B e f o r e :
MR JUSTICE FRANCIS
B E T W E E N :
||LONDON BOROUGH OF SOUTHWARK
||- and -
||(1) U S
(2) R T
(3) M D
(4) O D
(5) P D
(6) Q D
(7) N D
A P P E A R A N C E S
MR T. PARKER and MS L. BUMPUS (instructed by the Legal Department) appeared on behalf of the Applicant.
MS J. BAZLEY QC and MS G. KELLY (instructed by Freemans Solicitors) appeared on behalf of the First Respondent.
MR A. BAGCHI QC and MR I. BUGG (instructed by Imran Khan & Partners Solicitors) appeared on behalf of the Second Respondent.
MR J. TUGHAN QC and MS R. FOULKES (instructed by Harris Temperley Solicitors) appeared on behalf of the Third Respondent.
MR G. BAIN and MS L. HARRINGTON (instructed by Steel & Shamash Solicitors) appeared on behalf of the Fourth to Sixth Respondents, by their Children's Guardian.
MR M. TWOMEY QC and MS S. TYLER (instructed by Miles and Partners Solicitors) appeared on behalf of the Seventh Respondent.
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE FRANCIS:
- At some point during the night of a Saturday / Sunday November 2016, L D died at home. For 15 days, commencing on 13th November, I have conducted a fact-finding hearing, the purpose of which is to ascertain how L died and, in particular, whether her death was caused by a member of her family. My sad task has also been to determine whether or not L was sexually assaulted at some time shortly before her death and, again, whether such assault, if it occurred, was perpetrated by a member of her family.
- On behalf of the local authority, their counsel Mr Parker has carefully prepared a schedule of the findings of fact, which he is inviting me to make. During the course of the hearing he has, with my permission, amended that schedule. As would be expected, counsel for the mother, the father, M and N have added their respective positions to that schedule. Having delivered this judgment, I shall distribute a copy of the schedule with my findings inserted into it. In fact, of course as you now know, I have announced my findings in advance of delivering this judgment, with the consequence that all parties already know the findings that I have made.
- The police and paramedic crews that attended L's family home following a 999 call on the morning of a Sunday in November took the view that her death was the result of a tragic accident, L having apparently become entangled in some netting that had previously surrounded her bed as decoration. Four days later, the Home Office pathologist Dr Cary, accompanied by Dr Marnerides, carried out a special post-mortem examination. Dr Cary reported that it was his view that the cause of death was due to compression of the neck but that the largely circumferential mark on L's neck was indicative of ligature strangulation. Furthermore, Dr Cary reported that there was evidence of sexual interference with injury to both internal and external genitalia, also to the ano-rectal region. Dr Cary reported that, in his view, this was a sexually motivated homicide.
- On 29th November 2016, London Borough of Southwark applied for an emergency protection order in respect of the other five children of the family who are: MD, ND, OD, PD and QD, who we refer to as "M", "N", "O" "P" and "Q".
- An emergency protection order was made in respect of O and P by Her Honour Judge Cox on 28th November 2016 (no orders having been pursued in respect of the other children). HH Judge Cox in due course made interim care orders in respect of O and P on 5tháDecember 2016. The basis of the interim care order was the risk of physical harm, risk of sexual harm and risk of emotional harm. The matter was listed for a directions hearing on 12tháDecember. The matter then came before Bodey J on 16thDecember, when the interim care orders in respect of O and P were discharged and the children were, instead, made the subject of interim supervision orders in favour of the London Borough of Southwark until further order or the conclusion of the proceedings. These two children were allowed to return to the care of their mother, who has been positively assessed by the local authority, and also by the Guardian, as a carer for the three younger children.
- The mother's care has been subject to those supervision orders and subject also to a number of stringent undertakings, in particular not to allow any contact, direct or indirect, between the children in her care, namely O, P and Q and any or all of the father, M, N and other named individuals without the supervision of the local authority. There have been numerous amendments to the various undertakings and arrangements that have been in place.
- Ever since Dr Cary reported that L's death was probably the result of a sexually motivated homicide, the father, M and N were all considered by the police to be possible perpetrators. Thus they have each lived under this cloud of suspicion for more than a year. In spite of the positive assessment of the mother as a carer, it is and remains the local authority's case that the mother is one of the pool of possible perpetrators of this most awful crime against her daughter.
- The matter first came before me on 14th February 2017 when I ordered that O and P shall continue to be under the interim supervision of the local authority and I made a number of disclosure orders against the Metropolitan police. I also made various case management directions. Between that hearing and this fact-finding hearing the matter has been before me on numerous occasions when I have made adjustments to the interim living arrangements.
- However, the fact is that M and N have been separated from their mother and father and siblings ever since the matter came before the court in November 2016. Furthermore, the father has been living away from all of his family since that time. By reason of the ongoing police investigation and these Public Law proceedings, the family has not been able to unite in grief for the loss of a loved sister and daughter. This has been a tragic year of almost indescribable pain for this entire family. Either one or more members of the family were involved in the most heinous crime of sexual assault and murder of a close family member or they have been wrongly accused. It is my task to do my best to establish what happened.
- I note, from the outset:
(a) that it has not been suggested by the local authority that the family, or any of its members, are guilty of a conspiracy; for example that they all know some or all of what happened and have united to cover that up; and
(b) that the local authority acknowledges that the evidence, as it stands, will not permit the identification of a perpetrator. However, the local authority contends that:
"There is a real possibility or likelihood that L's sexual assault and death was perpetrated by the identified members of her family."
- The possible perpetrators who are in what has been referred to as "the pool of perpetrators," or in this court simply "the pool," are the mother, the father, M and N. As set out above, it is in my judgment noteworthy, in this context, that the local authority has been content for the mother to remain fully involved in the care of her children for the past year, albeit subject to a series of strict undertakings.
- I have been properly reminded by counsel from the outset of this case that the burden of proof rests throughout on the local authority, both as to proof of non-accidental injury and as to identification of a perpetrator of any injury found to have been non-accidental. I am grateful to all counsel for their detailed submissions on the law in this regard, and my failure to mention each and every case to which I have been referred does not mean that I have not taken them into account. Indeed, I have carefully read and, for the purposes of preparing this judgment, re-read all of the opening and closing submissions that have been so painstakingly produced by counsel.
- The test which I have to apply is succinctly and clearly set out by Baroness Hale in Re B (Care Proceedings: Standard of Proof)  UKHL 35 at paras.70 and 73, she said:
"The standard of proof in finding the facts necessary to establish the threshold under s.31(2), or the welfare considerations in s.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 ů 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 happened to the child, it ceases to be improbable. Someone looking after the child at the relevant time must have done it at the relevant time. The inherent improbability of the event has no relevance to deciding who that was. The simple balance of probabilities test should be applied."
- Regarding the standard of proof, I have been properly reminded that I must apply the binary system so clearly set out by Lord Hoffmann in Re B (Care Proceedings: Standard of Proof)  UKHL 35, where he said:
"If a legal rule requires a factor to be proved (a fact in issue), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are nought and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, the value of nought is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened."
- The concept of a "pool of perpetrators" was the subject of much debate at the hearing. In the name of the critical issue of child protection has grown up a concept, unique I believe to children law, where the usual and well understood concept of the burden and standard of proof appears to shift to the extent that, in a proper case, the judge is entitled to say that, although he cannot identify who committed the given act, he is satisfied that it is one of a given number of people in a group.
- In Lancashire County Council v. B  AC 147, the House of Lords held that the threshold criteria is established by a finding that the child has suffered harm whilst in the care of his parents or other carers without the need to establish precisely who caused the injuries. Where there has been a finding of harm to a child and a pool of potential perpetrators has been identified but it has not been possible actually to identify the perpetrator, the court must proceed on the basis that each of the persons within the pool is a possible perpetrator. Where a court is unable to identify the perpetrator(s) of harm, the test to be applied is:
"Is there a likelihood or a real possibility that one or more of a number of people with access to the child was the perpetrator or a perpetrator of the inflicted injuries?"
