Our website is set to allow the use of cookies. For more information and to change settings click here. If you are happy with cookies please click "Continue" or simply continue browsing. Continue.

Family Law

The leading authority on all aspects of family law

27 NOV 2015

Cumbria County Council v M and F [2014] EWHC 4886 (Fam)

Cumbria County Council v M and F [2014] EWHC 4886 (Fam)

(Family Division, Carlisle District Registry, Peter Jackson J, 28 March 2014)

Public law children – Fact-finding hearing – Non-accidental injuries

A heavily redacted version of the fact-finding judgment in the case regarding Poppi Worthington, who died of serious suspected non-accidental injuries aged 13 months.


IN THE HIGH COURT OF JUSTICE

Case No: ET13C000119
Neutral Citation: [2014] EWHC 4886 (Fam)

FAMILY DIVISION
CARLISLE DISTRICT REGISTRY

28 March 2014 (as edited 25 November 2015)


Before :

THE HONOURABLE MR JUSTICE PETER JACKSON

- - - - - - - - - - - - - - - - - - - -

Between :

Cumbria County Council
Applicant

-and-

M
First Respondent
-and-
F
Second Respondent
-and-
The children (by their Children’s Guardian)
3rd Respondents

- - - - - - - - - - - - - - - - - - - -

Jane Cross QC and Peter Rothery (instructed by Cumbria County Council) for the Applicant
Gillian Irving QC and Stephen Bedford (instructed by Denby Co Solicitors) for the Mother
Karl Rowley QC and Jenny Scully (instructed by Livingstons Solicitors) for the Father
Janet Bazley QC and Carly Henley (instructed by Bendles Solicitors) for the Children’s Guardian

Hearing dates 10 – 27 March 2014; Judgment date 28 March 2014

- - - - - - - - - - - - - - - - - - - - 

Re W: APPROVED JUDGMENT OF 28 MARCH 2014
[EDITED VERSION OF 25 NOVEMBER 2015]

- - - - - - - - - - - - - - - - - - - - -

Mr Justice Peter Jackson:

[1] These proceedings concern five of the seven children of a 29 year old mother. The children, in respect of whom Cumbria County Council seeks care orders, are three girls – AM (10), J (7) and A (nearly 6) – and two boys – C (3) and S (2).

[2] The mother’s other children are her daughters PM (13) and P, S’s twin sister, who was born on 20 October 2011 and died on 12 December 2012 at the age of 13 months.

[3] P’s death while in the care of her parents was sudden and unexpected. On admission to hospital and at post-mortem she was found to have an earlier fracture of her right lower leg and suspected acute injuries in the region of the anus. The main purpose of this hearing is an inquiry into the causes and circumstances of these injuries. The parents deny causing any harm to P whatsoever.

[4] The mother was only 16 years old when PM was born. In January 2002, she was found to be drunk in charge of the child. Care proceedings were issued and PM was later adopted.

[5] AM was born when the mother was 19. Care proceedings were issued in 2003 and resulted in a care order, with AM being placed with the mother. The placement was successful and the care order was discharged in 2007. Until P’s death, none of the other children was subject to statutory intervention by the local authority and the mother cared for them all satisfactorily. There were no concerns reported by health, education or social agencies.

[6] AM’s father has no contact with her and plays no part in these proceedings. J and A’s father is believed to be deceased.

[7] The father of C, S and P is 46 years old. I will refer to him as ‘the father’. He has parental responsibility for those children by being named on their birth certificates. He has two older children by previous relationships but does not have contact with either child.

[8] The father was informally interviewed by the police in 1995. No independent documentation was presented to the Court, but father’s account is that this arose from his association with someone who may have committed offences against children. In 2003 an unrelated allegation was made by his then stepson. He was not informed of that allegation, which was retracted and not professionally investigated. I mention these sketchy and unproven matters only because they feature in the history of the investigation into P’s death. They have no other relevance.The allegations against the parents

[9] [PARAGRAPHS 9-12 OMITTED]

The law

[13] While these allegations are extremely serious, the normal approach to findings of fact applies. The burden of proof remains throughout upon the local authority. The parents do not have to prove anything. The standard of proof is the balance of probabilities.

