Birmingham City Council v AG & Ors [2009] EWHC 3720 (Fam)

Case No BM08C07048

[2009] EWHC 3720 (Fam)

IN THE HIGH COURT OF JUSTICE

Venue BIRMINGHAM DISTRICT REGISTRY, Birmingham Civil Justice Centre

33, Bull Street

Venue Birmingham B4 6DS

Date Friday 6 th March 2009

B e f o r e:

THE HONOURABLE MRS JUSTICE KING DBE

Between

BIRMINGHAM CITY COUNCILApplicant

AG1 st Respondent

I A2 nd Respondent

J A3 rd Respondent

(Transcribed from tape by Cater Walsh Transcription Ltd, First Floor,

Paddington House, New Road, Kidderminster DY10 1AL)

MS PROBYN and MS HICKMAN appeared for Claimant

MS MEYER Q.C.and MS FRIEL appeared for mother

MS MEACHIN appeared for father

MR KEEHAN Q.C.and MR WESTON appeared for Intervenor

MS WILLS-GOLDINGHAM appeared for Guardian

J U D G M E N T

[1]The application before the court is an application by the Birmingham City Council for a care order under section 31 of the Children Act 1989 in relation to five children. They are: A who was born on [a date] (12 years/1 month), L who was born on [a date] (12 years), Z who was born on [a date] (10 years, 3 months), M who was born on [a date] (8 years/10 months) and B who was born on [a date] (nearly 5).

[2]The children’s parents are AG who I shall refer to as “the mother,” she is 34 years of age, having been born on on [a date]. Mr I A to be referred to as “the father,” was born on [a date] and is 38 years of age.

[3]These proceedings arise out of the death of a sixth child of the family K. K was born on on [a date] and died on on [a date] shortly after her seventh birthday.

[4]At the time of K’s death in on [a month] 2008, the mother and father had long since separated. The Father was living in Spain with his new wife and their two children. Mother was living in the former matrimonial home with all six children together with a man called JA who I will refer to as either “the Intervenor” or “J” which is how the children knew him.

[5]On 17th May 2008 at 5.44 in the morning, the mother dialled 999 and called an ambulance, saying that K was dead. The other children were subsequently admitted to hospital for medical examination. It rapidly became clear that K had starved to death. She had succumbed to pneumonia as the end stage of starvation, her immune system having become hopelessly compromised. All the other children were suffering from malnutrition to a greater or lesser extent. Had there not been medical intervention I am satisfied that Z, who on admission to hospital was in a critical condition, would also have died. L was in serious danger. In addition to being seriously malnourished each of the children had to varying degrees, been beaten by an implement which had left tramline like marks on their bodies.

[6]Over the last four weeks this court has been endeavouring to discover how and why K died and how and why the other children had become so malnourished; under what sort of regime had these children been subjected such that it had deprived them of food and treated them in this way?

The Law

[7]I have to determine the facts of the case against the backdrop of the current law. The local authority brings the case and the burden of proving the facts rests upon them. The standard of proof is the balance of probabilities and I have in mind when considering these extremely serious allegations the judgments handed down by the House of Lords as recently as 11th June 2008 in Re B (Children), 2008, UK HL35. It is necessary only to quote briefly from Baroness Hales’ judgment. She put it this way at paragraph 70:

“--- I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, nothing more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account where relevant in deciding where the truth lies.”

Background

[8]To discover the seed corn of that which ultimately led to the tragic death of K one has to look back not so much to the background and relationships of the mother and father but to a different family living in the L area of Birmingham. The Intervenor was part of that family and was then known as SW. He was born on 28th August 1978 and was one of five children.

[9]On 12th June 1981 one of the Intervenor’s brothers, J, died from asphyxia aged only five months of age whilst being fed by his father. The Intervenor had no recollection of J’s death and it was only during the course of these proceedings that he learned of it when as in in-patient at the Reaside Clinic following K’s death his treating psychiatrist told him of the death of his infant brother.

[10]As a tiny child the Intervenor lived in a harsh and punitive environment. His mother appeared to collude in the harsh atmosphere of that household, leaving matters of discipline to the father.

[11]On 29th September 1983 when JA was just five years old his three year old sister R also died. R had apparently failed to flush the toilet. Her mother had handed her over to her father for punishment and the subsequent beating had killed her. She had been so severely beaten by her father, in the presence of JA, that muscle and fatty tissue had broken up, entered her bloodstream and caused an embolism in the heart. R died of shock.

[12]J’s father was convicted of the manslaughter of R and was sentenced to seven years imprisonment, that sentence was subsequently reduced to four years on appeal.

[13]As a child JA was beaten, subjected to a number and variety of frightening and degrading punishments. Significantly he was also deprived of food. Contemporary documents highlight mealtimes as particular times of tension. Both JA and his brothers were significantly underweight. Upon his release from prison J’s father did not return to live with the family although it would appear that his mother continued to run the house in much the same brutal way as it had been run when the father was present.

[14]In 1992 J’s school recorded concerns that JA and one of his brothers were stealing, particularly food at school. JA left his mother’s care when he was fifteen or so, living initially with his paternal grandmother and then at various addresses, interspersed with short spells in prison for driving offences, most recently on 19th March 2007 when he was sentenced to four months imprisonment.

[15]In 1996 JA converted to the Muslim faith. It is his case that it now guides his life although it should be noted that the evidence is that he was not a regular attendee at mosque. Eventually he changed his name from SW for religious reasons.

[16]JA has a strong belief in the existence of Djinns or evil spirits and the evil that he believes they can do. At one stage JA was perceived to be acting strangely whilst at the mosque and the Koran was read over him as a way of getting rid of the evil spirits. Having seen him give evidence I do not doubt that his belief and indeed fear of Djinns is genuinely held.

[17]Despite still being only 30 years of age JA has been married twice, each marriage lasting only a matter of months. He has no children of his own and no experience of caring for them.

[18]Some time in about 2001 or 2002 the father and the Intervenor met at their mosque and became friends. They remained friends for some years until they fell out over the mother.

[19]So it was that this difficult, damaged and troubled young man came into the life of AG and her children.

[20]AG herself had not had an easy childhood. She was largely brought up by her grandmother but saw her mother (the Maternal Grandmother) who had been only sixteen years of age when she was born, on a regular basis.

[21]The maternal grandmother converted to Islam in the early 1980’s. Although there is some dispute as to precise dates, by 1994 or 1995 the mother too had converted.

[22]The father was also brought up in Birmingham. His family were practising Christians and he had been christened D F. In 1990 the father converted to Islam and having chosen one Islamic name at the time of his conversion, in 1995 changed his name to his present one.

[23]The parents met and entered into an Islamic marriage in about 1995. They did not have a civil ceremony.

[24]Although the papers contain considerable detail about the relationship of the mother and father, for the purposes of this hearing the detail of the marriage and its breakdown need only to be dealt with in the merest outline.

[25]In 2001 the father met and married his second wife, C L. The father says the mother accepted this second marriage and indeed B was born after it in March 2004. It is quite impossible from the evidence as it presently stands to make any findings as to the comings and goings between the mother and the father. Mother has been consistent in making allegations of domestic violence and there are contemporaneous records of the mother making complaints of violence both during and after the relationship.

[26]Whatever happened between 2001 and 2004 and regardless of whether the marriage had or had not been brought to an end by the father by declarations of Talaq, it seems clear that by the end of 2004 the relationship was over.

[27]The father and JA were friends and although JA came to the house while the father was living there the mother did not see him. As a strictly observant Muslim the mother would not be expected to do so as it would be regarded as improper for her to have contact with a male who was neither her husband nor a close relative.

[28]The father has not given evidence and he does not feature in the allegations relied upon by the local authority. It is accepted that he was out of the country and was not seeing the children at the relevant time. The court has been told that the father disagrees in certain respects with J’s account of how he became involved with the mother but the father’s evidence has not been tested. The Intervenor says the father asked him to look after the mother and to take the children to and from school when the father took his new wife to Spain. JA for his part says that the father gave him his Rover motorcar to enable him to undertake the task that he had been set. Whatever the precise history may or may not be, JA gradually became more and more involved in the life of the mother and the children, initially doing the school run and helping with the shopping and gradually becoming ever more part of their lives. Both JA and the mother accept that from a religious point of view their relationship was wholly improper.

[29]The father did not approve and on 3rd April 2005 there was an altercation when the father saw JA driving the mother’s car with the mother and two of the children inside. Criminal proceedings followed and the father was convicted of criminal damage and battery and received a community sentence.

[30]It is a feature of this case that both the mother and JA gave evidence in a completely relaxed away to the effect that they each drove the children around on a regular basis. Neither of them had a driving licence and were therefore presumably uninsured. Indeed various of J’s sentences were for driving whilst disqualified but it did not seem to prevent the mother from allowing her children to be driven by him or JA from taking them in the car.

[31]Some time after his release from a short prison sentence in May 2007, (JA thinks it was around September, the mother October), JA moved into the mother’s home. I am satisfied that by that time they were romantically involved and had slept together in the same room. The mother referred to JA at school and to various professionals as “her partner.” This I find was an accurate description.

[32]I have no hesitation in finding that as 2007 progressed and even prior to JA living under the same roof as the mother, the influence of JA over her became greater and greater and that a number of significant decisions concerning the children were made as a direct result of the mother adopting J’s view and accepting his advice.

[33]The mother, whilst feisty and outspoken about many things, appears on one level to be a woman highly dependent upon the men in her life and observant to her perception of the proper role of a woman in her religion. Her religion is of considerable importance to her and she is acutely conscious of her lack of depth of knowledge and understanding of the teaching of Islam and of the Koran. As a consequence she looked entirely to JA to be told, as she put it, “what was required” by her religion and for an understanding of the scriptures. She unquestioningly accepted his interpretation of how the family should live on a day to day basis in order to be good Muslims. In fact although his religion is equally important to JA and he is by his own rights strictly observant, his own knowledge of the scriptures was also limited. The result was that JA received a misplaced deference to his supposed learning within the household. This impacted in a punitive way: for example, when JA accused the mother of being insufficiently observant she responded by putting her little girls in full Islamic robes even though this was not a religious or cultural requirement at such a young age.

[34]By the time JA moved into the house the mother was struggling with the children. This can be no surprise and at one level is not really a criticism. She had six children under ten. M is autistic and has very significant special needs. His behaviour can be challenging and he attended a special school. Both K and L had statements of special educational needs and Z had an independent educational plan to cater for his special needs. Despite their respective ages both K and L were in nappies at night and I am satisfied that K’s enuresis was a major issue. The mother was dissatisfied with where she was living. She wished to move and to leave the area, but the children had drawn all over the walls of the house and the mother had been told by her landlord that there would be no move until the house was tidied up. Money was short and the mother had got into substantial debt with various catalogues.

[35]The Mother I am satisfied felt beleaguered and she told me she could not control the children who she found to be rude and disobedient and, as she put it, “disrespected her.”

[36]Added to this her own weight had ballooned after she had had B until she weighed over 20 stone. She said she started to wear full Islamic dress not for religious reasons as might have been expected, but because she was so “disgusted with herself.”

[37]The Mother introduced a so called “healthy eating” diet early in 2007 which was designed to help her to lose weight. Food was an issue for her and she seemed unable to understand that whilst it may well have been appropriate for her to lose weight, it was certainly not appropriate for these growing children to do the same.

[38]Little wonder then that the mother quickly became reliant upon JA; he advised her on religious matters, disciplined the children and emphasised the need for them to respect their mother as well as supporting her in her healthy eating campaign.

[39]It should not be assumed that the mother bears no responsibility for what went on in the household. On the contrary, I find that she embraced the new discipline. She adopted it as her own. She too used physical chastisement and distressing and humiliating punishments on her children. She allowed, as I will detail in due course, these young children to live in squalid confined conditions, deprived of fresh air, stimulation or adequate nutrition and ultimately failed to get medical treatment for her dying child.

[40]Prior to 2007 the evidence tends to suggest that this mother managed the care of her children well given the circumstances in which she found herself. The local authority gives her credit for that and in their written closing submissions, say in terms “the children had experienced good care and a contented home life. They must have been utterly confused and traumatised by the change in their circumstances.”

[41]M’s nursery teacher spoke of the mother being nice and very co-operative, coming straight to the nursery if M ever needed changing. K had she said immaculate hair and beautiful skin. This was a particularly poignant comment given that less than a week before K’s death the mother on her own account, despite K’s screams and protests, shaved her hair off because she was pulling chunks out of it by the roots. Other teachers referred to the mother as always being polite and going on school trips.

