B & Ors (Children) [2015] EWFC B139 (26 February 2015)

1. THE JUDGE: I am concerned with the welfare of four children:

A, who was born on 16^th May 2008, so he is 7 years of age in May;

B, born on 16^th October 2009, so 5½; and

C, who was born on 30^th April 2011, so he is 4 in a few weeks’ time.

They are the children of M, who was born on 5th January 1989 which makes her 26, and F, who was born on 6^th July of 1985 so he is 29. D was born on 4^th September 2014 so she is now 5 months of age. She is the daughter of M and her putative father is Z. Z failed to attend for a number of DNA tests which had been arranged for him earlier in these proceedings and also failed to attend last week for a DNA test which had been arranged and which he had agreed in court to attend. Both he and M believe that he is D’s father.

2. The Local Authority have been involved with the family for some time due to the volatile and aggressive relationship, firstly, between the parents, M and F. The parents are said to have separated in June 2011 and in December 2011 all the children were made subject to a child with complex need plan. There continued to be concerns about difficulties between the parents, involving verbal altercations and drink, and in February 2012 a section 47 child protection investigation and core assessments were undertaken. There continued to be concerns about M’s care of her children involving reports of numerous people visiting the property, obscene language in front of the children and lack of supervision of the children. There were references to the use by adults of drugs and alcohol and the children being left in the care of different people.

3. In October 2012, M moved with the children to Southampton, returning to the northeast in March of 2013. It seems that the relationship between M and Z commenced when she was pregnant with E, who was mother’s fourth child. According to M, the father of E was Y, whom she had met in Newcastle during a period of holiday when she had been residing in the south of England. Mother states that she met Z in April 2013. They entered into a relationship in June 2013 and started living together in September 2013. At that time, M was aged 23 with four children and Z was aged 19. Upon Z moving in with the mother, he became involved in the care of all of the children. In the early morning on 14^th December 2013, paramedics were called to the home of Z and M, and E was pronounced dead upon arrival at hospital where she had been taken by the paramedics.

4. The Local Authority issued care proceedings for A, B and C on 5^th February 2014 and for D on 12^th November 2014. A, B and C were placed with their father, F, upon the death of E and when D was born, she was placed with MGA and MGU, maternal great aunt and her husband. The children remain in these placements and it is the Local Authority plan, which has been put before the court, to secure those placements with appropriate orders. M, ideally, would like to resume the care of her children but she has said frankly and, indeed, realistically it is not going to happen. She wishes to have contact.

5. The Local Authority, in drafting the threshold, rely upon evidence that E sustained non-accidental injury shortly before her death and two previous occasions of traumatic injury. Further, they rely upon evidence of neglectful parenting by mother and, historically, by father. Both mother and Z accept that E sustained non-accidental injury and the parents, M and F, do not argue that the threshold is not crossed. M and Z both deny causing any injury to E or having any knowledge as to how E died. Further, they deny any knowledge of the cause of her previous head injuries or bruising, identified post-mortem.

6. This case was originally listed for 20 days. During case management, it was determined that the time estimate was generous and it was reduced to 15 days. In fact, I heard evidence over nine days. Initially Z did not attend and a witness summons was served. M attended for the first three days and then absented herself from the proceedings and a witness summons had to be served in respect of her attendance. At the outset of the hearing upon the non-attendance of Z, the solicitor and counsel who were representing him applied to come off the record as they had no instructions. When Z did attend, they resumed their representation of him. Counsel and solicitor representing Z were not present when the medical evidence was given to the court but no point is taken by those representing Z in respect of this position and their absence.

7. It is the Local Authority who bring this case and it is the Local Authority who must prove it on the balance of probability. The Local Authority set out that when the proceedings were issued, each of the three older children had suffered significant harm and, further, that there was a risk that all four children would suffer significant harm in the future if in the care of their mother and, indeed, Z. As far as D is concerned, it is submitted at the time protective measures were taken that she was likely to suffer significant harm. The threshold particulars are set out in the document dated 10^th October 2014, amended on 4^th February 2015 and re-amended on 9^th February 2015. The particulars are set out as follows at paragraph 1:

“The relationship between their parents was volatile and there was verbal and physical aggression within the home. The police served 21 PCMs between March 2010 and February 2012 when the parents separated. Both M and F abused alcohol on occasions and F used cannabis within the home. After February 2012, when the parents separated, mother on occasions put her own interest before those of the children in relation to a number of matters and their lives were adversely affected in that they suffered significant harm, namely mother entered into relationships with men, some of whom were inappropriate to have around her children or about who she knew insufficient to assess their appropriateness. Z was one such man.

The Local Authority relies upon the evidence about Y being invited by mother to stay with E overnight while she was in hospital with bronchiolitis. X was an associate of M and on 3^rd October 2012 he smashed some windows in the family home. The three eldest children were present. In October 2012, mother removed the children to Hampshire to escape the attentions of X. The move was rushed, unplanned and caused disruption to the children in relation to their contact with their father, their schooling, their registration with medical professionals and their living arrangements. On her return to the northeast in March 2013, mother and the children were without a settled home for four months and lived with friends and family and at a homeless unit for a period. On Boxing Day 2012, mother, who was in the northeast over Christmas, left the children with their maternal grandmother when she went out for the evening. She did not return for three days.

Mother began a relation with Z and did not reveal the existence of the relationship to the Local Authority until September of 2013. The Local Authority advised mother that Z needed to be assessed positively before she should move Z into the children’s home and allow him to care for any of the children. Mother disregarded that advice and Z was living with the children from August 2012 onwards. The relationship between mother and Z was volatile and characterised by frequent arguments. Z was presented as being E’s father and was allowed by mother to do all care tasks despite advice from the Local Authority that it was inappropriate.

On 14^th December 2013 between 3.30 and 5.30, mother met with W, a former boyfriend, in Felling after finishing work in Newcastle. E was in the care of Z. After mother returned to the home at approximately 5.30 on 14^th December 2013, she and Z had an argument in every room in the house during which a mirror was smashed in the bathroom, he put his fist through the bedroom door and she scratched his face. E was present.

Mother consumed alcohol during her pregnancy with E to the extent that foetal alcohol syndrome was being investigated before her death. M’s misuse of alcohol has continued and is problematic in terms of her ability to care appropriately for her children. She has consumed debilitating amounts of alcohol, pregnant or not. In May 2013, mother tested positive for cocaine. Hair strand testing shows that mother used cocaine each month between March 2013 and March 2014. She was using during her pregnancy with E.

Child protection plans for neglect were registered in relation to the two oldest children on 23^rd July 2013. E was registered following her birth. Mother has been uncooperative with Children’s Services in that she has frequently kept the truth of her situation and that of the children from workers. Mother misled the Local Authority workers on 12^th December 2013 when she denied that she had a job and reassured them that she would not leave E in the care of Z. Mother and Z are responsible for the death of the children’s half-sister, E, her previous head and eye injuries and the other injuries found upon her body at post-mortem. The circumstances surrounding the death and injury of E are such that mother poses a risk of physical and emotional harm to any child in her care.”

8. The threshold then goes on to deal with, at 10(a), the death of E:

“(i) E was pronounced dead at the RVI at 8.53am on 14^th December 2013.

(ii) The cause of E’s death was a traumatic injury to her head and/or neck.

(iii) The fatal injury was not sustained in an accident, none being disclosed, and was not self-inflicted. It was inflicted on her by either mother or Z or both during the night of 13^th to 14^th December 2013.

(iv) Neither mother nor Z can be excluded as the perpetrator.

