A County Council v AB and Others

Hearing dates: 5 October 2015 to 22 October 2015

The judge gives leave for this judgment to be reported in this anonymised form. Pseudonyms have been used for all of the relevant names of people, places and companies.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by his or her true name or actual location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Introduction

In the late evening of 28 April 2014 or the early hours of 29 April 2014 F died. He was 61 days old having been born on 27 February 2014. The circumstances in which and how he died are the subject of the fact finding element of this composite final hearing.

F's mother is AB, she was born on the 19 July 1996 and is 19 years of age. His father is CD, he was born on 26 November 1992 and is 22 years of age. They now have a daughter, E, who is the subject of these care proceedings brought by the local authority, A County Council, on 16 January 2015. E was born on that date and so she is 9 months old. She was made the subject of an interim care order on 4 February 2015. She was then placed in the care of her paternal grandparents with whom she remains living.

Findings of Fact Sought

The local authority invites the court to make the findings of fact set out in the Final Schedule of Findings Sought dated 21 September 2015 namely:

a) Prior to his death, F sustained an injury in the form of bruising to his right forearm which is compatible with a human bite and which was not caused accidentally or during resuscitation. It resulted in immediate and continuing pain. This injury was inflicted upon him.

b) Between 2 and 12 hours before he died, F sustained 3 fractures to his anterior left 2 ^nd, 3 ^rd and 4 ^th ribs as a result of significant compression applied to the front of his chest. The force applied was beyond normal handling. These factures were caused non-accidentally in that they were inflicted upon him.

c) Prior to his death, F sustained bruising to his chest and a bruise to his right wrist. These injuries were caused by the application of inappropriate force and were inflicted upon him.

d) For the avoidance of doubt, the injuries described at paragraphs 1 – 3 above were caused by culpable trauma.

e) F died on or around 29.04.2014 whilst in the care of his parents. The mode of death was asphyxia. It is asserted that F's airways were deliberately obstructed, during which process he sustained numerous facial abrasions.

f) Either AB or CD is responsible for causing the injuries described above and for deliberately obstructing F's airways.

g) The person not so responsible failed to protect F from the other. Neither parent has told the truth about the events of the 28 ^th– 29 ^th of April 2014.

h) In the alternative, and in circumstances were the court is unable to identify the person responsible, both AB and CD are in the pool of possible perpetrators.

In summary the local authority contends that the totality of the evidence supports a conclusion that F died as a result of an asphyxial event and that the perpetrator was either his mother or his father. Further, it submits that the evidence conclusively demonstrates that the non-perpetrator parent was aware of and/or collusive in circumstances which led to F's death and that he or she failed to protect him.

The parents each contest those principal findings. They each deny harming their son or doing anything which caused his death. They each deny being aware of anything untoward occurring in the family home on 28 or 29 April which could account for the injuries found on F's body on post mortem examination or his sudden death.

The guardian has properly taken a neutral stance but has nevertheless tested the evidence in cross examination and sought to assist the court in evaluating the written and oral evidence.

The Parents

Throughout my consideration of this case I have borne well in mind that both of the parents are very young and are very inexperienced as parents of a young baby.

I accept the well founded submissions made on behalf of both of the parents that I should take into account and give considerable weight to the following matters:

a) F was a much wanted and much loved child;

b) Up to the 28 April 2014 his parents' care of him had been excellent and no health professional who came into contact with the family had any concerns about F's care nor his progress;

c) He was a well and thriving baby save for the episodes of colic from which he suffered from time to time. The parents had appropriately sought medical advice about his colic and treated it as advised;

d) The family home was clean, ordered and tidy;

e) There were no episodes of domestic violence;

f) When the maternal grandmother visited the parents and F on the late afternoon of 28 April she had no concerns about F or about either parent; all appeared to be well;

g) It is evident from the recording of the 999 call made in the early hours of 29 April that both parents were in a state of distress and found the process of undertaking cardio-pulmonary resuscitation difficult;

h) An analysis of 4000 pages of the parents' mobile telephone records disclosed no untoward, sinister or suspicious communications between the parents before and after F's death;

i) Similarly a relatively short lived period of covert surveillance of the parents by the police disclosed no untoward, sinister or suspicious discussions between them.

All of these powerful factors are part of the wider context of this case and I bear them in mind when evaluating the totality of the evidence I have had placed before me.

Further, it was submitted by counsel on behalf of both parents and, in particular on behalf of the mother, that the parents have not been treated fairly during these proceedings. I do not understand the factual or evidential basis for such an assertion. I am in no doubt, whatsoever, that the parents have been treated entirely fairly and courteously throughout this hearing. Moreover, I do not understand why it was raised that the parents may have been disadvantaged by their youth, social background and/or lack of income. There is, in my judgment, no factual or evidential basis for suggesting the same and I find that neither have been so disadvantaged.

It was asserted by counsel for the parents that the parents were unfairly and/or inappropriately cross examined by leading counsel for the local authority. I entirely reject that assertion. The parents were cross-examined politely but rigorously as the facts, evidence and the very serious issues in this case demanded and required. Had I taken the view that the cross examination was breaching the boundary of fairness, I would have intervened. I did not. On the contrary I found the cross examination to be a most useful exercise. When the parents asked for breaks in their evidence, their requests were immediately granted at whatever stage in their cross-examination.

I was reminded by counsel for the parents that I should guard against reversing the burden of proof. I have done so. The parents' case is that F was always in the care of one or, more usually, both of them. It is one matter to reverse the burden of proof, it is quite another to expect and require the parents to give a clear account of the last hours of their son's life in their home.

Background

The mother and the father met in 2012.

The father has another child, G, who was born on 22 March 2008. Her mother is AG. The relationship between the father and AG ended in April 2009. G was later found to have sustained injuries in her mother's care, for which the father could not have had any responsibility, and she was the subject of care proceedings. She now lives with her paternal grandfather.

F was born fit and well albeit that he was delivered by caesarean section ('C section'). For the first two weeks of his life he was breast fed but then the mother decided it was best to bottle feed him. Initially F slept in a Moses basket in the family living room with his mother and father. The mother slept on the sofa because she was recovering from the C section scar. F later slept, during the day in his own room and, at night, he slept in the parents' bedroom, first in the Moses basket and then in a cot.

The routine decided upon by the parents was that the mother would feed and be responsible for F during the night time and the father would feed and be responsible for him during the day time. This arrangement was arrived at principally because the father was 'not good' at waking during the night.

On 11 April 2014 F was admitted to hospital having been unsettled and not having fed for 9 hours. He was diagnosed with colic and was prescribed medication. When seen by midwives and/or health visitors, especially on 15 April and 24 April, he was noted to be a thriving and well cared for baby with no concerns recorded about him at all.

On 27 April HI, the mother's step grandmother, visited the family and...