“ Time of death: 11:20 a.m. History: briefly from distressed mother, baby fed at 9.30, was put in cot upstairs, found not breathing, pale and face in pillow with some foaming near the mouth, sometime after 10 o'clock. Attempt at resuscitation, neighbour ‘phoned ambulance. The paramedic informed that resuscitation had been given at 10.47, arrival time around 11.05 the resuscitation continued but was unsuccessful. The infant was of large size, the skin was mottled and cool, no dysmorphic features, no abnormal marks or bruises. Body temperature 34.8. Clinical examination (Dr Sokale), including the back of the child showed no abnormal marks ”
“Family and social relationships. The family are extremely close, but tend to keep themselves to themselves. Their neighbours have offered a helping hand since H died and the family have felt enveloped within the neighbourhood. [The father’s] parents have died and his siblings live in different parts of the world, he has very little contact with them. [The mother] has her extended (sic) living in Hastings. She has a couple of aunts that are not in good health and elderly grandparents. Contact with them all is seldom due to [the parents] being busy with the three children. [The maternal grandmother] is at present living in Surrey, her aunt telephoned her mother to say that H had died. [The mother] is upset that her mother's reply was that she probably would not be able to come down to the funeral. [The mother] does feel unsupported by her mother and states that her mother is not a proper grandmother. Both [the parents] stated that their relationship is very strong and that they support each other, and this was evident when they were speaking to me about their family and the death of H. Summary H was a much loved child, who completed [the parents’] family. All three children are close in age, the tragic death of H has affected [both parents] considerably. Both [L and the subject child] are too young to understand the concept of the death and just refer to H as being asleep. ------------------ The coroner has explained that H’s body could be in London for a couple of months before his body is released for burial. The couple have an appointment with DSS about the cost of the funeral. The couple feel the need to remain together at this present time, as they are grieving the loss of one of their children. There are no concerns about this family they present as a close-knit family that manage really well living off of a low income [The father and mother] are being enveloped in compassion within the community. ------------------ They both feel that there is nothing much more they can do until H is returned to them. Both [the mother and the father] are not asking for help at this present time, but do understand they can contact social services at any time they want some support. ---------- [The mother] could find that in the future she needs some space from the girls to deal with her feelings of loss. ”
“ ------ the approach in practice at the threshold stage, where the local authority has to establish the existence of the threshold criteria on the basis of facts proved to the civil standard, and thus, on that basis, that the parents have not acted as it would be reasonable to expect a parent to act, is largely an adversarial process. Further at that initial stage, the test that the court is applying is not one as to what would best promote the welfare of the child, rather the issue at that stage is whether the threshold or trigger exists to enable public authorities to interfere in the lives of a family and thus possibly remove children from their parents. Human nature and the respective roles of the parties at that stage of public law proceedings have the result that those proceedings are treated at that stage as being adversarial or as having a substantial adversarial element.”
“When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious that allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability..........”
“Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It only means that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether an event occurred. The more improbable the event the stronger must be the evidence that it did occur.”
"The starting point here is that courts act on evidence. They reach their decision on the basis of the evidence before them. When considering whether an applicant for a care order has shown that the child is suffering harm or is likely to do so, the court will have regard to the undisputed evidence. The judge will attach to that evidence such weight or importance he considers appropriate. Likewise with regard to disputed evidence which the judge accepts as reliable. None of that is controversial. -------------------"
“At trials, however, the court normally has to resolve disputed issues of relevant facts before it can reach its conclusion on the issue it has to decide. This is a commonplace exercise, carried out daily by courts and tribunals throughout the country. This exercise applies as much where the issue is whether an event may happen in the future as where the issue is whether an event did or did not happen in the past. To decide whether a car was being driven diligently, the court will have to decide what was happening immediately before the accident and how it was being driven and why. Its findings on these facts form the essential basis for its conclusion on the issue of whether car was being driven with reasonable care. Likewise, if the issue before the court concerns the possibility of something happening in future --------------------------------------------------- A decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom.”
“ I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts including the history of members of the family, the state of relationships within a family, proposed changes within the membership family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue.”
