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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> AA (A child), Re  EWHC 2647 (Fam) (29 June 2012)
Cite as:  EWHC 2647 (Fam)
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The Judge hereby gives leave for this judgment to be reported on the strict understanding that in any report no person other than the advocates or the solicitors instructing them and any other person named in the judgment may be identified by name or location. In particular the anonymity of the children and the adult members of their family must be strictly preserved.
B e f o r e :
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF AA (A MINOR)
B E T W E E N:
| A LOCAL AUTHORITY
|- and -
|- and -
|- and -
|- and -
|AA (by her children's guardian)
(Official Transcribers of Court Proceedings)
Rockeagle House, Pynes Hill, Exeter, Devon, EX2 5AZ
Tel: 01392 213958 : Fax: 01392 215643
appeared on behalf of the local authority
MISS FRANCES JUDD QC & MISS MARGARET PINE-COFFIN
appeared on behalf of the mother
MR DOUGLAS TAYLOR
appeared on behalf of GM, the father of A
MISS PENNY HOWE
appeared on behalf of the maternal grandmother, DA
MR STEPHEN COTTON
appeared on behalf of the child, A, by her children's guardian
(The names of solicitors are omitted to preserve confidentiality.)
Crown Copyright ©
THE HONOURABLE MR JUSTICE BAKER:
"The question is whether J died as a result of complications of varicella infection or whether varicella infection contributed to his death or whether there were other factors involved. For example, I have been asked by the police to consider the possibility that J may have been smothered with some soft material such as bedding or pillow. I cannot exclude this, but there were no pathological findings to provide confirmation. Although J had chicken pox/varicella viral infection, both clinical and laboratory data confirm this, I am not able to give this as the cause of death with certainty and not to the standard of beyond reasonable doubt. I therefore give as the cause of death: unascertained."
THE ISSUES AND HEARING
The burden and standard of proof.
"A court may only make a care order or a supervision if it is satisfied, (a) that the child concerned is suffering or is likely to suffer significant harm, and (b) that the harm or likelihood of harm is attributable to, (1) the care given to the child or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him or (2) the child has been beyond parental control."
In these proceedings, the local authority asserts that A has suffered and is likely to suffer significant harm. How is the court to be satisfied of this? As Baroness Hale of Richmond observed in Re B  UKHL 35,
"The likelihood of harm is a prediction from existing facts or from a multitude of such facts about what had happened in the past, about the characters and personalities of the people involved and things which they have said and done."
"If a legal rule requires the facts to be proved … a judge 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."
Baroness Hale of Richmond expressed the principle thus, at paragraph 32 :
"In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue. The party with the burden of showing that something took place will not have satisfied him that it did, but generally speaking, a judge is able to make up his mind where the truth lies without needing to rely on the burden of proof."
"To allow the courts to make decisions about the allocation of parental responsibility for children on the basis of unproven allegations and unsubstantiated suspicions would be to deny them their essential role in protecting both children and their families from the intervention of the State, however well-intentioned that intervention may be. It is to confuse the role of a local authority in assessing and managing risk, in planning for the child and in deciding what action to initiate with the role of the court in deciding where the truth lies and what the legal consequences should be. I do not underestimate the difficulty in deciding where the truth lies, but that is what courts are for."
"Common-sense, not law, requires that in deciding this question, regard should be had to whatever extent is appropriate to inherent probabilities," (per Lord Hoffman in Re B at paragraph 15).
"It is an elementary proposition that findings of fact must be based on evidence, including inferences that can be properly drawn from the evidence and not on suspicion or speculation."
Evidence in general – the wider canvas
"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the local authority has been made out to the appropriate standard of proof."
The approach to expert evidence
"A factual decision must be based on all available materials, i.e. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be."
"It is important to remember (1) that the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision."
Later in the same judgment, Charles J added at paragraph 49,
"In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof … The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established."
"(1) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.
(2) Recurrence is not in itself prohibitive.
(3) Particular caution is necessary in any case where the medical experts disagree, one opinion declined to exclude a reasonable possibility of natural cause.
(4) The court must always be on the guard against the over-dogmatic expert, the expert whose reputation is at stake or the expert who has developed a scientific prejudice.
(5) 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."