(v) Both mother and Z have failed to protect E and that she was not given medical attention immediately and full and frank accounts of what had occurred were not given to the medics trying to treat E and other professionals investigating E’s death.”

9. At 10(b), E’s other injuries:

“(i) The following other injuries were found on E at the date of the her death:

(a) bruise to the lateral aspect of her right knee;

(b) bruise to her right thigh;

(d) two bruises to the right side of her skull.

(ii) All these other injuries were caused by the application of a mild degree of blunt force trauma by another.

(iii) All the injuries were sustained by E at approximately the same time and were fresh at the time of her death.

(iv) The injuries were not self-inflicted and no accidental cause has been disclosed. They are non-accidental injuries.

(v) E sustained all the other injuries while she was in the care of mother and Z and neither can be excluded as the perpetrator.

(vi) Mother and Z have failed to protect E.”

10. At 10(c), the Local Authority set out the particulars in relation to E’s previous head injuries:

“(i) After her birth and some weeks before her death, E had sustained an earlier head injury whilst in the care of mother and Z.

(ii) Neither mother nor Z has disclosed that she was involved in an accident.

(iii) E was not presented to medical professionals in relation to the earlier head injury.

(iv) Neither mother nor Z can be excluded as the perpetrator of this injury.

(v) Mother had Z have failed to protect E in that they did not arrange:

(a) for E to be medically examined;

(b) disclose details of any event which may have involved E’s head to Children’s Services and other professionals in her child protection plan; and

11. Following upon the oral evidence being given by Dr [Bonshek?] in court, the Local Authority added 10(d) to the schedule of findings it sought, namely:

“(i) About two to three days prior to E’s death, she sustained retinal bleeding to both her eyes whilst in the care of mother and Z.

(ii) The injuries were caused by a shaking impact or shaking impact incident.

(iii) The injuries were not self-inflicted and did not occur accidentally, no accident having been disclosed.

(iv) The injuries occurred because E was inappropriately handled and any reasonable carer present would have realised that E had been hurt and required medical assistance.

(v) E was not taken to see a medical practitioner.

(vi) Neither mother nor Z can be excluded as a perpetrator of the earlier eye injuries.

(vii) Both mother and Z have failed to protect by failing to recognise that E had been handled in such a way as to damage her eyes or by repeatedly leaving E in the care of someone who had not been assessed as an appropriate carer; to present E to medical professionals promptly; to tell fully and frankly all that they knew about the care of E to professionals both before and after her death, particularly social workers who were told by mother on 12^th December 2013 that Z had not and would never be caring for E until he was positively assessed by the Local Authority; to tell the social workers that mother was working and E needed to be cared for by others.”

12. The burden of proving the facts set out in the schedule to which I have just referred and which go to the threshold lies with the Local Authority. They bring the case and they must prove it to the requisite standard, mainly the balance of probabilities as set out in Re: B (Children) [2008] UKHL 35 where Baroness Hale stated:

“The standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies… It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Some-one looking after the child at the relevant time must have done it… The simple balance of probabilities test should be applied.”

13. I have heard from numerous experts in this case. I remind myself of the authorities which deal with the experts. The court must weigh up all the evidence, whether given by expert or by lay witnesses, which, of course, include the parents and Z. Lord Justice Ward in Re: B (Care: Expert Witnesses) [1996] 1 FLR 667 stated that the expert advises but the judge decides:

“The judge decides upon the evidence. If there is nothing before the court, no facts or no circumstances shown to the court, which throw doubt upon the expert evidence, then if that is all with which the court is left, the court must accept it. There is, however, no rule that the judge suspends judicial belief simply because the evidence is given by an expert.”

As per Lady Butler-Sloss when she was President in Re: U (Serious Injury: Standard of Proof); Re: B [2004] 2 FLR 263:

“The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.”

14. In assessing the oral evidence which I have heard, Lady Justice Macur in Re: M (Children) [2013] EWCA Civ 1147 offered the following guidance:

“The judge's assessment of the parents characters, past behaviour and present attitudes are entirely dependent upon finding primary fact, interpreting and drawing 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 draws upon more than their performance in court. It is obviously a counsel of perfection but 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.”

In this particular case, there could be no more emotionally charged case than one which is dealing with the death of a young child. I heard from M and Z over a lengthy period of time and I remind myself that I must look at the whole of the evidence and I bear in mind the guidance and the caution that Lady Justice Macur gave within that case.

15. In this case, the identification of the perpetrator who was responsible for the death of E is one of the tasks with which this court is concerned. In Re: S-B (Children) (Care Proceedings: Standard of Proof) [2010] 1 FLR 1161, at paragraph 40, Lady Hale stated this:

“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 be 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.”

In this case, nobody is suggesting that the perpetrator of the alleged injuries is other than M or Z. I remind myself also that it was set out in North Yorkshire County Council v SA & Ors [2003] EWCA Civ 839 that a person comes within the possible pool of perpetrators when the evidence establishes that there is a likelihood or real possibility that a given person perpetrated the injuries in issue. Both M and Z fall into this category.

16. In Lancashire County Council v D & E [2008] EWHC 832 and referred to by Miss Langdale in her closing submissions, Mr Justice Charles emphasised at paragraph 36:

“The exercise of identifying a perpetrator, or the pool of perpetrators, forms part of the exercise of considering whether there was an inflicted injury. In my view, it is important to remember this because it removes or reduces an approach which considers the overall question from the standpoint that someone with the opportunity to injure a child has to show that he or she did not do so. Again, in my view, the approach of the local authority and the Guardian, at times, came perilously close to this. The correct position is that a medical view as to the most likely cause of injuries is that that cause is clearly established as a real possibility that has to be considered, in all the circumstances of the case, together with the other possibilities, in determining whether a child was the victim of an inflicted injury.”

17. I am also aware that if identification of the perpetrator is not possible, then the judge should reach that conclusion as set out in Re: D (Children) [2009] EWCA Civ 472 and the court should not strain to identify a perpetrator in those circumstances. While it is set out in Re: D that it is always desirable, of course, where possible, for the perpetrator of a non-accidental injury to be identified, both in the public interest and in the interests of the child, where it is impossible for a judge to find on the balance of probabilities which person caused the injury, then none can be excluded from the pool and the judge should not strain to do so.

18. In the case of Re: M (Children) [2013] EWCA Civ 388 in relation to how a court should approach the question of lies when assessing a witness’s credibility, Lord Justice Ryder 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 of 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 fact 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.”

19. I bear in mind all the authorities to which I have referred in approaching the evidence in this matter. I heard oral evidence from Dr Egan, Dr du Plessis, Professor Wyatt and Dr Bonshek. They are all expert medical practitioners. I also heard from V, U, T and MGM, who are family, friends and associates. I heard from Nick Burnside, the principal social worker; Paula Slater, the paramedic who was called to the property; S, the head teacher; Lesley Galloway, the health visitor; and also from F, M and Z. In addition, I have nine lever arch files of statements, police documents, medical records and social work recordings. I have also had the benefit of reading and listening to the closing submissions made on behalf of each party.

20. Miss Moulder, on behalf of the children, provided a very helpful summary of the medical evidence. She sets out:

“E is likely to have suffered three sets of injuries, namely:

(a) old bilateral subdural and subarachnoid haemorrhages;

(b) old bilateral retinal haemorrhages;

(d) fresh bilateral retinal haemorrhages; and

(e) fresh bruising.”