“The court invariably needs and invariably depends upon the help it receives from experts in this field. ... The expert advises, but the judge decides. The judge decides on the evidence.”
"Many if not all family cases involving children feature expert opinion evidence ... In cases involving children, expert medical and psychiatric evidence from paediatricians and allied disciplines is often quite indispensable to the Court. As Parker L.C.J. said in Director of Public Prosecutions v A & BC Chewing Gum ltd. [1968]1 Q.B. 159 @ 165A, when dealing with children, the court needs 'all the help it can get'. But that dependence in no way compromises the fact that the final decision in the case is the judge's and his alone"
“[16] The submission seems to me to ignore the very different functions of the professionals in a judicial investigation of this sort. It is important to focus on those functions and not to confuse them. [17] The expert of ultimate referral was there to guide the judge as to the relevant medical and scientific knowledge, inevitably expressing himself in medical language. The judge’s function was a very different one. He had to consider the question posed bys 31 of the Children Act 1989 as to whether L was a child suffering or likely to suffer significant harm and whether that harm or likelihood of harm was attributable to the care given to the child, or likely to be given to him, if the order were not made. [25] It seems that on that very carefully stated and carefully balanced appraisal the judge would have been failing in his primary protective function if he were to have acceded to some submission that because the doctor had not been prepared to say in medical language that there was a confident diagnosis therefore there was no evidence of risk of harm. The elevation of a medical opinion to the status of a confident medical diagnosis is very much a matter of art and bounded by medical conventions that are fully recognised and, indeed, negotiated at a professional level. What this doctor was saying was that the child’s condition was entirely consistent with non-accidental injury and that there was no other more probable explanation. The case, in my view, is as straightforward as that. Although Mr Storey sought to say this is some dangerous invasion of the right of parents to presumptions of innocence and to safeguard from adverse findings absent the strongest and clearest of evidence, those submissions, in my opinion, are not realistic in the facts and circumstances of this particular case.”
“[9] It is undoubtedly true that the frontiers of medical science are constantly being pushed back and that the state of knowledge is increasing all the time. That is why I find that when presented with a speculative theory based on an unlikely hypothetical base an expert will rarely discount it and will in effect never say never. Fanciful speculation is not an appropriate method of inquiry. What is needed and what the experts have done in this case is to piece together all the available information and look at the differential diagnosis. Many of the experts in this case specialise within a particular and very narrow field and by reason of being experts of referral at centres of excellence they acquire special knowledge and skill. However, concentration on a very narrow area of expertise can sometimes render it difficult for the expert to see the whole picture. In this regard I find that the pathologists are at a disadvantage when compared with the clinicians. [10] The judge has the duty of sifting the evidence from the experts, who form their assessments within their particular area of expertise, and the judge has to decide the case by reference to the various issues. Although the medical evidence is of very great importance it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear, convincing picture of what happened.”
“[56] -------------- I do not accept the contention of the parents that the Bolam test must be applied in determining whether a responsible body of opinion can be held so that if there is a respectable thesis to be advanced in contradiction to other opinions it must be accepted (see Bolam v Friern Hospital Management Committee[1957] 2 All ER 118 ,[1957] 1 WLR 582 ). The test for reasonable treatment procedure is in my judgment very different from determining what actually happened to a baby. In care proceedings the court has to test the evidence, piece together the parts of the jigsaw in order to determine whether a clear picture emerges.”
“We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research both here and internationally become available.” “Experts in many fields will acknowledge the possibility that later research may undermine the accepted wisdom of today. "Never say never" is a phrase which we have heard in many different contexts from expert witnesses. That does not normally provide a basis for rejecting the expert evidence, or indeed for conjuring up fanciful doubts about the possible impact of later research. With unexplained infant deaths, however, as this judgment has demonstrated, in many important respects we are still at the frontiers of knowledge. Necessarily, further research is needed, and fortunately, thanks to the dedication of the medical profession, it is continuing.”
