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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> East Sussex County Council v AG (Finding of Fact) [2017] EWHC 536 (Fam) (06 March 2017) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2017/536.html Cite as: [2017] EWHC 536 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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East Sussex County Council |
Applicant |
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SV - and - TG - and - AG |
First Respondent Second Respondent Third Respondent |
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Mr Roger McCarthy QC and Ms Harper (instructed by Duncan Lewis) for the First Respondent
Mr William Tyler QC and Ms Pauline Troy (instructed by Harney and Wells) for the Second Respondent
Mr Jonathan Bennett (instructed by McMillan Williams) for the Third Respondent
Hearing dates: 30 January 2017 to 10 February 2017
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Crown Copyright ©
Mr Justice MacDonald:
INTRODUCTION
i) How did high levels of alcohol and levels of antihistamine come to be introduced into AG's system?
ii) If they were introduced into AG's system by human agency, who administered alcohol and antihistamine to AG?
BACKGROUND
i) A blood sample taken on 27 April 2016 (untimed) showed alcohol at a concentration of 262 mg% (i.e. 262 milligrams per 100 millilitres of blood);
ii) A urine sample taken on 27 April 2016 (untimed) was insufficient to measure alcohol level;
iii) A blood sample taken on 10 May 2016 at 2000hrs showed alcohol at a concentration of 223mg%;
iv) A urine sample taken on 10 May 2016 (untimed) showed no alcohol detected;
v) A urine sample taken at 1300hrs on 17 May 2016 showed antihistamine (specifically chlorpheniramine) and alcohol at a concentration of 488 mgs%.
vi) A blood sample taken at 1400hrs on 17 May 2016 showed alcohol at concentrations of 641mgs% (blood ETDA), 584 mgs% (serum) and 613 mgs% (blood fluoride oxalate).
vii) A sample of gastric aspirate taken at 1800hrs on 17 May 2016 showed antihistamine (specifically chlorpheniramine) and alcohol at a concentration of 418 mgs%.
viii) A urine sample taken at 200hrs on 17 May 2016 showed antihistamine (specifically chlorpheniramine) and alcohol at a concentration of 388 mgs%.
i) Whilst an in-patient at the local hospital and the Evelina Children's Hospital in London, AG experienced unexplained episodes of unusual limb movements, apnoea, unconsciousness and coma, some of which incidents were life threatening and required intubation and ventilation.ii) As a result of these episodes AG was subject to extensive and invasive tests to try and ascertain the cause of these episodes.
iii) Specialist blood tests undertaken on 17 May 2016 identified high levels of alcohol in samples of AG's blood taken on 27 April 2016, 10 May 2016 and 17 May 2016.
iv) Specialist urine analysis undertaken on 17 May 2016 identified high levels of alcohol and levels of antihistamine in AG's urine.
v) Analysis of a sample of AG's gastric aspirate taken on 17 May 2016 identified high levels of alcohol and levels of antihistamine in his gastric aspirate on that date.
vi) The levels of alcohol found in the samples taken from AG were extremely high and would have been expected to cause serious toxicity and could have been potentially fatal.
vii) The unexplained episodes experienced by AG at the local hospital and the Evelina Children's Hospital in London were caused by AG being administered alcohol and antihistamine.
viii) The mother, or the father or both of the parents covertly administered alcohol and antihistamine to AG causing the unexplained episodes and causing AG to be the subject of unnecessary extensive and invasive tests to try and ascertain the cause of these episodes (as I have noted, the local authority's closing submissions go slightly further and submit that the evidence demonstrates that both parents administered alcohol and antihistamine to AG or that one did with the complicity of the other).
ix) If the court determines that only one parent covertly administered alcohol and antihistamine to AG, the parent not responsible either knew or ought to have known the other parent was repeatedly doing so.
THE EXPERT EVIDENCE
Dr McKinnon
i) The fact that alcohol was present in AG on three separated dates and antihistamine was present in AG on one date indicates that those substances were administered to AG on or around those separate dates.ii) The blood alcohol reading of 641mgs% on 17 May 2016 indicates that AG could tolerate a blood alcohol concentration of at least up to 641 mgs%.
iii) Within this context, the reading on 27 April 2016 showing alcohol at a very high concentration of 262 mgs% could represent the residue of alcohol administered up to 24 hours earlier (at a volume sufficient to result in an initial peak concentration in excess of 600 mgs% at that time) or could represent alcohol administered much closer in time to the sample being taken, possibly within an hour or so (at a volume sufficient to cause a reading of 262 mgs% at that time). Accordingly, and subject to the clinical picture, the time frame on before 27 April 2016 during which AG could have been administered alcohol is a relatively wide one.
iv) Likewise, the very high reading of 223 mgs% on 10 May 2016 at 2000hrs could represent the residue of alcohol administered 24 hours earlier (at a volume sufficient to result in an initial peak concentration in excess of 600 mgs% at that time) or could represent alcohol administered much closer in time to the sample being taken (at a volume sufficient to cause a reading of 262 mgs% at that time). Again, accordingly, and subject to the clinical picture, the time frame on before 10 May 2016 during which AG could have been administered alcohol is a relatively wide one.