North Yorkshire County Council v. SA  2 FLR 849, confirmed by the Supreme Court in Re S-B  1 FLR 1161 is where that quote is derived from.
- Where it is possible on the evidence to identify a perpetrator, this should be done. Here, the local authority asserts that L suffered injuries which were perpetrated and that the potential perpetrators were, as I have said, the mother, the father, M or N.
- Ms Bazley QC, for the mother contends that the local authority's case is bound to fail in this regard. Her forceful submission is that in "a pool case" you must be able to, as she puts it, "close the pool." In other words you must be able to identify with precision the people in that pool. Here, she argues, there is a real risk of an unknown intruder having been in the house at the relevant time, rendering it impossible to say that the pool of perpetrators is closed. I return to this subject later in this judgment but the importance of this, in brief, is that it is asserted on behalf of the parents, M and N that there is a real possibility (as opposed to a fanciful one) that an intruder entered the family home at the relevant time.
- I have also been reminded of Baker J's careful summary of the applicable legal principles at large in a forensic exercise such as this in the case of A Local Authority v. (1) Mother, (2) Father, (3) L and M (Children by their Children's Guardian)  EWHC 1569 (Fam). Baker J set out this test:
"First, the burden of proof lies at all times with the local authority.
Second, the standard of proof, both in establishing facts and identifying a perpetrator, is the balance of probabilities.
Third, findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation.
Fourth, when considering cases of suspected child abuse, the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to 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.
Fifth, whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision.
Sixth, cases involving an allegation of non-accidental injury often involve a multidisciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others.
Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability.
Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything."
That, of course, comes from the very well-known criminal law case of ofáR v. Lucasá QB 720.
"Ninth, as observed by Dame Elizabeth Butler-Sloss in an earlier case:
'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 would throw a light into corners that are at present dark.'
This principle, inter alia, was drawn from the decision of the Court of Appeal in the criminal case ofáR v. Canningsá EWCA Crim 1 In that case a mother had been convicted of the murder of her two children who had simply stopped breathing. The mother's two other children had experienced apparent life threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was no evidence other than repeated incidents of breathing having ceased. There was serious disagreement between experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances, the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable possible explanation. In the course of his judgment, Judge LJ (as he then was) observed:
'What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge.'"
- I have also heard submissions at considerable length about the importance of looking not just at the medical and expert evidence but at the broad canvas; the wide context of social, emotional, ethical and moral factors. In this regard I refer, in particular, to the observations of Ryder J (as he then was) in A County Council, A Mother, A Father and X, Y and Z (by their Guardian)  2 FLR 129. He said:
"A factual decision must be based on all available materials, i.e. be judged in the context not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be. Just as best interests are not defined only by medical or scientific best interests ů Likewise, investigations of fact should have regard to the wide context of social, emotional, ethical and moral factors. I venture to suggest that if a court considers the broader context of expert evidence, that is the social, educational and healthcare history, with the rigour described above, there must surely be less likelihood of inappropriate reliance on what may transpire to be insufficiently cogent and symptoms of frankly incorrect expert evidence even where it is contradicted."
- Finally, in this context, I have been referred to the words of Dame Elizabeth Butler Sloss in ReáU; Re B  2 FLR 263. She said:
"The judge invariably surveys a wide canvas, including a detailed history of the parents' lives, their relationship and their interaction with professionals. There will be many contributions to this context, family members, neighbours, health records, as well as the observation of professionals such as social workers, health visitors and children's guardian. In the end the judge must make clear findings on the issues of fact before the court, resting on the evidence led by the parties and such additional evidence as the judge may have required in the exercise of his quasi-inquisitorial function."
- I note from the outset that (apart from a housing issue in about 2007) this is a family that was previously unknown to social services and, with one exception, unknown to the police. This family has, aside from the issues which I am investigating, every appearance of being a close-knit, happy and loving family, whose children were not just getting by but were thriving.
- At the commencement of this hearing, I heard evidence from: PC T.S., who was the first member of the police paramedic team to attend the property; PC B. who attended with PC T.S. and entered the property shortly after her; Mr B.W. from the London ambulance service; Mr O.C., a technician employed by the London Ambulance Service; DC E. who attended the family home in order to assess the scene and view L's body; PC Bl. who was one of the first police officers to respond to the London Ambulance Service call; PC R; DS B.
- These were the witnesses who were able to describe the scene on the morning of the Sunday in November 2016 and their evidence has been extremely important in carrying out the task which faces me.
- PC T.S. was part of an armed response unit, which happened to be in the locality. Iásay that because it is important to underline that the presence of an armed response unit was coincidental and not in any sense a reaction that was deemed necessary. PC T.S described how she was able to open the closed, but unlocked, door and go into the entrance hall. She went upstairs, having been told, "Upstairs, upstairs," by what she described as, "a tall teenage male." She went into a bright pink bedroom (i.e. L's bedroom) where she saw a white sheet that totally covered something up. When she pulled the white bed sheet off she saw a black female child , she said, wearing pink and cream pyjamas. The officer knelt down by her side and moved her body slowly to create room for herself and the ambulance crew in order to administer first aid. It became obvious to her that this was a cold and lifeless body and that her mouth was clamped shut around her tongue. As was later related by the London Ambulance crew, there was no pulse detected and so there was no point in attaching a defibrillator machine.
- At 10.29 a.m. that morning, the ambulance crew pronounced life extinct. At this point, realising that there was nothing to be done to help L, this officer started looking around the room and assessing what was around her. She said:
"I wanted to take it all in."
Importantly, PC T.S. said in her statement:
"Also under her chin, around her neck, I pointed out a very thin dark mark which looked as though something had been tightened around her neck."
PC T.S. had also noticed a length of netting around the top bunk bed. She said that the netting was around 6 inches deep and she thought she could see a stain in the centre of it. She said that she noticed that one of the bunk beds in the room was made. She thought that was odd she said:
"It just didn't feel right."
- There is no doubt that this was a very distressing incident for PC T.S.. Indeed, she recounted how, when she got back to her car, she sobbed her heart out. She observed that, "the guy at the bottom of the stairs," was not crying, although she conceded that he may have been in shock. Obviously this person to whom she was referring was one of either M or N. I was unsure whether I was being asked to infer anything from the fact that this person was silent and not crying. I do not believe that there is one single reaction to shock: some people will scream, some will sob, and others will freeze in silence.
- The second person into the building was PC B, who made it clear in his evidence that his purpose was to try and save life not to appear on the scene as an investigator. He graphically described the scenes of hideous distress, the wailing and crying, the mother holding her baby Q..
- I heard detailed evidence from DI P. When he arrived at the house at about 12.28áp.m. on the Sunday in November it had been treated as a possible scene of crime. DI P. started to make his own investigations and he explained that he thought that the circumstances were suspicious. Indeed, it was initially his view that a special post-mortem was needed and he wanted further investigations to be carried out at the scene. He said that he would only be able to organise a special post-mortem if they had a crime scene manager assigned to the case. He thought at first that he would have to move the family away to an alternative address to allow the property to be fully examined by a crime scene examiner. He said that he wanted to try and ascertain if the netting may have been used to self-harm, as part of foul play or whether this could have been a tragic accident. He then decided to call the Homicide and Serious Crime Command as at that point he believed the circumstances to be suspicious. He said that he thought that it was highly unlikely that a girl of that age would self-harm to such an extent, and he was also concerned about a comment attributed to one of the younger siblings about having heard a bump in the night. He said:
"At that point I still did not believe it to be clear whether a criminal offence had taken place."
I state, at this stage, that a bump in the night is theoretically consistent with any of the three possibilities here, namely accident, suicide or homicide.