[42]Witness after witness remarked on the change they saw after September 2007. The change in the children is on record, not only documented by the teachers but in all too revealing photographs of the children:(i) in early 2007 when they look happy, healthy and relaxed;

(ii) in May 2008 the utterly shocking photographs of K are post mortem and those of the other children alive but emaciated, and particularly in Z’s case, haunted looking; and

(iii) more recently of photographs showing them changed again, “chubby and smiling” as they were described by Dr C, the paediatrician who was instructed on behalf of the mother and JA to provide the court with an overview.

Weight and growth

[43]In order to understand the magnitude of what happened to these children it is important to have some understanding of children’s growth and the way in which it is monitored.

[44]The accepted and standard way in which to monitor a growing baby or child’s height and weight is by means of plotting the relevant child’s weight and height on a growth chart. The chart is standard and has lines printed on it known as centile lines. A child is weighed and the weight is marked on the chart using graph axes for age and weight or height. So, for example, in M’s case in March 2007 when he was approaching seven years of age, his weight of 23.8 kilograms put him on the 75th centile on the growth charts. That is to say, of each 100 children of his age 75 would weigh the same or less than him and 25 would weigh more.

[45]The whole picture can only be seen if weight and height are looked at together. A tiny child on the 75th centile for weight might be significantly overweight whilst a tall child on the 75th or 80th centile for height would be in perfect proportion.

[46]Absent a child being overweight and on a medical diet or having been ill and needing to regain lost weight, by and large children’s weight and height travel along a line on or parallel to a centile trajectory. A child somewhere between the 50th and 70th centile for weight should, all things being equal, continue roughly along that line, similarly for height. There can be difficulties with accuracy; babies not surprisingly are notoriously difficult to measure and scales vary and if not calibrated can be inaccurate. Despite this difficulty the general shape remains unchanged and weight and growth charts provide essential data for those whose job it is to monitor and care for children.

[47]Paediatric alarm bells ring if children can be seen to what is called “cross the centile lines”, that is to say a child falls away from their normal trajectory. So again using M for an example, between March of 2007 and March of 2008 his weight increased from 23.8 kilograms to 24 kilograms. He did therefore gain a small amount of weight but as a child of seven he should be growing and should be putting on weight and that tiny weight gain actually meant that he had fallen from the 75th to the 25th centile for weight.

[48]Conversely if a child is on a centile which is lower than his or her natural level and either their level of food intake increases or their circumstances significantly change for the better then “catch up growth” is seen where the child rapidly gains a substantial amount of weight and recrosses centile lines. This does not mean that they are fat (although sometimes children can initially overshoot until their weight settles down), but what is seen on the growth chart is that they are pushing back through the centile lines to regain the trajectory where he or she as a healthy, well fed child is constitutionally suited. Once again using M as an example, when he was removed from the care of his mother he gained significant amounts of weight so that by 28th July 2008, only ten weeks later, he had crossed from the 25th to the 50th centile.

January to December 2007

[49]In January 2007 A, L, Z and K all attended G P School. M as a consequence of his special needs attended H S School.

[50]The first reference to food in the documents came in January 2007 when the mother without warning withdrew the children from the breakfast club that they had been attending each morning. The reason she gave was “drastic change in my personal affairs” which in evidence she said meant the indebtedness that she had in connection with her catalogue arrears.

[51]The first reference which showed an unusual attitude to food follows on 16th March 2007. The mother wrote to M’s school. In the letter she said that M was only to have “one dinner and no seconds” and that if he had a snack it was to be only one biscuit. On 14th March, a few days later, the school nurse records that the mother was concerned with M’s weight which she felt was going up and that his stomach was distended after certain foods. In fact his weight had scarcely changed since the previous November and one has to remember this was a little boy of only six whose weight showed him to be on the 75th centile.

[52]On 20th March 2007 the mother had a meeting with Mrs J B from G P School about K who had been caught stealing food at school on two occasions. The mother told Miss B that K was also stealing food at home. During the course of the discussion I am satisfied that the mother told Miss B that the father was unkind to the children and that she had had to involve the police. She went on to say her brother (by which she meant JA) regarded K as unresponsive and sneaky and that he had suggested clamping down on her behaviour. She said, (and the mother accepts this to be true), that she had told K that she could “go and live with her dad.” In oral evidence the mother seemed to have no insight whatsoever as to the inappropriateness of her having in that meeting on the one hand made serious allegations against the father and on the other suggested that her six year old child should go and live with him. She had no understanding of the effect on K to have received such a response to her difficult behaviour from her mother. This incident gives me some insight into the difficult relationship that there was between the mother and K.

[53]It was agreed between the mother and the school that K would be seen by another teacher, L H, to talk through why she was stealing. There is a note about that meeting which is deeply disturbing. K throughout it was obsessed with food and to being what she referred to as “a good girl.” She spoke of getting nice porridge if she is good and horrible porridge if she is bad.

[54]K was weighed on 26th April 2007. She was on the 75th centile on the day she was weighed there is also a recording that the mother had said that she has tantrums and that she the mother felt that she had “indulged” K in the past.

[55]At the end of that summer term A left G P School and after the summer holidays moved to his secondary school, H School.

[56]It remains unclear precisely when JA had moved into the family home on a permanent basis, but as earlier indicated, on the balance of probabilities it is most likely to have been September 2007.

[57]Food continued to be an issue once the autumn term started. On 12th September 2007 the mother wrote to M’s school. She said he should not be given chocolate or milk due to his eczema, but she also said:

“also last night my son’s stomach was enormous when he came home from school --- please do not give him too much food. He does not know his limits. M is skinny because it is simply hereditary, not because he is starved at home, so please stop excessive feeding.”

[58]Mother’s observations were in sharp contrast to what the school was observing and in that context of great concern. A teaching assistant in M’s class recorded her shock at how much weight M had lost over the summer. In her written evidence she described him as “really thin and like a child from Ethiopia.” She spoke of him being weak and tired and the weight still “dropping off.” Mother seemed to be conscious of the loss of weight over the summer as she referred to him losing weight to her GP on 14th September in the context of the household being on a “healthy eating spree.”

[59]Just before Christmas 2007 the mother told M’s school escort that he was not to be allowed breakfast at school, only fruit. This made M cry.

[60]M’s class teacher, A Q, gave evidence. He is a teacher of considerable experience and was a very impressive witness. He spoke of M’s obsession with food which went he said beyond the obsessive behaviour one can see from time to time in children on the autistic spectrum. It was, he told the court, “the expression on his face that made the staff so sure it was not autism but hunger. You learn to read the children. None of the other children were ever as hungry as he was.” Mr Q told me quite openly how, seeing how hungry M was and knowing of the mother’s embargo on chocolate and second helpings, he arranged for the cook to give him extra large portions rather than seconds. On one occasion Mr Q caught M taking an apple core out of the bin so he found some fruit to give him.

[61]After Christmas Mr Q became more alarmed. M was holding up his trousers with his hands because he had lost so much weight and the staff, on Mr Q’s instructions, started to look for marks on his body when he was undressing for swimming. He raised his concerns with the Deputy Head and the matter was transferred to the school nurse. She weighed him and noted that his weight was between the 25th and 50th centile having been previously on the 75th and that the mother was restricting his diet.

[62]M had his annual medical review on 22nd January 2008. The doctor, Dr A, saw mother who attended with JA and the other children. I am satisfied that this was a difficult and tense meeting. Miss O’S, the school nurse, described it. She made a passing remark to the children on the lines of “what, no school today?” which was met with the mother snapping at her that it was no concern of hers. JA was not introduced. The head teacher was present which I am told, and accept, was an indication of the level of concern felt by the school for M.

[63]Despite M having dropped through the centiles to under the 25th centile by this time, the mother told Dr A that she felt he was getting too much food and she refused to agree to a referral to a dietician although she did agree to his weight being monitored. I do not accept the mother’s evidence that Dr A did not suggest a dietician but rather had told her that if M did not put on weight there would in due course be a referral to a dietician.

[64]In March when M was weighed again his weight had gone up to 24 kilograms but when weighed again in May it had dropped back to 23.5. Ten days before K’s death M’s teacher made another referral, describing him as “thin, weak, tires easily, feels the cold easily. Whenever food is available he will constantly ask for more.” Unfortunately the mother attended neither the weighing in March nor the medical in May.

[65]Mr Q did everything he could to protect M, even to manipulating school meals so that he could have more food without breaking the letter of the mother’s edict about second helpings. No-one could do other than feel profoundly sorry for him as he gave his evidence in tears and quite wrongly blamed himself for what had happened to K and the other children and for not having acted sooner.

G P School

[66]L, Z and K were all attending G P School. As with Mr Q I have nothing but admiration for all that the staff at that school did to try and protect the children in their care. The school went the extra mile to try and ensure the children were safe. The fact that they, in their opinion, “failed” is not their fault and they should not under any circumstances reproach themselves or feel in any way responsible for what happened to K.

[67]The change in the mother’s relationship with the school is a marker of how dramatic was the change in the lives of the children once JA moved in to live permanently in the house. Their attendance at school had been exemplary, no easy achievement for a single parent with so many children, and in 2003 and 2004 there are recordings of the mother being supportive and involved in the children’s school lives. All that changed in the autumn term of 2007.

[68]I am satisfied that J’s presence in the house also marked a change in the children’s relationship with their mother. A said “when it was just mummy we used to have a lot of fun” and L said “when JA went for a holiday in Saudi Arabia we got up and had fun with our mum.”

[69]One of K’s teachers was Miss A C. Miss C knew the family as she had briefly known M when he went to nursery, the mother and Miss C would greet each other in the street as they both lived in the same area. In September 2007 Miss C noticed that at break time K would go back for extra fruit without asking. K was told that she should ask and thereafter she did but always went for more. Later in the term on two separate occasions K was caught stealing small items from other children. Miss C asked if she could have a word with the mother.

[70]There is no precise date for this meeting but it is likely to have happened in late November 2007. Miss C spoke of the mother being different from the mother she had known and of her raising her voice. Miss C told the mother that K was hungry all the time and spoke of the petty thefts. The mother was angry and said K had stolen food before. She went on to say that K “wets her pants on purpose in front of her” and that she had sent her to school in the same pants in order to teach her a lesson. “Can’t you smell the stench?” she asked Miss C. Miss C described herself as having being speechless at what was being said and that the mother was unconcerned and seemed unable to realise what she had said.

[71]Mother’s evidence was that she had said no such thing and that what she had said to Miss C was that K had not wanted to go to school and had threatened to wee on the floor in front of her, something that she had done a number of times before and that she, the mother, had told her that if she did she would have to go to school in any event.

[72]I accept the evidence of Miss C. As I have picked through the strands of evidence in the case I have been left in no doubt in my mind that K was wetting herself at this time. I cannot tell whether it was the manifestation of some form of behavioural or emotional disturbance or was due to slow development as a consequence of her special needs. What |I am clear about was that this was a major issue in the household.

[73]Each of the children was interviewed by the police after the death of K. Much of what they say makes chilling reading, more like a Victorian workhouse than a semi-detached in Birmingham in the 21st century. Almost more chilling still is that save in some matters of detail, the description given by each of the children of the conditions in which they lived and the punishments which were meted out to them is largely accepted by the mother and JA but particularly by JA who was as will be seen, was the principal perpetrator.

[74]L described JA as having said that K was too old for nappies and that as a consequence she had got into trouble for “weeing on the floor in her sleep.” This sounds nonsensical but was in fact entirely accurate and the reason L spoke of “weeing on the floor” rather than weeing in the bed was that K having previously wet her mattress it had been disposed of and she did thereafter until her death sleep on the floor.

[75]K’s punishment for what ordinary families would call “wetting the bed” was to be made to sleep downstairs in the back room on her own, in the cold, in her clothes with no blankets. K was caught trying to turn the heater on and JA “whacked her with his stick”. JA L said “just kept on whacking her and then she is screaming and crying.” There is no date for this event but it would seem clear that it was before March of 2008 after which most of the house became largely unusable.

[76]K attended school for the last time on 6th December 2007. Z and L continued to attend until 17th December 2007 but there were problems with them also. The Mother disengaged from the school. She failed to attend parents’ meetings and the children’s special and educational needs reviews. She did not even to bother to read their detailed and very positive school reports. I am satisfied that the mother became increasingly rude and aggressive in her limited contacts with the staff.