v) The combination of the blood and urine readings taken on 17 May 2016, together with the fact that the blood alcohol readings taken on 17 May 2016 at 1400hrs on 17 May 2016 showed alcohol at extremely high concentrations of 641mgs%, 584 mgs% and 613 mgs% mean that, if the urine reading is reliable, it might indicate (but does not prove) that the alcohol was administered to AG one to two hours prior to the sample being taken at 2.00pm and, if the urine reading is not reliable, several hours prior to the sample being taken at 2.00pm. As I have previously set out, Dr McKinnon and Dr Ward each highlighted the difficulties in obtaining urine samples, both in respect of timing and source. Overall, given the levels seen at 2.00pm, Dr McKinnon was of the view that administration of alcohol prior to these timescales would have required a level of alcohol that would have been implausible. The readings from the gastric aspirate sampled on 17 May 2016 at 1800hrs indicates that AG had not been administered alcohol recently before 1800 hrs and is in keeping with the oral administration of alcohol several hours before hand.
vi) The alcohol concentrations seen in AG are so high that it is unlikely that such concentrations could be reached by the administration of successive doses as opposed to a single dose.
vii) It is difficult to determine timings in relation to the administration of the antihistamine as the concentrations in the urine and gastric aspirate samples in which they were found were not measured. The fact that the drug was found in the sample of gastric aspirate could suggest that it was ingested orally within a few hours of 1800hrs on 17 May 2016 but this would depend on the concentration. Assuming the blood EDTA sample was tested for antihistamine and none was detected this would suggest AG had not ingested the drug within several hours of so of 1400hrs on 17 May 2016. The presence of antihistamine in the urine sample taken at 1300hrs on 17 May 2016 indicates that AG ingested the drug at some point prior to that time. In circumstances where chlorpheniramine can potentially be detected in urine for up to a few days, he could have been administered the drug anywhere from recently up to a few days or so previously.
viii) Once AG demonstrated symptoms of intoxication this indicates that an intoxicant had been administered to him.
Dr Ward
"FII is a spectrum of disorders, rather than a single entity. At one end less extreme behaviours include a genuine belief that a child is ill. At the other the behaviour of carers includes them deliberately inducing symptoms by administering drugs, intentional suffocation, overdosing, tampering with medical equipment and falsifying test results and observational charts. [If] the court accepts that AG was administered alcohol and chlorpheniramine, unknown to the medical staff responsible for his care, then this case would fall at the severe end of the spectrum, given that AG suffered from life-threatening episodes requiring repeated resuscitation."
THE LAW
i) The burden of proving the facts pleaded rests with the local authority. In cases of alleged induced illness, it is for the local authority to establish on the balance of probabilities that the illness was induced. There is no requirement on the parents to show that the symptoms exhibited by the child were genuine or have some alternate explanation to the case of induction advanced by the local authority. Where a respondent parent seeks to prove an alternative explanation but does not prove that alternative explanation, that failure does not, of itself, establish the local authority's case, which must still be proved to the requisite standard (see The Popi M, Rhesa Shipping Co SA v Edmunds, Rhesa Shipping Co SA v Fenton Insurance Co Ltd [1985] 1 WLR 948 at 955-6).ii) The standard to which the local authority must satisfy the court is the simple balance of probabilities. The inherent probability or improbability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred (Re B [2008] UKHL 35 at [15]). Within this context, there is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not (Re B [2008] UKHL 35 at [2]).
iii) Findings of fact must be based on evidence not on speculation. The decision on whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors (A County Council v A Mother, A Father and X, Y and Z [2005] EWHC 31 (Fam)).
iv) In determining whether the local authority has discharged the burden upon it the court looks at what has been described as 'the broad canvass' of the evidence before it. The role of the court is to consider the evidence in its totality and to make findings on the balance of probabilities accordingly. Within this context, the court must consider each piece of evidence in the context of all of the other evidence (Re T [2004] 2 FLR 838 at [33]).
v) In this context, and self-evidently, I am not limited to considering the expert evidence before me. Rather, I must take account of a wide range of matters that includes the expert evidence but also includes, for example, my assessment of the credibility of the witnesses and inferences that can be properly drawn from the evidence. Accordingly, the opinions of the medical experts need to be considered in the context of all of the other evidence.
vi) When considering the medical evidence with respect to the child's presentation, the court must bear in mind, to the extent appropriate in the given case, the possibility of an unknown cause for that presentation (R v Henderson and Butler and Others [2010] EWCA Crim 126 and Re R (Care Proceedings: Causation) [2011] EWHC 1715 Fam).
vii) In respect of the medical evidence, it is vital to avoid blurring the important distinction between treating clinicians and experts (Re H-L (A Child) [2013] EWCA Civ 655). Where it is proposed to seek an overview opinion from one of the doctors who has treated a child, then that proposal must be expressly raised with the other parties and with the court. If permission is given to instruct one of the treating clinicians as an expert, then that instruction and all that flows from it must be conducted in accordance with the rules and established practice in exactly the same manner as it would be for an 'expert' who is brought into the case and who has not treated the child (Oxfordshire CC v DP, RS and BS [2008] 2 FLR 1708).
