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H-C (Finding of Fact: Rehearing) [2016] EWFC 48

Finding of deliberate smothering of an infant set aside on appeal followed by a rehearing which concluded the local authority failed to establish the fact of deliberate smothering.

Background
A was just 13 months old when he was found dead on 22 March 2014 in the care of Mr C who at the time was believed to be his father. Care proceedings brought by Lancashire County Council following A's death, concerned A's half-brother's K and J who were aged 6 and 2 respectively at the time of his death. The children's mother is Ms H. The father of K is Mr B. The father of J is Mr C. Both now live with Mr B. Subsequently DNA evidence confirmed that Mr C was not A's father and whose identity remains unknown. The local authority alleged that A suffered inflicted injury of bruising to his face and penis before his death. Initially, the pool of possible perpetrators included Mr C, Ms H, and the maternal grandfather however, at the conclusion of the evidence the case against Ms H and her father was withdrawn. Newton J found in July 2015 that Mr C had smothered A but did not find the other injuries were inflicted or that Mr C had caused them.

Mr C's appeal against the finding of deliberate smothering was heard in February 2016 in the Court of Appeal when that finding was set aside and the matter was remitted to the Family Court, leaving it open to that court to determine the question of whether or not there should be a rehearing: H-C (Children) [2016] EWCA Civ 136.  The matter came before Mr Justice Peter Jackson on 27 May 2016 who decided that a rehearing should take place. The local authority proceeded against Mr C alone, additionally seeking findings not pursued previously in relation to bruising to A's leg.

Law
Peter Jackson J managed the exercise of fact-finding in the manner summarised by Baker J in A Local Authority v M and F [2013] EWHC 1596 (Fam) - as fully set out in the judgment of Newton J - and reiterated in his own judgment in Re BR (Proof of Facts) [2015] EWFC 41. The burden of proving a fact rests on the person who asserts it. The respondent to an allegation does not have to prove anything. The standard of proof is the balance of probabilities: is it more likely than not that the event occurred? Neither the seriousness of the allegation nor the consequences, nor the inherent probabilities alters this.  Each piece of evidence must be considered in the context of the whole.

The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility.  When assessing alternate possible explanations for a medical finding, the court will consider each possibility on its merits. There is no hierarchy of possibilities to be taken sequentially as part of a process of elimination. Where there is a genuine disagreement about the origin of a medical finding, the court should not assume that it is always possible to know the answer. It should give due consideration to the possibility that the cause is unknown or that the doctors have missed something or that the medical finding is the result of a condition that has not yet been discovered. These possibilities must be held in mind to whatever extent is appropriate in the individual case. Where a person has told a deliberate and relevant lie it can support the truth of an allegation against him. However, it cannot of itself prove the allegation. An innocent person may tell lies for other reasons and all the possibilities must be considered before determining their significance: R v Lucas [1981] QB 720.

Conclusions
The threshold for intervention to protect K and J has been comprehensively crossed regardless of any findings about the death of A. Both parents are vulnerable individuals each with multiple difficulties that prevented them offering a safe and secure environment for their children in the past, and there is no likelihood of either of them being able to do so in the future.

Although the medical evidence tolerates the possibility that the bruising to the head and face are injuries inflicted by adults and even Mr C after A came into his care. However, on a narrow balance, this allegation could not be proved against Mr C. With respect to the bruising to the leg found post-mortem it is possible that the bruises were caused by Mr C by rough handling or in some other way but the court could not be satisfied this was probable. Conceivably, some of the marks may have been caused accidentally by the other children or by A himself when crawling and starting to walk.

Peter Jackson J found the case to be unusually finely balanced. The evidence a whole involved 'a number of confusing features that don't all add up'. His Lordship considered that there were valid arguments in favour of accidental and deliberate smothering of A as the evidence, medical and non-medical, allows for either possibility and each conclusion has its difficulties. His Lordship commented that Mr C's general tendency to lie when it suited him and the lies identified by the local authority did not corroborate the allegation of smothering in any significant way.

Peter Jackson J having considered the competing arguments and evidence as a whole, and acknowledging that his conclusion is accompanied by a considerable degree of suspicion and uncertainty about events of the night A died, concluded that the local authority had not established on the balance of probabilities that A died as a result of being deliberately smothered by Mr C.  The judge considered that it was at least as likely that A died as a result of being overlain by Mr C and/or wedged in a position where he could not breath. He could not exclude the possibility that Mr C deliberately smothered A, but this had not been proved, and accordingly it would be treated as a matter of law as not having occurred.

