Gateshead Council v M [2015] EW Misc B33 (CC) (04 August 2015) [2015] EW Misc B33 (CC)

EWMISC
Gateshead Council v M [2015] EW Misc B33 (CC) (04 August 2015)
[2015] EW Misc B33 (CC) · 2015-08-04
[1]Her Honour Judge Moir : I am concerned with the welfare of LLM who was born on the 23rd October 2013. So she is now aged 1 year 8 months. She is the daughter of MM and CM.[2]The local authority had been involved with the family for some time initially in 2006 when both MM and her siblings were subject to child protection plans. The case was closed in 2007.[3]The mother MM is described as a vulnerable adult assessed previously with a low IQ. She had struggled with her mental health: self harming, suicide attempts, drug and alcohol misuse and associated lifestyles which have involved instability and health conditions. She has been diagnosed with ADHD, epilepsy and possibly aspergers syndrome and it's right to say that she has not historically engaged fully with treatment or support and she has at times displayed as violent and aggressive to the police.[4]It has been said during the course of these proceedings that DM the maternal grandmother has been MM's rock. And it is right from the evidence that I have heard that DM has supported M effectively to put it colloquially through thick and thin. No matter what has occurred in M's life, DM has been there for her.[5]On 4th April 2013 a referral was received from the community midwife. MM was pregnant and due to give birth in October 2013. Due, among other things, to her chaotic lifestyle and the circumstances, concerns were expressed about her ability to safely and consistently meet the needs of her new baby.[6]Following the birth, L and her mother were discharged to the home of the maternal grandparents and until recent events, L remained living with them which placement was recognised by reason of a court order.[7]Due to the ongoing difficulties and the mother's ability to meet the needs of L, the local authority was still involved and they encouraged the Ms to apply for the child arrangements order which was granted on 13th October 2014.[8]As a result of the events which occurred, care proceedings were commenced on 11 th December 2014.[9]This followed a referral by a concerned family member who was later identified as SA. She disclosed her concern that L had been given Codeine by a bottle. That L was just over 1 year of age at the time that the referral was made.[10]On the afternoon of 17th October 2014, DM had left for the weekend to go to Blackpool which was a yearly regular occurrence and S was told by M that D had instructed her, M, to administer portions of Codeine to L via her bottle. DM denies ever telling M to do something like this. M has given different accounts at different times.[11]STM was present in the house at the time that this came to light. It is said by SA that he was surprised when it was identified that the tablets were Codeine.[12]A decision was taken, led by him, not to contact social services immediately and to wait until D returned from Blackpool. In fact no report was made to social services until SA contacted them. She said that she had become anxious for L's safety as nothing had been done to inform social services or protect L.[13]Hair strand testing of L was undertaken and positive results were obtained for the period between mid-October and mid-November. The police interviewed D and MM. As far as I'm aware no charges have been brought.[14]This hearing has been listed to determine if possible who administered the Codeine to L. It is the local authority who brings this case and they must prove it on the balance of probabilities as set out in Re B (care proceedings standard of proof) [2008] UKHL 35 .[15]In Re J [2013] UKSC 9 , it was set out that neither the seriousness of the allegations nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account where relevant in deciding where the truth lies.[16]The court must take each piece of evidence and consider it in the context of all the other evidence which is before the court. In Re T [2004] EWCA Civ 558 it is set out that evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.[17]The test to be applied in relation to the identification of perpetrators is the balance of probability, just as it applies to any other finding of fact Re S-B [2010] 1 FLR 1161 .[18]The test of whether a particular person is in the pool of perpetrators is whether or not upon careful scrutiny of the evidence there is a likelihood or real possibility that he or she was the perpetrator. Such a finding is not a matter for percentage definition or other amplification where a specific perpetrator cannot be identified as set out in North Yorkshire County Council v SA [2003] 2 FLR 489.[19]The court must not strain the evidence in search of a particular perpetrator. There can be cases of genuine uncertainty and in those cases an uncertain conclusion may be the only outcome to which the court can come Re D [2009] 2 FLR 668 .[20]In cases of this nature, it is not uncommon for the court to find that particular witnesses are telling lies.[21]In the case of Re M (Children) [2013] EWCA 388, in relation to how the court should approach the question of lies when assessing a witness' credibility during the course of that judgment in the Court of Appeal Ryder LJ said:
"A Lucas direction is a criminal direction derived originally from a case on corroboration, R v Lucas [1981] QB 720. It is used to alert a fact-finding tribunal, that is a jury in a criminal trial, to the fact that a lie told by a defendant does not itself necessarily indicate guilt because the defendant may have some other reason for lying; that is, he may lie for innocent reasons. A witness may lie because she lacks credibility, or because she has an innocent motive for lying. If she lies about the key facts in issue, that is one thing; if she lies about collateral facts, that may be quite another. A judge of fact may not be able to separate out every fine distinction, but may nevertheless conclude that an allegation is proved, despite the fact that the witness has lied about other matters."