21. On behalf of the mother, it is submitted that while the mother has found it difficult to believe that E suffered non-accidental injury, maintaining that she did not cause any injury to E and maintaining that she does not know how the injuries to E were caused, she accepts that E suffered non-accidental injury. Miss Scriven raised a query about the reliance to be placed on the retinal bleeding which is said to have occurred two to three days before death. She submits that it is not a finding with a sure-enough footing to pass the balance of probabilities test. It is submitted on behalf of Z that he has been adamant throughout that he was not responsible for causing the death of, as he referred to it, “an innocent baby,” and that he did not see M do anything to cause E’s death. On behalf of Z, Miss Langdale framed her submissions thus:

“The court will doubtless consider, firstly, whether the balance of evidence supports the finding of inflicted injury in this case. Secondly, if it does, whether the clinical picture assists with the timing of any fatal inflicted injury.”

I agree, and the task of the court is set out correctly.

22. It is further submitted that the court should be wary of finding non-accidental injury from the presence of retinal haemorrhages alone but, save as I have already referred to, the parents have not sought to take issue with the medical evidence. Z was not present nor, of course, were his advocates, when the medical evidence was given to the court. M and her counsel were. Miss Scriven asked questions to clarify the written evidence and to raise queries about certain parts of the medical evidence. The parents in their oral evidence both confirmed when questioned by Miss Moulder, on behalf of the guardian, that they accepted the medical evidence that injuries were recorded as occurring on three separate occasions and were likely to be non-accidental injuries.

23. I am satisfied on the evidence that the injuries described by the experts within their evidence to the court were, indeed, inflicted injuries. The post-mortem findings determined that E had old bilateral subdural and old bilateral subarachnoid haemorrhages. Dr du Plessis in evidence stated that bilateral subdural and subarachnoid haemorrhages are more supportive of non-accidental head injury since accidental head injury tends to produce unilateral haemorrhages. Although the fact of bilateral haemorrhaging does not rule out an accidental cause, it is less likely and if the cause was accidental, a clear history of a significant event would be expected. No such significant event has been described to me.

24. On 9^th December 2013, the health visitor noted that E’s weight was on the 25^th centile and the head circumference she noted as being on the 91^st to the 98^th centile. The markedly increased head circumference compared with the body weight was striking and quite different from the findings which had been recorded in relation to head circumference and body weight at birth. The health visitor, Lesley Galloway, gave evidence that she measured the head circumference twice. She did not have any concerns about the head circumference before 9^th December 2013. She said her intention was to keep it under review but that if she had been worried, she will have sought immediate medical attention. The health visitor confirmed that, as she would do with all parents, she mentioned to M the dangers of shaking a baby. She said that such mention was routine and that mother was told about the dangers of shaking her baby upon the first visit.

25. The evidence of Professor Wyatt confirmed that it was highly likely that the excessive head circumference, which was noted on 9^th December, was a reflection of the presence of subdural collections that were slowly accumulating in size. Dr du Plessis stated that the old subarachnoid haemorrhaging was present on the examination of the brain. Both Professor Wyatt and Dr du Plessis opined that the old injuries present were consistent with forceful shaking with or without impact. Such injuries do not occur with normal handling and involved a degree of force that an onlooker would recognise as inappropriate. While the subdural haemorrhages could be asymptomatic, there may have been some symptoms when the bleed happened. The subdural bleed could have occurred without obvious change in behaviour. The position with regard to the subarachnoid haemorrhage is different. Dr du Plessis stated that the old subarachnoid bleeding would almost certainly have caused symptoms of pain with associated irritability and distress when caused. Professor Wyatt stated that subarachnoid haemorrhaging causes profound pain and E would have been irritable, uncomfortable and distressed at the time she sustained the injury.

26. However, it is recognised that babies cry for all sorts of reasons and it may well be the case that a carer, unaware of any incident, would struggle to identify why the baby was crying, thus a non-perpetrator may fail to appreciate that any injury had occurred at that time. Dr du Plessis was at pains to point out that the timing of chronic subdural and subarachnoid haemorrhaging is not an exact science. However, he set out in his report that the chronic subdural haemorrhages are almost certainly more than three weeks before death and most likely three to four weeks before death. It was not a birth injury. The chronic subdural haemorrhages and chronic subarachnoid haemorrhages could have happened at the same time. He told the court that in dealing with babies it is safer to say that the subdural haemorrhages occurred more than three weeks and less than two months before death.

27. The increase in head circumference on 9^th December 2013 is strongly suggestive of a process going on inside the head which resulted in pressure on the skull bones. There is usually a ten-day minimum period between trauma and an increase in the head circumference and, therefore, the likely timing of the chronic subdural haemorrhages is at least two weeks prior to that and identified as likely to be around about the beginning of November. It seems that on admission to hospital on 23^rd November the blood tests revealed low haemoglobin level and high platelet count. At an admission to hospital, therefore, it is highly likely that the subdural haemorrhages had already occurred.

28. The injuries delineated as old bilateral retinal haemorrhages were considered by Dr Bonshek who identified bleeding in the retinas and some bleeding in the optic nerves. He described the injury in the severe range but not the most severe he had seen. Dr Bonshek told the court that severe force would be necessary to produce retinal bleeding and that it was not due to a rise in the intracranial pressure due to the subdural haemorrhaging because, firstly, the timing is wrong and also there is no papilloedema and no swelling of the optic disc which would be present in such a scenario and Dr du Plessis does not appear to set out within his evidence any significant increased cranial pressure. Dr Bonshek said there appears to have been a shaking and similarities with cases of impact. He said pathologically one can see the same appearance with impact, with shaking or impact or shaking.

29. The fresh injuries to the eyes would occur at the time of the major brain failure and at the time that the recent subdural haemorrhaging occurred. It would all be caused by the same mechanism. Thus, when the fatal brain injuries occurred, so too did the eye injury. However, Dr Bonshek opined that there is evidence of an acute inflammatory reaction showing lymphocytes associated with the optic nerve bleeding and very few, if any, macrophages within the retinal bleeding with occasional macrophages in each of the optic nerve sheaths. There is no haemosiderin in any area of bleeding in the eyes. Dr Bonshek’s evidence in respect of the old and fresh injuries to the eyes was that they were either all caused about 24 hours before the fatal collapse or that there were two incidents of injury, the first two to three days prior to the fatal collapse and the second at the same time as the acute head injury and close to the time of death.

30. It seems, taking into account all the clinical and pathological findings, it is likely that there were two incidents, the earlier of which was caused by trauma two to three days prior to death. The timing of the old eye injuries does not fit with the timing which has been advanced in respect of the chronic subdural haemorrhaging. Miss Scriven submits that the finding that the Local Authority seek in their amended schedule, namely that about two or three days prior to E’s death she sustained retinal bleeding to both her eyes and whilst in the care of mother and Z, is not a finding with a sure enough footing to pass the balance of probability test. She prays in aid of that submission that it is very unusual to rely on limited retinal bleeding only as a proof of non-accidental injury and that there is limited evidence of old bleeding and nothing to support it. Further, Miss Scriven submits that the science is unclear with no research for babies and very little for adults in respect of these matters.

31. Miss Langdale urges the same caution in relation to those matters set out in 10(d) in the schedule of findings and invites the court to make no findings in regard to the older eye injury. Miss Moulder submits that the evidence was very clear in respect of the eye injuries. Dr Bonshek was clear that either all the injuries occurred approximately 24 hours before collapse or, as was more likely, there were two incidents causing injury to the eyes: one, two to three days before death and one at the same time as the head injury. He was clear that the acute inflammatory component could not have happened either two to three or three to four weeks prior to death upon the basis of the inflammatory reaction observed post-mortem.