[77]Z’s class teacher was Miss A W. When Z joined her class in September 2007 he was subject to what is known as an Individual Educational Plan. Part of the reason for the plan was that he was said to be selectively mute. Miss W described how at the beginning of his time with her the extent of his oral communication was that he would sometimes whisper to her if his face was very close to hers. As the months went by he became more comfortable, starting to talk, first of all in the small one to one reading groups and by December 2007 within the whole class.

[78]An incident occurred one day when the children were having fruit at break time and Z was seen taking extra fruit. When asked about it he said he was hungry and was told he could certainly have extra food but must ask.

[79]A few days later Miss W saw Z as she described it “frantically stuffing his pockets with fruit” from a fruit box in the playground. Miss W demonstrated this graphically in the witness box, showing the court by using both hands being used again and again to put fruit into the pockets with a desperate intensity. Miss W was sufficiently concerned on that occasion that she wrote a so called ‘concern report’ and passed it on to the pastoral worker at the school, Mrs. D. Miss W also spoke to Miss C and discovered that she too had concerns about K and food. Mrs D, the assistant Head teacher of the school and in charge of pastoral affairs, was told of this also.

[80]Z was obsessed with food. He was found loitering around the dining hall with a view to going back in to get another meal. On one occasion he was late to lunch due to finishing some class work and missed his lunch because he did not have the confidence to tell the dinner lady that he had not eaten. The following day the mother rang up to speak to Miss W. On this occasion she was pleasant and polite and Miss W explained what had happened.

[81]So far as I can tell this represented the mother’s only contact with Z’s school teacher as L would go to the classroom to collect Z and K each evening and, despite letters being sent home to the mother via L to invite her to attend to discuss Z’s progress, the mother made no contact and did not attend.

[82]Miss N W was L’s teacher. L was on the Special Educational Needs register for her learning as she was considerably behind the level of that at which an average child would be working. This meant that L was taught for part of the mornings by a different teacher, a Mrs D. All of the children in the school did PE as part of the curriculum. Those who were required for cultural reasons to cover up wore leggings, a long sleeved top and a somewhat shorter headscarf than they wore ordinarily.

[83]L rarely brought in her PE kit despite constant reminders. Miss W anticipated mentioning it to the mother at a parents’ meeting or at L’ special educational needs review. Letters were sent to the mother inviting her to each of these meetings, but in common with Z’s parents’ meeting the mother failed to attend.

[84]For a little while things seemed to improve and some of the time L brought her kit. There came an occasion, however, in December when once again L did not have her kit. L was told off and was perceived by Miss W to be impertinent in her response and was sent out of the class.

[85]A telephone call was made asking the mother to see Miss W the following morning, 14th December 2007, at half past eight. There followed what I am satisfied was an extremely unpleasant meeting between Miss W and the mother. Miss W physically demonstrated the mother’s opening remarks to the effect that she had said that she hoped she had been brought into the school for something important and not some stupid little thing as she did not appreciate being called out over nothing. I accept Miss W’s evidence that the mother was very confrontational (although in fairness to the mother it seems clear to me that Miss W herself became agitated and probably raised her own voice). She told me however that she felt intimidated and at one point she thought she was going to be hit. She described the mother flailing her arms, “being in her body space” and pointing into her face. She described the mother as having been very angry, speaking over her as she spoke about the other children, saying that there was a conspiracy against her.

[86]It was put to Miss W on behalf of the mother that it was she who had been the aggressive one and had the mother been behaving as described the cleaner who was present in the room at the time would have intervened. Miss W said, and I accept, that the cleaner’s intervention was the very fact of her staying in the hall when a teacher was speaking to a parent. Miss W said that the mother had complained that there was bullying in the school and that it was happening and that no-one was doing anything about it. She had had nothing brought to her attention about bullying in respect of L by the mother or anyone else. The following day neither L nor Z attended school.

[87]On 17th December the mother took L and Z out of school. Miss W was surprised that Z had been removed. It seemed strange, she said, as there had been no hint that he was other than happy at school. He was never bullied or teased about his appearance, had friends of all sorts of ethnicity and was popular in his own small circle. She had, however, been concerned about the food issue and particularly as Z had said twice in that week that he was hungry and subsequently that he was “really” hungry.

[88]The mother did attend a final meeting with the school on 18th December 2007. This was set up to discuss mother’s aggressive behaviour with Miss W. The meeting was attended by Mrs D and two other teachers. The mother came with J. The meeting was wholly unproductive. The mother and JA felt that L and Miss W should have been present if the matter was to be discussed.

[89]Meanwhile B, who was only three, had been attending the G C Nursery which she liked and from which she benefited. On 5th December 2007 the mother withdrew her from the nursery, saying that they were going away but that B would return after Christmas. She did not go back.

[90]Mother said in evidence that B was not being taught enough. It was “too easy” and that in any event JA had said that it was better if she was “tutored at home by mother.” Mother accepts as does JA that it was his advice to withdraw her and she did.

[91]As 2007 came to an end and the new year arrived, L, Z, K and B were all at home all day every day and only A and M went out to school. The contact that mother and JA had with the outside world will be considered presently, but first it is necessary to have some understanding of what was going on in the house in the months leading up to K’s death.

[92]I accept that initially upon withdrawing the children from school the mother did intend to “home school” the children; although how she thought she would cope with teaching four children, three of whom had significant special needs, is unclear. For a brief period there was a rudimentary classroom downstairs and she told me in evidence that she went to Ss and bought some revision guidebooks and such like. The fact that her total expense was, she told me about £20 shows just how little in the way of materials was available for the children. She accepts that by March 2008 even her limited attempts to educate the children had been abandoned.

[93]One feature of the mother’s lack of insight in respect of the needs of her children has been her totally unrealistic view of their academic abilities, which bore no relation to either their ages or their learning disabilities. Her constant refrain to the school and again in court was that the school were not giving, in particular L sufficiently challenging work. She spoke on a number of occasions of setting these children long multiplication and long division sums.

[94]Had the mother read their school reports she would have known that her children were struggling with the most basic of arithmetical concepts. During cross-examination the mother was taken to the children’s school reports. She said she had not read them as she felt “bad vibes” towards the school. She accepted that if she had read them she would have known that the school were listening to her, that K was on a positive learning programme and that they were tackling L’s social difficulties. The mother accepted that she should not have withdrawn the children from school and that she had acted, as she put it, “like a donkey.”

[95]The maternal grandmother, Mrs G, and her sister Z G, made police statements and gave oral evidence. In her written statement the grandmother detailed how she used regularly to help out her daughter by having the children to stay with her in pairs at the weekends. She said that after Christmas 2007 that pattern came to an end and the mother stopped visiting her. When she tried to visit the mother would not open the door. She felt, the grandmother said in writing, that the mother was keeping her away. She got the occasional text message to say that she (the mother) was “all right” but she saw neither her daughter nor any of her grandchildren between about December and May. In her statement she said she was concerned at how thin the children looked. These statements it should be remembered were made within days of K’s death.

[96]In contrast the oral evidence of the Grandmother’s was frankly bizarre and completely at odds with her statement. She said, contrary to her statement, that it was not unusual for months to go by without her seeing her daughter. She seemed wholly unmoved when she produced her mobile telephone in the witness box to show the court the quite extraordinary text which had been sent to her by the mother the morning of K’s death telling her of her death. It read:

“K died this morning. I am going to be questioned.”

[97]In evidence she denied worrying about the children’s weight. The evidence of the grandmother was wholly unconvincing and clearly designed to protect her daughter, who after all, stands accused of murder. I find that she told the truth about the period between January and May 2008 in her written evidence and that she (and her daughter, who also gave evidence along the same lines as the grandmother), were deliberately kept away from the house once JA moved in; indeed they did not even know that JA was living in the house.

December to May 2008

[98]What happened in the house and the treatment of the children behind its walls has been described by the children and is largely accepted by JA to be an accurate account. Only the mother continues to deny the children’s allegations and refuses to accept the cause of death of K. JA made some limited concessions about beating the children in his written material prior to the beginning of the trial. Subsequently during the course of the trial he became deeply distressed and arrangements were made for him to be medically examined by his psychiatrist, Dr K. It was important for the court to ascertain whether or not he was fit to give evidence. Dr K having examined him said that he was and he accordingly went into the witness box. During his evidence JA made extensive and detailed admissions to the court, revealing a harsh and cruel environment and confirming the allegations the children had made. The house

[99]Initially the children shared bedrooms in a conventional fashion, one for the boys and one for the girls, with B, the baby, in with her mother. Downstairs there were two rooms and a kitchen. The mother, as I have already indicated, was unable to obtain a transfer of her tenancy until such time as the house was decorated. The children had drawn all over the walls, an indicator perhaps of the struggle mother was having in controlling the children before JA moved in.

[100]JA offered to renovate the house. Unfortunately he did not go systematically round the house room by room and in addition to re-decorating he decided to lay new laminate flooring throughout.

[101]By March 2008 on everyone’s account the house was chaos. The only usable rooms were one bedroom, a front downstairs room and the kitchen. All the children were now sleeping in the upstairs bedroom together. This was bad enough, but there was only one double mattress for all of them to share. The floors were bare wood and there were no sheets on the mattress. In addition to the mattress there were a few old cushions against which the children lay. The children’s toys had all been thrown out. The Mother blamed the children saying that they had said that they did not need toys and all that was left were a few jigsaws.

[102]The children’s clothes can be seen pathetically laid out on the floor for the photographs to be taken by the police. They represent a stark contrast to the photographs taken on the same day of designer trainers, suit and clothing all bought by the mother for JA and of the laptop, printer and monitor to be seen in the mother and J’s room. These young children even had to wash their own clothing in the bath.

[103]All six children were sharing the double mattress. Accounts differ as to how long this had been going on but I am satisfied that it was for a significant length of time and that although two mattresses can be seen abandoned in the garden on the photographs there is no sign or evidence that there had ever been a bed or even a mattress for each of the children. The Mother said that it was her intention to buy the children each a chair bed to sleep on. Again in contrast to the conditions in which the children slept, the mother and JA were sleeping on a newly purchased sofa bed with appropriate bed linen.

[104]M and A continued to go to school each day. The other four children spent all day in the room, rarely leaving it or going out. The mother seemed oblivious to the effect this must have had on the children. In evidence she said the house was in disarray but denied that the conditions were disgraceful. “I was decorating. It could not be helped.” She admitted only that the task of educating the children was beyond her and that she had given up trying. By March she said the children were getting no education at all and she accepted that their lives were spent in the bedroom. She spoke again with the same oblivious attitude, “there was”, she said blandly, “nowhere else for them to go.”

[105]The impression from the evidence is that the mother by this time was having very little to do with her children. They ate, slept and lived in one room with no external stimulation and only little contact with the mother and J. It is hardly surprising that the children would fall out, fight, make a lot of noise and in L’s case be defiant.

[106]Dr C was probably stating the obvious when he said that the way the children lived must have had a psychological effect on them. He highlighted the lack of sunlight and the lack of interaction with other children. “Just the physical environment”, he said, “in which the children were living amounted to extreme neglect. This is terrible” he said in evident distress when looking at the photographs of the children’s room. No one who has seen the photographs could disagree.

Food

[107]Both the mother and JA were obsessed with food. The mother wished to lose weight. JA said in evidence that it had been his idea for them to change diets, although the mother said that she had introduced the new regime prior to JA living in the house. Before he moved into the house he said that all the family ate was junk food and he thought that they were all quite fat. On his own account the restriction of food was used as a punishment when he was a child and he readily accepted in evidence that in turn he did the same with the I children.

[108]The photographs of the kitchen show a well stocked fridge with plenty of good quality healthy food; not just basic food but fruit juice and plenty of expensive fresh fruit. Neither the mother nor JA were malnourished and although they too were ostensibly on a ‘healthy eating’ diet this did not prevent them from sharing a take-out the night before K died. J put a lock on the kitchen door, high up and out of the reach of the children.

[109]Both the mother and JA said that the lock was put there to deter burglars coming in through the kitchen windows. The children in the main say they were not allowed in the kitchen. I find that the lock was to prevent the children having access to food. These were not babies. The medical evidence is clear, that children of this age will forage to find food if they are hungry as they did at school. If they had been able to get into the kitchen during the day they would have done so. They were ravenously hungry. The medical evidence is that they were deprived of food for many months and this is accepted by J. Mother’s continual denial that they were not short of food and were only denied junk food beggars belief in the circumstances.