viii) The evidence of the parents and carers is of utmost importance and it is essential that the court forms a clear assessment of their credibility and reliability. The court is likely to place considerable reliability and weight on the evidence and impression it forms of them. In this regard, it is important to bear in mind the observations of Leggatt J in Gestmin SGPS SA v Credit Suise (UK) Ltd Anor [2013] EWHC 3560 (Comm) at [15] to [21] and, in the context of public law children proceedings, of Peter Jackson J in Lancashire County Council v M and F [2014] EWHC 3 (Fam) that:
"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 or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record keeping or 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 – a process that might inelegantly be described as "story-creep" may occur without any necessary inference of bad faith."ix) As to the issue of lies, the court must always bear in mind that a witness may tell lies in the course of an 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. The fact that a witness has lied about some matters does not mean that he or she has lied above everything (R v Lucas [1982] QB 720). Within this context, it is important to note that, in line with the principles outlined in the R v Lucas, in seeking to determine whether a person is a perpetrator, or should be included within the pool of possible perpetrators, it is essential that the court weighs any lies told by that person against any evidence that points away from them having been responsible (H v City and Council of Swansea and Others [2011] EWCA Civ 195).
x) It is also important when considering its decision as to the findings sought that the Court take into account of the presence or absence of any risk factors and any protective factors which are apparent on the evidence. In Re BR [2015] EWFC 41 Peter Jackson J sets out a useful summary of those factors drawn from information from the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals.
xi) It is in the public interest that those who cause injury to children be identified (Re K (Non-accidental Injuries: Perpetrator: New Evidence) [2005] 1 FLR 285). The court should accordingly endeavour to identify on the simple balance of probabilities the person or persons responsible for inflicting the injuries in question where it is possible to do so.
xii) The Court should not, however, 'strain' the evidence before it in order to identify on the simple balance of probabilities the individual or individuals who inflicted the injuries. If it is clear that it is not possible on the evidence before the court for the court to conclude on the balance of probabilities who the perpetrator of the injuries is, or perpetrators of the injuries are and the court remains genuinely uncertain, then the court should reach that conclusion (Re D (Care Proceedings: Preliminary Hearing) [2009] 2 FLR 668).
xiii) The threshold pursuant to s 31(2) of the Children Act 1989 may still be satisfied where the court finds that significant harm was caused by one or other or both of the parents but is unable to identify which parent is the perpetrator or that they both are. In in Lancashire CC v B [2000] 1 FLR 583 at 588 Lord Nicholls observed as follows:
"In the present case the child is proved to have sustained significant harm at the hands of one or both of her parents or at the hands of a daytime carer. But, according to this argument, if the court is unable to identify which of the child's carers was responsible for inflicting the injuries, the child remains outside the threshold prescribed by Parliament as the threshold which must be crossed before the court can proceed to consider whether it is in the best interests of the child to make a care order or supervision order. The child must, for the time being, remain unprotected, since s?31 of the Children Act 1989 and its associated emergency and interim provisions now provide the only court mechanism available to a local authority to protect a child from risk of further harm. I cannot believe Parliament intended that the attributable condition in s?31(2)(b) should operate in this way. Such an interpretation would mean that the child's future health, or even her life, would have to be hazarded on the chance that, after all, the non-parental carer rather than one of the parents inflicted the injuries. Self-evidently, to proceed in such a way when a child is proved to have suffered serious injury on more than one occasion could be dangerously irresponsible."xiv) Where the court cannot identify a perpetrator or perpetrators on the simple balance of probabilities, it is still important to identify the pool of possible perpetrators by asking whether the evidence establishes that there is a 'likelihood or real possibility' that a given person perpetrated the injuries in question (North Yorkshire CC v SA [2003] 2 FLR 849). In North Yorkshire CC v SA Butler-Sloss LJ stated:
"In these difficult and worrying cases where the court has, as Lord Nicholls of Birkenhead has said, to recognise and have regard to the differing interests of the adults and the child, Parliament has provided a two-limb threshold which requires to be satisfied before the court has the right to consider the welfare of the child. The first is met in this appeal since the child was injured and suffered significant harm. In relation to the second limb, the attributable condition, it seems to me that the two most likely outcomes in 'uncertain perpetrator' cases are as follows. The first is that there is sufficient evidence for the court positively to identify the perpetrator or perpetrators. Secondly, if there is not sufficient evidence to make such a finding, the court has to apply the test set out by Lord Nicholls of Birkenhead as to whether there is a real possibility or likelihood that one or more of a number of people with access to the child might have caused the injury to the child. For this purpose, real possibility and likelihood can be treated as the same test. As Lord Nicholls of Birkenhead pointed out in Re O and N; Re B [2003] UKHL 18, [2003] 1 FLR 1169 the views and indications that the judge at the first part of a split trial may be able to set out may be of great assistance at the later stage of assessment and the provision of the protection package for the injured child. I would therefore formulate the test set out by Lord Nicholls of Birkenhead as, 'Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?'. There may perhaps also be the third possibility that there is no indicator to help the court decide from whom the risk to the child may come, in which eventuality it would be very difficult for the local authority and for the court to assess where the child might be at most risk."In Re S-B [2009] UKSC 17 Baroness Hale stated as follows at [43]:"If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case."Within this context, the court must scrutinise the evidence carefully and consider whether anyone, and if so who, should be included in the pool of possible perpetrators of the injuries sustained by the child (Re S (A Child) [2014] 1 FLR 739).DISCUSSION
i) Whilst an in-patient at the local hospital and the Evelina Children's Hospital in London, AG experienced repeated unexplained episodes of unusual limb movements, apnoea, unconsciousness and coma, some of which incidents were life threatening and required intubation and ventilation;ii) No medical explanation for AG's episodes was found despite extensive testing being undertaken;
iii) Specialist blood tests undertaken on 17 May 2016 identified high levels of alcohol in samples of AG's blood taken on 27 April 2016, 10 May 2016 and 17 May 2016 as set out above;
iv) Specialist urine analysis undertaken on 17 May 2016 identified high levels of alcohol and levels of antihistamine in AG's urine as set out above.
