East Sussex County Council v AG (Finding of Fact) [2017] EWHC 536 (Fam)

This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.

Case No SD16C00508

[2017] EWHC 536 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 06/03/2017

Before

THE HONOURABLE MR JUSTICE MACDONALD

Between

East Sussex County CouncilApplicant

SVFirst Respondent

TGSecond Respondent

AGThird Respondent

Ms Tina Cook QC and Ms Ruth Webber (instructed by the Local Authority Solicitor) for Applicant

Mr Roger McCarthy QC and Ms Harper (instructed by Duncan Lewis) for First Respondent

Mr William Tyler QC and Ms Pauline Troy (instructed by Harney and Wells) for Second Respondent

Mr Jonathan Bennett (instructed by McMillan Williams) for Third Respondent

Hearing Hearing dates: 30 January 2017 to 10 February 2017

Judgment

Mr Justice MacDonald:

INTRODUCTION

[1]In this matter I am asked to decide how AG, born in December 2015, and now aged 13 months old came, whilst an in-patient at hospital, to have extremely high levels of alcohol in his system, and to have the drug chlorpheniramine (hereafter antihistamine) in his system when it had not been prescribed to him.

[2]In circumstances where no party now seeks to dispute that samples taken from AG were found to contain very high levels of alcohol and to contain antihistamine, and in circumstances where no party seeks to dispute that these substances would have been harmful to AG, the primary issues for the court at this hearing have been: i) How did high levels of alcohol and levels of antihistamine come to be introduced into AG’s system? ii) If they were introduced into AG’s system by human agency, who administered alcohol and antihistamine to AG?

[3]By its Schedule of Findings, the local authority invites the court to find that the mother, or the father or both of the parents covertly administered alcohol and antihistamine to AG. If the court determines that only one parent covertly administered alcohol and antihistamine to AG, by its Schedule, the local authority invites the court to find that the parent not responsible either knew or ought to have known the other parent was repeatedly administering alcohol and antihistamine to AG. By their closing submissions, Ms Cook QC and Ms Webber go slightly further than their Schedule of Findings and submit that the evidence before the court demonstrates that, on the balance of probabilities, both parents administered alcohol and antihistamine to AG or that one parent did so with the complicity of the other.

[4]The mother denies that she gave alcohol and antihistamine to AG and denies failing to protect him. The mother contends that AG came to have high levels of alcohol in his bloodstream by reason of her applying large amounts of hand sanitiser containing alcohol to his hands and arms, applying it on thirty to forty occasions each day, using two or more doses on each of those occasions. Whilst she continued to maintain this assertion throughout the hearing, when cross examined by Ms Cook QC she agreed that if the court were to find that the hand sanitiser was not the cause of the alcohol found in AG’s system then the only other alternative is that it was administered to him by someone. The mother states she is unaware of how AG came to have antihistamine in his system. Mr McCarthy QC and Ms Harper submit on her behalf that the evidence is not sufficient to lead to the conclusion that the mother administered alcohol and antihistamine to AG. Further, the mother invites a finding exonerating her from having caused any harm to AG.

[5]The father likewise denies that he gave alcohol and antihistamine to AG and denies failing to protect him. Like the mother, the father postulates that AG came to have high levels of alcohol in his bloodstream by reason of the mother applying large amounts of hand sanitiser to his skin or from what the father described in evidence as accidental ingestion of that substance as a result of its application to AG’s hands and toys, although it is fair to say that by the end of the hearing he appeared to accept that these scenarios were unlikely. He also accepted the proposition, put to him by Ms Cook QC, that if the high levels of alcohol found in AG were not caused by the use of hand sanitiser, then it was likely someone had administered alcohol to AG. With respect to the antihistamine, the father suggests that this may have been administered to AG accidentally by his treating medical team or administered as part of his treatment regimen and not recorded. In particular, Mr Tyler QC and Ms Troy submit on the father’s behalf that a forensic analysis of the evidence in the case, and in particular the father’s whereabouts prior to some of the episodes AG exhibited symptoms of intoxication, demonstrates in respect of all of the recorded episodes that the father could not have been responsible for administering alcohol and antihistamine to AG. Within this context, Mr Tyler QC and Ms Troy submit that the evidence before the court does not demonstrate that the father administered alcohol and antihistamine to AG. The father likewise invites a finding exonerating him from having caused any harm to AG.

[6]Within the context of it being established that AG suffered unexplained episodes in three different medical locations (the local hospital, the Savannah Ward at the Evelina Children’s Hospital in London and the PICU at the Evelina Children’s Hospital) which have no medical staff in common, and in circumstances where the unexplained incidents ceased immediately upon the parents being arrested notwithstanding AG remaining in hospital for a further period of time, neither parent has sought to suggest explicitly that the alcohol and antihistamine found in AG’s system was administered by a member of medical staff. In their closing submissions Mr McCarthy QC and Ms Harper did however, seek to argue that the fact that a large number of people came into contact with AG during this period is a factor to be considered when the court is determining whether the local authority has proved its case. When cross examined by Ms Cook QC, the mother accepted the proposition that the occurrence of episodes in three locations with no common medical staff made it “almost impossible” (as Ms Cook QC put it) that a member of staff administered toxic substances to AG, and that both the mother and the father made clear in evidence that neither saw conduct by any other person that gave them cause for concern.

[7]Finally, by way of introduction, this case once again demonstrates well the very difficult task that the court faces when it is asked to determine the cause of harm to a young child in circumstances where those present at the time the harm was inflicted are not prepared (as I am satisfied the parents in this case have not been) to be frank about how the harm came to be caused, leaving the court to piece together what happened from the jigsaw of evidence available. Within this context, it is important to make three points regarding the overall process the court is required to adopt when hearing cases of this nature.

[8]First, it is axiomatic that the judge is not present to witness directly the events in issue when they unfold. The court is therefore heavily reliant in cases of alleged harm to a child on the parents or other carers who were present at the time the relevant events occurred giving a full, frank and truthful account of what occurred.

[9]Second, as a function of the judge not being present to witness directly the events in issue as they unfold, the court must apply an appropriate standard of proof when deciding, after the event, what has occurred. In this case the standard of proof is the balance of probabilities. This means that, when deciding matters that are disputed between the parties, the task of the court is not to determine what did happen, as a matter of objective truth, but rather to determine what is more likely than not to have happened having regard to the totality of the evidence available.

[10]Third and finally, parents who fail to be frank with the court regarding how their child came to suffer harm may often believe that they thereby put themselves at an advantage. In fact, the very opposite is true. The family courts are not concerned with punishment but with the welfare of the child. An early and frank admission by a parent who has harmed their child allows the court to establish accurately what occurred, to direct a fully informed assessment of risk and, in an appropriate case, to formulate and approve a plan for the safe return of the child to the parent, if necessary with a tailored package of support to address the deficits that first led to the harm. Conversely, where a parent or parents make a conscious decision to hide the truth, the court is much more likely to be left in a position where it will be unable to conclude that the parent can safely parent the child in the future. This is especially the case where the court is compelled to conclude (as it is entitled to do) that the harm was caused by one or other or both of the parents but that it is not possible to tell which. In such a situation, additionally, the parent who did not inflict the harm is materially prejudiced by the failure to be frank of the parent who did.

[11]In deciding the issues in this case I have had the benefit of extensive written evidence, including the medical records of AG. I have heard expert evidence from Dr Kathryn Ward (Consultant Paediatrician) and Dr Andrew McKinnon (Forensic Toxicologist), both of whom provided comprehensive written reports to the court. I also heard oral evidence from social workers Hayley Gibson and Philip Groves, Detective Inspector Johnson, treating clinicians Dr J and Dr H and nurses Nurse D from the PICU at Evelina Children’s Hospital and Nurse M from the Savannah ward at Evelina Children’s Hospital. I also heard oral evidence from each of the parents and received comprehensive written and oral closing submissions from leading and junior counsel.

BACKGROUND

[12]The background to this matter can be taken relatively shortly in light of AG’s young age at the time of these events and given that the family had not come to the attention of the local authority prior to the discovery of alcohol and antihistamine in AG’s system.

[13]The mother is 31 years of age. The mother described during her oral evidence wanting a baby ever since she was a child. She made it her job to work with young children, has qualifications in nursery care and has worked in a nursery. There have been no concerns expressed in the context of her employment with children. The evidence before the court indicates that the mother has a positive bond with AG and has been seen to interact positively with him, the Health Visitor noting warm interaction with good eye contact between the mother and AG and that the mother was seen to be confident in her handling of AG. There is however, an unfortunate text message in which the mother refers to AG as a “miserable shit” in the period prior to his admission to hospital. There is no evidence before the court that the mother has extant mental health difficulties, although she concedes one incident of self-harm (following, she says, a sexual assault on a night out) some years ago and a more recent period of low mood following the end of a long relationship. The mother conceded however in cross examination that following AG’s birth she was under considerable emotional pressure due to the burdens imposed by being the more experienced parent, issues in her own family and strains in her relationship with the father, caused by him threatening on one occasion to kill her and AG should she ever leave him, which threat to kill I shall come to in more detail shortly.

[14]The father is 26 years of age. The father conceded in his oral evidence that he was less experienced with the care of children than the mother and struggled at times to know what to do. The mother made clear however, that he would assist with childcare activities and would care for AG in order to give her a break. The father too, conceded that there had been strains in the parents’ relationship in the period up to and after AG’s admission to hospital. Whilst denying that he was jealous of the attention that the mother was showing to AG, the father conceded that he wished the mother to spend more time with him when AG was asleep and wanted her to show him some affection in addition to showing affection to AG. He further conceded that in response the mother had stated that AG would always come first. The impression gained is that the father felt somewhat pushed out. In particular, the father also conceded that, within the context of difficulties in their relationship stemming from the father’s admitted threat that he would kill the mother and AG if the mother ever left him, on a number of occasions the mother made clear to him that once AG was well she would leave him and return to live with her own mother.

[15]AG was born on 23 December 2016. On 28 January 2016 the parents were concerned with respect to AG’s breathing. The Health Visitor noted that the father used medicalised language when speaking of this concern, asking about stridor and tracheomalacia. The father has given a number of different explanations for his use of medicalised language which I deal with below. The parents were reassured by the Health Visitor and by the GP regarding AG’s breathing and, thereafter, the issue was not raised between 29 January 2016 and AG’s admission to hospital. Indeed, apart from a difficulty with slow weight gain, AG had no other medical problems to speak of during that period and presented as an alert and settled baby. With respect to the concern regarding his weight gain, the mother was advised by the Health Visitor to offer formula milk top ups and to take AG to the GP that day. In evidence the mother confirmed that up until 15 March 2016 she was “pretty happy” with AG’s health.

[16]It is clear from the evidence provided by the text communications between the parents, and is accepted by both of them, that their relationship encountered difficulties during this period. On the night of 6 March 2016 an argument developed during which, as I have already stated, the father admits that he said he would kill both the mother and AG if the mother left him. I agree with the submission of the local authority that the evidenced reaction of the mother to the father’s threat indicates that the tenor of the threat was a serious one and not one that was likely to be have been made as a throw-away line in a heated argument. It is plain that the mother was deeply shocked and hurt by the father’s threat to kill her and AG and that she subsequently expressed on a number of occasions her desire to leave the father once AG was well and to return with AG to her mother’s house. The texts indicate that the father worked hard to persuade the mother against this course of action. As at this hearing the parents remain together, although residing in separate locations.

[17]The court does not have the benefit of the text communications between the parents prior to March 2016. Both parents admit however that prior to the beginning of March 2016 the father sent a text to the mother suggesting that she give AG whisky in consequence of him not settling. The father contends that he made this suggestion because his own mother had given him whisky in his feeds in order to settle him.

[18]On 15 March 2016 the mother visited the GP at 1855hrs. AG was displaying vomiting, described as two vomits similar to projectile vomiting in circumstances where, up to that point, he had experienced only small possets after feeding. AG appeared well on examination by the GP although exhibiting weight loss. On 16 March 2016 AG was again taken to the GP following another incidence of projectile vomiting after a feed. Within the context of this history, later on 16 March 2016 AG was admitted to the local hospital. Following AG’s admission to hospital on 16 March 2016 examination indicated that, clinically, AG appeared wasted but well perfused. With respect to his feeding, he was described as feeding normally with only small possets until the last 24 hours, when the vomiting started in line with the history I have set out.

[19]It can be seen that, apart from a minor concern about his breathing and slow weight gain, there were no real problems with AG’s health following his birth until 15 March 2016, when AG began displaying significant vomiting following feeds during the course of that day. Dr Ward notes in her expert report that subsequent and extensive investigations in hospital revealed no explanation for the sudden exacerbation in AG’s vomiting immediately prior to his admission to hospital.