[110]Once the children had been withdrawn from school they no longer had the benefit of school lunches. The children allege and I accept that they frequently only had two meals a day and even then it was severely limited both as to quantity and nutritional value. Z told the police that the children “only have breakfast and dinner but the mother and JA have lunch as well.”

[111]Some time in February 2008 the mother went round to a next door neighbour’s where a Polish family called W lived at the time. When the door was answered the mother was at the door and it is accepted was angry and accusing a family member of the W’s of feeding K behind her back. She said a thin, underfed child, K, was brought to the door and that JA joined them. K pointed to the daughter of the house and said that she, the daughter, had been giving her bread. Mr W is clear that no-one had given K bread but said that there was no fence between the gardens and they used to put bread out for the birds. He could only guess that it was that bread that K was eating but was too afraid to admit it to her mother.

[112]The W family have moved on and have been unable to be traced for the purposes of this hearing. Their evidence was not therefore tested in cross-examination. I note that Mr W gave the date of this incident as February which would tie in with the appropriate time of year for feeding birds and was many weeks prior to K’s death.

[113]The children were fed in either one or two bowls which were taken upstairs and put on the floor in the room in which they lived. They ate like puppies around and from a communal bowl. The children had their own rules about eating; each could only eat the portion in front of where they knelt; tragically and inevitably however there was an element of survival of the fittest. It would seem that A, as the oldest, and biggest and B, as the baby and who was largely cared for by her bigger sisters, fared the best.

[114]Z said they did not get enough to eat and they would not get any more food until the next meal.

[115]JA accepts that the bowls in which the children’s food was given to them were only a quarter full. Mother said the other children stopped K getting her fair share and although she supervised a couple of times she soon stopped doing so in order to “get on with the decorating”. The mother and JA meanwhile ate downstairs off plates in the conventional Mer.

[116]The mother said in evidence that the children were not starving and that there was ample food. They could get the food as they had “two arms and two legs and they had access to the kitchen.” Again and again in evidence she spoke of giving them fish and rice and “masses of vegetables”. She constantly asserted that the only time food was used as a punishment was by depriving the children of their pudding. Even setting aside the fact that these children were not getting anything like enough food in terms of nutritional and calorific input, the very system by which they were fed was appalling.

[117]The Mother did not at any stage seem to have any regrets or insight into the degrading and neglectful way in which she was caring for the children or even, (to use a wholly inadequate word to describe what she was doing), the inappropriateness of putting a bowl of food on the bare floorboards from which these six young children had to sit around and eat - without plates and sharing one glass between them from which to drink.

[118]The evidence is that on occasion the children did attempt to steal food. L described to the police how Z and K had stolen some peanut butter and were caught. They were made to eat peanut butter and chocolate spread until they were sick and for stealing food they said they would be beaten with a stick whilst JA sang a song.

[119]It seems that near the end of K’s life the mother and JA were near the end of their tethers. The decorating was going on and on. The state of the house was indescribable. The children were difficult and despite the strict discipline and beatings meted out to them they were always complaining and wanting food. Mother’s perception was that they “just wanted to go back to the junk food”, whereas the reality was that they were desperately hungry and just needed food. It may have been the perception of the children that in the days before JA, they had lived on junk food but had then enough to eat and so yearned to return to it.

[120]When the mother was shown the “before and after” photographs of the children referred to earlier in this judgment, she spoke of smacking L and Z “because they were so thin and would not eat”. She said they lost so much weight and they wanted it back the way it was before (meaning that they wanted to eat junk food). She said “I could not stand it any more” so on an occasion about three weeks before K died, she made a pile of sandwiches made of such things as ketchup, crisps, cheese, chocolate and peanut butter and force fed the children with them.

[121]A recalls that JA shoved the sandwiches into L’s mouth which made her sick and L then had to clean up her own vomit. So far as the latter episode is concerned the mother makes some limited admissions, she said that the children wanted food and having made it she was going to force them to eat it. A in his account creates a vivid image of the mother, angry and resentful making a plate of (as she sees it), junk food sandwiches. Instead of it being fun and a treat, the children were shouted at …. they wanted them so they were going to eat them.

[122]When Dr C was shown L’s account of force feeding being used as a punishment he became distressed and struggled to compose himself. He said “I have never come across anything like this before. I am quite hardened and I am shocked reading it. Food was obviously an immensely powerful tool in the household.” I accept Dr C’s evidence.

[123]The mother looked at the photographs and accepted that the children looked very thin. She refused, however, to accept any responsibility for it. “I knew how to look after my children. I knew what they needed.” Her constant refrain was that they had plenty to eat. Mother gave the lie to this in her own evidence about the sandwiches; that unpleasant incident had come about because the children were so thin and could not or would not eat. I have no doubt that the mother knew her children were too thin. The tragedy for her children was that she reacted not by changing the regime so as to feed them in an appropriate way, downstairs and supervised with sufficient quantities of food but, as she said in her own words about L, “she was really thin in the face so I smacked her and forced her to eat.”

[124]The mother categorically denies that K died of malnutrition. She asserts that she did not look as she did when she died just two weeks previously. She insists that she died of food poisoning as a consequence of being given mouldy bread to eat by the neighbours. There is no evidence that the bread, if K even ate it, was mouldy let alone that it would have caused K any harm. Z put it simply to the police: they were very unhappy because they did not get enough to eat. Both Z and L spoke of missing meals if they were naughty and of Z and K stealing food from the bin and being hit with a stick if they were caught. Z was asked by the police what he thought was wrong with K. Z despite his very young age knew precisely what the matter was: he replied “she didn’t eat much. She didn’t eat enough food because she was missing out on meals.”

Punishments

[125]The children as I find were not only deliberately deprived of food, but they were also subjected to many and various punishments. The most common one was the use of a cane to beat the children. This was used on a frequent basis “to discipline the children.” A described the stick to the police. “It is very thin. It hurts very bad and it is green.” He said that they were hit on the legs and bottom. “He kept on whacking us with the stick.” He described L being “whacked so hard she bled and ran out of the house” and her mum had to follow her.

[126]When the forensic pathologist, Dr K, carried out the post mortem on K late on the evening of 17th May 2008 he found numerous marks on her body which had been made by the stick including some fresh ones, that is to say between 48 and 72 hours old. Dr K arranged to be taken to the house in the early hours of that morning in order to see if he could find an implement such as would have caused the injuries. He found the thin green stick propped outside the children’s bedroom door. When JA was asked in evidence where the stick had come from the answer was mundane. It was a stick he had bought from B&Q to prop up his Swiss cheese plant.

[127]Whilst JA would “whack the children” as they called it, mother hit them with a flip-flop, a slipper or her hand. She denies using the stick and L alone refers to mother using the cane. In any event I am satisfied that the mother saw the children hit on more than the odd occasion. Mother originally said twice but then she accepted in evidence that it was more often than that that JA used the cane on the children. She said that she told JA that she did not approve of physical punishment. He accepts that she said something to that effect but he says that she did not try and stop him.

[128]Time and again in relation to all the punishments to which her children were subjected the mother said that she could not have known what went on as she went out of the house to go shopping. Such an excuse does not bear even the most superficial examination. All the children had cane marks on them when they were admitted to hospital. Significantly K, L and Z who were the most malnourished also had the most evidence of physical abuse. Z, for example, had marks evidencing about 16 different strikes to his body. The mother went shopping she says three times each week for a couple of hours, whereas the children were confined to the house for five months and the nature of the punishments were such that she must have known what was happening. I find that having been at the end of her tether in trying to control the children prior to JA moving in she thereafter colluded in what she thought was an appropriate regime in order to discipline the children and to ensure that they showed her the ‘respect’ which she believed was her due.

[129]JA said in evidence that he had never dealt with children before and so did not know how to handle them. He said he felt under “so much pressure in the house”, doing so many things that it all became too much for him. He admitted to beating the children with the stick and putting them in the back garden. He said that he had put Z and K in the garden shed as a punishment for about an hour. He denied, as was alleged by the children, that he had made them sleep in the shed but accepted that on occasion it had been dark when they had been put outside and that the children had been frightened by the shadows.

[130]K and L described having to stand outside in their underwear in the cold and the dark and sometimes having cold water spilt on them. The mother and J, whilst accepting they both put the children outside as a punishment, denied that they were in their underwear. Even little B who was coming up to her 4th birthday was put outside.

[131]The children’s evidence is corroborated by a neighbour who saw “the thin child” in the garden in her underwear although, as I have already indicated, this neighbour has not given oral evidence. Neither the neighbour nor L knew what the other would say nor is it in my view unlikely that their accounts would tally had it not happened. I find that the children were put outside in their underclothes as a punishment.

[132]One punishment that was used by both the mother and JA was to put the children “in detention”. This meant the children had to stand for anything up to an hour with their hands on their heads. Another and even more unpleasant punishment was that the child in question would be made to stand in front of a cold fan with their hands on their heads. L describes this happening to her and how they were made to wear their brothers’ boxers and stand for lengthy periods in front of the fan with their hands on their heads. JA she said watched her undress and put on the boxers, an anathema to a Muslim girl. Being made to do this L said, made her feel “undecent.” I accept L’s account.

[133]The children also allege that K and L were made to have cold showers if they were rude and L gives an account of her mother being in the bathroom at the same time washing in warm water at the sink. Similarly they refer to A and K having to sit in cold bathwater as a punishment and of JA pouring cold water over L’s head and of them having cold water poured over them when they had been sent outside in the cold. Both mother and JA deny making the children have cold showers. The only concession they make is that they say on one occasion when she alleged that K had made L have a cold wash, JA had suggested that she should “have a taste of her own medicine.”

[134]It is impossible for the court to make specific findings about the various incidents which involved cold water being poured over the children as a punishment. I find that the theme of cold water being used as a punishment is too consistent and recounted by too many of the children for a court to do other than conclude on the balance of probabilities that the children were regularly exposed to the use of cold water as a form of punishment. Whilst JA does not agree the detail, he does accept that making the children cold, whether means of a fan or otherwise, was a form of punishment used on the children in the household.

K’s death

[135]Only the mother and JA will ever know the full story of what happened to K, although through the evidence as it was played out during the hearing this court was able to catch glimpses into the utterly miserable time K was having at home. Dr C thought perhaps she was made scapegoat within the household and K, of all the children, certainly seems to have had a particularly grim time. It was striking that in all the days of evidence the court heard not one word of love or affection for K from her mother. Always it seemed to me, she was spoken of critically; that she would deliberately wet herself, that she had tantrums, that she was difficult. No allowance seemed to be made for her age or for her very significant learning difficulties. It is hard to imagine what it must have been like for K: JA said that she wet herself and that he would therefore hit her with a stick and put her outside. Her mattress was thrown out when she got urine on it. In the witness box her mother spoke of her resentfully on several occasions, for example, she that she did not believe that K had a Djinn. “She has always been difficult” she said.

[136]Mother said in evidence that the week before K died was “very bad”. K was pulling out large chunks of her hair. Her hair was “so bad” that on Sunday 11th May, just six days before she died, the mother shaved off K’s hair. She told me “K fought back and was very upset. She did not want it cut.” The mother denied that this was a punishment for pulling her hair out, but even if one accepted that to be so, it takes little imagination to see how punitive and distressing the mother’s actions must have felt to that little girl.

[137]JA’s account is not completely clear but it would seem that on the Thursday afternoon the mother went shopping, leaving him with the children. K, he said, was rude and attacking B. As a punishment she was “put in detention.” This, as has already described, involved standing in front of the cold fan and not moving. JA says that after about an hour K leant against the wall. He told her to take her hands off the wall because of the fresh paint and struck her with the stick. JA accepts that this explains the fresh tramline bruises found on her left thigh at post mortem it follows therefore that he hit her not once but twice. It was then he said that she fell to the floor.

[138]No matter how much the mother may wish to distance herself from the death of K it is perfectly clear that the mother knew that something had happened to her when she came back from shopping on that Thursday. The mother described coming up the stairs and it being unusually quiet. She saw L standing with her shoulders hunched in such a way that she knew meant something was wrong. When she went into the front room K was on the floor with her head on JA’s lap. She said numerous times in evidence that she kept asking what had happened even though she had been told that K had fainted. “She thought”, she said in an unguarded moment in evidence, “he might have smacked her until she had passed out.” She was right in her surmise but did nothing about it. It is hard to understand how any mother coming upon that scene did not immediately call an ambulance.