[14] In A Local Authority v (1) A Mother (2) A Father (3) L & M (Children, by their Children’s Guardian) [2013] EWHC 1569 (Fam), Mr Justice Baker summarised the legal principles in this way:

1. First, the burden of proof lies at all times with the local authority.

2. Secondly, the standard of proof is the balance of probabilities.

3. Third, findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation …

4. Fourthly, when considering cases of suspected child abuse, the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.

5. Fifthly ... whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision.

6. Sixth, cases involving an allegation of non-accidental injury often involve a multidisciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others.

7. Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability.

8. Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720).

9. Ninth, as observed by Dame Elizabeth Butler-Sloss in an earlier case “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 would throw a light into corners that are at present dark.” This principle, inter alia, was drawn from the decision of the Court of Appeal in the criminal case of R v Cannings [2004] EWCA 1 Crim. In that case a mother had been convicted of the murder of her two children who had simply stopped breathing. The mother’s two other children had experienced apparent life threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was no evidence other than 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, the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable possible explanation. In the course of his judgment, Judge LJ (as he then was) observed: “What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge.”

10. With regard to this latter point, recent case law has emphasised the importance of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause. The possibility was articulated by Moses LJ in R v Henderson-Butler and Oyediran [2010] EWCA Crim. 126 at paragraph 1:

Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown.”

11. In Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam), Hedley J, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further. At paragraph 10, he observed: “A temptation there described is ever present in Family proceedings too and, in my judgment, should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.

12. Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator. In order to make a finding that a particular person was the perpetrator of nonaccidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so.”

[15] I adopt this framework in the present case, which engages every one of these principles to a greater or lesser extent.

Family background

[16] The mother and father are not married. They first met in 2008, formed a relationship in 2009 and moved in together in early 2010. The mother became pregnant with C a short time after. They separated and reunited frequently, with the father moving out to stay with friends but keeping in touch and seeing his children regularly. From the beginning of September 2012, until P’s death in December, the parents and children were all together under the same roof.

[17] S and P were born by caesarian section on 20 October 2011. There were no complications. P was seen by the health visitor when required and all immunisations were up to date. She was generally a healthy child. She was never referred for acute or chronic constipation.

[18] In April 2012, the father, who is not circumcised, underwent a vasectomy. He did not go for a follow-up appointment to establish whether he had become sterile. At all events, the operation did not affect his sex drive or his ability to ejaculate seminal fluid.

[19] The parents had been living apart when the twins were born, but by the summer of 2012 they had formed a plan to move as a family from Cumbria to Kent. The father made two reconnaissance trips, the second one being between 17 September and 2 October. In his absence, the mother had the care of the twins.

P’s death

[20] On 11 December 2012, P got up at her usual time of around 6.00 to 7.00 am and had breakfast as normal. The mother says she seemed to have a bit of a cold and she slept for rather longer than usual during the day. C, S and P were left at home with the father while the mother took AM, J and A to school, and then returned home. A friend of the mother’s called round with her daughter. P was put in her cot to sleep and woken by her mother. The mother says she felt warm and that she gave her Calpol. The mother then left to collect the children from school, leaving P and S with the father. When she returned, the maternal grandparents came round to the house with their three grandchildren. They stayed for about half an hour. After they left the only people in the home for the rest of the night were the parents and the six children.

[21] P was given her tea. She was changed and put to bed around her usual time of 7.00 to 7.30 pm. I find that it was the father who changed her and the mother who put her into her cot. Having regard to the garments that P was wearing when admitted to hospital, I find that the mother is probably correct in her memory that she was put to bed wearing a nappy, a vest that fastened between the legs with poppers and a pair of pyjamas. I prefer this to the father's statements that she was wearing a babygro or an all in one suit.

[22] There are three upstairs bedrooms. The three older children shared one bedroom. P slept alone in a box room in a cot. C and S slept in cots in the parents' bedroom.

[23] By about 8.00 pm the children were all in bed. The mother, who often slept downstairs on a large settee, carried out some household tasks and then watched television. At about 9.00 pm the father went upstairs with his laptop and went to bed. He followed some sports results on which he had gambled and then watched pornography, which he describes as involving adults, before falling asleep at about 10.00 pm.

[24] At about 2.00 am the mother, who had not yet been to sleep, went upstairs to fetch the laptop for her own use. She may have got into the bed briefly but, noticing that S was snuffly, she took him downstairs to sleep with her. After using the laptop for a short while, she fell asleep. At some point in the night, A, who is a poor sleeper, came downstairs to sleep on the settee.