[20]On 29 March 2016, whilst at the local hospital, and thereafter on multiple occasions both on the Savannah ward and the PICU at the Evelina Children’s Hospital in London following his transfer to that hospital on 31 March 2016, AG suffered unexplained episodes of unusual limb movements, apnoea, unconsciousness and coma. Some of those episodes were life threatening and required intensive resuscitative intervention beyond simple CPR, including intubation and mechanical ventilation and the use of drugs to support his blood pressure. The local authority asserts that these episodes, which Dr Ward considered to be life threatening, were the consequence of AG being administered alcohol or antihistamine or a combination of both whilst in hospital, possibly from 15 March 2016 (when the projectile vomiting commenced) to 19 May 2016 (when the parents were arrested), and certainly from 29 March 2016 (the first episode in hospital) to 19 May 2016.

[21]As a result of these repeated unexplained medical episodes, AG was subjected to a wide range of invasive medical testing in an effort to establish what was causing the episodes witnessed by his treating team. Those episodes included an MRI scan, electrophysiological testing, two lumbar punctures, extensive genetic and metabolic testing and a period of video-telemetry over a period of 48 hours. This testing, which included blood tests taken on 27 April 2016 and 10 May 2016, found no medical explanation for the episodes that were being witnessed in AG.

[22]It is plain that within the foregoing context, the various members of AG’s treating team took differing views as to what may be wrong with him. They cannot be criticised for this in circumstances where they were faced with an extremely puzzling situation, consequent on conduct which was, I am satisfied, deliberately kept from them and in circumstances where, quite properly, they were proceeding from the starting point that parents do not ordinarily harm their own children. It is plain that, in broad terms, the lead paediatric neurologist considered that AG may have an epileptic condition and that the surgical team considered that the problem was likely to be trachaeomalacia, in respect of which latter condition AG was diagnosed and underwent surgery. In circumstances where blood testing for infants does not ordinarily test for alcohol, these respective differentials were reinforced by the negative blood test results to which I have already referred.

[23]Another of AG’s treating paediatric neurologists, Dr H, was however, increasingly of the view that AG’s symptoms were the result of the deliberate administration of toxic substances. Dr H sought to persuade her colleagues of this and was eventually vindicated in her view by further specialist blood testing which I detail below. Perhaps by reason of the fact that she was, for a significant time, a lone voice advocating the deliberate administration of toxic substances in the face of significant scepticism on the part of her peers, in evidence Dr H displayed a strong commitment to her view that the parents between them had poisoned AG. This commitment manifested itself in a tendency to conflate the parents when describing what she herself had seen on the ward. However, whilst Dr H initially articulated all of her concerns in respect of the parents, including that both were acting suspiciously, that both appeared to consider themselves as playing a game whilst in hospital, that both appeared inappropriately excited about proposed medical procedures and that both expressed disappointment when AG improved,she subsequently conceded that she had not fully appreciated the need for precision within the forensic process in which the court was engaged. Following this concession, Dr H did make an effort to distinguish between the parents. She considered that the father had a very inappropriate “affect”, being “jokey” with a wide medical vocabulary and that the mother, in contrast, appeared down on occasions. With respect to the mother, Dr H stated that many times when she was observing it was mother present but that she did not link any pattern with the father being present. Dr H stated that she had not seen or witnessed any incidents of either parent administering substances to AG.

[24]On 17 May 2016, following a further episode, a consensus was reached that the blood samples taken on 27 April 2016 and 10 May 2016, together with a sample taken during the episode on 17 May 2016, would be sent to Birmingham for specialist toxicological analysis. That analysis produced the following results on 19 May 2016 relevant to the issues before the court: i) A blood sample taken on 27 April 2016 (untimed) showed alcohol at a concentration of 262 mg% (i.e. 262 milligrams per 100 millilitres of blood); ii) A urine sample taken on 27 April 2016 (untimed) was insufficient to measure alcohol level; iii) A blood sample taken on 10 May 2016 at 2000hrs showed alcohol at a concentration of 223mg%; iv) A urine sample taken on 10 May 2016 (untimed) showed no alcohol detected; v) A urine sample taken at 1300hrs on 17 May 2016 showed antihistamine (specifically chlorpheniramine) and alcohol at a concentration of 488 mgs%. vi) A blood sample taken at 1400hrs on 17 May 2016 showed alcohol at concentrations of 641mgs% (blood ETDA), 584 mgs% (serum) and 613 mgs% (blood fluoride oxalate). vii) A sample of gastric aspirate taken at 1800hrs on 17 May 2016 showed antihistamine (specifically chlorpheniramine) and alcohol at a concentration of 418 mgs%. viii) A urine sample taken at 200hrs on 17 May 2016 showed antihistamine (specifically chlorpheniramine) and alcohol at a concentration of 388 mgs%.

[25]It will be noted that blood sample taken on 27 April 2016 was untimed. However, the medical records do appear to record that a blood sample was taken during the episode on 27 April 2016, which episode appears to have occurred at 0730hrs and to have continued until 1030hrs. Dr H stated that she ordered blood samples to be taken during the episode. It would appear likely therefore that the blood sample on 27 April 2016 was taken during this period. With respect to the timing and source of the urine samples, it is also important to recognise that it is much harder to take a urine sample on demand than it is a blood sample. In the circumstances, and especially where the sample is obtained from a catheter bag, caution is required in respect of the times ascribed to such samples and, in particular, whether the urine sample taken comprises urine expressed at the time ascribed to the sample.

[26]Following the receipt of those results a professionals meeting was held on 19 May 2016 and a strategy meeting convened. The Police were informed of the findings and the parents were arrested on 20 May 2016. On being told they were being arrested the mother asked of AG “Do I get to see him tonight?”. The father replied “That’s OK”. DI Johnson confirmed that the parents did not know they were to be arrested and were kept separate following their arrest prior to interview. Both parents were interviewed and the court has before it and has considered the transcripts of those interviews. AG had no further unexplained episodes following the parents’ arrest.

[27]Following the parents’ arrest, a number of items that were seized by the police from AG’s bed area in the Evelina Children’s Hospital. This included brown liquid from a plain glass container found in that area. Analysis showed that the liquid contained alcohol at a concentration of 367 mgs%. In her oral evidence the mother stated that she did not know what this liquid was or what it contained. No alcohol or drugs were detected in samples of apple puree, milk, syringes, gripe water and colic drops that were also seized. A syringe was found in a ‘Chelsea Bag’ and a packet of two unopened syringes was also seized. I will deal with the provenance of these items in due course.

[28]Within the foregoing context, the local authority seeks the findings set out in a Scott Schedule, to which Schedule both parents have responded. In summary, those findings are as follows: i) Whilst an in-patient at the local hospital and the Evelina Children’s Hospital in London, AG experienced unexplained episodes of unusual limb movements, apnoea, unconsciousness and coma, some of which incidents were life threatening and required intubation and ventilation. ii) As a result of these episodes AG was subject to extensive and invasive tests to try and ascertain the cause of these episodes. iii) Specialist blood tests undertaken on 17 May 2016 identified high levels of alcohol in samples of AG’s blood taken on 27 April 2016, 10 May 2016 and 17 May 2016. iv) Specialist urine analysis undertaken on 17 May 2016 identified high levels of alcohol and levels of antihistamine in AG’s urine. v) Analysis of a sample of AG’s gastric aspirate taken on 17 May 2016 identified high levels of alcohol and levels of antihistamine in his gastric aspirate on that date. vi) The levels of alcohol found in the samples taken from AG were extremely high and would have been expected to cause serious toxicity and could have been potentially fatal. vii) The unexplained episodes experienced by AG at the local hospital and the Evelina Children’s Hospital in London were caused by AG being administered alcohol and antihistamine. viii) The mother, or the father or both of the parents covertly administered alcohol and antihistamine to AG causing the unexplained episodes and causing AG to be the subject of unnecessary extensive and invasive tests to try and ascertain the cause of these episodes (as I have noted, the local authority’s closing submissions go slightly further and submit that the evidence demonstrates that both parents administered alcohol and antihistamine to AG or that one did with the complicity of the other). ix) If the court determines that only one parent covertly administered alcohol and antihistamine to AG, the parent not responsible either knew or ought to have known the other parent was repeatedly doing so.

[29]As I have already alluded to, the parents concede that AG experienced unexplained episodes of unusual limb movements, apnoea, unconsciousness and coma, some of which incidents were life threatening and required intubation and ventilation. They further concede that as a result of these episodes AG was subject to extensive and invasive tests to try and ascertain the cause of these episodes, that specialist testing undertaken on 17 May 2016 identified high levels of alcohol and levels of antihistamine in the various samples taken from AG and that levels of alcohol found in the samples taken from AG were extremely high and would have been expected to cause serious toxicity and could have been potentially fatal.

THE EXPERT EVIDENCE

[30]The expert evidence in this case comprises jointly instructed expert reports from Dr McKinnon (Forensic Toxicologist) and Dr Kathryn Ward (Consultant Paediatrician). Both experts gave oral evidence and were cross examined.

Dr McKinnon

[31]Whilst considerable time was spent on the validity of Dr McKinnon’s calculations of the amount of alcohol by volume that would be required to cause the levels of alcohol that were found in AG’s system (he having undertaken such calculations in response to being requested to provide an opinion on the likely doses given to AG), the central point made by Dr McKinnon, both in his report and in his oral evidence, is that, absent any evidence to suggest that the analysis of AG’s samples was compromised (and Dr McKinnon was clear that he had no reason to believe that the tests had not been performed satisfactorily), the samples taken from AG showed that he had very high levels of alcohol in his system on three occasions and a level of antihistamine in his system on one occasion.

[32]Within this context Dr McKinnon was at pains to emphasise that, with respect to alcohol, the actual readings from the samples taken from AG indicated clearly that AG had been administered significant amounts of alcohol independent of the calculations that attempted to work out the precise doses of alcohol in milligrams required to cause those readings. Dr McKinnon repeatedly emphasised that the alcohol readings obtained from the samples were “extremely” high and, on occasion, the highest he had ever seen, or heard of, in an infant. Indeed, he was aware of no reported cases in which the readings had been higher. Dr McKinnon was clear that this indicated AG had ingested a large amount of alcohol.

[33]Dr McKinnon was pressed extensively on the mother’s contention that the explanation for the high levels of alcohol in AG’s system were the result of her alleged use of high levels of hand sanitiser on AG. Accepting that calculations can only be approximate in circumstances where the physiology of individuals varies and the physiology of adult skin is different to that of infant skin, Dr McKinnon was nonetheless very clear that even had the mother used the hand sanitiser at a higher level than she claims, this would still not have been enough to produce the levels of alcohol seen in AG, even assuming a generous level of absorption of alcohol through the skin of an infant of 10% (the level of absorption in adults being between 2.5% and 5%). Within this context, Dr McKinnon also emphasised that the mother states that she used the hand sanitiser over the course of a day and that, accordingly, any alcohol that was absorbed would have begun to be eliminated between applications, further negating the possibility of alcohol from the hand sanitiser accumulating in AG’s blood to the levels seen. Dr McKinnon further stated that for the blood alcohol levels to be caused by AG ingesting hand sanitiser he would have needed to have ingested the equivalent of 44 “squirts” of that substance to reach the highest blood alcohol concentrations seen, ruling out, in his view, accidental ingestion from hands or toys as cause of the levels seen.

[34]With respect to the anti-histamine, whilst conceding that anti-histamine can be passed from mother to infant in breast milk, Dr McKinnon noted that the mother had not been breast feeding for a considerable period of time prior to the antihistamine being detected in AG’s system, negating as a possibility that route of administration.

[35]Dr McKinnon was also pressed on the extent to which the readings from the samples taken from AG could assist with when alcohol and antihistamine was administered to him. Dr McKinnon emphasised that the toxicological evidence must be considered alongside the clinical picture when seeking to determine when alcohol and antihistamine came to be introduced into AG’s system.

[36]Within this context, as to the assistance to be derived from the toxicological analysis in terms of timing, Dr McKinnon stated that the process of absorption of alcohol begins almost immediately upon administration, that the process of elimination begins almost immediately, that peak levels will be reached in 30 to 90 minutes in adults and it is reasonable to suppose a similar or shorter period in infants, that extremely high blood alcohol levels will be accompanied by clinical symptoms and that the literature supports the proposition that elimination rates in children are similar or higher than those in adults.

[37]However, Dr McKinnon further emphasised that, given the covert administration of alcohol results in an absence of any firm information regarding the variables affecting the rate of absorption of alcohol (including the precise amount of alcohol given, the type of alcohol given, the number of doses given, the mode of administration, the frequency of doses, the effect of medication prescribed to AG and the amount of food in his stomach), and given the lack of hard data on elimination rates in infants, some caution is required when applying the general propositions outlined in the forgoing paragraph to the question of when AG was administered alcohol or antihistamine.