[139]A described what he found when at about 3.40 he got back from school. K, he told the police, had her head on his mother’s lap. His mother said that there must be a Djinn or evil spirit in K’s body. His mother was sprinkling water on K and saying “wake up, K.” K, he said, did not wake up that evening and when he came home from school the next day, Friday, she was sleeping on the mattress. That Friday night, he told the police, the mother slept in their room and in the morning “K’s belly was not moving” and the mother ran downstairs to call the ambulance.

[140]The mother’s account is that shortly after she got home she went downstairs and then saw K walking across the landing to the bathroom. The mother said that on the Friday the 16th K seemed better and was walking around. She was weak but up, although she had to be helped to wash and go to the bathroom. She tried to force her to eat something, saying that she could not sleep until she had eaten. Most of the Friday the mother said K was in bed and when she was up she was stumbling all over the place.

[141]The mother said she noticed that K’s lips were bleeding as K ground her teeth but did not notice how severe it was. K was desperately ill by this time and it is inconceivable that any parent did not get help for her particularly as on her own account she believed K may have been knocked senseless by JA the day before. Anyone who has had the distressing experience of seeing the photographs of K’s torn and bleeding lips would be unable to contemplate a state of affairs whereby medical attention had not been sought for that if nothing else.

[142]Neither JA nor A speak of K walking around but they do speak of JA reciting the Koran over her. JA said that in the last few days K’s face changed. She was pale “and did not look very good at all.” JA said that at the end he thought K was possessed by Djinn. He said that the mother did suggest getting help. He said “that is when I accept that K was possessed and that a doctor could not help her.” JA accepted that he told mother that K was tired and as a result she did not get help. Whatever JA did or did not say, whatever discussions there were between JA and the mother, and regardless of whether or not the mother accepted that K was possessed by a Djinn, the fact remains that this was a child in desperate need of medical attention and none was sought.

[143]Even at this stage, the mother was not sitting with K nursing and comforting her or even watching over her. K by then had pneumonia and early meningitis. As she lay dying upstairs the mother was downstairs looking up Djinns on her laptop and eating a take-away with JA. Meanwhile the other children ate leftovers upstairs in the same room in which K was dying. The mother then fell asleep with JA on the new sofa bed downstairs. It is not clear when exactly the mother went up to the children’s room, but K died during the night, to be found cold the next morning when her mother woke up next to her.

[144]JA explained that he thought that K was possessed from the time he had put her in the shed that she had come out from the shed cold, crying and frightened. She had seen shadows which she thought were the devil. She had said she had made friends with the Djinn.

[145]By the end he said:

“I thought something was terribly wrong. I didn’t know if she would die but I was reciting the Koran and thought I could do something myself. I was reciting mainly because I thought she was possessed. The purpose of reciting was to remove the Djinn. I was deluded.”

[146]JA unreservedly accepts the blame for K’s death. How he treated her was how he was treated as a child. He said “I ended up treating her how my dad treated me.”

[147]K was just seven when she died. L said “she didn’t wake up for three days.” I am satisfied that K was desperately ill from at least the Thursday when she had been beaten and made to stand for at least an hour in front of the fan. She died without medical treatment, without love, comfort or reassurance on a dirty mattress shared with her brothers and sisters in a room she had scarcely left for five months.

[148]The mother said in her evidence that she had become scared of JA over the previous couple of weeks and that it was her intention to ask him to leave. Her plan she said was to take the children to her mother’s the next day and then K on to the doctor’s. She said that JA had been behaving strangely and that he had shouted to her on two occasions and had been disrespectful towards her. This was new evidence from the mother in the witness box. Having seen and heard her over two days I accept that JA was in the last weeks behaving strangely. JA himself believes that his mental health was deteriorating. I do not accept, however, that she was fearful of him and certainly not such that she would have been in any way inhibited from getting help for K had she chosen to do so.

[149]The mother called an ambulance and it came Med, amongst others, by a paramedic called S H. Mr. H is an experienced paramedic yet he was reduced to tears in the witness box when he recollected the piteous sight of K’s emaciated body when he got to the house. K was taken by ambulance to the Birmingham Children’s Hospital. Attempts were made to resuscitate her. The mother was seen and spoken to by Dr D the consultant paediatrician, and the senior child protection officer for Birmingham. Dr D recorded that the mother was very distressed and blamed herself for not getting medical attention earlier for weight loss.

[150]When asked specific questions the mother said that there had been no vomiting, diarrhoea or abdominal pain. The mother disputes this, but she said this and there is some contemporary recording that suggests that gastroenteritis may have been mentioned. In any event it matters little as the height of the mother’s case that K had food poisoning was that she saw some diarrhoea in the toilet bowl on the Wednesday before K died. Mother told the doctor that the other children had been bullying K over the last few weeks.

[151]Later that evening a post mortem was carried out by Dr K. He gave as the cause of death: 1(a), bronchia-pneumonia with septicaemia due to 1(b), malnutrition.

[152]Dr K found a total of 60 external injuries on K’s body. Not all of those were caused non-accidentally but of those 60 a large number of them were the tell tale tramline bruises indicating that a stick had been used upon her.

[153]The other children were in due course taken to the City Hospital also in Birmingham so they could be physically examined. I heard evidence from Dr Michael P who has been a paediatrician for some 16 years and the consultant paediatrician at the City Hospital since May of 2003. Dr P examined Z and L as they seemed the two children in most need of medical treatment. At the same time and on the same ward a specialist registrar examined A, M and A.

[154]Dr P’s first recollection of Z was of him sitting eating sandwiches having been taken from Accident and Emergency up to the Paediatric Assessment Ward. Dr P describes his concentration on his food, with his head down, deliberately conscious of his siblings around him and protecting his plate. Dr P describes this as an extremely abnormal feeding reaction for any child particularly for a child brought into to the foreign environment of a paediatric ward. Dr P said he had observed similar abnormal feeding patterns in respect of each of the surviving children.

[155]When Dr P came to examine Z he was very quiet, uncommonly so and very accepting of examination. Dr P explained how after 16 years’ experience he was usually able to build a rapport rapidly with a child when he was examining him but not with Z.

[156]When Z was undressed he was very emaciated. Dr P had not seen a child so emaciated in all his clinical practice. He had so little subcutaneous fat on his body that he had pressure marks down the whole of the length of his spine, something he said he simply does not see in paediatric practice.

[157]Dr P assessed the body mass index of Z using recognised formulas and charts. For a boy of Z’s age the average BMI would be 16.3. For a child on the 0.4th centile, that is to say the lowest centile on the standard charts, BMI would be 12.9. Z’s BMI was 12.4. Z’s presentation was so outwith Dr P’s experience that he discussed the case with all his colleagues, none of whom had seen a child in this condition.

[158]In all the voluminous papers in this case there is little that creates a picture of this little boy’s personality. What is known is that he was the most seriously ill of all the five surviving children and that he had more scars on him (in excess of 16) indicative of being beaten with a stick more than any of the other children. That means in crude terms that he was least able to get food and seems likely to have been hit most often.

[159]Why this little boy of nine who all the staff at school liked should have been picked out in this way may never be known. After admission to hospital Z wrote a pitiful letter to his mother:

“Are you okay, mummy, and is K all right and okay? Is K breathing, living and loving and is she okay, mummy?”

[160]One of the consequences of the rarity of a child being seen in this country in the condition in which Z was presented was that, as Dr P openly and honestly admitted to the court, he simply did not appreciate the precariousness of Z’s condition. As a result although Z should not have been able to eat too freely, the staff and (understandably) the nurses on the ward, felt totally unable emotionally to deal with the situation in which they found themselves and Z was allowed to eat too much too soon. As a consequence Z quickly manifested what is known as Re-feeding Syndrome.

[161]Re-feeding Syndrome was first described in the Far Eastern prisoners of war cases after the Second World War. It is seen following starvation when the fat and protein stores in the body are broken down to produce energy. This leads to changes to the level of some of the salts in the body and particularly phosphate. When the individual starts to feed the body switches back to using carbohydrate to provide energy this causes an increase in insulin levels and a flow of phosphate into cells. This can lead to profoundly low blood phosphate levels which in turn can produce the clinical features of Re-feeding Syndrome. These include muscle breakdown, increased risk of infection, respiratory failure and heart failure. Professor M, when giving his evidence, said that often with prisoners of war after the Second World War, when the prisoners starting eating again they simply dropped down dead. There is no doubt that the Re-feeding Syndrome could have been fatal for Z.

[162]Once the hospital understood what they were dealing with they were able to institute standard treatment to replace the chemicals and vitamins, in particular intravenous phosphate. Dr P said that had Z been an adult he would have been in imminent risk of death but as a young child his strong heart made him better able to withstand the effect of malnutrition on his body.

[163]L also represented as quiet and slim with her skin drawn over her facial bones and significantly underweight. She unlike Z had no pressure marks. However, she did have oedema over her ankles which Dr P felt may well indicate low protein. He observed the same abnormal eating behaviour as regarding food as he had observed with Z. The appropriate average BMI for L would have been 17.5. Hers was measured at 13.7. She had four linear marks across her legs. L was not in such a precarious position as Z had been but she too suffered a much less serious form of Re-feeding Syndrome.

[164]A was less withdrawn than the other two children. Dr P felt that as the eldest child he seemed to feel a degree of responsibility for his siblings. He was the best nourished of all the children although he too ate abnormally. He had only one area of what were believed to be stick marks. M and A were each on low centiles on the weight and height charts but that information in their case was insufficient in isolation to tell Dr P that they were underweight. M had only one linear mark. A seemed unscathed.

[165]The children were each seen again by Dr P on 28th July and again on 13th October. Between the two examinations each of the children gained significant amounts of weight. Z had gained a staggering 9.5 kilos and his BMI had increased from below the 0.4 percentage to the 75th centile. Dr P had never seen such a dramatic weight gain in all his professional experience. The other children made similar and appropriate improvements.

[166]The evidence given by Dr P concerning the dramatic increase in the weight in the children between May and July was explored with him. He was asked about the change of diet from so called junk food to a vegetable, rice and fish diet. Dr P said that in his experience children of Afro-Caribbean origin tended to be more overweight than white European children although white European children are fast catching up. The treats of chocolate and crisps that were seen in the food diary kept after the children were taken into care would only have made a difference if sustained over a long period. At the conclusion of cross-examination Dr P said that his view was that Z and L had been deprived of food to a very significant degree over a long period of time. I accept his evidence.

Expert evidence

[167]Following the death of K the police commissioned reports from a number of medical experts. Subsequently in these proceedings the mother and JA were given permission to instruct their own raft of experts namely: Dr C, a consultant paediatrician, who conducted an overview in respect of each of the children, Dr S, a paediatric gastroenterology, Dr S, a consultant paediatric pathologist and Dr D, a consultant in Microbiology and Life Sciences.

[168]On 22nd January 2009 the experts instructed by the mother and JA had a experts meeting by telephone. There were no areas of disagreement between them. Their views were the same as the experts who had either treated the children or been instructed by the police and adopted by the local authority in these proceedings. Those experts were Dr K, the forensic pathologist who undertook the post mortem on K, Professor M, Emeritus Professor of Paediatric Gastroenterology and Nutrition, Dr G, a consultant medical microbiologist and Dr S, a consultant neuro-pathologist.

[169]Despite the fact that there were no issues between the experts the court has heard live evidence from a total of 13 medical witnesses. This gave in particular the mother the opportunity fully to explore her hypothesis that K died of infection which in turn had led to weight loss rather than from malnutrition which led to the suppression of her immune system, leaving her open to the bronchia pneumonia which was the ultimate cause of death.

[170]At the end of the oral evidence the consensus between the doctors remained unshaken and was usefully summarised in simple terms by Mr Keehan and Mr Weston on behalf of the Intervenor in their written submissions. So far as K was concerned they summarised it as follows.(a) K on admission to hospital on the morning of 17th May 2008 was marasmic.

(b) She was severely malnourished.

(d) The primary cause of death was pneumonia.

(e) There was evidence of meningitis in the brain but not of a degree to cause death.

(f) A number of the bacteria identified from samples taken peri-mortem or post mortem were present as an artefact or contaminant. The various other organisms identified by the microbiologist were found in isolated parts of the body and there was no evidence of any histological reaction to support the presence of the bacteria. At its highest there is a possibility that the organisms were present.