32. I am satisfied from the evidence that I have heard and analysed that the fresh bilateral subdural, subpial and subarachnoid haemorrhages and the fresh bilateral retinal haemorrhages and the fresh bruising were likely to have been caused by shaking, with or without impact. Dr du Plessis told the court subpial haemorrhages are causally associated with trauma. Dr du Plessis was asked about whether the presence of old subdural haemorrhages was relevant in relation to the acute bleed and accepted that the presence of chronic subdural haemorrhages could cause susceptibility to a re-bleed in that a minor blow or knock or jolt could set off a fresh bleed but he said:

“You must put it together with the full clinicopathological profile, particularly the retinal haemorrhaging.”

He stated, in his view, it was not reconcilable with trivial falls. In addition, the presence of chronic subdural haemorrhages would not have increased susceptibility to subarachnoid haemorrhages or subpial haemorrhages, both of which E sustained.

33. I am satisfied that severe force was required to cause the acute injuries, including the retinal haemorrhaging to E. The acute injuries, I am satisfied upon the basis of the medical and clinical evidence, were caused by an undisclosed episode of traumatic head injury which occurred at the same time during the early morning of 14^th December 2013 and prior to the call made to the emergency services at 8.05 that morning. The most reliable clinical evidence as to the timing is identifying the time when there was a sudden deterioration in behaviour and functioning. It is generally accepted that the trauma must have occurred after the last identified occasion upon which the child was behaving and feeding normally. Professor Wyatt emphasised that it was very unlikely that E would be responding, feeding and behaving normally at any point after the acute event. He described the complex neural mechanism involved in feeding and stated that an obvious sign of neurological injury would be that the baby stops feeding.

34. If Z’s evidence is to be accepted, he fed E at about 5.30am that morning, as he told Paula Slater, the paramedic, when she arrived. Although E is said to have only taken three ounces of the five-ounce bottle, it seems E was feeding normally and behaving normally when Z went on to wind her and change her nappy. Thus, upon the evidence before the court, if what Z states is correct, the traumatic head injury occurred after 5.30 and before 8.05am when the ambulance was summoned. Professor Wyatt states that the critical point for the court is whether the mother returned to the home and saw E was behaving and responding normally. If the evidence indicated that she was, then the incident most likely occurred after she returned home. If not, the injury probably had already been sustained.

35. At post-mortem, fresh bruises to the right knee, pinna of the ear and right side scalp were identified. The bruising, it was stated, was caused when the heart was still beating and, thus, before death. It is likely that it occurred at the time of collapse, the injury to the knee being caused by forceful gripping, the injury to the pinna by forceful pinching and the bruise to the skull by a mild force such as a slap or a punch or upon impact.

36. I heard evidence which detailed events which were occurring during the period, both before, during and after E’s short life. The evidence has been directed to various aspects of the lifestyle of M and Z together, their relationship and their parenting of all the children in their care. Both M and Z accept that E was living in their care and, therefore, both are in the pool of potential perpetrators. As I have indicated, no one suggests that there should be anybody else within that pool. The question which the court has to consider and ultimately decide is whether the evidence enables it to distinguish between them and identify one or other as the perpetrator. Neither M nor Z have sought to point the finger at the other but inevitably the forensic process has focused upon eliciting evidence which implicates one or the other. M and Z themselves were at pains to say in evidence that they did not believe the other would have caused any injury to E. Even in cross-examination, each was reluctant to concede that, as it was put to them, “If it was not you, then who else could it have been but the other?”

37. The Local Authority seek a number of findings separately from the injuries to E, as detailed within the amended threshold criteria to which I have referred. Paragraphs 1 and 2 of the particulars refer to the relationship between M and F which is alleged to have been volatile. The parents do not dispute that their relationship was volatile involving drinking and domestic dispute. F accepts that he used cannabis but denies any problem with drink. F maintains that both he and M had arguments which, as he told the police, “would turn physical between both of us,” and it was accepted that the police were called to the property on numerous occasions. The relationship ended upon 14^th February 2012 and any further contact between F and M has been with regard to their three children. All the subsequent threshold criteria relate to M.

38. F has now looked after A, B and C continuously since December 2013. The Local Authority have stated that this period of the children being in his care is the most stable they have experienced. F has done a remarkable job with the assistance of his partner R, in looking after these children. He has, it is right to say, surprised everyone in his commitment and care of his children. His own lifestyle has transformed and stabilised. He is child-focused and the children have benefited from the care he and R have provided.

39. Following the separation of M and F, M entered into further relationships. Mother maintains that Y was E’s father. Y had no relationship with E and had not met her before 24^th/25^th November of 2013. Upon this occasion, E was in hospital with bronchiolitis. M said that Y had previously made it clear that he did not want to be involved with E. I am still unclear how Y came to be caring for E overnight but, however it occurred, it was totally inappropriate. Mother accepted that she had gone home at 1.30am and not returned until lunchtime the following day during which time Y had care of E. Z was unaware of this arrangement until these proceedings. The Local Authority cite this as an example of the mother entering into relationships with men, some of whom were inappropriate to have around her children or about whom she knew insufficient to assess their appropriateness.

40. The Local Authority rely upon the evidence about Y being invited by the mother to stay overnight with E in hospital as an example of mother’s lack of care for E. The other relationship that the Local Authority single out is the relationship with Z. The Local Authority refer to X as an associate of the mother. The mother is adamant, and there is no evidence to contradict it other than the statement of F to the police, that she was not in a relationship with X. Whether a relationship or an association, it ended when X put out windows in the family home. I accept that mother was terrified and I also accept that she felt she needed to take steps to remove herself and her children from danger. The Local Authority criticise the move as rushed, unplanned and causing disruption to the children and in relation to contact with their father, their schooling and their registration with medical professionals and their living arrangements. I find these criticisms somewhat harsh in the circumstances in which mother found herself.

41. I make no findings as to how the situation came about or mother’s responsibility for X’s involvement but I do find that, given the circumstances, it is understandable that M took the view that she needed to protect her children. They were not of compulsory school age and the decision to go to stay with their grandmother is an understandable one. It is not clear whether it started out as a holiday and became more permanent or otherwise. The conditions were overcrowded at the grandmother’s but mother applied for accommodation and was allocated a property in Hythe on 17^th December 2012. She made no arrangements for contact, in respect of which there is legitimate criticism, but otherwise, in a difficult situation, she took steps to protect her children which, although hasty, were effective.

42. However, M continued to return to the northeast and, indeed, became pregnant with E during this period. Despite the fact that she had obtained accommodation for herself and the children in Hythe, she took the decision to return to the northeast. There was little or no planning in respect of this return and she was homeless upon return, living with friends and relatives and then in the homeless unit before she was eventually allocated a tenancy. The combination of the stay with grandmother, the short time in Hythe and then the move back to Newcastle must have been very unsettling for the children, added to the fact that no contact with father took place over a period of time and the precipitant move back to Newcastle without proper planning was undertaken with little regard to the needs of the children. M returned to the northeast in March 2013 and, as I have already mentioned, was pregnant with E by the time she moved back to the northeast. It was an unsettled period for the children, including A being placed with F by the mother on 25^th February 2013.

43. The antenatal care which mother provided for E was the subject of cross-examination. Mother conceded that there was evidence of her taking cocaine each month between March 2013 and March 2014 although she would not provide information as to who was supplying her with it. Thus, M was using drugs during her pregnancy with E. Mother told the police that she did not do drugs. She accepted in evidence that she had lied to the police in this regard. Mother maintained that alcohol was not a problem but the evidence before the court refers to a number of occasions when it is documented that the mother was under the influence of alcohol.