[38]Within this context, Dr McKinnon advanced the following cautious propositions in his written and oral evidence regarding the timing of the administration to AG of alcohol or antihistamine: i) The fact that alcohol was present in AG on three separated dates and antihistamine was present in AG on one date indicates that those substances were administered to AG on or around those separate dates. ii) The blood alcohol reading of 641mgs% on 17 May 2016 indicates that AG could tolerate a blood alcohol concentration of at least up to 641 mgs%. iii) Within this context, the reading on 27 April 2016 showing alcohol at a very high concentration of 262 mgs% could represent the residue of alcohol administered up to 24 hours earlier (at a volume sufficient to result in an initial peak concentration in excess of 600 mgs% at that time) or could represent alcohol administered much closer in time to the sample being taken, possibly within an hour or so (at a volume sufficient to cause a reading of 262 mgs% at that time). Accordingly, and subject to the clinical picture, the time frame on before 27 April 2016 during which AG could have been administered alcohol is a relatively wide one. iv) Likewise, the very high reading of 223 mgs% on 10 May 2016 at 2000hrs could represent the residue of alcohol administered 24 hours earlier (at a volume sufficient to result in an initial peak concentration in excess of 600 mgs% at that time) or could represent alcohol administered much closer in time to the sample being taken (at a volume sufficient to cause a reading of 262 mgs% at that time). Again, accordingly, and subject to the clinical picture, the time frame on before 10 May 2016 during which AG could have been administered alcohol is a relatively wide one. v) The combination of the blood and urine readings taken on 17 May 2016, together with the fact that the blood alcohol readings taken on 17 May 2016 at 1400hrs on 17 May 2016 showed alcohol at extremely high concentrations of 641mgs%, 584 mgs% and 613 mgs% mean that, if the urine reading is reliable, it might indicate (but does not prove) that the alcohol was administered to AG one to two hours prior to the sample being taken at 2.00pm and, if the urine reading is not reliable, several hours prior to the sample being taken at 2.00pm. As I have previously set out, Dr McKinnon and Dr Ward each highlighted the difficulties in obtaining urine samples, both in respect of timing and source. Overall, given the levels seen at 2.00pm, Dr McKinnon was of the view that administration of alcohol prior to these timescales would have required a level of alcohol that would have been implausible. The readings from the gastric aspirate sampled on 17 May 2016 at 1800hrs indicates that AG had not been administered alcohol recently before 1800 hrs and is in keeping with the oral administration of alcohol several hours before hand. vi) The alcohol concentrations seen in AG are so high that it is unlikely that such concentrations could be reached by the administration of successive doses as opposed to a single dose. vii) It is difficult to determine timings in relation to the administration of the antihistamine as the concentrations in the urine and gastric aspirate samples in which they were found were not measured. The fact that the drug was found in the sample of gastric aspirate could suggest that it was ingested orally within a few hours of 1800hrs on 17 May 2016 but this would depend on the concentration. Assuming the blood EDTA sample was tested for antihistamine and none was detected this would suggest AG had not ingested the drug within several hours of so of 1400hrs on 17 May 2016. The presence of antihistamine in the urine sample taken at 1300hrs on 17 May 2016 indicates that AG ingested the drug at some point prior to that time. In circumstances where chlorpheniramine can potentially be detected in urine for up to a few days, he could have been administered the drug anywhere from recently up to a few days or so previously. viii) Once AG demonstrated symptoms of intoxication this indicates that an intoxicant had been administered to him.

Dr Ward

[39]With respect to the circumstances that led to AG being admitted to hospital, Dr Ward stated that the issue of AG’s poor weight gain was complex and was likely to be multifactorial. In particular, Dr Ward considered it would be wrong to attribute AG’s poor weight gain during the period prior to 15 March 2016 to the administration of alcohol as to do so would be speculation. Likewise, Dr Ward was prepared to concede that AG might have exhibited the noisy breathing that caused the parents to be concerned, and the father to speak to the health visitor about trachaeomalacia in circumstances where he was later diagnosed with this condition on 16 April 2016 (Dr Ward is clear that it is highly unlikely that this condition was the cause of AG’s episodes of collapse). Within this context, Dr Ward noted in particular that prior to 15 March 2016 when there had been a sudden exacerbation in AG’s vomiting, his history had been otherwise relatively unremarkable. As I have already observed, Dr Ward further notes in her report that extensive investigations in hospital revealed no explanation for the sudden exacerbation in AG’s vomiting immediately prior to his admission on 16 March 2016.

[40]Dr Ward considered that all of the episodes and symptoms exhibited by AG once he was in hospital were referable to him having been administered toxic levels of alcohol or having been given un-prescribed antihistamine or both. She repeated this view during the course of her oral evidence when pressed. Dr Ward stated that the alcohol affected AG’s breathing, blood pressure, heart rate, and feeding, the basic life sustaining functions. She stated that the effect of antihistamine would be extreme drowsiness, lethargy, confusion, delirium, coma, paradoxical excitation, irritability, hyper-activity, hallucinations, seizures and respiratory depression or arrest. Dr Ward pointed out that the resuscitation that AG required as a result of the toxic substances in his system went beyond the need for simple cardio-pulmonary resuscitation and extended to the use of intubation, mechanical ventilation and the use of drugs to support his blood pressure. Within this context, Dr Ward considered the episodes to be life threatening and that it is likely that if AG had experienced these episodes at home, he would have died. Like Dr McKinnon, Dr Ward emphasised in respect of the levels of alcohol seen in AG that she had never seen levels of alcohol that high in an infant. Dr Ward notes that AG has suffered no further episodes following the arrest of the parents or in foster care.

[41]With respect to dates on which samples were taken and subsequently shown to contain alcohol or antihistamine or both, Dr Ward stated that the video taken on 27 April 2016 at 0730hrs indicates AG exhibiting behaviour consistent with alcohol intoxication. Dr Ward agreed that the medical notes suggested that AG’s observed behaviour at 0430hrs on 27 April 2016 was clinically inconsistent with having been administered alcohol at that time and that his behaviour at 0730hrs was clinically consistent with having been administered with the alcohol that was later detected. With respect to 10 May 2016, Dr Ward opined that with a reading of 223 mgs%, if the alcohol that resulted in this level had been administered the day before AG would have presented as being unwell. Dr Ward further agreed that the medical notes suggesting that AG’s presentation was normal at 0400hrs on 10 May 2016 points away, clinically, from his being intoxicated at that point. With respect to the samples from 17 May 2016, Dr Ward agreed that the medical records indicated no concerns overnight from 16 to 17 May 2016 or at 0430hrs on 17 May 2016. She considered that the video of the episode AG underwent at 1047hrs showed behaviour consistent clinically with AG being intoxicated. Within this context, Dr Ward agreed that the clinical picture tended to narrow down the periods in which AG was administered alcohol on or around the dates on which toxicological analysis demonstrated that AG had intoxicants in his system.

[42]With respect to the question of whether the source of the alcohol was the hand sanitiser the mother claims to have used on AG, Dr Ward deferred to Dr McKinnon but also opined that, in her long experience of paediatric wards, nurses would have likely commented had they seen the mother applying hand sanitiser to AG’s hands and arms up to thirty or forty times per day. She also anticipated that the use of that much hand sanitiser would risk causing damage to AG’s skin, which damage is not evident from the medical records.

[43]With respect to the father’s suggestion that AG had been accidentally administered antihistamine, Dr Ward could find no evidence in the medical records of the drug having been used. Whilst Dr Ward conceded that she “could never say never”, she stated that drugs are double checked and errors are usually identified and taken very seriously, leading to an enquiry at ward level. Dr Ward concluded that as the blood sample indicated the presence of antihistamine it must have been administered to AG.

[44]Dr Ward conceded that there remain outstanding some test results for very rare genetic conditions. However, Dr Ward was satisfied that such conditions can be ruled out as the conditions would not explain the whole picture in respect of AG, the toxicology results demonstrate AG had high levels of alcohol and levels of antihistamine in his system, all of AG’s symptoms ceased following the arrest of the parents and he has not had any episodes since. All of this, Dr Ward is satisfied, makes it extremely unlikely that AG’s presentation in hospital had a genetic cause or component.

[45]Finally, with respect to the question of fabricated or induced illness, in reaching her conclusions, Dr Ward makes reference to the guidance issued by the Royal College of Paediatrics and Child Health entitled Fabricated or Induced Illness by Carers – A Practical Guide for Paediatricians RCPCH 2009) and Government guidance entitled Safeguarding Children in Whom Illness is Fabricated or Induced – Supplementary Guidance to Working Together to Safeguard Children (DCSF 2008). Within the context of this guidance, and having set out that fabricated or induced illness occurs where a caregiver “misrepresents the child as ill either by fabricating, or much more rarely, producing symptoms and then presenting the child for medical care, disclaiming knowledge of the cause of the problem”, Dr Ward opined as follows with respect to this case:

“FII is a spectrum of disorders, rather than a single entity. At one end less extreme behaviours include a genuine belief that a child is ill. At the other the behaviour of carers includes them deliberately inducing symptoms by administering drugs, intentional suffocation, overdosing, tampering with medical equipment and falsifying test results and observational charts. [If] the court accepts that AG was administered alcohol and chlorpheniramine, unknown to the medical staff responsible for his care, then this case would fall at the severe end of the spectrum, given that AG suffered from life-threatening episodes requiring repeated resuscitation.”

THE LAW

[46]The law applicable to the exercise the court is undertaking in this case is very well settled and can be summarised as follows: i) The burden of proving the facts pleaded rests with the local authority. In cases of alleged induced illness, it is for the local authority to establish on the balance of probabilities that the illness was induced. There is no requirement on the parents to show that the symptoms exhibited by the child were genuine or have some alternate explanation to the case of induction advanced by the local authority. Where a respondent parent seeks to prove an alternative explanation but does not prove that alternative explanation, that failure does not, of itself, establish the local authority’s case, which must still be proved to the requisite standard (see The Popi M, Rhesa Shipping Co SA v Edmunds, Rhesa Shipping Co SA v Fenton Insurance Co Ltd

[1985] 1 WLR 948

at 955-6). ii) The standard to which the local authority must satisfy the court is the simple balance of probabilities. The inherent probability or improbability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred (Re B

[2008] UKHL 35

at [15]). Within this context, there is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not (Re B

[2008] UKHL 35

at [2]). iii) Findings of fact must be based on evidence not on speculation. The decision on whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors (A County Council v A Mother, A Father and X, Y and Z

[2005] EWHC 31 (Fam)

). iv) In determining whether the local authority has discharged the burden upon it the court looks at what has been described as ‘the broad canvass’ of the evidence before it. The role of the court is to consider the evidence in its totality and to make findings on the balance of probabilities accordingly. Within this context, the court must consider each piece of evidence in the context of all of the other evidence (Re T

[2004] 2 FLR 838

at [33]). v) In this context, and self-evidently, I am not limited to considering the expert evidence before me. Rather, I must take account of a wide range of matters that includes the expert evidence but also includes, for example, my assessment of the credibility of the witnesses and inferences that can be properly drawn from the evidence. Accordingly, the opinions of the medical experts need to be considered in the context of all of the other evidence. vi) When considering the medical evidence with respect to the child’s presentation, the court must bear in mind, to the extent appropriate in the given case, the possibility of an unknown cause for that presentation (R v Henderson and Butler and Others

[2010] EWCA Crim 126

and Re R (Care Proceedings: Causation)

[2011] EWHC 1715

Fam). vii) In respect of the medical evidence, it is vital to avoid blurring the important distinction between treating clinicians and experts (Re H-L (A Child)

[2013] EWCA Civ 655

). Where it is proposed to seek an overview opinion from one of the doctors who has treated a child, then that proposal must be expressly raised with the other parties and with the court. If permission is given to instruct one of the treating clinicians as an expert, then that instruction and all that flows from it must be conducted in accordance with the rules and established practice in exactly the same manner as it would be for an ‘expert' who is brought into the case and who has not treated the child (Oxfordshire CC v DP, RS and BS

[2008] 2 FLR 1708

). viii) The evidence of the parents and carers is of utmost importance and it is essential that the court forms a clear assessment of their credibility and reliability. The court is likely to place considerable reliability and weight on the evidence and impression it forms of them. In this regard, it is important to bear in mind the observations of Leggatt J in Gestmin SGPS SA v Credit Suise (UK) Ltd Anor

[2013] EWHC 3560 (Comm)

at [15] to [21] and, in the context of public law children proceedings, of Peter Jackson J in Lancashire County Council v M and F

[2014] EWHC 3 (Fam)

that:

