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Home > Judgments > 2015 archive

Re A (A Child) [2015] EWFC 9

Fact-finding hearing in care proceedings concerning a child, where her sibling had been killed by the mother's boyfriend.

Background
The hearing arose in the context of care proceedings in respect of Kacey's sister 'A' who was born in April 2013, 13 months after Kacey. The girls' mother separated from their father in September 2013. On 10 April 2014 the mother left the girls in the care of her boyfriend Connor Gibson ('CG') when she went to work.  The mother left the house at 07:30, at 09:53 an ambulance was called (by CG) and Kacey was found to be unconscious and gravely ill. She died as a result of severe haemorrhage and bleeding to her brain on 12 April 2014. On examination she was also found to have suffered over 40 bruises all over her body, in addition to severe internal bruising to her organs and haemorrhage to her liver.

Findings
The questions to be determined by Holman J were:

i) Whether Kacey's mother had caused any of the injuries to Kacey;

ii) Whether CG's actions on 10 April 2014 were so out of character that the mother "had no reason whatsoever to think that she could not safely leave her children in CG's care";

iii) To consider some small bruising found on A. 

i) Injuries to Kacey
On the first day of CG's trial he pleaded not guilty to the murder of Kacey but guilty to her manslaughter. In his first statement (dated 8 August 2014) by inference he implicated the mother; however at sentencing he assumed full responsibility for all of the injuries (save for one older bruise). It was said on his behalf that his care of the children had up to that point been exemplary and that it was entirely reasonable of the mother to have left the children in his care.  He was sentenced to nine years' imprisonment. Less than a month after sentencing CG prepared a statement for these proceedings (dated 30 October 2014) in which he denied causing any injuries other than those caused by shaking her, a position he repeated in a statement dated 6 January 2015. He stated that he had only accepted responsibility for all the injuries during the criminal trial as he was scared of being convicted of murder.

The written and oral evidence of the medical expert was that there was no evidence to suggest that the abdominal injuries were caused by anyone other than the same person who caused the fatal injuries to the head. This was not challenged by counsel for CG and in evidence before Holman J CG expressly accepted responsibility for all the injuries (save for an older bruise) and expressly stated that the mother was devoid of blame. The mother denied causing the injuries in any way and Holman J found that CG caused them all at a time when the mother was at work and not present in the home [19 -20].

ii) Failure to protect
Holman J then considered events prior to 10 April 2014. In particular he considered the parties' evidence about the following incidences and factors:

Holman J warned himself against viewing the preceding events 'through the prism of the fatal assault' of the 10 April 2014 and reminded himself that the essential question was the reasonableness of the decision of the mother to entrust the children to CG that day. There was an "inescapable causal connection between the mother's decision to entrust the children to his care that day and the harm"; that decision was in itself an aspect of the care given to the children, and the reasonableness of that decision had to be viewed objectively against the growing number of reasons from which the mother should objectively have thought that she could not safely leave her children in the care of Connor Gibson. The level of care provided in making that decision was not, Holman J concluded, what it would be reasonable to expect a parent to give and the threshold criteria under s.31(2)(a) and (b)(i)  of the Children Act 1989 were made out [40 – 42].

iii) Injuries to A
Both the mother and CG denied harming A and the expert medical opinion was that there was insufficient evidence that the marks on A had been caused by someone either intentionally or by accident. Holman J held that he was not satisfied for the purpose of the s.31 threshold criteria that at the time of the commencement of these proceedings A herself was suffering or had suffered any actual physical harm at all attributable to the care given to her, whether by Connor Gibson or by the mother.

Summary by Esther Lieu, barrister, 3PB
________________________

Case No. BC14C00013
Neutral Citation Number:
[2015] EWFC 9 (Fam)

IN THE FAMILY COURT
SITTING AT LIVERPOOL CIVIL AND FAMILY CENTRE


35 Vernon Street
Liverpool
Thursday, 29th January 2015

Before:

MR JUSTICE HOLMAN
(sitting in public)
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BLACKPOOL BOROUGH COUNCIL Applicants
v
A (A CHILD) Respondent
v
The PARENTS Respondents
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Transcribed from the Official Recording by
AVR Transcription Ltd
Turton Suite, Paragon Business Park, Chorley New Road, Horwich, Bolton, BL6 6HG
Telephone: 01204 693645 - Fax 01204 693669
- - - - - - - - - - - - - - -

Counsel for the Local Authority:  MISS JULIA CHEETHAM QC
Counsel for the Mother: MR PETER ROTHERY
Counsel for the Father: MR MARK STEWARD
Counsel for the Child: MISS SAMANTHA BOWCOCK
Counsel for the First Intervenor: MISS HEATHER HOBSON
- - - - - - - - - - - - - - -

JUDGMENT
Number of Folios: 129
Number of Words: 9,310
 
MR JUSTICE HOLMAN;
1. Introduction and Background
 Kacey was brutally attacked on 10 April 2014.  She died two days later at the age of just over two.  These are care proceedings in relation to her surviving younger sister who is now aged 21 months.  The person who killed Kacey was her mother's then boyfriend, Connor Gibson, who is now serving a prison sentence.  The essential issues in this fact finding hearing are: (i) whether the mother herself directly caused any of the multiple injuries suffered by Kacey; and (ii) in any event, whether the harm suffered by Kacey and the likelihood of harm to her sister was attributable to the care given to the children by their mother not being what it would be reasonable to expect a parent to give to them.  I heard the oral evidence of the mother and Connor Gibson in private (i.e. in the ordinary courtroom but with any public excluded).  I did so in the hope that it would assist them to give their evidence as frankly and without inhibition as possible in the search for the real truth as to what happened.  I heard the rest of the case in public, including the oral evidence by video link of the jointly instructed expert, Professor Timothy David.  I now deliver this judgment in public.  When it has been transcribed, it will be placed upon the BAILII website on the internet and may be freely quoted. 