“[22] In family proceedings the procedures and the rules of evidence are different from criminal trials. In the first place the material available to the court is likely to be much more extensive than would be admitted in a criminal trial. In the second place the standard of proof to be applied before reaching a conclusion adverse to the parent or carer is, as we have set out above, also different. Given a similar background to that in R v Cannings a judge would be required to ask himself which of two possible explanations, human agency or unascertained natural cause, is the more probable. If persuaded by clear and cogent evidence that it was more likely to be the former the court is entitled to reach a conclusion adverse to the parent or carer. [23] In the brief summary of the submission set out above there is a broad measure of agreement as to some of the considerations emphasised by the judgment in R v Cannings that are of direct application in care proceedings. We adopt the following:- (i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal. (ii) Recurrence is not in itself probative. (iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining toexclude a reasonable possibility of natural cause. (emphasis added) (iv) The Court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice. (v) The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.”
“ In a criminal case for murder or manslaughter arising out of a series of sudden infant deaths a jury is not entitled to convict and a guilty verdict cannot be deemed safe unless a natural cause of death, whether explained or unexplained, can be excluded as a reasonable (and not fanciful) possibility. ”
“By their special allocation to this work, they [i.e. Judges] acquire a body of knowledge which, strictly speaking, cannot be substituted for the evidence received, but which can be deployed to spot any weakness in the expert evidence. That is the judicial task. The expert advises, but the judge decides. The judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the court which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it. There is, however, no rule that the judge suspends judicial belief simply because the evidence is given by an expert.”
“… it is important to remember that the decision is that of the Judge and not of the professional expert. Judges are well accustomed to assessing the conflicting evidence of experts. As Ward, LJ said, Judges are not expected to suspend judicial belief simply because the evidence is given by an expert. An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be. It is, however, necessary for a Judge to give reasons for disagreeing with experts' conclusions or recommendations. That, this Judge did. A Judge cannot substitute his views for the views of the experts without some evidence to support what it is he concludes.”
“The circumstances when judges of the High Court can reject the evidence of a body of medical opinion are rare. This situation was considered by the House of Lords in Bolitho (deceased) v City & Hackney Health Authority[1998] AC 232 … at 243: ‘In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion … But if in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of medical opinion is not reasonable or responsible.’ I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable … It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed.”
“He also told me that in his view, based on his experience, petechial haemorrhages can be caused by resuscitation attempts on children that sadly have proved unsuccessful. He told me that he had seen such petechial haemorrhages usually on the upper part of the body and specifically referred to the neck and face. He also told me that he had seen one small infant with a rash on the lower limbs. He was of the view that vigorous CPR and attendant medication (which he said was nearly always given during resuscitation in hospital) can cause petechial haemorrhages. As I understood it he accepted in answering questions put on behalf of the mother that in cases where there was a combination of increased air blockage, cardiac compression and medication, the result can be that pressure can change and vessels can be so affected that although an ECG is not recording any electrical impulses the circulation caused by compression can produce petechials. This was in line with the opinion expressed in literatureput to the medical experts by leading counsel for the mother. He accepted that if the pathologists and paediatricians were stating that the petechial haemorrhages in this case were not caused by the attempts at resuscitation he would defer to their view. He also accepted that it was possible that in this case the petechial haemorrhages were present whilst he was performing resuscitation and he did not notice them. He also accepted that it was possible that in other cases where he had observed petechial haemorrhages on a child following failed attempts at resuscitation that those haemorrhages could have been present before those attempts began. But he stated that if the pathologists and paediatricians in this case were stating that CPR did not cause petechial haemorrhages he would have to differ having regard to his own experience in connection with the resuscitation of children. As I have said that experience is extensive.”
“During their oral evidence extracts from reports of research were put to the doctors, including Professor David, by counsel for the mother. These extracts were to the general effect that petechial haemorrhages could be caused during, and as a result of, resuscitation. The validity of this research material was not challenged by the doctors but it did not change their view. They remained firmly of the view that the extent and distribution of the petechial haemorrhages in this case were a strong factor in favour of the conclusion they reached as to the likely cause of death. They also remained firmly of the view that the petechial haemorrhages were present throughout the attempts at resuscitation from around 3.10 p.m. onwards and that they had not been noticed.”
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