Expert Evidence
Those representing Mr C and Ms H were critical of aspects of the way in which a Home Office forensic pathologist presented an opinion.  Applying the standard set out in Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567 at paragraph 25 such that 'the court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice', Peter Jackson J - whilst acknowledging this was an unusually complex case for a pathologist - did not consider that the criticism that has been made to have been entirely borne out, although there was some substance in specific criticisms of the expert's reasoning in two respects. The adherence to her views was with regret described as unduly tenacious. These remarks were not intended to deter any expert from expressing honestly-held, scientifically based opinions, whether or not they accord with the views of colleagues. Peter Jackson J concluded; 'The proper administration of justice depends upon experts being frank and, where necessary, fearless. Where there is a difference of professional opinion, the court must choose, and the fact that an opinion is not accepted in a particular case, even when accompanies by strictures of the kind expressed above, need have no consequence for that expert's professional standing. My observations should be seen in this light.'

Summary by Paul Cregan, barrister, Coram Chambers.

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IMPORTANT NOTICE
This judgment may be published in this form provided that the family members are not identified.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so may be a contempt of court.

Case No: LM14C00017
IN THE FAMILY COURT

28 October 2016


Before :
THE HONOURABLE MR JUSTICE PETER JACKSON

- - - - - - - - - - - - - - - - - - - -
 
Between :
Lancashire County Council
Applicant
-and-
H, C and B
-and-
The Children Respondents
- - - - - - - - - - - - - - - - - - - -

Jane Cross QC and Alison Woodward (instructed by Lancashire County Council) for the Applicant
Frank Feehan QC
and Kathryn Korol (instructed by Birchall Blackburn LLP) for Ms H
Karl Rowley QC
and Lorraine Cavanagh (instructed by Forbes Solicitors) for Mr C
Leon Stringer
(instructed by Vincents Solicitors) for Mr B (for judgment only)
Susan Grocott QC and Peter Rothery (instructed by Cooper Nimmo Solicitors) for the Children

Hearing dates: 11 - 28 October 2016       Judgment date: 28 October 2016
- - - - - - - - - - - - - - - - - - - - -

JUDGMENT
JUDGMENT: H-C (Finding of Fact: Rehearing)

Mr Justice Peter Jackson
:
1. A was just 13 months old when he was found dead on 22 March 2014 in the care of Mr C, the man who was believed to be his father. 

2. These family proceedings concern A's half-siblings.  His half-brother K was aged 6 when A died.  His other half-brother J was then aged 2.

3. The mother of all three children is Ms H.  She was 26 when A died.

4. The father of K is Mr B, with whom K and J now live.

5. The father of J is Mr C.  He was 25 when A died. 

6. The identity of A's father is not known.  Both Ms H and Mr C believed that Mr C was the father, but in December 2014 DNA testing showed that this was not so.

7. At all events, Mr C came into Ms H's life when K was a few weeks old and had always treated all three children as his own. 

8. The proceedings were issued by the local authority immediately after A's death.  It alleged that A had suffered inflicted injuries to his head and face, and to his penis before he died.  Mr C, Ms H and the maternal grandfather were all identified as potential perpetrators.  The local authority further alleged that A died after being smothered by Mr C, possibly with a pillow from the bed in which they had both been sleeping.

9. The local authority's allegations were tried by Newton J in July 2015.  He found that Mr C had smothered A.  He did not find that any of the other alleged injuries were inflicted or that Mr C was responsible for them.

10. Mr C appealed against the finding of deliberate smothering.  His appeal was heard in February 2016 by Laws LJ, McFarlane LJ and King LJ and was successful: H-C (Children) [2016] EWCA Civ 136.  The finding was set aside and the matter sent back to the Family Court.

11. Mr C also faced a criminal trial on alternative counts of (i) murder (smothering) and (2) child cruelty (accidental suffocation by overlaying when sleeping in an overcrowded bed).  In the event, the Crown did not proceed to trial on either count, and formal not guilty verdicts were entered by a High Court Judge earlier this year.

12. The Court of Appeal left the question of whether there should be a rehearing to the Family Court.  On 27 May, I decided that a rehearing should take place, and this has now happened.

13. The parties have created an agreed narrative document, running to 58 pages and summarising a considerable amount of the information that is to be found in the 17 lever arch files that are now before the court.  That document represents a point of reference which I incorporate into this judgment. 