2. I will not name the surviving child to whom these proceedings relate, and she must not be named nor depicted in any account of this case in the media or on the internet.  I appreciate, however, that she can easily be identified and linked to this case by what is known as jigsaw identification, and that that is intrusive to her own right to respect for privacy under Article 8 of the European Convention on Human Rights.  In my view, however, the Convention right to freedom of expression and the need for transparency and public openness must prevail in this case for the following reasons, which I give very briefly.  First, the proceedings arise out of the non-accidental killing of a child, which is always a matter of grave and legitimate public interest.  Second, there has already been a public criminal trial in relation to these events, which was reported in the press, although it was short as it proceeded, in the end, on a plea of guilty.  Third, I now have a fuller understanding of events than were described at that trial, and, as will later emerge, the full facts (found on a balance of probability) differ in certain respects from the way in which they were put at that trial.  Finally, care proceedings, by their nature, are a matter of public interest since they involve the intervention of the state in private family lives.

3. During this very painful hearing, everyone in the courtroom has behaved with a calm dignity and, to the extent possible, with good humour.  I wish to thank them for that.  I also wish to thank all five advocates, who each conducted the case with skill and sensitivity.

4. The facts in more detail
 The father was born in December 1986 and is now aged 28.  The mother was born in December 1990 and is now aged 24.  She was just 23 at the time of the critical events.  The parents married in 2011.  Their elder daughter, Kacey, was born on 1st March 2012.  Their younger daughter, to whom these proceedings relate, was born in April 2013.  She is now aged about 21 months.  She was about one year old during April 2014.  I will call her A (which is not any actual initial of hers).  Following the birth of A, the mother remained on maternity leave until 19 January 2014, when she resumed work.  Sadly, the marriage between the parents became unhappy and the father moved out from the rented family house at the beginning of September 2013. 

5. During October 2013 the mother first met Connor Gibson.  He was born in February 1991.  He was then aged 22 and is now almost 24.  At that time, he lived at the home of his own father.  A romantic and sexual relationship developed between the mother and Connor Gibson from the end of October 2013.  It is clear that the mother fell in love with Connor Gibson and hoped that they would ultimately become a family together and that he would form a happy, step-fatherly relationship with her daughters.  He began to spend nights at her home, although he was never to live there full time.  She permitted and encouraged him to perform increasing tasks for the children such as assisting with bath times and feeding them and tending to them if they awoke at night.  On occasions (he says between five and ten times), she left them in his sole care.  The children themselves also stayed regularly with their father, who was assisted in their care by his own mother.  Aspects of the father's reliability as a carer have been briefly alluded to but not explored at the present hearing, at which the father himself (although present throughout) has not given any evidence. 

6. However, in early March 2014 the father's own father became seriously ill in hospital.  This had the effect that, during March, the father was preoccupied with his dying father and was not available to help care for the children.  The father's father died on 25 March 2014 and his funeral was on Monday, 7 April 2014.  On Tuesday, 8 April 2014, the mother's employers told her that she must work a shift on the following Thursday morning, 10 April 2014.  This was not a day when Kacey had an available place at her nursery school.  The mother felt unable to ask the father to care for the children that day.  Her own mother was, unfortunately, not available due to a prior commitment.  So the mother asked Connor Gibson if he would sleep at the house over the night of Wednesday/Thursday, 9/10 April, and care for the children after she went to work.  She left home in a taxi to go to work at about 7.30 am on 10 April 2014.  Kacey was still asleep and, I am quite satisfied, unharmed.

7. At 09.53, Connor Gibson rang for an ambulance.  One happened to be very near by and the ambulance arrived at 09.57.  Kacey was unconscious and gravely ill, and was rushed to hospital.  The subsequent medical history and treatment is not relevant to what I have to decide.  Kacey died of injuries to her brain on Saturday, 12 April 2014.  On 10 April itself, the mother and Connor Gibson were both arrested and detained and questioned in relation to the severe injuries suffered by Kacey.  The investigation became a murder investigation after she actually died. 

8. The injuries to Kacey
 There are extensive documentation and reports in relation to injuries observed upon Kacey externally and internally before her death and during post-mortem examinations.  A schedule dated 19 January 2015 has been prepared for the purpose of this hearing by Miss Julia Cheetham QC, who appears on behalf of the local authority.  It is not necessary to what I have to decide to give a detailed list.  Kacey died as a result of severe haemorrhage and bleeding in her brain.  The precise mechanism by which that was caused in this case is not known, but it required acceleration and deceleration forces within her head.  Her head and body must have been violently shaken and/or struck an object with a sudden impact.  That fatal harm must have been caused only shortly before the ambulance arrived or she would already have been dead. 

9. As well as the injury to her brain, Kacey had suffered over 40 bruises to almost every part of her body, including her face and her head, her torso and back, her arms and her legs.  Post-mortem examination revealed that she had also suffered significant internal bruising to her intestines, her mesentery, her rectum, her diaphragm and her pancreas, and haemorrhage to her liver.  These internal injuries (other than to the brain) did not cause her death but they do indicate the severity of the attack upon her. 

10. Professor Timothy David, who is Professor of Child Health and Paediatrics at the University of Manchester and an expert witness of considerable renown, said that it is not possible to ascribe a time or date or age to any of these bruises except that one bruise on the inside of Kacey's right knee was already yellow when photographed on the evening of Thursday, 10 April 2014.  That particular bruise must have been caused at least 18 hours earlier and must, therefore, have been caused in some separate and earlier incident than the catastrophic brain injury.  That particular bruise is consistent with a bruise which both the mother and Connor Gibson describe on the inside of Kacey's right knee on 7 April 2014 (the day of the grandfather's funeral), to which I will refer below.  I am satisfied, on a balance of probability, that that particular bruise on the inside of the right knee is the bruise that was caused in a separate incident on 7 April 2014.

