Re H-C (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lady Justice King,Lord Justice Laws |
| Judgment Date | 10 March 2016 |
| Neutral Citation | [2016] EWCA Civ 136 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2015/3056 |
| Date | 10 March 2016 |
[2016] EWCA Civ 136
Lord Justice Laws
Lord Justice McFarlane
and
Lady Justice King
Case No: B4/2015/3056
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, FAMILY DIVISION
Mr Justice Newton
LM14C0017
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Karl Rowley QC and Miss Lorraine Cavanagh (instructed by Forbes Solicitors) for the Appellant
Miss Jane Cross QC and Miss Heather Hobson (instructed by Lancashire County Council) for the First Respondent
Mr Peter Rothery (instructed by Cooper Nimmo Ltd.) for the Second Respondent
The third respondent did not attend and was not represented
Hearing date: 16 February 2016
This is an appeal from a fact finding determination made by Mr Justice Newton sitting in the Family Court in Manchester on 25 th August 2015. The case concerned the welfare of two half-brothers, K and J, who were the subject of care proceedings. Although the local authority's case in support of long term orders to protect these two children from neglectful parenting, drug and alcohol abuse, domestic violence and general poor childcare was broadly based, the fact finding hearing conducted before Newton J over the course of 3 weeks in July 2015 related to the circumstances surrounding the death on 22 nd March 2014, when aged 13 months, of the youngest child of the family, another boy, A.
A died overnight on the night of 21 st/22 nd March 2014 at a time when all three boys were in the sole care of a Mr C who was staying overnight in the children's mother's flat. The mother was not there. Mr C is the father of J. He is not the father of either K or A, although at the time he thought that he was A's father.
All three boys and Mr C slept in the same bed, apparently having retired for the night at around 8.20 p.m. The following morning at 6.51 a.m. Mr C dialled 999 having, on his account, recently awoken to find A apparently dead in the bed. It was common ground that the probable cause of A's death was asphyxiation as a result of some obstruction of his breathing. The question for the court was, therefore, whether A died as a result of deliberate smothering by Mr C, which was the case for the local authority supported by the children's guardian, or through some other non-deliberate mechanism such as being lain upon by one of the other people in the bed, or becoming wedged between the edge of the bed and the wall.
At the conclusion of an extensive trial, Newton J concluded as follows (paragraph 86):
"…I find that Mr C temporarily lost control of himself for whatever reason, he is a strong man, he pushed A into the pillow, perhaps to keep him quiet, but causing him to suffocate, it would not have been difficult. Until he turned him over later it may well be that he did not know that he had caused him serious harm and indeed had killed him."
In making that finding the judge concluded that all of the strands of the evidence "I am sure point inexorably to one conclusion" and that he had made "clear, sure findings".
Before the judge it was agreed by all parties that the statutory threshold criteria under Children Act l989, s 31 were established irrespective of the finding of smothering. It was also agreed that the two surviving boys would be cared for by K's father. Nevertheless the local authority had sought a finding of deliberate smothering against Mr C and, in turn, Mr C now seeks to appeal the judge's factual conclusion.
Mr C was granted permission to appeal by Lady Justice King on 12 th October 2015.
The background
The short summary that I have already given as to the deficits in this couple's parenting ability gives the flavour for what became detailed findings made by the judge as to significant negative aspects of the background and current functioning of both the mother and Mr C. The judge held that both parents had had impoverished backgrounds, and both had experienced a long struggle with drug and alcohol addiction. Their relationship, which had started in 2008, was characterised by a striking level of domestic disharmony, violence and criminal behaviour. The judge, rightly, lists the most significant events, but records that the matters that he had mentioned were but examples of "many other incidents, which are produced to support the depressing catalogue of uncontrolled behaviours and, in the father's case, extreme behaviours of violent and drunken behaviours". The judge considered that the circumstances that he found established demonstrated a high level of "confusion which reigned in the children's lives", particularly in the period leading up to March 2014. The judge held that the mother, despite the focus of the proceedings, still seemed unclear as to the children's domestic arrangements in February and March 2014. He describes there being "a stressful situation which was far from under control" involving the mother, Mr C and the children.