[22]Lastly in considering the lay evidence Lady Justice Macur offered the following guidance in Re M (Children) 2013 EWCA Civ 1147 at paragraphs 11 and 12:
"The judge's assessment of the parents characters, past behaviour and present attitudes are entirely dependent upon finding primary fact, interpreting and drawering reasonable inference from the same. I agree with Miss Ball QC, they are unassailable on appeal. The judge was obliged to reach her conclusions on the whole of the evidence and was not bound by the opinions of others, however eminent in their field. The judge states the basis of her departure from their views, namely that of her "good opportunity not only to hear the witnesses' evidence but to observe their demeanour and credibility. Conscious that such comment is trite in first instance judgments, it is pertinent to note in this one under review that the judge's description of the mother and father when giving evidence before her is analytical and detailed and obviously drawers upon more than their performance in court. It is obviously a counsel of perfection but it seems to me advisable that any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so."
I am very conscious that giving evidence in a case of this nature is very emotional and I bear in mind Lady Justice Macur's caution.[23]The local authority set out the threshold that they put before the court at A30 within the bundle. That was dated 8th February 2015. The Local Authority then lodged amended findings dated 27th February 2015 which are at A38 in the bundle. Additional findings were sought by the local authority and provided in a document dated 24th July.[24]The first part of those findings dealt with the ingestion of Codeine. The finding that the local authority put before the court was that the people responsible for the administration of the Codeine, or lack of appropriate supervision, are on the current evidence available to the local authority DM, STM and MM or any one or all of them. The who did not actually administer the Codeine either individually or together have failed to protect the child when they knew or ought reasonably to have known of the Codeine administration and did not act to prevent it.[25]The schedule as I've said is lengthy. I do not intend to read it out in full.[26]The additional findings sought by the local authority following the completion of the evidence was firstly DM, STM and MM each failed to report the issue of possible Codeine ingestion by L in a timely manner and thereby failed to protect L from harm and the risk thereof. Two of the failures alleged in one above resulted in L on balance continuing to be given Codeine after 7th October 2014; probably between October and November 2014.[27]I turn then to the facts of this case. The toxicology evidence obtained by the local authority was effectively unchallenged and the expert conclusion in respect of the hair strand testing was:
"This profile is likely to represent administration of Codeine containing medication on a regular basis and possibly daily basis during the majority of October and probably a proportion of November."
[28]It was of course inappropriate and extremely dangerous to administer Codeine to a child of this age or any child and could have been highly damaging to L or in the extreme, fatal. It clearly placed L at risk of significant physical harm.[29]Dr Alexander was asked to assist the court and upon his calculation it seems L was given either two by a quarter or one by a half tablet per day crushed in her bottle. The suggested liver tests were carried out and thankfully they were normal. Dr Alexander confirmed that Codeine will dissolve in water and that there will be no visible clouding in the water or any residue. The evidence dating the administration of the Codeine is based upon average growth rates of adult hair rather than child's hair which the scientists state is somewhat different.[30]The dates suggested are therefore estimated and cannot necessarily be relied upon as being absolutely accurate. However, the evidence is clear that L ingested a significant quantity of Codeine over a prolonged period of time. The potential perpetrators are indeed as set out in the threshold M, D and STM. The only feasible mechanism for there to be Codeine in L's body is the suggestion made by M of crushing a tablet of Codeine or part thereof and dissolving the resulting powder in water which water was then mixed with milk powder to make up the bottle. The evidence does not support the ingestion of any large quantity on a single occasion and from the evidence of those in contact with L, it seems she didn't show any obvious adverse signs such as drowsiness or disorientation.[31]I am satisfied Codeine over a significant period of time was administered to L, most likely by being placed in her bottle. The question for the court therefore is who was responsible for such administration?[32]Each of the possible perpetrators deny that they were responsible in any way. In his submissions on behalf of DM, Mr McDermott asks me to find that M is responsible. M states that D is responsible and Mr Rowlands on behalf of the maternal grandfather emphasis the unreliability of the account M has given.[33]The local authority set out their position at paragraph 30 within their final submissions. Mr Todd sets out:
"Taking into account all the above matters, the local authority contend that whilst the blame for the regular administration of Codeine appears to point must strongly towards DM, the local authority are concerned that a multitude of lies have been told by M which make it hard to exclude her from also having so acted on the instructions of the grandmother or not. STM's role is less significant it seems and the local authority's most significant concerns lie with regard to his failure to protect probably within the administration period and thereafter. The failure to report matters by all three probably resulted in L receiving more Codeine which in the face of the live allegation is extremely worrying, it was blatant."
