A Local Authority v The Mother

Hearing dates: 21, 23, 24, 27–30 April 2020, 1, 4–5, 11–12, 20 May 2020, 19, 24–26, 29–30 June 2020 and 1, 17, 27, 29 and 31 July 2020

I direct that pursuant to FPR 27.9 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

On 6 ^th April 2019, K died in hospital. She was only three years of age when she died. A special post-mortem and toxicology tests indicated that her death was consistent with cocaine ingestion. Her death has led to both a police investigation by the Metropolitan Police and care proceedings commenced by the Local Authority in respect of K's siblings. This judgment addresses whether and if so how the Local Authority have established that the threshold for the making of public law orders is met.

The children who are the subject of the application are;

i) L who is now rising 12,

ii) M who is now aged five,

iii) N who is now aged two,

iv) P who is now aged 7months Background

On 3 ^rd April 2019, K returned home from nursery. Later, she was complaining of a tummy ache and was vomiting on and off throughout the night. The following day, 4 ^th April, she did not go to nursery but was looked after by her paternal grandmother, whilst her mother took her sister to hospital to have a cast removed from her arm. When the mother returned, she noted that K's eyes looked puffy and she appeared sleepy and she took her to the GP. Her GP was concerned about her high heart rate and swollen face, suspecting sepsis. An ambulance was called, and K was taken to hospital. She was noted to be drowsy and poorly perfused, with tachycardia and slightly increased inflammatory markers. It was suspected that she might have sepsis or meningitis and antibiotics and antiviral drugs were given. A blood test grew no pathogens and the inflammatory markers improved. She remained tachycardic and drowsy, with fluctuating responsiveness and at one point, was noted to be fully responsive and sitting up in bed. However, in the early hours of the morning of 6 April, she had a sudden cardiac arrest and despite full CPR over about an hour, she did not recover and died.

The paediatric post-mortem investigation took place against the backdrop of a suspicion that K had had sepsis or meningitis. However, Dr Palm was concerned that some of the usual features associated with meningitis or sepsis were not present; there was no evidence from the brain of meningitis or encephalitis. There was no evidence suggestive of any pre-existing congenital or acquired natural illness or other medical condition that could have caused or contributed to her death. There was no evidence to indicate an ongoing overwhelming infection or sepsis. There were no traumatic injuries other than resuscitation related rib fractures. There was evidence of an acute mode of death, likely due to heart failure. The heart muscle showed necrosis. She returned to take hair samples from K.

Post-mortem toxicology screening detected the presence of cocaine and benzoylecgonine, a metabolite of cocaine. A urine sample also contained benzoylecgonine. This discovery led to a Special Post Mortem being undertaken by Dr Cary and Dr Palm. The parents and grandmothers were arrested. Subsequently, hair strand testing of the adults and the children showed the presence of cocaine and its metabolites. The local authority commenced care proceedings and the three children were made subject to interim care orders and placed in foster care. P joined them when she was born, after care proceedings were issued in respect of her by the local authority. Those were ordered to be heard together with these proceedings by my order of 19 ^th December 2019.

The case was listed before me for four weeks in order to determine whether the threshold criteria were met. The focus of the expert evidence was principally, albeit not exclusively, on whether K's death was caused by cocaine exposure and the extent of drug use of the parents and grandmothers. The other evidence was principally focused on the issues of drug use and domestic abuse.

The Local Authority is represented by Mr Tyler QC and Mr Parker, the mother by Ms Isaacs QC and Mr Rawcliffe, father 1 by Mr Twomey QC and Ms Kelly, the father of the oldest child (father 2) by Ms Hyatt, the paternal grandmother by Ms Cook QC and Ms Brereton, the maternal grandmother by Mr Larizadeh QC and Ms Cheetham and the children by Mr Howe QC and Ms Stone.

These Proceedings

The final hearing was listed for 20 days to commence on 21 ^st April 2020. On 13 ^th March 2020, the case was listed for a further case management hearing in advance of the listed final hearing. At that stage, the Local Authority initially advanced an application seeking to adjourn the final hearing on the basis that aspects of the evidence were unlikely to be sufficiently clear or complete so as to enable a final hearing to proceed. However, the adjournment application was not advanced when it became clear that the court would be unable to hear the case until, at worst (and most probably), early 2021 or at best (and unlikely), October 2020. The matter was listed for a final case management hearing on 3 April 2020.

Between 13 ^th March and 3 ^rd April, the coronavirus pandemic intervened and so on 3 ^rd April, what had been envisaged as a case management hearing to make final adjustments to the arrangements for the fact-finding hearing, was transformed into a remote hearing which in itself addressed the issue of whether the final hearing, could proceed as a remote hearing. At that hearing, all parties were in agreement that the fact-finding hearing should take place remotely and it appeared that arrangements could be put in place for all of the parties, the legal teams, the witnesses and the court to undertake a fair hearing by remote means.

By the time the case commenced on 21 ^st April 2020, the parties' positions had developed. On that day the decision of the President of the Family Division in Re P (A Child) (Remote Hearing) [2020] EWFC 32 was handed down.

The hearing to determine the Threshold commenced on 21 ^st April 2020, I heard evidence from the 7 experts. On the 15 ^th May 2020 I adjourned the proceedings to resume in late June. That was to enable the mother to attend in person to give oral evidence; it also allowed father 1 some further time to re-assure himself it would be safe to attend to give oral evidence. I delivered a judgment A Local Authority v The Mother & Ors [2020] EWHC 1233 (Fam) (15 May 2020) which sets out the progress of the hearing up until that point. I shall not repeat it. That was appealed by the mother to the Court of Appeal who dismissed the appeal: C (Children: Covid-19: Representation) [2020] EWCA Civ 734 (10 June 2020).

Arrangements were made by the parties and the court for a hybrid hearing which permitted the parents and PGM to give evidence before me in person and to enable them to see each other give evidence, with some of the advocates being present and others participating remotely. On 24 ^th June, I heard evidence from the maternal grandmother; it had been intended that the mother would give evidence on the 25 ^th June but, on the 24 ^th June, she took an overdose of (I was told) antidepressants and was admitted to hospital. On the 25 ^th June, the hospital confirmed she was an inpatient and in need of ongoing medical monitoring and assessment by the mental health team, requiring at least a further 24 to 48 hours of inpatient management. As a result, the scheduling of the witnesses was rearranged so that the paternal grandmother gave evidence on 25 ^th June and the father on the 26 ^th and 29 ^th of June. It had been hoped that the mother might have been able to give evidence at some point in the week commencing 29 ^th June but, although she was discharged from hospital, arrangements were being pursued to admit her to a crisis unit and by 1 ^st July, her treating psychiatrist, provided a brief report confirming that, in her opinion, she did not believe the mother then had capacity to instruct her legal team. She said that the mother was experiencing a depressive episode, presenting as low in mood and anxious and was to commence antidepressant medication, as well as accessing counselling. It was therefore, not possible for the mother to give evidence and to complete the case. Given...