- DI P agreed with the suggestion put to him in cross-examination that the police missed an opportunity to seek DNA evidence. He described that the only visual sign on L was the marks from the netting, a mark around her neck. He was able to describe the netting, which he also identified from a bundle of photographs. He said that he believed that the netting was tied at both ends and then draped in a semicircle. He said that by the time he saw L's body she had been moved at least three times. In spite of his concerns about the possibility of a crime having been committed, he readily agreed with the suggestion, put to him in cross-examination, that it was possible to envisage how this could have ended up as an accident. He said that he noticed no signs of disturbance within L's bedroom and that the netting, "looked to be in its normal position." I am not quite sure how he could possibly know what "the normal position" was, given that he had never previously been into this bedroom and this type of netting was, it seems to me, quite unusual. However, he said:
"Based on this assessment, and with no intelligence from police regarding any childcare concerns, I concluded that foul play was not a factor and the circumstances would remain as unexplained."
- It is in my judgment surprising that there was no early attempt to recover any DNA evidence and that no fingerprint evidence was taken. Of course the immediate and urgent issue was to save a life. However it quickly became evident that L was beyond help and had tragically been dead for some time. I am bound to say that I regard the steps taken by the police following their attendance at the home as a catalogue of failures. Whilst recognising that those early on the scene formed the view that this could well have been an accident, it must have been obvious to anybody that there could be no certainty about the manner or cause of death and I would have expected the police, immediately after life was pronounced extinct, to begin to treat the area as a possible scene of crime and to continue so to treat it, at least until the result of the post-mortem was known. I recognise that the first officers on the scene were there to try and save a life and not as scene of crime investigators, but they were soon added to and replaced by officers there with a different remit. As I have recounted above, it was the findings of Dr Cary, at post-mortem days later, that caused the police to treat this as a potential crime.
- In fairness, DI P said that he spoke with a crime scene manager to seek expert advice and that as a result a forensic strategy was put in place to take scene photographs, seize the netting and bedding from the top bunk, as well as L's clothing and forensically to recover L's body. He did not request DNA or fingerprint evidence. He admitted that this was his decision and that the failure to secure such evidence at an early stage was his fault. He agreed that, in particular, it could have made a big difference had DNA and fingerprint evidence been obtained.
- PC Bl. was another officer who attended the scene although, by the time he arrived, he said that life had already been declared extinct. He spoke with O and he records that O said to him that she had heard a thump in the night and found her sister lying there but was too scared to go and tell her mother. PC Bl. said that he did not wish to push this any further. However, it was later confirmed by others that their interpretation of O's statement was that she was scared about waking the house up, rather than being scared about seeing something more sinister.
- PC Bl. also described that his partner had given birth the night before and that he wanted to get home.
- DC E. was also at the scene and he said that his role was to view the body and the scene and, as he put it, "to have a chat with the mother about what had happened." The mother was very distressed - of course she was - but he described her as fully cooperative. He said that it was a big case for him, that he felt that something was wrong. He said that he needed time to process what he had seen.
- The operational forensic manager in this case was M.B.. He described his role as "managerial": his first task being described as "preserve and recover" and the second task being described by him as "strategic." He had recommended a standard post-mortem in the first place and recognised that this was a mistake. He said that if he had suspected foul play he would have retained the scene and wanted a special post-mortem. He said that he ruled out foul play and that he worked on the basis that this was a tragic accident. He admitted in re-examination that he did not have enough information at the time when he recommended an ordinary post-mortem rather than a special post-mortem.
- PC R was only at the house for about 5 or 10 minutes that morning but he was able to corroborate what O had said, namely that she had shouted out in the night but that no one came to her. However, O did not mention to PC R that she had heard a bump in the night.
- DS B was at the house for about three hours that morning. He said that when he arrived at the scene nobody was using barrier clothing and that he instructed everyone to use full forensic barrier clothing and to establish the room as a crime scene. He said that he was unable to explain why DI P had reached a different decision. Plainly this meant that the scene had already become potentially contaminated.
- The crime scene manager in this case was Mr J.W.. He was extensively cross-examined about his crime scene management and investigation. He agreed (when pushed) that the lock on the front door was not a Yale type of lock that automatically locks when closed. Instead, this was the type of door where one needed to lift the door lever upwards and then turn a key in order to lock the door. Mr J.W had pointed out to him from photographic evidence taken by the police that the door chain was broken and incapable of being operative. Mr J.W admitted that he had failed to notice this, but agreed that it looked as though the door chain would have been useless. This photograph was taken within a day or two of the death - possibly on the day of the death - and there is no evidence to suggest that the chain had been damaged since L's death, and I find that it was in the same condition. Mr J.W admitted in cross-examination that no one looked to see if the door was secured or capable of being secured.
- He admitted that no fingerprints were taken on the Sunday in November. He admitted that no one had carried out tests to find out whether the relevant netting could have supported L's weight and whether she could have been strangled by falling out of bed. He dealt with DNA evidence that was collected at the scene (and I say more about this later) but he did not know whether the sample was good enough to search against the national database. He admitted in cross-examination that:
"It's fair to say that the investigation had closed its mind to third-party involvement."
He agreed that the investigation ought to have proceeded with an open mind. He agreed, as he had to, that, and he put it this way:
"It doesn't get much more serious than the murder of a child who may have been sexually assaulted."
- Mr JW tried to give evidence about the security of the windows at the property, initially stating that none of the windows open sufficiently for somebody to have climbed in through them. However, when shown a photograph taken from Google Streetmaps showing the windows at the front fully wide open, he admitted that he had not investigated the state of the windows at the front of the house. He then admitted that it would be possible for someone to enter the property through an open window by climbing onto the shelter above the front door. I make it clear that Iádo not mean to suggest that Google Maps or Google Streetmaps would necessarily constitute evidence in a case like this. But it is clear that when the photographs were put to him, MráJ.W. admitted that he had not really tested the windows at the property, and certainly had not tested them properly, and certainly could not give evidence to the effect that they could not be opened in such a way as to permit entry by a reasonably fit person.
- Moreover, Mr J.W admitted that he did not search the netting for hairs or fibres for DNA purposes.
- It may help if I summarise the police failures which I have noted to date:
(i) They failed to search for fingerprints at point of entry, windows, locks, banisters and common parts.
(ii) They failed to carry out forensic testing of hairs and fibres on the material said to be the murder weapon. It is of note that the netting remains in police custody to this day and no one has suggested that the fibres on that netting would have degraded to such an extent as would render DNA testing pointless at this time.
(iii) They failed to undertake a blood or faecal matter test until March 2017.
(iv) They failed to carry out any breaking strength test on the netting to see whether it could have supported L's body if she accidentally fell off the top bunk or, indeed, if she sought to kill herself with the netting.
(v) They failed to seal the bedroom and/or the house and treat it as a scene of crime pending full investigations.
(vi) They failed to carry out any or any proper examination of the door lock, door chain or windows to the property.
(vii) They failed to carry out any proper questioning as to whether the doors and/or windows to the property were secured on the night when L died. They failed to carry out any, or any proper, analysis of whether entry could have been gained to the property via the back garden.
(viii) They failed to obtain accounts from the cousins and relatives with whom L spent time on the Saturday in November.
(ix) They failed to undertake a search of the national DNA database.
(x.) They failed to undertake a sch.1 offenders search in the local area.
(xi) They failed to make any contact with somebody, to whom I shall refer simply as MráB, or to consider interviewing him.
(xii) They failed in the first place to order a special post-mortem.
(xiii) In summary, the police appeared to have closed their minds during the crucial period after the discovery of the body to the possibility of third-party involvement, or a perpetrated act, which led to most or all of the above failures.
- It is right, at this stage, that I refer briefly to the whole issue of police disclosure, a subject to which I return at the end of this Judgment. In short, however, I regard the disclosure of relevant material by the police in this case to have been woefully inadequate. It was only as a result of repeated orders made by me that several hundred pages of relevant material were produced during the course of this hearing. Some of what was part of the last minute disclosure has shaped the findings that I have made. It is important that lessons are learned from the way that the police have approached the issue of disclosure in this case and I set out some suggestions at the end of this Judgment.
