- This is the judgment of the Court to which each member of the Court has contributed.
- These two cases were listed sequentially since in each application for permission to appeal
two general issues were raised as to the standard of proof to be applied to applications
in care proceedings based upon the allegation that the parent had caused serious harm to
the child and to the impact of the decision of the Court of Appeal (Criminal Division) in R
v. Cannings [2004] EWCA Crim.1 upon such cases.
- In the case of LU which we heard first in time, the child, LU, the subject of the proceedings
was born on the 11th July 2001 and is now two and a half. The mother sought to
appeal the findings by Bracewell J, in a judgment handed down on the 7th November 2002 at
the first (section 31 threshold) hearing, that the mother had been responsible for three
incidents of deliberately imposed airway obstruction suffered by the baby in August 2001
and a further incident in October 2001. The second (disposal) hearing was fixed before Kirkwood
J for the 17thMarch 2004. The applications for permission to appeal, for extension
of time of some 14 months and to adduce further evidence were adjourned by Thorpe LJ to the
full Court. Mr McFarlane QC and Mr Gibbons represented the mother, Miss Vencatachellum for
the father, Miss Rowe QC and Miss Stone for the local authority and Miss Hodgson for the
guardian. We granted permission to adduce additional evidence. We refused permission to appeal
and extension of time. We now give our reasons for our decision.
- In the case of LB, the child, LB, was born on the 28th October 1999. The mother
sought to appeal the finding by Bracewell J on the 10th January 2003 at the first
(threshold ) hearing that she had been responsible for 11 incidents of rigor suffered by
the child between the 25th September and the 1st October 2001. The decision on
the second (disposal) hearing was given by Holman J on the 12th September 2003.
Holman J made a care order and approved a care plan by which LB would continue to live with
her paternal grandparents. The applications for permission to appeal and for extension of
time were adjourned by Thorpe LJ to the full Court. Mr Cobb QC appeared for the mother and
Mr Howard QC and Ms O’Connor for the local authority. The guardian was not represented on
the appeal. We reserved our decision on appeal.
- We invited the Department for Education and Skills to intervene in both cases and it was represented
by Miss Eleanor Grey and Miss Waddicor.
The standard of proof in civil family cases
- Counsel for the mother in each application submitted that the principles set out by the House
of Lords in re H (Minors)(Sexual Abuse:Standard of Proof) ) [1996] AC 563,
had been refined by subsequent dicta in three recent cases. Lord Nicholls in his speech in re
H said at page 586et seq.
"Where the
matters in issue are facts the
standard of proof required in
non-criminal proceedings is the preponderance of probability, usually referred
to as the balance of probability.
This is the established general
principle. There are exceptions such as contempt of court applications,
but I can see no reason for thinking
that family proceedings are, or should be, an exception. By family proceedings
I mean proceedings so described
in the Act of 1989, sections
105 and 8(3). Despite their special
features, family proceedings remain essentially a form of civil proceedings. Family
proceedings often raise very serious issues, but so
do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event
occurred if the court considers that, on the evidence, the occurrence of the event was more
likely than not. When assessing the probabilities the court will have in mind as a factor,
to whatever extent is appropriate in the particular case, that the more serious the allegation
the less likely it is that the event occurred and, hence, the stronger should be the evidence
before the court concludes that the allegation is established on the balance of probability.
Fraud is usually less likely than negligence. Deliberate physical injury is usually less
likely than accidental physical injury. A stepfather is usually less likely to have repeatedly
raped and had non-consensual oral sex with his under age stepdaughter than on some occasion
to have lost his temper and slapped her. Built into the preponderance of probability standard
is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious
allegation is in issue the standard of proof required is higher. It means only that the inherent
probability or improbability of an event is itself a matter to be taken into account when
weighing the probabilities and deciding whether, on balance, the event occurred. The more
improbable the event, the stronger must be the evidence that it did occur before, on the
balance of probability, its occurrence will be established. Ungoed-Thomas J. expressed this
neatly in In re Dellow’s Will Trusts (1964) 1 W.L.R. 451, 455: "The more serious
the allegation the more cogent is the evidence required
to overcome the unlikelihood of what is alleged and
thus to prove it."
This substantially accords with the approach adopted in authorities such as
the well known judgment of Morris L.J. in Hornal v. Neuberger Products Ltd. (1957)
1 Q.B. 247, 266: This approach also provides a means
by which the balance of probability standard can accommodate
one’s instinctive feeling that even in civil proceedings
a court should be more sure before finding serious allegations
proved than when deciding less serious or trivial matters."
- In the first of the cases relied upon by Counsel, the Divisional Court heard an appeal, B
v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, against the
making of a sex offender order under section 2 of the Crime and Disorder Act 1998(the
1998 Act). The justices had found that the defendant was a sex offender within the
meaning of section 2(1)(a) of the Act and that he had acted on a number of occasions
in a way which brought him within section 2(1)(b). Section 2(1) states that, if it
appears to a chief officer of police that the following conditions are fulfilled ….
in subsection (1)(a)
"that the person is a sex offender;" and
in subsection (1)(b)
"that the person
has acted, since the relevant
date, in such a way as to give
reasonable cause to believe that an order under this section
is necessary to protect
the public from serious harm from him,"
then the chief officer may apply for an order under the section.
- Lord Bingham of Cornhill, CJ in his judgment considered the standard of proof to be applied
in that appeal and said at paragraph 31
"In a serious
case such as the present the
difference between the two standards
is, in truth, largely illusory. I have no doubt that, in deciding
whether the condition in section
2(1)(a) is fulfilled, a magistrates’
court should apply a civil standard of proof which will for all practical
purposes be indistinguishable
from the criminal standard. In deciding whether the condition in section 2(1)(b) is
fulfilled the magistrates’ court
should apply the civil standard
with the strictness appropriate
to the seriousness of the matters
to be proved and the implications of proving them."
- We understand from that passage that Lord Bingham was drawing a distinction between the standard
of proof necessary to establish each of the two subsections and that the standard of proof
set out in the speech of Lord Nicholls in re H (above) was appropriate to proving
the facts required for section 2(1)(b).
- In R (McCann and Others) v Crown Court at Manchester; Clingham v Kensington Royal London
Borough [2002] UKHL 39;[2002] 3 WLR 1313, the House of Lords in two appeals was
concerned with section 1 of the 1998 Act in relation to the antisocial behaviour of
three teenage defendants in the first case and one defendant in the second case. The
House of Lords held that applications under section 1 were initiated by the civil process
of complaint and were not criminal proceedings. At paragraph 37 Lord Steyn considered
the standard of proof to be applied in such cases. He referred to re H (above)
and said
"Having concluded
that the relevant proceedings
are civil, in principle it follows
that the standard of proof ordinarily applicable in civil
proceedings, namely the balance
of probabilities, should apply.
However, I agree that, given the seriousness of matters involved, at least
some reference to the heightened
civil standard would usually be necessary: In re H (Minors)(Sexual Abuse: Standard of Proof) [1996]
AC 563, 586D-H per Lord Nicholls of Birkenhead. For essentially
practical reasons, the Recorder of Manchester decided
to apply the criminal standard. The Court of Appeal said
that would usually be the right course to adopt. Lord
Bingham of Cornhill has observed that the heightened civil standard and the
criminal standard are virtually indistinguishable. I
do not disagree with any of these views. But, in my view
pragmatism dictates that the task of magistrates should be made more straightforward
by ruling that they must in all cases under section
1 apply the criminal standard."
- Lord Steyn accepted the principles set out in Lord Nicholls’ speech above; referred to, presumably,
the passage in Lord Bingham’s speech in the Chief Constable of Avon and Somerset Constabulary,
but gave pragmatic advice to magistrates as how to apply the standard of proof in applications
for antisocial behaviour orders.
- In re ET(Serious Injuries: Standard of Proof) [2003] 2 FLR 1205, Bodey J heard a care
application in which the baby had sustained skull, brain and other injuries alleged to be
at the hands of her parents. The judge said at paragraph 2 of his judgment that the standard
of proof was the civil standard of the balance of probabilities and directed himself according
to the principles in re H. He then referred to Chief Constable of Avon and Somerset
Constabulary and to McCann (above) and said at paragraphs 5 and 6, citing the
passage in re H at page 586 adding his emphasis
"…Although the result is much the same, this
[the cogency requirement] does
not mean that where a serious
allegation is in issue the standard
of proof required is higher. It means only that the inherent probability
or improbability of an event
is itself a matter to be taken
into account when weighing the
probabilities and deciding whether, on balance, the event occurred."
So it may very well be that, in looking at these more recent dicta, one is (as
Miss Ball put it) somewhat ‘dancing on the head of a pin’; and no counsel has gone so far
as to submit to me that, in a serious case such as this, it is now the criminal standard
which should in terms be directly applied.
I therefore propose, in applying the civil standard and the re H (Minors)(Sexual
Abuse: Standard of Proof) [1996] AC 563…cogency test here, to have well in mind
the dicta in the latter two cases
just cited. So, whenever in this
judgment I ‘find’ something occurred,
or expressed myself ‘satisfied’
or ‘persuaded’ of some fact or other, it is in the light of
the authorities which I have
just been discussing and on the
basis that, in this very serious
case, the difference between the civil and the criminal standards of proof
is ‘largely illusory’."