[25] The father says that he was woken in the early hours by a scream or a cry from P. He went into her room and found her sitting in the corner of her cot. She was rigid and stiff and he thought that she may have had a bad dream. He picked her up and cuddled her and took her to his room. He sat down on the edge of the bed with P on his lap. He tried to give her her dummy, but her teeth were clenched and she would not open her mouth. He thought that she was trying to pass a stool and he undid her clothing to see what was in her nappy. He describes loosening the sticky tabs on the nappy. He thought from the smell that she had passed a stool. She became relaxed and stopped screaming. He laid her on the bed crossways with her head on a pillow. At this point AM woke and shouted ‘P’s woke me up’ and came to the doorway of her room. He told her to go back to sleep. He then went downstairs to fetch a clean nappy. While there, he exchanged a few words with the mother about what he was doing, and then went back upstairs. P was quiet so he did not disturb her but instead got into bed himself. After a few minutes he for some reason put out his hand and touched P. He realised that something was wrong. She was limp. He picked her up and ran downstairs, calling for the mother to get an ambulance.

[26] The mother says that she was woken by P crying out loud and then heard the father upstairs. Thinking that he was dealing with her, she went back to sleep. She was aware of him coming downstairs and mentioning the time and that P had pooed. She then drifted back to sleep and was woken by the father shouting. She immediately got up and met him at the bottom of the stairs, carrying P in his arms.

[27] At 5.56 am the mother called 999. The father attempted to perform CPR, placing P on a chair and then on the floor. He removed her nappy and pulled up her clothing. An ambulance arrived at 6.05 am. The paramedic describes P as being very pale, waxy and obviously not breathing. She picked her up and ran out of the door with her. On picking P up she noticed she was slippery and wet around her bottom. The paramedic was wearing gloves which were thrown away in the ambulance.

[28] P was taken to hospital in the ambulance, accompanied by her father. On the journey, the paramedic and the father continued to attempt resuscitation. The cardiac monitor showed that P's heart was not beating.

[29] At 6.11 am the ambulance arrived at the hospital. A staff nurse collected P from the ambulance and took her immediately to the resuscitation room.

[30] After P was collected from the ambulance, the paramedic who had been with her saw a mixture of blood and faeces on the stretcher sheet. The sheet was not preserved. She went into the resuscitation room and noticed there was blood on P’s bottom. She went to the relatives’ room and spoke to the father. She mentioned the blood and recalls the father saying P had been constipated for the last couple of days and had only been passing light brown ‘rabbit droppings’.

[31] Present in the resuscitation room during the attempt to resuscitate P were Dr B, Locum Consultant Paediatrician who led, Dr A, Associate Specialist Anaesthetist, Dr M, Associate Specialist in Accident and Emergency, and a number of nurses.

[32] Unsuccessful attempts to resuscitate P continued for about 57 minutes, during which time she received fluids and adrenaline. A needle was inserted into each lower leg before venous access was obtained through the left femoral area. Difficulties were experienced by Dr A in the insertion of endotracheal and nasogastric tubes and in the end a tube was passed through the mouth by Dr B. The mother arrived at the hospital during the course of the resuscitation.

[33] Resuscitation ceased and P was pronounced dead at 7.07 am.

[34] After P was pronounced dead she was examined by Dr B. [FOUR SENTENCES OMITTED]

[35] Sometime before 7.30 am P was moved to the children’s ward. A nappy was put on her. She was then moved to the mortuary at around midday and was subsequently transferred to the Royal Manchester Children’s Hospital where x-rays were taken on 14 December.

The actions of the police

[36] The police were alerted to the situation and two officers arrived at the home before the ambulance left. One (PC H) remained until 7.22 am when she was relieved, while the other went on to the hospital. PC H noted a used nappy on the floor near the fireplace. This is now believed to be the last nappy worn by P.

[37] The paternal aunt arrived to look after the other children. The mother then left with the grandparents to go to the hospital. At 7.40 am the grandparents returned to the property

[38] After her arrival, the aunt removed the used nappy from the floor. She placed it in a bag and put it into a bin outside, telling one of the officers that she was doing so. She describes the contents as containing shades of dark brown very runny stool, like diarrhoea. She says that “there was a lot of it, too much to fasten the nappy tightly, or it would have seeped from the sides … it was bad”.