“To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record keeping or recollection of the person hearing or relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as “story-creep” may occur without any necessary inference of bad faith.” ix) As to the issue of lies, the court must always bear in mind that a witness may tell lies in the course of an investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress. The fact that a witness has lied about some matters does not mean that he or she has lied above everything (R v Lucas[1982] QB 720). Within this context, it is important to note that, in line with the principles outlined in the R v Lucas, in seeking to determine whether a person is a perpetrator, or should be included within the pool of possible perpetrators, it is essential that the court weighs any lies told by that person against any evidence that points away from them having been responsible (H v City and Council of Swansea and Others[2011] EWCA Civ 195). x) It is also important when considering its decision as to the findings sought that the Court take into account of the presence or absence of any risk factors and any protective factors which are apparent on the evidence. In Re BR [2015] EWFC 41 Peter Jackson J sets out a useful summary of those factors drawn from information from the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals. xi) It is in the public interest that those who cause injury to children be identified (Re K (Non-accidental Injuries: Perpetrator: New Evidence)[2005] 1 FLR 285). The court should accordingly endeavour to identify on the simple balance of probabilities the person or persons responsible for inflicting the injuries in question where it is possible to do so. xii) The Court should not, however, ‘strain’ the evidence before it in order to identify on the simple balance of probabilities the individual or individuals who inflicted the injuries. If it is clear that it is not possible on the evidence before the court for the court to conclude on the balance of probabilities who the perpetrator of the injuries is, or perpetrators of the injuries are and the court remains genuinely uncertain, then the court should reach that conclusion (Re D (Care Proceedings: Preliminary Hearing) [2009] 2 FLR 668). xiii) The threshold pursuant to s 31(2) of the Children Act 1989 may still be satisfied where the court finds that significant harm was caused by one or other or both of the parents but is unable to identify which parent is the perpetrator or that they both are. In in Lancashire CC v B[2000] 1 FLR 583 at 588 Lord Nicholls observed as follows: “In the present case the child is proved to have sustained significant harm at the hands of one or both of her parents or at the hands of a daytime carer. But, according to this argument, if the court is unable to identify which of the child's carers was responsible for inflicting the injuries, the child remains outside the threshold prescribed by Parliament as the threshold which must be crossed before the court can proceed to consider whether it is in the best interests of the child to make a care order or supervision order. The child must, for the time being, remain unprotected, since s 31 of the Children Act 1989 and its associated emergency and interim provisions now provide the only court mechanism available to a local authority to protect a child from risk of further harm. I cannot believe Parliament intended that the attributable condition in s 31(2)(b) should operate in this way. Such an interpretation would mean that the child's future health, or even her life, would have to be hazarded on the chance that, after all, the non-parental carer rather than one of the parents inflicted the injuries. Self-evidently, to proceed in such a way when a child is proved to have suffered serious injury on more than one occasion could be dangerously irresponsible.” xiv) Where the court cannot identify a perpetrator or perpetrators on the simple balance of probabilities, it is still important to identify the pool of possible perpetrators by asking whether the evidence establishes that there is a ‘likelihood or real possibility’ that a given person perpetrated the injuries in question (North Yorkshire CC v SA[2003] 2 FLR 849). In North Yorkshire CC v SA Butler-Sloss LJ stated: “In these difficult and worrying cases where the court has, as Lord Nicholls of Birkenhead has said, to recognise and have regard to the differing interests of the adults and the child, Parliament has provided a two-limb threshold which requires to be satisfied before the court has the right to consider the welfare of the child. The first is met in this appeal since the child was injured and suffered significant harm. In relation to the second limb, the attributable condition, it seems to me that the two most likely outcomes in ‘uncertain perpetrator' cases are as follows. The first is that there is sufficient evidence for the court positively to identify the perpetrator or perpetrators. Secondly, if there is not sufficient evidence to make such a finding, the court has to apply the test set out by Lord Nicholls of Birkenhead as to whether there is a real possibility or likelihood that one or more of a number of people with access to the child might have caused the injury to the child. For this purpose, real possibility and likelihood can be treated as the same test. As Lord Nicholls of Birkenhead pointed out in Re O and N; Re B [2003] UKHL 18, [2003] 1 FLR 1169 the views and indications that the judge at the first part of a split trial may be able to set out may be of great assistance at the later stage of assessment and the provision of the protection package for the injured child. I would therefore formulate the test set out by Lord Nicholls of Birkenhead as, ‘Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?'. There may perhaps also be the third possibility that there is no indicator to help the court decide from whom the risk to the child may come, in which eventuality it would be very difficult for the local authority and for the court to assess where the child might be at most risk.”

In Re S-B

[2009] UKSC 17

Baroness Hale stated as follows at [43]:

“If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case.”

Within this context, the court must scrutinise the evidence carefully and consider whether anyone, and if so who, should be included in the pool of possible perpetrators of the injuries sustained by the child (Re S (A Child)

[2014] 1 FLR 739

DISCUSSION

[47]Having regard to the evidence of fact and evidence of opinion before the court, and applying the legal principles I have set out above, I have come to the following conclusions in this case: i) Whilst an in-patient at the local hospital and the Evelina Children’s Hospital in London, AG experienced repeated unexplained episodes of unusual limb movements, apnoea, unconsciousness and coma, some of which incidents were life threatening and required intubation and ventilation; ii) No medical explanation for AG’s episodes was found despite extensive testing being undertaken; iii) Specialist blood tests undertaken on 17 May 2016 identified high levels of alcohol in samples of AG’s blood taken on 27 April 2016, 10 May 2016 and 17 May 2016 as set out above; iv) Specialist urine analysis undertaken on 17 May 2016 identified high levels of alcohol and levels of antihistamine in AG’s urine as set out above. v) Analysis of a sample of AG’s gastric aspirate taken on 17 May 2016 identified high levels of alcohol and levels of antihistamine in his gastric aspirate on that date as set out above; vi) The levels of alcohol found in the samples taken from AG were extremely high and would have caused serious toxicity and could have been potentially fatal to him but for the emergency treatment he received as an in-patient; vii) Each of the unexplained episodes experienced by AG at the local hospital and the Evelina Children’s Hospital in London were caused by AG being administered alcohol and / or antihistamine, including those episodes in respect of which blood and urine testing was not undertaken; viii) Each of the unexplained episodes was caused by the mother or the father or both of them deliberately and covertly administering alcohol and /or antihistamine to AG. ix) In deliberately and covertly administering alcohol and /or antihistamine to AG, the mother or the father or both of them caused AG to be subjected to extensive, unnecessary, uncomfortable and painful invasive tests to try and ascertain the cause of these episodes (including but not limited to MRI imaging, electrophysiology, two lumbar punctures, genetic and metabolic testing and video telemetry) and extensive, unnecessary, uncomfortable and painful treatments (including, but not limited to, extensive blood testing, catheterisation, intravenous and arterial cannulation, intubation, mechanical ventilation and the administration of antibiotic, anticonvulsant and anti-reflux medication).

[48]My reason for arriving at these findings on the totality of the evidence before the court are as follows.

Fact of the Episodes

[49]There is no dispute that whilst an in-patient at the local hospital and the Evelina Children’s Hospital in London, AG experienced a series of unexplained episodes of unusual limb movements, apnoea, unconsciousness and coma, some of which incidents were life threatening and required intubation and mechanical ventilation and support with maintaining blood pressure.

Consequences of the Episodes

[50]It is likewise not disputed by the parents that as a result of the unexplained episodes caused AG to be the subject to extensive and invasive tests that I have detailed above to try and ascertain the cause of these episodes. AG was further subjected to a series of invasive, uncomfortable or painful and, as it transpires, unnecessary treatments.

Presence of Alcohol and Antihistamine

[51]Neither parent seeks to dispute that the samples on 27 April 2016, 10 May 2016 (which, clarification having been sought by the local authority, I am satisfied was a valid sample) and 17 May 2016 identified alcohol in AG’s blood taken on 27 April 2016 and 17 May 2016. I am satisfied that on these occasions AG had very high levels of alcohol in his blood stream. Specialist urine analysis undertaken on 17 May 2016 identified levels of antihistamine in AG’s urine. The result obtained from the urine sample on 17 May 2016 was again obtained in the context of analysis of a sample of AG’s gastric aspirate taken on 17 May 2016 also identifying levels of antihistamine in his gastric aspirate on that date. Again, neither parent has sought to dispute that levels of antihistamine were identified. I am satisfied on that on 17 May 2016 AG had levels of antihistamine in his system. I am further satisfied that, having regard to the similar nature of the episodes experienced by AG on other dates, and being satisfied that those additional episodes were the result of AG being administered alcohol or antihistamine for reasons I shall come to, that on the dates of those other episodes AG also had high levels of alcohol or antihistamine or both in his system.

[52]Neither parent sought to dispute that the levels of alcohol found in the samples taken from AG were extremely high. As I have noted, both experts who were called to give evidence in this case noted that the levels of alcohol found un AG were, in their extensive experience, unprecedented. Whilst I accept that there are certain difficulties in applying the relevant equation for calculating the dose required to reach these levels to an infant of AG’s age, as illuminated in the cross examination of Dr McKinnon by Mr McCarthy QC, these difficulties are relevant primarily when considering the question of when alcohol was administered to AG as opposed to the level of alcohol seen in AG (I also note that Dr McKinnon maintained his view that, notwithstanding the issues pointed out by Mr McCarthy QC, there is a sound physiological basis for applying the equation to AG in circumstances where his body weight is known and an estimate of his body water is possible). The key point is that it is plain that there were high levels of alcohol were found and plain that caused by the administration of high levels of alcohol.

Cause of the Episodes

[53]I am satisfied that each of the then unexplained episodes exhibited by AG was caused by high levels of alcohol and antihistamine found in AG as detailed above. Neither parent sought to dispute the proposition that the levels of alcohol and antihistamine found in AG’s system would have been expected to cause serious toxicity and, in respect of the alcohol, could have been potentially fatal.

[54]The expert evidence of Dr Ward was reinforced by Dr J’s view that what he observed directly on 17 May was a child who was intoxicated (Dr Ward being of the same view when shown a video of this episode and video of the episode on 27 April 2016). I also have regard to the fact that extensive testing conducted in respect of AG consequent upon his then unexplained episodes ruled out any other cause for the unexplained episodes suffered by AG during the relevant period.

[55]Whilst I accept that there is some evidence that AG suffered from a pre-existing medical condition, namely trachaeomalacia (a bronchoscopy having indicated that an aortopexy was merited), I am satisfied on the evidence before the court that this condition was not the cause of AG’s repeated unexplained collapses. Likewise, there is no evidence to suggest that AG’s difficulty gaining weight in the weeks prior to his admission to hospital is linked to the later unexplained episodes he suffered following his admission. I have also noted and taken into account that there remain outstanding some test results for a limited number of very rare genetic disorders. However, in circumstances where Dr Ward was clear that the fact that the episodes ceased upon the parents’ arrest and have not recurred makes it very unlikely that there is a genetic component to AG’s episodes (as, if there was, the episodes would have continued) I am satisfied that I can conclude that the episodes were not caused by a rare genetic condition notwithstanding that the results of these tests are awaited.

[56]Within this context, I accept the expert evidence of Dr Ward that all of the unexplained episodes experienced by AG at the local hospital and the Evelina Children’s Hospital in London were caused by AG being administered the alcohol and antihistamine identified as being in his system.

[57]Having regard to all these matters, on the evidence before the court, I am satisfied that each of the unexplained episodes suffered by AG whilst an in-patient resulted from alcohol and /or antihistamine being introduced into his system. As I have already noted, it follows from this conclusion that on the other occasions on which AG suffered episodes, in addition to the dates blood and urine testing was undertaken on 27 April 2016, 10 May 2016 and 17 May 2016, AG had alcohol and / or antihistamine in his system.

Mode of Administration of Alcohol and Antihistamine

[58]I am further satisfied that the alcohol and anti-histamine that I have concluded was present in AG’s system and that caused each of the then unexplained episodes was deliberately administered to AG on repeated occasions as opposed to entering his system by way of some species of accidental or inadvertent administration.

(i) Hand Sanitiser

[59]By the conclusion of their oral evidence, both parents appeared to be moving towards accepting that the levels of alcohol found in AG could not have been caused by the application of hand sanitiser to his hands and arms, the father being, ultimately, perhaps more accepting of this than the mother. In any event, I am satisfied that the levels of alcohol found in AG’s system were not caused by the use of hand sanitiser containing alcohol. I have reached this conclusion for two reasons.