Conclusions on the standard of proof
- We understand that in many applications for care orders counsel are now submitting that the
correct approach to the standard of proof is to treat the distinction between criminal and
civil standards as ‘largely illusory’. In our judgment this approach is mistaken. The standard
of proof to be applied in Children Act cases is the balance of probabilities and the approach
to these difficult cases was laid down by Lord Nicholls in his speech in re H. That
test has not been varied nor adjusted by the dicta of Lord Bingham or Lord Steyn who were
considering applications made under a different statute. There would appear to be no good
reason to leap across a division, on the one hand, between crime and preventative measures
taken to restrain defendants for the benefit of the community and, on the other hand, wholly
different considerations of child protection and child welfare nor to apply the reasoning
in McCann to public, or indeed to private, law cases concerning children. The strict
rules of evidence applicable in a criminal trial which is adversarial in nature is to be
contrasted with the partly inquisitorial approach of the court dealing with children cases
in which the rules of evidence are considerably relaxed. In our judgment therefore Bodey
J applied too high a standard of proof in the case of re ET and the principles set
out by Lord Nicholls should continue to be followed by the judiciary trying family cases
and by magistrates sitting in the Family Proceedings Courts.
The Impact of the Judgment in R v Cannings on Children Act Proceedings
- In a criminal trial for murder or manslaughter arising out of a series of sudden infant deaths
a jury is not entitled to convict and a guilty verdict cannot be deemed safe unless a natural
cause of death, whether explained or unexplained, can be excluded as a reasonable (and not
fanciful) possibility. In R v Cannings three of the defendant’s four children had
died in early infancy, although the murder charges related only to two. They had simply stopped
breathing. The two other children had experienced apparent life threatening events taking
a similar form. She was charged with, tried and convicted of murder. The Court of Appeal
(Criminal Division) quashed the convictions. In that case there was no evidence other than
the repeated incidents of breathing having ceased. There was serious disagreement between
experts as to the cause of death. There was fresh evidence as to hereditary factors pointing
to a possible genetic cause. In those circumstances it could not be said that a natural cause
could be excluded as a reasonably possible explanation. The court was at pains to point out
that it was solely concerned with a criminal prosecution. This is how it was put at paragraph
12 of the judgment:
"…If after
full investigation, the deaths
or ALTEs, continued to be unexplained,
and there was nothing to demonstrate that one or other incident had
resulted from the deliberate
infliction of harm, so far as
the criminal process was concerned, the deaths continued properly to be regarded as
SIDS,
or more accurately,
could not properly be treated
as resulting from unlawful violence."
- Both Mr McFarlane and Mr Cobb founded their respective applications on the effect of the judgment
in R v Cannings on family proceedings. Mr McFarlane stressed the following
considerations:-
- The importance of extraneous evidence, particularly where the expert medical evidence
is not unanimous.
- The danger of interpreting the mother’s behaviour as corroborative of guilt, when it
may equally be construed as consistent with anxiety and distress.
- Nothing is proved by the adage that ‘lightning does not strike thrice in the same place’.
The absence of an acceptable alternative explanation does not establish an unnatural
cause.
- The frontiers of medical science are always expanding. A natural cause at present unrecognised
may emerge in the foreseeable future. The exclusion of causes known to medicine does
not therefore justify a finding of abuse.
- The paragraphs in the judgment of the Court in R v Cannings that were particularly stressed
by Counsel for the applicants are 10, 11, 13, 14, 17, 18, 22, 29, 177 and 178. Mr Cobb even
contended that, in cases where there is a serious disagreement between reputable experts
leading to one opinion that natural causes could not be excluded as a reasonable possibility,
then, absent clear extraneous evidence, Part IV proceedings should not be issued.
- Mr Howard for the respondent local authority in the LB case identified three points in R
v Cannings which might have an impact on care proceedings which are dependent,
in whole or part, on expert evidence. They are as follows:-
a) The ‘lightning
does not strike three times in
the same place approach’, coupled
with the building of a case on statistics.
b) The absence
of a satisfactory alternative explanation does not
prove deliberate infliction.
c) Where experts
testify at the frontiers of scientific
knowledge, and particularly where
they disagree in such areas, absent cogent extraneous
evidence, causation must remain unknown.
- However whilst accepting the relevance of those aspects of the judgment in R v Cannings,
Mr Howard was quick to emphasise the distinctions between criminal and care proceedings.
First, the latter are quasi-inquisitorial and the Court’s function is child protection and
not adult punishment. Second, different standards of proof operate in the two jurisdictions.
Third, in criminal proceedings there is a heightened danger of an unjust verdict which cannot
be subsequently analysed. By contrast the judge trying a family case makes findings of fact
in the course of a reasoned judgment which is open to challenge on appeal.
- In a helpful final submission Miss Grey for the Department of Education and Skills directly
considered the application of R v Cannings to family proceedings. She, too,
emphasised the different standard of proof in the jurisdictions, and added that in family
proceedings the extraneous evidence relating to the family context would almost always be
far wider.
- Miss Grey then identified the following aspects in which R v Cannings may resonate
in family proceedings:-
a. The need
to recognise the limits of medical certainty.
b. The dangers
of an over-dogmatic approach.
c. The recurrence
of medically inexplicable events
does not, on its own, entitle
the Court to assume a sinister cause.
d. Particular
care is required in cases involving
a serious disagreement between
medical experts. If a body of expert opinion allows that
natural cause cannot be excluded
as a reasonable possibility, particular caution is required.
e. In care proceedings
surrounding evidence of families’
circumstances is likely to be
as abundant and as probative
as medical opinion. The requirements for cogent evidence may be satisfied by a combination
of the medical
evidence and the extraneous evidence.
- Miss Grey explained the concerns and indeed the confusion widely felt by local authorities
with the responsibilities laid on them by Parts III and IV of the Children Act 1989. They
would welcome some guidance from the Court of Appeal as to the applicability of the decision
in R v Cannings to their statutory duties. In almost all cases where child protection
issues are raised the local authority of the area in which the child is living has to investigate.
Conclusions on effect of R v Cannings on family proceedings
- In family proceedings the procedures and the rules of evidence are different from criminal
trials. In the first place the material available to the court is likely to be much more
extensive than would be admitted in a criminal trial. In the second place the standard of
proof to be applied before reaching a conclusion adverse to the parent or carer is, as we
have set out above, also different. Given a similar background to that in R v Cannings a
judge would be required to ask himself which of two possible explanations, human agency or
unascertained natural cause, is the more probable. If persuaded by clear and cogent evidence
that it was more likely to be the former the court is entitled to reach a conclusion adverse
to the parent or carer.
- In the brief summary of the submissions set out above there is a broad measure of agreement
as to some of the considerations emphasised by the judgment in R v Cannings that
are of direct application in care proceedings. We adopt the following:-
- The cause of an injury or an episode that cannot be explained scientifically remains
equivocal.
- Recurrence is not in itself probative.
- Particular caution is necessary in any case where the medical experts disagree,
one opinion declining to exclude a reasonable possibility of natural cause.
- The Court must always be on guard against the over-dogmatic expert, the expert
whose reputation or amour propre is at stake, or the expert who has developed
a scientific prejudice.
- 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
will throw light into corners that are at present dark.
- There may have been a tendency in some quarters to over-estimate the impact of the judgment
in R v Cannings in family proceedings. The function of the Court in R v Cannings was
to evaluate significant fresh evidence. The Court then had to ask the question : might that
fresh evidence, if available to the jury at the trial, have resulted in a different verdict?
If yes, the Court was bound to declare the conviction unsafe and set it aside.
- Contrast the role of the Judge conducting the trial of a preliminary issue in care proceedings.
The trial is necessary not to establish adult guilt, nor to provide an adult with the opportunity
to clear his name. The trial of a preliminary issue is the first, but essential, stage in
a complex process of child protection through the medium of judicial proceedings. The State,
in the form of the local authority, in order to establish a foundation for intervention in
the life of the family, must satisfy the Court –
"(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 –
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;" see
Section 31 (2) of the Children Act 1989.
- It is for the purpose of satisfying that threshold that the local authority seeks to prove
specific facts against the parent or parents. Only if it succeeds in that task can its application
for a care or supervision order proceed. Thus the preliminary issue of fact constitutes the
gateway to a judicial discretion as to what steps should be taken to protect the child and
to promote his welfare. In those circumstances we must robustly reject Mr Cobb’s submission
that the local authority should refrain from proceedings or discontinue proceedings in any
case where there is a substantial disagreement amongst the medical experts. For the Judge
invariably surveys a wide canvas, including a detailed history of the parents’ lives, their
relationship and their inter-action with professionals. There will be many contributions
to this context, family members, neighbours, health records, as well as the observation of
professionals such as social workers, health visitors and children’s guardian.
- In the end the Judge must make clear findings on the issues of fact before the Court, resting
on the evidence led by the parties and such additional evidence as the Judge may have required
in the exercise of his quasi-inquisitorial function. All this is the prelude to a further
and fuller investigation of a range of choices in search of the protection and welfare of
the children. A positive finding against a parent or both parents does not in itself preclude
the possibility of rehabilitation. All depends on the facts and circumstances of the individual
case. In that context the consequences of a false positive finding in care proceedings may
not be as dire as the consequence of the conviction of an innocent in criminal proceedings.
- So it by no means follows that an acquittal on a criminal charge or a successful appeal would
lead to the absolution of the parent or carer in family or civil proceedings. It is also
worth remembering that the decision of the Court of Appeal (Criminal Division) in R v
Cannings turned on the very particular facts of that case.
- In summary the decision of the Court in R v Cannings has no doubt provided a useful
warning to judges in care proceedings against ill-considered conclusions or conclusions resting
on insufficient evidence. The extent of the retrospective effect remains to emerge. However
practitioners should be slow to assume that past cases which have been carefully tried on
a wide range of evidence will be readily reopened.