v) Analysis of a sample of AG's gastric aspirate taken on 17 May 2016 identified high levels of alcohol and levels of antihistamine in his gastric aspirate on that date as set out above;
vi) The levels of alcohol found in the samples taken from AG were extremely high and would have caused serious toxicity and could have been potentially fatal to him but for the emergency treatment he received as an in-patient;
vii) Each of the unexplained episodes experienced by AG at the local hospital and the Evelina Children's Hospital in London were caused by AG being administered alcohol and / or antihistamine, including those episodes in respect of which blood and urine testing was not undertaken;
viii) Each of the unexplained episodes was caused by the mother or the father or both of them deliberately and covertly administering alcohol and /or antihistamine to AG.
ix) In deliberately and covertly administering alcohol and /or antihistamine to AG, the mother or the father or both of them caused AG to be subjected to extensive, unnecessary, uncomfortable and painful invasive tests to try and ascertain the cause of these episodes (including but not limited to MRI imaging, electrophysiology, two lumbar punctures, genetic and metabolic testing and video telemetry) and extensive, unnecessary, uncomfortable and painful treatments (including, but not limited to, extensive blood testing, catheterisation, intravenous and arterial cannulation, intubation, mechanical ventilation and the administration of antibiotic, anticonvulsant and anti-reflux medication).
Fact of the Episodes
Consequences of the Episodes
Presence of Alcohol and Antihistamine
Cause of the Episodes
Mode of Administration of Alcohol and Antihistamine
(i) Hand Sanitiser
i) The use of hand sanitiser assumed no significance at all in either of the police interviews of the parents conducted immediately after their arrest in May 2016. The mother claims that this was because she was not aware at the time of the interview that the hand sanitiser contained alcohol.ii) The mother's first statement, directed by the court specifically to address the question of hand sanitiser and dated 14 August 2016, details lower rates of application than those for which the mother now contends, she stating that she first used hand sanitiser on AG on 26 April 2016, using two doses. Specifically, the mother stated "I also put 2 pumps into my hand and wiped it over both of AG's hands and arms" (my emphasis). She states that she did the same on 28 April 2016. At the Evelina Children's hospital the mother states that she used hand sanitiser on AG 30 to 40 times per day "at the highest". Dr McKinnon's report ruling out the use of hand sanitiser as the cause of the levels of alcohol found in AG is dated 4 November 2016. The mother thereafter filed a second statement dated 25 January 2017 in which she said of her first statement "what I mean is that I used two pumps on the left hand and arm and two pumps on the right hand and arm", amounting to between 120 and 160 pumps per day. The mother denied that she inflated her account in her second statement to match the emerging medical evidence. However, given the size of the discrepancy between the two descriptions and the fact that the second statement followed the report of Dr McKinnon, I am satisfied that this is evidence of the mother having changed her account of the level of use in response to the conclusions reached by Dr McKinnon.
iii) In circumstances where the mother contends that her use of hand sanitiser on AG continued in the PICU the local authority sought confirmation as to whether members of staff saw the mother use hand sanitiser at the levels she claims whilst AG was on the PICU. By an email dated 25 August 2016, Professor Ian Murdoch, Professor of Paediatric Intensive Care at the Evelina confirmed that medical staff had not witnessed the mother use hand sanitiser on AG. Whilst that confirmation is in the form of an email rather than a statement in the proper form, it is corroborated to an extent by the evidence of the father who stated in his written and oral evidence that he saw the mother use hand sanitiser on only two occasions, stating in cross examination by Mr Bennett that he did not see the mother apply it with the frequency she claimed and did not himself see excessive use. In the circumstances, no person who came regularly into contact with the mother and AG whilst at hospital appears to have seen her using hand sanitiser on AG at the levels she claims.
iv) The clarification contained in her second statement is to the effect that the mother was using high levels of sanitiser from the outset, commencing that use on 26 April 2016. However, this appears to be at odds with a text exchange between the parents in respect of "hand gel" on 28 April 2016. On that date the father texted the mother stating "The reason I told you to use the gel stuff is cos there's at least four kids in here with pneumonia including rose (sic) in front of us and her mum gave you a cuddle"). The mother replied "Oh ok I'll make sure I use it a lot then". In my judgment this exchange is inconsistent with the mother's evidence to the effect that she was using between 120 and 160 doses a day on AG from 26 April 2016.