[60]First, I am not satisfied that the mother is telling the truth in respect of the levels at which she used hand sanitiser on AG whilst he was an in-patient having regard to the following matters: i) The use of hand sanitiser assumed no significance at all in either of the police interviews of the parents conducted immediately after their arrest in May 2016. The mother claims that this was because she was not aware at the time of the interview that the hand sanitiser contained alcohol. ii) The mother’s first statement, directed by the court specifically to address the question of hand sanitiser and dated 14 August 2016, details lower rates of application than those for which the mother now contends, she stating that she first used hand sanitiser on AG on 26 April 2016, using two doses. Specifically, the mother stated “I also put 2 pumps into my hand and wiped it over both of AG’s hands and arms” (my emphasis). She states that she did the same on 28 April 2016. At the Evelina Children’s hospital the mother states that she used hand sanitiser on AG 30 to 40 times per day “at the highest”. Dr McKinnon’s report ruling out the use of hand sanitiser as the cause of the levels of alcohol found in AG is dated 4 November 2016. The mother thereafter filed a second statement dated 25 January 2017 in which she said of her first statement “what I mean is that I used two pumps on the left hand and arm and two pumps on the right hand and arm”, amounting to between 120 and 160 pumps per day. The mother denied that she inflated her account in her second statement to match the emerging medical evidence. However, given the size of the discrepancy between the two descriptions and the fact that the second statement followed the report of Dr McKinnon, I am satisfied that this is evidence of the mother having changed her account of the level of use in response to the conclusions reached by Dr McKinnon. iii) In circumstances where the mother contends that her use of hand sanitiser on AG continued in the PICU the local authority sought confirmation as to whether members of staff saw the mother use hand sanitiser at the levels she claims whilst AG was on the PICU. By an email dated 25 August 2016, Professor Ian Murdoch, Professor of Paediatric Intensive Care at the Evelina confirmed that medical staff had not witnessed the mother use hand sanitiser on AG. Whilst that confirmation is in the form of an email rather than a statement in the proper form, it is corroborated to an extent by the evidence of the father who stated in his written and oral evidence that he saw the mother use hand sanitiser on only two occasions, stating in cross examination by Mr Bennett that he did not see the mother apply it with the frequency she claimed and did not himself see excessive use. In the circumstances, no person who came regularly into contact with the mother and AG whilst at hospital appears to have seen her using hand sanitiser on AG at the levels she claims. iv) The clarification contained in her second statement is to the effect that the mother was using high levels of sanitiser from the outset, commencing that use on 26 April 2016. However, this appears to be at odds with a text exchange between the parents in respect of “hand gel” on 28 April 2016. On that date the father texted the mother stating “The reason I told you to use the gel stuff is cos there’s at least four kids in here with pneumonia including rose (sic) in front of us and her mum gave you a cuddle”). The mother replied “Oh ok I’ll make sure I use it a lot then”. In my judgment this exchange is inconsistent with the mother’s evidence to the effect that she was using between 120 and 160 doses a day on AG from 26 April 2016.

[61]In the circumstances, I am satisfied that the evidence before the court suggests strongly that the mother has sought to construct, after the fact, an account of excessive use of hand sanitiser to seek to explain the high levels of alcohol found in AG’s system. This conclusion is of course also relevant to the question of whether the court can identify who administered alcohol to AG and I deal with this further later in this judgment.

[62]Second, and in any event, I accept the expert evidence of Dr McKinnon that even on the revised figures for dosage provided by the mother in her second statement, the level of use suggested by the mother would not result in the levels of alcohol found in AG even if administered all at once and assuming a generous figure for absorption of ten percent to account for an infant’s skin being more porous than the skin of an adult. More importantly, I note again that Dr McKinnon was clear that the manner in which the mother contends she in fact administered the hand sanitiser, namely repeatedly over the course of the day, would not have been able to result in the levels seen because AG would have begun eliminating each dose over time after it was applied, meaning it could not accumulate to the levels seen. On this basis, even assuming a greater absorption than in adults, the use of hand sanitiser at the level contended for by the mother could not result in very high concentrations of alcohol seen. Dr McKinnon was equally clear that the father’s contention that AG might have ingested alcohol by means of hand sanitiser on his (AG’s) hands and toys was not a plausible explanation for the levels of alcohol seen in AG.

[63]In the foregoing circumstances, I am satisfied that the high levels of alcohol in AG were not caused by the use of hand sanitiser on him. (ii). Human Agency

[64]There is no evidence before the court of any other accidental or inadvertent mechanism for the administration of alcohol to AG whilst he was an in-patient. There is no suggestion of an organic cause for the levels of alcohol found in AG. In the circumstances, and being satisfied that the levels were not the result of the use of hand sanitiser, I am satisfied that there is no explanation for the administration of alcohol to AG other than human agency.

[65]Whilst the father posits the possibility of negligent administration by medical staff or the use of antihistamine as part of AG’s treatment regime that medical staff subsequently failed to record, neither parent seeks to suggest that antihistamine came to be in AG’s system other than by way of the same being administered to him by somebody. On the evidence of Dr McKinnon, it is clear that fact that the mother in the past took antihistamine does not explain its presence in AG in May 2016 in circumstances where the mother had not been breast feeding for a month prior to the antihistamine being detected. There is no explanation before the court for the levels of antihistamine found in AG on 17 May 2016 beyond administration by human agency. I accept the evidence of Dr Ward that the presence of antihistamine in AG’s system indicates that someone administered that substance to him.

Perpetrator(s)

[66]Satisfied as I am for the reasons set out in the foregoing paragraphs that the alcohol and antihistamine found in AG’s system whilst he was in hospital was administered to him at that time by human agency, I turn now to consider the question of who administered those substances to AG. In summary, I am satisfied that the alcohol and antihistamine were deliberately and covertly administered to AG by one or other of his parents or both of them.

[67]There is no evidence before the court that alcohol and antihistamine were administered to AG by one of his treating doctors or nurses. As I have already observed, neither parent has sought to suggest explicitlythat the alcohol and antihistamine found in AG’s system was administered by a member of medical staff. Further, in my judgment, there is evidence before the court that positively points away from a conclusion that it was one of AG’s treating doctors or nurses who was responsible. Namely, that AG suffered unexplained episodes that I am satisfied were caused by the administration of alcohol and/or antihistamine in three different medical locations that do not share common staff. In my judgment this undisputed fact militates against the possibility that a member of staff was responsible. This conclusion is in my judgment reinforced by the fact that AG’s unexplained episodes ceased immediately upon the parents being arrested notwithstanding that AG remained an in-patient in hospital for a period of time thereafter. Neither parent has sought to allege it was another family member who administered alcohol and anti-histamine to AG and there is no evidence to that effect before the court.

[68]Before I leave the question of medical staff and relatives, as I have already noted, in their closing submissions, Mr McCarthy QC and Ms Harper sought to argue that the fact that a very large group of people came into contact with AG during the relevant period is a factor to be considered when the court is determining whether the local authority has proved its case. Mr McCarthy QC and Ms Harper submit, in effect, that the fact large numbers of people came into contact with AG means that the court cannot conclude that it was one or other or both of the parents who administered alcohol and antihistamine to AG. There are however at least two difficulties with this submission.

[69]First, the group of people who could be responsible for administering alcohol and antihistamine to AG upon whom Mr McCarthy QC and Ms Harper seek to rely includes the parents, and accordingly, notwithstanding the size of the group who came into contact with AG, the parents still fall to be considered as part of that group. Second, and within this context, notwithstanding that AG came into contact with a large number of people during the relevant period, the question for the court remains whether there is any evidence that one or more of them administered alcohol and antihistamine to AG. Within this context, I am not able to accept Mr McCarthy QC and Ms Harper’s submission that the bare fact that a large number of people came into contact with AG during the relevant period prevents the court from concluding that the alcohol and antihistamine was administered to AG by one or other or both of the parents.

[70]Mr McCarthy QC and Ms Harper further submit that the fact that the local authority has not obtained statements from all those who came into contact with AG during the relevant period and called them to confirm that they did not administer alcohol and antihistamine to AG prevents the local authority from proving its case against one or both of the parents. Again, I am not able to accept this submission. The local authority’s case is that one or other or both parents are responsible for administering alcohol and antihistamine to AG. To discharge the burden of proof the local authority is accordingly required to prove that one or other or both parents administered alcohol and antihistamine to AG, not to prove that others did not do so. It would be self-evidently perverse if to discharge the burden of proof the local authority was required to call evidence from all those persons whom it says did not cause the harm it seeks to prove.

[71]Neither parent disputes that as soon as AG was removed from the care of his parents the episodes ceased. Following the parents’ arrest AG immediately stopped having unexplained episodes, has had no unexplained episodes since and has thrived in foster care without any further medical difficulties. In my judgment this undisputed fact is a powerful piece of evidence that the alcohol and antihistamine that was administered to AG, resulting in him suffering a series of life threatening medical episodes, was administered to him by one or other or both of the parents.

[72]Whilst not probative by itself, I am satisfied that both parents had opportunity to administer alcohol and antihistamine to AG without medical staff seeing them do so at the local hospital and on both the Savannah Ward and the PICU at the Evelina Children’s Hospital.

[73]With respect to the local hospital, and whilst denying that they had done so, each parent conceded that they had periods alone with AG without medical supervision and had the opportunity easily to administer alcohol and antihistamine to him. The mother confirmed that during the stay in the local hospital she would spend time with AG and would sleep in a chair next to his bed save when the father went to work, when she would take the bed. The father conceded that he spent time with AG in the early morning before he went to work.

[74]With respect to Savannah ward at the Evelina Children’s Hospital, Nurse M confirmed by way of her statement and in oral evidence that the parents were shown how to use the nasogastric tubes to feed AG, held the tube at times during bolus feeds and also confirmed that they were permitted to feed him orally whilst unsupervised on occasion. The relevant nursing notes suggest that the majority of the feeds were undertaken by the parents, and in particular the mother.

[75]With respect to the PICU at the Evelina Children’s Hospital, Nurse D confirmed in her statement and during her oral evidence that close supervision of parental activity was not possible at all times. Nurse D related that there were significant spaces between each bed and equipment that may obscure the view. Nurse D further confirmed that, whilst when a child is unstable there would always be a nurse at the end of the bed in the PICU, when a child is stable and self-ventilating this would not always be the case. Nurse D confirmed that AG was at times in this latter, stable, category, with him being stable most of the time and very unstable some of the time. Nurse D was also clear that nurses might be engaged on the ward at the pharmacy or the sluice or in the storerooms. With respect to lighting on the PICU, Nurse D confirmed that there would be daylight from windows during the day and that between 10pm and 6am the lights would be turned down. In the early morning period, Nurse D stated that nurses are busy preparing for the day and moving around and at the individual beds there would be a bright light if needed or, if the child was stable, a light that equated to “dusk”.

[76]Nurse D made clear that following the suspicions being expressed by Dr H regarding the conduct of the parents, there was not a systematic increase in supervision of the parents due to the difficulty of communicating the need for such supervision to such a large team. Rather, Nurse D described a situation of “informal heightened awareness” and made clear that this would not have resulted in nurses aiming to keep AG in sight at all times if he was stable. Within this context, in my judgment it also is significant that the parents themselves can be seen complaining to each other by way of text messages that nurses were not always paying attention to AG whilst he was on the PICU. It is plain from the parents’ own text exchanges that there were periods when the care of AG was not supervised by nursing staff.

[77]Within the context of the foregoing evidence, which evidence I accept, I am satisfied that both parents would have had the opportunity to administer to AG alcohol and antihistamine without being seen by the medical staff responsible for treating AG both at the local hospital and the Evelina Children’s Hospital. I reject the submission made on behalf of the mother by Mr McCarthy QC and Ms Harper that “the chance anything noxious could have been given to AG without the nurse noticing was vanishingly small”.