[34]The local authority received an anonymous referral on 29th October 2014. We now know it was from SA. I found Mrs A to be an impressive witness. It must have taken a great deal of courage and resolve for her to report to the social services her suspicions about her mother's actions. It has, on the evidence I heard, split the family apart. SA told me that all her actions including giving evidence before the court were to protect L. She in fact has been blamed for L going into foster care by family members. She told me in evidence, and I quote from the note of her evidence that I took:
"I didn't know which one of them had done it. I didn't trust either of them to tell the truth. I couldn't leave it any longer. I didn't sleep or eat. My mum told me that she was doing something about it. I didn't see anything getting done. My mum told me that nobody needed to know. Nobody else was present. Somebody needed to know about it so I told social services. L was in their care. They were dealing with it. I was concerned dealing with the family that they were not making the point. It was such a serious allegation, I could not rest. I have been criticised by the family members particularly my nana. It has ripped my family apart."
[35]S's account of what she witnessed that day has remained consistent throughout. At C28 within the bundle in her Children Act statement at paragraphs 3 and 4 she sets out:
"At this point me, M, SO and ST within the house at (address withheld). J did not get back until about 5pm as SO's husband collected him from college. Before J returned I went into the kitchen. M was already in the kitchen as we had been talking about putting the kettle on to make cups of tea, coffee whilst we preferring food for the party. Once in the kitchen M said to me 'mam asked me to put these in L's bottle' she then took a baby bottle teat with no rim from the drawer in front of her, tipped it up, and four pieces of broken tablet dropped into her hand. She then said 'I have to give this bit' indicating a small piece 'on Friday and the bigger bit on Saturday'. I asked 'what's that' and M replied teething powders. I then explained to M that teething powders come in packets with instructions and were already a powder you do not have to make them into a powder. M replied 'do they?' and I said 'yes'. I further explained that teething powders come in a packet with instructions and you do not put anything in a bottle. It should be rubbed onto the gums. During this discussion I noticed M had a drawer open. In the drawer had been the silicone teat from a bottle with no rim containing the four pieces of broken tablet. I noticed they were not exact quarters. In this drawer was also various cutlery, knives, a rolling in, papers and leaflets. I checked the drawer and there was no other medication in there. I checked in case M had got confused and picked up the wrong medication but there was no other mediation in the drawer at all. Following this, M then put the piece of tablet in her mouth and said 'that's fucking Codeine'. She then started kicking off verbally saying 'I fucking swear to god' I remember thinking at that time that M looked as shocked as I was. I later thought it did not seem to be an act. I told M not to jump to conclusions and she said 'I'm sure she showed me how to do it'. ST must have heard the noise and came into the kitchen also asking what is going on. M replied saying 'these are fucking Codeine. Mum asked me to put them in L's bottle'. ST said 'are you sure they're Codeine' and M said 'yes, I know what fucking Codeine tastes like because I took them all through my pregnancy'. ST said 'everything will taste like Codeine to you then'. We then talked about the matter further and all agreed not to jump to conclusions and wait until our mother returned from Blackpool before asking her about it."