- In our judgment the responsibilities of local authorities have not been changed by the decision
of the Court of Appeal (Criminal Division). Theirs is the task to protect the child; to assess
the issues within their competence and expertise; and to rely upon the legal team for the
local authority to advise on the strength and credibility of the medical evidence. They will,
with their legal advisers, continue to prepare applications for care orders in suitable cases
based upon the civil standard of proof as explained by Lord Nicholls in re H. In
our view the decision in R v. Cannings does not affect their responsibilities under
the Children Act.
- We turn now to the facts of the first case.
The background in the case of LU
- The parents were born in England and are Muslim by religion. Their respective families came
from the Indian sub-continent. The father was born in January 1981 and the mother was born
in June 1983. The judge found that the mother had had an unhappy childhood. She came from
a traditional Muslim Asian background and would have been expected to conform to an arranged
marriage. She met the father in March 2000 and formed a relationship unknown to either family.
She became pregnant at the age of 17 and concealed her pregnancy from her mother and other
members of her family. At 8 months pregnant she was thrown out of her home and two days after
giving birth she and LU went to live in the family of the father. She did not know any of
them and despite the father’s family taking her in, there was an atmosphere of disapproval
by the members of the extended family. On the 20th July 2001, the parents went
through a religious ceremony of marriage at a mosque but a civil ceremony has not yet taken
place.
- On the 5th, 14th, 17th August and the 13th October
2001, LU suffered breathing problems whilst alone with the mother and on each occasion was
admitted to hospital. On the first occasion on the 5th August, other members of
the father’s family were in the house, the ambulance was called and the child was admitted
to hospital for checks. On admission the child appeared to be well and was not suffering
from breathing difficulties. Various tests were carried out and she did not appear to be
suffering from any disease or illness. She was discharged home on the 6th August.
The treating consultant paediatrician Dr R considered it to be a one-off episode for which
no explanation was found.
- On the second occasion on the 14th August the mother and LU were alone in the house.
LU was admitted to the same children’s hospital after the mother had called an ambulance.
Tests were again performed but nothing was discovered. The child was discharged on the 16th August.
The next day, several members of the family were in the house and about 11.30 pm the mother
alerted the father’s brother to the condition of the child who was clearly unwell. The ambulance
was called and the child again admitted to the same hospital. Again tests were carried out
and there was nothing unusual. The child was discharged on the 20th August.
- In September LU had a development check and was found to be healthy and progressing well. On
the 24th September 2001, the mother was admitted to hospital having taken an overdose
of drugs. On the 13th October the mother and LU were in the house with another
female relative. Again there was an incident and the female relative called the ambulance.
The child appeared to the ambulance staff to be alert and responsive and there were no unusual
signs. The child was again admitted to hospital but was seen to be well. On this occasion
after discussions with social workers who had been alerted to these incidents, on discharge
on the 26th October, LU went to live with her maternal grandmother with whom she
has remained pending the conclusion of the proceedings.
- There was a further admission to hospital on the 11th November 2001 when LU was
living with her grandmother. On this occasion LU was febrile and was found to have an infection.
The doctors concluded that she had suffered a genuine illness, diagnosed as retroviral enteritis.
- In November and the following January the health visitor assessed the mother and considered
her to be within the range of post-natal depression requiring additional support and monitoring.
- The main issue before the judge was whether the evidence, medical and non-medical established
to the satisfaction of the court on the balance of probabilities that the Children Act 1989
section 31 threshold had been crossed.
The Medical Findings
- The judge summarised the alternative possibilities set out by the medical experts as follows:
that LU probably either suffered induced upper respiratory obstruction or her symptoms were
fabricated or they were described by an over-anxious mother. The judge’s conclusions on the
medical evidence were as follows:
"Drawing together
the strands of the medical evidence,
no natural explanation has been
put forward as a likely explanation of [LU’s] admission
to hospital and the most likely explanation is that
of suffocation.
I find that, on
the medical evidence, [LU’s] presentation is most likely
to be as a result of smothering."
The Non-Medical Findings
- The judge then turned to the non-medical evidence upon which the local authority relied. She
said
"Although the
medical evidence is of very great
importance, it is not the only
evidence in the case. Explanations given by carers and observers
and the credibility of those
involved with the child are of
great significance. All the evidence, both medical and non-medical, has to be considered
in assessing whether the pieces
of the jigsaw form
a clear and convincing picture of what happened and whether
section 31 is satisfied."
- The judge considered the mother’s particular history and how it impinged upon her capacity
to care for her child. She found a number of factors relevant to this mother. The mother
was very young. She had not had a happy background and was in conflict with a physically
abusive brother. She had had no emotional support from either parent and had made an attempt
at suicide in 1998. She had rejected the traditional Asian Muslim approach to marriage and
became pregnant outside marriage at 17 which was a very great shock. She had had to conceal
the pregnancy from her mother and when it was revealed she was rejected by her family. In
the father’s household she lived in an atmosphere of disapproval and had no resource upon
which to rely. She made a second attempt at suicide when the baby was 74 days old after an
argument with the father. She told the doctor that her character had undergone a change after
the birth of the child and she had become irritable, tearful and depressed. She was not allowed
to visit her family nor to go out of the house. She was isolated and unhappy, troubled and
frightened by her rejection by her own family and by the strong disapproval of the father’s
family. The judge found that she was torn apart emotionally by the stress and lack of communication
between the two families. This made her vulnerable. The father was well motivated but did
not appreciate the extent to which the mother needed his support and his absence was a time
of great pressure for the mother. She was unsure of her parenting skills with a difficult
and colicky baby. She was deprived of sleep and was tired and stressed and somewhat depressed.
- The judge found that the father was a truthful witness and so were the members of his family
in relation to the relevant facts. On each of the four occasions when these episodes of breathing
difficulties occurred, the mother was alone with the child but on three occasions other members
of the family were also in the house and gave evidence that the child was unwell prior to
the ambulance being called. The judge said
"If reliable,
the evidence of the four members
of the family is extremely damaging
to the mother’s case because the evidence is of an observed
illness for which there is no medical explanation."
- Counsel for the mother submitted that the evidence of the members of the family was unreliable
but the judge accepted the evidence of the family that the child was ill on each of the three
occasions.
- She also found that the mother’s evidence was not credible where it was in conflict with other
evidence. The judge found that the mother did not give a truthful account of numerous incidents
in which her version was at odds with the professionals and she gave inconsistent accounts,
in particular surrounding the admissions to hospital of LU and the mother’s account of the
baby’s medical condition. On the 13th October she gave two inconsistent versions
as to whether the baby had or had not stopped breathing. On admission to hospital she did
not give an account to the admitting doctor of the baby’s previous health problems until
pressed. The judge found her reaction to be extraordinary in her failure to keep appointments
with professionals.
- The judge concluded that
"There are
many positives to be taken into
account in relation to mother.
She loves her daughter, she is attached to her, she is able to comfort
her. No criticism has been made
of the quality of care and there
is no hint of any neglect of her daily needs. ….But it does appear to
me that father, by reason of
his inexperience of parenting, has failed to spot the signs of stress, and he has underestimated
just how difficult and challenging
was the mother’s position. He
failed to recognise her lack
of ability and her lack of confidence
as a parent.
In conclusion, I find that the combination of medical evidence, the lack of
credibility of the mother and the stresses to which she was subject all compel me to a finding
that, to the standard of proof envisaged by H and R, this mother has on four occasions between
5th August and 13th October deliberately obstructed the upper airway
of [LU] thereby causing her harm which involved hospital
admissions and invasive investigation."
The Appeal
- Before this Court the submissions concentrated primarily upon an attack upon the medical evidence.
Mr McFarlane did not criticise the reliance placed by the judge on that evidence in the light
of the approach of courts prior to the decision in R v Cannings. He submitted however
that, in the light of that decision, this Court should approach the medical evidence in a
different way. The additional evidence he sought to adduce potentially threw a new light
on the medical evidence given at the trial.
The Medical Evidence
- Mr McFarlane’s principal submission was that the three medical experts were guilty of paediatric
dogma in arriving at their unanimous conclusion. He said that theirs was a systemic approach,
elevating an unexplained episode to child abuse on the simple basis of repetition. That approach
was condemned by paragraph 13 of the judgment of the Court in R v Cannings and that
condemnation applies with equal force in family proceedings. Whilst Mr McFarlane did not
attack any of the three experts individually he submitted that the lack of medical disagreement
is of no consequence, given that all three adopted the wrong approach.
- In seeking to make good that submission Mr McFarlane emphasised certain passages in the expert
evidence selected either from their written reports or from the note of the discussion at
their meeting with the guardian ad litem and her solicitor, or in the transcript of their
oral evidence. We will consider the selected passages in relation to each expert in turn.
- Dr R was the treating paediatrician in doctor / patient relationship with the baby. In his
original report he said:-
"The original
referral to Social Work was not
made by myself although I concur
with the reasoning. The basis for the referral is that although
there could be a medical cause
for these 4 presentations of
not breathing, such a number of presentations without medical cause found makes it
more likely that there may well
be a non-medical cause for these and investigation for non-medical causes is as important,
if not more important, than any medical investigation
at this point."
- In his second report Mr McFarlane relied upon the following paragraph:-
"In 4.1, Dr.[D]
has stated that the medical evidence
supports the diagnosis of induced
illness in the form of imposed upper airways obstruction.
It is my opinion that this explanation
of L’s problems is the most likely
and it is hard to think of medical reasons for the reported problems,
although, children with laryngomalacia
and gastro-esophageal reflux, (the two frequently go together), can have similar events
without their being interval signs of upper airway stridor
or recognisable vomiting."
- During the course of the discussion meeting there were two exchanges cited by Mr McFarlane.
The first was as follows:-
"Q – How much
notice would you have taken of the earlier episode which
occurred on the 5th August?