11. Connor Gibson's first accounts and trial
 The mother could not have caused the fatal brain injuries for she had left for work at 7.30 am and has, in effect, an alibi.  The story of Connor Gibson was, for many months, that he had left Kacey having a shower.  He heard a bang and found that she had fallen over in the shower.  She appeared motionless and he shook her vigorously in a well-meaning and lawful attempt to revive her.  He said that he had not caused any of the bruising or other injuries.  At paragraphs 37 and 38 of his statement in these proceedings, signed on 8 August 2014 (now at bundle page C76) he said:

"Initially, I refused to believe it could have been [the mother] that had harmed Kacey, but if it is a choice between [the mother] and me, I know it wasn't me, then there can only be one answer ...  I have not murdered Kacey.  I have not harmed her in any way ...  I wish I could assist the court further in what happened to Kacey.  I only wish I knew.  I am extremely saddened by Kacey's tragic death, and I myself wish to know exactly what has happened to her."

12. Connor Gibson was prosecuted for murder and his trial was listed to begin on Monday, 6 October 2014 at Preston.  On that date, after some negotiation with the prosecution, he pleaded not guilty to murder but guilty of manslaughter.  That plea was accepted by the prosecution.  Sentence took place on Friday, 10 October 2014.  The prosecution opened the case on the express basis that the defendant's actions on 10 April "were very much out of character" and that the mother "was perfectly happy to leave them in his care; she had, with respect, no reason to think otherwise."  The prosecution did, however, make quite clear that apart from the older bruise on the inside of the right knee, all the injuries had been caused in a single attack involving punching, kicking, stamping or being thrown against a hard surface. 

13. Mr David Fish QC, leading counsel on behalf of the defendant, expressly accepted, as had been agreed with the prosecution before, and as the basis of, the plea, that the defendant had caused all the injuries.  He said:

"I say here and now, my Lady, that nothing I say is either directly or obliquely intended to cast any blame at all on [the mother].  She is clearly devoid of any blame in these matters and Mr Gibson is very anxious that nothing is said that can even remotely be taken to be any criticism of her."

Mr Fish submitted that this was a case of sudden loss of temper.  There was no "build up".  His temper must have flared up suddenly.  He was devoted to both girls and there was no premeditation at all.  Mr Fish referred to:

"... relationships that involve episodes of violence going back over a period, where the violence frequently escalates prior to either a fatal attack or a very serious attack.  That is not the case here.  On the contrary, his behaviour towards the children is exemplary up until that morning of the 10th April."

14. As the case had been put in that way by counsel for both the prosecution and the defence, the judge, Mrs Justice Carr, was bound to sentence and did sentence on the following basis:

"Kacey's mother had no reason whatsoever to think that she could not safely leave her children in your care ...  You have now admitted responsibility for all of the injuries caused."

However, said the judge, his earlier lines of defence had implicitly and inevitably implicated the mother, who had suffered so significantly as a result.  The judge said that "this was a dreadful thing to do ..." and that "a considerable aggravating feature ... is your implication of Kacey's mother, and inevitable part of your defence assertion."  However: "This terrible incident was quite out of character ..."  The sentence passed, after giving ten per cent credit for the late plea of guilty, was one of nine years' imprisonment.

15. Connor Gibson's written accounts post-trial
On 30 October 2014, only about three weeks after his trial and sentence, Connor Gibson made a further statement in these proceedings, now at bundle page C162 to 164.  Despite what had been said so recently by counsel and the judge at his trial, as summarised above, Connor Gibson repeated in this statement that he had shaken Kacey but did not cause any other injury to Kacey.  He said that he had only accepted (through counsel) causing all the injuries because he was scared of being convicted of murder.  He continued:

"I know that I was admitting to something that I had not done but I felt that I was faced with no other choice.  Despite my plea, I did not harm Kacey causing the bruising or internal injuries.  I only ever shook Kacey ...  I am horrified by what has happened.  However, above and beyond the shake, I did not cause the injuries and I do not know how the injuries were caused."

He maintained this position in a yet further statement made as recently as 6 January 2015, now at bundle page C180 to 182.  

16. This hearing
Those recent statements inevitably necessarily implied once again that it was the mother who had caused all the external and internal bruising and injuries except those necessarily referable to shaking.  The first task at this hearing has therefore been to try to establish once and for all whether it was Connor Gibson who caused all the injuries or whether the mother caused any of them.  The second task, of relevance to the care proceedings and the future welfare of A, was to examine more critically whether the events of the morning of 10 April 2014 were as out of character as was presented at the criminal trial and whether his behaviour towards the children was "exemplary" until that morning; and whether it is correct to say, as was presented at that trial, that the mother "had no reason whatsoever to think that she could not safely leave her children in [Connor Gibson's] care".

17. The marks on A
 There was also a third task.  A was, appropriately, very thoroughly examined on 10 April 2014.  Three marks were observed upon her: a small, 0.3 centimetre diameter scab on her forehead with a surrounding light-coloured bruise; a small area of petechiae on the right side of her inner cheek; and a 2 centimetre by 3 centimetre crescent-shaped, brown-coloured bruise over the medial aspect of her right leg, just below the knee.  Photographs of these marks and the relevant documentation have all been thoroughly reviewed by Professor David.  His conclusion in summary, at paragraph 43 of his report dated 9 December 2014, now at bundle page E218, is that:

"... I do not see sufficient evidence to conclude that [A] was injured by someone, whether intentionally or as a result of an accident."

