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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 748
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ON APPEAL FROM THE FAMILY COURT AT BRISTOL
HIS HONOUR JUDGE MARSTON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LADY JUSTICE SHARP
|In the matter of A-S (Children)|
Ms Susan Hunter (instructed by South Gloucestershire Council) for the local authority
Ms Charlotte Pitts (instructed by Humfrys & Symonds) for the children's guardian
The second respondent (father) appeared in person
Hearing date : 17 June 2015
Crown Copyright ©
Sir James Munby, President of the Family Division :
The undisputed facts
"He describes seeing M waiting "calmly and quietly" in the garden of her address. She was holding L in her arms over her left shoulder. "The female was so calm that I felt that the detail given by control may have been wrong". They went into the house into the conservatory area and he had a closer look at L. "I saw that he looked awful, his skin was pale his eyes had dark areas below them and were closed and his lips and mouth were dark in colour. I felt that this baby was clinically very unwell". He asked for the child to be put on the sofa and examined him. He was wet, unresponsive, his eyes were rolled back, he had a faint pulse and he was not breathing. M told him about leaving L in the bath for 5 minutes and then finding him drowned and that she had got some water out of him. He ventilated L who brought up some water. M, on his request, got L's red book then asked "he will be alright"? He replied "he is very poorly". She became "instantly hysterical" "the very opposite of how she had been previously". She also attempted to grab L off the sofa. He asked her to stop and she began to pace the room. He had put L on his left side to allow fluid to drain and he began to breath himself then he wheezed and stopped breathing, so he worked on the child again. L then brought up more water and started to cry, he was breathing with a notable wheeze by now. Colleagues then arrived and arrangements were made to take L to hospital. By this stage he was struggling to breathe on his own and was responding to treatment."
As the judge went on to say, it was the paramedic, Dean Mahoney, who by his skill and good work saved L's life.
The recording of the 999 call – what can be heard?
The expert evidence
"Normal baby vocalisations are clearly heard at approximately 49 seconds, 1 minute 25 seconds, 2 minutes, 2 minutes and 15 seconds, 3 minutes and 10 seconds, 4 minutes and 5 seconds, 5 minutes to 5 minutes 50 seconds, 6 minutes and 11 seconds, 6 minutes and 31 seconds, 7 minutes and 24 seconds, 8 minutes … till 9 minutes, and 9 minutes 56 seconds. Normal baby vocalisations included polysyllabic babble and normal multi-tonal crying.
During this first ten minutes there are no audible respiratory sounds that might suggest recent drowning, such as coughing, grunting, wheezing or inspiratory stridor (noisy breathing on taking a breath).
The initial sounds heard on the recording of the baby's 'voice' are not compatible with recent drowning requiring resuscitation by the mother at home. There are no sounds of any form of respiratory distress, indeed the polysyllabic babble and crying sounds do not indicate the baby is in any immediate physical distress."
They conclude that:
"Essentially there is a disparity between the history given by the mother, the "auditory history" given by the baby in the course of the 999 call and the clinical findings on the arrival of the emergency services."
"He says if you ignore the content of the 999 call M's description of immersion, apparent respiratory arrest, gradual recovery after rescue breaths and presentation to paramedics after 10-15 minutes wet, cold and in respiratory distress but responding well to oxygen with an eventual good recovery is in keeping with the pathology of near drowning. If the child was not in respiratory distress and apparently vocalising normally for an infant of his age ie "well", the description of a very unwell infant, cold, quiet and collapsed raises the question why there has been a significant and sudden deterioration in his condition. In his report the doctor puts two possibilities, either it is a complication of the immersion or "there has been a further episode of immersion causing L to collapse". In his conclusions he says the baby would not usually be normal for 10 minutes prior to a sudden deterioration but the consequences of near drowning are complex and variable and there are pathophysiological mechanisms which merit consideration by paediatric clinicians."
"A single episode of drowning occurring before the recorded 999 call … is not compatible with the sounds contained within that recording."
"L can be heard to vocalise and cry normally during the first 8 minutes and 40 seconds of the recorded 999 call without any sign of respiratory distress. During this period I am confident that he was conscious, 'near normal' and not in any need of resuscitation."