44. During the weekend of 3^rd to 4^th May 2013, it was necessary to call an ambulance for M. She was taken to the RVI and observed to be intoxicated. She alleged to the medical professionals that she had been raped and drugged. She left the hospital before she could be seen. Mother told the police that she had consumed MDMA, cocaine and alcohol. Mother told me that she had not been raped but admitted that she was intoxicated. It is recorded that on 19^th or 20^th July mother was admitted to the RVI and appeared to be under the influence of alcohol. Mother, in fact, remained as an inpatient until 23^rd July. Z described mother as becoming more violent, eye gouging, scratching and punching and using objects when she was drunk and behaving in a way that, he said, she would not if she was sober.

45. M told the court that she met Z in April 2013 but that they were not together until June 2013 and started living together in September 2013. He immediately became involved in the care of all four children. There is evidence that Z was, in fact, good with the children. M described him as “her rock,” and V told the police and this court that he was impressed by Z’s ability to take on a fatherly role. There is no evidence of Z having any difficulty in his relationships with the children. Z told the court that he loved E and he would not have done anything to hurt her.

46. E had been born at 33 weeks on 21^st August 2013 and was discharged home to mother’s care on 9^th September 2013, by which time Z was living with the mother and the other children. The social worker was unaware that Z had moved in. The children had been registered on 23^rd July 2013 with concerns about alcohol, substance abuse and other safeguarding issues and they had been registered under the category of neglect. They were placed briefly with F and returned to the mother on 8^th August 2013 with continuing involvement of Children’s Services. Mother was asked to tell Z to leave the property. She refused to do so. Z continued to live within the household with the knowledge of the social workers but upon the understanding that Z should not be required at any time to care for the children on his own.

47. I heard evidence about an incident on 26^th October 2013 when mother assaulted and racially abused another passenger on a bus upon which she was travelling. Mother pleaded guilty to this offence. Miss Langdale referred to this incident in her closing submissions where she said:

“The racist assault is a particularly objectionable example. M clearly was an aggressor and deliberately banging her pram when E was in it.”

Miss Langdale stated in submission there are reported episodes of aggressive outbursts from both of them. Miss Scriven described Z as a man who lashes out and breaks things when he is angry and frustrated.

48. There is a catalogue of such incidents which were referred to within the evidence. On 14th December 2013, when mother had come back upstairs, Z threw a mirror or tried to throw a mirror but was stopped by the mother and he punched a hole in the bathroom door. He broke his phone by squeezing it hard in his hand when frustrated with it and later broke it into pieces. He is, submits Miss Scriven, a man with a vicious temper. He was convicted of offences when he threatened to slit the throat of his former girlfriend and to stamp all over her unborn child. He received a custodial sentence in August 2014 when he assaulted mother when she was pregnant with D. M described him as getting hold of the back of her neck and pushing her head down. She said she was frightened but it was the first time he had done anything like that. She said he did not punch her. Z was recalled to prison. M went to see him on five occasions and caused the prosecution to be dropped and Z released. Z said that the assault arose out of an argument when he accidentally knocked over a photograph and M said, “It should have been your daughter died, not mine.”

49. These examples and evidence of the relationship between the two parties and their attitude and approach to each other. Miss Scriven goes on to detail Z’s history of anger control issues and assault. There are a number of examples. Z readily agreed that he had anger control issues but said they were not as bad as they had been. He admitted the assault on 12^th January 2013, saying that he was frustrated. He readily admitted that on the morning of 14^th December 2013 he was getting angrier and angrier and that he was jealous and frustrated that he did not know where M was. He said he was” foaming” about where she had been.

50. Miss Scriven submits that Z is a man who lashes out and breaks things when he is left angry and details his previous forensic history of assault and breach of the peace. Although it is not submitted directly that he therefore has a propensity to violence which would be relevant in deciding the perpetrator, it is the impact of Miss Scriven’s submissions on behalf of M. Miss Langdale submits that nothing within the history of either Z or M indicates a propensity to inflict a fatal injury on a child. “Injuring a baby in the manner alleged,” she says, “is on a different scale than anything alleged against Z or M before.” Experience informs me that violence on behalf of a parent, whether towards a partner or a third party, is not necessarily an accurate indicator that the adult is responsible for inflicting an injury upon a child or, indeed, is capable of inflicting an injury upon a child.

51. The court must be very cautious not to introduce the idea of propensity into its consideration without sound evidence or indulge in psychological speculation but to focus upon the evidence which is available to the court. There is no evidence that Z, in particular, but also M have aggressive or violent tendencies towards a child. I am aware that allegations have been made that M slapped B but the medical findings were consistent with mother’s account of the accident.

52. Mother’s relationship with her children has been described as warm and affectionate. They were clean, well presented and with positive attachments towards their mother and, of course, their father. There were undoubtedly some very good aspects of the mother's care of her children but mother’s ability to provide consistency and stability for her children was seriously compromised by her inability to put the children’s needs first and to prioritise their emotional welfare over her own lifestyle, behaviour and wishes. Miss Scriven queried whether, without the tragedy of E’s death, the court could have been satisfied that the threshold was crossed. She said there was no evidence that the children had suffered significant harm.

53. I am satisfied, on the basis of the evidence before me, that the three older children had suffered significant harm and all four children were or are likely to suffer significant harm in the care of their mother in the light of the findings which I have made in respect of matters other than E’s injuries: her drinking and use of drugs; her relationships, including her relationship with Z which was volatile and characterised by frequent arguments. While some of the needs of the children were met by the mother, she did not provide the settled and stable home life which the children deserved and required. There was a lack of consistency in who provided care for the children and the mother allowed Z to provide care for them despite the fact that she assured the social worker that she would not leave Z on his own with the children. Mother allowed Y to care for E in hospital despite the fact that she had no idea of his ability to care for E and despite the fact that E had never seen him before.

54. On 23^rd November 2013, E was admitted to the RVI with bronchiolitis and remained in hospital until 30^th November. Thereafter, she was seen by the health visitor on 9^th December and attended the clinic for her immunisations on 10^th December. Save for the health visitor noting the increased head circumference, nothing was observed that indicated that E was an ill baby on those occasions. Mother had started a job selling shots in a nightclub on 7^th December 2013. Mother’s working was a source of argument between mother and Z. On 12^th December, M was visited by the social workers and she told Nick Burnside that she was not working. She was told not to leave E in Z’s sole care. It is clear that M intended to continue to work at the nightclub and blatantly lied to the social worker.

55. On 13^th December, that is the Friday, M took E into town. She bathed E, put her clothes on and stated that there were no bruises otherwise she would have seen them. The purpose of going into town was to collect tickets to travel to see her brother in prison. She saw Z, who had gone out earlier into town, and they were arguing about her going out to work that evening. M described Z shouting at her in town. Apparently, he just kept saying he did not want her to go out to work that evening and that he would not look after E. Z was very open in the evidence he gave about the fact that he did not trust the mother and, in particular, did not trust her with other men and that he was jealous and suspicious during all the time that she was out. M said that she had asked T to look after E, the other children being at F’s house over the weekend. Z said he changed his mind. He said he felt as if he was controlling her, “and if you are in a relationship it has got to be one of trust so I did trust her.” He did raise in evidence that he felt that she controlled him. He said:

“Everything is different for her. She has to know my password for Facebook and the telephone. I am not allowed to know those things about her. She will ask us where I’ve been.”

He told Mr Waggott, the 16+ Team officer, that it was like being in prison and he confirmed to Mr Waggott that he felt that he was controlled by the mother.