[171]So far as the other children were concerned it was summarised as follows.(a) A, L, Z and A were underweight.

(b) Each child was to differing degrees malnourished.

(c) L and Z were the most seriously affected and suffered Re-feeding Syndrome after their admission to the City Hospital, and

(d) The cause of weight loss in respect of each child was a lack of intake of appropriate quantities of food.

[172]Given the highly unusual nature of this case it is helpful to make reference to the evidence given by Professor M in order to have a better understanding of what happened to the children. Professor M is the Emeritus Professor of Paediatric Gastroenterology and Nutrition at the UCL Institute of Child Health in London. He has been a specialist in Paediatric Gastroenterology and Nutrition for some 30 years.

[173]Professor M explained to the court the process of starvation. Protein, carbohydrate and fat are all necessary he told the court for normal growth. Sufficiences of all three are necessary for full bodily function and can be called X. In addition the body needs to grow as well as function. The body needs growth, being Y. A growing healthy child therefore needs both X and Y. When a child or a person becomes undernourished X goes relatively swiftly. If nutrition continues to be insufficient Y goes down as well and the child stops growing. That, he said, takes four to six months. The changes will not be seen in linear growth in under two months. This effect is seen in medical malabsorption cases where there is a time lag but once the body runs out of these nutrients it stops growing. Thereafter a child in the chronic phase of malnutrition will continue to lose weight but their height will also become stunted.

[174]In his report prepared for the court Professor M elaborated. When protein and energy are particularly deficient it may be referred to as protein energy malnutrition. This he explained is further divided into marasmus where protein and energy are equally deficient and kwashiorkor where protein as a source of energy is in particular deficient. The means of assessing and grading protein malnutrition is via what is known as the Waterlow classification with grade 1 being the least severe stage of malnutrition and grade 3 the most severe. K, he said, suffered from marasmus and was grade 3 on the Waterlow classification.

[175]Professor M’s evidence is that when a person loses 40% of their body weight they die. Z had already lost 32% of his body weight which Professor M told the court brought him too within grade 3 of the Waterlow classification. Dr P and Professor M were both clear that had there not been medical intervention, Z would have continued to deteriorate and would have died; understandably Professor M put it somewhat euphemistically:

“Z would have got into the same state as K.”

Using the same Waterlow classification L was on grade 2 of the scale.

[176]One of the chilling features of the expert evidence in this case is that without exception all the papers and studies drawn upon to assist the court in reaching an understanding of what happened to these children are in relation to prisoners of war, famine children in Africa and the Northern Irish fasters in the early 1980’s. None relate to western children even in the last depression.

[177]Professor M explained that the most recent information about what happens with excess fasting is in relation to the hunger strikers. He told the court there is a loss of body tissue and then oxidization of the body fat and then of protein. Thin people oxidise their energy sources quicker than fat people. Children have higher resting energy expenditure so they run out sooner than adults.

[178]Bobby Sands and the other hunger strikers had no food at all whereas he felt it is likely that these children had some food. Effectively the body eats itself to survive which is why in extreme emaciation cases such as were seen in K there is a total loss of subcutaneous fat and muscle mass.

[179]Dr M said that once the child or adult loses 40% of their body weight they die from infection because their immune system has become so compromised. He explained that the defence system becomes compromised, particularly the spleen and the thymus which are very important in instructing the body as to how to deal with infection. It was no surprise to him that bronchia pneumonia and meningitis were found in K. She had virtually no thymus and spleen left, which is as he would have expected to find her given how seriously malnourished she was.

[180]In the days prior to her death Professor M would have expected K to have presented as sleepy, irritable, not wanting to eat, to have picked up infection, to have spasms and fits. It did not surprise him to be told there was twitching of the muscles and it was clear from the history that she was sleepy and that there was a loss of appetite. The difference he said between being asleep and being unconscious is that unconsciousness he would define as appearing to be asleep but being unable to be aroused.

[181]Alopecia or hair loss such as K suffered could also be associated he said with malnutrition as it occurs with nutrient deficiency, particularly zinc. K was found to be low in zinc dependent enzymes.

[182]Professor M looked at the photographs of K in the context of the mother’s case having been and remaining that K lost virtually all the weight in the last week of her life. Looking at the photographs taken the day she died he said “this would not occur in the last few weeks. It would take many months. She has suffered from extreme emaciation. There is complete loss of subcutaneous fat and muscle wasting not just on the buttocks which go first but in all four limbs. The bony prominences are made even more prominent by the complete lack of abdomen.”

[183]The abdomen he noted to be concave which could suggest that she had not eaten for some days before the photograph was taken. The mother having looked at the photographs in the witness box denied that K’s stomach was flat on Friday and maintained that nearly all the weight was lost in that last week. I accept Professor M’s evidence.

[184]Professor M noted blood in one nostril and the haemorrhagic lesions on the lips. The presentation of the lips was he said the same as one would see with severe malnutrition, lack of vitamin C, it could he said have been scurvy or severe vitamin K deficiency. One would not normally see such presentation in a well child for the simple reason that if a child chewed them to that extent they would simply stop because it hurt.

[185]Professor M’s conclusion was that he did not think that K had suffered total starvation but that she had been seriously malnourished for a minimum of three months.

[186]Miss Meyer Q.C. on behalf of the mother put to Professor M a number of questions designed to show that K had had sustenance in the days prior to her death. She put to Professor M that there was some sustenance in her gut at post mortem. Professor M said that it amounted to 14 grams or a little less than three teaspoonfuls which might indicate she had eaten something in the last 24 hours but that it had been very small. This would tie in with A’s evidence that his mother was trying to feed her and that she was “chewing whilst she was asleep” and also the mother’s evidence that she was trying to force feed her semolina. Miss Meyer also asked about the presence of something which could have been a stool along the line of the gut. Mother relies on this as evidence that K had had diarrhoea. Professor M was not impressed with this as any sort of an indicator. The gut he said can secrete fluids which can be interpreted as stool and therefore it does not mean that you have eaten at all and he said “a very small amount of stool, like blood, goes a long way”. His conclusion was not to read anything into the presence of sustenance in the gut.

[187]The Professor’s view that K was suffering from marasmus at the time of her death was appropriately challenged by Miss Meyer. She suggested that K was suffering from kwashiorkor (the relevance of that being that if that had been the case it might have been possible to explain her state by inappropriate diet as opposed to deprivation of food). In response Professor M pointed out that at post mortem K’s liver showed marked acute atrophy. Professor M commented by reference to a paper by a Dr Portman that the pattern of liver alteration is in keeping with marasmus, a nutritional liver disease, which Dr Portman says, is seen in protein energy malnutrition. When asked about this by Miss Meyer, Professor M responded by saying that Dr Portman is “king of liver pathology and I would not dare challenge him.”

[188]Miss Meyer explored with Professor M the possibility of the bread K may have eaten from the neighbour’s garden being mouldy and certain fungi having been ingested by K with severe adverse effects. Professor M regarded this as most unlikely. He commented that there was no evidence that K had ingested it, that it had had any mould on it or even if it did that the mould would have been in any way dangerous other than tasting unpleasant. He clearly regarded the proposition that this child died from eating mouldy bread as little short of preposterous and caustically commented that “we don’t know anything about her eating mouldy bread but we do know plenty of other things.”

[189]Professor M was anxious that the court should be aware of the reality of what happened to K. Hunger, he said, is a painful experience in the early stages. “Make no mistake” he told the court. “Not having enough food is unpleasant and extreme hunger is very painful.”

[190]Dr D conscientiously and using accessible language responded to Miss Meyer’s detailed and technical cross-examination about a number of the bacteria, some of which were extremely unusual and which were found in K’s body, including most unusually the presence of e-coli in the blood. Similar questions were asked of Dr G, the microbiologist, and a number of the other experts who felt able to contribute to the debate. It is not necessary for the purposes of this judgment to set out the microbiological issues which were explored as despite being put by Miss Meyer with skill and moderation she made no progress whatsoever in trying to establish a cause of death other than that stated by Dr K at the first post mortem.

[191]I am satisfied in accordance with all the medical evidence that K died of pneumonia secondary to severe malnutrition and that all the other children suffered from malnutrition to a greater or lesser extent.

K: slipping through the net

[192]The concerns of the Deputy Head teacher, J B, had reached such a level by the time the three children had been withdrawn from school that on 19th December 2007 she made a referral to social services. Miss B’s point of contact there was the referral officer R C. Her written referral centres on the food issues outlined earlier in the judgment in relation to each of the children.

[193]Miss C as I understand it acts as a ‘gatekeeper’, receiving information from members of the public or professional people who have concerns about young people who may be at risk. Once she receives the information she then makes a decision in conjunction with her manager as to whether the referral meets the criteria for a social worker to visit the family.

[194]Miss C’s evidence was that in having “scrutinised” the information provided by the school, the view was taken that as the school already had a working relationship with the family it would be better for them to continue with their work rather than their department intervene which might “antagonise the situation.” Miss C therefore contacted Miss B to say that the case did not warrant an assessment.

[195]Miss B decided that in the absence of social services agreeing to become involved that she herself would visit the family home to ensure that the children were well. Accordingly she went to the house accompanied by Miss H on 29th December. On arriving they could hear children’s voices. The mother eventually came to the door and the children became silent. The mother accepts that this was her pattern; when people came to the door that she did not wish to see she would ‘hush’ the children. The mother told Miss B that the children were well and that she was not happy with the school and that she had decided to keep K at home to “discipline her” and to sort her behaviour out. It was put to Miss B that the word “discipline” was not used. Miss B was quite clear in her evidence and I am satisfied that her recollection is accurate. The mother Miss B said agreed to come to the school the next day for a meeting and to make an appointment for the first day of term.

[196]Miss B and Miss H were kept on the doorstep and did not see the children this surprised them as it was Eid, a time when visitors are ordinarily welcomed into a Muslim home.

[197]Upon her return to school Miss B notified Miss C at social services of the outcome of the visit and her concern that she had not been able to see the children. Miss C said that her line manager would not make an assessment on the facts as they stood. She did, however, say that if there was a problem the school should contact the police to do a so called “safe and well check.” Miss C also told Miss B to ‘press hard’ to make sure that such a check took place.

[198]Miss B in her oral evidence described being quite shocked when she was told to ask for a safe and well visit and the fact that Miss C had said that the police needed to be pressed hard to ensure it had happened. This, she said, had “left her with a feeling that if that was so why not go and carry out an initial assessment of the family?”

[199]Miss B said that this was the first time she had ever asked the police to do a safe and well check. Miss B said that in any event such a check would not have allayed her concerns as given the history she felt that it was necessary to know what each child looked like on a day to day basis.

[200]Later that day, the 29 December 2007, the safe and well check was carried out. P.C. P gave evidence. She recorded that the mother was frustrated that the police had come to the house. She begrudgingly called K to the door. K appeared healthy and was dressed in clean clothing. That fleeting glimpse of K satisfied P.C. P who recorded that she had no concerns for her welfare. She did not see or ask to see any of the other children.

[201]On 21st December 2007 the mother had spoken to SENAS, Special Educational Needs Assessment Services. She spoke to a Lynn W. The mother told Miss W that she was taking the children out of school and wanted to move them to a school called G P School. She said that her difficulties at G P were bullying by the children and by the teachers and that the children were not progressing or being challenged sufficiently.

[202]On 3rd January 2008 the mother wrote to Miss W saying “now due to the perfidious conduct of some of the staff members of G S I have withdrawn all three from the vicinity. All three children are on statements and they have on this for a time no advancements have rendered them benefit. The proof is in the letters I have received from yourselves stating that no change has been made to the statement for each child due to the incompetence of the tutors. This is why I have taken such measures.”

[203]As an aside; this letter to Miss W shows a fundamentalmisunderstanding on the part of the mother. The references in that letter to “no change” related to the provision of services to the children under their Statement of Educational Needs and were not and not intended to be, any form of assessment of the children’s progress. Had the mother read the children’s school reports or attended at their parents’ or special educational needs meetings no doubt this would have been explained to her and she would not have made such a fundamental error in her understanding of their progress. Their progress was in fact steady and recorded in detail on the unread school reports.

[204]On receipt of the letter the Special Educational Needs Assessment Service wrote on 10th January 2008 to a man called I H who is the Educating Otherwise advisor. His background is that he is a former Head teacher. His duty is to contact parents who remove their children permanently from school and discuss with them their proposals for home schooling. Only when satisfactory arrangements are approved and in place can the children’s names be removed from the school roll.