The judgment – the written judgment
"Diana Howlett … is a consultant paediatrician of 20 years. She and two of her colleagues of similar experience, Dr Goldsworthy and Dr Linton, who had been asked to listen to the recording of the call. Her report is at G87. Putting its contents very simply all the three doctors say there is a disparity in their view between the history given by the mother (the child had been found drowned a few minutes prior to the phone call) and the "auditory history" of the child on the call, ie the crying and other sounds L was making in the first 10 minutes of the call and his presentation when medical help arrived at the house. They concluded that they can hear the sound of running water after 10 minutes and the explanation is that it is at this point the child is being drowned. In their written submissions Mr Ekaney QC and Miss Evans ask me to treat this evidence very carefully. The doctor said in cross-examination "we were asked to give an opinion but none of us would consider ourselves experts in this area. It raises more questions really". I do not intend to put any significant weight on this evidence. They heard what they heard, the baby appeared to be crying while mother was shouting things like "don't die", "stand up", and in particular "wake up, wake up" when from the noise he was making he appeared to be awake. I have to say I heard that too."
"He qualified 22 years ago and has been in paediatric intensive care for 14 years and sees 4 or 5 children who have drowned each year. He says … that he is familiar with the pathology of drowning and frequently cares for children who suffer respiratory distress and who suffer respiratory arrest due to other mechanisms. He is attacked for the limited number of reports he does for court and for example having to ask what the standard of proof was in the Family Court. Let me make it clear he is in my view a properly qualified expert with appropriate experience."
"His view is the vocalisation of the child for the first 8 minutes 40 seconds of the 999 call is normal and without any sign of respiratory distress. It is not consistent with a recent submersion that would subsequently lead to respiratory arrest. Nor are the sounds made by L in the first 5 minutes 40 seconds consistent with a child drifting in and out of consciousness. Between that time and 9 minutes 29 seconds there is no sound save for one scream by Mother. Then the baby is heard again grunting and coughing then in further respiratory distress and suddenly stops breathing at 10 minutes 48 seconds, the state he was found in by Mr Mahoney at 21:47."
"There are in his opinion 2 possible explanations, either a drowning takes place in the 49 seconds between 21:43:28 and 21:44:17 or there is an atypical development of one of the pathological processes which may contribute to a deterioration in the respiratory status of patients who have previously made an apparent full recovery following an episode of drowning … he examines the possibilities that might cause such a deterioration and discounts them. Then … he concludes that L's respiratory distress and arrest is caused by his having been drowned during the interval of 49 seconds between 21:43:28 and 21:44:17. Later in the report he says the likelihood of drowning prior to the phone call is very small (less than 5%). He is criticised for that as being a classic example of the over dogmatic and definitive expert. Anyone who remembers the Cannings case knows that trying to import mathematical calculations into this area is not helpful but if the doctor had just said "very small" I cannot see how he could be criticised and I do not see this as a flaw in his report. I have read the points set out [in] the Mothers closing submissions. The point which concerned me is that Mr Mahony sees the recovery and collapse in the few minutes he is treating the child, yet the doctor says a collapse pre-999 call recovery and second collapse at the time when Mr Mahony arrives is extremely unlikely. The point is made that what Mr Mahony saw was a child in and out of consciousness which was consistent with the child post the drowning in the bath. The doctor was asked about this that what Mr Mahony saw was all part of the same event. Certainly the time span is much shorter here than it would be with a collapse prior to the call and a second collapse on Mahony's arrival. Also the doctor has, in his opinion, worked through and discounted any causes for such a second collapse in this long time frame."
"I now turn to consider the final part of [the] jigsaw, M's evidence. She deploys a number of powerful points before she even gets into the witness box. First there is the inherently unlikely nature of the allegation that a mother would drown her own child. Her father, for example, thought such a possibility here as absurd. That does not of course change the standard of proof but it is something I must have strongly in mind when considering the case. Next there is something called the wider canvass. Here I am dealing with the loving, kind mother who it is said was without external stressors and who gave a consistent account throughout. I do not agree on the external stressors point as I already have found she was in a violent relationship with someone she expressed fear of on several occasions. Only a month before she had been ringing the police about the baby being taken (obviously by S). As to the consistency of her account, that I will consider in a moment. However it is right that there is no evidence of psychiatric problems or of drink or drugs (save for one passing comment in a police report of her home smelling heavily of cannabis). Mr Ekaney QC and Miss Evans highlight these points and I take them into account."
"In cross-examination the details of the events in the house after the drowning were continually made vague by M. Her account in the interview was continually contradicted by her account in the witness box. Did she turn off the stove or did she just take the pan off? What happened to the burned food? Where did she administer CPR? I do not propose to go through this in detail but there was a very indistinct picture. On the other hand the broad outline was maintained. She said she was roaring at the baby to keep him from going unconscious but could not explain why the child was heard crying while she was shouting at him to wake up and so on. Her explanation for the lies in the hospital was frankly ludicrous – she was lying because she was afraid her parents, from whom she was already alienated, might find out she was not training to be a doctor, something they already knew. I remind myself of the direction in R v Lucas, that just because you lie about one thing it certainly does not mean you lie about another thing. In the context of care cases, as Mr Justice Baker said, people tell lies for a number of reasons the important question is why is M lying not just to me but to the police and most of all to the doctors at a time when clarity and the best information about every issue could be vital for L's recovery? I found earlier that she had lied over the other findings to conceal the truth of her relationship with S. I find here that she is lying to the doctors to give herself a reason for not staying on the line on the 999 call. She had medical training so she was best placed to deal with L without advice. Was there some other reason why she went off line? What about her vague and contradictory evidence about what she did alter finding L. Is that because she is describing a series of events that did not happen? Why is she lying about why she lied, what is she trying to conceal?"