A – A lot, because
as we said it is unusual to repeat
these things. We are all used
to seeing ‘one-offs’ and we could entertain two, but when
we get a second one, in this
situation, you’re working the
statistics out. Also if you get a different presentation, but still within the well-described
area of parents causing problems,
you take a lot
more notice.
So I think people did. . . . One’s grappling with all
of those things but the second
episode on top of the first one
is very important. It is the start of what is the cumulative
effect."
- Later Dr R made this observation:-
"It could be
an innocent cause in the sense
that we see children with this
story the first time they come in, the only time they come in generally.
It is not unusual and we do not
know what causes it and they
don’t do it again. That’s what I meant by innocent. We don’t know
but it’s a one-off.
We come back to
this thing of adding things up
statistically. I think we are
going to come back to this statistic of one plus one, plus one, plus one, plus one."
- There are three passages in Dr. R’s oral evidence criticised by Mr McFarlane. The first was
in chief when counsel invited him to consider probabilities thus:-
"Q – Clearly,
Dr. R, you can only speak from
your experience, but can you
give us any idea of how often you have seen, starting with
two presentations to hospital, similar to [LU]?
A – Starting with a group that presents in that kind of way with a first episode,
I would feel that it is certainly much less than one in twenty of those children that have
anything similar subsequently.
Q – So 5% the second time. What about third or a fourth time?
A – Well, I said less than 5%.
Q – I am sorry. So that is less than 5%, and I go on to say what about a third
and fourth time?
A – It is to some
extent guesswork because we don’t
have the data. We don’t have
the data because, I think, it doesn’t seem to happen. I
suppose in that situation figures
as guesses may be meaningless
and it may mislead the Court if I were to guess in that kind of way."
- His cross-examiner returned to this area in the following exchange:-
"Q – We each
perhaps know from our own experience
of life that coincidences do
occur. Why could there not be a concentration of different
explanations such as have been mooted in this case for
[LU]’s admissions?
A – There could
be. If we knew the specific cause
of each presentation or type
of presentation and you knew how frequently those things occur,
one statistically can work it
out by multiplying one by the
other and coming out with a very large denominator of one in such a big number.
So we could do that but we addressed
ourselves to the balance of probabilities rather than the rare statistical chance."
- We turn to the evidence of Dr. D. To his written report he annexed a chronology of LU’s medical
records with his comments. In relation to the first admission he commented
"The significance
as part of an evolving pattern
of events is obviously far more important as will be
seen."
- In relation to a later admission he commented
"Of course
any child can have a single seizure
without necessarily having corroborating
features, but in isolation this episode is unusual
and as part of a pattern of events it takes on great
significance."
- He said that circumstances surrounding
another admission were a matter
of concern "particularly
as part of an evolving pattern."
- Dr. D’s contributions to the experts’ meeting were particularly criticised by Mr McFarlane.
We set out the five passages complained of in turn.
a) "I
agree. The presence of the three
other episodes changes the probabilities
in relation to the one. We cannot look at them individually.
It is like a child who has four
linear bruises on their face.
You cannot look for four different explanation for each linear bruise because four
of them together
add up to a hand mark."
b) "As
part of an evolving pattern, I would say it was very worrying."
c) "It
is possible that children can
have episodes like this for no
identifiable reason. It is entirely possible that you could take
any episode individually. It
is the accumulating pattern which
makes the diagnosis. No one episode is diagnostic. . . . In probability terms, the
whole history is more
likely to be seen in fabricated
rather than natural illness."
d) "You
have to look at the collective
probabilities. You have to look
at the fact that each event alters the probability of all
the others being due to abuse.
It is the probability overall which is what has to be
looked at."
e) "This
is the reason that we have got
to look at the whole thing as
a sequence and as a pattern of events. The situation on a statistical
argument would mean that any
one piece of information could not be diagnostic. It
is the sequence of events."
- In Dr. D’s oral evidence Mr McFarlane drew particular attention to the fact that at page 6
of the transcript, when asked if four presentations would be highly unusual unless caused
by deliberate airway obstruction, Dr D answered
"That is correct.
The probability tilts very much towards it being child
abuse."
- In answer to the Judge’s question "A differential diagnosis?" he
answered
"That is right.
The history being a crucial part
of that. But I agree with the
inference to the question, there is no specific laboratory test or x-ray or anything
like that one can do."
- Finally we turn to the evidence of Dr. H. In his written report he considered possible medical
explanations for LU’s symptoms, noting that
"many infants presenting with an isolated, brief apnoea will be found to
be healthy on clinical examination and no cause will be elicited." However, having considered
the relevant features he stated "although potentially plausible medical explanations
could be advanced for some individual episodes, there
is no single explanation that unites all the features
of each of the four separate presentations of this child
. . . therefore, having considered the medical evidence
in this case, I have formed the opinion that, on the balance of probabilities,
imposed airway obstruction is the most likely explanation
for the symptoms and presenting features described."
- During the course of the experts’ meetings Mr McFarlane relied on the following three contributions:-
a) "It
is more likely in my view that
there is a common thread that
explains these than there is a separate medical explanation
for every single one of these
events. So if you take them all
individually we get a picture that I think is the wrong way to look at it
– that is my view."
b) "You
could advance the case that reflux
caused all the episodes and was
silent in between . . . on the balance of probabilities
it is fairly unusual for reflux
to be present in this way. On
four occasions with such severe apparent effects on the baby with absolutely nothing
in between, when one has a fit,
healthy and well-fed infant,
this makes it less probable but not improbable."
c) "It
goes to what Dr. R has said about
when the probability shifts so
that the future events do not alter it a great deal. The
probability in my view becomes
high after the second event and it stays high in this
case."
- In the course of Dr H’s oral evidence Mr McFarlane drew attention to passages at pages 5, 9,
14, 16 and 17 of the transcript, the effect of which was to emphasise that for Dr. H the
sequence of the four admissions was highly influential in reaching his conclusion of deliberate
airway obstruction.
- Miss Rowe QC for the local authority and Miss Hodgson for the child pointed to other passages
in the expert evidence which they submitted, rightly in our judgment, demonstrate that, far
from adopting an improper or dogmatic approach, the medical experts offered their opinion
on the foundation of a fair and careful analysis of the relevant medical evidence.
- Dr R, as the treating paediatrician, came to the diagnosis of deliberate airway obstruction
more reluctantly than his colleagues. In his initial report his starting point was that it
was not possible to say whether a non-medical cause as explanation for the episodes was more
likely than a medical cause. However in his second report, having read Dr. D’s opinion, he
conceded that imposed upper airways obstruction was the most likely explanation for LU’s
problems. However he continued:-
"I am not convinced
from Dr. D’s report and my re-reading
of the medical records that [LU]’s
episodes were due to imposed
upper airway obstruction. Although it is the most likely explanation, I think there
is enough
doubt as to make us proceed with
caution in determining the outcome
care for this child and family,
as well as other consequences that might follow."
- At the experts’ meeting, although agreeing in the general conclusion, he demonstrated the
fairness of his approach when he said:-
"I agree with
that. I am not sure if the question
implies that if there is a medical
cause mark it down and if there isn’t a medical
cause then don’t. There is a
third way – i.e. that as doctors
we can find no explanation in our experience or learning background."
- In his oral evidence he was asked the question:-
"Q – During
the course of the experts’ meeting
there were times – correct me
if I’m wrong – where you appeared to display some underlying unease
that the nature of the overall
opinion being expressed of upper
airway obstruction being the explanation for these four admissions. First of all
is that right? Is there in fact
a sense of unease that you feel in relation to this diagnosis or opinion and,
secondly, if that is the case, why?
A – No, I don’t
think there’s any unease with
regards my position with respect
to the summary opinion / diagnosis, no unease at all. Whenever you
get a group of individuals –
doctors are no different than
anybody else – in a room, even if they hold the same views
that are based on good information
they will still have a difference
in emphasis. I think that was just what was
displayed but it didn’t alter the summary of opinion
in any way."
- Dr D has a great deal of forensic experience. In his written report he expressed his conclusion
thus:-
"I have come
to this conclusion with full
regard to High Court rulings
that took the view that allegations of more serious abuse, being
inherently less probable,
should be supported by more compelling evidence than
usual. I am satisfied in this
case that the probability of
induced illness is much greater
than the probability of some as yet unrecognised natural illness or innocent environmental
factor, both
of which I think can be discounted in any practical
sense."
- Furthermore in his oral evidence he demonstrated his awareness of the dangers of founding a
conclusion on statistics. The following exchange anticipates rather than breaches paragraphs
10 – 13 of the judgment of the Court in R v Cannings:-
"Q – Am I right,
Doctor, what you are saying is
with a normal child, a child
who isn’t poorly, it would be highly unusual to get four presentations
but it is not highly unusual
to get four presentations in
a child who might have suffered from some obstruction to their
respiratory?
A – That is correct. The probability tilts very much towards it being child
abuse. Without droning on too much, if I can just draw a parallel with the issue about two
cot deaths which is very widely discussed in the media at the moment and the use of statistics.
Now, I am not a great fan of statistics in those cases because if you have two cot deaths
then the probability of that happening is small but also the probability of abuse is small.
We do know that if you have two cot deaths, the relative probability between that being natural
causes or abuse is roughly 50:50. It is not a huge difference in gradient.
Here we have a baby
with four presentations with
apparently life-threatening events,
no medical diagnosis, who is well in hospital, events had
occurred to one person and all
the other features I have listed
in my report. The probability is far, far to the right of 50 per cent; it is very typical
of imposed
airway obstruction"
- Later in his oral evidence Dr. D explained his route to conclusion in the course of three answers
towards the conclusion of his evidence in chief as follows:-
"As we have
all said and we agreed in the
experts’ meeting, the diagnosis
is based on the pattern of events over time and not on any one
incident. We have all agreed
that you can take any one snippet
of information out of this and find an innocent explanation for it. The overall
pattern remains, that this is
unlikely to be the result of unexplained natural disease and far more likely to be
the result
of child abuse."