(ii) Human Agency
Perpetrator(s)
i) At 1025hrs on 29 March 2016 AG had an episode, initially reported by the mother, of becoming floppy, with a lolling head, intermittently hypertonic arms, hiccupping, cycling movements and then unresponsive with tachycardia, these symptoms continued over a period of 24 hours. Extensive medical intervention was employed and eventually AG was intubated and ventilated. Prior to the first episode on 29 March 2016, both parents were recorded as resident with AG and giving all care. It was noticed on 21 March 2016 that AG's vomiting tended to stop when his oral feeds were stopped. The parents took AG home on 26 March 2016 for Easter Sunday. Thereafter, AG's records for 27 March 2016 record "++vomits during 24 hours". Both the mother and the father conceded that there was an argument between them on 28 March 2016 but were both (I am satisfied deliberately) vague as to what it was about. On the morning of 29 March 2016 the father conceded that he spent time with AG early in the morning from 0400 or 0500hrs before leaving the hospital and 0530hrs. Records show that the father arrived at work at 0619hrs. The mother confirmed these timings. I pause to note that on the face of it, the mother informed people via WhatsApp that AG was having "seizures" prior to the time of the episode as recorded in the medical notes.ii) On 3 April 2016 at 2320hrs the mother noted a sudden onset of noisy breathing in AG who subsequently developed a poor respiratory effort and then apnoea, dilated pupils and became hypotensive necessitating an arrest call. On 3 April 2016 the medical records show that the mother was recorded as being present on the unit at 0630hrs. She texted the father at 0726hrs to ask him to bring a bag to the ward. Both parents are recorded as present at 0825hrs and then at 1140hrs for a discussion with medical staff. They are further recorded as present at 1345hrs and attending to AG's care. The father appears to be off the unit at 2308hrs as he texting the mother about setting a wake up alarm. Prior to the development of AG's symptoms at 2320hrs the father had been recorded as anxious about AG being discharged from the PICU to Savannah Ward.
iii) At 0800hrs on 7 April 2016 AG suffered a respiratory arrest on Savannah ward. An arrest call was made and AG was transferred back to the PICU. The father accepted in cross examination that he was present and asking questions at some time after 0500hrs on 6 April 2016. A text at 0912hrs on 6 April 2016 shows the mother asking the father to return to the ward as the medical staff proposed moving AG back to Savannah Ward. The father further accepted that he would have seen AG throughout the day on 6 April 2016. The mother is (and, in one records, the parents are) recorded as being present overnight from 6 April into 7 April 2016 and is recorded as reporting that AG was unresponsive throughout the night. A text sent by the mother to the father at 0050hrs stating she believed that AG was having another episode elicited no response from the father. AG was transferred back to Savannah ward at 0715hrs on 7 April 2016 prior to the arrest on Savannah Ward at 0800hrs. Again, I pause to note that on the face of it, the mother informed people via WhatsApp that AG had stopped breathing prior to the time the commencement of the arrest as recorded in the medical notes, the mother's WhatsApp messages at 7.31am and 7.46am to stating that AG had stopped breathing.
iv) On 8 April 2016 AG had further episodes during night at 0045hrs and 0300hrs. The mother is recorded as having been present throughout the night. The mother texted the father at 0049 to say "he has stopped again" but it would appear that the father was present on the ward prior to this time, having texted the mother to let him onto the ward at 0026hrs. Later, the father texted the mother to inform her that he was on his way back to the ward at 0745hrs. Both the mother and father presented as being very anxious with lots of questions at 0830hrs. AG was extubated at 0840hrs.
v) On 12 April 2016 the mother alerted nurses at 0810hrs that AG was exhibiting shallow breathing. At 0951hrs AG had an episode and ceased breathing necessitating a 'fast bleep' and requiring intubation, ventilation and transfer to PICU. Prior to this episode, by 10 April 2016 AG had been very stable and with no cardiological or neurological dysfunction. The nursing notes record that the parents stayed on ward until 2230hrs on 10 April 2016. On 11 April 2016 both parents expressed concern about AG being moved to Savannah ward as they "don't know how to look after him". AG was discharged from PICU to Savannah on 11 April 2016 at 1450hrs. There is an entry in the medical records that states the "parents" report that AG looked well overnight. On 12 April 2016 at 0730hrs the mother is recorded as coming to see AG on the ward and as being very low in mood and stating she feels she should be able to protect AG from the episodes. The mother texted father at 0747hrs to ask what time he is coming down. In evidence the mother agreed that the text messages suggested the father was off the ward at the time of the episode but could not recall when he came on to the ward. Once again, the mother appeared to inform a friend via WhatsApp that AG stopped breathing before the time of episode given in the medical notes. At 0804hrs the mother sent a WhatsApp message that AG 0809hrs stating he "stopped breathing again this morning" shortly before she alerted nurses to AG's shallow breathing at 0810hrs. Following the episode, the parents are recorded on the ward speaking to a nurse prior to a note timed at 1100hrs. On 12 April 2016 AG was extubated within four hours at 1430hrs. At 1800hrs the parents are recorded as having visited throughout the day, being very anxious and requiring a lot of support and reassurance.