- I should say, in making these criticisms of the police, that I understand, and sympathise with, the fact that they are facing unprecedented pressures from numerous directions and are having to juggle resources in the face of new and different challenges that arise. However, this case was no ordinary situation, but a case which possibly involved vaginal and anal penetration of a young girl prior to her murder. I do not think it gets much more serious than that.
- I say "possibly" because this is the way that the police themselves were looking at this case once they had received the report from Dr Cary. I understand that the police are continually trying, as are most other public agencies, to channel precious resources in multiple directions, but Iáventure to suggest that there is no room for cost-cutting when dealing with a situation which is as potentially serious as this one was. Moreover, and in any event, it is more likely than not that the cost to the police has increased rather than decreased as a result of their lack of attention to forensic examination and proper disclosure of material. In the end, they have been represented at court on numerous occasions and, ultimately, the police have conceded at each stage that they need to produce the documents that I have directed them to produce. Certainly, the costs of this case, and also to other publicly funded bodies and agencies, have been substantially increased on account of these police failures.
- In my judgment, the time has come when guidelines need to be given to the police regarding the production of documents that go beyond the current protocol, so that they must, within a given timeframe, either produce relevant material or make an application based on proper grounds as to why they should not produce it. In this case there is a serious risk that the proper investigation of the untimely and tragic death of an apparently fit and happy young girl has been severely prejudiced. In this regard, I can probably do no better than quote from the closing submissions prepared by Mr Bain and Ms Harrington on behalf of the Guardian when they said this:
"The wholly inadequate disclosure, which remains a live issue in this case, and even as these submissions are being written (the parties receiving an email with further disclosure from the police at 15.37 p.m. and still awaiting sight of a recording of a contact session), could easily have derailed this hearing and it is a credit to all the parties that the late disclosure has been managed in such a way so as to ensure this hearing remained effective. However, the court must not lose sight of the unfairness that flows to all parties when having to manage disclosure in this way."
- I agree. I return to this subject at the end of this Judgment but make clear that what I say here does not amount to formal guidance unless and until it has been discussed after due consultation with the appropriate authorities.
- My concern, of course, is actually with the living children, albeit that I am conducting a fact-finding hearing as to how poor L died. This family has been torn apart for more than a year and four of its members have been placed by the local authority into "the pool of perpetrators," and the father and N have suffered the horror of arrest and suspicion of rape and/or sexual assault and/or murder respectively of their own daughter and sister.
- I next turn to deal briefly with the arrest of N. When interviewed, N was told by the police, "Nobody is being blamed for any of this," and he answered interview questions. None of his answers incriminated him. His case since then has not changed. There is no suggestion by the local authority that he has lied at any stage. Mr Twomey complains on behalf of N that the only clue as to what might form part of any case against N was set out in four lines of their skeleton argument, where they said:
"The local authority wishes to challenge versions of events given by M and N on the evening of a Saturday in November and the morning of a Sunday in November. It also wishes to ask questions in connection with the disclosure provided by the police in respect of the boys' mobile phones."
Remarkably, the local authority case summary makes no mention of N when it summarises the family's respective cases.
- N was arrested by the police on a day in December 2016 by no less than five police officers in a very public way. Following his final police interview in June he was diagnosed by his GP with an unpleasant and stress related condition. I accept, of course, that there will be occasions when an immediate arrest of a suspect known to be highly dangerous will require such action. I have heard nothing at all in this case which could possibly justify such action against this boy. It would be inappropriate for me to comment on whether the police were justified in making an arrest. However, I would like to think that, in future, young and potentially vulnerable suspects who need to be arrested could be protected from the shame and horror of a public arrest. The presumption of innocence is as alive now as it has ever been in our society and I see no reason why the police could not, for example, communicate with the head teacher of the school and arrange for an arrest to take place in a private place in the school. N will almost certainly never forget the horror and shame to which he was on that day exposed.
- Moreover, N's counsel fairly complains that N has been prosecuted by a local authority for many months with no precise case against him identified, other than that he was "in the house when it happened." The local authority's approach has been, I am afraid to say, more of a fishing expedition than a focussed enquiry in respect of N and M. Indeed, in the final schedule of findings of fact N was mentioned but twice.
- I turn now to deal with the DNA evidence, such as it is. There is evidence of unknown DNA on what is put forward as the murder weapon, namely the netting around L's bed. There is also evidence of unknown male DNA (although no semen was found) inside L's pyjama bottoms and her pants. It is unknown when L had last changed her pants but the evidence was that she had not had a bath since the previous Wednesday. I remind myself she was found dead on the Sunday morning. She had worn her new pyjamas to a special day at school on the Friday and she was still wearing those pyjamas when found dead on the Sunday morning. It is, of course, entirely possible that male DNA was in her pyjama bottoms for innocent reasons. For example, as they were new, there could be DNA from someone who packaged the pyjamas, someone who handled them in the shop or at home for an entirely innocent reason. It is less easy to understand how there could be, innocently, the presence of male DNA in her underpants, but it could be as simple as a male having touched them during the laundering process.
- However, the finding of the DNA analysis includes the following:
"In the opinion of the DNA scientist, there was nothing to indicate that R ... [the father], M ... or N ... contributed DNA to this result."
On a number of occasions where there is a report in the comprehensive list of examination results that I have seen, these words appear:
"The minor DNA components within this result could be considered for a limited one-off speculative search of the national DNA database. Any such search would be limited given the paucity of information within the minor portion of this result. Additionally, the search would need to be undertaken on the assumption that all of these minor components originated from one individual, of which there is no guarantee."
In spite of this, as I have already set out, no attempt was made to make any search against the national database.
- I am afraid that I have to say that I found the local authority's position in relation to the DNA evidence to be somewhat disingenuous. There is no evidence at all of how or why unknown male DNA could be in the intimate area of L's clothing. There is no explanation whatsoever of why the DNA found in L's pants was not searched against the national database. There are a total of 15 samples of unknown male DNA which cannot be explained. Members of L's family had suggested the possibility that a family member and near neighbour, who Iáshall simply name as Mr B, might have been in some way involved in any sexual assault of L, yet no attempt was made to try and match any of the DNA samples with his. I note that Mr B's DNA would probably have been on the national database at this time, he having been known to the police. Having initially produced the DNA evidence, the local authority then sought to abandon it when it became obvious that it, and the tables compiled about it, were deeply unreliable. This led the local authority to submit, in closing, that:
"Little or no weight should be placed on the DNA results: at the conclusion of the evidence, the nature of the results renders them unreliable."
- This then led the local authority to submit, inter alia, that the results, "cannot be taken as exculpatory evidence in relation to those individuals within the pool." However, what is known of the partial profiles found is that the family members can be excluded from many of them. It is clear that many of the partial profiles are from an unknown third party. The local authority cannot have it both ways: they cannot at the same time rely on the inadequacy of the DNA samples as a reason for me to assume that it could be a family member when there is, on the other hand, clear evidence in relation to a number of the DNA samples that they did not belong to a family member. The fact is, that male DNA samples were found in L's intimate clothing, particularly her underpants, and that this does not appear to be DNA from a family member. As the live evidence has unfolded it has become clearer that the DNA evidence points away from the perpetrator coming from within the family rather than towards it.
- Mr Tughan, on behalf of M, submitted that in order to fit with the local authority's case narrative, the family members would had to have sexually assaulted and murdered L whilst wearing gloves, masks and forensic bodysuits. I am confident that that submission takes matters rather too far, but I am equally confident that the DNA evidence that has been initially relied upon by the local authority, and subsequently abandoned by them, points away from rather than towards the involvement of a male family member in the possible sexual assault or murder of L.