"As I said
earlier, the diagnostic process
is detailed history, examination
and physical signs. I would say this is not simply a diagnosis
of exclusion: there are clear
features here to support the diagnosis of fabricated
or induced illness."
"Yes, it is
very difficult to construct any
hypothesis, one natural disease
explaining all four episodes. You would probably have to look for
two or three different kinds
of natural disease, all of them
self-limiting to account for the different episodes, and medically that falls into
the realms of being quite
far-fetched."
- Equally Dr. H demonstrated his essential premise in his written report in these terms:-
"Although potentially plausible medical explanations could be advanced
for some individual episodes, there is no single explanation that unites all the features
of each of the four separate presentations of this child."
- He continued:-
"Therefore,
having considered the medical
evidence in this case, I have
formed the opinion that, on the balance of probabilities, imposed airway
obstruction is the most likely
explanation for the symptoms
and presenting features described. This does not preclude the possibility
that an unsuspected disease may
present itself at a later stage but I have formed my opinion on the basis of currently
available evidence."
- During the course of the experts’ discussion there was a question:-
"How could
the presentations observed been
induced deliberately? What actions
would have been required of the perpetrator over what period of time?"
- The first paragraph of Dr Henderson’s answer was particularly relied upon by Miss Hodgson in
her submissions. It is to this effect:-
"Well the common
fact is that the episodes could
have been induced by obstructing
the child’s airway, so that she was going blue. This
could have accounted for all
of the presentations. This may
be so even though they may differ mechanistically."
- During the course of his oral evidence the following passages were relied upon by the respondents:-
Q –"Would
it be fair – and correct me if
I am wrong about this – you have
looked at the whole picture of all four admissions and then
gone back and considered each one as well?"
A – "I think
that is fair. Part of that process
is to look at the possibilities
that were considered by the medical team caring for [LU]
at the time and to consider whether
or not there may be some other
possible explanation for these events that was or was
not considered in those possibilities.
Therefore it is important to
consider each one in its turn but also to put it into the context of the subsequent
events.
So indeed you are
quite right that we have to look
at each one in its turn. But
also, more importantly, in trying to reach an explanation for these
events, we have to consider
them in the context of there
having been other events which were more or less similar to the first."
"So as
a clinician there is no doubt
that one has to take each event
on its merits and try to formulate some sort of idea of what might
have caused that specific presentation.
However, when one is reviewing
a case like this, one has to then put these into context. So, as I was saying
before, the probabilities may
change as time goes by. I have the advantage of being able to see all four events
whereas the doctor seeing the
second event did not have that
advantage. So the interpretation
that we put on that particular event will naturally vary by our experience of subsequent
events."
"So I think
we have to acknowledge that there
are instances where despite intensive
investigation there may be underlying pathological
disorders that are not brought
to light. That is why I made
my concluding statement that I could not discount the possibility that something of
that nature may present itself
at a later stage. But
again, as I stated, it is really
in medical terms trying to look
at a balance of probabilities between various potential explanations
for a sequence of events."
Q – "So far
as the primary basis of your
opinion is concerned, it appears
to be that, in the absence of a medical unifying explanation, you are
reluctant to look at, in terms
of probability, a combination of different medical explanations
of these presentations?"
A – "I wouldn’t
use the term reluctance. I have
very carefully considered all
the possible explanations I can think of and have reached a hierarchy of probabilities
based on my experience, my reading of the medical literature
and my reading of the case."
- The passages emphasised by the appellant, together with the passages emphasised by the respondents,
give a fair flavour of the totality of the approach of the experts and the route by which
they arrived at their conclusion. In our judgment the charges that they were dogmatic, or
that they adopted an unprincipled approach, or that their work requires critical re-appraisal
in the light of the judgment of the Court in Cannings are not made good. The judgment
in R v Cannings establishes that a case of murder is not to be proved, in the case
of a sequence of three unexplained infant deaths in one family, by the submission that lightning
does not strike thrice in the same spot. But this is simply not such a case. Here the medical
experts, and ultimately the Court, had to determine the causation of four worrying episodes
affecting the same child within a relatively brief space of time. The doctor’s method of
assessing causation is in our judgment not open to serious criticism. Indeed, any other method
would probably invite error. Whilst each episode had to be judged in isolation, no less important
was a judgment on all four episodes in their sequence and in their pattern.
- Equally we do not accept that the experts arrived at their conclusion by a process of elimination
of possible innocent explanations that justify the ultimate adoption of a malign explanation.
Mr Cobb helpfully supplied us with the definition of differential diagnosis extracted from
a guide published by the American Medical Association. It is:-
"Differential
diagnosis is the method by which
the clinician considers the possible
causes of a patient’s clinical findings before making a final diagnosis."
- It would be hard to think of a less contentious proposition. It amounts to no more than the
earliest stage of what must be an elaborate process of evaluation in a complex case such
as this.
- At its conclusion the experts did not suggest that their explanation was certain, but only
that it was established on the civil balance of probabilities elevated to recognise the gravity
of its consequences.
The Additional Evidence
- The parents have very large extended families, most of whom live in the Indian sub-continent.
We were asked to admit additional evidence which was provided at a very late stage of the
appeal process, comprising a history of the maternal and paternal families. The family tree
is incomplete, sparse in detail and unverified. It appears from the statements of members
of the families that up to 30 children have died in infancy over an unspecified period of
time. The accounts are largely taken from the grandparents. All but one of these children
died abroad. The medical causes of the deaths are not set out, nor even dates and places
of where the children lived or the surrounding circumstances. There are no medical records
or other documentary evidence to support these accounts. We were informed that a tiny percentage
of births of children are registered in the other jurisdiction.
The Expert appraisal of the additional evidence
- The three medical experts were asked to comment on the additional evidence and both Dr H and
Dr D commented on it at length. They both noted that the evidence of infant death within
the extended family is derived from oral reports from LB’s grandparents. The circumstances
and causes of the reported deaths were not substantiated. Both observed that the rate of
infant mortality in the country where all but one of these infant deaths were reported to
have occurred was approximately twelve times the rate of infant death mortality in the United
Kingdom. Dr D made the further points that:
A proportion of the reported deaths appear to have occurred several decades
ago when infant mortality rates in the country in question were as high as one in seventeen.
Therefore the number of reported infant deaths does not appear significantly greater than
the norm for that country.
Infant deaths are reported to have occurred in unrelated arms of the extended
family, reducing the likelihood of a unifying hypothesis of a genetic condition.
- Both Dr H and Dr B concluded that the additional evidence did not call for a revision of their
opinion that on the balance of probabilities LU was the victim of imposed airway obstruction.
Dr R, in a brief report, also states that his opinion was unchanged by the additional evidence.
However he favoured further investigation and suggested that the experts should remain open
to the possibility that further investigation might require reassessment of the fundamental
conclusion.
- Although the deaths of so many children is extremely sad for the families, the circumstances
of those deaths are uncertain; the availability or otherwise of medical facilities is unclear
and there may well have been varying social conditions for these families. The picture is
incomplete, lacking in the most basic detail and it would not be possible for its relevance
to LU to be properly assessed. We do not consider that this evidence with its obvious inadequacies
can tip the balance to a degree sufficient to render necessary a further investigation of
the unanimous medical evidence. The views of the medical experts is strong support for our
conclusions that the additional evidence provided by the mother has not been demonstrated
to be likely to have an important influence on the result of the case if it had been raised
before the judge.
- We therefore concluded that a rehearing was not warranted on the basis of the additional evidence.
- We have not taken into account the further factor that this evidence could have been made available
for the hearing before the judge.
- There was also the issue submitted by the mother that LU had developed asthma since the hearing
before Bracewell J, information said not to be known to the experts at the time. We were
however informed by Miss Rowe that this development was referred to in the mother’s written
evidence and was considered by the experts at their joint meeting.
- For the above reasons we are satisfied that no criticism can be made of the medical evidence
in the case of LU. The judge was entitled to rely upon it, as she did, in order to come to
her conclusions.
The Non-Medical Evidence
- Mr McFarlane did not seek to challenge the findings of fact made by the judge in respect of
the non-medical evidence but criticised her reliance upon those findings to support the medical
evidence and in forming her conclusions. He submitted that there was more than one interpretation
of the mother’s emotional vulnerability, and not only a sinister one. It was submitted that
there was no other evidence of concern than the incidents requiring admission to hospital.
- The local authority and the guardian submitted that the non-medical evidence was important
and the unchallenged non-medical findings of the judge significantly contributed to her ultimate
conclusion that the child would be at significant risk in her mother’s care.
- In our judgment, the judge was entitled to take into account the history of the mother, her
two attempts at suicide, her estrangement from her own family, her lack of support and her
vulnerable situation in the household of the shocked and disapproving paternal family. The
judge found that she was not frank with the court and there were a number of important discrepancies,
carefully listed by the judge, between the evidence of the professionals and that of the
mother. Clearly the judge was entitled to take into account her lack of credibility in particular
in relation to the factual situation about the baby’s health. This was highly relevant since
on each occasion she was alone with the baby when the incident occurred and her version of
events could not be relied upon. It was significant that on each of those occasions the father
was away and she was under strain.
- These are all important supporting elements in the jigsaw put together by the judge. As the
judge said, the unanimous medical evidence and the surrounding circumstances, the stresses
to which the mother was subject and her lack of credibility pointed strongly to her conclusions.
Bracewell J directed herself correctly on the standard of proof and the guidance given by
Lord Nicholls in re H and delivered an impeccable judgment. For those reasons we refused
permission to appeal and extension of time.
