs and went to his room. He spent time in his room watching anime, went to the shop, and returned to his room.[81]IE had dropped IA at work in the morning, before returning, going back to bed, and then spending the day initially at prayers and then on his laptop and watching television. He picked IA up from work in the evening, they went to get some food, and they returned at about 21:00 hrs.[82]IB, who worked in security at the relevant time, was on site from 17:00 hrs until 10:00 hrs on 26November. ID, then heavily pregnant (and so less mobile than usual), was at home looking after their then two-year-old son.[83]IC spent the evening, he said, in his room[84]It seems, then, that the various family members came, went, spent time in their rooms or milled around, as their respective routines and habits dictated. The day seems to have passed unremarkably.

Saturday 26 November 2022

[85]On the Saturday, there was a celebration at the house to recognise the seventh birthday of one of the grandchildren, ZD’s middle child, ZH. An entertainer with a parrot was hired and attended for 30 – 45 minutes (and was not at any point left unattended). As well as those who lived in the home (with the exception of IB, who was at work), there were ZD, ZH and ZD’s two other children and ZB and her three children. The non-resident family members started to arrive between 13:30 and 14:00 hrs. The children were free to move around the house, with which they were familiar, but in particular between the front and the back living-rooms. While food was not laid on, there would have been nothing to stop a grandchild from getting themselves a drink, or even finding a biscuit or something similar, from the kitchen. By all accounts, the party was an enjoyable event. None of the witnesses who have recounted the events of this day mention any incident of any particular significance. Nobody, adult or child, was seen being anywhere unexpected or doing anything suspicious or even unusual.[86]The event was not particularly lengthy, ending at about 15:00 hrs when IF, IC, IE and IA, ZD and her three children, and ZB and her three children, left in order to attend a local Laser Zone. M, who was of course looking after baby S, the MGPs and the pregnant ID remained at the home. At about 18:00 hrs, those who had attended Laser Zone, then joined by the MGPs, went out for a meal in a local restaurant, those who lived at the Shipley home returning in the early evening.[87]On M’s report, S took his 3 pm, his 6 pm, his 9 pm and his midnight feeds without issue (or at least, if fussy, as he often was, not to such a degree as was noticed as unusual by M).