"(10) It would probably be helpful at the outset to encapsulate different possible approaches to cases where three infant deaths have occurred in the same family, each apparently unexplained and for each of which there is no evidence extraneous to the expert evidence that harm was or must have been inflicted, for example, indications of or admissions of violence or a pattern of ill-treatment. Nowadays such events in the same family are rare, very rare. One approach is to examine each death to see whether it is possible to identify one or other of the known natural causes of infant death. If this cannot be done, the rarity of such incidents in the same family is thought to raise a very powerful inference that the deaths must have resulted from deliberate harm. The alternative approach is to start with the same fact, that three unexplained deaths in the same family are indeed rare, but thereafter to proceed on the basis that if there is nothing to explain them, in our current state of knowledge at any rate, they remain unexplained and still, despite the known fact that some parents do smother their infant children, possible natural deaths.
(11) It would immediately be apparent that much depends on the starting point which is adopted. The first approach is, putting it colloquially, that lightning does not strike three times in the same place. If so, the route to a finding of guilt is wide open. Almost any other piece of evidence can reasonably be interpreted to fit this conclusion. For example, if a mother who has lost three babies behaved or responded oddly or strangely or not in accordance with some theoretically "normal" way of behaving when faced with such a disaster, her behaviour might be thought to confirm the conclusion that lightning could not indeed have struck three times. If, however, the deaths were natural, virtually everything done by the mother on discovering such shattering and repeated disasters would be readily understandable as personal manifestations of profound natural shock and grief."
Later at (13):
"Reverting to the two possible approaches to the problems posed in a case like this, in a criminal prosecution we have no doubt that what we have described as the second approach is correct. Whether there are one, two or even three deaths, the exclusion of currently known natural causes of infant death does not establish that the death or deaths resulted from the deliberate infliction of harm. That represents not only the legal principle, which must be applied in any event, but, in addition, as we shall see, at the very least, it appears to us to coincide with the views of a reputable body of expert medical opinion."
"We have read bundles of reports from numerous experts of great distinction in this field, together with transcripts of their evidence. If we have derived an overwhelming and abiding impression from studying this material, it is that a great deal about death in infancy, and its causes, remains as yet unknown and undiscovered. That impression is confirmed by counsel on both sides. Much work by dedicated men and women is devoted to this problem. No doubt one urgent objective is to reduce to an irreducible minimum the tragic waste of life and consequent life-scarring grief suffered by parents. In the process however much will also be learned about those deaths which are not natural, and are indeed the consequence of harmful parental activity. We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research, both here and internationally, become available. What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge."
"Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown."
"A temptation there described is ever present in Family proceedings too and, in my judgment, should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden
of proof is established on the balance of probabilities."
"In my judgment a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury, merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgment that we are fearfully and wonderfully made."
(1) There is evidence that the mother struggled to cope with all of the children. In the early days after B was born, she was unable to cope with his care and often left him in the care of other people, including DA. On one occasion, feeling unable to manage, she left him at the social project where she was receiving support. Later she found it difficult to care for J and A together. As a result she did not always provide adequate attention, stimulation or boundaries for the children.
(2) The mother failed to prioritise her children's physical and emotional needs, on occasions putting her own needs and interests first. She spent significant periods of time on the internet, including extensive periods communicating with friends via internet chat rooms. The children were expected to fit around the mother's own wishes and needs. This was a particular concern for the experienced health visitor who gave evidence before me.
(3)On occasions the mother was emotionally neglectful towards the children. On one occasion she announced that she was placing the children in care and packed their bags before being talked out of this by support and social workers.
(4)The home conditions in which the children lived were frequently poor. The mother struggled to keep her home clean and tidy, despite repeated reminders from others, including DA. The home was often left cluttered with rubbish.
(5)On a number of occasions the mother failed to protect and supervise the children so that their safety was at risk. In September 2009, B covered himself in bleach. In October 2009, he was found sitting in bleach. In October 2009, J was taking to hospital having ingested Sudocrem. Stair-gates were fitted but on occasions left open. On other occasions dangerous items were left within the reach of the children, cans of spray, loose wall sockets, paracetamol, scissors, cleaning fluid and medication. On one occasion, J was observed by a health visitor to be in a position to turn a fire on and off. The mother failed on occasion to supervise the children in the street, on one occasion allowing J to walk so far ahead that he was able to cross a road by himself.