- We now turn to the case of LB.
The background to the case of LB.
- The mother was born in 1971. Her previous history before meeting the father was set out by
the trial judge who found that she had had recurrent throat and nose bleeds in 1987 and 1988,
considered by the psychiatrist to whom she was referred to be self-inflicted. The mother
conceded at the hearing that they had been self-inflicted. In October and November 1988 she
was treated for bruising and swelling of the left wrist and hand which appeared genuine to
the treating doctors but were later proved to be self-inflicted.
- The father was born in 1966. They met in 1989 and lived together until they parted in 1992.
The mother commenced training as a nurse in 1991 and subsequently qualified as a paediatric
nurse. She gave birth to a child, MEB, by another man in 1995 from whom she parted soon afterwards.
She re-established a relationship with the father in 1997 and MEB was adopted by them on
the 7th September 2001, shortly before the events the subject of these proceedings. In 1997
the mother was employed as a paediatric nurse in the local hospital. In July 1998 their first
child and the mother’s second child, MAB, was born. The parents married in May 1999.
- LB was born on the 8th October 1999 with certain disabilities. Prior to the birth
the mother was suffering from depression and was prescribed anti-depressants. The mother
discharged herself and LB on the 31st October but they were readmitted because
of feeding difficulties for LB. On the 7th December LB was admitted to hospital
since she was failing to thrive, in particular, failing to put on weight and concerns were
raised about the mental health of the mother. LB put on weight in hospital and was discharged
after two weeks to her mother’s care. She again failed to thrive and was readmitted to hospital
on the 9thJanuary 2000. At this time the mother was recorded as depressed, with
thoughts of suicide and of self-harm. On the 20th January the mother and LB were
admitted to a psychiatric unit. The mother was suicidal. She viewed LB as damaged and evil.
The baby’s weight on admission to hospital was below the fourth percentile and after two
and a half months at the unit she had improved to just below the 75th percentile.
The mother discharged herself against medical advice on the 31st March because
she did not wish to be admitted to the psychiatric unit. The mother also said that she did
not want to be separated from the baby since, if separated she would not want the baby back.
After their return home the baby’s weight fell again.
- On the 11th April 2000 the health visitor and the social worker visited the home
and the mother said that she felt unable to cope. She said that she had not bonded with LB
and it felt as if she was looking after someone else’s baby. On the 15th April
LB was admitted to hospital after the mother said she had become dizzy and had fallen backwards
on to LB who appeared to have suffered no injury. The mother said that she was ill and felt
differently about LB than about her other two children. Towards the end of April the social
worker visited the mother who referred to LB as evil and that part of her wished that LB
had been hurt so that she could have time out from caring for her. She said that she did
not feel bonded with LB and resented her for causing the mother ill health. The mother had
made a drawing of LB as a devil.
- LB was readmitted to hospital on the 28th April, her weight having fallen below
the 25th percentile. Two nurses gave evidence that they could see into the cubicle
where the mother was feeding LB while she was in hospital and that they saw her watering
down the milk in the bottle she gave to the child. LB should have been fed with full strength
milk.
- On the 5th May the mother failed to attend a child protection conference and LB’s
name was placed on the child protection register. The parents appealed against the registration.
At a reconvened case conference later in May 2000 the mother’s mental health had steadily
improved and the consultant paediatrician considered that no child protection issues arose.
LB’s name was removed from the register. The mother returned to work on the paediatric ward.
- On the 5th October 2000 the mother took an overdose of paracetamol and was admitted
to hospital where she refused medication, threatened to run away and was sectioned under
the mental health legislation and transferred to a psychiatric unit. She was discharged on
the 23rd October following an appeal and an assessment. In November she told her
general practitioner that she felt panicky towards the baby; felt physically ill when she
fed her; that LB’s face was not right and looked like a Picasso picture. On the 5th January
2001 she told the psychiatrist that she had thoughts of self-harm and she was readmitted
to the psychiatric unit for 10 days. She declined the offer of help from a family care worker.
By the end of April the mother’s health had greatly improved and she returned to work. The
social services closed the case file in May 2001.
- In the third week of September 2001 LB was not well and the general practitioner referred her
to the local hospital. She was admitted as an in-patient and remained there until she was
transferred to Great Ormond Street Hospital for Sick Children on October 1st 2001
for investigation. During the 6 days at the local hospital LB suffered 11 episodes of rigor
with potentially life-threatening consequences. The treating consultant paediatrician became
concerned and suspicious about these incidents since the hospital was unable to identify
a cause for any of them. He directed that a close watch should be kept on the mother and
on LB prior to the transfer to Great Ormond Street. The mother was not working on the ward
during the period of LB’s admission (though LB was in fact, during her admission, a patient
on the ward on which the mother routinely worked).
- LB had a cannula attached to her while she was in the local hospital which was disconnected
by the mother before the child went to Great Ormond Street. No further cannula was inserted.
LB suffered no further rigors at Great Ormond Street although she remained unwell. She recovered
and returned to the local hospital on the 5th October. At a further child protection
conference LB’s name was placed on the child protection register under the category of physical
injury. LB has not returned to live with her parents and sisters. The parents agreed to LB’s
voluntary accommodation and she lived from the 18th October 2001 until the 14th July
2002 with her great grandmother. On the 25th May 2002 the judge found that she
probably suffered another rigor which began in the absence of her mother. LB now lives with
her paternal grandparents under a care order made by Holman J on the 12th September
2003.
- The judge divided the evidence into three sections, the medical evidence, the credibility of
the mother and the opportunity and knowledge of the mother to act as alleged by the local
authority. Having referred to the Department of Health guidance on ‘Safeguarding Children
in Whom Illness is Fabricated or Induced’, she said
"It seems to me that it is entirely inappropriate to try to shoehorn the
mother into a particular syndrome instead of ascertaining what actually happened. The question
to be addressed is not: "Does mother fit any definition?" but instead: "Has
the local authority proved that the mother deliberately injured her child?" I do not
find labels helpful at this stage of the inquiry in determining
the crucial issues. Thus the relevance of mother’s previous
history of self-harming and depression is not in respect
of any issue of labelling but is to credibility and the
history of her commitment to her child."
The medical findings
- We set out the medical findings of the judge later in this judgment.
The non-medical findings
- The judge held that the mother had been present or nearby on each of the 11 occasions when
the child suffered rigors.
- The judge found that there were many positives in respect of the mother. After her depression
was cured all the witnesses spoke of a good relationship between the mother and LB and no
one observed any behaviour which might have given cause for suspicion. Many of the nurses
questioned the opportunity for the mother to injure the child. One matron thought it unlikely
but possible. The other matron thought it was impossible. The social workers found the mother
to be co-operative and spoke of high quality contact between her and the child. They trusted
the mother to comply with local authority plans. The wider family spoke highly of the mother’s
quality of care for LB and other witnesses spoke of a warm and loving relationship. Neither
of the other two children had ever been the subject of care proceedings or of any concerns
of the local authority.
- The evidence was that the mother suffered from an uncommonly severe depression. Her general
practitioner, Dr W, who had been so since the birth of LB was clear that the mother did not
always have insight into her condition; was reluctant to accept help when she needed it;
insisted on breastfeeding which was unsuccessful and was unable to give LB sufficient attention.
The judge found that the improvement of the mother’s health which enabled her to return to
work in June 2001 was short lived and illness again overtook the mother.
- The judge found that it was plain from the evidence that LB was not an easy baby to care for
by reason of her illnesses and her various disabilities. The judge said
"I find that
these recurrent and genuine illness
of [LB], combined with mother’s
recurring depression, were not a happy combination."
- The judge considered it to be significant that on the 21st November 2000 when Dr
W saw the mother, the mother was in floods of tears, feeling frightened, panicky towards
LB and feeling physically ill when she fed her. This was the occasion when she said that
LB looked like a Picasso picture. The judge said
"At this time
I am satisfied that there was
a real rejection of [LB] by mother,
which was unobserved by Dr B, who thought that the relationship
was good at this time."
- Dr W was concerned as to how the mother might behave towards LB and she wrote in her notes
"It seems she
is still able to be angry and take advantage. She
continues to baffle me."
- The judge found that the mother had had a conversation with Dr W in which she admitted causing
recurrent bleeding to her gums, a conversation which the mother denied.
The credibility of the mother
- The judge assessed the credibility of the mother. She set out in detail the circumstances in
which the mother lied or exaggerated. The judge said
"Mother is
undoubtedly a skilled and persistent
liar, who over the years has
sought to and succeeded in conning doctors, teachers and family
in respect of illnesses which
she claimed to be genuine but
which were self –induced. She has wasted hospital resources and submitted to
procedures she knew were unnecessary…
The lies led to significant admissions to hospital with extensive tests…
In effect, at this time [1987-1988] her whole life revolved round a deceit.
It is significant that the professionals have found her plausible and sensible until the
truth was discovered and she was unmasked.
The truth was that
she was attracting attention
by manufacturing symptoms and
complaining when she was not believed and when she protested her genuineness."
- The mother contended that the incidents were as a result of her unhappiness as a child and
that she had been frank and that the history was irrelevant to the present proceedings. The
judge found that
" However,
I am satisfied that the extent
to which mother admits anything
depends upon her own perception of the best presentation of her
case. She cannot any longer deny
the self-harm, because it is
well documented, but I find she did lie to the social services team manager, and to
Mr S, the social worker, when she denied using a knife
to cut her forearms.
I find mother does
manipulate events in order to get what she wants."