Overnight, 26 to 27 November 2022

[88]Although it was not mentioned by either of the parents to the police, and was not referenced by either in their statements to this court, there was a prolonged interaction between M and F of some significance overnight between Saturday 26 and Sunday 27 November.[89]The relevant background, against which the exchange is to be considered, which has largely been set out above, seems to be that: - M and S were temporarily staying with the MGPs, while F was renovating the property owned by and rented from his brother, in preparation for the family to move into; - F was spending the money saved by M and him to fund the not insignificant work and decoration which was required, notwithstanding that he and M had no beneficial interest in that property; - the process of renovation and decoration had already taken far longer than the couple had originally anticipated; - whether or not M was otherwise happy to be living back with her parents (and the extended family), this required her to spend the week apart from her five-year-old son from whom she had never been parted (and she and others told me that she was worried that he was not eating properly without her) and barely seeing her husband; - some portion of the Universal Credit benefit M was receiving related to the rental payment on the property in which they were not in fact living; this may have involved a degree of rule-bending, possibly fraud; - M was then responsible for sending to F one half of the rent, for him immediately to pay to his brother or father; this was notwithstanding the fact that F was working long hours and so presumably receiving regular income; and - it seems that M’s name was used for the benefits claim as a deliberate ruse to prevent the Benefits Agency from discovering that the claimants for benefits were closely related to the owner and landlord of the relevant property.[90]M’s telephone logs demonstrate the following between 26 and 27 November: Saturday 26 November 15:47 – 15:58 A 6-minute call from F to M; thereafter 4 unanswered calls from F to M 16:03 Text, M to F: You’re not getting it at all now 16:09 – 16:50 Argument by text between M and F, comprising 75 or so messages, in both directions. M threatening not to pay the rent to F (for onward transmission to F’s brother); F objecting; M demanding an apology (apparently ‘for talking to me like shit thats what’ and ‘for swearing at my mum’). M insulting and remonstrating with F during these texts, with messages such as:
‘With your attitude going all of u will be sat in your mums house now you’re crying like a bitch cos your rents 3days overdue’ ‘No I didnt I said you’ll get your rent once I move In you’ve taken 2 months and you’ve still not got everything done’ ‘If u want your rent u can set your pride aside and apologise’ ‘You think your job is hard try being a woman and being pregnant than giving birth, and then having sleepless nights taking care of your kids’ ‘When I was pregnant u was lazy with getting anything done cos u thought u had time. Now look where we are’ ‘This is why I said living apart for this long isn’t good cos you turn into a BITCH’
During this period, F was fully engaged in the argument, with texts such as:
‘His mortgage goes late they charge extra for late fees cause you got a hip on your shoulder’ ‘Chip*’ ‘Your being petty’ ‘You got me angry for no reason’ ‘I have other headaches I don’t need yours’ ‘You think it’s easy , making sure everything gets done properly’ ‘The late you give it , you want my dad to say something to me , if he does then forget we are even moving in’ ‘Look at your attitude trying to make your husband beg for his brothers rent wow’ ‘Give it or don’t i know where I stand I’m not begging you’ ‘I’m taking your name off the rent you no longer live there no longer can claim rent’ ‘It’s not going to me or my dad or my brother it’s going to mortgage !!!!!!!’ ‘You’ve got till Monday’
At 16:50, F texted, ‘I’m done talking’ After a few more messages, at 16:55, M stopped texting 17:27 – 17:54 At 17:27, M texted, ‘I think u should take my name off the claim, and tell your mum and dad I’d rather be single I dont wana be with u if im honest’ M then made six calls, two to F’s ’phone, which were unanswered, and four (her number withheld) to the restaurant he was working at, which were either not answered at all or, given the few seconds of the call, not answered by F. 19:01 – 19:22 M sends 20 texts to F, all insulting:
‘Your sisters right about u’ ‘You dont have a brain’ ‘Dementia patient’ ‘Hope both of your sons aren’t nothing like u’ ‘Cos you’re truly disgusting’ ‘Your shameful’ ‘You have no self respect or for others’ ‘You think just cos you’re a man you’re superior’ ‘You’re sexist’ ‘You have so much pride In yourself’ ‘I regret every second of getting married to you’ ‘And you said u would sort your head out but u clearly haven’t, you are also full of shit [F].’ ‘You not a real man because real men handle pressure and get on with what they need to do’ ‘I’ve stayed 10months indoors sacrificed my freedom to be where I am and to give u what u fucking wanted.’ ‘And u still think u have a right to disrespect me ,whenever I have tried telling u something. At this rate I would rather be single Infact if it wasn’t for the parents I would be single now. And it wouldn’t be me at loss it would be you. And I would always win in the end cos God gives the side of truth [F] and truth always prevails.’ ‘You are the one that says kids, kids, kids. “Don’t be daft, I want kids” that's all u ever talked about before. And now when u got what u wanted u suddenly can’t handle the pressure. I think u might be suffering from baby blues so if I was u I’d take a trip down to the docs and get seen.’ ‘Maybe also get your brain checked as you don’t remember fuckall’ ‘You leave your phone behind you leave your keys behind you leave everything behind just like you’ve left us’ ‘Everything is behind you’ ‘Lets not pretend your busy at work cos we know u sit killing flies all day long’
F does not respond during this period, or, indeed, at any point until the evening of the following day. 22:30 M rings F’s number, once withholding her number; neither call is answered. Sunday 27 November Midnight According to M, S takes his 00:00 feed without issue 01:17 – 01:23 M sends messages to F, calls him a ‘bitch’ and then a ‘slag’ 01:23 M sends messages to F including asking him what he does he do to be called dad. 01:31 M messages F:
‘You don’t deserve to be a dad how the fuck are u a dad’ ‘Who the fuck are u’ ‘What the fuck are u’ 01:33 – 01:35 M messages F: ‘I’m fjcking talking to u’ ‘Fucking speak’ ‘Think your scared of small babies’ ‘Just incase you drop them’ ‘As you are disabled’ ‘Go and apply for disability allowance’ 01:22 – 01:47 Interspersed with the above texts, M attempts to call F 20 times, sometimes withholding her number, sometimes not; it seems that none of the calls is answered (save for a few seconds, which may correspond with leaving a voice message) 03:00 According to M, S takes his 03:00 feed without issue 04:33 – 04:46 After a three-hour break between 01:47 and 04:33: M messages F: ‘You awake’
M then calls F three times; these are not answered. At 04:42 she sends a text, translated as ‘Are the balls released now’ (which M told me related to her having paid the rent money into F’s account by bank transfer and asking him, via this slang phrase, whether he was now relaxed / relieved) After no answer, M tries to call another three times at 04:45. 04:50 – 05:15 M messages F, including: ‘Open phone have a piece of my mind’ ‘Come on say something pls’ ‘We know u reading the msgs’ ‘Say something tell me why u such a cunt’ ‘Why did God make u such a cunt’ ‘A silly little cunt’ ‘Who’d rather be single sat like a baby in his mums house’ ‘Still being breastfed’ ‘You wanted to start it so say something’ ‘No woman would have lasted with someone despicable like u’ ‘I hope both your kids aren’t anything like u infact I pray their nothing like u’ ‘Cos you’re disgusting [F]’ ‘You’re a disgusting lowlife who deserves no happiness’ ‘You dont deserve anything apart from misery’ ‘You’re cursed’ ‘Look at what sort of father u are’ ‘You should feel ashamed’ ‘You’re a fucking joke’ ‘You’re so embarrassing actually’ ‘Everyone laughs at u even my bros know you’re a joke even your own dad knows what u are’ ‘You only have a face that a mother could love’ ‘My kids look nothing like u their much better cos your disgusting inside and out’ ‘You dont deserve happiness’ ‘You deserve to stay where u are miserable your entire life’ ‘I felt sorry for u before and I still fkn do cos you have a sad life’ ‘In time you’ll know you messed with the wrong woman you’re a fucking dick’ 05:12 M tries to call F again; again not answered 05:12 – 05:15 M texts F: ‘You escalated this [F]’ ‘Now you make my blood boil day and night’ ‘Cos if only u knew how much I actually hate u’ ‘Soon your kids will grow up to hate u aswell’ ‘No wonder god doesn’t bless u with a daughter cos he knows you’re already a useless dad who can’t even provide for the ones he already has’ ‘And he wants a daughter lmao 🤣🤣🤣’ 06:00 According to M, S takes his 06:00 feed without issue[91]I set these messages out (almost) in full as it is not easy, simply by descriptive summary, to convey the extent, nature and tone of the episode. From the point that F ceases to engage, M’s messages and calls are relentless, and leave almost no topic or taboo unexplored in the sheer scope and creativity of the insults they contain. F is traduced from every conceivable angle, and in ways clearly designed either to cause the greatest offence or to goad a fighting response, or both.[92]Importantly, and although they intersperse these interactions, M describes S as having taken his feeds at midnight, 3 am and 6 am without issue. If these times are correct, during what looks to be the only lulls during the night, between 22:30 and 01:17 and between 01:47 and 04:33, M was feeding S at midnight and 3 am. And having stopped sending abusive texts at 05:15, M is again, on her account, feeding S at 6 am. A further curious aspect of the oral evidence is that MGM, who was in the double bed in the same room as and immediately adjacent to M’s double bed, says that she was entirely oblivious to this entire interaction and that M said nothing of it the next day.[93]As set out above, on M’s evidence, she made up S’s midnight, 3 am and 6 am feeds in the bedroom, and these were taken without issue. In her second statement, M set out that the 9 am feed was also prepared in the bedroom, S drinking most of it without issue. M then took the night’s bottles downstairs for washing and sterilisation. The canister was then, she wrote, and confirmed in her oral evidence, left on top of the worktop in the kitchen.[94]IF says that he woke up at about 10.30 am, heading downstairs at about 11 am. IE and IA both state that they got up at around 11 am to 12 noon, heading out together into [a city] for brunch and shopping. M reports feeding S at 12 noon, with milk taken from the canister by then in the kitchen, and this being taken with no issue. At some point IF returned to his parents’ house. At about 2 pm, on his evidence, IC left the home to play football.[95]At 2.07 pm, M made a telephone call to the paternal grandparents’ number, the call lasting about 10 minutes. This, she says, was a conversation with PGM and possibly F about the logistics of R being collected later that afternoon.[96]At about 2.30 pm (on M’s evidence) or 2.45 pm (on F’s evidence), F arrived at the MGPs’ home. He went upstairs to see M and S and stayed until about 3 pm, when he left with R, dropping him at the PGPs’ home, before heading off to work. On F’s evidence, there was no bad atmosphere when he attended, notwithstanding the drama of the previous night. He treated the issue with dismissive or diffusing humour, he claims, simply laughing to M that she had been ‘off on one last night’. While F does not describe M’s reaction to this comment in any detail, he does not recount any ongoing fallout from the previous night’s events.[97]In his second statement in these proceedings, F said this of his interactions with M and S when he collected R that afternoon:
‘I arrived at the address at approximately 2.40 / 2.45 pm, I knocked on the door, I do not recall who opened the door. I went straight upstairs to [M]’s bedroom. I could see straight away that [M] was upset, she said [S] was not taking his feed. I asked what was wrong and she mentioned that he had a sunken fontanelle. I took [S] from her and was looking at his head, my first thought was that it was nothing serious, I could see that it was slightly sunken but it did not worry me. I played with [R] for a bit and continued speaking with [M], she was talking about [S]’s feeding regime and how she had changed the formula milk, and that he was not taking his feed properly, mum also mentioned [S]’s colic issues. She was upset and so I said to arrange a GP appointment to ease her mind, after half an hour or so, [R] and I left at about 3.10 / 3.15 pm, I dropped [R] back at my parents’ house and I then went straight to work arriving there at approximately 4.30 pm.’
[98]M does not mention F’s attendance at the home that afternoon in any of her seven statements in these proceedings. However, M has said throughout that the first feed of any real note was that which took place at about 3 pm on the afternoon of Sunday 27 November, a point after F had left (on her current evidence), having collected R. In the first of her statements which describes this in detail, she said this:
‘I prepared the 3 pm feed on the 27 November. When I prepared that feed, I did not notice anything obvious in the milk canister which was the same milk canister that I had used over the previous two to three days. I prepared the same amount of milk and put the colief drops in the milk and on this occasion [S] completely rejected the feed. My initial thought was that the milk was not coming out of the teat. I tried this on my wrist and realised that this wasn’t the case. I was feeding [S] in the living room, nobody else was in the room with me. I tried to persevere, but he kept rejecting the feed and I recall being very stressed and worried as to why he wasn’t taking the feed, he was moving his face away each time I put the bottle to him he was turning his head. I didn’t know what to do I just felt like crying as I had never had so much trouble feeding him. I knew that he needed to have his milk and I continued, and it took about two hours for me to feed him 120 ml of milk. When I finished feeding him and I laid him down he brought up some of the milk which was not normal for him.’
[99]It is IA and IE’s evidence that they remained out of the house at this point. IA points to photographs retrieved from her telephone as demonstrating that she was still at her parents’ home at 17:55, 17:56 and 17:57 hrs. My understanding of these images is that they are screengrabs of her telephone lock-screen. If this is correct, they demonstrate, as the lock-screen photographs (which are of IA at her parents’ home) differ between the four images, that she is fiddling with her telephone settings at this point, seemingly choosing between different images for her lock-screen, but not necessarily that the underlying photographs were taken at the times displayed on the captured image of the telephone lock-screen. It has consistently been IA and IE’s evidence, however, that they were out of the home during the afternoon, and at IA’s parents’ home in the latter part of it, and there has been no positive evidence adduced to gainsay this.[100]If it took M about two hours to give S his 3 pm feed, the process would have concluded at approximately 5 pm. M states that ‘shortly before I prepared [S]’s next [i.e. 6 pm] feed’ she spoke to her brother IC, informed him that S was not drinking his milk and that she thought this might be due to his having a stuffy nose, and asked IC, who was leaving the house in any event, to try to pick up some saline drops while he was out. This account is corroborated both by IC, but also by evidence of the messages between M and IC (as below).[101]Of the 6 pm feed, M said this in her statement:
‘I then prepared his 6 pm feed, at this time I had taken the milk canister and one of the milk bottles upstairs to my bedroom. It was the same milk canister that I had been using previously and the same milk canister that I had prepared the 3 pm feed from. I prepared the milk and added the Colief drops and when I tried to feed him, he was rejecting the feed again. At this time, he wasn’t taking any of the milk and I then realised there was something wrong plus I notice that he had a sunken fontanelle which was very obviously sunken, and I did some research and realised that this was a medical emergency. My mum came into the bedroom and she saw S, I explained what had happened at 3 pm and also what was happening now and that he is rejecting his milk and she also saw the sunken fontanelle and said something was not right and that is why I called 111.’
[102]The relevant messages between M and IC which assist with both timing and M’s expressed state of mind are as follows: 18:57 M  IC: They called saline drops or nasal And their for newborns 19:52 IC  M: They’ve got non here in [a particular road]. I’ll try another one if they open if not I’ll go in morning after work 19:52 M  IC: OK I might take him hospital He has a sunken fontanelle[103]Curiously, in the middle of this whole process, at 19:11, F messaged M, simply saying, ‘Hello’. M responded a minute later, ‘Yes?’. There were no further messages or calls between them, until M and S were at hospital, some two hours later.[104]It is missing from M’s accounts in her statements that there had been a provisional plan, before telephoning the 111 service, for S to be taken straight to hospital. However, it seems to be agreed between the relevant parties and witnesses, including M, that, on returning from [a city], at the point of M and MGM worrying about what to do with S, IA was hoovering on the landing between her room and that shared by MGM, M and S. MGM, who had seen S and spoken to M about his seeming unwell, stepped out of her room and told IA that S was not well and that he might need to be taken to hospital. She asked IA where IE, on whom the task of driving M and S to hospital might fall, was at that time, and was told, or it was gestured to her, that he was in the bathroom. It seems that IA both told IE that he might be required, and that MGM either told or otherwise texted or left a voicemail to inform him of this. IE went upstairs to his room to get ready. In the meantime, M and MGM decided that, instead of taking S straight to hospital, M should ring 111 instead. This she did.[105]During the call, timed at 19:55 hrs, M initially described the situation in this way:
‘I noticed from 3 o’clock he’s not feeding as well. I was trying to feed him at 3 o’clock. He is basically on formula milk and every time I was trying to feed him, he would, you know, like, choke … like he would sort of make a choke, yeah, choking face. And then, I think it took about two hours for me to get that down and then he kept having, like, mucousy spit up as well. That kept coming out and I’ve just noticed now, he’s got a sunken fontanelle as well, on top of his head, which is pretty deep. And he’s still not feeding that well … so, quite worried … and he’s quite blue.’
[106]It is accepted by IA, and seized on by M as evidence against her, that at no point from MGM telling IA that S was unwell and might need to be taken to hospital to his being transmitted, did IA go into M’s room, to see S, whether to see whether she could help or to offer support or reassurance.[107]The call handler dispatched a paramedic team, who arrived at 20:17 hrs. M told them that S had been drinking milk as normal until approximately 15:00 hrs that day, but not thereafter and that he was bringing up or burping milk. She also said that she thought he had looked pale and more lethargic than normal and had diarrhoea and had been ‘snuffly’. M thought the fontanelle was sunken. One of the paramedics noted a slightly sunken fontanelle.[108]S was conveyed to [a hospital], arriving at 20:58 hrs, handover being delayed until 21:20 because he was taken to another department. He was triaged by paediatrics at 21:40 hrs.[109]During this period, the following brief exchange of messages took place between M and F: 21:13 M: Why did u message me 21:34 F:How are you 21:56 M: I’m in hospital F:Why ?? Liar M:With baby Not lying[110]The parents both then describe a telephone conversation during which M told F what has happening, in response to which F left work, arriving at the [hospital] at about 11 pm.[111]A blood test, from a sample taken at 22:54 hrs on that Sunday evening, showed a plasma sodium level of 160 mmol/L. This abnormally and worryingly high level continued to rise, peaking at 174 mmol/L at 01:14 hrs that night.[112]M had taken into hospital the open [X Brand] formula tin from which S’s feeds, she says, had been made up over that day and those immediately preceding it. In the early hours of Monday 28 November, M asked a student nurse to make up a feed from it for S. This the nurse did, although S did not take more than 1 fl oz of it. In consequence of his not feeding and the hypernatraemia, thought to be secondary to dehydration, a nasogastric (“NG”) tube was passed, and S was thereafter fed via NG tube the milk made up with the feed brought from home. Of course, medics did not then know that this was to provide a route via which S would be fed further quantities of contaminated milk, without even his own taste aversion reaction as a defence for him.[113]S’s plasma sodium levels continued to rise, peaking at 174 mmol/L at 01:14 hrs on 28 November.[114]Dr B, then a paediatric registrar, carried out an initial observation at 06:29 hrs on 28 November. She noted S to be alert and active, with a sunken fontanelle, dry lips and pale. Her initial thought was that S may have a kidney problem, and she spoke to a renal consultant in [another, larger, hospital]. The initial working diagnosis was diabetes insipidus, which was then excluded by the high urine concentration. Bartter syndrome was considered within the differential diagnoses. Feed volume was increased to 180 ml/kg, still, at that stage, using the contaminated feed tin (RW/3 – see below) via the nasogastric tube. The expected improvements were not seen in the subsequent blood testing results.[115]In the early hours of 29 November, so well over 24 hours after S’s admission, an Advanced Paediatric Clinical Practitioner, HD, discussed with Dr B what might be behind the raised plasma sodium. They alighted on the feed as a possible cause and spoke of its being tested in the lab. Given the delays that this would occasion, HD decided to make up some milk from the canister and taste it. She did so. It was markedly salty, and others agreed. The tin was removed, secured and, as below, subsequently tested.[116]S’s NG feeds were then changed to those stored at the hospital. S’s sodium levels started to fall rapidly. Indeed, they fell too rapidly as it turned out, the hospital seemingly, if unaccountably, unaware of the standard protocols in relation to the treatment of acute hypernatraemia in infants, and S started fitting. He was given Lorazepam which in due course (but not before further fitting four hours later) stabilised his condition.[117]Dr B spoke to M shortly after the milk had been tasted. M is reported to have stated that she had wondered if there was something wrong with the milk and that she had been considering changing it again.[118]The LA’s out-of-hours service was informed of S’s hospital attendance at some point on 28 November 2022. SW, attended at the hospital. SW had various discussions, in various permutations, with medics, the police, M and F. SW, in her statement, describes her conversation with M, when just the two of them spoke, after SW’s initial conversation with medics and the police, thus: ‘9. [M] explained that she and [F] […] were separated currently and that seeing [S] so poorly in hospital reminded her of [R] when he was poorly in hospital. She explained that she had a medical condition which means she struggles to carry a pregnancy to term due to a complication in her cervix and she had a number of miscarriages and [R] was born very prematurely due to these struggles and therefore spent time in the hospital.[10][M] told me that just before [R] became poorly she and [F] were struggling in their relationship however when [R] became poorly this had brought them closer as a couple and a family and he was very supportive. [M] spoke positively of [F] and around how he supported her during this time and how they were able to reconcile and their relationship became stronger after this point.[11][M] had said that she felt as though history had repeated itself with [S], seeing him lying there brought her back to the memories of [R] and whilst she and [F] were not in a relationship currently, she wished to resume this and she felt that now [S] was poorly they would resume their relationship like they did before with [R] and be stronger as a couple again. She had explained that they needed to be together as a family again to support each other.’[119]Some of this detail is contained in SW’s contemporaneous notes (taken on the ‘Notes’ app on her telephone), for example, M telling SW that she and F were separated. Other detail is not in those notes, but broadly contemporaneous corroboration is found in the various LA case notes produced during the hearing, which include these extracts:
‘Mother has informed [SW] that she and father [...] recently separated. However, they have spoken today and may be planning to reconcile in light of what has occurred.’ ‘Mother has not provided a clear explanation around the reason for her and father separating. However, mother informed the Social Worker on 29/11 that she and father would, in light of concerns for [S]’s health having emerged, decided [sic] to reconcile.’ ‘Mother had commented to SW that she was separated from dad but he did come over on a weekend and that she thought that they would get back together as a result of this incident i.e. baby ill.’
[120]M denies having told SW both that she and F were separated and that she, M, hoped that the medical crisis with S would bring them back together. It was put to SW that she had confused the admitted relative estrangement before and rapprochement after R’s premature birth with what she was being told about the situation at the time of S’s birth and subsequent illness. SW was absolutely clear that this was not the case. The contaminated canisters and bottles[121]Painstaking, time-consuming and expensive efforts have been made to ensure that the court has the best evidence in relation to the contamination of the canisters and bottles, the source of the contamination and, if possible to do so, who it can be established had physical contact with the relevant bottles and canisters. This has included the forensic scientific testing of the various bottles and canisters seized, together with their testing for discernible and identifiable fingerprints, and the testing of control samples of formula, from corresponding batch numbers, seized from the [X Brand] factory.[122]There is no need to burden this judgment with a full exposition of all of this. It is enough to record the following: - no fingerprints were found which could take assist the current enquiry; - the testing of all samples taken from the manufacturer and in unopened canisters at the family home showed normal, uncontaminated formula; - the parties, and in particular, it is of note, those potentially implicated, accept that the contamination did not occur during the process of the production of the formula milk, during its distribution from manufacturer to retailer, or during the process of being stored, displayed and ultimately sold by the retailer; - two canisters were found, on testing, to be contaminated by the addition of quantities of sodium chloride crystals, probably in the form of standard table salt.[123]Those two contaminated canisters were: - Exhibit RW/3: an opened tin of [X Brand], taken by M to the hospital at the point of S’s first admission, and used to make up the feeds given to him at the hospital, both by the nurse (in the small hours during the night of 27 – 28 November) and via the NG tube (until the fact of contamination was discovered). The sample of milk made up from this tin (in accordance with manufacturer’s instructions) showed a sodium concentration of 157 mmol/L. Microscopic examination revealed the presence of cubic crystals, demonstrated on testing to be sodium chloride, and typical of common table salt. At the point it was analysed in the laboratory, the tin was about one-third full (the contents weighing 283.3g, compared with the original 800g). The expert evidence[124]Dr Malcolm Coulthard was jointly instructed to provide expert evidence in this case. Dr Coulthard is currently an Honorary Consultant Paediatric Nephrologist at the Royal Victoria Infirmary, Newcastle upon Tyne. He has long and specific expertise in paediatric nephrology, with a longstanding particular special interest in the diagnosis and causation of, and the safest treatment regimes for, hypernatraemia in babies and children, and in particular, how to distinguish salt poisoning from other causes. Dr Coulthard was one of the two paediatric nephrology members of the Guideline Development Group for the Royal College of Paediatrics and Child Health, which group produced the evidence-based RCPCH guidance document ‘The Differential Diagnoses of Hypernatraemia in Children, with Particular Reference to Salt Poisoning’ in 2009.[125]Dr Coulthard was asked to give his opinion on the cause of S’s high plasma sodium concentration (i.e. hypernatraemia) on his admission to the [hospital] on 27 November 2022. His summary of his opinion is as follows:
‘I have reached a firm conclusion which is that [S]’s hyponatraemia detected on 27/11/23 was due to salt poisoning. He was given at least one feed of salt-contaminated milk at home about 11 hours before his admission and may have had other feeds before this. The contamination was in the form of salt added (but not thoroughly mixed in with) a tub of baby milk formula powder. Unfortunately, his hypernatraemia was misdiagnosed as being due to dehydration rather than salt poisoning and he was inadvertently fed with milk made-up from the contaminated milk formula after being admitted to hospital. This was administered via a nasogastric tube which prevented him from tasting and behaving adversely to it and this error was not recognised for 24 hours, by which time his hypernatraemia was worse. His plasma sodium concentration was then reduced too quickly, which resulted in him sustaining fits. He has had no more fits since, and is thriving with normal kidney function on normal milk formula in foster care. It is highly likely that he will have made a full neurological recovery, but his developmental progress should be monitored carefully.’
[126]The receipt of further evidence, in particular in relation to the fact and detail of the two separate contaminated tins, the making up of milk from which produced markedly different sodium concentrations, led to this revision, again, in Dr Coulthard’s own summary:
‘I have learned from this that [S]’s mother brought a tin of formula into the hospital with her that she claimed she had used that day, and which the ward staff then used, which had a final milk sodium concentration of 157 mmol/L, and that another nearly empty tin of more highly contaminated milk formula was since seized from the family home by the police. […] In my opinion, having learned that there were two separate salt-contaminated tins of milk formula powder underlines the deliberate nature of this poisoning event. I have used this new data to estimate the possible period of time that [S] was fed contaminated milk prior to his admission to hospital. The uncertainties that exist mean that it is not possible to accurately determine a single time-period, but time ranges can be reasonably estimated. The maximum duration range of possibly being fed poisoned milk is between 8 and 48 hours, with a greater likelihood of between about 8 and 24 hours.’
[127]In relation to causation of the hypernatraemia, Dr Coulthard’s logic began with the observation that dehydration in babies usually results from water loss due to a large volume of watery diarrhoea, combined with vomiting which prevents them from replacing the lost fluid with milk or water. In order to have a sufficient level of dehydration to cause ‘moderate hypernatraemia’ (i.e. a plasma sodium of about 160 mmol/L), babies typically need to have lost about 6 – 8% of their body weight as water. In contradistinction, S was reported to have fed well until nine hours before his admission, and had not had any diarrhoea. He weighed 4.25 kg on arrival, so to have developed 6% dehydration would have had to have previously weighed 4.52 kg and lost 270 ml (more than half a pint) more diarrhoea than he could compensate for by drinking fluids.[128]Combining the facts(a) that S had moderate hypernatraemia,(b) that this was in no way explained by history of diarrhoea and vomiting, and(c) that S’s feed was established to have been contaminated with table salt, it is no surprise that Dr Coulthard formed the ‘firm view’ that his condition was due to salt-poisoning.[129]Most babies who are salt-poisoned, according to Dr Coulthard’s experience and research, will present within four hours of a contaminated feed with neurological symptoms (which might include coma, fitting or severe shock). This was not the case for MM, but Dr Coulthard noted that his hypernatraemia was ‘moderate’ (i.e. sodium plasma at 161 mmol/L) compared to the levels seen in such cases, which typically vary from 170 to over 200 mmol/L.[130]Dr Coulthard noted that babies who are offered salt-contaminated milk are typically described as ‘pulling away’ or turning their heads to the side in response to tasting the milk. However, because of their thirst and hunger (noting that a milk feed represents both hydration and nutrition for a baby), they will typically drink some of the milk, although they may vomit some back up.[131]Armed with better knowledge about the contents of the two contaminated formula tins, Dr Coulthard attempted to calculate the likely duration of S’s exposure to salt poisoning. This exercise was undertaken on the differential hypotheses of S having fed(a) only from the more contaminated, almost empty tin, recovered from the home,(b) only from the less contaminated, fuller tin, taken to and recovered from the hospital, and(c) from the more contaminated to start with (at home) and from the less contaminated afterwards (at hospital). This process necessarily involved a number of assumptions being made. Those assumptions were:a. that the milk made up from the tins of feed, as fed to S, was the same concentration as that later made up from those tins in controlled conditions and tested (i.e. even mixing of salt and formula powder);b. that S was fed 150 ml of milk every four hours;c. that S completed all of his feeds; andd. that S was able to excrete sodium into his urine at about 2.3 mmol/hr from the moment that his plasma sodium began to rise above normal.[132]As acknowledged by Dr Coulthard, each of these assumptions is open to some challenge as follows (using the same lettering):a. there is other evidence to suggest that the salt was not mixed evenly throughout the canisters;b. in fact, S’s standard regime was 120 ml of milk 3-hourly (although the difference between the two is marginal);c. on M’s evidence (in relation to the home), and on the nursing records (at hospital), S did not complete all of his feeds, and, after the difficult 3 pm feed, the frequency at which they were given fell below S’s usual pattern; andd. Dr Coulthard accepts that it is very likely that S’s rate of sodium excretion was lower than 2.3 mmol/hr in the early stages of the raised plasma sodium levels, increasing as the plasma sodium concentration increased).[133]Even acknowledging these inbuilt variables and inevitable inaccuracies, the estimates which flow from the exercise are useful as demonstrating the likely parameters.[134]The below graphs represent Dr Coulthard’s calculations. By way of explanation: - The red lines indicate plasma sodium levels with feeds from the more highly contaminated tin, the blue lines for the less contaminated. - The lilac horizontal band represents S’s elevated sodium plasma levels during his admission (i.e. an excess of between 44 and 72 mmol/L). - The left-hand graph shows the increase in plasma sodium if S was fed from(a) just the more contaminated feed (red), and(b) just the less contaminated feed (blue). - The right-hand graphs show the likely progression based on (a) one feed of the more contaminated, and (b) two feeds from the more contaminated, followed by a series of feeds from the less contaminated.[135]As can be seen, in particular from the left-hand graph, there is a vast difference in the amount of time it would take to reach a significantly raised plasma sodium level based on S being fed milk contaminated at the (notional) higher or lower levels, this difference being exponentially higher than the ratio of the respective proportions of salt contamination. The reason for this, as explained in Dr Coulthard’s oral evidence, lies in an infant’s ability to excrete sodium. While uncontaminated (normal) formula milk might contain sodium at only about 10 mmol/L, a baby could probably cope with sodium levels as high as about 100 mmol/l; that is to say the baby could pass the excess sodium out in urine as quickly as it was being ingested and absorbed. Thus, while 157 mmol/L is a high level, it would take about 48 hours of feeds for the baby’s plasma to acquire the levels seen in hospital. Conversely, it would take far fewer feeds, and so relatively fewer hours, at the higher concentration to reach those levels.[136]Dr Coulthard was at pains to point out in his oral evidence the importance of the fact of an infant’s instinctive aversion to salty feed, even at the relatively weaker levels. In essence, Dr Coulthard’s evidence was that he would not expect a salty feed to be taken in any remotely normal way by a baby. This would militate, assuming the feeding history given by M was broadly accurate, towards the 15:00 hrs feed on 27 September (if this was the first feed to which S displayed a strong adverse reaction) having been the first contaminated feed. However, if that was the first contaminated feed, it would have to have contained milk with a higher sodium concentration than c.150 mmol/L in order to result in the plasma sodium levels seen on admission to hospital.[137]Dr Coulthard cautioned me in strong terms against attributing any medical significance to descriptions of S’s fontanelle at any particular time. The subjective description of a sunken fontanelle, although reported and treated as significant in good faith by lay carers and clinicians alike, has been shown to be an extremely unreliable clinical indicator of dehydration or any other underlying medical problem. The oral evidence[138]I heard a great deal of evidence over many days. The below is not to be taken as an attempt to provide anything approaching a comprehensive summary of it, but merely a record of some of the key points and my impressions of the various witnesses.