[39] At 9.40 am a Crime Scene Investigator attended the property and took photographs and a video. She returned at 15.30 and took further photographs.

[40] Between 3.10 and 4.15 pm four officers carried out a search of the home. Five used nappies were retrieved from the kitchen and from the outside bin but these did not include the nappy that the aunt had disposed of. After the search was completed no officers remained at the home.

[41] In the meantime, P’s clothing was retained at the hospital. It consisted of a grey pyjama top and a pink baby vest.

[42] At 10.15 am DI S, the senior investigating officer on the scene, attended hospital with a colleague. They spoke to Dr B and saw P’s body. Her clothing was removed for that purpose. They observed no visible injuries or bruising. There was no blood in her ears, nose or mouth. [ONE SENTENCE OMITTED]

[43] Both parents were spoken to at hospital. At 7.35 am Dr B spoke to the father in the presence of PC B [G22a]. At about 8.00 am Dr. B spoke to the mother in the presence of PC C [G26b].

[44] During the course of the morning, the father visited the toilet to urinate on at least one occasion.

[45] Between 12 noon and 4.05 pm a detailed account was taken from the father by DC C at the hospital and then at the police station [G104a]. At the conclusion, swabs were taken from the shaft and tip of the father’s penis.

[46] The mother’s first account was taken by DC B [G122a].

[47] On 14 December, a skeletal survey was performed, revealing the broken bones in the leg.

[48] Following P’s death, the family moved to live with the grandparents. The local authority requested the mother to supervise the father’s contact with the children. On 3 January, the mother told the allocated social worker that they would be moving back home because conditions at the grandparents’ home were overcrowded. In response, the parents were invited to an informal interview with police and social services the following day, when they were informed for the first time that the leg fractures had been found. Neither parent could account for them. The family were then allowed to return to the family home with the agreement of police and social workers. There was no requirement placed on the mother to supervise the father’s contact with the children.

[49] It was not until 9 January 2013 (four weeks after P’s death) that the surviving children were medically examined. No skeletal surveys were carried out.

[50] P’s body was released by the Coroner and she was buried on 19 February 2013.

The post-mortem

[51] HM Coroner instructed Dr Armour, Consultant Pathologist and Dr Bitetti, Consultant Paediatric Histopathologist to conduct the post-mortem. Because of their commitments, this could not take place until 17 December, five days after death.

52. [PARAGRAPHS 52 – 57 OMITTED]

[58] The reports indicate that the cause of death is unascertained. [ONE SENTENCE OMITTED]

[59] [PARAGRAPHS 59 - 60 OMITTED]

Forensic science

[60] [PARAGRAPHS 61 – 65 OMITTED]

The parents’ arrest

[66] Having considered the reports of Drs Armour and Bitetti and Mr Scarborough, the police decided to arrest the parents. On 27 August 2013, they were arrested in the family home in the presence of the children. Bail conditions were imposed: the mother was to have no unsupervised contact with a child and the father was to have no contact with a child under 13 years old.

[67] The parents were interviewed on 28 August. Transcripts of their interviews appear in the papers. They remain on bail.

[68] The police sought further medical opinions and convened a meeting with another pathologist and a paediatrician on 10 September. No formal minute was taken, although a number of the participants took notes. The opinions expressed at that meeting do not form part of my consideration of the matter and anyhow do not advance matters.

[69] The papers have been with the Crown Prosecution Service since November 2013 but no charging decision has been made. The solicitor for the police has made an application for disclosure of reports obtained in these proceedings and it would appear that a decision on whether to prosecute awaits the outcome of this hearing.

The actions of the local authority

[70] The local authority held a strategy meeting chaired by an Independent Reviewing Officer on the day that P died and a series of meetings involving the police and other professionals were held at later dates. [FOUR SENTENCES OMITTED]

[71] The result of the meeting was that the local authority decided to await the outcome of the police investigation before deciding what action to take in respect of the five surviving children.

[72] On 9 January 2013, a further strategy meeting took place, chaired by the same Independent Reviewing Officer. The meeting was poorly attended. The outcome was a decision for ‘no further action’ in relation to safeguarding procedures. It was only on that date that the children were medically examined, five days after they had gone back to live at home. The findings from those examinations were within normal limits.