- The judge then set out examples of manipulation, such as an occasion when the mother wanted
a hospital bed and when it was refused she took an overdose; the incident on the 15th April
when she exaggerated an injury to LB in order to get the child admitted to hospital and to
give her some rest from the child. On an occasion in November 2001 she went to the wrong
department for a gynaecological consultation and in order to get attention repeatedly said
that she had a child who was dying.
- The judge was impressed by and accepted the evidence of a friend of the family, Mrs N, who
cared for LB on occasions and who described the mother as appearing to seek attention and
to exaggerate. Mrs N observed that the mother was very negative towards LB until the May
case conference when the mother was spurred into determination to prove that she had recovered.
The judge considered that the evidence of Mrs N that the mother was increasingly obsessed
to prove that LB’s failure to thrive was not due to the mother’s illness but by reason of
the illness of LB was very telling. Mrs N also expressed concern about the mother’s inadequacy
in preparing suitable meals for LB and in feeding her, whereas Mrs N did not find LB difficult
to feed. Eventually Mrs N complained to the authorities about the care of LB by her mother.
The judge held that Mrs N had a better view of what was happening to LB than the professionals
since she saw it at first hand.
- At the incident of the 25th May
2002 when the child was in the
care of her great grandmother
and suffered a rigor, the judge
held that the reaction of the mother when she realised that LB was suffering a rigor
was significant.
She did not call an ambulance
and her concern was her own self-protection
and not concern for the welfare
of the child. When the child was taken to a doctor, she did not give any
previous history of the child’s
medical problems and stated: "It was not for me to diagnose." This
answer the judge found to be
extraordinary and wholly inconsistent
with any real concern for LB.
The judge’s view was that a concerned parent would have told the doctor
what had happened in the past and that the child had
previously suffered from rigors.
- The judge’s assessment of the mother was
"I find mother
an unimpressive witness who did not tell the truth about
many aspects."
Opportunity and knowledge
- The judge pointed out that the rigor attacks in September 2001 always commenced when the mother
was on or about the ward and some around shift handovers. Although the mother and child were
supposed to be observed, it was not close or strict and some nurses did not know why they
were supposed to monitor her. The mother was a colleague. The judge held that the nurses
did not monitor closely and surveillance was minimal. The mother had access to all parts
of the ward and the judge was satisfied on the totality of the evidence that the mother had
the opportunity and the knowledge to insert some substance into the cannula.
- The judge considered that the incident of the dilution of the milk feed on the 28th April
2001, which the mother strenuously denied, was important in the context of the situation.
The mother knew there was the threat of an emergency protection order. She had earlier said
she wished the child had been hurt on the 15th April so she could have the child
admitted to hospital. She was according to the judge in a desperate emotional state, on anti-depressants
and to use a colloquialism ‘at the end of her tether’. The judge said that
"I find that
it was very much part of her
agenda to show that [LB’s] problem
was organic as opposed to neglect."
- The judge did not accept that the failure to thrive was the result of a milk intolerance and
that any intolerance to quantities of milk was exaggerated by the mother in order to demonstrate
illness. In relation to the issue of the removal of the cannula prior to the transfer to
Great Ormond Street there was a stark conflict of evidence between the mother and nurse in
charge, Nurse W. The judge had no hesitation in preferring the evidence of Nurse W. The judge
found that the mother removed the cannula without permission; that she knew she should not
have done so, and would not have been given permission if she had asked. The judge found
that the mother had lied to the court about the removal of the cannula.
- The judge also said that the mother had an agenda of wishing LB to be ill and gave the instance
when, on the 17th September 2002, the father told Mrs T that his wife got bees
in her bonnet and was angered by the fact that LB was well.
- The judge carefully set out her conclusions as follows
"To summarise
the factors which cause me to
reach my conclusions that to
the appropriate standard and burden of proof the local authority
have demonstrated that mother
deliberately interfered with the cannula of [LB], I find
the following factors.
1. On several occasions [LB]failed to thrive in the care of mother for non-organic
reasons, and was neglected by insufficient food intake and attention when, in contrast, she
thrived in hospital. A telling description of [LB] at one of her stays in hospital is that
of an anorexic waif.
2. The relationship between mother and [LB] before May 2001 showed not only
a lack of bonding and resentment of the child, but indeed rejection of her.
3. Mother has a history of lying and deceiving others in respect of herself
over a substantial period of time.
4. Mother’s agenda to demonstrate [LB]was ill, to divert blame from herself
and her tendency to exaggerate.
5. The absence of any rigors prior to the insertion of the cannula.
6. The presence of mother on the ward around the time of the rigors with opportunity
and necessary knowledge how to interfere with and contaminate the cannula.
7. The frequency and severity of the rigors with no medical explanation to
account for them naturally.
8. The absence of rigors at Great Ormond Street when no cannula was inserted.
9. The incidence of feeding diluted milk in April 2000, the attempt to get
[LB]’s admission to hospital on April 15th 2000, the exaggeration of milk intolerance,
the removal without permission of the cannula on October 1st 2001, and the reaction
to events on May 25th 2002.
10. The evidence of [Mrs N].
11. The conclusion of Dr S and Dr. M that the most likely explanation for the
rigors is deliberate interference with the cannula in the absence of any medical cause.
12. My findings of lack of credibility of mother and my rejections of her explanations.
In those circumstances, I find the threshold criteria are established to the
appropriate standard of proof in the following respects.
1. [LB] suffered
non-organic failure to thrive from birth until May 2001
2. Mother deliberately administered some unidentified infected substance to
[LB], thereby causing the rigors which were potentially life threatening while [LB] was in
hospital between September 25th and 1st October 2001. In consequence
thereof, [LB] has suffered significant harm within the
meaning of s.31 of the Children Act, and I find the threshold
criteria are made out by the local authority."
The Appeal
- On appeal, Mr Cobb challenged the conclusions of the judge on the medical and on the non-medical
evidence. He did not seek to challenge the judge’s findings as to the credibility of the
mother.
The Medical Evidence
- The judge described the medical problems of LB in the following terms.
"All the doctors
have found this a difficult,
complex and puzzling case. Medically,
[LB] is an unusual child, as agreed by all the experts.
She has a chromosome abnormality.
She is of dysmorphic appearance,
with some deafness and delay in speech. She has a general
development delay, a tongue-tie,
a lesion on her palate and some
webbed toes. She has had numerous episodes of chest infections, blepharitis, recurrent
styes, otitis externa, otitis
media, with oozing and pussy
ears. She has suffered from skin
rashes and infected spots which
are not typical of eczema. She has had oral thrush, a
suspected cow’s milk intolerance,
asthma, spiking temperatures
and overnight sweats. Questions
arise for determination whether at all, and if so to what extent, these pre-existing
conditions
can be or are relevant to the rigors suffered by [LB]."
- The medical evidence in this case was as complex and as controversial as could be conceived.
Rigors are rare, yet LB experienced no less than eleven during six days of admission to the
local hospital; she suffered from the genetic abnormalities set out above; she suffered a
further rigor six months after the critical six-day admission which could not possibly have
been caused by her mother. In these circumstances the available expert evidence was divided,
only two of the six experts called concluding, on the balance of probabilities, that the
rigors had been induced by LB’s mother.
- How then did the judge deal with this most difficult of issues? This was her stated approach:
-
"The evidence
falls into three sections. 1,
the differential diagnosis of
[LB’s] symptoms, which depends on the medical evidence; 2, the
opportunity and knowledge of
the mother to act as alleged by the local authority;
3, the credibility of mother."
- She set out her views of the medical experts. They were all distinguished in their field, some
with a narrow expertise. They were agreed that the most likely cause of rigors was infection.
There was agreement that other suggested causes were extremely unlikely. She set out in detail
the differences in the opinions of the doctors to which we refer in more detail below. Dr
S was the jointly appointed expert instructed to give an overview. He was a consultant in
child health and the expert chosen by the mother. Dr M was one of the treating consultant
paediatricians at the local hospital. Dr B was a community paediatrician and the other treating
consultant. The judge found that her evidence was sympathetic to the mother, rather trusting
of her and rather defensive, nor was she provided with the full information. The judge found
that Dr B’s objectivity was to some extent compromised.
- Dr K was a consultant in infectious diseases. The judge found that he stressed that he was
commenting purely on the medical facts and ignored all the social factors.
- The judge found that Dr Sp, a consultant in clinical genetics, did not express any clear opinion
on the disputed issue nor did Dr F, who was a professor of forensic toxicology.
- The judge reviewed the medical evidence in some detail without stating any clear conclusion.
However she had impliedly signalled the way she was going when early in her judgment she
had said: -
"However, concentration
on a very narrow area of expertise
can sometimes render it difficult
for the expert to see the whole
picture. It is for that reason that I find Dr S is best placed to view the overall
picture."
- Dr S was one of the two doctors to hold the mother responsible for the rigors, the other being
Dr M.
- Another indication of the judge’s leaning is to be gleaned from her review of the subsequent
rigor of 25th May 2002. Dr M had conceded in cross-examination that, if LB indeed
suffered a rigor on 25th May,
"I think it
would knock my view in respect of imposed illness."
- However the judge stated that she preferred the view of Dr S that the rigor on May 25th
"did not inform
as to the cause of the earlier rigors."
- At the conclusion of her review of the medical evidence the judge offered the following summary:
-
"The conclusions
of the medical evidence considered
in isolation from other areas of evidence are as follows:
1. All experts
agree that infection is the most likely cause of the rigors.
2. All known
natural conditions have been
eliminated or are extremely unlikely
in identifying the cause, despite very extensive investigations.
3. Dr S and
Dr M opine that deliberate introduction
of infection via the cannula
is the most likely cause of the rigors but they cannot identify the substance.
4. The other
experts cannot suggest any cause
as more likely than any other
and do not know what caused the rigors."