The Social Worker (“SW”)

[139]SW was the only professional who was required to give oral evidence, this due to M’s denial that she had made the comments to SW at [the hospital] which SW attributes to her, and in particular(a) that M and F were at the time of the admission separated, and(b) that M hoped that the fact of the admission and S’s acute health crisis would serve to reconcile them and bring them closer together thereafter, as had happened a few years earlier with R.[140]SW no longer works for this LA’s Social Services. She confirmed that she has little remaining independent recollection of the relevant events and conversations, and so is reliant on the notes she made at the time.[141]SW made a note of having received a telephone call from a ‘maternal uncle’, who told her that everyone in the household had played a part in making up the bottles and in feeding S. Curiously, every witness who was a potential candidate for being this caller denied it.[142]SW was robustly challenged on M’s behalf in relation to her notetaking and, in particular, her assertion that M had made the comments set out above. SW was clear that she had been told what she now attributes to M. If M had said, for example, that she and F ‘live[d] separately’, rather than that they were ‘separated’, then this is what she would have understood and written down, she said. She stood by her evidence that M had made comments such as the then current situation being like ‘history repeating itself’ and M’s hope that S’s illness would bring M and F ‘closer together’, and noted that she had been concerned by some of what M had said, and so had left the room to alert the police officer/s in attendance of the content of those comments. SW was also clear that she had received the telephone call from the ‘maternal uncle’, that her note in relation to this was not somehow mistaken.[143]SW impressed me as professional and efficient. She was clear about the manner in which she made her notes, created documents and contributed to meetings. She did not seek to embellish her evidence by claiming to retain authentic memories of long distant conversations, but convincingly explained why she stands by her interpretation of those various interactions rather than that now put to her.

Intervener – IF

[144]IF is a young adult, the son of the MGPs’ eldest child, and so the cousin of R and S. During the period in question, IF was in the habit of staying with his grandparents most weekends. He used one of the top bedrooms, which he shared (as set out above) with his uncle, IE.[145]IF, while he broadly understood the evidence and that it pointed to someone within the household having deliberately contaminated the formula feed, could not countenance any of those persons having done so. When told by Mr Andani that M was asserting that IA was responsible, IF did not say more than that he did not know and that he kept himself to himself.[146]IF gave an account in his oral evidence which broadly aligned with his account to police and in his statement. He had had little if anything to do with S over the weekend in question, he had barely been into the kitchen and had not noticed and did not touch or in any way interact with either tin of feed. Nor, he confirmed, had he at any point entered the bedroom used by MGM, M and S (where one of the tins was predominantly kept). He confirmed that he had never previously seen any of the scoops which come with each tin of feed on the counter or on top of any canister. He confirmed his presence at the family party on 26 November, his leaving to attend Lazer Zone, and then the restaurant. He would not have been in the house when M began the 3 pm or 6 pm feeds, returning at about 7.15 – 7.30 pm. He did not see M or S on his return. He got up at about 10.30 am on the Sunday morning, heading downstairs at about 11 am, and leaving the home at about noon. He could not recall seeing a tub of milk at any point that morning.[147]IF recalled M’s return to the home after her release from the police station a few days later and confirmed that this had been an emotional scene, although he could not recall whether IA had been present, let alone the extent to which she had been involved in this.[148]IF could not recall being present during the incident (described above) at the sink in the kitchen. As to the argument between IE and M about ZG, IF confirmed that he had some knowledge of the incident, although no real account was given, save that IF indicated that it may well have been he who had told IE that ZG was to come to the upcoming party.[149]So far as IF had been concerned, M had been perfectly happy staying with S at the MGPs’ home.[150]IF maintained an absolute denial that he had done anything to contaminate the feed.[151]IF, while inclined towards petulance once or twice during his oral evidence, came across as honest, not least in his tendency to acknowledge that he did not notice or could not remember the minor, and contemporaneously insignificant, domestic details of a year and a half ago. As with most of the other interveners, there were, every now and again, marked signs of defensiveness in relation to his family members, and in particular M (for example, when asked about the incident involving ZC).

Intervener – MGM

[152]MGM told me that she wanted to get to the truth, but that she did not know what that truth is. She was clear that she had nothing to hide from the police or the court and that she not hidden anything.[153]MGM confirmed that she had barely if ever made up S’s feed, and that she may have fed him once or twice, but had not done so regularly or frequently. She had seen no-one prepare S’s feed or give to it him other than M. She confirmed that the tins of feed tended most of the time to be in the room she shared with M and S, being brought downstairs when likely to be needed, in particular at weekends. When downstairs, MGM was of the view that the feed would be left on the worksurface in the kitchen, on one or other side of the cooker, rather than being put away in a cupboard, and that the scoop was always inside rather than on top of or next to the tin. MGM confirmed that the salt was kept in the upper cupboards, by the side of the cooker, and that she had never seen any of her non-adult grandchildren going into any of those cupboards.[154]As to the falling-out between M and IE, MGM claimed to have been aware that it had happened, but had not herself been present or heard it. MGM denied that M had spoken to her about IA, her ‘shit-stirring’ (per M’s messages, see above), or the need to refrain from discussing family matters in front of IA.[155]As to her relationship with IA and IA’s integration in the family, MGM was keen at that stage to point out that, while she and IA spoke different languages, IA was part of the family and that she treated by MGM as a daughter.[156]MGM could not recall having seen the tub of milk in the kitchen during the party on 26 November, but was of the view that no one from the party had gone upstairs at any point. MGM had not gone to Laser Zone but had attended the restaurant afterwards. She had not returned late – M was still up and S was in their room. She recalled S having been unsettled on the Saturday. MGM confirmed what she had said to the police, that M had been awake ‘through the night’ from Saturday to Sunday ‘comforting [S]’. Oddly, though, MGM seems to have been wholly unaware that M had been messaging F and trying to call him throughout the night, and confirmed that M had not shared at any point that evening, night or in the morning any frustrations or an account of her prolonged argument with and tirade against F.[157]MGM said that she had answered the door to F on the Sunday afternoon, discerning no anger or poor mood in him. He went upstairs as usual. Before F arrived, MGM could not recall M having any difficulties with S. MGM’s initial account in evidence was that after F left, MGM stayed downstairs not seeing S until some time after 8 pm when M showed him to MGM saying that S was not well. She later confirmed that M had told her between 3 and 4 pm that S had been unwell and vomited a little.[158]MGM gave an account of her interaction with IA shortly before M had called 111. MGM said that IA was hoovering outside MGM and M’s room, that MGM opened her door and asked IA where IE was, and that IA gestured with her head to the bathroom. By the time IE came out and MGM spoke to him, according to MGM, M was already calling the ambulance. MGM did not take up the implied invitation in cross-examination on M’s behalf to criticise IA for having shown a lack of interest in S’s condition that day.[159]Asked about IA and the possibility that she was the culprit, MGM said that she was ‘not suspicious of anyone’ and that M is blaming her simply as IA is the only person she could be suspicious of, as being the only person with whom M had had an angry exchange of words. (The inaccuracy of this assertion was not explored with MGM.)[160]MGM had not been aware, it seems, of the incident which had taken place at the kitchen sink a few weeks before S’s admission to hospital.[161]MGM was extremely positive about M’s qualities as a mother. And she was adamant that M could not have harmed S, even stating, ‘I can swear on the Qur’an that [M] would give her life for her children. She would never harm them. Her children are her life. I tell you, she lives for her children.’[162]MGM became upset at various points in her evidence, including when asked to recall M’s return to the home on her release from police custody. This accords with my overall impression of MGM, as being a devoted and loving mother and grandmother to her seven children and seventeen grandchildren. Asked if she had put salt in the milk powder, she earnestly remarked that she would give her life for her grandson.[163]Perhaps unsurprisingly, given her devotion, MGM’s answers had a marked tendency towards defending her family and, in particular when asked questions about topics which may have reflected poorly on M, MGM answered very defensively, seeking to neutralise any scope for criticism of M. This included questions on the CG’s behalf aimed at uncovering what MGM had known of the domestic abuse in the early years of M’s marriage to F (with answers given such as: ‘They have to get used to each other’s habits,’ and, ‘What can I say? It would be like this for a short while, and then they get back together.’). While it did not strike me at any point that MGM had crossed the line into active dishonesty, it is clear that there is a need for caution when assessing the evidence of a woman so disinclined, no doubt for reasons of love and loyalty, to see faults in her own children. This is particularly the case in relation to M, given MGM’s enhanced instinct towards protecting her, born of having seen her endure the horrific circumstances of her fertility difficulties and the consequences of S’s poisoning, visited on M in such graphic and devastating ways, through her arrest and the removal from her care of her children.

Witness – ZB

[164]ZB is the second of MGM’s children. She was called on M’s behalf by Mr Kingerley KC.[165]ZB described M in the most gushing of terms as an ‘absolutely amazing’ mother, far and away the ‘best mother’ out of MGM’s four daughters. ZB confirmed that M had sent her messages confirming that F was ‘working like a slug’ in preparing their new home for habitation. Her evidence, however, was that the move, by 27 November, was imminent, possibly as soon as the following Monday.[166]ZB did not think it likely that any of her children would have put salt in the feeds, maliciously or in play. They are and were, she said (and others confirmed), well behaved children.[167]I have set out above ZB’s response to the suggestion that M had, or might have, hit ZC. My impression of the first portion of ZB’s evidence was that she was being as honest and accurate as she could be, albeit that she was clearly motivated, by love and loyalty, to present M in as positive light as possible. From the point, however, that Mr Rowley KC began exploring the exchange of messages between ZC and M, and her parental response, it struck me that ZB’s need not to say anything which could be construed as negative about M, began to obstruct her ability to give consistently honest answers. She stuck by the account that she had asked ZC about the various messages (e.g. ZC:
‘You’re my auntie, but you hit me.’
M: ‘Sorry, it was by accidentally [sic].’) but that ZC had confirmed that this was simply a description of over-zealous hair braiding, which account she, ZB, had accepted. This seemed to me unlikely in the extreme.[168]ZB distanced herself from her response to social workers who had been assessing her as a possible kinship carer, when she is reported to have been ‘firm in her resolve that anything could have happened and that she didn’t rule out her sister having an episode of post-natal depression and causing harm to [S].’ZB claimed not to have used the term ‘post-natal depression’, and M later claimed (effectively on ZB’s behalf) that ZB had only said any of this as a means of demonstrating an open mind as to the possibility of parental perpetration, this being a prerequisite for a positive kinship assessment, i.e., effectively, that ZB had lied to social workers.

Witness – ZD

[169]ZD, the third in age of MGM’s children, was also called as a witness on M’s behalf.[170]ZD spoke of M’s qualities as a mother, and, in particular, of the impact on her maternal behaviour and protectiveness of having had such a difficult time eventually achieving S’s safe delivery at term.[171]ZD gave evidence that she had understood that, as at the point that S was admitted to hospital, their new home was all but completed, that the move was to have been in a matter of days.[172]ZD, when the LA explored this with her, all but discounted the possibility of a child having contaminated the tins of feed. Contemplating all that would be required for this to have taken place – in relation to two tins, in different places – she described the notion as ‘ridiculous’.[173]Asked why she had agreed with M during the exchange of messages about IA’s involvement in causing the argument between M and IE (i.e. M: ‘Shes a bitch girl’ ZD: ‘I know she is’), ZD said that it was sometimes ‘easier to agree with M than to contradict her’. M, said ZD, is ‘blunt’, ‘does not have a filter’ and ‘is not afraid to say it to your face’.[174]ZD was asked about having said to social workers in December 2017 that M lived ‘apart from her husband […] and they split up as he was too pushy and controlling, making her dress a certain way etc.’. She claimed to be shocked to read these comments attributed to her, asserting that she had ‘no memory of saying that’. She was then asked about her more recent description in her police statement:
‘[M’s] relationship with the children’s father […] has its up and downs, it’s a bit of a messy relationship but as family we try not to pry. They live their separate lives and that works for them. They’re happy and the children are happy and that’s the most important thing.’
Again, ZD sought to distance herself from her own words. ‘Messy’, she said, had been the wrong choice of word. The ‘ups and downs’ she explained as ‘like any relationship’, and the ‘liv[ing] their separate lives’ as ‘he’s more of a working person; she says indoors – more of an introvert’.[175]ZD came across as a witness whose aim was to assist the court and to tell the truth. However, as with certain others, her inclination towards defending M and distancing herself from any remotely negative evidence about M, even if that had originated from ZD’s own words, was less than helpful.

Intervener – IB

[176]IB is one of M’s slightly younger brothers and ID’s husband.[177]In relation to how the tins of formula may have become contaminated, IB, whose evidence came after that of all other family members, was able to rule out contamination during the manufacturing process, but still considered that there was ‘a small chance’ that a child may have been responsible. IB did not seek to point the finger at any particular family member. IB described his life as being very busy and his not being in the house very much, given his significant work commitments, jogging and walking his dogs.[178]IB confirmed that, growing up and beyond, he had been very close to his sister, M, and closer to her than to their three older sisters. That said, M had not confided in IB over the years, in relation to the various difficulties, in particular the controlling and abusive behaviour, including physical violence and threats of it, from F. As to the status of M and F’s relationship in November 2022, IB thought that it was more of ‘a little mental break, a little break,’ than a full-blown separation (although it was not clear to me whether IB was describing what he had known or thought at the time, or his ex post facto appraisal, having heard the evidence).[179]IB spoke in glowing terms at M as a mother. Her children, he said, had been a miracle for her, one on which she had all but given up. He thought that M had derived ‘mental support’ from living back with her parents, and particular MGM, as when living in her own home, her husband, F, would be working long hours, she left alone. ‘Being with us,’ he thought, ‘gave a bit of a boost to be herself more.’[180]Reflecting on M’s role in making IB aware of ID feeling down and depressed (see below), IB said, ‘I think my sister made me aware we’ve got an issue here and need to resolve it. Telling me that a wife needs a husband to be emotionally supportive. Perhaps she missed that in her own life.’[181]IB, like others, described the tin of formula feeds as generally speaking being wherever M and S were at any particular time.[182]In relation to 26 and 27 November, while it took a little unpicking of the work schedules in the oral evidence, it seems that IB probably stayed on site between the ending, on the morning of Sunday 27 November, of his overnight shift on Saturday night, and the beginning of his overnight shift on the Sunday night.[183]IB denied seeing any change in his sister, M, or sensing any frustration in her that F’s refurbishment of their new home was taking so long. Nor had IB been aware, he said, of any tensions between M and IA. When his own son had been born in July 2020, IA had been living in the home, and had been ‘fine’ with his baby, and ‘just like [M] is.’[184]IB described the devastating impact of S’s poisoning and these proceedings on the family. He had been forced to move out of his parents’ house at very short notice. IA and IE likewise, had had to move out when their child was born. MGF ‘suffers from many illnesses and doesn’t see his grandchildren, or his children.’ While IB played it down somewhat, it must have affected his wife and him, both individually, and as between them, that there had been a point when his family had pointing specifically at ID (along with IA) as a possible perpetrator.[185]IB was very tired when he gave evidence: he had just worked a night-shift, and was fasting for Ramadan. Perhaps in part for these reasons, or perhaps due to the distance of time between the events and his having to recall them, IB’s memory of the relevant time and incidents was often somewhat degraded, and there was, at times, a vagueness to his evidence. That said, IB seemed to me an honest witness, doing his best to assist the court, even if – like others – he could not really contemplate the possibility of a member of his blood family, especially M, being responsible for the poisoning.

Intervener – ID

[186]ID, IB’s wife, is originally from [a North African country], and Arabic continues to be her first and predominant language. ID has lived with her parents-in-law for about four years, during which time her two children were born. The younger of her children, A, was born in February 2023, meaning that ID was six or seven months pregnant at the time of the events currently under consideration. ID was in [North Africa], visiting and staying with her family, when S was born and he and M initially moved in.[187]ID was clearly familiar with both IA and M, although she knew IA rather better as they had lived in the same house for longer. She had seen and heard nothing to suggest that M was unhappy. Equally, she had no reason to consider that IA was either unhappy in living with her parents-in-law or otherwise feeling depressed. She had not been aware of any ill-feeling between M and IA, both in general and around the time of S’s being poisoned.[188]ID had been present at the party on Saturday 26 November. She had not noticed anyone going upstairs. She had seen S only once during the party, when M, she says, brought him downstairs. Heavily pregnant, ID did not join others at Laser Zone or at the restaurant. When that group left, ID says that M took S upstairs, and she, ID, went back up to her room.[189]ID confirmed that she had been feeling very down in November 2022, putting this down to being heavily pregnant, hormonal and a long way away from her family, with a husband who was working long hours. It cannot have helped that her husband was also at the time embroiled in, and very possibly emotionally preoccupied by, what sound to be acrimonious proceedings in relation to his children with his first wife.[190]ID described M as being ‘a loving and caring mother’ and noted that M had been kind to and supportive of her when M had recognised that ID was feeling homesick.[191]ID spent a lot of time upstairs in her room, coming downstairs to cook, to eat and to feed her children. She would sometime see M in the kitchen at these times, but IA rather less so, as she spent most of her time in her room, when not at work, coming down only really to prepare her breakfast.[192]ID absolutely denied having put salt in S’s formula. (Notably, while M had previously suggested that she suspected both of her sisters-in-law, IA and ID, her position had crystallised some time before the fact-finding hearing in blaming IA alone.)[193]ID came across as a thoughtful and honest witness. She seemed intent on helping as much as she could, although she had seen and heard nothing which would particularly assist in the enquiry.