vi) On 15 April 2016 AG suffered a series of further episodes. AG suffered episodes at 1050hrs (pauses in breathing, unresponsive and floppy, responding only to pain) and 1350hrs (further apnoeas and shallow breathing) and exhibited additional pauses in breathing, asymmetry of pupils and fleeting bradycardia at other times during the day. Prior to these episodes, both parents concede that on 14 April 2016 they had a further argument. Each was (again, I am satisfied, deliberately), vague concerning the subject of that argument. In evidence, the mother acknowledged that her texts to the father, sent in the context of this argument having occurred, carried with them the message that once AG was well she wished to leave him and that the father had understood that message. The nursing notes record that the father claimed on 14 April 2016 to be able to predict AG's episodes and felt that the next episode would be Friday or Saturday. The mother conceded that it was possible that the father left the parents' room and spent time with AG in the early morning of 15 April 2016. The nursing records indicate the Father did indeed spend all night with AG from 14 to 15 April 2016, with the father being recorded as on the ward at 2000hrs on 14 April 2016 when the nursing shift commenced, leaving the unit at 2201hrs and returning to the unit at 0030hrs on 15 April 2016 and being resident at 0600hrs when the mother arrived. Sometime before 0600hrs the nursing notes record that the father was reassured when he felt that AG was floppy. The father is recorded as being resident on the unit at 0700hrs on 15 April 2016 ahead of the first episode at 1050hrs, which episode accorded, in terms of its timing, with the father's prediction the day before.
vii) On 16 April 2016 AG suffered a number of episodes of abnormal movements and apnoea lasting 20 seconds and had a 15-minute episode of non-responsiveness at 1440hrs with limb writhing and small pupils. Both parents were present on the ward during the course of 16 April 2016. The mother was present in morning at from 0650hrs. The father is recorded at 1402hrs as thinking that AG was going into another episode and the mother replies that she is coming implying that the father was alone on the ward with AG at 1402hrs ahead of the episode at 1440hrs. At 1747hrs the mother refuses to leave AG due to incidences of him stopping breathing. On 17 April 2016 AG was recorded as being stable throughout the day with no abnormal episodes and at 1850hrs as having "no signs of respiratory distress today" albeit he demonstrated some periods of shallow breathing. Within this context it is again of note that at 0206hrs on 18 April the mother sent a WhatsApp message to her friend C to state that "He had another episode this morning and stopped breathing again". As I have noted, the medical records for 17 April 2016 do not show respiratory arrest on morning of 17 April 2016 and there was no such arrest noted in the early hours of 18 April 2016 prior to the mother's WhatsApp message at 0206hrs.
viii) On 18 April 2016 AG had an episode of reduced consciousness followed by a further respiratory decompensation requiring further ventilation at 0955hrs. The medical records appear to indicate that both parents were on the ward at 0845hrs speaking to the dietician. The father conceded in oral evidence that he was on the ward until 1000hrs. Both parents had been on the ward the previous evening until 2200hrs.
ix) On 20 April 2016 AG had a further episode at 1540hrs AG had an episode with floppy, cyclical movements of arms, minimal response to pain and intermittent biphasic stridor. Both of his parents appear to have present at the time of the episode. The medical records indicate that the mother was present on the ward on morning of 20 April 2016 at 0700hrs. At 1200hrs on 20 April 2016 the parents were informed of the plan to transfer AG to the Savannah ward in one or two days' time if he was stable. The father is recorded as being present at 1200hrs and receiving the explanation from Dr L regarding the progression of AG to the HDU if he was sufficiently stable ahead of the episode at 1540hrs. The medical records indicate that both parents were present on the ward at 1745hrs on 20 April 2016.
x) On 23 April 2016 at 0650hrs AG commenced an episode with prolonged apnoea at 0750hrs. He was intubated at 0850hrs. Both parents were recorded as being present during the day on 22 April 2016. On 22 April 2016 both parents are recorded as expressing concerns about AG being discharged to Savannah ward. On 23 April 2016 the mother was present on the ward from 0630hrs. During her evidence the mother stated that the father was off the ward at the time the episode took place and had not been on the ward when the mother arrived at 0630hrs. However, the nursing notes record that both parents were "up to date" at 0600hrs. At 0643hrs the mother texted the father to say that she thought AG was having another episode. The mother informed S at 0647hrs by WhatsApp that AG was having another episode and the father asked by text at 0708hrs whether he should come up to the ward. Both parents appear to be present on the ward by 0730hrs. AG underwent a further episode at 0845hrs.
xi) On 24 April 2016 AG was recorded as having an episode after 1000hrs and a further stridorous episode at 1345hrs. The mother attended the ward at 0600hrs and is recorded as having been updated by medical staff at 0815hrs ahead of the incident recorded as occurring after 1000hrs. The father is recorded as being present on the ward at 1140hrs, ahead of the episode recorded as occurring at 1345hrs.
xii) On 27 April 2016 AG suffered a further unexplained episode commencing at 0730hrs when he was observed to be displaying cycling movements. A video clip taken at 1106hrs shows AG very significantly intoxicated. The medical records show that the parents had been on the ward until 2300hrs on 26 April 2016. It is of note that the medical notes record that the parents state that they stay late and come to the ward early as they are able to "identify" when AG is about to have an episode when the nurses often cannot. On 26 April 2016 Dr H felt that the parents were unusually upset about the decision not to perform an aortopexy. On 27 April 2016 the medical records state that the mother was back on the ward at 0500hrs. AG was noted to be "smiling, alert, playing with toys in his cot" when he awoke at 0430hrs. Dr Ward considered that this description was inconsistent with a child who had at that time been administered alcohol or antihistamine. The records for 27 April 2016 record that the mother gave AG a feed by bottle prior to the episode at 0730hrs. The nursing notes record that the nurse was away from the bed when the feed given, although she gave the mother the milk from the fridge. Both the mother and father contend that the father was not with AG between 2300hrs on 26 April 2016 and the commencement of the episode on 27 April 2016. The mother texted the father at 0737hrs and stated that AG was having another episode. The father appears to have been on the ward by 0909hrs. Upon the commencement of cycling movements at 0730hrs Dr H was summoned and suspected administration of a toxic substance. As previously noted, blood samples were taken during the event with chain of evidence procedures. The mother was noted as appearing despairing of the situation and the lack of a diagnosis. Both parents are recorded as being on the ward until 2130hrs on 27 April 2016.
