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England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Rochdale Borough Council v M (Acting Through the Official Solicitor) & Ors  EWFC 102 (23 October 2018)
Cite as:  EWFC 102
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Strand, London, WC2A 2LL
B e f o r e :
| ROCHDALE BOROUGH COUNCIL
|- and -
(acting through the Official Solicitor)
- and -
- and –
Z, B AND J
(children acting through their Children's Guardian)
3rd – 5th Respondent
Ms J Delahunty QC & Ms N Ismail (instructed by Temperley Taylor solicitors) for the Respondent
Ms E Isaacs QC and Mr D Mackley (instructed by Molesworths solicitors) for the Respondent
Mr S Spencer on behalf of the Children's Guardian (instructed by WTB solicitors)
Hearing dates: 9 October 2018 to 22 October 2018
Crown Copyright ©
The Honourable Mr Justice Hayden :
Findings about neglect
1. The children were subject to a child protection plan on the grounds of neglect from 17 June 2015, in the case of Z and J until 14 December 2016, in the case of A until his death and in the case of B until the issue of proceedings;
2. The parents have not met the children's health needs: they have failed to make or keep necessary medical appointments, for example:
(i) The parents did not make appointments for Z, B or J with a dentist; it was found that Z and J required dental treatment when they were examined;
(ii) The parents did not take Z for a review of her asthma, giving her instead an inhaler used by her brother;
(iii) The parents did not make appointments for Z or J with an optician; both were found to need glasses when their eyes were examined;
(iv) The parents did not keep appointments for B with Speech Therapy and Audiology which were necessary to promote the development of his communication skills;
(v) The parents failed to take B to appointments made with a physiotherapist between 1 June and 4 October 2016;
(vi) The parents did not take A to blood test appointments on some occasions in or around June 2017.
3. The parents neglected the care of the children by failing to keep the family home suf?ciently clean and hygienic. On the day A died the home smelled of stale urine, bedding was left unwashed and was stained, mould was permitted to grow in the household and it was in places dirty. Unsanitary home conditions had been seen by professionals on earlier occasions between April 2016 and 2 July 2017;
4. The parents failed to attend properly to the personal hygiene of A and B, neither of whom had the self-care skills necessary to attend to it themselves:
(i) On post mortem A was found to have dirt in the ?ngernails, between the toes and in the groins;
(ii) B presented at school with his clothes stained with faeces, dirty and with an odour about him on a weekly basis from 2015 to 2017.
5. The mother and father failed to provide suf?cient nutrition to A:
(i) A failed to thrive in their care: at times when A was in nursery or hospital he was able to gain weight, but weight was lost in his parents care;
(ii) The mother was observed on four occasions in November to force feed A using a spoon; she continued to do so having been advised against it.
6. The mother and father were unable to ensure A maintained weight gains he made at times he was at school, during periods of school holiday;
7. The mother has paranoid schizophrenia and learning disabilities which sometimes prevent her from meeting the needs of her children. The father accepts that despite his best intentions he was unable to ensure the children were not exposed to neglect which arose because of the mother's impairments.
8. By reason of the facts set out above at the time proceedings were brought:
(i) A had suffered neglect and impairment of his development; and
(ii) Z, B and J were at risk of suffering neglect and impairment of their health and development in the care of their parents.
i) Second right rib with evidence of trauma two to twelve hours prior to death;
ii) Non-displaced incomplete fracture to fifth right rib 17mm from the costochondral junction, two to twelve hours prior to death;
iii) Partial fracture to fourth left rib 22mm from the costochondral junction, two to twelve hours prior to death;
iv) Partial fracture to fifth left rib 13mm from the costochondral junction, two to twelve hours prior to death;
v) Partial fracture to the sixth left rib 6mm from the costochondral junction, caused within two hours of death (my emphasis);
vi) Partial fracture to the seventh left rib 5mm from the costochondral junction, caused two to twelve hours prior to death.
Schedule of Concurrence
|Composition of bones
||Agreed that the composition of the bone is normal.
There is no evidence of any underlying bone disease.
|Mechanism of fractures||There were six fractures.
Rib fractures were caused by chest trauma, specifically chest wall compression, either in a front to back or a side to side direction.
CPR did not cause the rib fractures.
|Timing of Fractures||The rib fractures occurred within hours of death.
Timeframe of between 2 and 12 hours prior to death for five of the fractures.
The sixth fracture lacks a feature that would confidently place it within that timeframe but could have occurred at around 2 hours prior to death.
Likelihood is that all occurred at the same time but it is not possible to completely exclude that they occurred during separate incidents during the timeframe.
|Patent Ductus Arteriosus||Anatomical finding.
No evidence at all in the clinical records that A had heart failure, or any evidence of cardiac compromise.