Intervener – IC

[194]IC is M’s younger brother. He is divorced from his wife, ZG.[195]By the point of IC’s evidence, he had had the opportunity to hear almost all of the evidence. He accepted that the contamination of the formula was not a fault of the manufacturing process, and thought it ‘a very low possibility’, and ‘highly unlikely that the kids would do anything like this’. So reluctant was IC to contemplate that a member of the family had undertaken the act, he held out the possibility that a stranger had come into the home and somehow poisoned the tins, although he conceded that this was a ‘highly unlikely’ scenario.[196]IC spoke of M being an excellent mother, better even than their other sisters. ‘Her kids are her happiness,’ he said. IC knew ‘100%’ that M had not poisoned the feed. ‘If she did anything to her baby, I’d be the first one [to call it out]. I know my sister: she wouldn’t do such a heinous thing; she wouldn’t hurt anyone, let alone a child,’ he said.[197]Of MGM’s decision to invite his ex-wife, ZG, to their son’s birthday celebration on 19 November, IC indicated that he had not initially been in agreement but that, on speaking to his parents, the MGPs, he recognised that it would be in his son’s best interests to have both of his parents present, so he agreed. IC confirmed that M had agreed with their parents that ZG should come, but that IE had been very much opposed to the notion.[198]IC described himself as someone who kept himself to himself, this in contrast to his siblings, M and IE, who were more prone to confrontation, and who had argued about ZG’s being invited to the party. IC had heard the argument, principally IE ‘screaming’ at M, ‘quite emotional’. At the time, IC had not known what the fight was about. As to who joined the incident when, he said, ‘I came out of my room [on the top floor] and tried to diffuse it. I saw [IA] come upstairs, asking what happened. [IE] spoke to her. [M] had gone downstairs by this stage. I didn’t really hear what they said. I went back to my room.’ (Parenthetically, it is notable that this accords with IA and IE’s account, and conflicts with M’s suggestion that IA had been the person who ‘purposely went upstairs … And filled his ears … And she thinks I’m unaware’ (see exposition of M’s messages, above).)[199]M had not, IC said, told him of her problems with F, this not being the sort of topic they would discuss. He had told the police of the ‘ups and downs’ and of the marriage ‘not [being] the best’ in order simply to convey the difficulty of any arranged marriage, in which the spouses need a little time to get to know one another, he said. His description was, ‘My sister bad been through a lot with the pregnancies, and needed emotional support; and [F] at the time didn’t offer that. They didn’t really have a proper relationship at the start so he didn’t know how to be emotionally there for her, which she needed.’ M had not, he said, told IC of the abuse, violence or controlling behaviours. Nor, said IC, had M told him of her frustrations in November in relation to the lack of progress being made in the refurbishment. IC had not been aware when the move was to have happened. While he had seen ‘stuff coming to the house, deliveries and stuff’, he was not expecting M and S to moving out that week.[200]Asked by me for his views about his having learned during these proceedings of the exchange of messages between M and F, IC said this:
‘She needs emotional support. [F] spent more time with his own family than with his own wife. I can understand her frustration. She wanted him to give her more support financially and emotionally. It was her way of getting his attention. That’s how I see it.’
[201]IC never saw anyone touching the feed canisters. M sometimes came to IC’s room to feed S, but did not, he thought, ever leave the formula in there. As far as he had seen, the feed tended to be with M, wherever she was, although IC was at pains to point out that he was not at home much, given his work commitments, and his liking to be out with friends, limiting the observations he had made of this. In his police interview, IC had been rather more clear in his recollection that ‘she’s got the milk with her all the time’, a recollection which, it seems from the context in the interview, he attributed to the group of siblings when first they had talked together and considered the various possibilities.[202]On Saturday 26 November, IC had got up about an hour before the party started. By the time of his oral evidence, IC’s memory had faded to the point that he had no real recollection of the restaurant meal which had followed Laser Zone. His ‘recollection’ of Sunday 27 November, it seemed to me, was more a backfilling based on what he would normally do on a Sunday, than an authentic and accurate memory. He thinks he woke up in the afternoon , watched TV, went out to play football, came home and slept. He would ‘usually say hi’ to his mother, MGM. He does not remember seeing S or M, or any conversation with M when he got back (probably) in the late afternoon. Prompted from more closely contemporaneous accounts, IC recalled M having told him that S was not drinking his milk and being asked by M to pick up some saline drops. IC thought that he had not been told or aware of M’s worries about S’sfontanelle until the text messages she had sent him at 19:52 hrs indicating that she ‘might take him to hospital … he has a sunken fontanelle’.[203]IC denied that he had put salt in the tins of formula feed.[204]IC had visited IA and IE at their home when their baby was born. He describes a brief discussion with IA about the case, and, in particular, M’s blaming of her. IA was ‘quite shocked at what’s happening and the allegations against her,’ and that she was ‘not so much trying to work out who’s done it, but [was asking], Why accuse me?’. IC, who works in the mental health sector, describes having been ‘quite surprised’ by what he learned during the course of the trial of the extent of IA’s difficulties.[205]IC described that he ‘very rarely falls out with anyone’, whether in the household or not. This accorded both what others said of him, and his demeanour in the witness box. IC struck me as a quiet and thoughtful man and as an honest witness, although having limited genuine memory of much of the detail of what took place on the various relevant days of November 2022. As with others, there was a marked defensiveness when being asked about his sister, M.

Intervener – IE

[206]IE is the youngest of these seven siblings. He is married to IA, the pair having met and fallen for each other as teenagers. Their first baby was born exactly a year after the events of November 2022.[207]IE described having been particularly close to M, more so than he was to his three older sisters. He had shown M huge practical support in the months after R was born prematurely, helping with transport and present in the hospital quite a lot during this period. He claimed not to have been aware of F’s physical violence towards M.[208]Of the incident at the kitchen sink, referred to above, IE said IA had not been annoyed, and that he had not been remotely offended. It was an event he barely remembered, ‘something and nothing’, not being aware of any purported significance until he read of it in M’s statement in these proceedings. IE denied that IA had given M ‘the cold shoulder’ afterwards; in fact, he said, there had been no change in the relationship between the two of them. Perhaps surprisingly, IE was not critical of M for giving an account contradictory to what he knew to be the case:
‘Maybe that was her perception. […] Perhaps she’s viewing these things now out of context.’
[209]IE acknowledged his behaviour during the argument with M about ZG’s attendance at her son’s party. He had shouted at M, and M at him, he said. IE was clear that IA had not been present when the argument had begun and had not played any part in its starting. IF, he thought, had been the one to tell him of the inviting of ZG (according with IF’s evidence on this issue). IE did not think this argument, unusual though it had been in pitch and content, as being particularly significant: he and M were like ‘cat and mouse’. ‘The dynamic of our relationship was very great. The love was greater than the violence,’ he said. IE had been unaware that, contemporaneously, M was accusing his wife of stirring, referring to IA as ‘a bitch’.[210]IE said that he had seen the [X Brand] canisters on the worktop, although he acknowledged that this was ‘such a passive thing’ that he would barely register it. IE said that he had seen the scoop on top of the tin before, noting also that leftover scoops from previous tubs of formula would be used around the kitchen, perhaps in a sugar pot.[211]IE had been at the party on 26 November, seeing M, but not, he thought, S. IE had attended Laser Zone and the restaurant. Afterwards, he and M had visited his grandfather, given him a haircut and a shave, arriving back home at about 9 or 9.30 pm.[212]IE said that he and IA had gone out on Sunday 27 November, having got up at about 11, 11.30 am. He disagreed with M’s claim that IA had definitely been around at the time of S’s 3 pm feed, as he was sure that he and IA had been out in town, where they had eaten brunch and shopped, before going for a walk and visiting IA’s parents at their home. It was put to IE by Mr Kingerley KC that the kebab shop at which IE said he and IA had bought their brunch that day was not in fact open on Sundays. (In the absence of any evidence in relation to this, it is not a matter about which I can form a view; nor, given that there could easily be innocent mistake as to a detail such as this, is it something which would greatly assist this investigative process.) IE said that he and IA had returned to the MGPs’ home at about 7.30 – 8 pm. Given that the 111 call was timed at 7.55 pm, their return must have been earlier in that window. IE confirmed that IA had been hoovering, that he had been in the lavatory at the point that he was somehow alerted by IA that he might be needed to take S to hospital. He was only told, he thinks, that S was ‘not feeling good’. He had not seen S himself, and did not think that this was a ‘panic moment’, he having taken nephews and nieces for medical attention in the past.[213]IE denied M’s claim that IA had been noticeably and oddly unemotional on M’s return home after release from police custody:
‘There wasn’t a single person that day not in tears, including [IA].’
[214]IE acknowledged the sensitive position in which he finds himself, unable to believe that either his wife or his sister could have contaminated the milk, but very much aware that the latter blames the former.[215]IE agreed, ‘100%’, with the other descriptions of M’s first-class parenting.[216]Of the quality of his relationship with IA around October and November 2022, IE described IA as his ‘wifeand best friend’. He was taken to the series of text messages in which IA had quickly descended into abusive comments towards him, leading to an argument by text, when he was not picking up the fast food of her choice. This was not, he said, evidence that IA would more generally lose her temper about small things, it was just bickering.[217]IE was cross-examined in some detail about his having been prescribed Zopiclone, not having taken it, and having allowed IA to use it to assist with her sleeping. IE fell in line with his wife’s evidence suggesting that the doctor (to whom she had admitted taking her husband’s medication) had mistakenly written ‘3/12’ (i.e. three months) instead of three weeks. He denied lying to protect IA.[218]IE absolutely denied having put salt in the food canisters.[219]IE described himself as ‘an arguer’. ‘I do argue with my siblings,’ he said. It was unfortunate and somewhat unhelpful that IE carried this attitude into his performance as a witness, as well. There were many times when IE’s answers, often given in a very animated manner, moved from factual responses to being discursive and, at times, argumentative. In general, where factual, IE seemed to me to be a witness trying to be honest with the court, although at a number of points, it also seemed to me that IE’s evidence tended towards the defensive in relation both to his wife, IA, and to his sister, M.

Intervener – IA

[220]IA absolutely denied having had any part in the contamination of S’s formula, describing herself as ‘absolutely upset and shocked’ to have been accused. She had had, she thought, a good relationship with her sister-in-law. It was more than ‘civil’ (as M had described it): they had spoken about private matters; M had confided to IA about F; this had been a mutual feeling of trust.[221]IA did not accept the accuracy of the portrayal of her as being aloof and not fully integrated within the family. She had been together with IE for years, had met his sisters, and then his family, very early on, and did not consider that she was the hermit she has latterly been painted.[222]Messages between IA and IE as extracted from IA’s mobile telephone revealed a number of arguments between the two of them. These often revolved around IA’s perception of IE’s poor choices or late or lazy performance when it came to the takeaway food on which, it seems, they tended to rely. During the course of these, IA refers to IE as ‘you stupid bastard’ and similar insults, or telling him, ‘now you can fuck right off’. Having waited too long for food, then being offered ‘Jacket potato?’, IA’s immediate response was, ‘Fuck you ya’ ugly cunt’. IE often gave as good as got, with retorts like, ‘[IA] fuck you’, ‘You’re being so petty’, ‘[IA] you’re a woman not a little girl … Take a look in the mirror … You’re so petty’.[223]IA downplayed these arguments. She could be petty with her husband, she said, especially when she was feeling ‘hungry, hormonal and waiting for food’. It was quite a common occurrence, she said, that she waited a long time for her meal, only to be given something she had not wanted.[224]One exchange in particular formed the basis of a series of questions in cross-examination from Mr Kingerley KC. Immediately after IE told IA that she was ‘a woman, not a little girl’, she sent the following messages to IE: 3 December 2022 IA  IE, 23:01 If I was a women my fycjibg [sic] body would work like a women I ant a women I ain’t like anyone My stress level been too high recently I can’t be dealing with this shit My fucking periods are delayed I’m all over the place[225]IA denied having been remotely upset when M had moved back into the MGPs’ home with S. The above exchange was not indicative, she said of her trying, and failing, to conceive her own baby; she was in no way jealous of M. In fact, she said, she and IE had loved babies, loved their nephew, S, and would often take him to their room, not least to help him with his colic by ‘cycling’ his legs. IA claimed that she could barely hear S, if crying, from her room, albeit that it was just across the landing from MGM and M’s room. Due to longstanding and ongoing sleep problems, IA said that she has listened to white noise for years to help her sleep and that this blocked out all external noise, including any emanating from S being unsettled.[226]Of the incident by the sink, she said she had only intervened to make the comment about IE not knowing how to wash babies’ bottles, being at that stage, childless, in order to prevent the two sometimes quarrelsome siblings from finding an excuse to argue about nothing. She said that M had walked straight out, prompting her, IA, to ask IE she had done something wrong. IE told her that it was ‘not a big deal’, it was ‘just [M] being [M]’. IA had not, she said, noticed any change in M’s attitude towards her afterwards; nor had she behaved any differently towards M.[227]IA stood by the account that she and IE had been out of the home on the Sunday from late morning until early evening. On their return, she had hoovered, including the landing between her room and MGM’s. She had been told that S was unwell, had indicated that IE was in the bathroom and had herself alerted him to the possible need for him to take M and S to hospital. IA was pressed as to why she – a trained nurse, albeit adult rather than paediatric – had not troubled herself to seek out S, whether to check him over or simply to offer support and reassurance to M. She said that she had understood that it was no more than a temperature, that many of the other grandchildren had come down with a slight bug, and that she had not thought there was anything seriously wrong. It was put to her that this contrasted with her behaviour a week earlier, when, on hearing that M thought S had a cold, she went up to see him, felt his forehead and opined that he was fine, although suggesting that specialist advice was sought if M was concerned. Mr Kingerley KC put to IA in terms that the reason for her not having checked on S was, simply, that she knew exactly what was wrong with him: she had caused him to be poisoned. IA denied this.[228]IA had qualified as a nurse at the point of the Covid pandemic and spoke of a particularly stressful initiation to the profession, finding herself quickly thrown in at the proverbial deep-end. Though she said that she found her work highly rewarding, it is clear that it could also be a source of considerable stress for IA.[229]IA adamantly denied having adulterated the formula feed herself. She agreed with others that it was not a child, but must have been one of the adults in the family who was responsible. The impact on IA of the incident and the fact of its having remained unresolved for so long has been significant, she said, not least given that her own pregnancy and delivery of her own child took place under the shadow of police investigation and social services intervention. She had felt that she had to leave the MGPs’ home during her pregnancy, for her own peace of mind, given that, if she and her husband were not responsible, there was an adult at large who might represent a source of significant, possibly mortal, risk to an infant.[230]As to her own mental health, IA preferred not to describe ‘depression’ but rather ‘anxiety’, largely the product of ‘over-thinking’. More recently, anxiety had been linked to work, but in earlier years, it would attach itself to other issues in her life; she agreed with the description of a ‘generalised anxiety disorder’. IA, pushed on M’s behalf by Mr Kingerley KC, disputed that she had had, in 2018, ‘fleeting thoughts of suicide’, explaining instead how, during a crisis at college, she had been very upset, had thought of dropping out and may have said that she would ‘rather be dead’ than having to redo a large amount of lost work.[231]IA was robustly questioned by Mr Kingerley KC in relation to her having taken prescription drugs which had been intended and prescribed for IE rather than her. She explained this first by disagreeing that this had been for as significant as seemed to be suggested from the GP notes, and secondly by suggesting, or at least hinting, that, while not prescribed for her, as she had previously taken the same drug, this was not a particularly significant issue.[232]One aspect of IA’s evidence on which a significant period of times was expended was that which sought to explain the absence of material discovered when her telephone was forensically examined. At an early point in my case management, I had extracted promises from all of the interveners that no material on any of their mobile devices would be deleted. At the point that IA’s telephone was handed in and examined (which was quite late in the proceedings, arising out of M’s application, which was limited to IA’s telephone, alone among the interveners), there were significant gaps. In particular, there was an absence of SMS messages and other data between 1 October 2022 and 29 November 2022 and between 4 December 2022 and 11 January 2023. IA was resolute in denying having deleted anything from her browsing history or saved messages, indicating that she asked her younger brother to help with storage issues and that if, during this process, her telephone had been restored from a previously saved version, and messages lost as a result, this was neither her intention nor at her behest.[233]IA was a quietly spoken witness, although in no way retiring. She struck me as a strong personality, albeit that she chose to keep herself to herself much of the time when living in her husband’s busy family home. Various aspects of her evidence seemed defensive to the point of losing credibility, for example claiming to have virtually never been aware of the crying baby in the room very close to hers. IA had a slightly unfortunate habit of contradicting assertions put to her with which she disagreed by referring to speaking ‘my truth’, although I took that as being her way of indicating that she considered that her version of events was accurate and that being put to her false. In general, IA gave the impression of a witness observing the line between telling the truth, while denying extremely serious allegations being put to her.