14. In September, an experts' meeting took place, lasting for the better part of a day.  From this arose a 42-point schedule of agreement and disagreement and a table of 46 pathological findings.  These too represent important points of reference, which I incorporate into this judgment.

15. It is in my view unnecessary for these detailed documents to be published, particularly as the broad facts are in the public domain in the judgment of the Court of Appeal.

16. During the hearing, I heard evidence from these witnesses:

Expert medical consultants
Dr Marta Cohen (paediatric histopathologist)
Dr Iskander Chaudhry (dermatopathologist)*†
Dr Nat Cary (Home Office forensic pathologist)
Dr Patrick Cartlidge (paediatrician)*
Dr Alison Armour (Home Office forensic pathologist)
Dr Roger Malcolmson (paediatric and perinatal pathologist)
Dr William Lawler (Home Office forensic pathologist)*†

Family members
Ms H
Mr C
Ms H's mother*
Ms H's aunt H
Ms H's brother D
Ms H's sister C*
Ms H's father

Neighbours
Mr H
Ms P

Witnesses from the day A died
Mr F (paramedic)
Nurse B
Dr O (consultant paediatrician)
PC C*
PC B
PC H*
DI J*

Social services
Ms S (allocated social worker)

17. Witnesses marked * did not give evidence before Newton J, and in the case of those marked †, their evidence was not then before this court.  One witness (Ms H's brother R) gave evidence at the first hearing only.

18. Other differences between this hearing and the hearing in 2015 are these:

• Throughout the evidence before Newton J, the local authority pursued a case that the marks and bruising to the head and penis could have been caused by Ms H or Mr C or by Ms H's father, who was accordingly represented at that hearing.  At the end of the evidence, the case against Ms H and her father was withdrawn. 

• At this hearing, the local authority has proceeded against Mr C alone, and Ms H's father has therefore not been represented.

• The local authority now pursues findings against Mr C in relation to the bruising to the leg, having not pursued such findings at the previous hearing.

• At the previous hearing, the local authority pursued its case against Mr C in relation to the four penile appearances [sites 23-26], but abandoned this allegation at the end of the evidence.  At this hearing, it has similarly pursued its case against Mr C until the end of the evidence, but again in closing submissions no longer pursues an allegation that the markings at the contentious biopsied site [23] and the neighbouring site [24] represent injuries.  However, on this occasion it nevertheless leaves it open to the court to find that the remaining two marks to the penis [25 and 26] are inflicted injuries, even though it does not pursue any positive case in relation to them. 

• At this hearing, there has been more clarity about the timing of the first photographs taken of A after death, and the experts have had a better opportunity to study and debate the post-mortem photographs and histopathology slides.  (Even so, on this occasion it only became apparent during the evidence of Dr Lawler, given last, that there was a misconception surrounding the photographs of site [23] and the views of the earlier witnesses about these photographs [Q139 and Q175] had to be clarified in correspondence.)

• Additionally, Dr Chaudhry prepared some further histological slides from the biopsy of the penis at site [23].

• Information from late 2015 about care proceedings concerning the children of the neighbours, Mr H and Ms P, had been admitted by the Court of Appeal and is now before the court.

19. The parties' detailed closing submissions collectively run to 90 pages. 

20. In this judgment, I shall consider the law, the local authority's allegations and the parties' responses, the non-medical evidence and the medical evidence.  I shall then state my conclusions.

The law
21. I approach the task of fact-finding in the manner summarised by Baker J in A Local Authority v M and F [2013] EWHC 1569 (Fam), as fully set out in the judgment of Newton J in this case.  In essence, as I said in Re BR (Proof of Facts) [2015] EWFC 41:

4. The court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns.

5. …

6. The burden of proving a fact rests on the person who asserts it.

7. The standard of proof is the balance of probabilities: Is it more likely than not that the event occurred? Neither the seriousness of the allegation, nor the seriousness of the consequences, nor the inherent probabilities alters this…

8. Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility.

9. When assessing alternative possible explanations for a medical finding, the court will consider each possibility on its merits. There is no hierarchy of possibilities to be taken in sequence as part of a process of elimination. If there are three possibilities, possibility C is not proved merely because possibilities A and B are unlikely, nor because C is less unlikely than A and/or B. Possibility C is only proved if, on consideration of all the evidence, it is more likely than not to be the true explanation for the medical findings…

10. Lastly, where there is a genuine dispute about the origin of a medical finding, the court should not assume that it is always possible to know the answer. It should give due consideration to the possibility that the cause is unknown or that the doctors have missed something or that the medical finding is the result of a condition that has not yet been discovered. These possibilities must be held in mind to whatever extent is appropriate in the individual case.