xiii) 28 April 2016 AG had an unexplained episode between 0650hrs and 0750hrs. Prior to this episode the notes record that the mother was with AG, unattended, for intervals of five to ten minutes prior to the start of the episode whilst the nurse assigned to AG supported colleagues. The notes record that at 0630hrs the nurse heard AG cry out and saw the mother standing over him. The nurse assessed AG and noted that he was falling back to sleep with his dummy. The mother left the ward for a short time afterwards and then returned and sat with AG for the duration of the episode.
xiv) On 30 April 2016 AG had a further episode at approximately 1400hrs of cessation of breathing and unconsciousness requiring ventilation and intensive care. This incident followed a meeting on 29 April 2016 at which the importance of closely observing the parents was emphasised. In the circumstances, there is a much more detailed record of the parents' whereabouts and activities prior to this episode. Both parents visited the ward at 0630hrs. AG was fed by the parents at 1000hrs following the nurse preparing his feed. At 1110hrs the mother texted the father indicating that she was watching AG as "our nurse has been doing other stuff". AG was observed to be being cuddled by the father at 1135hrs and settled with a dummy. He was fed by both parents at 1300hrs, again following a nurse preparing his feed. The nurse was required to leave AG with his parents during this feed due to an alarm on the ventilator of another patient. Upon her return, the mother remarked that AG was spitting out parts of his feed. The medical records further indicate that the mother and father observed to be carrying out "mouth care" on AG between 1300hrs and 1350hrs at the time when the nurse responsible for AG was on her break. AG noted to be alone with the father at 1400hrs at the commencement of the episode with the nurse assigned to AG being on a break and the nurse covering being engaged doing a "tape change". When challenged in cross examination about these matters the father said "it sounds like we gave him something but that is not what happened". He could not explain why an episode occurred shortly after both he and the mother had been seen to feed AG and undertake "mouth care" with him.
xv) On 4 May 2016 AG had a further unexplained episode at 0635hrs characterised by stridor, breathing difficulty then apnoeas, mottled tachycardia and cycling movements. The medical notes indicate that the parents seen to be touching and pressing buttons on the monitor on 2 May 2016 and were told to stop doing it. They were also recorded as expressing frustration about why aortopexy has not been undertaken. Prior to the episode at 0635hrs on 4 May 2016 the mother is recorded as having been observed taking medicines out of her nappy bag at a point before 0535hrs. At 0825hrs there is an entry from nurse N that reads "Informed by SN [P] that while I was on my break, mum was seen at her nappy bag getting medicines". Nurse N records that she returned from her break at 0535hrs at which time the mother was present at the bed space. The medical notes record that both the mother and the father were present on the ward at the commencement of the nursing sift at approximately 0545hrs according to a further note from nurse N and ahead of the episode commencing at 0635hrs. The mother is recorded as being present during the episode commencing at 0635hrs and the father is recorded as arriving during the episode and, accordingly, if the record showing him present at 0545hrs is accurate, he appears to have left and come back. At 0725hrs the father texted the mother to get her to come down for a cigarette and at 0909hrs the text messages appear to indicate that the father is in parents' room. The parents left the ward at approximately 2100hrs on 4 May 2016. The following day the father queried whether AG should be put on a ketogenic diet.
xvi) On 8 May 2016 AG had an unexplained episode at 1135hrs when he was seen to be unresponsive, with small pupils and airway obstruction as a result of which he was intubated at 1150hrs (the time is given as 1215hrs in the nursing notes). The mother is recorded as having returned to the ward at 0545hrs on 8 May 2016. The parents are also recorded as having been updated "pre and post episode". Within this context, a note made on 8 May 2016 at 1400hrs in the nursing notes records that "At – 1030 (I was assisting in cubicle) nurse covering came over to AG as monitor alarming resp = 0 apnoea. Mum + Dad present stated that AG was sleeping, coughed then became apnoic." The records accordingly suggest that both parents were present with AG prior to his requiring intubation on 8 May 2016.