The Mother

[234]M gave evidence over two days. She confirmed the truth of her statements and her interviews with the police.[235]M described R as being ‘my world, he’s my life; […] he gave meaning to my life; amazing; I’m proud of him, proud to be his mum’. S, she described as ‘another amazing child, he’s so beautiful’. M was very emotional when she described her fear that S has become more distant from her since being removed from her primary care. Given her difficulties conceiving and safely carrying a baby to term, M told me that she thought that she perhaps appreciated having a child more than an ‘average woman’.[236]M explained the decision to move to the MGPs with reference to the need to leave a mouse-infested property, to refurbish the new one, and to be somewhere where life could be suitably restful for her, in the latter stages of pregnancy and with a new baby (militating towards living with her parents and away from staying with her parents-in-law). She described S as struggling with taking milk from the start and hating seeing him uncomfortable, although this had not impacted on her in any negative way.[237]In relation to the exchange of messages with her niece ZC, and the underlying events referred to in them, M was adamant that she had not hit her niece, but that a misunderstanding had arisen out of an incident during which M simply braided ZC’s hair. Why, she was asked in chief, had she responded to ZC’s allegation of hitting her by saying that it had done ‘accidentally’? M told me, ‘While doing her hair I was pulling. I said sorry. I sort of see hitting and pulling of hair as the same thing really.’ M stood by this assertion throughout repeated questioning on the issue by others. So far as M was concerned, ZC, then an eleven-, nearly twelve-year-old girl, would also have considered an accusation such as ‘Your my Aunty but you hit me [sic]’ to have been apposite if trying to describe the said ‘aunty’ accidentally pulling hair too tightly when braiding.[238]Recounting the incident by the kitchen sink, M’s account was that IA had been ‘quite snappy’, speaking with clearly changed tone, when she stood up for IE’s inexperienced bottle-washing. M claimed in her oral evidence that she told IA then and there, ‘You don’t have to be rude.’ (This was not mentioned describing the same incident in her sixth statement: ‘I responded by saying that yes, he will have to learn in the future, and she made some remark which I can’t recall.’) M was clear that she felt that IA had given her ‘the cold shoulder’ after this incident.[239]As to M’s argument with IE, M, alone among the eye-witnesses, describes IA having gone upstairs and having spoken to IE immediately before he confronted M. (‘She’s gone back down. As soon as she went, he’s come out of his room, and he’s questioned if [MGM] has invited [ZG]’)[240]M accepts that S’s feed was not contaminated in the process of manufacture, distribution and retail, or in the hospital. Asked if she had put salt in the formula, she said, ‘I absolutely didn’t. I would rather God took my life away if that thought came into my mind. I would never, ever do that, hand on heart.’ Asked who is the most likely perpetrator, she replied, ‘This is hard,’ paused for a while, and then said, ‘[IA]’. Questioned by Mr Rowley KC as to what had caused her to conclude that IA was the culprit, she said that it was not so much the contemporaneous incidents she recounts which raised suspicion as the reading of IA’s statements, which, she said, contained important lies. For example, IA describes seeing the scoop for the formula being left outside the tin whereas M claims that this was never so. Pressed as to what she thought might have been IA’s motive for poisoning S, M’s only ‘guess’ was that, being someone who had difficulty sleeping and who was sensitive to sound, IA had grown tired of M and S staying at the home and disturbing her peace and sleep, and so had put salt in the formula as a means somehow of causing them to leave the house. M conceded that, there being two distinct, and separately kept, tins which had been contaminated, this was most likely to have been a deliberate act, and was very unlikely to have been undertaken by one of the children of the family.[241]M was questioned at some length about her relationship with F. She agreed that it had, in the past, been volatile. As set out above, it was during cross-examination that M claimed, for the very first time throughout the whole process of police investigation and these Part IV proceedings, that she and F had never actually split up, that she had discussed this with professionals, and that she had feigned separation in order to avoid unwelcome attention. She agreed that he had kicked her in the past. She denied that he had hit or punched her, explaining having said this to professionals in the past with reference to her purported understanding that ‘I would say kicking and hitting is the same thing’. Asked why, as she now agreed that – as she had stated at the time – F had been aggressive and violent towards her, she had told the independent social worker there had never been any aggression of violence, she claimed, ‘I must have got confused about the time she was talking about.’ This was not the only instance in which she sought to explain away what looked on its face to be minimisation or false denials to the ISW and the police by claiming error on her own or the ISW’s part. Eventually she admitted having lied to the police on this topic, her reason having been, she said, ‘I didn’t want them to think he [F] was the same person; ’cos he’s changed over the years; I don’t want his past to define him – maybe that’s why.’[242]As to the period leading up to S’s admission to hospital, M agreed that it had been ‘hard’ for her, living apart from R, who had, until his temporary living with F and his paternal grandparents from the point of S’s birth, slept at M’s side. Indeed, ‘Since [R] was discharged from hospital, we had never spent a night apart.’ The ‘couple of weeks’ of their intended separation had been extended due to their new home not being ready, and M described anxiety and ‘missing him’. Her crying all night (as she had described to ZC in their messages) were in part due to missing R, as well as her anxiety about the difficulties with finding a suitable formula feed for S, and ‘seeing my baby upset, upset me’. However, when it was put to her that she was ‘stressed and unhappy’ during this period, M denied this, claiming it was an ‘unfair’ description, that she was in fact feeling proud of herself and buoyed up by having carried her baby to term.[243]As to the abusive messages which passed between the parents, and principally from M to F, during the weekend of 26 to 27 November, M agreed that she had never before sent such sustained and such abusive messages to F, but denied that there was any nexus to be found between the most extreme behaviour she had displayed to him at any point in their relationship, and this having taken place the very day before her son was poisoned. M disagreed with the notion, put to her by Mr Rowley KC, that, after that evening and night of messages, the status of her relationship with F was ‘in an uncertain state at best’. She accepted, ‘I was angry; I was winding him up; I gave him that abuse. It was months of him working on the house and not finishing it off.’ As to her messages like, ‘I regret every second of getting married to you,’ and, ‘I would rather be single,’ M claimed that this was all said in anger but not really meant by her. She stated, having been taken through the messages, that she was ashamed of them and the language she had used; she agreed that the messages were about as vituperative as they could have been; she said that, although there had been angry exchanges before, this had been the worst.[244]Mr Rowley KC put to M the following exchange from her police interview, which had taken place on 29 November 2022, just a very few days after the exchange of messages: DC:Truthfully, what is the relationship like between you and [F] then? M:It’s amazing. It’s like, what, how every couple is, you know. We’re happy, we’ve got our children, and it’s a good relationship. He’s a good dad.’[245]M denied that this had been a less than truthful answer. Asked why, in her first three statements in these proceedings, this exchange of messages was not even mentioned, even when the events of that night (for example the exact times and nature of the feeds given to S) were dealt with in some detail, M said that the messages had not meant anything. There had been anger on her side, she said, which F had chosen to ignore, and which, she claimed, he had shrugged off when he saw her the next day, telling her, laughing, ‘You were on one with those messages.’ M denied there had been any atmosphere between them when F arrived that afternoon, no recriminations or cross words exchanged, notwithstanding that she had been throwing at him the foulest of insults a few hours earlier. She had responded to his laughing comment with a shrug, and, on her account, the incident seems to have been at an end.[246]M told me that she had not been worried about S at the point that F had arrived at about 2.30 pm on Sunday 27th. It had not been until she had attempted to feed S at 3 pm, after F had left, that she had encountered a problem with his feeding. Given that she had never given an account of having struggled to feed S at his noon feed, she could not explain why F should have said in his statements that M was upset when he had arrived, that he was not taking his feed. Equally, as her account has been that she had not noticed what she thought to be a sunken fontanelle until the early evening, she could not explain why she would have brought this to F’s attention much earlier, although she said, ‘If he says I did, I did.’ F had claimed in his statement, ‘She was so upset [about S], I said to arrange a GP appointment to ease her mind.’ M said that she had no recollection of this having been said and that she could not recall having had any concern which would have required the easing of her mind.[247]M exchanged a few messages with her sister during the late afternoon of 27 November, between 5.37 pm and about 6 pm. Asked why she had not mentioned S’s having been behaving oddly, M said that she had genuinely thought that he simply had a virus. (I note that this is at odds with F’s account, if accurate, of M having been worried and upset about S earlier in the afternoon.)[248]M was asked about various aspects of her time at hospital with S. When Dr B had told M that the milk had been tasted and appeared to be too salty, M is reported as seeing that she had been ‘suspicious that there was something wrong with the milk,’ and that she was happy for the hospital to start using a different formula for S’s nasogastric feeding. She explained this with reference to S’s having always displayed a ‘fussiness’ – ‘I’ve had trouble with his milks from the start.’ M was not able to recall why or when she had specifically thought that there was ‘something wrong with the milk’.[249]As to her conversation with the social worker, M disagreed with much of the account presented by SW. She did not agree that she had given the impression that she and F were separated in any other way than temporarily living apart for logistical reasons, she denied having spoken to SW of her earlier relationship troubles and could not recall having told SW that just before R had become ill in 2017, she and F had been struggling in their relationship. SW reported M as having said that when R had become ill, this had brought M and F closer as a family; M partially agreed with this. While M agreed that she had told SW that she felt ‘as though history [was] repeating itself,’ she absolutely denied having said that she and F were not currently in a relationship or that, as SW put it, ‘[M] felt that now [S] was poorly, they would resume their relationship like they did before with [R] and be stronger as a couple again’. M vehemently denied Mr Rowley’s suggestion that what she is said to have reported to SW represented a motive to have made S ill in the first place: ‘That’s a disgusting suggestion to make,’ she said.[250]M admitted having deleted some of her mobile telephone internet browsing history. This included, she suggested, her having sought guidance as to the significance of a baby having a sunken fontanelle. The reason for her having deleted her history, she said, was to remove from a handset without a PIN to lock it other searches relating to sensitive gynaecological issues (emanating from the difficult birth). She could not explain why, in circumstances in which she was with in hospital with her acutely unwell baby, she would have thought to delete her history of personal medical searches. Various devices had been forensically examined, including M’s handset. The company undertaking the examination, Evidence Matters, indicated that, with M’s Google account sign-in details, there would be a chance of retrieving more information including, possibly, deleted searches. M denied ever having had a Google account, despite there being evidence of her having used the Google Play Store which, the evidence suggested, required the user to have an account with Google.[251]For the CG, Ms McCallum asked M about her relationship with F: the fact that what was supposed to be a couple of weeks of living apart from F and R was, by 27 November, nearly eight weeks; and that M was seeing F for only twenty minutes or so, twice per week, when R was dropped off and collected. M agreed that she was frustrated, but denied feeling as though she was no longer in a relationship with F. Writing him the message saying, ‘You leave your phone behind you leave your keys behind you leave everything behind just like you’ve left us,’ was, she said, born of frustration not desperation or despair.[252]M was a difficult witness to assess. Much of her evidence, self-evidently, was honest and accurate, and she recounted aspects of her past, in particular the trials she faced with miscarriages, R’s extremely premature birth, and the removal of both of her children from her care, with appropriate and palpable distress. However, other aspects of her evidence were very much less than satisfactory. For example, her assertions in relation to the episode with ZC and in particular her dogged insistence that this eleven-year-old would regard ‘hitting’ and ‘hair-pulling’ as synonymous, seemed very obviously untrue. A further example lay in her refusal to accept large parts of the account attributed to her at hospital by SW, and her attempt to explain away an important discrepancy by asserting confusion on SW’s part between the concepts of a couple ‘living separately’ and being ‘separated’. Equally, it is clear that at various points she lied to the police and others, and then lied to me in denying having done so. The side of her demonstrated by the extremely abusive tirade of insulting messages to her husband is perhaps consistent with her family’s description of her as having a certain bluntness to her, operating a ‘no filter’ approach to what she said, in particular to family members. There are clearly more layers to her than this, however, demonstrated, for example, by the fact that no-one, not even her mother who shared a room with her throughout it, was aware of even the iceberg-tip of the exchange of messages or the underlying mood and emotions which must have underlain it, whether at the time or during the Sunday morning and afternoon which followed.

The Father

[253]F largely accepted his abusive behaviour earlier in his marriage to M. He ‘wasn’t a good person at the time,’ he conceded. He had ‘traditional’ views, and this led to him seeking to exert control over M to ensure she conformed with his expectations. F was evasive when Mr Rowley sought to pin him down on the question of whether or not he and M had separated in 2017. I asked him some questions about this and ended up none the wiser. (I note that his evidence was given after M’s, and that she had given some unexpected evidence on this topic.). His evidence did align with M’s on the question of whether they had in fact been living together at a time when M had repeatedly told professionals that they were apart, although he said that he had not been contemporaneously aware of her lying to those health visitors and others.[254]F described how the task of making his brother’s house, which he and M were to rent, habitable, had proved more substantial than he had at first thought. The property had been damaged by previous occupants, there was a fair amount of work to be done, and he had had problems with plumbers and other sub-contractors. Adding to the time it was taking was the fact that he was working long hours at the restaurant.[255]That said, F downplayed, somewhat unconvincingly, the extent to which M communicated to him that this was a problem for her: it was something she would bring up, he said, but not particularly often. F also said that he had not been particularly bothered by the onslaught of abusive messages from M during the night of 26/27 November. ‘She’s done this on numerous occasions,’ he said, ‘she’s just merely trying to get a reaction out of me.’ F said that M would relatively often threaten to end the marriage during a disagreement:
‘It was basically her way of getting round me.’
[256]F could not satisfactorily explain why the incident overnight, and his brief acknowledgment of it the following morning, were missing from his account of the relevant parts of the chronology in his statements in these proceedings. M’s threat not to pay (from her benefits) the rent to F, for forwarding to his family (who owned the property), had led to F threatening in return to have her name removed from the tenancy, thereby preventing her from claiming for it in the first place. He was not clear as to whether he would have proceeded with his threat, as M backed down during the night and made the payment.[257]When F went round on 27 November, to pick up R for the week ahead, F said that he had laughed, on seeing M, and told her that she ‘[had been] on one’ the night before. He thinks M simply rolled her eyes and walked away. He described no awkwardness or bad atmosphere. The two of them, he said, sat and talked, while M was getting R ready to leave with his father. F confirmed his written evidence that M had pointed out on S a slightly sunken fontanelle. F had picked S up. He thought his head was slightly sunken, but that S seemed to him ‘fine, good, happy, attentive at the same time; he was awake’. This seemed inconsistent with his account in his statement of M’s being so worried about S at this point.[258]At 19:11 hrs, M texted F simply, ‘Hello’. He replied the following minute, ‘Yes?’ and ‘Why did u message me’. There then seems to be no communication between the two of them until the exchange set out above between 21:34 and 22:01 hrs (F: ‘How are you’; M: ‘I’m at hospital’; F: ‘Why’; ‘??’; ‘Liar’; M: ‘With baby’; ‘Not lying’). F denied that the earlier of these exchanges suggested an ongoing problem between M and him. The 111 call having been timed at 7.55 pm, and the paramedics arrival at 8.17 pm, it is not clear to me from either M’s or F’s evidence why M did not message or try to call F either in the build-up to making the call (i.e. when MGM was finding out from IA and IE whether a lift to the hospital was possible), between the call being made and the paramedics arriving, or at the point of being told that S was to be taken to hospital. F did not seem to think this odd.[259]F confirmed in his evidence that he accepted that the salt had not come from manufacturing error, but that someone had deliberately put it into the tins of feed. He did not believe that a child had been responsible. Nor did he believe that his wife had done so. He had seen and heard nothing before or since, he said, which might make him concerned that she might have been responsible. Moreover, he had seen the lengths to which she had gone in order to ensure S was delivered safely, healthily and at term. After all of that, it made no sense to him that she might hurt her baby.[260]F presented as a mild-mannered witness, whose love and concern for his sons was apparent. While he claimed to want to know what had happened and who was responsible, he seemed to lack any genuine sense of curiosity. His absolute insistence that M cannot possibly have been responsible, while perhaps born of a loyalty to his wife, seemed an odd stance to take, in light of the totality of the evidence. At points he was clearly evasive, for example, when pressed to describe the true state of his relationship with M around and in the period following R’s birth. At other points, there was a real sense that he was minimising incidents, in particular the exchange between M and him during the night of 26 November and his reaction to having been so comprehensively traduced, insulted and emasculated in his wife’s repeated messages. Even allowing for personal growth since the period when he was, on his own admission, too ‘controlling’ of his wife, due to adopting a ‘traditional’ view of spousal roles in marriage, it was hard to accept that F would simply have shrugged off all that was said to him during the exchange. The parties’ and interveners’ positions and submissions[261]As set out above, the closing written submissions for the five represented parties and intervener totalled more than 150 pages. The below represents no more than the briefest summary of all I have read and carefully considered.

