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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Z, Re (Infant Fatality) [2024] EWHC 618 (Fam) (18 March 2024) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2024/618.html Cite as: [2024] EWHC 618 (Fam) |
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Reading District Registry
B e f o r e :
(SITTING AS A JUDGE OF THE HIGH COURT)
____________________
| In the matter of; Re Z (Infant fatality) |
____________________
Andrew
Bagchi
KC
and Mr Tom Wilson (instructed by A Local Authority Legal Services) on behalf of the local authority applicant.
Mr Simon Miller and Mr Alex Perry (instructed by Jackson West) on behalf of the mother.
Mr Mark Twomey
KC
and Mr Jonathan Adler (instructed by Brethertons) on behalf of D.
Mr Michael Trueman and Lorraine King (of Trueman's Solicitors) for the child through his guardian, Simon Smith and subsequently Helen McMullen
Hearing dates: 8, 10, 15, 16, 17, 22, 23, 24, 26 January and 6 And 18 March 2024
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Crown Copyright ©
HHJ MORADIFAR:
a. On 11 May 2022, the mother and D left A home alone for a significant period.
b. Later, during the same day, A died whilst in the care of D due to lack of adequate supervision or, in the alternative, the court is invited to find that D has failed to give an honest or full account of the circumstances of A's death and that he continues to mislead the court.
c. D was cruel and abusive towards A, B, and C.
d. The mother has failed to protect A, B and C.
e. Both the mother and D have been unwilling to work openly with professionals, and
f. D and the mother intended to flee the jurisdiction of this court before Z was born.
The law
a. A 'Lucas' direction which is formulaic in nature must not be included in a judgment as a 'tick box exercise.'
b. Such a direction is not called for in every family case.
c. Such a self-direction may be called for if there is "an established propensity to dishonesty as determinative of guilt … Conversely, an established propensity to honesty will not always equate with the witness's reliability of recall on a particular issue".
d. If such a self-direction is called for, it is good practice "to seek Counsel's submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt."
Background
Analysis and evidence
KC
and Mr Adler submit that, notwithstanding the parameters of the interview, the significant failures to comply with the said guidelines bring into serious doubt the reliability and veracity of the children's account. The ABE Guidelines are not an absolute rule that must be followed rigidly, but departure from them can lead to important evidence being contaminated or otherwise deemed unreliable.
Bagchi
KC
and Mr Wilson, by D's own evidence, A was left unattended for a continuous period of fifty-five to sixty-five minutes. Between 14.06 and 14.16, D's attempts at resuscitating D were unsuccessful and he decided to drive D to the nearest accident and Emergency Department. He is seen carrying A to the car at 14.16:50 hours and driving out of the parking area at 14.19.24 hours. D explained that the time he spent sitting in his car was used to look up the nearest hospital having already decided that it would be quicker to drive A than to wait for an ambulance, though he later called for an ambulance whilst driving to the hospital.
a. There were no signs of subarachnoid haemorrhage, contusions, lacerations, or internal bleeding on the brain.
b. A's measurements in a foetal position are broadly compatible with being trapped in the bedside cabinet.
c. There was no evidence of a physical assault, but this does not exclude the possibility of A being placed in the cabinet by a third party.
d. A had abrasions to his forehead and back that appear to have been sustained around the time of his death.
e. The pattern of injuries was compatible with forceful movements against the inside of the bedside cabinet but does not exclude other explanations such as a third party attempting to extricate him, attempts to extricate himself or terminal seizure activity when in a morbid state.
f. There were no toxicological contributors to A's death.
g. The medical cause of death is positional asphyxiation consequent on A's entrapment in the bedside cabinet.
35. Mr Twomey
KC
and Mr Adler submit by reference to a number of authorities, that the court is not obliged to search for a finding; if the court is left in doubt, then the local authority has failed to prove its case and the less relevant facts are known the more likely it is that the court will conclude that the burden of proof has not been discharged (Graves v Brouwer [2015] EWCA Civ 595). They remind me of the inherent risk in "a systematic consideration of possibilities leading to no more that a conclusion regarding the least unlikely cause …" (Milton Keynes Borough Council v Nulty & others [203] 1 WLR 1183). They further remind me of the helpful warnings by Theis J against 'hindsight bias' and 'outcome bias' (Re J and E (A Child) EWHC 2400) quoting from 'Improving the Quality of Serious Case review (June 2013).
Bagchi
KC and Mr Wilson raise a number of concerns about the attitude of the mother and D. These include the mother's lack of engagement with D's actions; the conduct and treatment of the three oldest children, including the events leading to A's death; the mother's inability or unwillingness to engage with the allegations that B and C have made; and D's general conduct that includes the inconsistencies in his evidence. They also point to D's inconsistent accounts, honesty, and lack of insight into the scale of his neglectful parenting. In my judgment, these are entirely well founded and justified observations of the conduct and attitude of these two adults.
Conclusion
a. Paragraphs 1 – 4 of the local authority's threshold statement is satisfied.
b. The facts supporting the threshold finding are:
i. A lived in a home where his care was not given adequate priority.
ii. On 11 May 2022, the mother and D left A at home alone without any regard for his safety or wellbeing. A was three years and eight and a half months old.
iii. Neither the mother nor D have given a consistent or reasonable explanation for leaving A alone.
iv. Later, on the same day, in the afternoon of 11 May 2022, when in the notional care of D, A died from positional asphyxia and/or cardiac arrest caused when he became shut or locked inside a bedside cabinet which toppled over.
v. A died as a result of the gross neglect of D who was not supervising A properly or at all for significant periods of time that day such that A was able to climb into a bedside cabinet from which he was unable to escape on his own.
vi. The marks and injuries found on A's body are consistent with his struggle to free himself from the cabinet.
vii. Between October 2020 and February 2022:
- D was cruel and abusive towards the B and C by making them stand in the corner of the room facing the wall and on at least one occasion placing them in stress positions (arms raised) for long periods of time as a form of punishment, and
- Behaved entirely inappropriately by covering A's mouth with his hand to stop him crying.
viii. The mother was aware of D's conduct towards the three children and failed to protect the children from the abusive behaviour set out in vii., above.
ix. The mother does not accept that A died as a result of the gross neglect of D, nor does she accept that D acted in a cruel and abusive manner towards B, C and A.
x. The mother and D have not worked with the applicant authority and other professionals in an open and honest way.
xi. The mother and A intended to relocate to China prior to Z's birth to avoid the involvement of child protection agencies or these proceedings.
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