- Applying the binary test referred to above, I have no difficulty in finding that the absence of a positive DNA match with any family member considered to be in the pool of perpetrators must be regarded as exculpatory evidence and it would be wholly wrong of me to adopt the approach now encouraged by the local authority, i.e. that the samples are not strong enough to point in either direction. As I have said, and is obvious to all of us, the local authority has to prove its case. It does not begin to start to prove its case with the help of DNA when it says of DNA simply that it is "unreliable." What the local authority is asking me to do is to find that because the DNA evidence is unreliable, I cannot exclude the possibility that the unknown male DNA found belongs to a family member. I am of course not dealing with excluding possibilities but finding probabilities, and this leads me inevitably to the finding that the male DNA found in L's pyjama bottoms and underpants is probably not that of a family member. If, and I deal with this shortly, L was sexually assaulted at some point close to her death, the presence of male DNA, which is probably not that of a family member, supports the possibility, perhaps the probability, that such sexual assault, if it occurred, was committed by a male who is not a family member.
- Finally, on the subject of DNA, I refer to the fact that a table was produced, which was called "The Simplification of Forensic Results." I am bound to say that, at first sight, I was rather attracted to this document since it made the judicial task of simplifying a complicated table a great deal easier. On closer analysis, it turned out that the use of summary and imprecise language in this table was so dangerous as to make it a completely unreliable document. Scientific terminology associated with DNA results is, it seems, rarely going to be amenable to simplification. Without unduly criticising the hard work that was carried out by the member of the Metropolitan Police Force that prepared this document, I would respectfully suggest that lay people - for that is what police officers are for these purposes - should not attempt the simplification of comprehensive data compiled by a forensic scientist.
- I turn now to deal with the medical evidence in this case. As I have said, Dr Cary's initial analysis was that this was a sexually motivated homicide. Before turning to the detail of the medical evidence as it transpired in court, it is worth recording the way that the case was put by the local authority in its opening. This included the following averrals:
"(a) 'The post-mortem undertaken on a day in November by Drs Cary and Marnerides expressed the opinion that the cause of death was due to compression of the neck, however the largely circumferential mark on L's neck was indicative of ligature strangulation. In addition evidence of sexual interference with injury to both internal and external genitalia and ano-rectal region was identified.'
(b) 'At an experts' meeting held on 10th October, it is submitted that the meeting concluded that of the possible causes namely accident, suicide or homicide, homicide was the most likely explanation."
For reasons that I shall address later, my judgement is that this is not the correct test.
(c) "While Dr Lipetz struggled to identify the ano-rectal injuries using photographs supplied to her, at the meeting she did not differ from Dr Cary and Dr Marnerides' opinion that there was also ano-rectal injury."
(d) In relation to the sexual injury, "The injury had occurred whilst L was alive and the absence of inflammatory response suggests that this injury occurred very close to or contemporaneously with her death."
- I heard evidence from Dr Cary, Dr Marnerides, Dr Leadbeatter and Dr Lipetz. Drs Cary and Marnerides were, strictly, witnesses of fact since they were the pathologists who carried out the special post-mortem. Dr Leadbeatter and Dr Lipetz were jointly instructed experts for the purposes of these proceedings.
- As I have stated above, it was Dr Cary's interpretation of the special post-mortem that led to the police treating this as a potential sexually motivated homicide. The difference in approach between Drs Cary and Leadbeatter could not have been more stark. I found Dr Cary to be relatively swift in jumping to a particular conclusion and then willing to change it when pressed in cross-examination. I found Dr Leadbeatter to be reluctant to reach any conclusion at all and even more reluctant to agree with almost anything that was put to him in cross-examination. Iámust bear in mind, in my analysis, the difference between these two doctors and the different functions that they were respectively performing.
- Having found that there was evidence of sexual interference, more particularly digital penetration, Dr Cary was bound, as Home Office pathologist, to alert the police to this crucial information. Dr Cary said during his examination-in-chief that he had used the criminal justice format for the purposes of his examination report. He told the court that he had been involved in hundreds of hanging cases. He said that sexually motivated homicide was relatively unusual and he had only done tens of those types of cases of this kind. Of these cases at least half had been paediatric, as that was a special interest of his. Accordingly, his expertise in this field of medicine is very considerable indeed and I am grateful to him for his clear evidence.
- Dr Cary and Dr Marnerides carried out the post-mortem examination together but had different functions. Dr Cary examined the body whereas it was Dr Marnerides' task to examine the organs. On examination Dr Cary found a circumferential ligature mark around the upper third of the neck. He found a circumferential abrasion in the middle third of the neck just below the ligature mark. He found bruising to the external genital area, haemorrhage of the external urethra and haemorrhage around the hymen. His clear view is that death was caused by ligature compression to the neck and that the ligature mark is consistent with strangulation. At an experts' meeting held on 10th October 2017 the conclusion was that the most likely mechanism for L's death was homicide. The experts took the view that the likelihood of this mechanism of death is increased by the existence of the genital injury.
- Having heard the evidence in detail and, in particular, having heard the experts being cross-examined, the evidence relating to the genital injury is far less conclusive and I must be careful in allowing my view of the likely mechanism of death to be increased by the existence of the genital injury. As I have set out, the presence of evidence of sexual interference was a significant factor in leading the experts to conclude that L was strangled.
- Dr Cary was the only person who examined L's genital area. Photographs were seen and reported on by Dr Lipetz, whose experience in genital injuries is immense. Indeed, Dr Lipetz agreed with the suggestion that was put to her that the use of static photographs was the least satisfactory evidence to be expected in a modern sexual abuse enquiry. I agree that the evidence that flows from an actual examination is superior to a reviewing expert looking at a colposcopically recorded video of an examination.
- Dr Cary did not see a fresh hymenal tear. He did find bruising in that region but said that he was "not confident enough to diagnose a fresh hymenal tear." In his written report for the police, Dr Cary concluded that the bruising led to a diagnosis of sexual abuse. In cross-examination he was more circumspect and agreed that the bruising was a sign of trauma only. Iáhave been reminded by Mr Tughan in his written closing submissions of an important exchange between Dr Cary and Ms Bazley during cross-examination:
"Q: Is it unequivocal for sexual assault or trauma?
A: Trauma. Sexual assault implies one knows what's happened.
Q: Is it better described as a finding of trauma?
A: That's fair. It's in a very specific site where usually the only reasonable conclusion is sexual assault. There are ways of falling that could cause this but I don't think that's what's suggested here.
Q: From the pathological perspective all you can say is trauma.
A: That's true."
- Dr Cary had, in his report, regarded petechiae as indicative of tissue damage but in cross-examination he agreed that hypostasis could cause the signs in that region, and that he could not exclude the possibility of them being a post-mortem feature. In relation to bruising around the introitus, he conceded that it would not be right to say that this was evidence specifically of sexual assault and conceded that it is better to describe it as trauma. He acknowledged that it could indicate a straddling injury or L having fallen on something hard.
- The evidence of ano-rectal injury was sufficiently inconclusive that the local authority has withdrawn its requested finding of fact in this regard. Accordingly, on the binary test, no such ano-rectal injury occurred.
- As I have said, there is no issue that L died of ligature compression to the neck. There are many reasons for this conclusion and I do not need to go into them in detail since they are agreed. But I simply note that one of the key issues has been the eyes, the blood being unable to get out as the veins are compressed, therefore small veins rupture to produce haemorrhages. However, Dr Cary noted that there was a problem in that the body had been moved onto her back and therefore changes will have occurred in the post death period.
- The separate mark under the ligature mark could, says Dr Cary, have been a scratch, being evidence of a struggle. He pointed out that there is unlikely to be an abrasion there just as a matter of chance. In terms of the main ligature mark, he said there is only evidence of the ligature going once around the neck unless it was wound on top and in the same place. He said that it is not a particularly deep ligature mark because it is only in the superficial skin, this led him to conclude that it is not a classic hanging mark but more typical of ligature compression of the neck. He said, in particular, that if a body is suspended, the mark will rise from either side; suspending between two points would give rise to a rising ligature mark on either side. He floated the possibility that the ligature had been used by an assailant to gain control rather than to kill.