56. Taking all the evidence into account that I have heard, I am satisfied that M was the dominant partner in this relationship. She is clearly the more intelligent of the two and Z told me several times in the course of the evidence that he still loved her. It is apparent that he relied upon her in many ways. Z did not engage in the court process until the latter stages. He did not attend the preliminary hearings and was not present in court when the case commenced. His solicitors and counsel came off the record. He said he did not know the case started on 26^th January and he said he had not been getting told that he had to be at these places. He said he did not get the letters sent to him.

57. I do not know how much information was available to him before the witness summons was issued. He told me that he knew he had been ordered to attend court in answer to the witness summons but said he did not think he had to be part of this hearing because it was a family matter. He said, “No matter what was said or done, I did not think I had to be here.” He agreed that he knew that he had been joined as an intervenor but he said that he did not know at the beginning that it was anything to do with him. He said in evidence, and I quote from a note that I took of his evidence,

“M told me that I didn’t have to be here. M said I just had to stand here and say I wanted to give no evidence. She said I had to come but I did not have to give evidence. I think it was the first day of court. I was outside and did not think I had to give evidence so I turned round. It is true that I was on the bus. Me and M were walking down and she rang her solicitor but when she came off the phone she said if I didn’t want to be a party, I didn’t have to give evidence.”

58. M, in evidence, said that Z had asked her if he needed to be a party and that she had responded, “If he did not want to, I said he just had to tell his solicitor that he did not want to be a party.” She denied that she tried to stop him coming to court. Z said that M was not encouraging him but said that she was not discouraging him either. She did keep him updated but did not tell him to see his legal adviser. He said he attended court when his mum and dad told him he had to come or he would be remanded in custody. I do not think that Z is making up the account that he gave to me in connection with this aspect of the evidence. He has not, in my view, the necessary agility of thought to do so. The description of him attending court with M and M telling him after a conversation with her solicitor that he did not have to give evidence if he did not want to rings true, as does the fact that he attended only when his mother and father told him he would be locked up if he did not.

59. I accept that Z did not want to give evidence and, therefore, when told by M after apparent consultation with her solicitor that if he did not want to be a party, he did not have to give evidence. He accepted what M said. Of course, he is an adult. He is responsible for his own actions but I do find that he was reliant upon M and, in this regard, he trusts her to give him correct and appropriate information. I do not speculate on the reasons why M seems to have preferred Z not to give evidence. There could be a number of reasons. I do not have the evidence before me to determine that question and it would be quite wrong to attempt to identify a reason. However, I do find that Z’s reliance upon M in this regard reinforces my view that M was a dominant partner in the relationship.

60. M described the relationship to me as a joke and agreed that it was volatile. She said that they had not been together continuously since E died but they were mostly together. Of course, M repeatedly lied to the Local Authority and to the court about the status of her relationship with Z. At the beginning of the hearing on 27^th January 2015, Miss Scriven, on instruction, informed the court that M had not lived with Z since November 2014. It was a blatant lie which she instructed her counsel to give to the court. When she gave evidence, M admitted that she had told lies about her relationship with Z because she thought that she would have a better chance of getting the children back in those circumstances. M has admitted to telling lies to the social worker in respect of her not working when clearly she was and intended to continue to work and when she reassured them that she would not leave E in the care of Z.

61. Miss McKenzie emphasised in submission to the court that M was not prepared to work openly and honestly with the Local Authority and that her cooperation was patchy with not only the Local Authority but also with the health visitor and the schools. The mother has accepted that she has not always been open and honest with the social worker and, in particular, that she misled the social workers on 12^th December when she denied that she had a job and reassured them that she would not leave E in the care of Z.

62. I have already reminded myself in this judgment of the necessity to apply the principles annunciated in the Lucas case. Mother has explained her reasons for lying to the court about her relationship with Z. No explanation has been forthcoming about why she lied about the job, except to say that she needed money for Christmas and to go and see her brother. Presumably, she was aware that the social worker would query her childcare arrangements and she knew that she could not admit to leaving E in the care of Z.

63. In fact, the night E died was the first time that E had been left in his care overnight. Although he had cared for E for short periods of time when mother went out to the shops or took the children to school, it is apparent that mother was determined to do as she wished in relation to Z and his care of the children and not to pay any attention to what she was being told by the social workers. M told me that Z was amazing with all the children. It seems that she could see no reason, despite the social worker’s direction, why she should not leave the children, and in particular, E, with Z and so she disregarded the Local Authority requirement that Z was not to have sole care of the children at any time.

64. On 13^th December, mother states that prior to her going out to work, she had fed E at about 8.30. She took all her normal feed of five ounces. E had been bathed and was falling asleep when mother left at 9pm to go to work in the Big Market. M told the court that she had no worries about E when she went out. E was dozing off and, although chesty since bronchiolitis, there was nothing out of the ordinary about E. Mother said she finished work at 4am and went to see a friend, W, who was, I think, the cousin of Z, E’s father. She went with Q, with whom she had been working. She said there was not really a reason why she went. She said W was a friend and she went to see him.

65. From her account to the police, it seems that they hung around the taxi office in Felling for a period of time. In fact, V, who at the time was in a relationship with M’s mother, MGM, had been asked by M to pick her up after work. He is a taxi driver. He had been asked at 2.51am by text to pick M up at 3.45am at Destiny, the club where she was working. He was parked outside at 3.45 but M did not arrive. He sent her texts and called her but only got voicemail. In cross-examination by Miss Moulder he accepted that the statement he made to the police in December 2013 was likely to be more accurate than his present recollections.

66. In his police statement, he said he received a further text at about 4.15 or 4.30 from M asking where he was. He went again to pick her up but she was not there so he went home to bed. As a result of further texts from M, he went to Felling Metro Station and picked M up. He said she was fine. He could tell she had had a couple of drinks but was not drunk. Apparently, M made twelve attempts to phone a number, which V assumed was that of Z, without success. M said that she used V’s phone in case Z was ignoring calls from her number. They arrived home at just after 6am. V went in for a cold drink. M shouted up the stairs to Z that V was there and V said he heard Z’s voice shouting back, “Right,” in a normal voice. He said he was there approximately ten minutes and did not hear any sounds or noises which sounded like a baby. He presumed E was asleep, nor did he hear any argument or raised voices between Z and M. He then left.

67. M, in her evidence, described what then occurred:

“I went upstairs into my bedroom. Z was changing E. She was flat with her legs up. I looked over. She was sleeping. Her eyes rolled back. She was sleepy at that time in the morning. I did not handle her at all. He passed me a nappy and I took it downstairs. It was just wet. I took it downstairs to put it in the bin. We put the wet ones in the bin in the kitchen and the dirty ones outside. I went back upstairs. Me and Z ended up arguing. E was in her cot. She was asleep. Z was annoyed really because I’d been out until that time in the morning. He asked whether I had been cheating on him? Where had I been? He said I didn’t work until that time in the morning.

Z was saying he was going to have a bath and go out. He pushed past us. I didn’t think anything odd because we have arguments and he ups and leaves. He went to the bathroom. He was telling us to get out of his face. He was rather upset, crying. We carried on arguing in the passageway. He had a mirror in his hand. It was a little hand mirror. Sometimes the argument was in the bedroom or the bathroom. He took it from the bedroom to go to the bathroom. He bounced it off the bathroom floor. He threw it and it bounced off the floor and hit the bathroom door. We carried on shouting at each other. He punched the bathroom door. He caused damage. It had a big hole in it. We carried on arguing. He was trying to get past us to go downstairs. I think I grabbed hold of him. I think I did catch him and scratched him. He ended up calming down. I gave him a cuddle and stuff.”

