A Local Authority v B (1st Respondent) C (2nd Respondent) a Child, D, through her Children's Guardian, (3rd Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 29 January 2014 |
| Neutral Citation | [2014] EWHC 121 (Fam) |
| Court | Family Division |
| Docket Number | Case No: DJ13C08192 |
| Date | 29 January 2014 |
[2014] EWHC 121 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: DJ13C08192
and
and
All parties were represented by solicitors and counsel
Hearing dates: 21 January 2014 – 7 February 2014
Judgment Approved Anonymised
D was born on [a date in] 2012 at a hospital in England. She was born with multiple ailments and diseases. As a result she has spent her entire life in hospital. A very full report by a consultant paediatrician, indicates that D suffers, or is suspected to suffer, from, inter alia, sublugotic stenosis, chronic lung disease, cerebral palsy, visual impairment, epilepsy, sickle cell disease inherited from her parents, aspiration pneumonia, and gastroesophageal reflux. As a result she has suffered multiple cardio-respiratory arrests, is fed naso-gastrically and has undergone both insertion of a central line and a tracheostomy through which she is continuously administered oxygen — she is oxygen dependant. She will require 24 hour intensive care even upon discharge from hospital.
The local authority commenced care proceedings on 7 August 2013 following an incident at about 08:15 on 2 July 2013 when it was suspected that at the hospital D's mother deliberately switched off D's oxygen supply
Following the incident the mother was arrested on suspicion of attempted murder, interviewed under caution with an interpreter, and she provided a DNA sample for the purposes of forensic examination. The police have completed their investigation and do not intend to charge the mother. They based their decision on the mother's denials that she had touched the oxygen tap; the absence of her DNA on the relevant tap; and their belief that the only DNA which could be identified on the tap belonged to the father. In fact, the police were mistaken about the last point. It has been confirmed that the major contributor to the DNA profile found on the relevant tap belongs to D herself, obviously transferred to the tap by another person. The mistake however will clearly not alter the police decision.
This is my judgment on that key primary issue of fact. In the light of it all are agreed that consideration will have to be given to the future of this case in circumstances where the local authority asserts that even if that key fact did not happen the statutory threshold is crossed here by reference to other matters and that D's welfare demands that she is permanently placed with alternative carers.
I have read a considerable quantity of written evidence, including statements given to the police and a transcript of the mother's police interview. I heard oral testimony from the midwife E, Nurse F, Nurse G, the paediatric physiotherapist H, the then student nurse J, Nurse K, the mother and the father.
In fairness to the parties it is appropriate for me to state at this early juncture that I am not satisfied on the balance of probabilities that the mother was guilty of this act of attempted filicide.
I now turn to some of the background.
The mother was born on 24 April 1978 in a country identified as X, and is thus aged 35. The father was born on 24 September 1972, also in X, and is thus aged 41. They commenced a relationship in 1999 and have two older children now aged 13 1/2 and now aged 9. In 2005 the father came to this country. At some point after he came here the mother married the father's brother and lived with him and the two children in her country of origin.
The father has a very chequered immigration history. He entered the country under a six-month visitor's visa. He overstayed that visa. Subsequently he has made false statements to the Home Office. In May 2007 he applied for leave to remain on the basis that he had entered this country in 1989. In November 2007 he made representations to the Home Office through his MP and stated that he had entered the country in 1992. In 2009 the father formed a relationship with a French national, L, who was exercising treaty rights here and on the basis of a claimed marriage to her applied on 18 February 2009 for an EEA family member residency card under the Immigration (European Economic Area) Regulations 2006. In fact the father did not marry L until 2010. At all events the father was duly issued with the residency card on 21 September 2010 and this is valid until 21 September 2015. Therefore the father is lawfully present in this country, even if the story is punctuated by acts of dishonesty by him. That dishonesty is most prominently exemplified by his conviction in the Crown Court on 25 June 2009 for using a false document (a forged French passport) and making false representations for gain, for which he received a sentence of 6 months' imprisonment.
The father's relationship with L has broken down and they were divorced in November 2013. The father has struck up a relationship with M and stays with her for about 3 nights each week. That relationship has produced two children aged 19 months and 2 months.
The mother entered this country on a visitor's visa on 4 April 2012. That visa was valid until 27 August 2012. She came with her husband. He returned to their country of origin after about 2 weeks. The mother then resumed her sexual relationship with the father and fell pregnant. If the mother was 25 weeks pregnant when D was born on 13 September 2012 then that would suggest that she became pregnant on 22 March 2012, before her arrival here. However a DNA test has shown that the father is overwhelming likely to be D's true father. The mother did not leave this country on 27 August 2012, as she should have done. She is therefore an over-stayer and is subject to a weekly reporting requirement by the Home Office.
