“In my judgment the judge fell into error, not only by the use of a "pseudo- mathematical" approach to the burden of proof, but in any event, he allowed the 'burden of proof to come to [his] rescue' prematurely. In my judgment the judge had failed to look at the whole picture. Not only did he fail to marry up the fact that S sustained two sets of injuries (one of which was fatal) but the judge, faced with the incontrovertible evidence in relation to the genital injuries, carried out no analysis of the available evidence in order to see whether an accident (for example) was a likely cause. Whilst in other circumstances I might have identified, or highlighted by way of example, certain evidence which I believe merited consideration by the judge, given my view that the appeal must be allowed and the matter remitted for rehearing, it would not be appropriate for me to comment further.”
‘The hot-tubbing exercise proved to be a model of its kind, allowing the clear expression of consensus and difference amongst the three forensic pathologists. Their differences were of emphasis, not substance. There were very clear deferrals to Dr. Lipetz regarding the genital injuries. All agreed that neither set of injuries could be considered in isolation.’
“I am uncomfortable with using the terms “likely” and “unlikely” when talking about things which are unusual in the first instance. I would regard this (homicide) as initially something to investigate, I could not exclude the alternative explanation. Phrasing in terms of likelihood is a personal matter and I am not comfortable about using such statistical terms.” 44. As to the role of the expert, Dr. Leadbeatter makes the following observations: “There comes a point where there has to be more than pattern recognition-where there is a pattern there will be exceptions, then one has to take the view that pathology is only a part of the investigation – then the remainder of the evidence may assist”
“whether it [strangulation by a third party] is the most tenable of the three (alternatives) is a matter for all of the evidence”…. “Ranking it is putting it in terms of culpability. I do not like to do that and certainly one could only say if looking at the neck alone there is no distinction other than that it is ligature pressure. Have to look at it in context.”
“Based on my findings I can confirm that there is genital bruising of the hymen and surrounding area consistent with blunt trauma caused by penetration. The specific details that I can see on the photographs provided and I consider significant are: An irregular hymen; A disruption to the hymenal tissue at 7 o’clock; Extensive hymenal, introital and paraurethral bruising; Petechial haemorrhages on the vaginal wall. All these injuries occurred when the child was alive and not post mortem. They are acute injuries. I cannot specifically time the injuries relative to the time of death they are likely to have occurred the same day and not longer than 72 hours before death. I cannot confidently comment on the anal injuries from the photographs provided.”
“Straddle injury can injure the genitalia but without the evidence of penetration that is seen in this case. Penetration by accidental injury is rare and there is no proposed causation. Cycling penetration has been reported but in bicycles without a saddle. In considering the mechanisms of injury I have looked at the layout of the bedroom and the bed. I do not think a fall from the bed could have caused this injury. I do not think this injury was caused through the pyjama bottoms that were on the body nor could it have been caused when moving the body and disentangling the lace around her neck.” disentangling the lace around her neck.”
“Dr Cary states the injuries are typical of forceful digital insertion. This is one mechanism that is plausible. I cannot confirm (and do not think the pathologists could confirm) if this is an isolated acute incident or if there could be a previous episode or episodes of penetration with healed injury.”
“I am limited in my interpretations as I was not present at post mortem and can therefore only interpret the photographic findings. I have therefore responded to those findings that I can observe myself. I agree with Dr Cary’s opinion that a sexual assault has caused genital injury. The description I have given varies slightly and I am unable to confidently interpret the anal findings. I have had a meeting with Dr Stephen Leadbeatter to view the photographs of the scene and the post mortem. I am unable to give any opinion on the histological findings or the post mortem findings within the neck as these are outside my field of knowledge and expertise.”
“A range of competing theses has been explored: (a) Sexual assault by a family member involving coercive ligature restraint resulting in accidental fatal strangulation; (b) Sexual assault by a family member followed by a homicide, either by the assailant or by another family member, in order to prevent disclosure of the assault; (c) Sexual assault and homicide by an unknown third party intruder who entered the property in the night undetected; (d) Sexual assault by an unknown third party (possibly a member of the extended family) outside the home on the Saturday, followed by an accidental hanging caused by [S] falling out of bed onto the netting or falling out after sleeping with the netting wrapped around her neck; (e) Sexual assault by an unknown third party outside the family home followed by an unknown third party intruder entering the property at night to kill [S]; (f) Suicide with or without a previous sexual assault; (g) An accidental ‘straddle injury’ to the genitals whilst out of the home on the Saturday, alternatively during the course of accidentally falling from the top bunk, coupled with an accidental hanging.”
“Collectively, the assemblage supports the interpretation of a meal of white poultry (chicken/turkey) type meat with rice as indicated by [S] mother, although with peas, onions and some spices also present. The evidence also strongly supports the witness statement of pancakes consumed subsequently. The consumption of crisps and biscuits is feasible but not definitive. The relative volumes of the foods and liquid present within the stomach would imply ongoing digestion. Different food types are broken down and/or pass through the stomach into the small intestines at varying rates, with soft carbohydrates and well chewed, cooked protein sources often being amongst the first solid items to leave. Given the close similarity to intelligence known regarding the range of foods consumed and timings thereof, this would suggest strongly that death or trauma leading to death has occurred within only a few hours of consumption of the pancakes at 21.00hrs. This interpretation reflects the fact that pancakes are a soft carbohydrate source that disaggregate and transit from the stomach relatively quickly. Furthermore, rice and meat from the meal eaten around 17.00hrs were also still present in moderate quantities. There was a moderate fat content in the stomach and regular top up with carbohydrates, both of which would slow transit rate somewhat. Nevertheless, based on intelligence known and the evidence presented, I consider it more likely that the assault leading to death occurred in the early part of the night. If [S] had slept all night under normal circumstances then died shortly before she was found, her stomach would have been practically or entirely empty. Digestive transit of food from the stomach ceases immediately upon death (Madea 2002).”