68. When she was asked about where the argument occurred, she said:

“Just outside the bedroom door a little bit. We eventually climbed into bed. We didn’t go back to sleep. We were in bed a couple of minutes. Z got up and went to the toilet. He felt E and listened and told us that she was not breathing. He picked her up and went to the bathroom which was the lightest place in the house. He told us she was bleeding. There was a bit of saliva. Not pure fresh blood. Slimy stuff with red in. Mucus stuff on his chest. He was holding E. I told him not to lie. He brought her to the bedroom, passed her to me. I seen her face and lips. I thought she was dead. I’ve seen people dead before. Her lips were bright blue and there was no life in her. I ran away. I dropped her on the quilt. I went to the neighbours to ask for help.”

She went on to say, when asked about the row, “Was there any fighting in the bedroom?” She said, “No, it was in the passage.”

69. It was put to her that Z suggested that she pushed him into the cot and she said, “No.” It was suggested to her that the argument carried on downstairs, to which she said, “No.” It was put to her that Z sat downstairs and had a legal high and that during that time she went upstairs to E and she replied, “I was never left alone with her once. It is not true.” M was adamant in respect of those three things: firstly, the argument and fighting occurred in the passageway; it did not extend downstairs. Secondly, that she did not push Z against the cot and that Z was not accurate in saying that he sat downstairs and had a legal high and she went up to E. M told me that she was never left alone with E once and that the account Z gave was not true.

70. In her evidence to the police, during her police interview within days of E’s death, she told the police that it was not a massive argument. “It wasn’t, like, loud and screaming.” This description is somewhat at odds with the description given in evidence before me and in her statement of Z shouting abuse towards her and the smashing of the mirror and punching of the hole in the door. It seems that there was no bulb in the light in the bedroom but mother said that she could see because it was not that dark with the streetlight and it was getting light. I doubt that it was getting light at 6am on 14^th December. However, mother said that she could see and went across to kiss E. She touched her lips on her forehead. She did not notice anything amiss.

71. M told the court that she had only had one drink that night. She said she had a bottle of Blue WKD and one shot. She told the police that she had not drunk anything at all. V told the court that, “You could tell M had been drinking but she wasn’t drunk.” Z said that when M first came in, she was stinking of alcohol. In cross-examination by Miss McKenzie, Z described M as palatic. He said that as soon as she was near him, he could smell the coldness of the fresh air and strong alcohol. He said he did not believe she had just had a bottle of Blue WKD because of the way she looked and was going on. He said, however, she was steady on her feet and she was not slurring. He said that she was not incapable. She could have managed to care for E.

72. Z’s account of the events after M’s return is somewhat different to the account which was given by M. He told me that he had left E upstairs in the middle of the bed. She was not old enough to roll over and he went downstairs to do the bottle. She only took three ounces of the five ounces. He fed her and winded her and changed her nappy.

“E came home between six and sevenish. She was downstairs with V. I was more interested in E. I blanked V out. When he left, M came upstairs. E was on the bed. I wasn’t under the influence of alcohol. I would know what went on. I started questioning M why she came in at a different time this weekend. I can remember she kissed E on the forehead and said something like, ‘Mummy’s girl.’ M went downstairs with the nappy. I tucked E into the cot. The whole argument was about where she had been. Firstly, due to her coming in stinking of alcohol. She denied and said she had only had one drink. I knew what she had been up to. I had heard what she was like in the past. She was denying the fact. It all happened too quickly. I can’t remember much once I lose my temper. I can’t think much. We’d had to borrow a mirror in a leather case. I didn’t bounce it or chuck it off the door. She grabbed the mirror from us. I was going to smash it. It was mainly round the bathroom area but all around the house apart from C and A’s room. We both went downstairs at one point. The argument carried on. E had just been settled. I was more concentrating on M. I was foaming about where she’d been. I was not concentrating much on E.”

73. It was put to him that he smoked a legal high. He said:

“That will be afterwards. When I’m in that mood, I don’t feel the need to smoke. I was downstairs wanting to be left alone. I smoked a legal high when things calmed down and when I was calming down. M, she went back up when I was smoking.”

It was put to him that that she went back upstairs.

“Yes. Things started to calm down. I can’t remember if we did go back into the bedroom. I went to the toilet. When I came from the toilet, I found E. I took instructions. They told me to put the phone on the loudspeaker. M panicked in shock and she ran downstairs to the neighbour. I was left alone. I can’t describe how I felt.”

Z, in answer to questions from Miss McKenzie, said that when he was downstairs for a legal high fix, E started being whingey. M went up. She was upstairs five to ten minutes. E stopped crying when M went upstairs. He did not hear anything before E stopped crying. There is no doubt upon the evidence that Z was angry with M. He described getting frustrated because he didn’t know where she was or what he was doing.

74. Z described that E took her bottle at about 5.30 and when he was changing her nappy, E was well. He described her as normal. He said she was all “kicky”. When M came up, he said E smiled at her. The Police Evidence and Children Act statements recount the same accounts as have been given in oral evidence before me, namely that when M came in at 6am, V was changing E’s nappy and that E was normal, kicky and smiled at M. It is submitted that it was not until her oral evidence was given that M described E’s eyes as rolling back but, in any event, M said what she was describing was normal and that she had seen it before. She said E was just tired and a sleepy baby.

75. Miss Scriven, in submissions, referred to Professor Wyatt’s evidence and at paragraph 13 of her written submissions she sets out:

“Professor Wyatt’s evidence here is of a particular importance. When cross-examined on behalf of the Local Authority, he made clear his view that the critical piece of information is the point at which the court determines it is unlikely she will be responding or feeding normally because she will not have done so at any time after the acute event happened. He said it is a matter for the court to interpret the accounts by the parents [meaning the mother and Z]. In his view, the critical point here is the mother, having returned, sees the baby. Was the baby really responding normally or may it have been that she was not conclusively responding normally, in which case the injuries could have occurred before. He had in mind the mother’s most recent statement in which mother describes seeing what she perceived to be a smile, kissing her and E’s eyes rolling back.

Of this, Professor Wyatt’s evidence was if that was the sum total of interaction between the mother and E, I don’t think it is conclusive evidence that E was responding normally. He went on to say that if there was a fleeting interaction, it may not be possible to distinguish between a child who is sleepy and a child in an encephalitic or comatose state. He said that the mother admits she had been using alcohol and may not have been in the best state to determine the baby’s behaviour. In his view that was a critical interaction from a clinical point of view. Both the mother and V describe the mother’s interaction with E that night after she came in as very limited. She did not pick up or handle the baby. She did not take over the nappy change, let alone try, for example, to feed the baby.

The mother had been drinking, although the amount of alcohol she had consumed was in dispute between the mother and Z. She had been up all night. She must have been aware that Z was likely to be extremely angry with her and, with that in mind, it is not difficult to see that her attention may well not have been fully on the baby. In addition, the lighting in the room was poor. There was no lightbulb in the room and the lighting was indirect only, coming in from the hall. She certainly did not notice a problem with E but she was near the baby only very briefly before Z handed her a dirty nappy which she took downstairs. By the time she returned, E was in her cot on her back, apparently asleep.”

However, in her evidence the mother’s account was that she had only had one drink, that she could see E because of the streetlight and that E smiled at her and was normal. M, herself, has not deviated from her evidence that when she returned home, E was normal.