No evidence in post-mortem of any cardiac compromise.
No evidence that it was a physiological finding.
Patent ductus arteriosus is not relevant to cause of death.
|Time of Death
||Death medically registered at just after 19:30.
Circumstances described allow for time of death to be an hour or two prior to that time.
Time of death likely to be between 17:30 and 19:30
|Cause of Death:||Sudden and unexpected death.
Cause of death unascertained on post-mortem examination.
Asphyxial death cannot be excluded nor can other causes of death which leave no pathological features.
|Presence of the rib fractures.
||Presence of rib fractures implies a compressive force applied to the chest. Such a compressive force could also produce asphyxia but may not necessarily do so.
Both rib fractures and asphyxia can be caused by the same mechanism – compression of the chest.
It is possible that compression of the chest over time could have produced rib fractures and then further compression of the chest could cause asphyxia.
Presence of rib fractures and their age indicated that the chest was being compressed, at least, two hours prior to death which itself may make a subsequent event of chest compression more likely.
In this case, the compression of the chest which caused the rib fractures could not have, at the same time, caused death but subsequent compression of the chest could have caused asphyxia.
|Presence of undigested/unchewed food stuffs in the stomach
||Post-mortem examination revealed the presence of large pieces of apricots. These were not chewed and were swallowed whole.
Raises the possibility of airway obstruction by food bolus.
This would leave no pathological features but relevant observations and/or history would be expected.
Presence of hemosiderin deposits in the lungs
No significant hemosiderin deposition within the lungs – There was insignificant hemosiderin staining.
No relevance to the cause of death.
|The description of the mother having subsequently stated that "she had been feedings the baby and he just stopped breathing"||Very unusual history to be given in a sudden and unexpected death.
Significance of the statement is unclear on the limited information presented.
If further information is obtained would require consideration.
|The consanguinity of the parents
||No relevance to the rib fractures.
Consanguinity increases likelihood of autosomal recessive disorders, in particular, metabolic disorders, some of which have been associated with sudden death in childhood.
A underwent various investigations which did not reveal any metabolic abnormalities – including checking of amino and organic acids and post-mortem blood spot testing.
Neonatal blood spot test results have not been found but assumed to be normal.
No history given which is suggestive of metabolic type illness.
Metabolic abnormality is very unlikely to be cause of death. Death as a result of metabolic abnormality would be accompanied by preceding signs and symptoms.
Very difficult to establish any relationship between consanguinity to A's sudden and unexpected death.
A's history of poor weight gain
A did have a failure to thrive and developmental delay, the cause of which is not clear. It is possible that that was the way a metabolic abnormality could present. However, there would need to be other evidence of some underlying metabolic abnormality – which is absent in this case.
Another possible explanation for the history of poor weight gain and developmental delay would be neglect.
A lack of weight gain consequent to a poor supply of food may make a person more vulnerable to choking due to hunger.
|The presence of streptococcus pneumoniae||No evidence of infection in histology or any other investigations, for example, the CSF urea.
No history that the child was ill at the time of his death.
Sudden unexpected death is not associated with death due to serious bacterial sepsis. Would have some evidence of illness, or some histological evidence of tissue damage.
No evidence of inflammatory process. No evidence of pneumonia in the lungs.
Very likely to be artefact.
|The finding of possible hypoxic change within the hippocampus of the brain||In order to make a diagnosis of death due to a seizure disorder a relevant history is required. Absent such a history relevance of finding cannot be stated.
Only a 'possible' change.
Cases of death from seizure activity usually have very strong history leading up to death, rather than it being the first seizure.
Entirely non-specific feature of this case which does not assist in determining events and cause of death.
No significance to cause of death.
|The comments, noted by Dr Morell at [E196]. from A's nursery in the few weeks preceding his death as to him having "shown episodes of vacancy||Difficult to interpret relevance from limited statement.
No investigations were undertaken following reports – no EEG.
No further testing required. In the absence of any histological evidence of manifestation of any genetic abnormality or mutation there is no real evidence of bone weakening. Therefore, even if a mutation in a Type I collagen gene were shown to be present, it would still have no bearing on strength of A's bones. Histologically, his bones appeared entirely normal, away from the fracture sites.
If positive result returned on testing for any cardiac arrhythmia on DNA samples then could give "a clue as to cause of death" but would not "prove anything". Testing for inherited epilepsy syndromes would not help to "elucidate the cause of death".
Agrees with observations of Dr Newbould and Dr Lumb.
In the absence of a family history it is very difficult to establish what would be helpful investigation. Even if further genetic testing is done, then interpretation of result to individual case can still be difficult. "Though its technically possible, I'm not sure what it would actually achieve".