The local authority’s closing submissions

[262]At the close of the evidence, the LA presented a revised position to the court. Mr Rowley KC explained that, having reflected on the evidence, the LA asserted that it could be established on the balance of probabilities that M alone was the perpetrator of the contamination of the two containers feed and that the LA sought a finding accordingly; it followed, of course, that, if the court acceded to this contention, there could be no finding of reasonably likely perpetration against any of the interveners.[263]The LA pointed to the fact that M had means, motive and opportunity, and to ‘a constellation of features’, not present for any other perpetrator, including:a. the history of the ‘volatile and dysfunctional’ relationship between M and F; the dishonesty of both with police about this; the dishonesty of both (if they are now telling the truth) to professionals at the time in relation to their faked separation;b. the very limited periods of time M and F spent together during October and November 2022, coupled with the ‘exceptional pitch’ reached by M in their messages on 26 – 27 November;c. M’s description to SW of a current ‘separation’ and her hope that S’s being ill might bring them to a resumption of their relationship; this having been communicated to others, for example, Dr F; this, said the LA, was the ‘one piece of evidence [which] is key to M’s motivation, which is why she must deny it’;d. the incompatibility of M’s fever pitch frustration (and the ignorance of several members of the family of an imminent move out of MGM’s house) with the parents’ current assertion that the move into their new home was planned for but a day or so after the weekend of 26 – 27 November;e. the added pressure on M inherent in her enforced separation from R, her fears that he was not eating properly.[264]The LA rely on the episode between M and ZC as demonstrating that M was struggling with S and had been crying all night, was capable of losing control with and hurting a child and had threatened ZC to cover this up. The current family account, of accidental pain being caused during hair-braiding, is, the LA says, an example of ‘the family hav[ing] revised the history of this encounter, with even ZC’s own mother being prepared to disown her daughter’s account’. The LA says that M’s lying in relation to this is born of a motivation first to deny clearly unacceptable behaviour, but secondly, to distance herself from ‘the real difficulties she was having at the time’.[265]The LA pointed to the fact that M was overwhelmingly S’s primary carer, in particular taking full responsibility for the preparation and delivery of feeds. The feed containers were largely in her possession, and it was two of them, in different places, which were contaminated. In those circumstances, ‘the possibility of others having the opportunity to adulterate the feed pales when considering that of M’.[266]Of the barrage of abusive messages, Messrs. Rowley and Saunders point to(a) the content of these demonstrating M’s state of mind, and(b) their timing having inevitably impacted on M’s sleep pattern that night. The LA asserts the likelihood that both parents have dishonestly downplayed their first contact thereafter, when F attended the home to pick up R in the early afternoon; alternatively, if F had laughed of the entire incident (and so M’s underlying deep frustrations), she would have inevitably become more exasperated with F and with her own predicament.[267]The LA does not accept M’s explanation for having deleted her internet browsing history, and invite the court to draw an adverse inference from this and her lies about it, asserting that ‘it is difficult to believe that this was done for any […] reason other than to hide the searches undertaken on the phone as they were likely to be incriminating of M and what happened to [S]’. The LA further invites adverse inference in relation to M’s denial of having a Google account, when Evidence Matters have provided expert advice that ‘The […] handset […] would not have been used with the Google Play store without a Google account. There is evidence within the report of the user downloading using the Google Play store.’[268]Dealing with the evidence, from many quarters, of M’s many fine qualities as a parent and devoted mother, the LA points to current state of research and knowledge in relation to the motivations of those who perpetrate ‘Fabricated or Induced Illness in Children’, and to the RCPCH guidance that the perpetrator may not be conscious of the motivations behind their behaviour, although these are commonly of ‘the parent experiencing a gain from the treatment of their child as unwell’. The LA points to M’s hope (as it asserts the evidence to establish) that S’s being ill would bring F and her back together and closer as being just such a ‘gain’, as had happened when R had been unwell a few years before.[269]The LA urged caution when approaching M’s assertion that it is IA who is responsible for the poisoning. Messrs. Rowley and Saunders note that M’s initial position was that the only persons in the home who could have been responsible were IA and ID, and that only very shortly before the initial listing of the fact-finding hearing did her position crystalize as solely blaming IA. The LA linked this with a period when ‘the net had tightened around M’, as the evidence was by then strongly pointing away from either external contamination or a child having been responsible. The two incidents which seem to form the basis of M’s accusation against IA, the LA characterises as ‘minor’, the sink conversation having been ‘trivial’, and argument between M and IE, the LA points out was neither caused by nor did it directly involve IA. The LA considered IA’s not having looked in on S between being told on 27 November he was unwell and his being taken to hospital with paramedics explicable by reference to the short amount of time involved, the absence of any sense of panic or emergency and, at worst, ‘a lack of thoughtfulness’ rather than guilty knowledge causing IA to avoid the baby she knew she had poisoned. The tone and content of the angry messages between IA and IE take the case against no further, the LA argues, suggesting that the contamination of the canisters with salt was the consequence of ‘deliberate and calculated effort’, not ‘the instant result of a flare-up of temper’.[270]Messrs. Rowley and Saunders concede that the absence of messages on IA’s mobile devices for the relevant periods is ‘undoubtedly an issue’, and that the court may feel that the evidence of IA (and IE) was ‘wanting in credibility’ on this issue. However, absent obvious opportunity (given the evidence of IA and IE of their movements that Sunday) or motive, and in comparison with the evidence against M, the LA does not consider that any significant weight should be attributed to this particular oddity in the evidence.[271]Of the other interveners, the LA said this in its closing submissions:
‘None of the other interveners have any identified motive for harming [S]: a. The suggestion that IE might harm [S] in the aftermath of the argument on 19/11/22 is arguably stronger than that made against his wife, given the manner of his response to his sister. However, he describes such blow-ups as being the warp and weft of sibling relationships, and the court might give credence to that observation. Otherwise, he clearly has been a loyal and loving brother and uncle. As we have observed, he appears not to have had an opportunity to adulterate the feed after 1200 noon; b. IB appears not to have been in the house at the relevant time and even if he was, he was in bed before [S] had feeds which he took without difficulty. He cannot have contaminated the feed; c. IC is also in a caring profession; he is clearly a sensitive soul who has been deeply affected by what has happened to his family. There is no hint of any reason why he might poison his nephew; d. IF was clearly disconnected from things to do with babies, and seemingly from the kitchen. He had a good relationship with M; e. MGM is wholly oriented towards her family. there is no rational basis for concluding that she would wish to poison her grandson; f. ID seems to have a decent relationship with M; though she was clearly suffering to some degree with feelings of homesickness and low mood proximate to the weekend in question, it is difficult to conclude that any form of benefit would accrue to her by making [S] unwell.’

The mother’s closing submissions

[272]Mr Kingerley KC and Ms Lennon submitted on M’s behalf that she denies having poisoned S, and they asserted ‘a positive case against [IA] which amounts to a reasonable explanation and which, therefore, must be disproved by the local authority and/or any other party which seeks to assert that the mother is the perpetrator’. It was contended that it is ‘inherently unlikely’ that M is responsible, whether as a single, identified perpetrator or, if this is not possible in relation to any single person, within the context of a ‘pool finding’.[273]I was cautioned on M’s behalf against setting too much store on Dr Coulthard’s evidence in relation to timing, given the limitations in the assumptions (which I set out in detail above). As to Dr Coulthard’s evidence as to babies demonstrating repulsion to salt-contaminated feed, Mr Kingerley reminded me of the feed at the hospital, from the same canister (RW/3), the description of the administration of which does not include S being repulsed (although I note that an experienced nurse was unable to persuade S to take more than 1 fl oz). Depending on the actual concentration of the contaminated feeds given, and bearing in mind an infant’s capacity to process and to excrete excess salt in the blood, the adulterated formula could have been in circulation for as long as 48 hours, Mr Kingerley pointed out, thus extending the window of time in which to look for those with genuine opportunity.[274]M’s case against IA was ordered by Mr Kingerley as comprising the following seven categories:a. mental health: anxiety and sleep disorder;b. ‘increased difficulties’ with a new-born (i.e. S) in the home;c. IA’s personality;d. ‘a change in attitude’ towards M and S;e. opportunity;f. mobile ’phone records; andg. ‘lies and their relevance’.[275]Points (a) and (b) are linked. IA had suffered with anxiety for a prolonged period, with medication repeatedly prescribed. This, coupled with a sleep disorder, led to IA having only one or two hours sleep each night. M did not accept that, during nights when he was volubly unsettled, IA could have been unaware of or undisturbed by the noise that his crying made. IA’s personality, Mr Kingerley asserted, was demonstrated by her unpleasant and angry texts to her husband, over something as trivial as his choice of takeaway food for them. Added to the two specific incidents as creating animus in IA against M, could be the likelihood that IA was jealous both of the attention that the M received on her arrival, with S, at the house, and jealousy born of what Mr Kingerley contended was IA’s desire to become pregnant herself, thwarted by difficulties in conceiving (again, as asserted by M, but not accepted by IA).[276]It was conceded in the submissions on M’s behalf that the ‘sink incident’ had contemporaneously been ‘of very little importance to the mother’, but it was highlighted by her as having marked the beginning of the period during which she asserts that she received IA’s ‘cold shoulder’. IA’s comment to M, to the effect that IE could not be expected to know how to wash a baby’s bottle given that he was not yet a father, should be interpreted, Mr Kingerley asserts, through the prism of the dissatisfaction he attributes to IA at her inability to conceive, and so to convert IE into the father of her baby she longed him to be. Of the argument between IE and M, it is asserted not that IA had necessarily been the instigator, intentionally sowing seeds of discord within her husband’s family, but that she could scarcely have ended up unaware of the strength of IE’s feelings and his frustrations towards M. M ‘point[s] to these events as indicative of a change of attitude towards both her and [S] which was apparent thereafter’.[277]That change of attitude towards S was evidenced, Mr Kingerley asserted, in her response, or lack of one, on learning that he was unwell on 27 November 2022. Not entirely consistent with this assertion, it was also asserted on M’s behalf that the most likely reason for IA having been ‘unconcerned and unsurprised’ by being told of S’s illness was that ‘she was aware that he had been poisoned because she is responsible for adulterating his milk’.[278]Mr Kingerley pointed to the fact that IA and IE alone spoke of having repeatedly seen the formula tin in the kitchen, and of having on occasion seen the scoop outside the tin. While M challenges IA’s evidence that she could have seen the canisters left out on the kitchen surface at night-time, as she, M, would always take the open tin upstairs with her, M asserts that IA had, largely on her own admission, opportunity to have contaminated the tins.[279]IA and IE’s account of being out of the house for Sunday brunch and shopping on 27 November is challenged by M, as being self-serving and not corroborated, and it was pointed out that the kebab shop they said they visited (or ‘would have’) is not open on Sundays.[280]Mr Kingerley and Ms Lennon identified six ‘deliberate lies’, on which they rely as indicative of IA’s ‘guilt’ (c.f. R v Lucas; Re A, B and C (Children)supra.). These are:a. IA’s movements on 27 November 2022;b. IA’s access to the canisters of feed and acceptance of having touched the same;c. IA’s apparent disinterest in S on the evening of 27 November;d. IA’s efforts to minimise the impact of her mental health on her day-to-day life and the seriousness of the same;e. IA’s efforts to minimise the extent of her self-medication (with her husband’s prescribed medication); andf. IA’s efforts to minimise the impact of a new-born baby living in the next room, given her already highly problematic sleep disorder.[281]Of M, and the inherent unlikelihood of her having poisoned S, Mr Kingerley pointed to the combination, when surveying the ‘wide canvas’ of(a) M’s desire to have children (and the huge efforts and struggle in conceiving and safely being delivered of S), and(b) the descriptions of her qua mother from all family and others, including her parenting before the removal from her of her children and the quality of her interactions with them during contact sessions afterwards. I am also pointed to the absence of ‘red flags’ in her history or contemporaneous functioning or presentation.[282]I am directed, on her behalf, to many consistencies in M’s evidence as it has emerged. The LA’s case, insofar as it relies on M’s desire to reconcile with a husband (from whom she denies having been in any meaningful way estranged) and frustration at not being in her new house quickly enough, is asserted by M to be flimsy at best, not least when the text messages are consigned to a place of relative insignificance which a fair assessment of their context requires.[283]As to other inconsistencies in the LA’s case, Mr Kingerley and Ms Lennon ask me to consider why M, if the perpetrator, would have taken a knowingly contaminated canister into hospital, risking detection, and why she would have allowed S to be further fed from it, she having achieved what the LA says to have been her goal, of attracting her husband’s full attention by virtue of a shared, sick baby.

Submissions on behalf of father

[284]The final position adopted by F was:a. that the only two persons in relation to whom it could be said that there was a ‘real possibility’ of having perpetrated the poisoning are M and IA;b. that the court should consider whether the evidence against IA could support a ‘sole perpetrator’ finding against her; andc. that, in any event, the evidence court cannot positively identify M as the probable perpetrator.[285]In seeking to debunk the LA’s case against M, Messrs. Sampson KC and Garner cautioned me against speculation, and characterised the LA’s ‘case theory’ as amounting to little more than just that.[286]The arguments raised against the likelihood of M being the perpetrator and supporting the proposition that IA was solely responsible largely reflected those contended on M’s behalf.[287]Mr Sampson pointed to what he termed as ‘the illogicality of the notion that M would poison [S]’s milk in the manner that the scientific evidence makes clear occurred’, namely two canisters being contaminated, M quickly seeking a home remedy (the Colief) when S first seemed unwell, one canister being taken to hospital, so increasing the chance of the poisoning being revealed there, and her leaving the second tin, near-empty but contaminated, in the home also ripe for discovery. All this pointed, it was argued, to a far greater likelihood that ‘another person contaminated both canisters, not knowing which of the two would be used for [S]’s feed’.[288]Of the various inconsistencies between the parents’ accounts, for example, as to what F was told when he visited the home seemingly before the final and problematic feed, ‘may compellingly point […] to the integrity and honesty of the accounts’.[289]Mr Sampson KC invited me carefully to consider IA’s evidence in relation to the tranche of data missing from her ’phone handsets, and whether adverse inferences should be drawn, directing my attention to what was said to be an account from IA bearing ‘significant similarities’ to that asserted by Ms Vardy and referred to by Steyn J in Vardy v Rooney [2022] EWHC 2017(QB), [2023] EMLR 1:
‘[69] The incident in which Ms Watt’s phone is said to have been lost at sea occurred in August 2021. On 4 August 2021, the CCMC had taken place at which an order requiring her device to be inspected had been made. The timing is striking. In my judgment, even taking this evidence on its own, the likelihood that the loss Ms Watt describes was accidental is slim. [70] The reasons that Ms Vardy and Ms Watt have given for the original WhatsApp chat being unavailable are each improbable. But the improbability of the losses occurring in the way they describe is heightened by the fact that it took the combination of these improbable events for the evidence to be unavailable: cf. The Atlantik Confidence [2016] EWHC 2412 (Admlty), Teare J, [296]-[297]. In my judgment, it is likely that Ms Vardy deliberately deleted her WhatsApp chat with Ms Watt, and that Ms Watt deliberately dropped her phone in the sea. I recognise that Ms Vardy has disclosed messages that are detrimental to her case. But I am not persuaded that the imperfection of the effort to remove incriminating evidence shows that there was no such attempt, particularly given that Ms Vardy is unlikely to have anticipated in October 2019 that evidence about, for example, Mr Drinkwater, would have to be disclosed. [71] If a ‘wrongdoer’ has ‘parted with relevant evidence’, the court may draw adverse inferences: Armory v Delamirie 93 E.R. 664; Gulati v MGN Ltd [2017] Q.B. 149, [107]; Blackledge v Person(s) Unknown [2021] EWHC 1994 (QB), [41] and Dudley v Phillips [2022] EWHC 930 (QB), [25]. I address below, in the context of my review of the evidence, the inferences I consider it proper to draw in the absence of this potentially significant evidence.’

Submissions on behalf of IA

[290]On behalf of IA, Mr Andani’s submissions traversed largely the same ground as the LA’s, both in his presentation of evidence militating both away from IA having been the perpetrator and towards M being responsible.[291]Mr Andani emphasised how fleeting would have been IA’s opportunity to contaminate the two canisters, in comparison with M’s virtually constant opportunity to have done so.[292]Mr Andani contended that M could be positively identified as the probable perpetrator, at which point any further consideration of the ‘real possibility’ of others being responsible fell away.

Submissions on behalf of Guardian

[293]Miss McCallum and Miss Whitehouse in and with their closing submissions helpfully summarised various aspects of the evidence, including providing a ‘Schedule of Formula Testing’ (setting out all of the results of the forensic scientific testing of the various tins, samples and bottles) and a cross-referenced Timeline of the 26 – 27 November, drawing together the different strands and sources of evidence.[294]The CG’s submissions also set out lists of factors suggesting that in respect of each of the interveners, MGM, IF, IB, ID, IC and IE, there was no ‘real possibility’ of their having been responsible for the contamination. Focussing, then, on M and IA, the CG, having reviewed the evidence, reached the same conclusion as the LA: that M could and should be positively identified as the single probably perpetrator.[295]Supporting that notion, Miss McCallum identified a list of 23 factors, taken from the evidence, which I shall not repeat in this judgment.[296]Miss McCallum also identified various factors which might fairly be said to militate against M as the perpetrator, including:a. her obvious love for her children; to be viewed in the context of her difficult history of miscarriages and R’s premature birth and corollary health problems;b. there being no evidence of M having induced any illness in R;c. there being no evidence of the inappropriate seeking of medical attention in the past;d. M’s having taken the contaminated tub of feed to hospital with her, a reckless act if she knew it to be adulterated with salt;e. M’s having asked her brother, IC, to obtain nasal drops on Sunday 27 November, perhaps an unlikely request if she had known that S’s problems were attributable to salt-poisoning.[297]Miss McCallum set out similar lists of factors suggestive of IA being the perpetrator, and those militating against that proposition.[298]The CG’s conclusion was that M could be positively identified as the probable perpetrator. While the CG thought it unlikely that M had harboured any intention to cause fatal harm to S, she considered that M’s desperation to bring F into line as a husband and a father, coupled with her experience of R’s illness years before having realized this end, drove her deliberately to contaminate S’s feed. In contrast, the CG suggested that she could identify no motive or explanation for IA to have behaved in this way, and saw limited if any opportunity for IA to have contaminated two containers of feed without detection.