76. Miss Scriven further submits on behalf of the mother, in respect of Z, he was jealous, angry, felt she was taking the mick, was very frustrated and that M was taking him for a ride. He had left him with her daughter. He fed E. He found it to be frustrating. She was struggling to feed. It felt like it took three hours. It felt like it was going on forever. She only took three ounces of her five-ounce bottle. E was sick. Z was foaming and had been foaming since 3.30am. Did something happen at that stage? Did he injure E in frustration then, shortly before the mother came home into the room or may he have injured her after mother walked out with a nappy when, on his account, he must have picked her up to move her from the bed to the cot.

77. The evidence before the court from both Z and the mother, which they have maintained to the police and to the court is that E was behaving normally when the mother returned to the property. The evidence before me does not allow me to find or speculate that something happened before the mother returned home. Thus, there is a narrow window during which E sustained the injuries resulting in her death.

[There is a short adjournment]

Both Z and M agreed that in the narrow timeframe between six to eight at the outside, more probably 6.30 to 7.30, something must have happened. The medical evidence supports this timing in that the fatal injuries must have occurred shortly before E was found unresponsive. The accounts of Z and M differ in how much M had been drinking before she came in. More particularly, and directly referable to the infliction of the injuries, the accounts differ in how long Z was upstairs alone with E. Z says about two minutes; M says five minutes. Both say that the home was quiet at that time.

78. They differ in their account of the argument. Z says that E was crying during the argument and that mother went upstairs to settle her. Mother denies that the argument continued downstairs whereas Z says that there was a lot of shouting and when mother was upstairs, there was shouting up and down the stairs. Z says that mother was upstairs for approximately five minutes during which time the crying stopped. M denies that the argument took place other than in the passage and she denies going upstairs or being on her own with E at any time. She said E did not wake or cry at all when the argument was going on.

79. It is, I find, more likely that with the shouting and noise of the argument, which both Z and M agree was taking place, that E did wake. Mother said that if E had been crying, she would have gone upstairs to settle her. Z gives evidence that, in fact, that is what she did. I thought Z’s account more credible than that of the mother. It is likely that E did cry. The very first account of E’s last hours was given by Z to the paramedic when she asked when E had had her last feed and Z replied immediately that he had fed her at 5.30am. It is unlikely if Z is accurate in his account, that the injuries have been sustained before then. Z did not come across in evidence as being intellectually very able. It would be very surprising, particularly prior to the medical evidence being available, that Z understood the significance of saying that E had had a feed at 5.30 if it is untrue. I find it is likely that he told the truth to the paramedic and that E took a feed at 5.30, at which time there was nothing amiss with her.

80. If it is accepted that M went up to settle E, then both Z and M were on their own for a short period of time with E. The injuries could have been inflicted over a short time period. It does not take long to grip and shake a baby. If Z is correct, E was crying after he had spent time alone with E but once M had been up alone and settled E, no sound was heard from E. If M is correct, she was not on her own with E at any time after she returned home. On the whole, I found Z more credible in giving his evidence than the mother but it is difficult to rely on the evidence of either of them. Neither of them has been open or completely cooperative with either the Local Authority or, more partiularly, with the court. Both mention that they have no knowledge of how E’s injuries occurred. At least one of them must have that knowledge.

81. The authorities are clear that the court should not strain to identify a perpetrator if the evidence, upon the balance of probability, does not lend itself to a finding that a specific individual was responsible. I have considered all the evidence before me very carefully and I am driven to the conclusion on the balance of probabilities that I cannot exculpate either M or Z in regard to inflicting the injuries upon E. I have dealt with the fatal injuries in detail. There were, I am satisfied, two previous episodes. It is unlikely that there is more than one perpetrator. Both M and Z had opportunity to inflict the earlier injuries also. It is feasible that the non-perpetrator would have been unaware of the previous injuries which could be asymptomatic or dismissed just as an unsettled baby because of normal baby ailments.

82. In respect of the fatal injury, if it was inflicted when either M or Z was on their own upstairs, the other may not have known anything was amiss until E was found dead. I do not find that there is evidence that Z and M were colluding with each other. However, only either M or Z or both know exactly what occurred during those early morning hours on 14^th December 2013. It is difficult to accept that there has not been any detailed discussion between them as to what occurred. There is evidence that M has maintained secrets from Z, such as not telling him that Y stayed with E overnight in hospital, but I cannot be satisfied that there has been prior discussion between them in relation to E’s death as there are very many reasons, some very obvious reasons, why the perpetrator would not admit to it. It continues to be the position that neither blames the other and the way the evidence and case has progressed, it does not sit easily with there being collusion between them or knowledge of what occurred shared between them.

83. I am satisfied that the findings now sought by the Local Authority are made out. At paragraph 10, the finding should read that either mother or Z are responsible and so on. The court must analyse the evidence before it and cannot speculate upon matters where the evidence may be unreliable. A criminal trial remains outstanding, which does not encourage frankness beforehand. It is a matter of regret that I cannot identify the perpetrator between M and Z. The non-perpetrator will be attributed with possibly being responsible for causing the death of a child in circumstances where the non-perpetrator is indeed that: a non-perpetrator. It is extremely unfortunate for a number of reasons that I have felt unable to identify the perpetrator but only Z or M can remedy that situation.

84. The guardian, regardless of the findings, recommends that the children remain in their present placement: A, B and C with their father, F, and E with the maternal great aunt, MGA, and her husband, MGU. It is right to say and to acknowledge that F and R have proved to those who had reservations about their ability to provide care for these children as being totally wrong. They have given very good, high quality care to the three children. They are child-focused and have cooperated with all the agencies and have been able to promote the welfare of the children. It is, of course, the welfare of these children which is my paramount concern and that one should not lose sight of the fact that this hearing has been to determine the future of each of the four children which whom it is concerned.

85. F has been able to promote M’s contact. His concern, which is shared by all professionals, is mother’s inconsistency in relation to contact. While I can understand how difficult it must be for the mother to see D, for whom she has never been able to provide care and in respect of whom she is frightened of building up a relationship because of the uncertainty as to the future, I cannot understand her attitude in the contact with her older children. When she does see them, her contact is warm and appropriate. The guardian states that the concern about mother’s contact is not the quality but the inconsistency. The children look forward to seeing their mother and are upset when she lets them down. F correctly raises his concerns that he has to constantly make excuses and, indeed, lie to the children when their mother fails to attend contact.

86. The guardian identified that, as the children get older, there will be greater problems if the father has to continue to make excuses for the mother. The guardian told the court that F had not given the children any negative impressions of their mother and, in the guardian’s words, she had been really, really impressed by F’s commitment to the mother’s contact. The guardian emphasises the importance of the Local Authority remaining involved for at least the next twelve months, not because of any concerns about the care given to any of the children but because of difficulties around contact and the inability of the mother to work in an open and meaningful way. The guardian expressed her view that she had been really impressed with the quality of the social work in this case. She said there had been a high level of support for the children and their carers and that it had proved very beneficial to these children.

87. This has been a tragic case. I have no doubt that M loves her children and that she would have wished to care for them. She has recognised that she will not be allowed to do so. The outcome of the tragic events as far as the four children are concerned do have a positive side in that the older children are happy, settled and stable in the care of their father and R, and D is settled in the care of MGA and MGU who provide her with consistency and stability. The orders, therefore, that this court will make will reflect the benefit of the placements for these children with their present carers.

[Judgment ends]

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> B & Ors (Children) [2015] EWFC B139 (26 February 2015) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B139.html Cite as: [2015] EWFC B139

England and Wales Family Court Decisions (other Judges)