That remained his position during his oral evidence.

18. Both the mother and Connor Gibson resolutely deny doing anything, even accidentally or neglectfully, to A to cause or explain any of those three marks; and in the light of the evidence of Professor David, I am not satisfied, on a balance of probability, that either of them in any way harmed A either deliberately or accidentally.  It follows that I am not satisfied, for the purpose of the threshold criteria under section 31 of the Children Act 1989, that at the time of the commencement of these proceedings, A herself was suffering or had suffered any actual physical harm at all attributable to the care given to her, whether by Connor Gibson or by the mother.

19. Who caused all the significant harm to Kacey?
 After an immensely thorough review of all the medical photographs and documents, Professor David concluded in paragraphs 177 to 180 of his written report in relation to Kacey, dated 27 December 2014 (now at bundle page E313), as follows:

"In medical terms, it would appear likely that the injuries that caused the bruising (a considerable number, maybe 10 to 20 or more, of extremely violent episodes) preceded the head injury, which in turn is likely to have resulted in the child's immediate collapse ...  There is no evidence to suggest that the abdominal trauma had occurred before the mother left home on 10 April.  What is the evidence that any other person than the person who caused the fatal injuries was involved in, or was aware of, the cause of this child's multiple and ultimately fatal injuries?  I can see none.  From a medical point of view, my suggestion is that consideration is given to the probability that Kacey was the victim of a sadistic attack involving multiple extremely violent blows of an undefined nature ..."

[The words in italics above were added by Professor David to paragraph 179 of his written report during the course of his oral evidence.]  Professor David gave oral evidence substantially to the same effect. 

20. Miss Heather Hobson, who appears on behalf of Connor Gibson, said (and later confirmed again) that she was expressly instructed not to challenge what Professor David had said in paragraphs 177 to 180 as quoted above.  When he came to give oral evidence before me on oath, Connor Gibson expressly accepted that he had caused all the bruising and other injuries (apart from the older bruise to the inside of the right knee) in a single episode on the morning of 10 April 2014 and that the mother had caused none of them.  He said that what he had put in his statement dated 30 October 2014, quoted above, was not true.  He expressly stated that the mother was devoid of blame as Mr Fish had said on his behalf at the criminal trial.  The mother, too, firmly denied on oath that she had caused any of the injuries.  In the light of this evidence, in conjunction also with that of Professor David as summarised above, no party, including the local authority, now suggests that the mother directly caused any of the injuries to Kacey.  I am sure that she did not do so, and I am sure that Connor Gibson caused them all at a time when the mother was at work and not present in the house at all. 

21. Events prior to 10 April 2014
 It is now necessary, however, to describe a number of events and circumstances prior to 10 April 2014.  Part of the context is that both the mother and Connor Gibson agree that the relationship between Connor Gibson and Kacey was different from the relationship between Connor Gibson and A.  This may have been due to the fact that Kacey was older and already well bonded with her own father (she has been described as a "daddy's little girl") and was naturally more wary of Connor Gibson.  It may have been due to the fact that Kacey was more boisterous and has been described by her mother as "entering her terrible two's" and becoming quite cheeky.  Whatever the reason, both the mother and Connor Gibson say that Connor Gibson found it more difficult to relate with and to handle Kacey.  He himself said in his oral evidence that he had some issues with Kacey.  She did not warm to him straightaway.  She would not let him do anything for her.  She would walk off and go and find her mother.  She would not take a drink from him.  It is clear that Connor Gibson, who had had no previous experience of children or childcare, found this hard to understand and it was a source of frustration to him.

22. The hair incident
On 20 February 2014 the electricity meter ran out during the late afternoon and the house became dark and cold.  The mother and Connor Gibson and both children were there.  The key to the meter cupboard was missing.  They suspected that Kacey must have removed it and hidden it.  They hunted for it for about an hour but could not find it. (It was later found the next day, tucked inside a book, close to the meter cupboard.)  The mother then spent about 20 to 30 minutes in the kitchen, ringing the electricity company on her mobile phone to arrange for them urgently to supply another key.  During part of the time she went into the back garden, still on the phone, to have a cigarette.  She said that she did not smoke inside the house.  All this time, the only light was from candles.  When the mother went back into the front room, where the children had remained with Connor Gibson, he immediately told her that Kacey had pulled out a clump of her own hair.  The mother could see a circular bald patch just behind the crown of Kacey's head, with a diameter of about 1 inch.  That bald patch is, in fact, still clearly visible in a photograph that was taken of Kacey sitting in a red pedal car about a month later, and was also noted on the "body map" of injuries when she was admitted to hospital on 10 April.  The mother said that Kacey seemed all right.  She said that she, the mother, was mortified that Kacey had pulled her hair out because it was dark, but she accepted Connor Gibson's explanation that Kacey had done it herself, although she had never seen Kacey pull her hair out before.  The mother was clearly concerned about the incident, for the following day she asked a friend by text whether Kacey might have alopecia, and she consulted a number of other friends and relatives as well, although she did not consult the doctor. 

23. A striking feature about this incident is that the mother never saw the clump of pulled-out hair, although it must have been quite considerable; and it is inherently unlikely that, even if she had pulled it out herself, Kacey would deliberately have hidden or disposed of it.  Common sense dictates, and Professor David has confirmed, that the pulling out of that much hair would be extremely painful.  He said that plenty of medical conditions can cause hair loss but this does not look like one of them.  He said that it is not possible that Kacey, at her age, could have pulled out so much hair herself.  Connor Gibson maintains his denial that he pulled the hair out, but I am in no doubt that he did, in fact, do so, probably in revenge because he was blaming Kacey, rightly or wrongly, for hiding the meter cupboard key and causing the fruitless search.  The reason why the mother never saw any of the pulled-out hair was because Connor Gibson was careful to hide or dispose of it.  He knew what he had done and knew that the mother would soon spot the bald patch, so he deliberately pre-empted an enquiry by telling her that he had seen Kacey pull her own hair out. 