21 st March 2014
The only sources of direct evidence as to what took place in the mother's flat once the children were in the sole care of Mr C came from Mr C and, to a limited extent, from young K who was then aged 6 years and who subsequently gave an ABE interview. A toxicology report on a blood sample taken from Mr C on 22 nd March indicated high concentrations of diazepam and nordiazepam which could be consistent with regular high dose use. Mr C apparently indicated that he was a regular user of these drugs at that time, and, the judge concluded, he may have developed a tolerance to the ordinary symptoms which include drowsiness, dizziness, confusion, impaired co-ordination and loss of concentration. There is no indication that the father had taken any alcohol on the evening of 21 st March.
The judge accepted that the mother, Mr C and the children had been seen by a maternal uncle, the maternal great aunt and a maternal sister during the afternoon of 21 st March and that the father and children had returned to the mother's flat, without the mother, shortly before 6.00 p.m. As I have indicated, Mr C asserted that all four went to bed shortly after 8.00 p.m. The judge's account of subsequent events is as follows (paragraph 28):
"Everyone slept in the same bed, Mr C and all three children. There is some debate about the positioning of the individuals in bed which I will return to at the conclusion of the parents' evidence. Mr C maintains that, at about 21.30–22.00, A grizzled and moaned; as a result Mr C woke and gave him a bottle, he only taking half. Thereafter he says that he went back to bed and slept. Mr C describes an unbroken night which was not reflected by the evidence of the neighbours. On the morning of 22 March at 6.30am Mr C says that J woke him, he looked over and saw that A was blue. He telephoned the mother, and then his own mother and then rang the mother again. The mother is clear that he said "the baby is not breathing properly". At 6.51am the father dialled 999. The transcript records him saying "I have just woke up, and my baby boy, he's all blue, he's at the side of me, he's freezing cold and he's not breathing." It was recorded that A was lying on his back "all blue". The ambulance arrived at 6.59am, A was found to be on the floor beside the bed, the paramedic, Mr Fisher, described him as entering rigor mortis, with bruising around his forehead. The police arrived at 7.00am, and at 7.10am Mr Fisher pronounced A as dead at the scene."
As I will describe in more detail in due course, in addition to the father's account, the judge also heard evidence from a couple who resided in the flat immediately below the mother's flat as to what they heard during the early hours of the morning of 22 nd March.
Signs of injury
The post-mortem on A was undertaken by Doctor Alison Amour, a Home Office pathologist with some 25 years' experience, together with Dr Bitetti, a consultant paediatric pathologist on 25 th March 2014. The following groups of potentially significant marks were found on A's body:
a) Some 14 different bruises, or areas of bruising to his head and face, including one bruise behind the right ear;
b) Two pressure marks to the head consistent with pressure applied to the head from a hard surface;
c) Injuries to the penis and the area of the penis, including what to Dr Armour appeared to be bruises and abrasions.
On the basis of the internal medical evidence the judge concluded that the most likely cause of death was asphyxiation, and stated that the question for the court was: "Whether it is possible to distinguish or deduce asphyxiation caused accidentally or deliberately".
The judge described the window of time within which death was likely to have occurred as follows: (paragraph 66):
"What the experts do broadly agree upon is the time of death. Dr Armour said A had died in the early hours of morning the previous night. Dr Cary [Home Office Pathologist] said it was inherently unlikely that death occurred as little as an hour before the paramedics arrived, Dr Cohen [Consultant Paediatric Histo-pathologist] that A died closer to midnight. All agreed closer to when he was fed that evening. The effect of that must be weighed in the context of the evidence of the neighbours."
The evidence of the pathologists
In her initial post-mortem report Dr Armour concluded that the marks/injuries to A's head and face were "inconsistent with accidental causation" and "consistent with pinching, poking, prodding and I would not exclude punching". In particular she considered that the marks/injuries "to the nose, both cheeks and chin are those of external physical violence being applied around the nose and mouth". With...
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