[205]Mr H was reminded that Z and L had Statements of Educational Needs and therefore it was the duty of the authority to ensure their particular special needs were being met and that the provision was suitable. To that end Mr H was asked to respond to SENAS within four weeks.

[206]Letters were also sent to the mother and to JA asking for details of the proposed timetable and curriculum they intended to use in educating the children at home. No such information was ever provided to SENAS.

[207]On 28th January 2008 a liaison meeting was held at G R P School. Miss R M, an educational social worker attended the meeting. The school expressed their concerns for the children, describing them as being “at risk”. They told Miss M of their unsuccessful referral to social services before Christmas. Following the meeting at school Miss M’s concerns were sufficient that she too decided she would make an unannounced visit to the house. She was not aware at that stage that the mother had quite appropriately been speaking to SENAS.

[208]Accordingly on the afternoon of 28th January 2008 Miss M attended the house on her own. She knocked several times and waited for some time and when she had no reply looked through the letterbox and the window. She did not hear anyone inside. She left a message for the mother saying who she was and how she could be contacted. The mother, JA and the children were in fact all in the house at the time and knew that Miss M was at the door. At the beginning of the hearing the mother’s case that she only knew this because a neighbour had told her. Subsequently in oral evidence she accepted that they had seen Miss M peering through the letterbox and had chosen not to answer the door. This was one of a number of examples where I am satisfied the mother told blatant untruths in evidence.

[209]On 30th January, in response to a message from the mother, Miss M spoke to her on the telephone. The mother I am satisfied was aggressive and the conversation heated. The mother demanded to know “who Miss M thought she was”, peering through her letterbox. She threatened to take her to court for invading her privacy and she told her she was in breach of EU law. Miss M explained to the mother that as an educational welfare officer she needed to conduct a home visit. The mother, she said, simply shouted over her and was not listening. Miss M said in evidence that she was obliged to bring the conversation to an end. I accept the evidence of Miss M about the nature of this call which I find followed the pattern of a number of mother’s exchanges with professionals where she raised her voice, was aggressive and refused to listen to what was being said to her.

[210]By this time Miss M as well as the school was also concerned about the situation. She spoke to her team manager who advised her to contact social services. before doing so Miss M spoke to Mr H and told him what had happened. So concerned was she by the aggressive nature of her conversation with the mother that Miss M suggested to Mr H that in the event that he was to carry out a home visit he should take a second person with him. Miss M asked Mr H whether or not the children should stay on the school register and Mr H confirmed that they should until such time as home schooling had been authorised. Having spoken to Mr H, Miss M then spoke to Miss C at social service.

[211]Following her conversation with Miss M, Miss C recommended the carrying out of what is known as a CAF, that is to say a Common Assessment Framework assessment. This is low scale intervention where local agencies (other than the local authority work), with families in order “collaboratively to resolve any issues they face”. Miss M said in evidence that she told Miss C in terms that she did not think that such an assessment would work as the mother would not co-operate and the whole basis of a CAF assessment is co-operation. Miss C agreed to discuss the matter with her manager.

[212]On 8th February 2008 following receipt of the letter from SENAS, Mr I H went to visit the mother and children together with a Mr R L, a senior educational social worker. Prior to making the visit Mr H had written to the mother making an appointment. The letter made it clear that the purpose of the visit was to ensure that the children were receiving “an efficient full time education at home.”

[213]Mr I and Mr R were seen in the rear sitting room. Mr R referred to a “rudimentary” classroom having been set up with a display board with writing on it on the wall although, he said, there were no chairs or other items that were what he referred to as “resources” for teaching. Mr I described there being some basic readers and one or two books around. Mr H’s assessment was that the mother seemed keen for the children to learn.

[214]At the end of the session which lasted about an hour the mother was provided with a form called an Educating Otherwise Advisory report. This sets out recommendations in tick box form as to what should be taught to the children. In addition it recorded that teaching plans were to be sent by the mother to Mr H by the end of February.

[215]Although Mr H and Mr L were in the house for about an hour and their discussions centred entirely around the education of these four children they were not at any time seen, nor did Mr H nor Mr L ask to see them. Mr H’s recollection is that JA said that the children had had a late night and were asleep upstairs.

[216]The plans were not forthcoming at the end of February but it was not until following the Easter break around about 7th April 2008 that Mr H wrote again to the family saying that a further visit would take place on Wednesday 16th April. Mr H and Mr L attended the property on 16th April but there was no reply. Mr H did not follow up this abortive visit prior to K’s death a month later.

[217]During the course of his evidence Mr H was understandably tense and somewhat defensive. He explained that he is the only advisor to Birmingham City Council with regard to Educating Otherwise. He alone, together with the educational social worker, deal with some 350 families. He has no administrative assistance and so all letters are typed by him, he also keeps his own diary.

[218]Mr H expressed with considerable strength of feeling his perception of the limitations placed upon people in his position as a consequence of the terms of the home schooling provisions. He is not, he told me, entitled to require children to be seen neither is he allowed to ask parents about their ability to teach their children. In the present case therefore he was unable to discover that the mother herself had had learning difficulties as a young woman and could do nothing about the fact that the children were no where to be seen.

[219]Mr H defending himself about what had happened referred the court with some vehemence to the Government website and a document called “Elective Educational Guidelines for Local Authority.”

[220]Whatever enquiries are hereafter made about what went wrong between December and May, it is no part of this court’s duty to analyse the detail or adequacy of the law surrounding home education. Mr H was acutely conscious that parents have a right to educate their children at home and drew my specific attention to the guidance which I note says:

“where a parent elects not to allow access to their home or their child this does not of itself constitute a ground for concern about the education provisions being made. Where local authorities are not able to visit homes they should in the vast majority of cases be able to discuss and evaluate the parents’ educational provisions by alternative means.”

[221]Mr H was vague in his evidence as to what, if anything occurred between February and April. He said in oral evidence that he had not got the plan from mother and had written back to her. That then that would seem to indicate that he was not in a position to tell social services, or indeed anyone else, that he was satisfied as to the educational provision to be provided for these statemented children.

[222]The documentary evidence covering this period of time is incomplete and mainly in the form of emails. Such email evidence as is available seems to suggest that Mr H did in fact give approval indicating that he was satisfied with the proposed educational provision despite the fact that mother had failed to provide any educational plan. The names of the children were accordingly moved from the school roll. This meant that the children were longer be categorised as unauthorised absentees and so another possible route of monitoring the children was lost. |It was for that very reason that the school had up until then resolutely refused to take the children off their roll.

[223]In the emails it shows that on 28th February Mr H spoke to a Laura Cartwright who was the reviewing officer at SENAS. Mr H confirmed that he had conducted the home visit and it is recorded that he had reported that the parents were able to supply adequate information about their plans for educating the children and that he was satisfied that they were sufficiently set up for home teaching.

[224]Miss C recorded that this was to be put into writing and sent to SENAS. Once the paperwork had been received SENAS would amend the children’s statement to enable home teaching. The contents of this conversation were forwarded to Miss S on 29th February and undoubtedly played some part in the decision to abandon the initial assessment.

[225]Mr R L, the educational social worker who had attended the meeting at the house with Mr H on 8th February 2008 said in evidence that he was satisfied that he and Mr H had complied with the home education guidance and that by May 2008 the children’s needs were or were going to be met. Mr L said that he would not have expected the email confirming that the parents were able to provide adequate information as to the educational provision for the children to have been sent prior to the plan (which was due to be received at the end of February) having arrived. Mr L was extremely anxious to avoid any personal responsibility for what had happened and said firmly that Mr H had followed his own procedure and that it was not his job to see if the parents had the capacity to teach.

[226]Meanwhile on Thursday 31st January, Miss C and her manager reconsidered the referral that had been made to social services and Miss C contacted Miss M. She said that they would carry out what is known as an Initial Assessment on the I family. Miss M rang G P School to tell them that social services had accepted a referral but that in the meantime the children should be kept on the school roll.

[227]Understandably both the school and Miss M were considerable relieved that as of 31st January social services had accepted a referral and intended to carry out an Initial Assessment whereby they would go and see the family and carry out checks with other agencies. This the court was told is the next step up from a CAF assessment as unlike the CAF assessment ,the local authority are the main lead in investigating the concerns which have led to the referral.

[228]On the same day, 31st January 2008, the case was allocated to a social worker called A.G. On 1st February Miss G endeavoured to contact Miss M with a view to arranging a joint visit to the house to discuss with the mother the completing of an Initial Assessment in respect of the six children. Miss G subsequently told me in evidence that whilst an Initial Assessment does mark the acceptance by social services of a referral it still requires the consent of the parents before any enquiries can be made about the children from third party agencies such as the school and the health services.

[229]It now seems to be common ground that this was a misunderstanding on her part and no such consent is required although parents are asked to consent/co-operate with the assessment as a whole. The social worker therefore intended to go to the home at 36, L R and ask the mother to complete the relevant consent forms enabling enquiries to be made. When Miss G contacted Miss M’s office she discovered that she had in fact left the department and that a new educational social worker, S S, was now dealing with the case. Unfortunately very shortly after referral was accepted and the case allocated to Miss G she went on annual leave and did not return until 18th February.

[230]On 18th February Miss G wrote to the mother telling her that a referral had been received from educational welfare. She said that the concern related to her having withdrawn the children from school and that so far as they were aware the children had not been seen by any professionals since December 2007. The mother was told in the letter that on 21st February at 3 o’clock a joint visit would be undertaken by her together with S S the new educational social worker.

[231]The visit was as unproductive as that of Miss B and the police. The mother eventually answered the door but would not allow them into the house.

[232]Miss G, standing on the doorstep, tried to tell the mother about the initial assessment and that it would centre around educational issues. Miss G told the court in her written material that as the referral was, as she put it “of an educational concern as opposed to a child protection concern”, that was how she had phrased it to the mother when she saw her on 21 February 2008. This showed a fundamental misunderstanding of the nature of the referral on Miss G’s part. The referrals did indeed come from the school and an educational social worker but they were not educational in nature. The school’s referral was unequivocal, it was issues over the children being hungry, thin and cold which were of concern, concerns shared by Miss M once she had spoken to the school and had been exposed in the telephone call on 30th January to the mother’s aggression and irrational response to her visit.

[233]Miss G wrongly told the mother that her consent was necessary in order for the initial assessment to be carried out. When it became quite clear to her that the mother was not going to give that consent she told the mother that they would leave so long as the children were seen.

[234]Initially the mother refused to bring the children to the door but eventually brought, I am satisfied, L, K and Z to the door.

[235]There is some disagreement in the detail of this meeting as between Miss S, Miss G, the mother and JA, who was present for part of it. The detail matters not as what is incontrovertible is that the visit was made, the mother and JA refused to allow them entry to the house and refused to co-operate with any assessment. Although three of the children were brought to the door they did not on any level engage with Miss G or Miss S and hovered at the back behind their mother and were seen only for a matter of minutes. When requested to say who he was, JA refused.

[236]It goes without saying that during the course of this visit Miss G did not get to the stage of the mother signing the form which she says would have permitted investigations to have been made of third parties. At the conclusion of the visit Miss G told the mother that as an assessment had been opened, she needed to see the other three children. The mother said A was asleep and the other two were at school. Finally the mother agreed for Miss G to return to the house at 4 o’clock the following day in order to see the three other children. By the time the social worker got back to the office the mother had already rung to say that Miss G was not to go the following day to see the children.

[237]Miss G spoke to her manager about the mother’s refusal to allow her to go and see the other three children. Miss G said in evidence that as they knew that Education Otherwise was involved, they agreed between them that another visit to see the other children would not be necessary and that as the referral had specifically concerned the three children they had in fact seen at the house that day, they would abandon any further attempt to see them. Had the referral of G P and Miss M been treated as it should have, that is to say as having raised child protection issues as opposed to merely issues of school attendance, it is hard to imagine that such a view would have been taken.

[238]When asked in evidence about the visit to the house Miss G said that the mother’s hostile and unco-operative attitude was not in any way unusual and I have no doubt that is the case. Even after she received the message from the mother complaining about the visit and saying that she was not to go back and see the other children, “alarm bells”, she said, “did not ring”.

[239]Miss G took the view that she had seen the children and even though it was only brief “nothing had stood out.”