(6)The mother struggled to manage the care of the children so as to ensure that they were kept clean and had their nappies changed with sufficient regularity. J was noted on occasions to have a very dirty nappy and to be dressed in dirty, wet and sometimes inadequate clothing. As a result on occasions J and A had very sore bottoms and nappy rashes.
(7)The mother struggled to provide the children with appropriate food. She delayed starting B on solid food. She would give the children inappropriate food on occasions and rely excessively on junk food. J would be fed chocolate biscuits for breakfast. The mother struggled to manage A's feeding regime as a baby and did not always follow advice on this topic. She told the health visitor that she could on occasions put J straight to bed without giving him any meal if they were late arriving home.
(8)The mother found it difficult to manage the children's behaviour. She resorted on occasions to harsh chastisement of the children that was both inappropriate for their age and generally excessive. She would smack the children, perceiving their behaviour as "naughty," not realising that it was often simple normal conduct to be expected of a lively, inquisitive toddler. She would shout at B when he was a baby in a vain effort to keep him quiet. She would resort to corporal punishment to an inappropriate and excessive extent. In October 2010 she was observed to slap B on the legs. She would threaten to smack the children by raising her hand. On occasions she put J in his room for excessive periods and sent him to bed at inappropriate times. On one occasion, as I find, she slapped B on the back of the head after he had run off.
(9)In November 2010 the mother was found drunk in charge of J and A. There is no evidence that this was anything other than an isolated incident; nonetheless it is a matter for considerable concern and jeopardised the safety of the children.
(10)The mother was provided with considerable support throughout the intervention of Social Services. Whilst there is some reason to question the level of support provided, the mother was not always as cooperative with the support workers who asked to assist her. The health visitor felt that her failure to take her advice was wilful. I bear in mind, however, that this mother suffers from a learning disability and I am unsure about the extent to which this was taken into account by the professionals who were trying to help her.
(1) Is there any evidence that the death of the children was linked to infection?
(2) Is there any evidence that the deaths of the children were linked to a metabolic disorder?
(3) Is there any evidence that the deaths of the children were linked to a genetic disorder?
(4) Is there any evidence that the deaths of the children were linked to a cardiac disorder?
(5) Were petechiae present on B at the time of his admission to hospital on 1st April 2011?
(6) What would be the significance of any petechiae seen on the children during their admission to hospital?
(7) What is the evidence that the children were smothered?
Cardiac and genetic disorders: introduction
Cardiac disorders generally
Diagnosis of LQTS generally
Clinical diagnosis of LQTS in B's case
Genetic abnormalities – General
(1) Dominant: one parent has a single faulty gene which overrides its normal counterpart, so that the affected individual has the disorder, although the clinical features can be quite variable. Where the affected parent mates with an unaffected partner, the offspring are either affected or not affected, so that on average one child in two is affected.
(2) Recessive: in recessive disorders, both parents are carriers. They have one normal copy of the gene, the allele, and one mutant copy. To be affected, the child has to inherit both mutant alleles, one from each parent. A child may inherit either the normal or the mutant from each parent, so that only one in four of the offspring, on average, will be affected. The carrier parents have no symptoms, because their normal allele is sufficient for normal biochemical activity. This mode of inheritance is the most common. Where two children share a mother but have different fathers, it is very unlikely that they will inherit a disorder through the recessive mode of inheritance.
(3) X-linked inheritance (sex chromosomes): X-linked inheritance means that the gene causing the trait or the disorder is located on the X chromosome. Females have two X chromosomes while males have one X and one Y chromosome. X-linked inheritance is a mode of inheritance in which a mutation is in a gene on the X chromosome. As a result, the disorder is expressed in males, because they only have one X chromosome. Carrier females who have only one cognitive mutation do not commonly express the disorder.
(4) Mitochondrial: mitochondria are small organelles within a cell that generate energy. They have their own small set of genetic material, mitochondrial DNA. All an individual's mitochondria are inherited from their mother. There are multiple copies of this DNA in each cell. The disorder caused by these mutations are variable and complex. Disease is most likely when the number of copies of the mutation in each cell is high.
Genetic factors in LQTS
Genetic analysis in this case
Cardiac and genetic factors - conclusions
Evidence of smothering