[36]As I said, SA's account of what happened that morning has remained consistent and she gave the same account in oral evidence before me.[37]D was in Blackpool and she was admitted to hospital during the visit with a suspected stroke. In fact although they had agreed not to get in touch with D until she returned, M phoned her and according to M she told D that she knew it was Codeine and asked what was going through her head. In fact, as M accepted, she spoke to her mother's friend rather than directly to D. M said that she spoke to D when she returned from Blackpool and that D denied giving L Codeine. She said she wouldn't do that.[38]M told me that her mum said that she, M, had got it wrong and they were only teething powders in the drawer. S was adamant that she had checked the drawer and there were no teething powders in that drawer. The teething powders were normally on her father's desk and were still there.[39]S and M were cross examined on the basis that there were three packets of teething powders found which had been pushed to the back of the drawer and that the packets had fallen down and were on the plinth. S and M were certain that there were no packets of teething powders within the drawer. The method of applying teething powders was to rub it on the gums not to dissolve it to put into the bottle. I will return to the issue of teething powders in a moment.[40]M spoke to S on 10th December 2014 and the court listened to and had a transcript of the phone call which was made between the two sisters. M in the phone call demanded from S a promise that she, S, would not let a stranger bring L up. M told the court that the recording and the transcript accords with her recollection of the phone call. It was put "you told social services you had given L Codeine". She replied "It wasn't the truth. I wanted my daughter home. I was willing to take the blame". When asked whose idea was it she said me and my mum spoke about it and I said I would just admit it because she was the one who cared for L. I was scared of losing my mum. We didn't speak about it as a family just the two of us. She said I wouldn't be sent to prison because of my mental health issue but she would. We didn't speak to dad about it." She was asked why give this account now and she said "because L deserves the truth to be spoken not just someone to take the blame".[41]In the phone call M told S that her parents knew that she hadn't done it and she swore to S that it wasn't her who had administered the Codeine. S believed her and was forceful during the course of that telephone call in telling M to just tell the truth.[42]M has confessed to and denied administering Codeine to L on a number of occasions. She told the police she had given the Codeine, she told the social worker that she had done it, she told the general practitioner that she had done it.[43]In her evidence in court before me she denied being responsible for giving L Codeine. She said in giving evidence "I've got to do what is right for my daughter".[44]M told me that just before the hearing in front of me, her mother had admitted to giving L Codeine. They had both had a drink. D according to M did not tell her why she had given L Codeine but M said there had been a discussion that if she admitted it to the professionals, they would go easier on her and L could remain in the family. If D admitted it, she would go to prison. M relied very heavily on her mother and as I have said it is to D's credit that it is clear that she was indeed a rock for M as M described.[45]The next day when M confronted her mother, D told M, according to M, that it was a load of nonsense and denied ever admitting it. I do not place any great reliance upon the account of this admission. I do not find that M is lying about it but it seems to me that I really need to look most carefully at the other parts of the evidence before me.[46]SA I found to be an honest and credible witness. She had no motive to fabricate any evidence or to make up any parts of her account in fact by the contrary. There was a hint that it was being said that she went to the local authority with her account because she had some ulterior motive. I found no evidence of any motive other than her concern about the wellbeing of her niece. I find she was not motivated by either a wish to be a carer for L or because of some antipathy towards her own mother.[47]I found SA to be genuine and indeed courageous in the stance that she took. The outcome for L could have been very different if the administration of Codeine had continued or increased. I find SA's evidence to be reliable.[48]In finding her evidence reliable, there are relevant matters upon which I accept her account. The most important part of S' evidence is her account of her discussion with M. She did not catch M doing anything, rather M consulted her because of her, M's concern, as to what she had been asked to do by DM. I am satisfied that in naming DM as having told her to put the crushed up tablet in the bottle, M was not making up an explanation because S caught her introducing a substance into L's bottle. M was not engaged in preparing a bottle at the time according to S.[49]Further, I accept S and M's evidence that there were no teething powders in the drawer. The teething powders were not usually in the drawer but were placed on STM's desk.[50]The maternal grandparents had stopped giving L the teething powders some weeks earlier because of their lactose content. DM says that she had reintroduced their use but it was apparent that neither ST nor M were aware that teething powders were again being used despite the fact that D would be absent for the entirety of the weekend.[51]More particularly, the teething powder was rubbed directly onto the gum not placed in the bottle.[52]The whole account that D gave of re-starting the teething powders was just not credible which raises the question as to why DM said that she did re-start using the teething powders upon L.[53]The local authority submit that it was the only way that D could explain the instruction and blame M for getting it wrong or misunderstanding. I reiterate there were no teething powders found in the drawer.[54]S said that she had a conversation with DM in which DM had conceded that she had been taking Codeine for the pain her shoulder and that the Codeine was hers and that after 17th October, S had spoken to DM on a number of occasions asking her mother to report the matter to the local authority but DM repeatedly said that no one needs to know.[55]The conversation between M and her mother before DM left for Blackpool took place in the kitchen with the door closed. S and STM were therefore not privy to what was said between mother and daughter.