xvii) On 10 May 2016 at 1000hrs the mother alerted medical staff to the fact that AG was sweaty, stridorous, with abnormal movements and decreased responsiveness. Urine and blood samples were taken during the episode. He demonstrated similar symptoms, requiring airway support, between 1915hrs and 1925hrs on 10 May 2016 with further episodes of tachycardia, floppiness and unresponsiveness over a period of 40 minutes. Both parents are recorded as having been on the ward at 2100hrs on 9 May 2016 but not present overnight. The medical records indicate that at 0400hrs AG was unsettled and a little whingey and at 0610hrs hours he was self-ventilating and had had no episodes overnight. Dr Ward considered those descriptions not consistent with having been administered significant quantities of alcohol the evening before. There is no indication in the medical notes as to which, if either, of the parents attended the ward prior to the episode on 10 May 2016. As to the position after the episode, the mother stated that the father was probably not on the ward when she texted him at 1040hrs on 10 May 2016 to see whether she wanted to go for a cigarette. The father stated he had not seen AG between 2100hrs on 9 May 2016 and the episode commencing on 10 May 2016. Thereafter the parents were recorded as being present during the day and were present at an MDT meeting that took place at 1900hrs. With respect to the episode in the morning, it is again of note in this context that the mother sent WhatsApp message to S at 0527hrs saying "He was recovering well after surgery babe but has had an episode today and is not doing so good they have put him on oxygen and he is doing Ok!". That message appears to refer to either 9 May 2016 or 10 May 2016 prior to 0527hrs. She sent a similar WhatsApp message to C at 0528hrs saying "AG has had another bad day babe meeting when ok they are still no close to finding out whats going on but in about a weeks time he will be having surgery to lift the aorta artery off his trachea! It's a big surgery that carries lots of risks but they think there is a chance it will help his breathing issue xxx". The medical records for 9 May 2016 and early hours of 10 May 2016 show no episode on 9 May 2016 or in the early hours of 10 May 2016.
xviii) On 17 May 2016 at approximately 1045hrs AG commenced an episode of cycling movements, hypotonia and being unresponsive. A video taken by the father commencing at 1047hrs shows AG as clearly intoxicated. Blood samples were taken. A further episode occurred at 1345hrs. Prior to this episode there had again been discussion about moving AG off the PICU to Savannah ward. The parents were noted in the medical records to be at AG's bed at 1940hrs on 16 May 2016. At 0430hrs on 17 May 2016 AG is recorded as having given no concerns overnight. Dr Ward was clear that that description is not one of a baby who had already ingested significant quantities of alcohol. At 0810hrs on 17 May 2016 the mother is recorded as on the ward with AG. During her oral evidence the mother stated that the father went for breakfast alone that morning. In her statement the mother says she gave AG apple puree at 0930hrs and then went to meet the father at 1000hrs and they returned to the ward together at 1030hrs. The medical notes record that the father had come to the ward prior to 1047hrs when he took the video of AG. The father contends he took the video "moments" after he arrived on the ward. He is recorded as talking to the chaplain at 1055hrs and is recorded as present with the doctors at approximately 1145hrs. The father's evidence concerning his whereabouts on 17 May 2016 set out in his statement dated 25 January 2016 bears little resemblance to the times set out in the hospital records. The parents were both recorded as being on the ward at 1325hrs ahead of the further episode at 1345hrs.
xix) Finally, on 19 May 2016 AG had a further unexplained episode at 1000hrs. The mother is recorded as being on the ward from 0530hrs or 0730hrs. She is recorded as having fed AG at 0800hrs and as having given him apple puree at 0900hrs after having asked to do so. The father texted the mother at 0911hrs and the mother went to meet the father for breakfast. The father again stated in his oral evidence that he had not seen AG since the evening of 18 May 2016.
i) The evidence I have recited, and which is before the court, does not comprise anything like a continuous narrative of the parents' whereabouts and movements at all times. It is plain from a close analysis of the nursing notes that they do not always record when the parents are on and off the ward. Further, whilst a given text may indicate that one or other or both parents are on or off the ward at a particular point in time, that text does not assist with what may have happened in the period before or after it was sent unless there is other evidence covering those periods, which there often is not. Given the problems with each parents' credibility (which I shall come to below) and the limitations of memory in the context of long periods spent in hospital, the parents' respective accounts of who was where when must, likewise, be treated with caution.ii) It is plain that, on occasion, AG had unexplained episodes both shortly after being in the company of his mother and shortly after being in the company of his father. Whilst this is more often true in respect of the mother (in respect of whom there is a pattern of attendance on the ward early in the morning) there are a number of occasions on which AG experienced episodes consequent upon the administration of alcohol or antihistamine shortly after being in the company of his father.
iii) There is at least one episode, on 30 April 2016, when AG experienced an episode consequent upon the administration of alcohol or antihistamine shortly after him being cared for (and indeed fed and administered 'mouth care') by both his parents.
iv) Having regard to the expert evidence of Dr McKinnon and Dr Ward, there is some evidence to suggest that father was not present with AG at the time the combined evidence of Dr McKinnon and Dr Ward suggest AG was administered alcohol or antihistamine on 27 April, 10 May and 17 May 2016, namely at a point after he was seen to be settled and well very early in the morning on those dates. However, account must also be taken of the caution expressed by both Dr McKinnon and Dr Ward in respect of timing the administration of alcohol and antihistamine, the fact that, as I have already observed, the evidence before the court does not constitute anything like a continuous narrative as to the whereabouts of each of the parents at all times and the fact that there is evidence that the father would, on occasion, visit AG on the ward during the night and early in the morning.
v) Both parents appear to express concern regarding AG being moved from the PICU to Savannah ward, which expressions of concern are followed, on a number of occasions, by AG suffering an episode consequent upon being administered alcohol or antihistamine, thus ensuring that his intensive medical regime is maintained.
CONCLUSION