The mother lives with the father (when he is not with M) in his flat. The father is employed as a cleaner. I have seen a glowing character reference from his employer.
If D is returned to her parents they will have to care for her with enormous support from the state including the provision of near round-the-clock nursing care. It is inconceivable that she could be taken to and brought up in her parents' country of origin. The unchallenged evidence of the father was that the medical facilities there are inadequate to support a child with needs as wide-ranging complex and profound as D's.
I now turn to the events, as I find them to be, leading up to the alleged incident on 2 July 2013. The hospital had drawn up an agreement with the parents with the aim of one or both of them staying overnight with D on alternate nights. The mother was expected to stay on Saturday 29 June 2013 but failed to attend the ward. On Sunday 30 June 2013, the mother visited D with a female whom she described at the time as her "sister". The mother was reluctant to stay but eventually agreed to do so. At all events the mother stayed in D's room on the nights of Sunday 30 June 2013 and Monday 1 July 2013.
The records show that throughout D's life the mother was a caring and committed parent.
During the night of 1 July 2013 Nurse F was on duty until 08:00 the following morning. The hospital history sheet shows that she attended to D's needs at 20:30, 21:30, 23:20, 00:30, 03:00, 06:30 and 07:30. It can be seen that there were appreciable periods, one as long as 3 1/2 hours, when the mother was alone in the middle of the night with D.
Nurse F handed over to Nurse G at 08:00. The student nurse H was at the nurse's station at that time.
During the night of 1 July and in the morning of 2 July 2013 D's oxygen supply came through a device which was plugged into the oxygen supply at the wall. I shall describe that device although there are pictures of it in the bundle and I have been given an identical one to examine. The device is made by Oxylitre Ltd. It is, when looked at from the top, Y-shaped having a single connection point to the wall oxygen supply leading to two egress arms. When looked at from the front each arm has a glass flow-meter on top, the oxygen outlet below, and a white tap to the side, pointing out. The white tap controls the rate of the oxygen supply. The supply is turned on by rotating the tap anti-clockwise. When in the closed position the tap is held by a slight grip. When turning the tap on from the closed position the user would distinctly feel a slight release of that grip before the tap turned freely. If the supply is already on but the user wanted to increase it, he or she would not feel that grip – the tap just turns freely. It is therefore likely that by feel alone a user would immediately know if a tap was closed or open.
On 1–2 July 2013 the right hand egress arm (as you look at it) was connected to a green tube which supplied D with her oxygen via a Swedish Nose connected to her tracheostomy. This would have been on all the time, unless the left hand arm was in use. The left hand egress arm was connected to the nebulizer, which is device that prepares medicines as a mist or spray which then is mixed with the incoming oxygen. Certain medicines are given to D this way.
The usual rate of supply of oxygen to D is about 3 litres per minute (LPM). The level is signified by a red ball in the flow-meter. The device can supply up to 15 LPM. To give 3 LPM the tap needs to be turned about 180 degrees, or half a revolution. If things are bad for D then the supply will be increased perhaps to 6 LPM, which requires a number of complete revolutions.
D is connected to a monitoring device via a probe attached to her foot or finger. The monitor records two pieces of data. The left hand reading is the oxygen saturation in the blood; the right hand...
To continue reading
Request your trial
-
PR v JS
...to [37]; Lancashire County Council v R [2013] EWHC 3064 (Fam) per Mostyn J at para [8](v); Re D (a Child) (Fact-finding Hearing) [2014] EWHC 121 (Fam). 59 The court is enjoined to adopt a two stage process. The first question which must be answered is whether or not there is evidence of s......
-
Reading Borough Council v P (by her litigation friend, the Official Solicitor)
...720. The assessment of the truthfulness is an important part of my function in this case. 13 In Re D (A Child) (Fact-finding Hearing) [2014] EWHC 121 (Fam); [2014] Fam. Law 421 at §31.vii), concerning care proceedings but containing principles of more general application, Mostyn J describe......
-
Probability reasoning in judicial fact-finding
...approach issufficient or even necessary for good fact-finding. First, we explain the use of probabilityreasoning in Re D (A Child) [2014] EWHC 121 (Fam) and Re L (A Child) [2017] EWHC 3707(Fam). Then we criticise the attack on this probabilistic reasoning found in Re A (Children)[2018] EWCA......