Even if genetic testing undertaken and positive results for cardiac arrhythmia gene, or epilepsy gene, were returned his conclusions would not be altered. "Just because the individual has that gene doesn't necessarily mean they have died of if. And also, we'd still not be in a position of not being able to differentiate between upper airway obstruction, traumatic asphyxia, and all these other things".
|Relevance of APEP research for analysis and conclusions of Prof. Mangham.||APEP was a short study into the significance and evidence of interpreting zonal osteocyte necrosis.
Outcome of APEP research was that it can be measured objectively – in fractures of a certain age the nuclear staining intensity reduces as one examines further away from the fracture line. This feature becomes evident in fractures around two hours following fracture occurring, and persists, depending on the size of the fracture and the bones involved.
It has not been peer reviewed. It is not ready to be formally written up and published.
The relevant literature relied upon is reviewed and detailed with addendum report from April. Position remains unaltered.
"If a legal rule requires a fact to be proved (a fact in issue'), a judge or jury must decide whether or not it happened. The law operates a binary system in which the only values are 0 and 1. 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, a value of nil is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened." And at paragraph 13 "I think the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not".
"In this country we do not...require documentary proof. We rely heavily on oral evidence, especially from those who were present when the alleged events took place. Day after day up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of witnesses. The task is a difficult one. It must be performed without prejudice and preconceived ideas".
At paragraph 32 Baroness Hale made this point
"In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will note have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof."
i) M is able to understand the significance and 'honesty of her answers';
ii) There was a significant risk that M would be confused at times and she is to be regarded as susceptible to being influenced by direct questioning, especially leading questions;
iii) She understands the nature of the oath;
iv) M is, with appropriate assistance, able to accurately and coherently answer questions.
Trauma to the chest as a causal or contributory factor in death;
On this theory Dr Lumb considered the following to be relevant: the rib fractures were un-displaced and had not caused any internal organ injury; and there was no significant haemorrhage associated with any of the internal injuries. He did, however, consider that sustained pressure to the chest, from front to back, could cause respiratory compromise. Further he considered that mechanical disruption to the chest by the rib fractures could also impair breathing. He emphasised that, whilst there were no asphyxial signs, this was not uncommon even in fatal cases. He considered that an association between the rib fractures and death could not be completely excluded.
In his report Dr Lumb again stressed that external upper airway obstruction, such as smothering, may leave no pathological traces. In A's case, given his age and the fact that he had teeth, Dr Lumb anticipated some injury to the lips had smothering taken place. He was pressed by Ms Delahunty on the absence of bleeding either to the mouth or on post-mortem examination of what was visible of the nasal mucosa. Dr Lumb readily accepted that the absence of these was a contra indicator to upper airway obstruction of the nose or mouth. However, he was very clear that if the court found as fact that there was blood on A's face that would shift the differential diagnostic pointedly to this direction.
The post-mortem records and notes that it is 'of interest' that there were large pieces of un-chewed food in the stomach. Dr Lumb's report notes that there was no history of food becoming trapped or expelled from the airways. From a purely pathological perspective therefore, he could not exclude choking on a food bolus (i.e. a small rounded mass) as the cause of death. I should interpolate Dr Morrell's view that given no food of obstruction was identified post-mortem he considered this explanation to be unlikely, whilst not excluding it theoretically.
Although no natural disease was identified at autopsy or any subsequent ancillary investigation, Dr Lumb properly highlights that there are some fatal conditions which leave no trace. Virology and toxicology showed nothing of significance.
(i) In his account at the hospital F says that he went to his parents' house with J at about 6 pm and then onto the mosque.
(ii) In that account he says he was playing cricket at around 5pm.
(iii) In his first police interview F says he left the house for his parents' house after 5 pm and that he took J to the Mosque at 6 pm.
(iv) In the email of 13 December 2018 his solicitors wrote "My client instructs that for mid-day prayers he attended the Feizan-e-Madina Mosque in Rochdale [cf statement of Mr Urfan of that mosque: "F did not attend for prayers on 2nd July")] and of the evening prayers and to collect J he attended the Al Quba Mosque on 1 Copenhagen Street in Rochdale" (emphasis added).
(v) In his first interview father says he was leaving the house when A was being fed; in his second interview the father says he was in the house when A went to sleep. That puts him in the house rather later than he has sought to portray.