[73] The local authority approached its safeguarding responsibility by asking the grandparents and the mother to supervise the father's contact with the children. This was explained as routine procedure since the father was the last person to see P alive. No formal arrangement was entered into and it is difficult to see how this plan could have been effective either before or after March 2013, when the parents again separated for a time.

[74] On 2 August, social services became aware that the father was staying at the home. A polite letter was written by the allocated social worker requesting that unsupervised contact should not be allowed. Following the parents’ arrest on 27 August, arrangements were made for the maternal grandmother to supervise the children’s contact with the mother. On 25 September, the local authority became concerned that the mother was breaching her bail conditions by having unsupervised contact with the children. Once again, the local authority decided not to issue care proceedings.

[75] The mother was asked to sign an agreement with the local authority but refused to do so, feeling that the restrictions that required her to be supervised at all times were unnecessary. She made this position clear on 17 October.

[76] It was only then that the local authority moved to bring proceedings in respect of all five children on 23 October 2013. The clear inference is that it was only the position taken by the mother that drove the local authority to take this step. By then it was over 10 months since P’s death.

[77] On 8 November, interim care orders were made in respect of all the children. The original interim care plans were for them to be divided between several foster placements. After discussion with the Children’s Guardian, the plans were changed and the children were placed with their grandmother who had been given temporary approval as a local authority foster carer. However, the grandparents, who were already looking after the three children of the mother’s sister, came to find the task of looking after so many children too much. The five children were moved on 8 January 2014 to a single placement out of county where they are having regular contact with the mother and appear to be thriving. The father has no contact at present owing to his bail conditions.

These proceedings

[78] In contrast to earlier events, these proceedings have been rapid. The assembly of the parties' evidence, the obtaining of police disclosure and the gathering of expert evidence represented a very considerable challenge, but it has been met. This hearing could not have been effective without the outstanding cooperation and expertise shown by the parties and their representatives, leading and junior counsel and solicitors. I particularly pay tribute to the efficiency of the local authority solicitor, Ms Haughin, who gathered a very large amount of witness evidence within a very limited timescale, and to the Guardian's solicitor, Mr Lewis, who has marshalled the expert evidence. The hearing itself has been conducted by the advocates with an economical focus on the real issues, both orally and in writing.

[79] Further expert evidence has been commissioned from Dr Sprigg (consultant paediatric radiologist) and Mr Scarborough (forensic scientist), both of whom had been previously consulted by the police. Dr Stephen Leadbeatter (consultant pathologist), and Dr Victoria Evans (consultant forensic physician) were also jointly instructed. An experts’ meeting took place on 25 February 2014 and a schedule of agreement and disagreement resulted.

[80] Oral evidence was given over the course of eight days by:

Dr Alison Armour, consultant pathologist
Dr Stefania Bitetti, consultant paediatric histopathologist
Dr Stephen Leadbeatter, consultant pathologist
Dr Victoria Evans, consultant forensic paediatrician
Dr Alan Sprigg, consultant paediatric radiologist
Ms L, paramedicMs B, ambulance driver
Dr B, locum consultant paediatrician
Dr M, associate accident and emergency specialist
Dr A, specialist anaesthetist
Nurse M
Nurse V
Nurse C
Sister W
Detective Inspector S
Detective Sergeant C
Detective Constable C
Police Constable B
Police Constable L
Police Constable H
Mr Michael Scarborough, forensic scientist
The mother
The father

[81] Counsel have presented detailed written submissions and supplemented them orally. The parties have produced three agreed documents that have in no way blunted the sharply contrasting submissions; on the contrary the way in which the evidence has been collated allows for closer attention to be paid to the detail upon which so much turns in this case. The documents are:

  • A narrative document
  • A schedule of the medical evidence
  • A schedule setting out the Guardian's analysis of the failures of process

Concerns about the professional response to P’s death

[82] This hearing is not an inquiry into the performance of the police or the local authority. However, during the evidence, it became apparent that actions taken or not taken at the time and in the months that followed are of potential relevance to this court's ability to make findings of fact. I will enumerate the features of concern so that their relevance to my findings can be understood.

[83] A further purpose is to enable those with ultimate responsibility for these services to decide whether action is required in the context of this case or generally.

[84] I will direct the Guardian’s solicitor to send copies of this judgment (and in the case of those marked * the Guardian’s schedule of failures of process) under cover of a letter making clear that there must be no onward disclosure to others without the permission of the court.