- Dr Cary agreed that his starting point was to consider the matter as being wide open that this could be accident, homicide or suicide. His investigation was hampered by the fact that he did not have the body in situ to see how she was suspended, if she was suspended. When dealing, however, with the possible causes of death he observed that L was not a toddler and that accidental hanging was not particularly likely. He also observed that suicide is not common in girls of this age. However, he conceded that all of the events under consideration were, as he put it, "pretty uncommon." He said that accident was not physically impossible, that suicide was very uncommon, and that a sexually motivated homicide was uncommon. Dr Cary also admitted in cross-examination"
"We do not really know what happened. The most important evidence would have come from the deceased."
- In relation to the ligature marks, Dr Cary thought that with a full hanging one would usually expect suspension marks and he did not regard the marks around L's neck as consistent with these. However, he conceded that there can be atypical hanging and that pathologically, "one simply cannot tell which it was," by which he meant deliberate or accidental. Specifically, he could not exclude an accident in which the lace netting was wound two or three times around L's neck. Indeed, he went further than this when he said that the presenting signs are in keeping with the weight of the cord being taken more by L's knees and less by her neck. It is to be remembered that it was the father's evidence that he found L on her knees when he came into the room. Dr Cary conceded that the circumstances here made it all "very difficult."
- Dr Marnerides conceded that no one knew what happened and that on the pathology all that could be known was that the cause of death was ligature compression of the neck. He said that in such circumstances he would generally consider accident, deliberate strangulation and suicide. In relation to the genital injuries, he said that they suggested trauma and that one could say little more than that.
- Dr Leadbeatter's evidence was altogether more cautious than that of Dr Cary. As I have said, Iárecognise that Dr Cary was fulfilling a different role as he was not the court appointed expert. Dr Leadbeatter said, when asked whether L could have died as a result of a tragic accident:
"I think that it is extremely difficult to say ... I take the view that there is nothing here which allows me to say that the description could not have happened, given the findings."
He was cross-examined about the type of ligature marks that were found on L's neck, subject to which I have already referred above. In relation to the absence of signs of suspension points in the ligature mark, he said:
"This depends entirely on how many times the netting was wound around the neck ... Might have a circumferential mark from the netting being wound around, with the three ends still going upwards."
- One of the local authority's requested findings concerns the time of death. There is little between the parties here. The local authority asks me to find that L died between 11.00áp.m. on the Saturday in November 2016 and 2.00 a.m. on the Sunday in November. It is clear that she died that night after returning late from a family evening out. It is clear that she had been dead for some time by the time the ambulance crew and police arrived. Dr Miller was instructed to examine L's stomach contents and to report on the time of death. Without going into the details of that report, for the purposes of this judgment her conclusion is that death occurred:
"At some point in the earlier part of the night rather than later on."
- I do not believe that, for the purposes of my judgment, I need to go any further than this. I do not believe that the way the local authority put it, "by 2.00 a.m.," rather than the way DráMiller puts it, makes any significant difference to the task that I have to undertake. We know that throughout the relevant period, all family members were at home. That is not in issue.
- As the authorities make clear I have to have regard, when coming to my decision, to what is generally referred to as the wider canvas. The evidence of the parents and carers is, in these cases, of the utmost importance and it is important for me to form a clear assessment of their credibility and reliability.
- When looking at the wider canvas, the starting point for me is that this is a family to all intents and purposes previously unknown to Social Services. I have the benefit of a letter from X School in relation to P indicating that he "is doing well in all areas of learning," and that he "really misses his dad." I have another letter from the same school which records that:
"The D/S family have built up a good relationship with the school, one which is very positive and effective."
The letter continues to set out that Ms S is very openly able to discuss matters pertaining to children. The school has regular contact with her and that she always supports school and community events and is well known and well liked. The letter ends by saying:
"As a school we have not had any safeguarding concerns with this family since they joined us, and we are keen to support them in any way that we can during this difficult time."
- There is evidence from M's and N's school indicating that, at least until L's tragic death, they were performing well. I have received a courteous and intelligent letter from M and N, which makes clear that they are greatly missing the members of their family from whom they are separated. Their letter bears setting out in full because it is not very long:
We are writing to you to express our deep concerns. We feel as if our family is being treated wrongly and we are pleading for justice. We have been forced to be separated from our family for almost a year now and still have not been able to fully grieve the death of our sister. The following year is going to be very important to the both of us as, I, M, am sitting my GCSEs which will have a huge impact on my future, and I, N, am preparing for my GSCEs. We would appreciate if you understood how difficult it would be to take such important tests whilst being separated from your family. Life has been difficult living without our parents and you have to understand we are still kids and are in desperate need of our parents. I hope you make the right decision and allow us to be reunited with our family."
There is nothing at all to suggest that these teenage boys were failing. Far from it, these boys, brought up in London in a religious family, were, so far as anyone has reported, thriving in every sense of the word.
- There is no evidence indicating that this was a family suffering any particular stresses or strains. They were surrounded by family and friends, a father working hard, children succeeding at school, a mother praised by her place of worship and her school alike.
- I heard evidence, of course, from both the mother and the father. On behalf of the local authority, MráParker submits that I must regard the mother as an unsatisfactory witness. In support of this he says that she sought to present an idealised image of her family to the court. Iáagree that she is most unlikely to be correct in asserting that she and her husband never argued. Indeed, it was only when pressed in cross-examination that she admitted that there was a time when they were separated because he habitually chose to use a Class C drug . She suggested that she did not know that her husband had some relatively minor criminal convictions. Given that he undertook a community penalty of a number of hours of unpaid work, I find it most unlikely that she was unaware of his convictions and sentence.
- However, I have to bear in mind that, although the mother speaks good English, it is not her first language. I also have to bear in mind that she is completely unfamiliar with the adversarial court process which she will have found extremely distressing. After all, she has had to endure many days of evidence, much of it extremely unpleasant, about the death of her daughter. Although we did our best to spare the parents from having to see the post-mortem photographs, the fact is that both parents have had to listen to many days of medical evidence, which have included evidence of possible sexual interference and injury. As is well-known, and as juries are so often advised in criminal trials following the Lucas direction - which I read out when Iáread the quote from Baker J's case - people can lie for any number of reasons. I cannot regard this mother's lack of frankness about her marriage, or about her husband's behaviour, as evidence that she is involved in the sexual assault or murder of her daughter. I am left, perhaps, with an evasive witness.
- Moreover, I ask myself quite where the allegation made by the local authority to the effect that the mother is an unsatisfactory witness takes them. The local authority have not presented any evidence to the effect that the mother was the perpetrator, rather their case is that she is one of the pool of perpetrators. Crucially, the local authority have not suggested at any time during this case that the mother and father have conspired to tell lies to the court and, more importantly, it has not been suggested that they conspired to cover up a criminal offence. I do not blame MráParker for not putting this, but the absence of the allegation speaks volumes about the lack of evidence against all of the alleged pool of perpetrators.
- There is no basis on which I can find that the mother knows that her husband or her two sons killed L. Therefore, suggestions that she is an unsatisfactory witness must be aimed at discrediting her to the extent that she is herself a perpetrator. Aside from her presence in the house when L probably died, there is nothing to incriminate her. Telephone records show that she was on the telephone to her friend during the most likely period leading up to L's death. We also know that she was in her bedroom, alone, with her infant who she was regularly breastfeeding. The proposition that this mother of a baby was in some way involved in the sexual assault and murder of her daughter is a remarkable one that needs cogent evidence to support it. In my judgment there is no evidence to support it. I remind myself, again, that it was not put to her that she participated in a cover up of something that her husband or one of her two teenage sons had done.
- Further, Mr Parker complains that the mother did not make any attempt to see L when the alarm was raised. There is no doubt from everything that I have heard that the house was in absolute consternation once L's body had been discovered. There is plenty of evidence enabling me to find, and I do so find, that the mother was in extreme distress. Indeed, I have listened to the 999 call, which would distress any listener. It is evident that there was wailing and screaming and it is likely that this was the mother. In fact, the telephone call was not completed because the phone was dropped or the call for some other reason lost. As I have said earlier, each of us may react differently to extreme shock. Mercifully, most of us receive no instruction or training in such events.