The interveners’ closing position

[299]One by one, MGM, and then IC and IF sent in brief written closing submissions. The witness, ZB, also purported to do so, although she recognised that she probably had no legal right to do so.[300]IC’s submission sets out the process by which members of the family seem to have reached a consensus view:
‘We, as a family at home, have discussed this after the sitting in court and collectively decided that [IA] has not been truthful in her answers and I myself feel that she has something to do with the poisoning.’
[301]Each of MGM, IC, IF and ZB set out various reasons for concluding that IA is the perpetrator of the poisoning. The factors set out include assertions:a. that IA rarely mixed with other family members, she kept herself to herself and was rarely in the kitchen (although MGM thought her more likely to be the perpetrator precisely as she ‘always chose to go in kitchen when nobody else was there’);b. that – particularly in light of (a) – IA’s assertion that she tidied up after M and put the milk canister away was unlikely to be true;c. that her deleting of her messages was suspicious, and her suggestion that she had asked her younger brother to perform a ’phone update was unlikely given that IE, her husband, is more than sufficiently technologically aware to have helped her;d. that her account of what she was doing on Sunday 27 November cannot be true, as the kebab shop at which she claimed to have eaten with IE was not open on Sundays;e. that she has acted suspiciously since the incident, being ‘on edge’ and ‘panicky’ (per ZB) and very nervous of providing her fingerprints to the police (per MGM); andf. according to MGM, IA’s mother and sister have described to MGM actions after the poisoning came to light suggesting unease.[302]To the extent that these various ‘submissions’ contained evidential assertions, these were largely, possibly exclusively, not matters to which the various interveners and witness had adverted to in their statements or oral evidence. Discussion[303]There has been a huge amount of evidence in this case, written and oral. It has been a highly unusual feature of the trial that there have been seven interveners, all, until the dying moments of the proceedings, potentially facing very serious findings of child abuse. Counting the interveners, the parents and the family witnesses, there have been eleven persons giving evidence, from their various different perspectives in relation to the relevant events, dynamics and personalities.[304]This case involves a single instance of very significant harm being caused to a small baby. Somehow, significant quantities of table salt were introduced to two separate tins of that baby’s formula feed. The consequences were extremely serious; and they could very easily have been fatal. During the course of the evidence gathering, the following potential causes of the contamination have been excluded, whether as a matter of science, necessary inference or common sense: - manufacturing error, - contamination in the distribution and retail process, - a mischievous or badly-behaved child of the family, - an unknown third party covertly entering the family home and poisoning the milk. All of the parties, and most of the interveners, accept that, in light of these causes having been excluded, the only possibility remaining is that an adult family member deliberately introduced table salt into the two tins. None of the adults potentially involved has claimed not to have been anything other than fully aware of the dangers of feeding a baby excess salt.[305]Of course, in abstract, it is extremely unlikely that an adult family member should deliberately poison a baby, especially in a decent, law-abiding, loving and supportive extended family as this one seems to be. However, this is exactly what has happened. (That is to say, with reference to Baroness Hale’s ‘famous example of the animal seen in Regent’s Park’ (Re B Children) [2008] UKHL 35, [2009] 1 AC 11, there is no debate as to whether it is the more likely dog or the less likely lion seen on the greensward or outside the big cats’ enclosure; the improbable has already happened.) Immediately, then, it can be seen that the court is looking to see if it can identify which person is the probable perpetrator, or which persons are reasonably likely to have been the perpetrators, of an act which is, in the normal course of things, and by any objective standard, highly unusual. There is nothing in the backgrounds of any of the adults to suggest any sort of predisposition to act in such a way. Nor is there any direct evidence positively pointing to any particular individual: no-one was discovered to have covertly and inexplicably purchased table salt, no-one was seen suspiciously tampering with canisters or lingering for no reason in the kitchen, no-one has expressed any serious animus against babies in general, or made threats against S in particular, and no-one has made any sort of admission. The court has only circumstantial evidence, albeit a great deal thereof. And the test I must consider, simple to express, if difficult to apply, is whether I can say, in relation to any individual person, that they are more likely than not to have been the perpetrator of the contamination.[306]It is convenient to consider at the outset, various factual matters and disputes which have arisen during the course of the evidence.

The relationship between F and M

[307]It is undoubtedly the case that the relationship between M and F faced significant difficulties early on. These went far further than those which might be expected in some arranged marriages when the new spouses barely know each other (as was suggested to be the case by various of the family witnesses). On any view, and by the admission of both M and F, the marriage included a number of instances of physical violence visited on F by M. It also involved a degree of controlling behaviour, F finding it difficult not to insist on what he now characterises as ‘traditional’ standards.[308]This behaviour was demonstrated by an ugly incident at hospital when the premature R was still an inpatient. Professionals were rightly concerned and, aside from the witnessed threats of violence in hospital, M described a number of instances of physical violence, including hitting and kicking; there had also been other threats of violence and controlling behaviour.[309]Whether, and if so, for how long, the couple truly separated, it is now difficult to say. The contemporaneous accounts given by M to professionals suggested that she had split from F, and that she maintained this for about two years. Those accounts were supported by reports of poor behaviour on F’s part, historic and ongoing, which were entirely consistent with M’s professed state of mind and ongoing separation. She now – very late in the current forensic process – claims that this was all a subterfuge, a ruse to keep prying professionals at arm’s length, as she had never truly separated from F. If M is truthful in her current assertions, she perpetrated a deception on well-intentioned professionals for an extended period of time, and did so by providing detail of behaviour that was, in my opinion, too detailed and too consistent with the picture of abuse she painted not to be at least in part true. Conversely, if M was indeed being truthful at the time, then she is lying, on oath to the court, and implicitly to the other professionals who will be tasked to undertake assessments after this judgment, about an important matter. In a sense, it does not matter which account is accurate, as it is a component of either version that there has been significant deception on M’s part.[310]It is reasonable to infer from the preponderance of the evidence that, whenever reconciled, the relationship between M and F has improved over time, and that F has matured and largely or wholly ceased to demonstrate the domestically abusive behaviours previously apparent.[311]However, as will be seen below, I do not accept that the state of their relationship immediately leading up to and over the weekend of 26 and 27 November 2022 was as M and F have sought to portray it during these proceedings.

The incident between M and ZC

[312]It is worrying that nothing at all would have been known about any incident between M and ZC had it not been apparent from the messages recovered from M’s ’phone with her sister and niece that something had happened.[313]Mr Kingerley is right to point out that I have not heard from ZC, and to caution me against forming too clear a view without all available evidence. However, the messages between M and ZC, in my view, largely speak for themselves. ZC was clearly of the view that M, her ‘aunty’, had hit her and shouted at her. M did not deny this in her responses. Rather, she suggested to ZC, in response to the allegation of hitting, that it was ‘accidental’. Threatening to ‘sort [ZC] out’ can only have been meant as a threat of some kind. Suggesting that ZC would upset her mother if she told her, that M was ‘stressed out with the baby’, who had been ‘crying all night’ and imploring her ‘dont make life difficult’ were clearly messages intended emotionally to blackmail ZC into saying nothing. And telling her of gifts M has ordered for her was clearly intended as further manipulation of ZC, again, with a view to silencing her. There is simply no other rational explanation either for ZC’s messages or the content of M’s responses (or, no less significantly, what was not said in those responses). M’s attempt to explain away the word ‘hit’ as an immature child’s way of describing accidental pulling of hair when braiding it was entirely unconvincing; to seek to persuade the court that she too saw no difference between the two words and concepts verged on the risible.[314]In the absence of more comprehensive evidence, I cannot say exactly what happened: it is not possible to say precisely what M did to ZC which was perceived as being ‘hit’ and which very obviously upset her. However, it is clear, and I so find, that M perpetrated some act of violence on her niece, that this upset ZC, and that M then sought to silence her by inappropriate pressure and manipulation.[315]It follows from the above that M has deliberately lied to the court about this incident. This lie does not, in my view, take on Lucas-type significance, as in some way being directly probative of the principal allegation in the case, responsibility for the contamination of S’s bottles. To deny hitting a child in these circumstances is perfectly consistent with avoiding having to confront previously shameful behaviour, and, even if the lie was told in the full knowledge that the allegation was being put as in some way relevant to the central charge of poisoning S, a dishonest denial is as consistent with not wanting to tarnish genuine innocence as it is of seeking to conceal genuine guilt.[316]However, if the fact of the lie itself is equivocal, the underlying behaviour is of some significance. I take it from what I have found, in conjunction with the timing (29 October 2022) and the context within which the disagreement between M and ZC is said to have arisen (the sleeping arrangements, ZC being used to sleeping in MGM’s room, now occupied by M and S), that the incident demonstrates M, just a few weeks before the date of the precipitating event, acting impulsively, violently, and then manipulatively, to a no doubt much-loved niece, and in relation to a disagreement somehow related to the fact that M and S were still staying in the MGP’s home. These facts demonstrate, in my view, the presence and build-up of significant underlying stresses and difficulties acting on M’s decision-making and impulse-control.

The argument between M and IE

[317]It seems clear from the evidence of most of the other family members that M, among the siblings, stands out as being ‘blunt’, she is described as speaking her mind, applying ‘no filter’. IE described himself as ‘argumentative’, a trait he went on to display in his oral evidence, to the point of being, at times, a somewhat annoying witness. The other siblings inclined to the view that these two falling out was not an uncommon feature of family life. Equally, they tended to make up, or at least the flash-point would quickly burn out, and normal sibling relations would resume. There was also consensus among those who spoke of it that IE had been particularly involved in supporting his brother, IC, through a particularly difficult separation from his wife, ZG, with ensuing, I am told at times toxic, disagreement about child arrangements. Whatever the rights and wrongs of the dispute between IC and ZG, which I am not in a position to determine, it seems clear that IE considered himself as his older brother’s protector, and had firmly cast ZG as the villain of the piece.[318]In that context, it does not seem particularly surprising that IE was affronted by ZG’s having been invited to a family gathering, even though a more sanguine character would not have become involved in an issue which did not directly concern him. Equally, given what I understand of M’s character and her relationship with MGM, it is not surprising that she, when confronted by IE, defended her mother’s right to make decisions in relation to her own home and family, and expected others to respect the same.[319]If, then, some confrontation between the two of them on this issue was not an altogether startling occurrence, the strength of IE’s objection and the extent of his foul-mouthed tirade against M, who was doing no more than standing up for her own mother’s decisions, seems to have surprised others in the home.[320]M’s messages (set out above) to her sister record M’s take on what IE had said to her. They also set out M’s blaming of IA for having caused the incident (‘She purposely sent upstairs … And filled his ears.’). This is somewhat curious as the evidence of all others is that it was IF who had told IE that ZG was invited to the party, and that IA walked in on the argument after it was already in full swing.[321]Piecing together the evidence in relation to this incident, I form that view that IA was not involved either in sowing discontent by ‘shit stirring’ (as M contended in her messages); nor was she any part of the argument itself, save to the extent that she witnessed its latter stages and asked her husband what it had all been about. IA was not particularly affected by the incident, and thought little of it afterwards. Conversely, M, whose indignation ought more logically to have been aimed in the direction of her brother, seems, oddly, to have blamed IA. Her texts suggest a more deep-seated and broader problem which M had with IA (‘Girl she purposely causes arguments […] Shes a bitch girl’).

The incident at the sink

[322]The incident which took place at the kitchen sink, which has been the subject of much cross-examination seems to me to have been blown out of all proportion. Whether or not IF was present is not clear. If, however, he was, the incident was insufficiently memorable for him to have any ongoing recollection of it. IE and IA both seem to have thought it was something or nothing. At most, IA seems to have picked up that M might have been annoyed, asking IE if this was so afterwards.[323]Again, if there is any significance for current purposes to the event, it seems to me that it is that M seems to have interpreted what was said by IA as having been rude or challenging to M. Again, this speaks more of M having problematic feelings towards IA than the other way around.

The events of 26 and 27 November 2022

[324]There seems to be broad consensus from many witnesses that the party on 26 November was an enjoyable family occasion, the children enjoying the entertainment with the live parrot. No-one saw or heard anything unusual. There is no suggestion that any of the children were misbehaving or causing mischief in the kitchen. Nor is there any evidence of anyone unexpectedly going upstairs in the home. The extent to which M and S were present is not entirely clear, although the absence of any suggestion that there was any difficulty, illness or problem with S or his health suggests that there was none. Those attending Laser Zone left the home to do so; they, and others, picked up from the home, attended a local restaurant for a family meal. M, ID, with S and ID’s child, remained at home. There is no report of any issue, problem or disagreement, either at the restaurant or at home, before or after the diners returned.[325]However, even as the party was ending, and the Laser Zone and meal were taking place, the first hint of anything out of the ordinary happening over that weekend can be found in the history of the calls and messages between M and F. Clearly some disagreement occurred during the six-minute call from F to M at 15:47 hrs, presumably about the rent which M was due to pay from her benefits, to be paid to F’s family. The four unanswered calls from F to M were followed, at 16:03 hrs with her message to him, ‘You’re not getting it at all now.’ There then followed a full thirteen hours of the most vituperative and insulting messages between M and F. The only respite in this seems to have been a nearly three-hour period between 01:47 and 04:33 hrs when there were no messages. One might assume that M was asleep for this period, however her evidence is that she fed S at 03:00 hrs, in which case she can have had little more than a couple of hours sleep all night.[326]F’s part in the exchange is important. While he undoubtedly did not engage to anywhere near the extent that M did, and while he did not revert to foul insults, still he threatened M that he would bring to an end the entire project of refurbishing the home, taking her name off the rent, and then, after declaring, ‘I’m done talking,’ he ignored M’s calls and messages for hours on end. For M, after F was ‘done talking,’ she, assuredly, was not. Many insults and unanswered calls later, M ultimately backed down and transferred the money in the middle of the night. But for her the matter was clearly not at an end as, when he still did not answer her calls, she spent another half-hour or so unleashing the most extreme of her vitriol.[327]While I accept that the escalation in the language and intensity of the messages can be explained with reference to M’s attempts to goad F into picking up her calls or otherwise engaging with her messages, the underlying sense of almost frenzied fury cannot be overlooked. It is this latter aspect which is, in my view, downplayed by both M and F when they come latterly to describe the incident and its contemporaneous significance. It is also very relevant, in my view, to an assessment of the state and nature of the relationship that the underlying frustration stemmed from M’s very strongly-held view that F was taking far too long renovating the home into which they were to move and, as she set out in her oral evidence, that it was a waste of their hard-earned and long-saved money to be spending this on a property of which they were only tenants, the benefit of that investment accruing, rather, to F’s brother’s, the owner.[328]It is a strange aspect of the narrative that M should have been up virtually all night messaging and trying to make calls, clearly in a highly emotionally aroused state, but that MGM, who was sleeping in the bed next to M’s for much of the night and who was then in and around the room and house M and S were in the following day, should be entirely ignorant of the episode, both at the time and during the morning afterwards. The impression I have is of M compartmentalizing, on the one hand, her intense frustrations and visceral argument with her husband, and on the other, her wanting to be seen by her family to be living a normal and respectable life. She must have been experiencing a great deal of inner turmoil as she sought to maintain this separation of such different aspects of her life.[329]I cannot accept the account given by both M and F that there was no residual difficulty between them when, a few short hours later, F dropped by to pick up Y. It seems to me unlikely in the extreme that F would simply have shrugged the entire episode off with a laugh and a throwaway comment, and that M, for whom the fight had clearly not ended with her paying over the money, would suddenly have given up on wanting to have it out with F, when that had been the focus of much of her messaging and calling for hours on end the night before. I have no way of knowing what passed between M and F that afternoon, during F’s brief visit. The fact that they give very different evidence about what M said to F about S’s presenting health and feeding and whether M had told F that she thought S’s fontanelle to have been sunken at this point is a function, in my judgment, of their not giving an accurate account of what in fact they said to each other that afternoon. Even if I am wrong about there having been rather more passing between them about the previous night’s events than they are now letting on, if F had sought to dismiss M’s prolonged distress in the way in which he claims, I consider that M would have been left with significant residual frustration, compounded by a sense that F could not even validate her anger or the reasons underlying it.[330]M has been consistent throughout that she fed S at 3 pm that afternoon, and that this was the first feed which had been significantly problematic. Of course, it is now clear and accepted that this feed was contaminated with salt, in which context, and given Dr Coulthard’s evidence, S’s effective refusal of the feed (M says it took her two hours to deliver it) is readily explicable. M is also clear that S did not take his 6 pm feed. Again, as it is now known that this was made with salt-contaminated formula, this is entirely consistent with what one would expect.[331]I only have M’s evidence on which to rely to establish that S’s response to the 3 pm feed was very markedly different to how he took the feeds at 12 noon, 9 am and earlier. If M played no part in adulterating the milk, she would have no reason to have lied about how S took these feeds, so for the purposes of determining where and with whom culpability lies, I take M’s evidence on this at face-value. The relevance of this is that Dr Coulthard was clear that a baby is most unlikely readily to drink milk which is significantly contaminated with salt: there will be an instinctive revulsion to it. While thirst and hunger will eventually partially overcome that distaste, the feeding process will not be one which will be considered normal by any carer in the habit of feeding that infant. On the face of it, then, this would fix the time of the first contaminated feed at 3 pm.[332]If it is correct that(a) the 9 am, 12 noon and 3 pm feeds on 27 September were made up, effectively ‘to order’, from the same formula tin (RW/3), and(b) that the first significantly rejected feed was that given at 3 pm, it is reasonable to assume(c) that RW/3 was contaminated at some time between the making up of the 12 noon feed and of the 3 pm feed, unless(d) the salt was so unevenly mixed into the canister that it was somehow possible to take four scoops from it of all but uncontaminated formula powder, the very next four scoops containing formula significantly adulterated with table salt. (Of course, if the proposition at (b) is not accurate, because, for example, M is not honestly and accurately reporting feeding difficulties earlier in the day, then the timing recorded in (c) must be wound back accordingly.)[333]While I absolutely accept that, unless very carefully mixed, the canister would have contained different pockets of powder with salt contamination at different concentrations, in my judgment, the proposition I describe at (d) in the preceding paragraph is intrinsically extremely unlikely.[334]I should cross-check this provisional conclusion, that the first contaminated feed was delivered to S at 3 pm, against Dr Coulthard’s evidence. The red parts of the zig-zag lines in the graphs I reproduce above demonstrate that it would be entirely possible for just one or two contaminated feeds to have caused the plasma sodium levels seen on admission, however, in order to have done so, the salt to milk concentration of these feeds would have needed to be higher than that recorded when a sample was made up and tested from tin RW/3. Given the likely variations in concentrations in different parts of the powder in the tin, and as there is evidence of another, more highly contaminated, tin of formula in the home, the expert evidence is not, in my view, inconsistent in any way with this proposition.[335]In reaching, as I have done, the conclusions that S’s first contaminated feed was the first to which he significantly objected, that, on M’s evidence, this was the 3 pm feed, and so that the formula in tin RW/3 was probably contaminated between 12 noon and 3 pm, I have taken fully into account the arguments put forward by Mr Kingerley and Ms Lennon. In particular, I do not accept, due its being inconsistent with the expert evidence, their proposition that it is likely that S had been fed contaminated milk ‘contain[ing] variable amounts of salt’ for some more significant period, ‘each feed [being] more or less tolerable’ to S. I note M’s accounts of these feeds, in her third statement, which deals in some detail with the events of that weekend: of the 9 am feed (which she described together with the two at 3 am and 6 am), M said, ‘These feeds were prepared in the bedroom and [S] had the same amount of milk through the night. I would prepare 120 ml and he would drink most of it, he may leave 20-30 ml, but he was fine’; of the 12 pm feed, she said, ‘I prepared the 12-noon feed in the kitchen using that same canister and [S] took the feed without any issue.’ On M’s account, the only opportunity for anyone else to have adulterated the feed tin was between her coming downstairs with it at 9.30 – 10 am and leaving it ‘in the kitchen on top of the worktop […] in full view and within easy reach’ and making up the 12 noon feed, or between 12 noon and 3 pm, when ‘the canister remained in [sic] the worktop in the kitchen’.[336]IA and IE give an account of their movements on Sunday 27 November, which involves their getting up in the late morning, heading out to town for brunch, shopping, a walk and a visit to IA’s family. While this was challenged, and it was asserted that they could not have eaten at the restaurant they said they probably would have (it being closed on a Sunday), no evidence was marshalled to the effect that they had been significantly more present in the home on that day, and no witness claimed to have seen them there at times when they later claimed they had not been, except for M who, only in her sixth statement in November 2023, and specifically in response to IA’s statement shortly beforehand, claims simply, ‘When I was having difficulty feeding [S] on 27 November at about 3 pm, [IA] was definitely in the house.’ I note that in IA’s police interview, as long ago as 25 January 2023, when asked about the occasion when she was hoovering and MGM spoke to her, she described herself as ‘just come back from my mum’s’ and in their first statements, dated 27 July 2023, they both wrote that ‘on the morning/afternoon of 27 November’ the two of them ‘left the house to go shopping in [a city] and for a walk during the afternoon. Later we went to [my][IA’s] mother’s house […].’[337]On balance, I accept IA and IE’s evidence in relation to what they did that Sunday, which was asserted as true by them since long before the significance of the period immediately before the 3 pm feed had become clear, and which was factually objected to by M only some time after both that significance had crystallised and she had focussed her forensic fire on IA alone.[338]There seems to be broad agreement between M, MGM, IA and IE in relation to what took place from the point of M and MGM deciding that S should receive medical attention in the early evening of 27 November. I do not regard it as of any particular significance that there is not unanimity between the witnesses in relation to exact whereabouts, and whether various communications were face-to-face or by sending a message (which was a normal way of communicating within the house). It is common ground that MGM asked IA where IE was as he might be needed to take S to hospital, that one, other or both of MGM and IA communicated this to IE, that M and MGM decided to call 111 instead and that, shortly thereafter, paramedics arrived. Also not in contention is that IA did not look in on S or M, to check S’s condition or to offer reassurance to M.[339]It is said on M’s behalf that this is indicative of her guilt, as she alone in the house knew that S had been poisoned, as she had contaminated the milk. In their written closing submissions, Mr Kingerley and Ms Lennon indicate that IA’s ‘apparent disinterest in [S] […] in complete contrast to previous apparent concern and interest in [S]’s health and welfare […] cannot be explained other than by knowledge of why he was unwell and [IA]’s ambivalence to the impact of her actions’. For my part, I do not fully follow the supposed logic in this proposition. While I accept that, when examined under the microscope of retrospect, it seems a little odd that IA did not look in on S, I do not agree that this demonstrates or is indicative of guilt in the way described. A knowing, premeditating poisoner would scarcely be ‘ambivalen[t]’ to their victim’s condition; and, presumably eager to avoid detection, they would perhaps be more likely to feign concern than to risk suspicion by showing no interest. IA’s actions (and inaction), in my view, are as consistent with her getting herself ready, or not really thinking that there was anything seriously amiss, as she has said, or with her being preoccupied with something else or some selfish concern of her own, as they are with her either being indifferent to her victim’s suffering or attempting to avoid exposure as a perpetrator of harm.