[240]This visit was in itself was insufficient for the purposes of even an initial assessment. The Department of Health’s Framework for Assessment known and referred to as The ‘Lilac’Book, provides the framework which informs such assessments. Paragraph 3.1 of the ‘Lilac’ Book sets out a list of enquiries which “may be undertaken.” The only mandatory enquiry is seeing the children. The paragraph says in terms that “as part of an initial assessment the child should be seen. This includes observation and talking with the child in an age appropriate Mer.”

[241]Miss G said that she was not sufficiently concerned by what had happened when she visited the house and the subsequent telephone call from the mother to move on from the initial assessment to any sort of child protection investigation. Miss G told me that despite the history, a child protection investigation would only have been triggered if she had seen the children on their own and they had made a ‘disclosure’ or she had not been allowed to see the three children subject to the referral.

[242]With respect to Miss G, that rather begs the question; had she seen the children or any of them as is expected and anticipated in an Initial Assessment she may have had more information, if only from the children’s physical appearance, that would have led her to conclude that a child protection investigation was necessary.

[243]As it was, even though an Initial Assessment is deliberately designed to be a brief assessment which is not too onerous a piece of work for social services to undertake, it was not completed but simply shelved without even speaking to the children’s schools from where the anxieties had stemmed and the referral had been made.

[244]The Initial Assessment was abandoned on the basis that Education Otherwise in the form of Mr. H was now to be involved. Miss G accepts that she at no stage spoke to Mr. H and that she herself agreed with the decision to abandon the assessment. She accepted that she knew the detail of the school’s concerns before the visit to the house and said in evidence that she thought in hindsight that “perhaps the welfare issues should have been considered in more detail.” In so far as I can see it, the welfare issues were not considered at all and should have been at the forefront of any social work enquiries about this family.

[245]Miss G concluded her evidence by saying that as no further work was to be done on the case on the basis that Education Otherwise would be involved; her recommendation had been for the case to be closed. It was awaiting formal closure when, as she unfortunately phrased it, “this incident occurred.” The incident to which Miss G refers is the death of K.

[246]The Guardian has submitted to the court that K’s death was preventable. It was. Initial and core assessments are carried out by social services department according to the Framework for Assessment of Children in Need and their Families, referred earlier in this judgment as the Lilac Book. The guidance says “In practice this means in planning, preparation and coordination with professionals in other agencies in accordance with the principles in 1.23.”

[247]Paragraph 1.23 sets out the principles which should guide inter-agency, inter-disciplinary work with children in need.

[248]The guidance goes on in paragraph 1.51 to say:

“Understanding what happened to a vulnerable child within the context of his or her family or a local community cannot be achieved as a single event. It must necessarily be a process of gathering information from a variety of sources, making sense of it with the family and very often with several professionals concerned with the child’s welfare.”

[249]At paragraph 5.43 the guidance says:

“When a child has special educational needs or is disabled the schools and educational psychologists will have important information about the child’s development, the level of understanding and the most effective means of communicating with the child. This information should be sought before the beginning and the end of the assessment.”

[250]The Guardian submits that it should have been clear to social services what their role and that of the educational welfare services were when they received the initial referral from G S. The Guardian says that faced with the mother who was reported to be unco-operative and aggressive towards the professionals and a man who when seen by the professionals consistently refused to provide details of his name (and this court would add also the refusals to allow professionals into the house or to speak to the children) the Guardian submits that the appropriate course for the local authority should have been to consider a section 47 Children Act enquiry, that is to say “(1) Where a local authority(a) ---

(b) have reasonable cause to suspect that a child who lives or is found in their area to be suffering or is likely to suffer significant harm, the authority shall make or cause to be made such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.” (a) --- (b) have reasonable cause to suspect that a child who lives or is found in their area to be suffering or is likely to suffer significant harm, the authority shall make or cause to be made such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.”

[251]Even, says the Guardian, if this was later downgraded once all the professionals involved with the family had shared their information in an appropriate forum, such an enquiry would have provided a coordinated response from all the relevant professionals, namely health, school and educational social workers and the health visitors.

[252]I agree with the Guardian’s analysis. Social services, despite the concerns of the school and the unco-operative attitude of the mother when they visited the house, decided to rely on Mr H and the educational social worker and abandon their own investigations.

[253]As a result of each professional carrying out his or her own duties in isolation, information was not passed on and relevant connections were not made. The most glaring example being that if only anyone had asked, they would have discovered that both M’s school and the other children’s schools had largely identical concerns.

[254]It seems extraordinary to me that no alarm bells rang with social services when the mother cancelled the appointment for A, B and M to be seen by Miss G. A referral had been accepted which, contrary to Miss G’s initial evidence, related not only to education but to serious welfare issues and Miss G on her own account was aware of the issues which had been raised by the school. Put at its baldest, at the very least a proper initial assessment should have been completed. The children had been withdrawn from school and the mother thereafter had been reluctant (at best) to allow the children to be seen. Added to this there was an unknown male in the house with the six young children in circumstances where he was refusing to identify himself.

[255]The court is acutely conscious of the enormity of the task faced by these or any other social workers. It is also conscious that none of the professionals involved between January 2008 and May 2008 have had the benefit of legal representation or the opportunities of making submissions to this court. A serious case review is currently being conducted and no doubt the social services and educational welfare involvement will be analysed in a way that is not open to this court. It is no part of the function of this court to second guess their findings.

[256]The fact remains however that M’s school was seriously concerned and the school of L, Z and K were voicing their concerns about these children, in particular their concerns relating to their belief that the children were not being fed properly. The schools did all they could to bring their concerns to the attention of the relevant authorities. These concerns were not taken sufficiently seriously and were not adequately investigated.

[257]The school drew social services’ attention to the family the day after the mother withdrew them from school. Between then, December 2007, and K’s death in May 2008 the police had one glimpse of K and Miss G and Miss S a brief glimpse of K, L and Z. No professional person, whether teacher or social worker saw the children after February 2008 and no-one tried to see them.

[258]It is beyond belief that in 2008 in a bustling, energetic and modern city like Birmingham, a child of seven was withdrawn from school and thereafter kept in squalid conditions for a period of five months before finally dying of starvation.

[259]K’s death was caused by and is the responsibility of her mother and the Intervenor, but on the evidence before the court I can only conclude that in all probability had there been an adequate initial assessment and proper adherence by the educational welfare services to its guidance, K would not have died. Merely looking at the photographs of the house and the conditions in which the children were living confirms in my mind that had social services even seen the bedroom in which the children lived or the Mer in which they were fed, they would undoubtedly have intervened.

Conclusion

[260]No-one who saw the Intervenor either earlier in the trial when he broke down or later in his evidence from the witness box, could fail to have been affected by what was I am confident his genuine anguish. His pain was coruscating as he spoke of the brutality of his father to him as a child and of his own dawning realisation that despite his earnest desire to be a completely different father he himself had become a carbon copy, inflicting identical punishments on the young children in his care as had been meted out upon him as a child. Like his father before him, he was responsible or largely responsible for the death of a young girl.

[261]I accept that initially he had good intentions. I suspect that in the early days he made time for the children, time that the mother did not have as she got through the daily grind of caring for six children alone on a modest budget. The children were certainly fond of him at the beginning.

[262]No matter what pity an onlooker may feel for the Intervenor in this horrifying example of history repeating itself, it is important not to understate the magnitude of what he did. The local authority rightly point out that even if JA now appreciates and bitterly regrets the brutality of his actions that does not detract from what was done to the children and the lasting impact upon each of those who survived.

[263]It may well be the role of a psychiatrist or a psychologist to determine whether the mother is blocking out the horror of what she allowed to happen to her children. As matters stand at the conclusion of the evidence she is maintaining an indefensible stance. All the medical experts, including the four instructed on her behalf, are united in saying that K died from complications brought about by malnutrition. The mother continues to put forward the far fetched proposition that K died of food poisoning caused by mouldy bread which she may or may not have eaten probably some three months previously. She makes no attempt to explain why if that is the case, the other five children were all malnourished, save to denying that that was the case in the teeth of the medical and photographic evidence.

[264]The mother in the early years did quite well. The evidence from the children’s schools and indeed from the grandmother and her sister show a pleasant, caring woman whose life centred around her children following the breakdown of her marriage. Only after JA moved in did she seem to become difficult and aggressive to outsiders, particularly the school, she even as I find excluded her own mother who hitherto had been of considerable support. I have no hesitation in finding, as I have already indicated, that the mother welcomed J’s new strict regime at the beginning as she was finding it increasingly difficult to control her children.

[265]The mother now accepts that removing the children from school was wholly contrary to their best interests. It was the worst sort of blind, unthinking behaviour. Had she bothered to read the children’s school reports and attend meetings she would have known that she had hopelessly unrealistic expectations of them and that social issues were being dealt with at school. Had she fed them they would have not had to steal food. Managing four of the children at home every day and making some attempt to teach them was always going to be a mammoth task.

[266]Extraordinary as it may seem, on balance it seems to me that it was probably the decorating that pushed both the mother and JA over the edge. What had been a strict household with some use of corporal punishment spiralled out of control into a cruel and punitive regime as room after room became unusable for week after week.

[267]The mother and JA were working all hours but, as can be seen on the photographs, in an ineffective way so that nowhere was finished before the next room was started. Without looking at the photographs it is hard to imagine the general chaos of the house and the contrast between the mother and J’s room and the squalor of the children’s room. Mother and JA became exhausted and fraught and less and less patient with the children. The children in turn must have been bored. They were having no exercise and no stimulation. It is clear from the evidence and from the mother’s own account, that they were getting increasingly demanding as they scrapped with each other and were undoubtedly miserable because they were hungry.

[268]I accept that the mother was sick of the whole situation and was desperate for the decorating to be over. She may have intended that once it was finished she would ask JA to leave. The fact remains that she did nothing to prevent or to stop his brutal treatment of her children and I find that she was fully well aware of what went on and to a lesser degree treated the children in a very similar way. She hit them with flip-flops, put them “in detention” and put them outside if they were naughty, in addition she routinely deprived them of food and on occasional force fed them.

[269]I accept that in the last couple of weeks JA’s behaviour seemed to become increasingly strange as in layman’s terms, his mental health deteriorated and that during that time he became increasingly brutal to the children. The death of K was no single episode of momentary loss of self-control such as the courts are all too familiar in the so called baby shaking cases. This was sustained and punitive brutality to very young children over many months of a type which thankfully is virtually unheard of in this country.

[270]At the risk of being guilty of creating sound bites in relation to what was a very complex picture, it is worth enumerating a number of pieces of evidence which serve to demonstrate to the court the full enormity of what was going on at 35, L R between about September of 2007 when JA moved in and 15th May 2008 when K died. (1). All the medical research on marasmus and starvation emanates from concentration camp victims, famine victims and the hunger strikers. There is no European research because people simply do not die of starvation in Europe. (2). None of the experts had ever seen a child in the United Kingdom in the state of Z (with the possible exception of a young girl with end stage anorexia nervosa), let alone in K’s state of extreme emaciation. Mr. S alone of the experts had seen such children, but tellingly only when he was doing research in Africa. (3). Because no-one had ever seen starving children mistakes were made and Z and L were allowed to eat too quickly, resulting in Z becoming even more poorly. None of the experts had ever seen Re-feeding Syndrome and when Dr P rang the heads of paediatrics at the major centres of Birmingham and Leeds for advice neither had they. (4). In this case, unique in my experience, I saw two hardened professional witnesses in tears as they spoke of what had happened to K.(a) Dr C is a paediatrician with many years of child protection cases and has no illusions as to precisely what adults can and do to children; yet he was moved to tears and had to struggle to retain his composure as he read L’s account of being force fed peanut butter and chocolate spread until they were sick as a punishment for stealing at school when they were hungry.

(b) Mr H is a paramedic in Birmingham and has been for the last eleven years. Like all paramedics he will have seen his share of death, road traffic accidents, assaults and the like, but the sight of K clearly haunts him. He said in his statement “all in all this is the worst thing I have ever seen. I cannot forget the sight of that young girl.” He said in evidence that he thought she was three or four she was so tiny and despite his efforts at self-control the recollection reduced him to tears in the witness box. (5). There is a danger that starvation will be regarded by a lay person as a form of death where someone “slips away”. Starvation is not a benign way to die. Professor M was very direct in his evidence. He said “make no mistake. Dying of starvation hurts.” (6). Had these children not been taken to hospital when they were Z and probably L, would also have died also of an underlying cause of malnutrition. Accordingly I find the threshold criteria satisfied in relation to each of these children.