  • The Chief Executive of Cumbria County Council
  • The Statutory Lead Member for Children’s Services, Cumbria County Council
  • The Chair of Cumbria County Council’s Scrutiny Advisory Board - Children and Young People*
  • The IRO service manager for Cumbria•Ofsted
  • The Independent Chair of the Cumbria Local Safeguarding Children’s Board*
  • The Department of Education (for the attention of the national panel of independent experts of Serious Case Reviews)•The Chief Constable of Cumbria Constabulary*
  • The Police and Crime Commissioner for Cumbria•The Independent Police Complaints Commission •The Crown Prosecution Service*
  • The Chair of the University Hospitals of Morecambe Bay NHS Foundation Trust
  • The Care Quality Commission
  • HM Coroner*
  • The Chief Coroner for England and Wales
  • Drs Armour, Bitetti, Leadbeatter, Sprigg and Evans
[85] The observations below are made in the context of these good practice protocols and regulations, which appear to have had no effect in this case:

  • The national multi-agency protocol: Sudden Unexpected Death in Infancy (SUDI), known as ‘the Kennedy Protocol’. This provides a framework for the collaborative investigation of all unexpected deaths in infants and children up to the age of 2 years. The emphasis is on finding the cause of an infant’s death, incorporating both medical and forensic investigation. Responsibility for oversight of the operation of the protocol rests with the Local Safeguarding Children Board.
  • Cumbria LSCB’s own complementary protocol at the time of P’s death: Sudden and Unexpected Deaths in Children and Young Persons. This guidance, since updated, applied to the sudden and unexpected death of a child under the age of 18 years.
  • The Local Safeguarding Children Boards Regulations 2006, which set out the criteria for holding serious case reviews.

Cumbria Constabulary

[86] It can come as no surprise that, well over a year since the death of this child, no decision has been taken about a criminal prosecution. As a result of the police view that Dr Armour may have jumped to conclusions, a decision was then taken by senior officers not to investigate until her report was received. Due to the extreme delay in that process, there was no real investigation into P’s death for nine months. Such minimal investigation as thereafter took place was inevitably affected by the delay and by actions not taken at an earlier stage. Instances may include:

  • Items at hospital not preserved for forensic analysis: ambulance sheet, paramedic's gloves, hospital stretcher sheet.
  • Items at home not preserved for forensic analysis: P’s pillow, her clothing (pyjama bottoms if any), the parents’ sheet, any possibly penetrative item, the father’s computer.
  • Scene not secured: loss of P’s last nappy despite the presence of police officers.
  • Decision by DI S and DCI F not to visit the home, despite it being nearby. According to the national protocol, a senior officer should immediately attend the home to take charge of the investigation and ensure that evidence is intelligently preserved.
  • No reconstruction with the parents at home, so that their accounts could be understood and investigations focused.
  • No forensic medical examination at the time of death. Swabs were not taken until post-mortem. Under the Cumbria protocol, police are entitled to take anal swabs automatically. Delay in taking swabs may prejudice the forensic analysis.
  • No engagement of a paediatrician with specialist knowledge of investigating sexual abuse, in order for there to be a physical examination of the child, a viewing of the home and a report for the pathologist.
  • Dr Armour’s initial views were not clearly passed on to the local authority for safeguarding purposes.
  • The parents were not interviewed formally until August 2013.
  • No analysis of either parent’s mobile telephone or Facebook accounts.
  • Samples were not sent for analysis until after receipt of Dr Armour’s report. For example, the swabs from the father's penis, taken on 12 December 2012, were not sent for analysis until 2 August 2013.
  • No statements taken from any witnesses (paramedics, nurses, doctors, family members) until September 2013, at which point three statements were taken (from the ambulance crew and from Dr B).

[87] Many of these matters were canvassed during the evidence of DI S, who led the enquiry at the outset, and she was driven with evident reluctance to accept a number of failings in the inquiry. Evidence was not taken from DCI F, the senior officer with overall responsibility for the investigation. He may therefore have further information to provide.

Cumbria County Council

[88] Given the history, it can likewise come as no surprise that, well over a year after P’s death, the family still awaits a decision about the future of the other children.