- Mr Parker also submits that the father was an unsatisfactory witness. I agree that the father was vague as to whether he had ever discussed his offences with his wife. I agree that he was vague as to whether he and his wife had separated in 2008. Mr Parker complains that the father attempted to introduce doubt as to his having locked the front door and back doors of the property, despite having never mentioned these concerns in the police investigation or in his witness statement. I accept these criticisms of the father. Furthermore, as I observed during the hearing, I noted that both the mother and the father were prepared to, as I put it, "jump on the bandwagon," when, for a time, it looked as though there was CCTV footage showing an intruder coming into the property. In fact, the CCTV footage that we had, quite by chance from a nearby property, showed the father coming into the property and the reason why he had thought that it might not be him was because the clock on the CCTV camera was at least two hours fast, suggesting therefore that the father came into the property sometime well after midnight, which is a good two hours after he did in fact return. It is completely clear, looking at the stills and the live footage, that the person who at one point it was thought might have been an intruder was, in fact, the father.
- However, as I have observed in relation to the mother, there are many reasons why a witness can lie or appear to be vague or unsatisfactory. Moreover, I note that there is plenty of evidence that the father loves and supports his children and that they plainly love him as well. The father has been in employment for many years and is a regular attender at his local place of worship.
- I have been reminded of an important passage of the judgment of Peter Jackson J, as he was, in Lancashire County Council v. C, M and F  EWHC 3 where he said:
"To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of "any reported discrepancies." They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record keeping or thee recollection of the person hearing or relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural ľ a process that might inelegantly be described as 'story creep' may occur without any necessary inference of bad faith."
- I bear these points very much in mind when evaluating the evidence of the mother and the father. When I look at the overall canvas in this case, I find that it is a substantial leap that is being asked of me by the local authority to say that because there are these deficiencies in the oral evidence and accounts given by the mother and the father, this enables me to determine that they were or might have been involved in the death, and possibly also sexual assault, of their daughter.
- Neither M nor N gave evidence to this court, although I do have the benefit of their police interviews. Of the two boys, only N was interviewed under caution.
- In short, when surveying the whole canvas, as I must, there is nothing in my judgment which goes substantially to support the local authority's case. Indeed, I find that there is nothing in the relevant background to suggest that this is a family that was then in crisis or trouble.
- I am faced in this case with three unlikely eventualities:
(c) Homicide - the latter possibly being sexually motivated.
Whichever of these it was, it is almost impossible to believe that no one in the house heard any commotion, yet the only evidence of any disturbance at all comes from O and is no more than simply that she heard a bump in the night.
- In this house were two adults, two teenage boys, O, aged six, and P and the baby, Q. If L fell out of bed accidentally it is hard to see how she would not have screamed loudly and woken people up. There is nothing at all to suggest that L was so depressed as to be suicidal, indeed the only evidence we have about L's well-being is that she was fit and a happy and healthy young girl. Moreover, we have the evidence of Dr Cary that suicide among girls of this age is extremely rare. Whilst he does not give evidence as a psychiatrist, I am, in my judgment, entitled to take note of that broad (and in court unchallenged) proposition. But my main focus on L and the prospects of suicide is founded in all of the evidence as to her general wellbeing. I cannot, of course, hard as it is for the family to hear this, exclude the possibility that she was being sexually preyed upon by a male unknown to us. I do, though, add to the overall picture that suicide by hanging by a piece of netting from your own bed seems inherently unlikely.
- The final option that L was killed by a third party, be it family member or stranger, is also almost impossible to believe given the commotion that one would expect to be involved. Of course, I cannot exclude the possibility that someone used a ligature to restrain her during a sexual assault and then applied too much pressure, as a result of which she died, death being an unintended consequence. This may have been what happened, but there is no evidence to enable me to find this on the necessary balance of probabilities.
- My first task has been to decide whether, on the balance of probabilities, this was an act perpetrated by a third party. Whilst there is agreement as to the cause of death, there is no clear medical evidence as to how the ligature strangulation occurred, other than that it appears to have been with the netting around the bed. I cannot exclude the possibility of suicide, albeit that in my judgment it is the least likely of the three possibilities. I bear in mind that all of those who initially attended the scene took the view that this was a tragic accident and that is a view that pertained until Dr Cary's report. Dr Cary has, as set out above, retreated somewhat from that initial report in any event. The DNA evidence, as I have set out above, is inconclusive.
- I have been reminded of the decision of Mostyn J in A County Council v. M & F  2 FLR 939, where he said that the judge is not always bound to make a finding one way or the other when faced with rival hypotheses. He said:
"There are cases, where owing to the unsatisfactory state of the evidence otherwise, deciding on the burden of proof is the only just course to take. It is wrong in principle to approach the alternative hypotheses on the basis that the court can eliminate the least probable ones to be left with a hypothesis which is also objectively improbable but rendered probable for want of any other. The quality of improbability is not improved by rejection of more improbable scenarios."
- I find that this is one of those unusual cases where the burden of proof comes to the judge's rescue. Aggregating, as I must, the probability of suicide together with the probability of accident, I find that the aggregate of these two is more than 50 per cent. Doing the best that Iácan, I find that the possibility of suicide is about 10 perácent, and the possibility of accident and a perpetrated act are about 45 perácent each. It would be wrong for anyone to regard these figures as in any way accurate, for of course they are not. They persuade me, however, that the local authority has not discharged the burden of proof which is upon it. I am not satisfied, on the balance of probabilities, that this was a perpetrated act, albeit that I recognise that it is one of three possibilities. On the basis, however, that I do not discard the least probable and then allow a competition between the other two options, but that I should look at each of the alternative possibilities and aggregate them together, I am quite satisfied that the burden of proof in this case is not discharged. Accordingly, I do not find that the local authority's case is proved in respect of any of the contested issues. By application of the binary principle, it is the finding of this court that neither the father, the mother, M or N are responsible for a sexual assault on L and nor are they responsible for her death. Accordingly, threshold is not met.
- Although I do not need to go further than this in the light of these findings, I believe that Iáshould address Ms Bazley's point regarding the pool of perpetrators. My initial reaction to her submission that as I could not exclude the possibility of an intruder and so could not close the pool, that I could not treat this as a pool case did not find favour with me. It seemed to me that this could be a defence to anyone in such a position, each claiming that unless a home is provably hermetically sealed than there is always the possibility, however remote, of a perpetrator. It seems to me that this could undermine the jurisprudence that has grown up in this area and render this important principle redundant. However, having surveyed all of the evidence in this case, I am satisfied that there is a real possibility, as opposed to some theoretically remote chance, that an intruder came in to the property that night. I need not repeat here the reasons for this finding.
- Mr Twomey also submitted that this could never properly be a pool case. He says that because two of the people in the pool are not carers, they cannot properly be in the pool. He says there is no reference in this case to the surviving children being beyond parental control - or at least if there was, he says, it came at the eleventh hour and unsupported by proper evidence. He says that the people in the pool need to be carers. In the end, without ducking the issue, it has not been necessary for me to resolve this issue for the obvious reasons that:
(1) I have found that on the balance of probabilities this was not a perpetrated act; and
(2) Agreeing as I do with Ms Bazley's submission, I have found that the pool is not closed.
But were I forced to make a decision on the issue, I would not accept that teenage children were incapable of being in the pool of potential perpetrators. I do not think that the jurisprudence is drawn that narrowly, but that is for others to decide as and when it should arise in another case.
- I have not yet said very much, in this judgment, about the all important position of the Guardian, Shelia Pankhania-Collins. Her role, as is almost always the case with the Guardian, has been invaluable in terms of the assistance to the court and to the family. In a fact-finding hearing, however, the Guardian will generally watch carefully what is said and done and found. The Guardian has greatly assisted the court, through Mr Bain, with the relevant legal framework that guides me. The Guardian properly reminds me that there will be cases when answers to fundamental questions are not capable of being found.