Events at the hospital; M’s interactions with SW

[340]I have already set out my impression of the social worker, SW, as a professional and honest witness. I found her account of her notetaking and the reasons she gave for not accepting that she had misunderstood or mis-recorded what M had said to her, as was put to her, very much more credible than M’s version of events. I accept that M said to SW what she is recorded as having said.[341]In particular, I accept that M told SW that she and F were separated, and that M hoped that S’s illness would bring them back together and then closer as a couple. Whether the status of her relationship with F was accurately described by M as being ‘separated’ depends to some extent on the true content of the discussion between M and F during the afternoon of 27 November (in relation to which I have indicated that I do not accept that it was as bland as has been described). In any event, I agree with the LA’s description of the status of their relationship, in M’s mind at least, as ‘at best in an uncertain state’.

The relevance of the second contaminated canister

[342]As set out above, two adulterated tins of feed were discovered. The tin exhibited as RW/3 was taken by M to and seized by police from the hospital. The tin exhibited as LAC/24 was found, tucked away in a kitchen cupboard, almost empty, but containing table salt together with the milk powder, and at a relatively higher concentration than RW/3.[343]Various questions have been raised and theories mooted in relation to LAC/24. Why was it not thrown away, if almost empty? Why would a perpetrator leave it in the kitchen risking discovery? Does this suggest its presence represents the deliberate ‘planting’ of evidence? Was LAC/24 evidence of previous experimentation with poisoning S with salt? Was it perhaps used as a second receptacle for the mixing process, i.e. as a means of being able to shake or stir salt into an otherwise full canister, thereby avoiding making a mess?[344]Ultimately, absent a confession from the perpetrator, the reason for LAC/24 being where it was, and containing what it did, will remain something of a mystery.[345]However, the fact of there being two separate contaminated canisters allows reasonable inferences which lend some assistance to the current process. First, all relevant witnesses accepted, and I agree, that the fact of two different contaminated containers, kept in different places, all but completely rules out any theory involving either children misbehaving or messing around or some accidental or careless error having been made by an adult. Secondly, that same fact makes the process of deliberate contamination of both tins that much more complicated and time-consuming, especially given that one of the tins was most commonly stored upstairs, in MGM and M’s bedroom. Thirdly, whatever was going through the mind of the person responsible, a concerted, probably premeditated, attempt to contaminate is suggested rather than, for example, an entirely impulsive and quickly-performed single act.

Mother: missing telephone evidence

[346]Making all allowances for the vast and often surprising range of idiosyncratic human behaviour, I have struggled to accept M’s explanation for why she deleted her internet browsing history while she was at the hospital, helping to look after, and no doubt worried about her unwell infant. I accept that certain gynaecological searches may not be the sort of thing one would want friends or family to see. However, the reasoning that a nurse might somehow see such searches when M left her unlocked telephone handset by S’s side in a hospital did not make any sense to me. And if M genuinely feared that someone might rifle through her telephone history and discover embarrassing content, the 13-hour, expletive-filled WhatsApp tirade against her husband just the night before would, in my judgment, have been higher on her mental list of embarrassing content to delete.[347]I consider it far more likely that M’s rationale for deleting her search history when at hospital with S, and knowing that professionals were aware of likely salt poisoning with the corollary police and social services referrals, was to delete material which she considered might in some way be incriminating of her in the course of the nascent investigation. This view is confirmed by M’s refusal to acknowledge ever having had a Google account (knowledge of the details of which might have assisted with recovering otherwise lost internet searches), despite expert evidence to the contrary.

IA: missing internet data

[348]I have also found the absence of messages and searches on IA’s handsets for the relevant period somewhat perplexing. Having extracted promises from the interveners not to cause or to allow the deletion of any data, that seems precisely what took place.[349]The evidence of what in fact took place is not entirely clear. One of the explanations for what seems to have happened is that IA’s telephone was at some stage ‘restored’ from an earlier saved version, effectively permanently deleting all material between the dates of the earlier version having been saved, and its having been restored. IA claimed no knowledge of how or why this had taken place, save to assert that she asked her younger brother routinely to help with solving ongoing problems with inadequate storage.[350]While I am left with misgivings about this state of affairs and the explanation given, I do not consider myself to be in a position to find that IA had deliberately effected the removal of data, still less that she must have done so in order to conceal material suggesting her culpability in relation to the poisoning.

The interveners as possible perpetrators

[351]No party or intervener is suggesting that any of the interveners (other than IA) should be considered either as a potential candidate for being the sole probable perpetrator or, if no sole perpetrator can, on the preponderance of the evidence, be identified, as someone in relation to whom there is a ‘real possibility’ that they are the perpetrator.[352]Of course, if I am able to identify a sole probable perpetrator, the question of the so-called ‘pool of perpetrators’ does not arise. However, in considering the evidence against a possible sole probable perpetrator, the likelihood of some other person being responsible is inevitably one of the relevant factors to be weighed in the balance.[353]Accordingly, I have considered, separately, each of the interveners other than IA. For the reasons helpfully suggested by Miss McCallum and Miss Whitehouse at paragraphs 9 – 22 of their written submissions, and by Messrs. Rowley and Saunders at paragraph 42 of theirs, with which I agree, I consider that there is no real possibility that any of them contaminated S’s feed.

IA as perpetrator

[354]It is asserted on M’s behalf that there is sufficient evidence to identify IA as the perpetrator.[355]I have already indicated that, in my judgment, the exchange of words at the kitchen sink has been blown out of proportion to its true significance, certainly as being a reason for IA developing a grudge against M. Equally, the argument between M and KS, seems to me just that, and did not involve IA in the way M now says. If anything, both of these incidents point towards M having difficulties in relation to IA, rather than the converse.[356]IA has had some struggles with her mental health, and has suffered, and continued to suffer at the time, with generalised anxiety and a sleep disorder. There is evidence that she ‘self-medicated’ by taking some of her husband’s medication which, although previously prescribed to her, was not at the time she took it. However, there is little evidence that IA was struggling to cope with life in general at or around November 2022.[357]It is suggested M that IA’s attitude towards her and S changed shortly after, and probably as a result of, the incident at the kitchen sink and the argument between M and IE. This does not seem to be borne out either by my assessment of these incidents and their contemporaneous significance or by the agreed fact that a week before S’s admission to hospital, IA, on M’s current case, had gone to check on him, while he was in M’s care, when M was worried about his health.[358]It is further suggested that, due to her difficulties with sleep, disturbed overnight by a crying baby, and perhaps stoked by her feeling, as a longer-term resident in her mother-in-law’s house, more entitled to live there than her newly-arrived sister-in-law to the extent that she was jealous of her, that IA wanted rid of M and S from her home, and that she effected the poisoning of S in order to achieve this. In my judgment, there is no evidence of any of these feelings having taken grip of IA – they are suggestions, suspicious raised after the event, but no more. Moreover, it is by no means clear how the contamination of S’s milk would cause the permanent removal of M and S, still less how it would help IA to regain the limelight stolen from her by M’s arrival.[359]It is also difficult, given my analysis of the movements of the various protagonists, the whereabouts of the milk tins at various times, and the likely window within which RW/3 was contaminated, to see how or when IA would have had the opportunity to have introduced the salt into that tin without detection.[360]Much is made of IA (and IE) being the only witnesses who claim that the tins were routinely left on the worksurface and that they saw outside the tin the powder scoop. In my judgment, in a house in which there had been babies being fed with formula for some period, where it is entirely possible that old scoops were repurposed within the kitchen, and so in which seeing a tin or a scoop in any particular place would scarcely represent a memorable event, little can be made of this.[361]It follows from the above that I do not accept that any of the six lies pleaded against IA in the schedule produced by Mr Kingerley KC and Ms Lennon are made out. In any event, I cannot see, in relation to any of them, how they would, even if established, satisfy the criterion of the third column of that schedule, i.e. ‘Only explanation is guilt’.[362]Putting all of this together, I do not consider there to be any evidence which tends positively to identify IA as the perpetrator of the poisoning of the milk. Nor do I consider that the circumstantial evidence and corollary arguments raised on M’s behalf significantly raise the index of suspicion in relation to IA.

Mother as perpetrator

[363]As to M’s demeanour, and state of mind and mental health by and immediately after 27 November, my analysis of the various matters set out above and the findings I have made in relation to them, establish the following facts:a. M’s behaviour overnight 26 to 27 November was erratic; her multiple, significantly offensive messages and many unanswered calls to F are suggestive of someone who had lost control of her emotions;b. that behaviour should be viewed against the backdrop of prolonged and increasing frustration over the several preceding weeks;c. M and F have downplayed the significance of that exchange and the description of all being well by the following afternoon is inaccurate;d. M was S’s primary, almost his exclusive, carer; this involved long, sleepless nights, including those during which ‘I’ve already been crying all night with the baby’;e. M was greatly missing R, and was conscious that he was missing her; the two weeks of her agreed separation from her young son had risen to nearly eight weeks;f. M’s violence towards her niece, ZC, and her subsequent messages suggest a disturbed state of mind and significant stress impacting on M’s ability to exercise control over her temper and impulses;g. despite her living within her wider, supportive family, M confided little in them as to her true feelings;h. M told SW, the social worker, that she and F were separated, and that she hoped that S’s being ill would bring them back together and make them close as a family, as R’s illness and hospitalisation, several years before, had done. While none of this conclusively demonstrates any predisposition towards violence towards or causing harm to a child, it seems clear that M was, at this point in time, very upset by the separation from her five-year-old son, at her wit’s end in relation to her husband’s lack of urgency and questionable priorities, and was acting in ways which were at once both extreme and out-of-character for her.[364]In relation to the tubs of feed, their contamination, and S’s ingestion of salt, the evidence suggests, or I have found, as follows:a. the tub of feed in use at any particular time would, in general, follow M and S;b. in relation to the tub RW/3, taken to and used in hospital, and contaminated some time before that, there was little if any opportunity for anyone other than M to have adulterated it over the weekend of 26-27 November; (alternatively, if S was demonstrably refusing feeds before the 3 pm feed, she has lied about this, with no reason to have done so, other than to obfuscate the truth); d. it is likely that tub RW/3 was contaminated between 12 noon and 3 pm on 27 November; e. IA and IE were out of the house from before 12 noon until well after 3 pm on 27 November and had no opportunity to have put salt in the canister; f. it is overwhelmingly more likely that the person who introduced salt into tub RW/3 also did so in relation to tub LAC/24.[365]As to other possible perpetrators, it is relevant, in considering the evidence pointing towards M, that:a. I have concluded that there is no realistic possibility of any of the interveners (excluding IA) having contaminated the formula milk;b. I have concluded that there is no evidence positively pointing towards IA as the perpetrator of the poisoning of the milk, and that there is no relevant circumstantial evidence or inference which significantly raises the index of suspicion in relation to her;c. there is absolutely no evidence to suggest that any other person had access to the milk at the relevant times, it being kept in a secure private house, virtually always occupied, and with no evidence of any break-in or intruder.[366]Factors which might suggest that M was not responsible include:a. that M obviously and deeply loves her children; that she is universally described as a good and devoted mother; that her particular personal history suggests that she would value and cherish her children and their health to an even greater extent than most parents;b. that there is no evidence of M having indulged in behaviours indicative of fabricated and induced illness in children (FII) with R or to over-report or demonstrate somatising behaviours in relation to herself;c. that M took canister RW/3 to hospital, thereby increasing the chances of her detection;d. that M asked her brother, IC, to obtain the nasal drops shortly before she called 111;e. that there are no ‘red flags’ in M’s personal or parenting history (other than the prior domestic abuse between F and her, and her having, on her own account, misled professionals in relation to safeguarding matters);f. that causing the hospitalisation of S would be unlikely to speed up the renovation process; the opposite effect would be more likely;g. that, if she had any longer-term intention to poison S, M would not have allowed a situation by which she was the only person who looked after the tubs, who made up the feed, or who fed S.[367]My findings in relation to(i) M’s state of mind,(ii) her very extreme and very recent outburst in relation to the home F was refurbishing not being ready,(iii) the uncertain status of her relationship as at 27 November,(iv) her comments to SW, and(v) the contrast between her unhindered and largely exclusive access to the two contaminated canisters, taken in combination, establish, in my judgment that it is proved, on the balance of probabilities, that it was M who introduced salt to the two tins of feed, and that, in doing so, and in making up contaminated milk and feeding it to S, she deliberately poisoned him with salt.[368]Given the absence to date of any acknowledgment of responsibility, there is little I can add in relation to detailed motivation. It seems to me unlikely in the extreme that M intended S’s death, although this was clearly a possible consequence of her actions. It is likely that the ‘gain’ she intended to achieve from S’s being ill was the reunification and bringing closer together of her nuclear family with F, which had been strained and fractured by the eight weeks (and counting) of the enforced separation. That said, it is well-known that motives and intentions in cases such as this are often nuanced and multi-factorial, and that the perpetrator themselves may well not truly understand what drives them to behave as they are. It will be for further assessment rather than judicial musings to seek to get to the bottom of what caused M to act as she did and whether risk factors can be identified and satisfactorily mitigated. Conclusion[369]At the end of this complicated case and my analysis of the reams of written evidence and many days of oral evidence, my clear conclusions, established, in my judgment, on the balance of probabilities, are that:a. on or before 27 November 2022, M contaminated two containers of powdered formula milk intended for her son, S, by adding table salt to them;b. on 27 November 2022, M made up milk from one or both of the contaminated containers and fed it on at least two occasions to S;c. on 27, 28 and 29 November 2022, at hospital, M allowed S to be fed with milk she knew to have been made up from one of the contaminated containers, including through a nasogastric tube; andd. at all such times M was aware that excessive salt intake is likely to cause significant harm to an infant.[370]It follows from the above that at the relevant date, S was suffering and was likely to suffer significant physical and emotional harm, and that R was likely to suffer such harm.[371]I have expressed above my concerns about F’s levels of insight, in consequence of which his ability to protect S (and R) in the future is potentially in question. This, too, will be a matter for careful assessment.[372]I am conscious that family members, and in particular those who have intervened in these proceedings, may find my conclusions difficult to process and, possibly, to accept. I hope that there can be meaningful acceptance of my findings, not least as this is likely to be an important element of keeping the children safe in the future.[373]Finally, I am very grateful to Counsel, other advocates and the legal teams sitting behind them for the very great care and the highest levels of professionalism which have been displayed throughout the preparation for and presentation of this long and complicated hearing.

Cited in 1 later judgment