[78]Within the foregoing context, the court heard a great deal of evidence from the parents concerning their precise whereabouts in the periods leading up to each unexplained episode suffered by AG. In addition, in respect of this particular issue the court also has the benefit of the nursing records, the parents’ text messages and messages from the mother’s WhatsApp account. Within this context, the evidence before the court indicates the following matters relevant to the unexplained episodes suffered by AG. It is important to note that the evidence available to the court presents a far from comprehensive or complete picture of the parents’ movements around the relevant hospital on each relevant date: i) At 1025hrs on 29 March 2016 AG had an episode, initially reported by the mother, of becoming floppy, with a lolling head, intermittently hypertonic arms, hiccupping, cycling movements and then unresponsive with tachycardia, these symptoms continued over a period of 24 hours. Extensive medical intervention was employed and eventually AG was intubated and ventilated. Prior to the first episode on 29 March 2016, both parents were recorded as resident with AG and giving all care. It was noticed on 21 March 2016 that AG’s vomiting tended to stop when his oral feeds were stopped. The parents took AG home on 26 March 2016 for Easter Sunday. Thereafter, AG’s records for 27 March 2016 record “++vomits during 24 hours”. Both the mother and the father conceded that there was an argument between them on 28 March 2016 but were both (I am satisfied deliberately) vague as to what it was about. On the morning of 29 March 2016 the father conceded that he spent time with AG early in the morning from 0400 or 0500hrs before leaving the hospital and 0530hrs. Records show that the father arrived at work at 0619hrs. The mother confirmed these timings. I pause to note that on the face of it, the mother informed people via WhatsApp that AG was having “seizures” prior to the time of the episode as recorded in the medical notes. ii) On 3 April 2016 at 2320hrs the mother noted a sudden onset of noisy breathing in AG who subsequently developed a poor respiratory effort and then apnoea, dilated pupils and became hypotensive necessitating an arrest call. On 3 April 2016 the medical records show that the mother was recorded as being present on the unit at 0630hrs. She texted the father at 0726hrs to ask him to bring a bag to the ward. Both parents are recorded as present at 0825hrs and then at 1140hrs for a discussion with medical staff. They are further recorded as present at 1345hrs and attending to AG’s care. The father appears to be off the unit at 2308hrs as he texting the mother about setting a wake up alarm. Prior to the development of AG’s symptoms at 2320hrs the father had been recorded as anxious about AG being discharged from the PICU to Savannah Ward. iii) At 0800hrs on 7 April 2016 AG suffered a respiratory arrest on Savannah ward. An arrest call was made and AG was transferred back to the PICU. The father accepted in cross examination that he was present and asking questions at some time after 0500hrs on 6 April 2016. A text at 0912hrs on 6 April 2016 shows the mother asking the father to return to the ward as the medical staff proposed moving AG back to Savannah Ward. The father further accepted that he would have seen AG throughout the day on 6 April 2016. The mother is (and, in one records, the parents are) recorded as being present overnight from 6 April into 7 April 2016 and is recorded as reporting that AG was unresponsive throughout the night. A text sent by the mother to the father at 0050hrs stating she believed that AG was having another episode elicited no response from the father. AG was transferred back to Savannah ward at 0715hrs on 7 April 2016 prior to the arrest on Savannah Ward at 0800hrs. Again, I pause to note that on the face of it, the mother informed people via WhatsApp that AG had stopped breathing prior to the time the commencement of the arrest as recorded in the medical notes, the mother’s WhatsApp messages at 7.31am and 7.46am to stating that AG had stopped breathing. iv) On 8 April 2016 AG had further episodes during night at 0045hrs and 0300hrs. The mother is recorded as having been present throughout the night. The mother texted the father at 0049 to say “he has stopped again” but it would appear that the father was present on the ward prior to this time, having texted the mother to let him onto the ward at 0026hrs. Later, the father texted the mother to inform her that he was on his way back to the ward at 0745hrs. Both the mother and father presented as being very anxious with lots of questions at 0830hrs. AG was extubated at 0840hrs. v) On 12 April 2016 the mother alerted nurses at 0810hrs that AG was exhibiting shallow breathing. At 0951hrs AG had an episode and ceased breathing necessitating a ‘fast bleep’ and requiring intubation, ventilation and transfer to PICU. Prior to this episode, by 10 April 2016 AG had been very stable and with no cardiological or neurological dysfunction. The nursing notes record that the parents stayed on ward until 2230hrs on 10 April 2016. On 11 April 2016 both parents expressed concern about AG being moved to Savannah ward as they “don’t know how to look after him”. AG was discharged from PICU to Savannah on 11 April 2016 at 1450hrs. There is an entry in the medical records that states the “parents” report that AG looked well overnight. On 12 April 2016 at 0730hrs the mother is recorded as coming to see AG on the ward and as being very low in mood and stating she feels she should be able to protect AG from the episodes. The mother texted father at 0747hrs to ask what time he is coming down. In evidence the mother agreed that the text messages suggested the father was off the ward at the time of the episode but could not recall when he came on to the ward. Once again, the mother appeared to inform a friend via WhatsApp that AG stopped breathing before the time of episode given in the medical notes. At 0804hrs the mother sent a WhatsApp message that AG 0809hrs stating he “stopped breathing again this morning” shortly before she alerted nurses to AG’s shallow breathing at 0810hrs. Following the episode, the parents are recorded on the ward speaking to a nurse prior to a note timed at 1100hrs. On 12 April 2016 AG was extubated within four hours at 1430hrs. At 1800hrs the parents are recorded as having visited throughout the day, being very anxious and requiring a lot of support and reassurance. vi) On 15 April 2016 AG suffered a series of further episodes. AG suffered episodes at 1050hrs (pauses in breathing, unresponsive and floppy, responding only to pain) and 1350hrs (further apnoeas and shallow breathing) and exhibited additional pauses in breathing, asymmetry of pupils and fleeting bradycardia at other times during the day. Prior to these episodes, both parents concede that on 14 April 2016 they had a further argument. Each was (again, I am satisfied, deliberately), vague concerning the subject of that argument. In evidence, the mother acknowledged that her texts to the father, sent in the context of this argument having occurred, carried with them the message that once AG was well she wished to leave him and that the father had understood that message. The nursing notes record that the father claimed on 14 April 2016 to be able to predict AG’s episodes and felt that the next episode would be Friday or Saturday. The mother conceded that it was possible that the father left the parents’ room and spent time with AG in the early morning of 15 April 2016. The nursing records indicate the Father did indeed spend all night with AG from 14 to 15 April 2016, with the father being recorded as on the ward at 2000hrs on 14 April 2016 when the nursing shift commenced, leaving the unit at 2201hrs and returning to the unit at 0030hrs on 15 April 2016 and being resident at 0600hrs when the mother arrived. Sometime before 0600hrs the nursing notes record that the father was reassured when he felt that AG was floppy. The father is recorded as being resident on the unit at 0700hrs on 15 April 2016 ahead of the first episode at 1050hrs, which episode accorded, in terms of its timing, with the father’s prediction the day before. vii) On 16 April 2016 AG suffered a number of episodes of abnormal movements and apnoea lasting 20 seconds and had a 15-minute episode of non-responsiveness at 1440hrs with limb writhing and small pupils. Both parents were present on the ward during the course of 16 April 2016. The mother was present in morning at from 0650hrs. The father is recorded at 1402hrs as thinking that AG was going into another episode and the mother replies that she is coming implying that the father was alone on the ward with AG at 1402hrs ahead of the episode at 1440hrs. At 1747hrs the mother refuses to leave AG due to incidences of him stopping breathing. On 17 April 2016 AG was recorded as being stable throughout the day with no abnormal episodes and at 1850hrs as having “no signs of respiratory distress today” albeit he demonstrated some periods of shallow breathing. Within this context it is again of note that at 0206hrs on 18 April the mother sent a WhatsApp message to her friend C to state that “He had another episode this morning and stopped breathing again”. As I have noted, the medical records for 17 April 2016 do not show respiratory arrest on morning of 17 April 2016 and there was no such arrest noted in the early hours of 18 April 2016 prior to the mother’s WhatsApp message at 0206hrs. viii) On 18 April 2016 AG had an episode of reduced consciousness followed by a further respiratory decompensation requiring further ventilation at 0955hrs. The medical records appear to indicate that both parents were on the ward at 0845hrs speaking to the dietician. The father conceded in oral evidence that he was on the ward until 1000hrs. Both parents had been on the ward the previous evening until 2200hrs. ix) On 20 April 2016 AG had a further episode at 1540hrs AG had an episode with floppy, cyclical movements of arms, minimal response to pain and intermittent biphasic stridor. Both of his parents appear to have present at the time of the episode. The medical records indicate that the mother was present on the ward on morning of 20 April 2016 at 0700hrs. At 1200hrs on 20 April 2016 the parents were informed of the plan to transfer AG to the Savannah ward in one or two days’ time if he was stable. The father is recorded as being present at 1200hrs and receiving the explanation from Dr L regarding the progression of AG to the HDU if he was sufficiently stable ahead of the episode at 1540hrs. The medical records indicate that both parents were present on the ward at 1745hrs on 20 April 2016. x) On 23 April 2016 at 0650hrs AG commenced an episode with prolonged apnoea at 0750hrs. He was intubated at 0850hrs. Both parents were recorded as being present during the day on 22 April 2016. On 22 April 2016 both parents are recorded as expressing concerns about AG being discharged to Savannah ward. On 23 April 2016 the mother was present on the ward from 0630hrs. During her evidence the mother stated that the father was off the ward at the time the episode took place and had not been on the ward when the mother arrived at 0630hrs. However, the nursing notes record that both parents were “up to date” at 0600hrs. At 0643hrs the mother texted the father to say that she thought AG was having another episode. The mother informed S at 0647hrs by WhatsApp that AG was having another episode and the father asked by text at 0708hrs whether he should come up to the ward. Both parents appear to be present on the ward by 0730hrs. AG underwent a further episode at 0845hrs. xi) On 24 April 2016 AG was recorded as having an episode after 1000hrs and a further stridorous episode at 1345hrs. The mother attended the ward at 0600hrs and is recorded as having been updated by medical staff at 0815hrs ahead of the incident recorded as occurring after 1000hrs. The father is recorded as being present on the ward at 1140hrs, ahead of the episode recorded as occurring at 1345hrs. xii) On 27 April 2016 AG suffered a further unexplained episode commencing at 0730hrs when he was observed to be displaying cycling movements. A video clip taken at 1106hrs shows AG very significantly intoxicated. The medical records show that the parents had been on the ward until 2300hrs on 26 April 2016. It is of note that the medical notes record that the parents state that they stay late and come to the ward early as they are able to “identify” when AG is about to have an episode when the nurses often cannot. On 26 April 2016 Dr H felt that the parents were unusually upset about the decision not to perform an aortopexy. On 27 April 2016 the medical records state that the mother was back on the ward at 0500hrs. AG was noted to be “smiling, alert, playing with toys in his cot” when he awoke at 0430hrs. Dr Ward considered that this description was inconsistent with a child who had at that time been administered alcohol or antihistamine. The records for 27 April 2016 record that the mother gave AG a feed by bottle prior to the episode at 0730hrs. The nursing notes record that the nurse was away from the bed when the feed given, although she gave the mother the milk from the fridge. Both the mother and father contend that the father was not with AG between 2300hrs on 26 April 2016 and the commencement of the episode on 27 April 2016. The mother texted the father at 0737hrs and stated that AG was having another episode. The father appears to have been on the ward by 0909hrs. Upon the commencement of cycling movements at 0730hrs Dr H was summoned and suspected administration of a toxic substance. As previously noted, blood samples were taken during the event with chain of evidence procedures. The mother was noted as appearing despairing of the situation and the lack of a diagnosis. Both parents are recorded as being on the ward until 2130hrs on 27 April 2016. xiii) 28 April 2016 AG had an unexplained episode between 0650hrs and 0750hrs. Prior to this episode the notes record that the mother was with AG, unattended, for intervals of five to ten minutes prior to the start of the episode whilst the nurse assigned to AG supported colleagues. The notes record that at 0630hrs the nurse heard AG cry out and saw the mother standing over him. The nurse assessed AG and noted that he was falling back to sleep with his dummy. The mother left the ward for a short time afterwards and then returned and sat with AG for the duration of the episode. xiv) On 30 April 2016 AG had a further episode at approximately 1400hrs of cessation of breathing and unconsciousness requiring ventilation and intensive care. This incident followed a meeting on 29 April 2016 at which the importance of closely observing the parents was emphasised. In the circumstances, there is a much more detailed record of the parents’ whereabouts and activities prior to this episode. Both parents visited the ward at 0630hrs. AG was fed by the parents at 1000hrs following the nurse preparing his feed. At 1110hrs the mother texted the father indicating that she was watching AG as “our nurse has been doing other stuff”. AG was observed to be being cuddled by the father at 1135hrs and settled with a dummy. He was fed by both parents at 1300hrs, again following a nurse preparing his feed. The nurse was required to leave AG with his parents during this feed due to an alarm on the ventilator of another patient. Upon her return, the mother remarked that AG was spitting out parts of his feed. The medical records further indicate that the mother and father observed to be carrying out “mouth care” on AG between 1300hrs and 1350hrs at the time when the nurse responsible for AG was on her break. AG noted to be alone with the father at 1400hrs at the commencement of the episode with the nurse assigned to AG being on a break and the nurse covering being engaged doing a “tape change”. When challenged in cross examination about these matters the father said “it sounds like we gave him something but that is not what happened”. He could not explain why an episode occurred shortly after bothhe and the mother had been seen to feed AG and undertake “mouth care” with him. xv) On 4 May 2016 AG had a further unexplained episode at 0635hrs characterised by stridor, breathing difficulty then apnoeas, mottled tachycardia and cycling movements. The medical notes indicate that the parents seen to be touching and pressing buttons on the monitor on 2 May 2016 and were told to stop doing it. They were also recorded as expressing frustration about why aortopexy has not been undertaken. Prior to the episode at 0635hrs on 4 May 2016 the mother is recorded as having been observed taking medicines out of her nappy bag at a point before 0535hrs. At 0825hrs there is an entry from nurse N that reads “Informed by SN [P] that while I was on my break, mum was seen at her nappy bag getting medicines”. Nurse N records that she returned from her break at 0535hrs at which time the mother was present at the bed space. The medical notes record that both the mother and the father were present on the ward at the commencement of the nursing sift at approximately 0545hrs according to a further note from nurse N and ahead of the episode commencing at 0635hrs. The mother is recorded as being present during the episode commencing at 0635hrs and the father is recorded as arriving during the episode and, accordingly, if the record showing him present at 0545hrs is accurate, he appears to have left and come back. At 0725hrs the father texted the mother to get her to come down for a cigarette and at 0909hrs the text messages appear to indicate that the father is in parents’ room. The parents left the ward at approximately 2100hrs on 4 May 2016. The following day the father queried whether AG should be put on a ketogenic diet. xvi) On 8 May 2016 AG had an unexplained episode at 1135hrs when he was seen to be unresponsive, with small pupils and airway obstruction as a result of which he was intubated at 1150hrs (the time is given as 1215hrs in the nursing notes). The mother is recorded as having returned to the ward at 0545hrs on 8 May 2016. The parents are also recorded as having been updated “pre and post episode”. Within this context, a note made on 8 May 2016 at 1400hrs in the nursing notes records that “At – 1030 (I was assisting in cubicle) nurse covering came over to AG as monitor alarming resp = 0 apnoea. Mum + Dad present stated that AG was sleeping, coughed then became apnoic.” The records accordingly suggest that both parents were present with AG prior to his requiring intubation on 8 May 2016. xvii) On 10 May 2016 at 1000hrs the mother alerted medical staff to the fact that AG was sweaty, stridorous, with abnormal movements and decreased responsiveness. Urine and blood samples were taken during the episode. He demonstrated similar symptoms, requiring airway support, between 1915hrs and 1925hrs on 10 May 2016 with further episodes of tachycardia, floppiness and unresponsiveness over a period of 40 minutes. Both parents are recorded as having been on the ward at 2100hrs on 9 May 2016 but not present overnight. The medical records indicate that at 0400hrs AG was unsettled and a little whingey and at 0610hrs hours he was self-ventilating and had had no episodes overnight. Dr Ward considered those descriptions not consistent with having been administered significant quantities of alcohol the evening before. There is no indication in the medical notes as to which, if either, of the parents attended the ward prior to the episode on 10 May 2016. As to the position after the episode, the mother stated that the father was probably not on the ward when she texted him at 1040hrs on 10 May 2016 to see whether she wanted to go for a cigarette. The father stated he had not seen AG between 2100hrs on 9 May 2016 and the episode commencing on 10 May 2016. Thereafter the parents were recorded as being present during the day and were present at an MDT meeting that took place at 1900hrs. With respect to the episode in the morning, it is again of note in this context that the mother sent WhatsApp message to S at 0527hrs saying “He was recovering well after surgery babe but has had an episode today and is not doing so good they have put him on oxygen and he is doing Ok!”. That message appears to refer to either 9 May 2016 or 10 May 2016 prior to 0527hrs. She sent a similar WhatsApp message to C at 0528hrs saying “AG has had another bad day babe meeting when ok they are still no close to finding out whats going on but in about a weeks time he will be having surgery to lift the aorta artery off his trachea! It’s a big surgery that carries lots of risks but they think there is a chance it will help his breathing issue xxx”. The medical records for 9 May 2016 and early hours of 10 May 2016 show no episode on 9 May 2016 or in the early hours of 10 May 2016. xviii) On 17 May 2016 at approximately 1045hrs AG commenced an episode of cycling movements, hypotonia and being unresponsive. A video taken by the father commencing at 1047hrs shows AG as clearly intoxicated. Blood samples were taken. A further episode occurred at 1345hrs. Prior to this episode there had again been discussion about moving AG off the PICU to Savannah ward. The parents were noted in the medical records to be at AG’s bed at 1940hrs on 16 May 2016. At 0430hrs on 17 May 2016 AG is recorded as having given no concerns overnight. Dr Ward was clear that that description is not one of a baby who had already ingested significant quantities of alcohol. At 0810hrs on 17 May 2016 the mother is recorded as on the ward with AG. During her oral evidence the mother stated that the father went for breakfast alone that morning. In her statement the mother says she gave AG apple puree at 0930hrs and then went to meet the father at 1000hrs and they returned to the ward together at 1030hrs. The medical notes record that the father had come to the ward prior to 1047hrs when he took the video of AG. The father contends he took the video “moments” after he arrived on the ward. He is recorded as talking to the chaplain at 1055hrs and is recorded as present with the doctors at approximately 1145hrs. The father’s evidence concerning his whereabouts on 17 May 2016 set out in his statement dated 25 January 2016 bears little resemblance to the times set out in the hospital records. The parents were both recorded as being on the ward at 1325hrs ahead of the further episode at 1345hrs. xix) Finally, on 19 May 2016 AG had a further unexplained episode at 1000hrs. The mother is recorded as being on the ward from 0530hrs or 0730hrs. She is recorded as having fed AG at 0800hrs and as having given him apple puree at 0900hrs after having asked to do so. The father texted the mother at 0911hrs and the mother went to meet the father for breakfast. The father again stated in his oral evidence that he had not seen AG since the evening of 18 May 2016.