24. Although it may cause no lasting damage, for an adult to pull out any of a child's hair, and especially so large a clump (from a diameter of about an inch), is a very cruel act.  Since there is no evidence that it was done in temper or anger, it was an act to which, on the facts that I have described, I would attach the adjective 'sadistic'.  I accept, however, that, on the night, the mother was preoccupied by the continuing lack of electricity and cannot fairly be criticised for not, at that stage, being more questioning of Connor Gibson.  This incident became known during the hearing as "the hair incident". 

25. The dog bowl incident
 During the afternoon on 25 February 2014, the mother and Connor Gibson and both children were all at Connor Gibson's father's house.  The mother and A were in the front room.  Connor Gibson found Kacey in the kitchen, eating or playing with food in the dog bowl.  He was very angry with her and shouted at her.  What followed is dreadful to relate, but both the mother and Connor Gibson agree about the facts, and gave and demonstrated a substantially identical account in the witness box.  Connor Gibson picked Kacey up by one ankle and carried her, hanging upside-down, by a single ankle, from the kitchen into the front room, where he deposited her by the mother.  He had carried her in that way once before in play.  Kacey had not liked it and the mother had told him not to do it again.  This time it was not in play.  It was in anger because he was annoyed that the mother herself was not disciplining Kacey for eating from the dog bowl.  He said in his oral evidence that he was more annoyed with the mother than with Kacey and that he picked Kacey up by the leg to "piss the mother off".  He said that the mother was indeed "pissed off", she was furious, and she then left with the kids. 

26. In her oral evidence, the mother said that Connor Gibson was shouting at Kacey inappropriately because she was playing with the dog bowl.  He brought her through, holding her upside-down by one ankle.  The mother said that she was absolutely mortified and feared that Kacey might bang her head on the floor or furniture, although she did not in fact do so.  The mother said that she had already previously told him not to hold Kacey upside-down like that.  She was very cross with him, and she and the children immediately left the house.  Shortly afterwards, the mother sent the father a series of texts in which her anger at what he had done and her concern about it is very evident.  In one text, at 15.31, she said:

"Take w.e. [whatever] out on me, I'm not arsed, but the kids, that's the second time now!!!!! ..."

In another text, at 15.41, the mother ended that she was "speechless TBH [to be honest] for once".  He replied:

"Why you speechless?  She don't like me and she not mine.  That's the truth." 

The mother replied:

"Yer but the way u said it, I hate the way she is with you [...]  I told u the other night if this is too much for you, u need to let go before it gets worse or summert."

Connor Gibson replied:

"I don't need to let go.  Fucking hell.  I made her cry once.  It's going to happen a lot and things are going to get said when it gets a bit tough but I'm not arsed, it will get easier when she can talk."

27. Connor Gibson later came round and promised that it would not happen again.  In my view, however,  this should have been, and indeed was, a major warning incident for the mother.  With her own eyes, she had seen Connor Gibson do a cruel, degrading and dangerous act to the child in anger, and one which she knew the child did not like and which the mother had already told him (after the first time) that he must not do again.  It is obviously cruel to hang a small child upside-down by a single ankle whilst walking from one room through to another,  unless done very obviously in play, encouraged by the child.  I use the adjective 'degrading' as that was used and accepted by Connor Gibson's own counsel, Miss Heather Hobson, about this incident during her final oral submissions.  It is obviously dangerous, for the child's head could be knocked or indeed the foot or ankle damaged.  Connor Gibson had been shouting at the child and obviously did it in anger, whether that anger was finally directed at the child or at the mother.  The mother herself was rightly shocked and angry.  She clearly appreciated that Connor Gibson was not coping with the children, as her text, "[...] if this is too much for you, u need to let go before it gets worse or summert," reveals.

28. This incident, which was referred to during the hearing as "the dog bowl incident", occurred only five days after the hair incident.  The mother could not have forgotten the hair incident, for the bald patch was a constant reminder.  It is surprising that the dog bowl incident did not prompt her to question whether Connor Gibson had not pulled out Kacey's hair a few days earlier as well.

29. The SMS messages on 2 April 2014
On 2 April 2014 the mother was at work and Kacey at her nursery school.  Connor Gibson was caring for A at the mother's house on his own.  It appears that he left A in her baby bouncer without securing the strap.  She fell out and suffered a minor nosebleed.  There is no evidence at all that Connor Gibson in any way deliberately harmed A that day.  The significance of the incident is in the ensuing SMS messages.  Connor Gibson texted to the mother that A had a nosebleed and then there were the following exchanges.  Connor Gibson:

"Every time I look after one of them, they get hurt.  I don't wanna do it anymore."

The mother replied, in a message at 12:32:03, which used the vernacular and abbreviations of young people texting, and asked whether he was being serious.  He replied:

"She has a scratch on the top of her nose when she fell out that bouncer thing.  I feel bad.  She asleep in bed anyway."

The mother:

"We will talk, OMG [oh, my God].  If we av a kids they will b black n blue x."

30. The mother claims that her text at 12:32:03, asking whether he was being serious, was not intended to be sent to Connor Gibson at all but was part of an SMS conversation with a work colleague and she merely inadvertently sent it to Connor Gibson.  Whilst the mother may now have convinced herself of that – and I do not say that she is deliberately lying – I cannot accept that version.  Despite its inappropriate tone, the text fits naturally and in sequence with the surrounding texts.  If that particular text was not intended for Connor Gibson, as the mother claims, then there is the surprising lacuna that the mother was sending a trivial text to her colleague and not sending any text at all in reaction to the obviously worrying message from Connor Gibson that every time he looks after one of the children they get hurt and he does not want to do it anymore.  On a balance of probability, I am satisfied that the mother did intend to send that particular text at 12:32:03 to Connor Gibson as she indeed did. 