‘is there a likelihood or real possibility that A, B or C was the perpetrator or a perpetrator of the inflicted injures?’
“40. … [If] the judge cannot identify a perpetrator or perpetrators, it is still important to identify the pool of possible perpetrators. Sometimes this will be necessary in order to fulfil the "attributability" criterion. If the harm has been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. Sometimes it will desirable for the same reasons as those given above. It will help to identify the real risks to the child and the steps needed to protect him. It will help the professionals in working with the family. And it will be of value to the child in the long run. 41. In North Yorkshire County Council v SA [2003] EWCA Civ839,[2003] 2 FLR 849 , the child had suffered non-accidental injury on two occasions. Four people had looked after the child during the relevant time for the more recent injury and a large number of people might have been responsible for the older injury. The Court of Appeal held that the judge had been wrong to apply a "no possibility" test when identifying the pool of possible perpetrators. This was far too wide. Dame Elizabeth Butler-Sloss P, at para 26, preferred a test of a "likelihood or real possibility". 42. Miss Susan Grocott QC, for the local authority, has suggested that this is where confusion has crept in, because in Re H this test was adopted in relation to the prediction of the likelihood of future harm for the purpose of the threshold criteria. It was not intended as a test for identification of possible perpetrators. 43. That may be so, but there are real advantages in adopting this approach. The cases are littered with references to a "finding of exculpation" or to "ruling out" a particular person as responsible for the harm suffered. This is, as the President indicated, to set the bar far too high. It suggests that parents and other carers are expected to prove their innocence beyond reasonable doubt. 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.”
“46. Drawing matters together, it can be seen that the concept of a pool of perpetrators seeks to strike a fair balance between the rights of the individual, including those of the child, and the importance of child protection. It is a means of satisfying the attributable threshold condition that only arises where the court is satisfied that there has been significant harm arising from (in shorthand) ill-treatment and where the only 'unknown' is which of a number of persons is responsible. So, to state the obvious, the concept of the pool does not arise at all in the normal run of cases where the relevant allegation can be proved to the civil standard against an individual or individuals in the normal way. Nor does it arise where only one person could possibly be responsible. In that event, the allegation is either proved or it is not. There is no room for a finding of fact on the basis of 'real possibility', still less on the basis of suspicion. There is no such thing as a pool of one.”
“48. The concept of the pool of perpetrators should therefore, as was said in Lancashire, encroach only to the minimum extent necessary upon the general principles underpinning s.31(2). Centrally, it does not alter the general rule on the burden of proof. Where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did. No one can be placed into the pool unless that has been shown. This is why it is always misleading to refer to 'exclusion from the pool': see Re S-B at [43]. Approaching matters in that way risks, as Baroness Hale said, reversing the burden of proof.”
“49. The court should first consider whether there is a 'list' of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain, to do so: Re D (Children)[2009] EWCA Civ 472 at [12]. Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list: "Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?" Only if there is, should A or B or C be placed into the 'pool'.”
“I could never let any girl go through what I went through. I have since had a recurring cyst that eventually had to be removed again following the birth of [Z]. FGM had a serious impact on my early relationship with my husband because when we first married I found intercourse extremely painful and uncomfortable. We had a love match and it was really so sad. It was only after I had the operation at Kings College Hospital that I was ever able to heal. I know I will never have a normal sex life. I went to visit my mother in OC in 2004, I took [E] and [W]. This was the first time I had seen my mother since we fled due to the war in 1996. She told me that she understood what she did to me and sisters was wrong. She begged my forgiveness. She blamed “the culture”
‘I wake up, say, 9:00, 9:10, 9 o’clock, something like that. I wake [E] and [W] up. [W] went to the toilet, and [E] went downstairs once she-, The next thing I heard when [W] came out from the toilet is, like, ‘Dad, look she is struggling, she’s been smacked. She’s struggling.’
‘[W]: [W] told me. [W] was shouting it out from the room, ‘There’s something wrong with [S].’
“I asked PC Rein what he needed me to assist with to which he identified a young black male to me as the girl’s brother, whose full details I now know to be [E]… PC Rein asked me to stay with the male whilst PC Rein and PC Blue went upstairs to where the LAS were. [E] was very quiet, I asked if he was ok and if he knew what had happened. [E] stated that his younger sister [X] had found their other sister [S] in the bedroom in the night after she had fallen out of bed but hadn’t told anyone because she was worried she would get told off for waking her mum and dad up. Whilst I was talking to [E] I could hear lots of crying and wailing coming from upstairs.”
“Drawing together the various evidence addressed above, we make the following submissions about collusion and each individual’s potential culpability for [S’s] death. Where a family have colluded in circumstances such as this, the line between collusion and perpetration is thin. What reliance can be placed on any of the four individuals’ insistence of innocence when there is strong evidence on which the court can find collusion? Any finding of collusion is so damaging to individual credibility as to make such reliance problematic.”
“Identifying a perpetrator is particularly challenging here because, first, there is no firm evidence about the motive for the killing and, second, there is no clarity about whether the person responsible for her sexual assault also killed her. Was she sexually assaulted by one of her brothers then killed by her parents to avoid bringing shame on the family? Was she sexually assaulted then either deliberately killed by the same person or accidentally killed during an act of ligature restraint? We do not know the answers to these questions and would be speculating if we sought to base a decision on perpetration on either hypothesis.”
“31. In this country we do not require documentary proof. We rely heavily on oral evidence, especially from those who were present when the alleged events took place. Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses. The task is a difficult one. It must be performed without prejudice and preconceived ideas. But it is the task which we are paid to perform to the best of our ability. 32. In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof.”