[79]A number of important observations must be made arising out of the foregoing summary of the main episodes exhibited by AG and the parents’ whereabouts before, during and after the same: i) The evidence I have recited, and which is before the court, does not comprise anything like a continuous narrative of the parents’ whereabouts and movements at all times. It is plain from a close analysis of the nursing notes that they do not always record when the parents are on and off the ward. Further, whilst a given text may indicate that one or other or both parents are on or off the ward at a particular point in time, that text does not assist with what may have happened in the period before or after it was sent unless there is other evidence covering those periods, which there often is not. Given the problems with each parents’ credibility (which I shall come to below) and the limitations of memory in the context of long periods spent in hospital, the parents’ respective accounts of who was where when must, likewise, be treated with caution. ii) It is plain that, on occasion, AG had unexplained episodes both shortly after being in the company of his mother and shortly after being in the company of his father. Whilst this is more often true in respect of the mother (in respect of whom there is a pattern of attendance on the ward early in the morning) there are a number of occasions on which AG experienced episodes consequent upon the administration of alcohol or antihistamine shortly after being in the company of his father. iii) There is at least one episode, on 30 April 2016, when AG experienced an episode consequent upon the administration of alcohol or antihistamine shortly after him being cared for (and indeed fed and administered ‘mouth care’) by both his parents. iv) Having regard to the expert evidence of Dr McKinnon and Dr Ward, there is some evidence to suggest that father was not present with AG at the time the combined evidence of Dr McKinnon and Dr Ward suggest AG was administered alcohol or antihistamine on 27 April, 10 May and 17 May 2016, namely at a point after he was seen to be settled and well very early in the morning on those dates. However, account must also be taken of the caution expressed by both Dr McKinnon and Dr Ward in respect of timing the administration of alcohol and antihistamine, the fact that, as I have already observed, the evidence before the court does not constitute anything like a continuous narrative as to the whereabouts of each of the parents at all times and the fact that there is evidence that the father would, on occasion, visit AG on the ward during the night and early in the morning. v) Both parents appear to express concern regarding AG being moved from the PICU to Savannah ward, which expressions of concern are followed, on a number of occasions, by AG suffering an episode consequent upon being administered alcohol or antihistamine, thus ensuring that his intensive medical regime is maintained.

[80]Within the foregoing context, it is plain on the evidence before the court that the mother and father not only each had opportunity to administer alcohol and antihistamine to AG at the local hospital and on the Savannah ward and the PICU at the Evelina Children’s Hospital but, for the reasons I have described above, there were repeated occasions when one or other or both were present and in contact with AG in the period prior to AG experiencing episodes consequent upon the administration of alcohol and antihistamine.

[81]I have given very anxious consideration to the submission of Mr Tyler QC and Ms Troy that evidence (in the form of nursing notes, text messages and the parents’ testimony) suggesting that father was not present with AG on 27 April, 10 May and 17 May 2016, at times when a combination of the clinical and expert evidence allows for AG to have been administered alcohol or antihistamine, operates to exonerate the father of responsibility for administering the alcohol and antihistamine found in AG. However, after much careful reflection, I am unable to accept that submission.

[82]Whilst I accept that Dr Ward considered that the observations made by nurses in respect of AG at 0430hrs on 27 April prior to the episode at 0730hrs, at 0400hrs on 10 May 2016 prior to the episode at 1000hrs and at 0430hrs on 17 May 2016 prior to the episode at 1045hrs were consistent with AG not having ingested alcohol or antihistamine at those points, on each of those dates a significant period of time passed (measured in periods greater than two hours on each occasion) between those observations being made and the episodes consequent upon the administration of alcohol and / or antihistamine commencing.

[83]Within this context, and as I have already noted, the evidence before the court does not comprise anything like a continuous narrative of the father’s whereabouts at all times. Whilst at points recording when the parents are present, it is clear that the nursing notes do not always record when the parents come onto, and leave the ward. Whilst it is true that the text exchanges between the parents allow some inferences to be drawn that the father is on or off the ward at the specific points in time when those texts are sent, those texts do not assist with what may have happened in the period before or after they were sent. Within this context, I again note that there is evidence that the father, who was staying in accommodation provided by the hospital, would, on occasion, visit AG on the ward during the night and early in the morning. Given the problems with the father’s credibility which I shall come to shortly, and the fact that Ms Cook QC demonstrated convincingly in cross-examination that certain of the father’s evidence as to his whereabouts at given times, including 17 May 2016, is unreliable and subject to revision, his assertion that he was not present with AG prior to the episodes on 27 April, 10 May and 17 May 2016 must also be treated with caution.

[84]Finally, and again as I have already noted, regard must also be had to the caution expressed by both Dr McKinnon and Dr Ward in respect of the timing of the administration of toxic substances given the large number of uncertainties and unknowns impacting on the question of timing to which I have referred when dealing with the expert evidence. In particular, Dr McKinnon was clear that the window for administration on 27 April and 10 May 2016 was up to 24 hours in length.

[85]For these reasons, I am unable to accept the submission that the evidence in respect of 27 April, 10 May and 17 May 2016 operates to exonerate the father, particularly in circumstances where the father was plainly present, either alone or with the mother, on other occasions following which AG had episodes consequent upon being administered alcohol or antihistamine. I also consider it significant that the father was extremely reluctant to accept that there would have been any point when AG was unsupervised on the PICU such that it would have been possible to administer alcohol or antihistamine to him despite clear evidence to the contrary, including the parents’ own text messages to each commenting in real time on the lack of supervision being given to AG and extremely wedded to the idea of a medical or accidental cause even after it became plain that this was unsustainable.

[86]It is clear on the evidence that during the period in which AG was repeatedly administered alcohol and antihistamine, bothparents were under considerable emotional strain.

[87]I am satisfied that the father was under emotional pressure with respect to his relationship with the mother. It is plain that the parents’ relationship was in difficulties and that arguments continued to occur between them following the argument on 6 March 2016 during which the father threatened to kill the mother and AG if the mother left him. In my judgment, both parents have sought to withhold from the court the true nature and extent both of the argument on 6 March 2016 and the arguments that followed it. It is however clear from the text messages that the mother repeatedly made clear to the father that when AG was well she intended to leave him. I am satisfied that the father was fully aware that it was likely that upon AG recovering his relationship with the mother would be at an end, the local authority submitting that this would have been a powerful motive for the father, who was, I am satisfied, plainly insecure and needy with respect to his relationship with the mother, to keep AG from recovering.

[88]The mother was likewise under significant emotional pressure, in particular in the period leading up to AG’s admission to hospital. I am satisfied that she was deeply shocked and hurt by the father’s threat to kill her and AG should she leave him. The argument clearly caused her significant emotional upset. I agree with Ms Cook QC and Ms Webber that the mother has not disclosed the full extent of the argument. She described what the father had said as disgusting and hurtful and it soured matters between them for a long period afterwards. In addition, the mother was having to deal with turmoil in her own family, including her sister’s attempted suicide and concerns regarding her own mother’s mental health. Within this context, prior to AG’s admission to hospital it is plain that she was taking primary responsibility for AG’s care with the consequence that she was deprived of sleep.

[89]It can be seen that the parents’ relationship and its course during the period with which the court is concerned was central to the emotional pressures acting on the parents during this time. I am satisfied that it is further clear on the evidence that that relationship contained contradictory features. As I have related, the relationship featured arguments during the relevant period. Within this context, it is clear that parents argued on 6 March 2016, ten days before AG first started exhibiting episodes of greatly increased vomiting that led to his admission to the local hospital. They argued again on 28 March 2016, a day before AG exhibited the first unexplained episode that led to his transfer to the PICU at the Evelina Children’s Hospital and which it is now clear was caused by the administration of alcohol or antihistamine. On 14 March 2016 the parents argued once again, immediately prior to a further serious unexplained episode in AG that, once again, it is now clear was caused by the administration of alcohol or antihistamine.

[90]However, the parents’ relationship also appears to have endured periods in which the parents were allied to each other against the medical staff, sharing criticisms of the staff by text and, on at least one occasion, conspiring together by text to try to make a nurse’s life more difficult. There is also evidence that at times the relationship was characterised by the father being directing of the mother and that the mother sought the father’s approval. Prior to AG’s admission to hospital both parents concede that the father texted the mother telling her to give AG whisky in order to settle him. Once in hospital, the text messages show an instance of the mother asking the permission of the father to cuddle and the father instructing the mother precisely what she should be recording in respect of AG’s then unexplained episodes and when to use hand sanitiser.