"The medical evidence all points in the same direction. The baby was normal until about 8/9 minutes into the 999 call. There is no reason related to an earlier drowning incident that would cause the post 10 minutes in collapse. The Mother's evidence of what happened is not substantiated by any external matters eg a pan of burned food or a full baby bath, there is some evidence of what might be brown flecks of faeces in the bath but no other bit of the Mother's story is supported The Mother's evidence is shot through with so many lies and so much vagueness that I am forced to conclude she is trying to hide something. The only thing that she can possibly be attempting to hide is that there was no incident of drowning in the bath and that she is responsible for attempting to drown the child after 8 minutes and 40 seconds of the phone call for about 47 seconds. Most likely this was under the tap in the conservatory. I cannot speculate on why she made the call in the first place or why she did what she did. It seems to me that at the point where she seeks reassurance from Mr Mahony that the baby will be alright and he says the child is seriously ill she becomes hysterical because she realises what she has done. It may be that she did not intend to kill the baby. Until the mother tells the truth we are left with speculation.
I find [the] allegation proved on the balance of probabilities."
The judgment – the clarification
"With regard to the 999 call I have to conclude that the 999 call was instigated for a reason I can only speculate about, and I do not think it is appropriate for me to speculate. My finding is that at the start of that call the child had not been subject to an incident of drowning. I made that finding specifically on all of the evidence that I heard; the medical evidence; the evidence from all of the parties who gave evidence; and the witnesses that were called. I do not know why the mother was distressed during the first part of the call. She was certainly at the time of the arrival of the paramedic in a calm condition, and became distressed – in fact hysterical according to the paramedic – after she was told, as I pointed out in my judgment, the condition of her baby was very serious. I rely on the totality of the evidence about the 999 call. I gave only marginal weight to the three paediatricians who were not jointly instructed experts and who, one of whom in Mr Kenny's cross-examination, conceded that they were only again marginally connected with the case. I obviously give a great deal more weight to the jointly instructed experts, and I have listened to the call myself and read the transcript."
"With regard to Dr Playfor's expertise I comment that he is a properly qualified expert, related to the expertise in the area of drowning in children. The context of my comment was in relation to the attack on his experience and understanding of his task made during cross-examination by leading counsel for the mother. The totality of the evidence and listening to the tape drew me to the conclusion that during the first part of the tape I am listening to a child who is not in the condition that the mother said he was in. I do not know why she was roaring at the child. Certainly for the first half of the tape it was not to prevent him from going unconscious as a result of drowning, because as I have found there had been no such drowning incident. With regard to my comment, "mostly under the tap in the conservatory," that is not a finding of fact. There are several possible explanations as to where the incident took place. I am not in a position to make a finding about them. My use of the expression, "most," does not in any way suggest that I have made a finding on that point on the balance of probabilities. There are a range of possibilities. Perhaps I unwisely allowed myself for a moment to go into the grounds of speculation and patently where the incident took place had no effect on my findings in this case."
"the judge was fully entitled to place substantial weight upon the sound of an apparently well and vocal child [L] during the bulk of the 999 call which, on admissible expert evidence, was incompatible with a child who was unresponsive following a period of drowning and which was also incompatible with the state of the child subsequently upon attendance by the first paramedic."
Following an oral hearing on 2 January 2015, Lewison LJ gave permission.
The grounds of appeal
i) First, during the first nine minutes or so of the recording one hears what Dr Howlett and her colleagues described in their report as "Normal baby vocalisations" including "polysyllabic babble and normal multi-tonal crying." Equally important is what one does not hear: coughing, grunting, wheezing or other sounds of respiratory distress.
ii) Secondly, the layman's impression is confirmed by expert opinion: what can be heard is not compatible – the words used both by Dr Howlett and her colleagues and by Dr Playfor – with a previous drowning.
Put very simply, a baby who presented as L did to Mr Mahoney when he arrived, would not have been vocalising, indeed would not have been capable of vocalising, as L was during the first nine minutes or so of the recording, if he had drowned before the 999 call was made.
Lord Justice Elias :
Lady Justice Sharp :