- The Guardian also informs me that observed contact has been "wholly positive" and that:
"There is nothing the Guardian points to from her dealings with the parents that is relevant to the immediate task the court has."
The Guardian also points to what she referred to as "the wholly inadequate disclosure" from the police "even as submissions are being written." I am grateful to the Guardian for her steadfast and necessary independence on behalf of the three younger children.
- I have referred in this judgment to the catalogue of police failures in terms of disclosure. Accepting as I do that the Metropolitan Police Service are under an unprecedented pressure of work, the fact is that immense costs have been incurred, including to the Metropolitan Police Service itself, as a result of the lack of care given by the police to this case to the issue of disclosure. It is hard, as I have said already, to think of more serious allegations that could face teenage boys than the possibility that they have sexually interfered with and murdered their own sister. The same applies of course to the parents, both of whom have been put forward by the local authority as being in the pool of perpetrators; albeit importantly that the police have never regarded the mother as a serious suspect.
- In this case, the police have repeatedly indicated that they intended to issue a PII application but appear never to have done so. I say "appear" because I cannot exclude the possibility that they have made such an application to another judge, and that may properly happen in some cases, but so far as I and all counsel in this case are concerned, such an application has not been made and no order for PII granted. Indeed, under pressure from me to make an application for immunity or some other reason for non-disclosure, or otherwise to disclose the material, ultimately the police disclosed all of the material that they had at one point resisted disclosing. There is no doubt that, in this case, the very late disclosure almost derailed this case into an adjournment. It was clear to all, given that L died in November 2016, that the case could not endure further delay. I am aware that the late disclosure has placed almost intolerable pressure on all of the lawyers in this case and the teams that sit behind them. I am equally sure that it will have caused great distress and the possible appearance of unfairness to the parents and to M and N.
- I invited counsel to send in an agreed note, if they were able to, in relation to the subject of police disclosure and they have done that, and I am grateful to them. What now follows is based upon that note, with some changes put in by me.
- Compliance with the 2013 Protocol and Good Practice Model, Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings, is of course mandatory.
- Paragraph 4.4 of the protocol provides:
"It is to be understood by all parties that the 2013 protocol should be used proportionately and is designed to facilitate only requests for material held by the police relevant to the central issues in the case. Requests for disclosure should not be drawn any wider than is absolutely necessary and only relevant material should be disclosed. The disclosure request to the police must be focused, identifying the documents which are really needed."
That of course comes from Re H-L (A child)  EWCA Civ 655, the Court of Appeal in 2013.
- This principle is, of course, correct but these proceedings have highlighted two significant difficulties with the approach currently outlined in the Protocol: (1) It is assumed that the local authority know which material the police have generated as part of the criminal investigation and, therefore, which material is "necessary" for the purpose of family proceedings; (2) The fact that the police determine what is "relevant material" for the purposes of family proceedings is problematic and, in this case, has resulted in a significant amount of documentation and information which was highly relevant to these proceedings being withheld until the last minute, and in respect of some of the material, literally until closing submissions had started.
- I have, therefore, considered whether the time has come for there to be new proposals for future police disclosure in cases involving a death of a child or children and/or an alleged serious assault against a child or children. I tentatively make some suggestions, but in doing so must stress that:
(1) This is the agreed work of all counsel in this case - as I say, as edited by me.
(2) This is expressly not formal guidance, albeit that I have raised the matter with the President of the Family Division. He has indicated that he intends to consult with the relevant authorities, which must include the CPS, and he may in due course publish further guidance following these observations of mine.
Unless and until further guidance is issued, the existing protocol must be followed, although what I set out below may provide some help to parties where it appears that the police are not co-operating with their disclosure obligations.
- Subject to those very important reservations, my suggestions, following the invaluable help of all counsel, are as follows:
(i) The local authority will make a protocol request to the police at least 14 days prior to the issue of s.31 proceedings. In cases where the issue of s.31 proceedings is immediately preceded by an application for an emergency protection order or the s.31 proceedings are listed upon short notice, the protocol request shall be made upon issue of the s.31 proceedings.
(ii) Not later than seven days prior to the case management hearing, the local authority will issue an application for disclosure against the relevant police authority. The local authority will invite the court to list the application for disclosure on the same day as the case management hearing. The local authority will serve a copy of the application upon the police at least seven days prior to the case management hearing. The senior investigating police officer in the case should be invited to attend the case management hearing and be legally represented.
(iii) In the event that the police wish to withhold any disclosure from the parties, an application should be made by them not less than two days prior to the case management hearing. The application should set out clearly the reasons why disclosure is being opposed and why a redacted version cannot be provided.
(iv) Upon receipt of a protocol request or an application for disclosure, the police will provide a list or schedule of all the evidence and material they have within their possession that is relevant to the central issues in the Family Court case. This list shall address the following:
(a) A short description of the evidence/material;
(b) Whether the police agree to disclose that particular piece of evidence or material to the parties; and
(c) In the event the police oppose disclosure of a particular piece of evidence or material clear reasons must be provided.
(v) At the case management hearing the police will provide the court with the following:
(a) details of any offences;
(b) whether any suspect(s) have been charged or not;
(c) custody status of any defendants;
(d) what bail conditions are applicable;
(e) any criminal court timescales.
(vi) In the event that the police seek to oppose disclosure on the basis that they consider the evidence to be irrelevant to the family proceedings the police will provide a copy of the documents to the court for the court to determine whether or not the evidence is relevant to the family proceedings.
(vii) The local authority will, throughout the course of the family proceedings, continue to liaise with the police as to whether any new evidence is obtained following the case management hearing. The local authority will update the parties and the court on a regular basis as to the outcomes of their liaison with the police.
(viii) Prior to any fact-finding hearing and/or final hearing the police will confirm which, if any, new evidence has been secured following the case management hearing and provide a further list or schedule addressing the issues set out above.
(ix) If the police object to any new evidence or material being disclosed the police must make a PII application as soon as practicable and, in any event, within seven days of that objection.
(x) The recording of any directions made in connection with police disclosure on case management orders should be sufficiently clear so as to enable the reader the ability to understand the key decision-making timetable in connection with this issue and the pro forma disclosure order contained within the protocol should be used.
(xi) It shall be the responsibility of the police and local authority to ensure that the police evidence is either disclosed to the other parties or that the court has the opportunity to determine any issue as to its relevance and/or PII application, sufficiently in advance of any fixture so as to enable the fact-finding or main hearing to proceed effectively.
- Now, you will all know, or the lawyers in the court will all know, that that is a substantive departure from the current protocol and, as I have said, these are suggestions and are not yet in any sense to be regarded as formal guidance.
- Finally there are three matters which have troubled me very much about this case and to which Iáwish to refer. The first is this, while in foster care, O and P were taken to McDonalds, where they were given meat (which did not meet their dietary requirements) to eat and they were taken to a place of worship. I know that this local authority, I dare say like all local authorities, will be under immense pressure but such conduct is plainly unacceptable. Only under pressure from me did the local authority write a letter of apology. I accept that mistakes can happen.
- Secondly, unbeknown to the mother, while she was enjoying contact with her older boys at a contact centre, the contact was captured on CCTV. This mother is devout to her faith. She removed her religious garments and yet now learns that she has been seen by men unknown to her in a condition which her religion tells her is inappropriate. As I understand it, contact at that centre, and perhaps at most other contact centres, is recorded. This may be for perfectly good security reasons, but I venture to suggest that people attending contact centres should be informed that they are being recorded so that they can act accordingly.
- Thirdly, the local authority in this case prepared a s.47 report on this family and yet it was only half way during this hearing that this was made known to anyone, including the family. Yesterday I received an apology from the Legal Department, for which I am grateful. I assume that this apology has also been sent to the parents.
- The London Borough of Southwark contains one of the most diverse populations in this country. It is a borough which rightly prides itself on its ability to meet the needs of its diverse community. On this occasion I am afraid to say that in all of the three above regards it failed some of its citizens at a most basic level of which it is, I dare say, duly ashamed.
- That concludes my judgment.
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