[91]Having had the inestimable benefit of seeing both parents give oral evidence to the court over an extended period of time, it is further the case that the evidence of both parents gave the court significant cause for concern.

[92]The mother presented as a somewhat vulnerable and fragile lady in the witness box. She demonstrated extreme upset at times, most especially when it was put to her that she had harmed AG by administering to him alcohol and antihistamine. The episodes of upset, during which the mother visibly struggled to catch her breath, echoed evidence of the mother suffering episodes of extreme upset and panic during AG’s hospital admission. As a witness, the mother lacked candour and I am entirely satisfied that she sought to withhold information from the court where she felt that it would assist her case. In particular, I am satisfied that she sought to disguise the true nature and extent of the arguments between her and the father.

[93]The father struck me in the witness box as somewhat more immature than the mother. He too, lacked candour and was apt to dissemble. Once again, I am entirely satisfied that the father sought to withhold information from the court that he considered would assist his case. As with the mother, this was particularly the case in relation to the true nature and extent of the parents’ arguments over the relevant period. In addition, the father demonstrated an almost dogged adherence to a medical or accidental explanation for AG’s episodes even as the evidence mounted against the same. In particular, despite being in court when Dr McKinnon was cross-examined as to the possibility of AG having ingested alcohol by placing his hands or toys in his mouth after they had been covered in hand sanitiser, and when Dr McKinnon ruled out such modes of transmission, the father continued to maintain that Dr McKinnon had not ruled these possibilities out. Within this context, and as I have already recounted, the father was (in contrast to the mother) also extremely reluctant to accept that there would have been any point when AG was unsupervised on the PICU such that it would have been possible to administer alcohol or antihistamine to him despite clear evidence to the contrary, including the parents’ own text messages to each commenting in real time on the lack of supervision being given to AG.

[94]Within the context of the father’s level of investment in a medical or accidental cause, I also remind myself of the evidence that the father, both prior to AG’s admission to hospital and during his admission, was apt to use medicalised language. Upon the parents considering that AG displayed noisy breathing, the father asked the Health Visitor about trachaeomalacia. During AG’s admission, the father was also noted by medical staff to use technical medical language and to display a familiarity with medicalised language, for example, as I have ready related, raising the possibility of placing AG on a ketogenic diet (a form of therapeutic diet for paediatric epilepsy).

[95]I am further satisfied that both parents have on occasion not told the truth or dissembled to professionals and to this court about the matters with which the court is concerned. Before considering these examples, I remind myself again that that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress. The fact that a witness has lied about some matters does not mean that he or she has lied above everything.

[96]For the reasons I have already outlined, I am satisfied that the mother is not telling the truth about her use of hand sanitiser on AG whilst he was in hospital. I am satisfied that the mother has sought to create a false picture of the amount of hand sanitiser used on AG in order to attempt to construct an explanation for the amount of alcohol found in AG’s system. I am further satisfied that the Mother made other assertions in her evidence that were not true. The Mother’s assertion, both in examination-in-chief and directly to me when I sought clarification, that there was always a nurse at the foot of the AG’s bed on the PICU is manifestly not correct on the parents’ own evidence, including the text messages between them complaining on occasion about the level of attention AG received in the PICU. The mother changed her account during cross-examination when she conceded that there were times when the nurses “moved away”. Within this context, I also note that the mother sought to describe the location of the equipment around AG’s bed space in the PICU in a manner that suggests it would not obscure the view, evidence flatly contradicted by Nurse D. Lastly, as I have already concluded, I am entirely satisfied that the mother sought to withhold from the court the true nature and course of the parents’ relationship, and the arguments that characterised it, over the relevant period.

[97]As to the reason for the failure by the mother to be truthful in respect of these matters, in the context of the other evidence before the court, and in particular that in relation to the volatile and contradictory course of the parents’ relationship and conduct at the hospitals, I am satisfied she adopted this course in an attempt to mislead the court rather than for some other motive, although it remains unclear whether this was in order to divert attention from her own culpability or that of the father, or both.

[98]Finally, in respect of the mother, as I have noted above in my summary of the evidence concerning the main episodes exhibited by AG, there is also some evidence on the face of the mother’s WhatsApp messages that the mother, on occasion, appeared to alert her friends, falsely, that AG had had an episode, prior to that episode taking place. However, I have decided that considerable caution is required with this evidence in circumstances where the timings for the episodes given in the medical and nursing notes are necessarily approximate (in the sense that the time given may coincide approximately with the event recorded or with the time the entry was made or both), the court has not received expert evidence with respect to the mother’s phone confirming that the times given for the WhatsApp messages are accurate and, finally, where account must be taken of the fact that the mother had been in hospital for weeks on end, with the concomitant impact on her ability to orientate herself accurately in time with respect to the concepts of “yesterday” and “today”.

[99]With respect to the credibility of the father, when pressed to explain his marked interest in medical matters and his noted use of technical medical language, the father gave no less than four different explanations for this. To the Health Visitor the father claimed that he had gained medical knowledge from his training as a Special Constable (the Health Visitor being sceptical of this explanation in circumstances where she considered the terms used by the father to be beyond those provided in such basic training). When interviewed by the Police, the father stated that he “had done a first aid course a few years ago, but other than that none”. When examined in chief, the father stated that he had gained the knowledge from undertaking an ‘Access to Medicine’ course at college, which course he embarked on when he decided he wished to become a paramedic following his father becoming ill. Finally, in cross-examination, the father stated that his use of medical language with the Health Visitor derived from a conversation with the boyfriend of his ex-boss, that boyfriend being a paramedic. Like the Mother, the father was, I am satisfied, deliberately vague about the nature and course of the parents’ relationship during the relevant period and, in particular, the nature and extent of the arguments that characterised that period.

[100]As with the mother, with respect to the reason for his dissembling in respect of these matters, and with respect to the parents’ relationship, in the context of the other evidence before the court, and in particular that in relation to the volatile and contradictory course of that relationship and parents’ conduct at the hospitals, I am satisfied he adopted this course in an attempt to mislead the court rather than for some other motive, although it remains unclear to me whether this was in order to divert attention from his own culpability or that of the mother, or both.

[101]Having regard to all of the foregoing matters, and after much anxious consideration, with respect to the question of who administered alcohol and antihistamine I am satisfied on the evidence before the court that it was one, or other or both of the parents. I am further satisfied that the evidence does not allow me to go any further to identify which of the parents was responsible, if one of them, or to determine definitively that both were responsible.

[102]It is plain that each parent had opportunity to administer alcohol and antihistamine to AG. It is plain that the mother was with AG on occasions prior to him suffering episodes consequent upon the administration of alcohol and antihistamine, but so too on occasion was the father and, on at least one occasion, both of them were. For the reasons I have already set out, given the limitations of the evidence, I am not persuaded that the fact that there is some evidence that the father was not present at the times AG might have been administered alcohol and antihistamine on 27 April, 10 May and 17 May 2016 allows the court to conclude that the father can be discounted as the source of the alcohol and antihistamine in AG. It is plain that parents both were under emotional very significant emotional pressure, the mother facing difficulties both with the father and in her own family and the father in particular being aware that the continuation of his relationship with the mother appeared, according to the mother, contingent on AG remaining ill. Whilst the mother did not tell the truth about the application of hand sanitiser, the father also plainly dissembled regarding the explanation for his noted use of technical medical terms and in respect of the difficulties with the parents’ relationship. Within this context, whilst entirely satisfied that one or other or both parents deliberately and covertly administered alcohol and antihistamine to AG, I am unable on the evidence before the court to further penetrate what Lord Nicholls in Lancashire CC v B described at 589 as “the fog of denials, evasions, lies and half-truths which all too often descends in court at fact-finding hearings”.

[103]I make clear that in reaching my conclusions I have, of course, taken account of the fact that this is a family in which there was no prior social services involvement and that the mother has a blemish free record of working with children. I have likewise considered carefully Ms Gibson’s evidence that the mother, in contact, has been seen to be very engaging with AG and is good at stimulating him. However, these matters have not allowed me to take my conclusions on the evidence any further than set out above.

[104]Finally, I make clear that I have not relied in reaching my conclusions on the evidence concerning the syringes found following the parents arrest. I am not satisfied that the packet of unopened syringes found in the green hospital bag can be reliably linked to the mother (or indeed the father). Whilst I accept that the packet of syringes was in a bag with the mother’s medication, it is clear that staff at the hospital collected a large number of items and placed them in green hospital bags. There is no indication of where the unopened packet was found prior to it being placed into the bag. It is plain that there was a syringe in the ‘Chelsea’ bag but again, there is insufficient evidence to tie its use to one or other of the parents.

[105]Within this context, I am conscious that the court has been left unable to determine how the mother or the father or both parents administered alcohol and antihistamine to AG. A number of possibilities remain, including oral feeds by bottle, administration using a syringe and administration via AG’s naso-gastric tube. I remind myself that a brown liquid found to contain alcohol was found in AG’s bed space. Both parents appeared, on occasion, pre-occupied with AG’s dummies. With respect to antihistamine, the mother stated in her oral evidence that liquid ‘Piriton’ was used at the nursery, that it could only be administered with parental permission and that she had done so on a “few” occasions. Ultimately however, it is not possible to determine on the evidence before the court how, in fact, the alcohol and antihistamine was administered to AG.

CONCLUSION

[106]In conclusion, I make the findings set out in the Schedule appended to this judgment. I will allow a short period for the parents to consider the findings made by the court and to respond by way of a further statement to those findings. I will then give directions for the welfare stage of this hearing.

[107]Finally, for the reasons I have set out, I am satisfied that neither of the parents has been entirely frank with the court. I am satisfied that they have each made a conscious choice to withhold certain matters rather than giving an account of all that they know about the circumstances in which AG came to have extremely high levels of alcohol and levels of antihistamine in his system. Within this context I have had to try and divine what happened to AG in circumstances where his parents have chosen not to assist the court fully with that task. This judgment represents my considered attempt to discharge the duty of the court in those circumstances on the evidence available to me at this hearing. In so far as the mother and the father consider that this judgment does not represent the full picture of what befell AG, the responsibility for that lies solely at their respective doors.

[108]There now comes a very important decision for the parents. To adopt the words of Lord Nicholls of Birkenhead in Lancashire CC v B at 588, in the present case AG is proved to have sustained significant harm at the hands of one or other or both of his parents. Within this context, the parents have a choice. They can consider the findings of the court and choose now to provide the information that I am satisfied that they have thus far withheld from the court to ensure that the local authority assessment that will follow this hearing constitutes a fully informed assessment of risk and allows the court the best possible opportunity to determine whether AG can be safely returned to their care. Conversely, they can continue to withhold information from the court and from professionals and increase thereby the risk of the court of having ultimately to conclude that AG cannot be safely returned to their care.

[109]That is my judgment.

SCHEDULE OF FINDINGS

[1]Whilst an in-patient at the local hospital and the Evelina Children’s Hospital in London, AG experienced repeated unexplained episodes of unusual limb movements, apnoea, unconsciousness and coma, some of which incidents were life threatening and required intubation and ventilation.

[2]No medical explanation for AG’s episodes was found despite extensive testing being undertaken.

[3]Specialist blood tests undertaken on 17 May 2016 identified high levels of alcohol in samples of AG’s blood taken on 27 April 2016, 10 May 2016 and 17 May 2016.

[4]Specialist urine analysis undertaken on 17 May 2016 identified high levels of alcohol and levels of antihistamine in AG’s urine.

[5]Analysis of a sample of AG’s gastric aspirate taken on 17 May 2016 identified high levels of alcohol and levels of antihistamine in his gastric aspirate on that date.

[6]The levels of alcohol found in the samples taken from AG were extremely high and would have caused serious toxicity and could have been potentially fatal to him but for the emergency treatment he received as an in-patient.

[7]Each of the unexplained episodes experienced by AG at the local hospital and the Evelina Children’s Hospital in London were caused by AG being administered alcohol and / or antihistamine, including those episodes in respect of which blood and urine testing was not undertaken.

[8]Each of the unexplained episodes was caused by the mother or the father or both of them deliberately and covertly administering alcohol and /or antihistamine to AG.

[9]In deliberately and covertly administering alcohol and /or antihistamine to AG, the mother or the father or both of them caused AG to be subjected to extensive, unnecessary, uncomfortable and painful invasive tests to try and ascertain the cause of the episodes (including but not limited to MRI imaging, electrophysiology, two lumbar punctures, genetic and metabolic testing and video telemetry) and extensive, unnecessary uncomfortable and painful treatments (including, but not limited to, extensive blood testing, catheterisation, intravenous and arterial cannulation, intubation, mechanical ventilation and the administration of antibiotic, anticonvulsant and anti-reflux medication).

Cited in 1 later judgment

London Borough of Bexley v M & Ors (No 1) 2021