[89] At the outset of the proceedings, the local authority was directed to file a statement explaining its actions. This led to a full account from the Assistant Director of Children’s Services. In it, she accepts that

  • Legal advice should have been taken at the outset, and certainly before the family returned home. In fact, the first time that legal advice was taken in this troubling and extremely serious case was on 30 August 2013. Even this was reactive (to the parents' arrest) and even then there was no decision to issue proceedings for another eight weeks.
  • Proceedings should have been initiated as soon as it became clear that P had suffered injury prior to her death. Had that happened, the court would have been able to get a grip on the matter and ensure that proper investigations were carried out much nearer to the time of P’s death. The local authority shares responsibility with the police for the fact that this did not happen.
  • Even when legal advice was given on 23 September that care proceedings should be issued, a decision of the Legal and Placement Panel two days later rejected this advice. Another month passed before proceedings were issued in reaction to the mother's rejection of supervision.

[90] I would add that the children should have immediately been medically examined and that in S’s case, a skeletal survey should have been performed. Furthermore, the local authority's expectation that the mother should supervise the father in relation to this number of children was in my view wholly unrealistic, not to say unfair to her.

[91] In the result, the children were returned home without any effective child protection measures being taken. Fortunately there is no evidence of them suffering harm in the ten month period before they were removed from the parents’ care.The Coronial investigation

[92] It is not clear, and I have not asked, how HM Coroner proceeded in this matter. Concern has rightly been raised about the gross delay in production of the pathology reports. Cumbria’s protocol expects that within 48 hours of the post-mortem, the pathologist will provide preliminary findings to the Coroner. In this case, Dr Armour said that she wanted to have every piece of information before she committed herself. In particular, she was awaiting the results of routine histology on the leg bones. She did not accept the suggestion that the delay was unacceptable. Bearing in mind the interests of the surviving children, that was not a practical approach, though she was not to know that the consequence of her silence was that no other investigation was taking place.

[93] I have no information about the decision of the coroner to release for burial the body of a child who died in unexplained and possibly suspicious circumstances when a pathology report had not been received, a decision precluding the possibility of a second post-mortem.

The NHS Trust

[94] In the light of the expert evidence, and having heard from the paramedics, doctors and nurses who were present on 12 December, it is apparent that they did everything they possibly could to resuscitate P. It is sadly likely that by the time she came into their hands she had already died.

[95] Unfortunately, Dr B, the locum paediatrician, had only been employed at the hospital for less than three weeks. He was not aware of either the national or local protocols for infant deaths. He was therefore unable to lead the forensic medical investigation in an appropriate manner.

[96] Neither Dr B nor, more pertinently, Dr W, completed the workbook provided as part of the Cumbria protocol. This would have ensured a methodical examination at the time of death and the timely taking of swabs.

The Local Safeguarding Children Board

[97] Regulation 5 of the Local Safeguarding Children Boards Regulations 2006 sets out the functions of LSCBs. This includes the requirement to undertake reviews of serious cases in specified circumstances. Regulation 5 provides that a review must be held where abuse or neglect of a child is known or suspected and the child has died. This is mandatory: see page 66 of the statutory guidance in “Working together to safeguard children” (March 2013). Moreover, a review may be held even when the mandatory requirement does not apply.

[98] A sub-group of the Cumbria Local Safeguarding Children Board met on 4 February 2014. The meeting took place at police headquarters and was attended by six persons. The minutes show that DCI F, the principal investigating officer, played a prominent part, although he invited another member to lead the discussion. The conclusion was that the criteria for a serious case review were not met, although the matter would be reviewed in six months following the outcome of the family proceedings and any criminal proceedings.

[99] It will certainly be appropriate for the conclusion of the subgroup of the LSCB to be independently reviewed as it would appear to conflict with the regulations. Collective responsibility

[100] While I reach no conclusions, consideration by others of the above matters may lead to the view that P's death did not receive the professional response to which she and her family were entitled.

The reasons for P’s injuries and death

[101] [PARAGRAPH 101 -165 OMITTED]

[166] I invite submissions from the parties as to the course that should now be taken to bring these proceedings to a conclusion, and as to any other directions.
Family Law Reports

Family Law Reports

"The unrivalled and authoritative source of judicially approved case reports, covering all areas...

More Info from £166.00
Available in Family Law Online

Family Law

journal

"the principal (monthly) periodical dealing with contemporary issues" Sir Mark Potter P

More Info from £49.00
Available in Family Law Online
Subscribe to our newsletters