31. The mother said that when she got home, she was mortified when she saw A's face and went ballistic at Connor Gibson.  She said, however, that it remains quite possible that A could have fallen out of the bouncer.  The significance of this incident is not the fact of A falling out of the bouncer.  It is the obvious cri de coeur from Connor Gibson that "every time I look after one of them, they get hurt" and that "I don't wanna do it anymore"; and the mother's text shortly afterwards to the effect that if they have kids, they will be black and blue.  Although a short, ill-considered text sent in haste from work, this does indicate a realisation or appreciation by her that the children tended to get harmed, even if accidentally, when in the care of Connor Gibson, who could not cope.  Further, as with the dog bowl incident, the mother was mortified at what had happened and was furious, or ballistic, with Connor Gibson. 

32. The bruise on Kacey's knee
 On Monday, 7 April 2014, the mother attended the father's father's funeral, leaving the two children in the care of Connor Gibson.  She returned home after the funeral and collected the children to take them to the wake.  While collecting them, the mother saw that Kacey had a bruise, which she described in her oral evidence as a dirty bruise, on the inside of her right knee.  She said that she did not like it.  She thought it was unusual for a child to be bruised in that position rather than, say, on the shin or the front of the knee.  She said that, again that evening, she did not like the bruise.  It was dark and in an odd place.  She now thinks that Connor Gibson had done something to Kacey but she did not speak to him about it at the time.  Connor Gibson himself agreed that while he was caring for the children during the funeral, Kacey did bruise her right knee, although he said that he could not now recall how it occurred.  He said that he did not kick or punch her.  I am satisfied that this is the yellow bruise inside the knee that is clearly seen in the photographs taken on 10 April 2014 and which Professor David said must have been sustained at least 18 hours earlier but could have been sustained several days earlier.  I am unable to say how it was caused and whether accidentally or not.  The significance of this event is that it is the last of a series of events that I have described, and that it occurred only three days before Thursday, 10 April 2014.  The mother herself was obviously concerned, and remained concerned, about an unexplained, dirty bruise in an odd or unusual place, which had been sustained while Connor Gibson was caring for the children on his own.

33. The run-up to 10 April 2014
The day after the funeral, namely on Tuesday, 8 April 2014, the mother's employers told her that they were changing her roster and she must work on the early shift, on Thursday 10 April.  She says that her own mother was unable to care for the children that day as she had already agreed to dog-sit and house-sit for a friend.  She says that she felt unable or unwilling to ask the father or his mother to care for them so soon after the funeral, the more so as there had been an altercation at the wake.  There was no one else she could ask, so she asked Connor Gibson and he volunteered to care for them on the Thursday.  The mother is adamant that this was agreed and arranged on the Tuesday.  Connor Gibson says, by contrast, that she only asked him sometime late on the Wednesday.  He said that he did agree to do so but he was "pissed off" because it meant he could not play football on the Thursday morning with his friends as he had planned. 

34. On this disputed issue, I prefer the evidence of the mother.  She struck me generally as a very clear witness with good recall and frank in her evidence and answers.  With the one exception of her evidence as to the SMS message at 12:32:03 on 2 April, her evidence has not been shown to be untrue or unreliable in any respect.  Connor Gibson, on the other hand, has told many lies in written statements and in significant parts of his oral evidence.  There seems no reason why, once her roster was changed, the mother should have delayed asking Connor Gibson if she was going to ask him at all.  There is, for instance, no evidence that she was first asking anyone else.  She was not willing to ask the father at all and she knew from the outset that her mother was not available.  I conclude, on a balance of probability, that it was during the Tuesday that the mother asked Connor Gibson to stay on the Wednesday/Thursday night and care for the children on the Thursday morning, and he agreed to do so. 

35. The mother says that Kacey did not seem entirely well on the evening of Wednesday, 9 April and may have been sickening for some mild, childish ailment.  She was not her normal, bubbly self.  However, Kacey was out of bed and disturbed the mother between about 4.00 and 5.00 am.  The mother got up to deal with her.  Kacey walked back into her room and climbed back into bed.  Kacey did seem tired, but her hair was not tousled or matted or sweaty as Connor Gibson was later to describe it.  The mother did not see her again before leaving for work, but left her sleeping.

36. Analysis and some conclusions
 At paragraph 4.3 of his excellent and thoughtful closing written submissions dated 26 January 2015, Mr Peter Rothery on behalf of the mother wrote:

"In considering whether there has been a failure to protect, there is a danger that incidents before 10 April 2014 are viewed through the prism of the fatal assault of that day and invested with a significance which they would not have except with the benefit of hindsight."

That is a very important point and warning to which I am very much alive.  The essential matter which I have to address is the reasonableness of the decision of the mother to entrust the children to the care of Connor Gibson that day.  That requires consideration of everything that the mother knew or ought to have known up to that day, but must not be influenced at all by anything that actually occurred on or after that day.  I expressly caution and guard myself against falling into the danger or trap that Mr Rothery described, of viewing earlier incidents through the prism to which he referred.  I stop the clock, as it were, at the moment the mother left for work at about 7.30 am that morning. 

37. It is quite clear to me that the prosecution at the criminal trial were mistaken in describing Connor Gibson's actions on 10 April as very much out of character.  Mr Fish QC (whilst, of course, acting upon his instructions and with complete integrity) was mistaken in describing Connor Gibson's behaviour towards the children as "exemplary up until that morning of 10 April".  Mr Fish said that this was not a case of a relationship "that involves episodes of violence going back over a period, where the violence frequently escalates ..."  In fact, this was exactly such a case.  Mrs Justice Carr was bound to sentence upon the facts as opened by the prosecution and concurred in by Mr Fish, but she was unwittingly misled into saying that the incident was quite out of character and "an isolated, if tragic, occasion".  