If there is a discernible objective in his lies it points towards a determination to exculpate himself from presence in the family home that afternoon. I have very little hesitation in concluding that he was present when A was injured.
i) In summary: the OS acts on behalf of a protected party (PP) and has a duty to conduct litigation fairly and competently on the PPs behalf. The OS is more than the PP's statutory advocate. The OS does not, however, have the role akin to that of the children's guardian for the PP. The Children's Guardian is appointed to represent the interests of the child. The duties of the children's guardian re wide ranging and, crucially, involve an investigatory and reporting role that is very different to a litigation friend (as the OS is).
ii) The OS will assess where the PPs best interests lie and will identify the risks and benefits of the various options before the court. The OS will consider all relevant matters to assist in putting a case on behalf of the PP the OS instructs the solicitor to act on their behalf with the PP. The OS does not take on an investigatory role: they will act on the basis of the information available to them from the evidence filed and from the PP through meetings with them by their solicitor. The OS will, in due course, instruct trial counsel as to what course to adopt for the PP based on all the material available to the OS to decide on PPS best interests in litigation.
iii) The OS is not bound to advance a case that is not properly arguable (e.g.: re that the ribs were spontaneously caused by less than reasonable force through some undetected bone disease or by CPR post cessation of the blood supply to the body).
iv) The OS is able to advance a case contrary to the PP wishes and feelings but to do so is to breach the PP rights under Article 6 and 8 ECHR. The stronger the conflict between the arguments advanced in PPs name and PPs now wishes the greater the interference with the PPs rights and the more important the need for the litigation friend to proceed with caution and to fully analyse the material before the court and the potential outcomes for the PP from it on the basis of alternative courses open to the Litigation Friend
i. The mother has been clear in her police interviews and in her narrative to the court that the father was not at home in the period that the experts say that A sustained his ribs fractures. The court will determine the family's movements based on the totality of the evidence it has heard and read.
ii. The OS does not positively advance a case that the father inflicted any injury upon A whether as the sole perpetrator of his fractures and a participant in his death or as a person who should be within the pool of perpetrators; even if the consequence of that litigation position would be dilute any findings against the mother The position advanced on the mother's behalf by the OS reflects his assessment of the mother's best interests and the legal advice he is given which not only take into account of the range of findings open to the court but also how each finding impacts upon the mother in the context of her needs and functioning in the society she moves in and the relationships she has in it.
iii. As one would expect of a capacitious client, the likely consequences of each course of litigation action and decision have been factored into the OS's response to the case as pleaded and the evidence as heard. The OS has taken cognisance of the fact that the mother, at no stage, whether to Dr Nawaz, the police, Dr Margison or Dr Parsons, has said that the father had any knowledge of the circumstances that led to A's injury and demise and had specifically placed him as 'out' of the house in the afternoon in the relevant window. The OS cannot and does not advance a hypothetical case on a protected party's behalf: there needs to be a factual foundation for the position advanced. As with other cases, it is not unusual that a case may be taken up on behalf of an involved party even if they themselves do not advance it. (my emphasis).
i) Throughout the children's lives M has been their primary carer. Though the standard of her care has, from time to time, dipped considerably below what was acceptable, this is inextricably linked to her "extremely low intellectual ability" and to the challenges arising from her mental health. The history reveals that F has provided little active or supportive help, either generally or at times when M's functioning was significantly impaired;
ii) It is clear that each of the children has a warm, loving and affectionate relationship with M. Z, who was M's primary support in the household, has a particularly close relationship with her mother;
iii) The children are polite, well behaved and respectful. Both the Guardian and the key Social Worker comment that this reflects strong evidence of some good and nurturing parenting having been provided. Whilst I have no doubt that F has contributed to this, it must logically reflect most favourably on M given the predominance of her parenting role;
iv) There is no evidence that any of the children has ever been physically harmed by M or any history that she has lost her temper with them in any significant way. It requires to be restated that Z is now 16 years of age and, accordingly, I am reviewing a substantial parenting history;
v) B had a similar history to A of feeding difficulties. Whilst M did not address them satisfactorily, there was no evidence of her losing her temper with him. I note that she spontaneously described her reaction to A's reluctance to feed as causing her "sadness". Her body language and general demeanour reflected what she said. She betrayed no sign of anger or frustration;
The primary change in the household in the months leading up to A's death was the intervention of the Social Services and the furtherance of the Child Protection Plans. As paragraph nine above makes clear, there were fundamental parenting failures: unsanitary home conditions; unsatisfactory personal hygiene; and failed medical appointments, including neglect of Z's asthma. There is no doubt that F experienced Social Services as intrusive and belittling of his status within the community. As a man who perceived himself to be respected and who was called upon to help and advise others, the properly identified concerns of the Social Services undermined his status. It is clear from his frequent outbursts against the Social Workers that their presence in the life of his family was difficult for him to reconcile. In his evidence he took every opportunity to emphasise his intellectual ability. He repeatedly described himself as "a graduate". It is manifest that F was under stress;
vi) There is an obvious and striking disparity between M and F's cognitive and social functioning which renders M vulnerable within this relationship. There is some evidence, albeit of poor quality, which suggests domestic violence. Whilst this does not generate a finding, it registers a concern;
vii) F has lied extensively and elaborately with the objective of removing himself from the house on the afternoon A died.