- There is nothing in that fair summary to support a judicial conclusion that the mother had
caused the 11 rigors. It is only when the judge had completed her review of the second and
third sections of the evidence that the judge summarised
"the factors
which cause me to reach my conclusions
that to the appropriate standard
and burden of proof the local authority have demonstrated
that mother deliberately interfered with the cannula
of [LB]."
- We have set out the twelve factors above. Numbers 7 and 11 relate to the first of the judge’s
three sections of the evidence, that is to say the medical evidence.
- In his skeleton argument supporting his grounds of appeal Mr Cobb QC mounted a convincing critique
of the judge’s elevation of a controversial medical opinion into a judicial finding. The
fallacy of the judge’s finding was evident from her initial adoption of the doctor’s differential
diagnostic approach. This submission was considerably expanded in his supplementary skeleton
argument, which reviewed the transcript of the oral evidence of the experts analytically
and in detail.
- The evidence of Dr S and Dr M revealed
that both relied substantially
on "extraneous and
circumstantial" evidence to arrive at their conclusions. Yet even that reliance did
not bring them to more than a "marginal" opinion.
- Two quotations from Dr S suffice: -
(a) "All this
is postulation, that is all that
you can say about it. There is
no clear objective evidence that faeces were injected, I was just postulating
for the court on what mechanisms could be involved."
(b) "I think
it marginally comes down on the
situation that it is more likely
than not that this was fabricated illness…there was never any evidence
to show that the mother was seen
to do anything, and that is important
because in most of the cases I have dealt with there
has been that evidence."
- Both Dr S and Dr M accepted that there were considerable difficulties with their postulations.
Dr S had originally suggested that the mother had injected LB with water contaminated with
faeces but in his oral evidence he withdrew that hypothesis. Accordingly Dr S conceded
"I do accept that there was that inherent problem with my proposition that
this was faecal".
- Likewise Dr M accepted that his own
"theory causes
problems…all the theories leave cause for doubt."
- In consequence it is hardly surprising that Dr M conceded that
"no cause
for this very serious illness was determined."
- The experts who were of the contrary opinion were Dr’s K, B, Sp and F. The judge’s conclusion
that Dr B’s views were unduly favourable to the mother were fully reasoned and must stand.
Dr Sp and Dr F were highly specialist in their respective fields which were not predominantly
engaged. By contrast Dr K’s field of speciality was particularly engaged. Dr K alone had
had previous experience of a case of faecal administration, but it did not follow the pattern
of LB’s rigors. That led Dr K to the following important conclusions encapsulated in the
following quotations from the transcript: -
"So it comes
back to my major point, that
again I think I have said right
the way along that it doesn’t fit neatly with a bacterial infection,
it doesn’t fit neatly with
a viral infection, it doesn’t
fit neatly with a drug, it doesn’t fit neatly with injecting material."
"None of it quite fits together with any one story".
"It doesn’t quite fit neatly with anything".
"I don’t think it fits well with anything".
- Of great importance is the fact that Dr K’s expertise in this vital area was unmatched by that
of any other medical witness. Both Dr S and Dr M deferred to Dr K on issues relating to the
physical manifestation of a child who had been injected. Dr S emphasised that he was a general
paediatrician and that he was not a toxicologist. He said:
"I wouldn’t
argue with Dr K …as I have said
in my evidence in chief, I don’t
have personal experience in dealing with those cases."
- To like effect was the evidence of Dr M who said repeatedly that he was not an expert on the
topic and that difficult questions would have to be addressed to Dr K to whom he would defer.
Indeed he accepted that the hypothesis of faeces as the likely agent for bacterial infection
was speculation on his part.
- In offering an overview Dr S looked
not just at the critical six
days of life threatening illness
but also at the mother’s medical history at large, including
the episodes of self-harming
and the later episodes of psychiatric illness. It was
from this wider picture that
Dr S drew the circumstantial
factors that supported his conclusions.
However Dr S conducted only a paper review. He did not examine either LB or the mother.
Accordingly he posed a problem
for the judge when, in the course
of his oral evidence, he suggested
for the first time that
his assessment was incomplete without a psychiatric component.
He said that in his experience
of other difficult cases he had
been accustomed to working in
conjunction with a child psychiatrist "such
as Dr David Jones". This development led to an investigation of the possibility of obtaining
a forensic psychiatric opinion but when that proved impossible
without an unacceptable delay, the judge, inevitably
and without dissent, directed that these aspects were
to be confined to assessment of the mother’s credibility
and commitment to LB.
- In dealing with this development the court may have been influenced by the well known decision
of Wall J in the case of Re: CB and JB (care proceedings: guidelines) [1998] 2FLR
211 in which he formulated guidelines for the conduct of preliminary hearings. Wall J dealt
with psychiatric assessments at 217H in the following terms: -
"(iv) Evidence
of propensity or psychiatric
or psychological assessment of
one of the parties is unlikely to be of any assistance in resolving
a purely factual issue. There
will in any event be before the
court evidence from the Local Authority and the parents relating to the history
of the case and the backgrounds
of each of the parents. A psychologist or psychiatrist instructed to undertake an assessment
of a parent for the first stage
of a split hearing is unlikely to have a complete knowledge
of the facts.
(vi) Furthermore,
such a witness may, as here,
express opinions as to propensity
or as to responsibility for a child’s injuries which are
both prejudicial and wrong. The
assessment of adult credibility
as to the responsibility for a child’s injuries (often the critical factual issue)
remains
the function of the
judge. In my judgment, therefore,
a psychiatric or psychological
assessment of the parties should
not be permitted at the first stage of a split trial unless the particular
facts of the case demonstrate
that such evidence is or is likely to be directly relevant to the factual issue
to be tried."
- The preparation of the case that Wall J considered fully merited the judge’s stricture and
no doubt at that time warning against the unnecessary introduction of psychiatric evidence
at the first stage of split trial was very necessary. However, as Wall J himself recognised,
there will from time to time be complex and seemingly insoluble factual questions for the
resolution of which the trial judge would be assisted by a psychiatric or psychological assessment
of a possible adult perpetrator or of the wide family dynamics.
- Given the direction that she had given as to the relevance of such psychiatric evidence as
there was, in our judgment, the judge fell into error in bolstering her ultimate conclusion
with the 7th factor. The frequency and severity of the rigors in themselves proved
nothing. The absence of medical explanation to account
for them naturally was equally probative of nothing.
To leave out extraneous factors and to conduct a purely
scientific analysis provided only negative conclusions.
As Dr K said repeatedly "nothing fits".
If nothing fitted there could be no positive conclusion.
- The 11th factor revealed
precisely the same fallacy. Dr
S and Dr M could not ultimately
rationalise their conclusion of deliberate interference by pointing
to "the absence
of any medical cause", since even as experienced general paediatricians their knowledge
and experience of medical cause is inevitably incomplete. Had Dr S and Dr M restricted themselves
rigorously to "the medical evidence considered in isolation from other areas of evidence" they
could not have convincingly advanced the opinion which
they did. Of course the judge had a wealth of other evidence
to assess but in, at that stage, restricting herself
to the medical evidence in isolation, the only tenable
conclusion was that the rigors were inexplicable and unexplained.
- In our judgment it is clear that the eleven rigors which L suffered in those six September
days defied the knowledge and experience of all six experts summoned to explain them. Four,
led by Dr K, could find no scientific explanation to fit all the established circumstances.
Two, led by Dr S, postulated an explanation of deliberate interference. But the postulation
rested partly on the foundation that science had no answer and partly on extraneous circumstances
culled from the mother’s medical history.
The Non-Medical Evidence
- In our judgment, for the reasons set out above, the medical evidence taken alone was not sufficiently
cogent to be relied upon to pass the test of balance of probabilities in accordance with
the principles set out in re H. Although the judge fell into error in relying upon
the evidence of Dr S and Dr M as part of her findings, she was entitled to take into account
that there was no natural or medical explanation for the rigors and to assess the weight
and credibility of the non-medical evidence. The judge paid particular attention to the non-medical
evidence and relied upon the other 10 factors, set out above, in order to come to her conclusion
that the local authority had made out its case that the threshold required by section 31
had been crossed.
- It is clear that the mother could not challenge the findings of fact made by the judge and
her assessment of the credibility of the mother nor did Mr Cobb seek to do so. The judge
found the mother to be a liar, that she exaggerated events and manipulated them in order
to get her own way. The mother suffered from a very serious pre and postnatal depression
during which she rejected her baby. She described LB as damaged and evil; she felt ill when
she fed her and resented the baby causing her ill health; she felt she was looking after
someone else’s baby. In April 2001 she diluted the milk in the bottle when the child had
been admitted for failing to thrive and weight loss. Although the psychiatric evidence was
that the mother had recovered from depression by May 2001 and the local authority closed
the file, the judge made findings that the mother continued to lie, to manipulate others
and to divert blame from herself. She deliberately removed the cannula from the child before
the transfer to Great Ormond Street. The mother’s reaction to the rigor suffered on the 25th May
2002 and her failure to take the normal steps of a concerned mother undoubtedly raise question
marks. As late as September 2002 the father said that she wanted the child to be ill and
was angered that she was well. The judge found that the mother had the opportunity and also
the knowledge to introduce a harmful substance into the cannula attached to her child. The
totality of the evidence, all of which is admissible in family proceedings, is relevant and
cogent. The judge was clearly entitled to rely upon it in coming to her conclusions.
- Having found the facts set out above, the judge made a careful self-direction which cannot
be faulted. In our judgment this Court cannot say that the non-medical evidence was not sufficient
for the judge to conclude that the mother had been responsible for the rigors suffered by
the child between 25th September and 1st October 2001.
- We therefore grant permission to appeal and extension of time. We dismiss the appeal.