38. I have described two previous but recent occasions upon which Connor Gibson treated Kacey with deliberate cruelty.  The hair-pulling incident on 20 February was, in my view, cruel and sadistic for reasons I have already given.  Carrying Kacey upside-down by one ankle in the dog bowl incident on 25 February was, in my view, cruel, degrading and dangerous for reasons I have already given.  The dog bowl incident was done in anger, both with the children and ultimately also with the mother, whom he wished to "piss off".  This is not exemplary behaviour and there was an escalation.  Furthermore, Connor Gibson's own text of 2 April 2014 that, "Every time I look after one of them, they get hurt.  I don't wanna do it anymore," clearly indicates that he himself knew that he could not cope with caring for even one of them (he had A on her own on that day) and that they get hurt in his care. 

39. Attributability
Section 31(2) of the Children Act 1989 provides as follows:

"(2) A court may only make a care order or supervision order if it is satisfied

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to –

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) [...]"

It is not necessary to make detailed reference to high authority.   The jurisprudence is clear that the phrase "attributable to" in section 31(2) connotes a causal connection, and clear that a contributory causal connection suffices.  The issue is not one of fault or intent or blame.  The issue is whether the care given, or likely to be given, is not what it would be reasonable to expect a parent to give.  

40. It cannot be said loudly, clearly and strongly enough that only one person killed and injured Kacey and that was Connor Gibson.  He, and he alone, was responsible, and he, and he alone, is to blame.  Nevertheless, it is, in my view, inescapable that there is a contributory causal connection between the mother's decision to entrust the children to his care that day and the harm.  Put simply, if she had not asked Connor Gibson to care, and left him to care, for the children that day, this terrible event would not have happened.  Her own decision and act in asking him to care, and leaving him to care, for the children that day was itself an aspect of the care given by herself to the children.  To ask someone else (e.g. a nanny or babysitter or friend or boyfriend) to care for a child, and to leave the child in the care of that person, is itself an exercise of care.  The critical question in this case is whether that exercise of care, when she left for work on 10 April, was not would it would be reasonable to expect a parent to give.  Objective reasonableness is the test and question, not fault, responsibility or blame. 

41. I wish to stress at this point that I am profoundly sympathetic to the mother in this case.  At the time of these terrible events, she herself was still only recently 23.  She loved her children.  She did her best to care for them well under difficult circumstances of being, effectively, a single parent and needing also to work at her job.  Her daughter was killed in cruel and brutal circumstances.  On 10 April 2014 itself, she was arrested and detained for several days, ultimately on suspicion of murder.  She was taken once, in handcuffs, to see her dying child on 11 April, but was not permitted to be present at the end.  She only saw her once more after she was clinically dead.  She was not permitted, for several months, to return to her home, which was being treated as the scene of a murder.  Since 10 April 2014, now over nine months, she has not been permitted to care at all for her surviving child, A, and is only permitted to see her at a contact centre for supervised contact three times a week.  She has been through, and is still going through, the most extreme torment.  Whatever her objective level of responsibility, she must feel, and always will feel, a terrible burden of guilt.  In the courtroom, she gave her evidence bravely, with appropriate affect, and, as I have said, clearly and with apparent frankness and candour.  However, of course, I must make an objective judgment and cannot be influenced by considerations of sympathy.

42. After considering this case with great care, now over a period of several days, I am driven to conclude that the care given by the mother in deciding to entrust, and actually entrusting, the children to the care of Connor Gibson on 10 April 2014 was not what it would be reasonable to expect a parent to give.  During her final oral closing submissions, Miss Cheetham QC, on behalf of the local authority, made clear that, at the end of, and in the light of, all the evidence, it is not the case of the local authority that the mother knew that Connor Gibson posed a risk to the children and that she deliberately took a risk, if only because she was unable to find anyone else that day.  Rather, the final considered case of the local authority is that the mother unreasonably failed to appreciate or understand that there was a risk.  I agree with that analytical distinction, and I agree with that final position of the local authority. 

43. By 10 April 2014, but before the events and prism of that day, the warning signs were clearly there, and they were growing.  Having dealt with them all at length above, I will deal with them only in very abbreviated form now.  They were, of course, cumulative, and a reasonably attentive mother would, or should, think back over earlier events in the light of later events.  The mother knew, on and before 10 April 2014, the following.  She knew that the relationship between Connor Gibson and Kacey was difficult and different from that between him and A, and that he found that frustrating.  She knew that, on 20 February 2014, Kacey had suffered the very sudden loss of the hair, which worried her but she could not explain.  On 25 February 2014, she had seen with her own eyes the cruelty and danger of the dog bowl incident and been very angry about it.  Her own text when she got home, that, "U need to let go before it gets worse or summert," speaks volumes.  His SMS message on 2 April, that, "Every time I look after one of them, they get hurt.  I don't wanna do it anymore," was an obvious cri de coeur.  Her own message a few minutes later to the effect that, if we have any more kids, they will be black and blue, may have been hurried and unconsidered, but it should have rung a clear warning bell with herself, especially when she got home, saw A's face, and became, as she said, ballistic.  Those messages, on Wednesday, 2 April, were rapidly followed by the dirty bruise in an odd or unusual place on Kacey's right knee only five days later on Monday, 7 April during the funeral.  Whatever the cause of explanation of that bruise, it vividly underlined Connor Gibson's own comment that, "Every time I look after one of them, they get hurt."