[56]The evidence of DM was that they had a cigarette at the back door and then spoke about money to be collected and that she warned M about drink and drugs. D stated that she didn't want S to hear because S already had a negative view of M and she didn't want to compound it. However S already knew about M's use of drugs and drink. She knew about money to be collected and there could be no good reason to maintain privacy for such purpose.[57]I am satisfied DM did not want S or indeed STM to know what was being said as they would have questioned what DM was directing.[58]Although M has admitted to administrating the Codeine to L, she has also denied it. S was of the view that M was genuinely shocked by the revelation that it was Codeine. Further it is unlikely that M had the agility of mind to think of an explanation so quickly. The teat and the broken up tablets were there and the quantity fitted in with what M said her mother directed her to do.[59]AD advised that L's hair should not be cut to enable a sufficient sample to be taken for the hair strand testing. It is unclear when this direction was given and when L's hair was cut. Although it is apparent that L's hair had been cut, the evidence I find is too vague for me to make any specific finding that either the maternal grandmother or maternal grandfather instigated the cutting of L's hair to frustrate the efficacy of the hair strand test.[60]If M already knew about the giving of Codeine to L, it begs the question of why she had to be instructed to crush the tablets and so on. If she did not know then she may need instruction but I find it highly unlikely that M would agree to the proposal that L should be given Codeine. M knew the effect of Codeine upon herself, thus the reference by maternal grandmother to the teething powders to M was necessary. I find that M was shocked when the substance was identified.[61]M has stated that when she was confessing to giving L Codeine, it was to assist the maternal grandmother who she regarded as tired and unwell.[62]On 17th October 2014, DM was not going to be home and therefore DM would not have been assisted by M administering Codeine. DM knew the effects of Codeine. She had taken Codeine and she knew that it would cause L at the very least to be sleepy. I find it is not credible that M went off on a junket of her own, administering Codeine to L for the benefit of her mother or any other family member.[63]The position of STM has troubled me. I do not think he played any part in the actual use of Codeine upon L. 64. I do accept that the maternal grandfather may be removed from the pool of perpetrators but as I have indicated I am concerned as to what his role was in all of this.[65]It seems from the historic assessments carried out by Dr Barrett in 2006 that the dynamics of the household firmly indicated that it is DM who is the dominant force in the household and although not much reliance should be placed upon the demeanour in the witness box or indeed in the body of the court, the different approach by the maternal grandmother and the maternal grandfather in giving evidence was noticeable.[66]The maternal grandfather has maintained a consistent account that he was not involved in anything which occurred. Yet he was not anxious to report the matter to social services and although he knew that if it was not him who administered the Codeine, it must be someone in the household namely either M or D and it must have been obvious to him as it was to S that giving Codeine to L had put her at very great risk.[67]STM said that he asked D on her return from Blackpool if she was responsible and she became angry. Mr Rowlands, in his submissions, described it as an outraged response with STM for even thinking that she could do it. When asked in crossed examination why didn't you speak to any professional, he told me he could not believe some one so close to L would try to harm her and that he did not want to believe it.[68]I am of the view that this summarises STM's approach to what was happening in this household. He did not want to believe it although he must have known that there was a considerable risk to L if the administration of Codeine continued.[69]S said STM seemed shocked when confronted with the scenario of M and S in the kitchen. I am satisfied that he was shocked.[70]Why did the maternal grandmother ask M to administer the Codeine and not STM?[71]If the maternal grandmother asked M to administer the Codeine whilst she was away, if father had been complicit why was it necessary for her to do so and not just leave it to STM?[72]M made it clear that she had been told not to tell her father as she said he would go off it.[73]I am satisfied that STM knew nothing before S and M informed him about the giving of Codeine to L. However, thereafter he failed to take appropriate steps to protect L and between 17th October 2014 and 29th October 2014 because of his inaction, L remained at risk of serious harm.[74]There are concerns that after 17th October the maternal grandfather as well as the maternal grandmother applied pressure upon M to admit that she was responsible. Of course it is easy with hindsight to be very critical of STM but at the time he may have thought that there was more likelihood that M was the perpetrator. It is less easy now to excuse his failures and inaction and his albeit somewhat reluctant view that M must be responsible.[75]I find DM was responsible for administering the Codeine.[76]The evidence when properly analysed can allow no other conclusion, however I do not believe that it was done in any way maliciously or with a motive of harm. I do not believe that this grandmother would deliberately do anything to harm her granddaughter. It was stupid and dangerous but not malicious.[77]It was said by family members that DM was very proud. She was reluctant to accept help. D and STM took on the care of their infant granddaughter.[78]It seems from what transpired that DM was not in the best of health and when M gave her reason in the course of her false confession for the administration of the Codeine, the reason was to help her mother who was tired and unwell.[79]It seems likely that knowing Codeine would have a soporific effect, DM decided to give a small amount to L to make her sleep and give DM some respite. As I have said stupid, extremely dangerous but not intended to cause L harm.[80]S gave evidence of her mother previously using medication inappropriately. DM denies it.[81]Although I am satisfied that S is a truthful witness, her recollections are too vague to allow me to make specific findings about giving (inaudible) prescribed for M or offering it to NR for C.[82]SA deserves the praise of this court for her role in protecting L.[83]ST and M failed L and DM's actions could have had fatal consequences but thankfully L has sustained no lasting harm. End of judgment We hereby certify that this judgment has been approved by Her Honour Judge Moir. Compril Limited