44. Putting all these matters together, any reasonable mother in the actual position of this mother, knowing what she had seen and knew, would, by and before 10 April 2014, have appreciated that it was too risky to leave the children alone anymore in the care of Connor Gibson for periods of any length.  I do not suggest for one moment that this mother could or should have foreseen that the horrific catastrophe of 10 April would happen.  But she should have foreseen that some harm might happen to one or other child and should not have left them in his care.  It is clear to me that the observation of Mrs Justice Carr that "Kacey's mother had no reason whatsoever to think that she could not safely leave her children in your care ..." although said kindly and protectively of the mother, was unwittingly misplaced.  The mother did have a growing number of reasons from which she should objectively have thought that she could not safely leave her children in the care of Connor Gibson.  For these reasons, I am satisfied in this case that the threshold criteria for making a care or supervision order under section 31(2)(a) and (b)(i) of the Children Act 1989 are established.

45. Events after mid-April 2014
There was some focus during the hearing upon the content of communications by letter and telephone between the mother and Connor Gibson during May 2014, and upon the fact that she voluntarily visited him in prison on 19 May 2014.  I make no reference to them in this judgment, for it is not appropriate to judge her acts, omissions and decisions prior to 10 April by reference to anything she said or did in the period of grief and turmoil after 10 April 2014.  If (I stress, if) they have any continuing relevance to decision making in the future, they can be considered as part of the forthcoming assessment of the mother and during the outcome hearing which I must now later conduct. 

46. What actually happened on 10 April 2014
It is not necessary for the present care proceedings to reach any clear or concluded view as to what actually happened on 10 April 2014 or the reasons why.  There is not the slightest prospect of Connor Gibson having anything whatsoever to do with A ever again.  However, this judgment would not be complete if I did not give some account and attempt some explanation. 

47. At 09.02 on the morning of 10 April, Connor Gibson sent to the mother a text to the effect that he and A had just watched Top Gear and had hot cross buns and Kacey was still asleep.  When the police later searched and photographed the house, there was indeed a half-eaten hot cross bun on a plate on the arm of the sofa beside the television, and there seems no reason to doubt the accuracy of, and the picture of calm conveyed by, that text.  Connor Gibson says that Top Gear ended at 09.25 and that he went upstairs to wake Kacey at that point as the Jeremy Kyle Show was starting.  There seems no reason, either, to doubt that evidence.  The attack, therefore, took place sometime during a period of about 25 minutes between 09.25 and, probably, 09.48, when Connor Gibson tried to call the mother on the telephone, or, at the very latest, 09.53, when he called the ambulance. 

48. He says that he does remember Kacey being in the shower at some point.  That does seem probable.  When the ambulance paramedics arrived, Kacey was naked and wrapped in a towel or blanket.  Her hair was damp, although her body seemed dry.  Connor Gibson said during his oral evidence that he remembers his own tracksuit bottoms being wet from handling her in the shower.  The police saw and photographed that the shower thermostat was set to the coldest position.  On the living room carpet, the police saw and photographed one neat, sausage-shaped piece of human faeces.  It appears to be of normal, soft, but not runny, consistency.  It would have been very easy indeed to pick it up through a piece of lavatory paper or kitchen towel and deposit it in the lavatory or a bin.  There was very minor staining visible on the carpet, which could have been wiped clean with ease with a damp J-cloth, wet wipe or similar.

49. During the course of the 999 call, Connor Gibson said that after Kacey had fallen over in the shower, he brought her downstairs and that "she had a poo if that makes sense".  It seems probable that the person who defecated on the carpet was Kacey.  However, the agreed medical evidence is that she is unlikely to have defecated after receiving the brain injury.  During his oral evidence, Connor Gibson claimed to have no recall of events between going up to wake Kacey at the end of Top Gear and ringing the ambulance.  He said that he had blanked it out as a coping mechanism.  I am sceptical whether he has really blanked out all recall to the extent that he claims.  However, without psychological evidence after a psychological examination of him, I cannot say that he has not blocked out all recall as he claims. 

50. In the absence of any account at all from Connor Gibson, however, the most likely, if speculative, scenario is as follows.  Connor Gibson did watch television until about 09.25 as he claims, with A strapped in her pushchair which was in front of the television, as clearly depicted in the police photographs.  He did go upstairs at or shortly after 09.25 to awaken Kacey.  She came downstairs.  At some point, she defecated on the living room floor.  This, coupled with his mounting frustration with her and cruelty towards her over previous months, triggered an outburst of rage, during which he repeatedly kicked and/or punched and/or stamped on her.  At some point, he shook her with great violence, possibly hitting her head on some surface.  She at once went floppy and lifeless.  He tried but failed to revive her in a cold shower.  He called, unsuccessfully, the mother and then called the ambulance.  His actions were unquestionably very brutal and very cruel.  Even if only for a matter of a minute or two (but maybe for longer), this small child must have suffered extreme pain and terror while being repeatedly punched, kicked or stamped upon, until she lost all consciousness after the shaking or impact which caused the brain injury.

51. I have carefully considered the suggestion of Professor David that this particular assault should be described as 'sadistic'; that is, carried out wholly or in part to gratify the assailant in some way.  It is possible that it was sadistic, just as I have described the hair-pulling as sadistic.  It is possible that it was purely the result of uncontrolled rage.  Without more insight into what happened, I do not feel justified in describing this particular assault (or any part of it) as sadistic, and I do not do so.  That in no way detracts from the appalling brutality, cruelty and gravity of the acts done.

52. The way forward
I will now give appropriate directions for appropriate assessments of the mother and the father and any other relevant person.  The case will be adjourned to a final outcome hearing before me as soon as possible after those assessments have been completed.
(End of judgment)
(Timetabling discussions follow)