22. I would add that the very basic corollary to (6) above, important in this case, is that the respondent to an allegation does not have to prove anything. 

23. I further direct myself in accordance with R v Lucas [1981] QB 720.  Where a person has told a deliberate, relevant lie, this can support the truth of an allegation against him.  However, it cannot of itself prove the allegation, as was emphasised by McFarlane LJ at paragraph 100 of his judgment in these proceedings.  The court must bear in mind that an innocent person may lie for other reasons.  Where lies have been told, it is necessary to consider all the possibilities before reaching a conclusion about their significance.

The local authority's allegations and the parties' responses
24. The local authority, through Ms Cross QC and Ms Woodward, makes general allegations of chronic domestic violence, neglect, substance misuse, and dishonesty, and specific allegations in relation to injuries and death:

Domestic violence
The relationship between Ms H and Mr C was characterised by frequent domestic violence and instability:

(i) In 2011 there were four reports of domestic violence including on 22 April 2011, when Ms H reported that Mr C had assaulted her when the children were present.

(ii) On 9 April 2012, Mr C punched Ms H to the side of the face, causing bruising; the children were removed to the maternal grandmother's home.

(iii) On 4 October 2013, Mr C grabbed Ms H by the head and pushed her into a wall.

(iv) On 29 May 2015 (after the death of A), the police were called by neighbours to a domestic incident between Ms H and Mr C; both were found to be intoxicated.

(v) On 30 May 2015, Mr C assaulted Ms H grabbing her hair, hitting her head into the wall repeatedly, head-butting her and lifting her from the floor by the nose with his teeth. He was subsequently found guilty of a s39 assault.

Neglect
Ms H and Mr C neglected the children:

(i) On 20 May 2012, J was taken to the A&E department with extensive nappy rash. Mother was reported to be too tired to attend the hospital.

(ii) On 22 May 2013 the head teacher called the police as Mr C was drunk in control of J.

(iii) On 14 August 2013, both parents were drunk.  Neither parent was aware of where the three children were.

(iv) On 18 August 2013, Ms H was drunk and unaware of who was caring for her children.

(v) On 12 October 2013, Mr C left J and A in a neighbour's garden alone and in soiled nappies.  Mr C was convicted of neglect on 16 October and served a 16 week sentence of imprisonment.

(vi) K had missed several orthoptic appointments.

Substance misuse
While the children have been in their care, Ms H and Mr C abused:

(i) alcohol; and

(ii) drugs (cocaine, heroin, cannabis and benzodiazepines)

(iii) Mr C has been convicted of possession of crack cocaine.

Dishonesty
Ms H and Mr C were dishonest with the Local Authority and other professionals (including substance misuse services) engaged in providing them with support to meet the welfare needs of the children.

25. The local authority then alleges that prior to death A sustained the following inflicted injuries at the hands of Mr C:

(i) Bruising at 17 sites on his head and face;

(ii) Bruising at 5 sites on his right leg;

(iii) Bruising at 4 sites on his penis.

26. Finally, the local authority alleges that A was intentionally smothered by Mr C.

27. I have indicated above the local authority's final position in relation to the appearances on the penis.

28. On behalf of Ms H, Mr Feehan QC and Ms Korol do not make a positive case in relation to the cause of A's death, but seek her exoneration in relation to any previous inflicted injury.  They argue that the evidence as a whole could support either outcome in relation to the cause of death, but that any findings against Mr C in respect of bruising or, particularly, injuries to the penis may be significant. 

29. On behalf of Mr C, Mr Rowley QC and Ms Cavanagh argue that the evidence does not come up to proof in relation to any of the allegations concerning injuries and death.  The court may be left with suspicions, but these are an insufficient basis for findings.  They are critical of the position taken by Dr Armour. 

30. On behalf of the Children's Guardian, Ms Grocott QC and Mr Rothery emphasise the importance to K and J of the issues that are now before the court.  They submit that the evidence establishes that Mr C caused bruising to A's head, face and leg but that it does not support a finding of injury to the penis.  A died of asphyxiation: how this occurred is a matter for the court in the light of its overall assessment. 

Conclusions
31. Having considered all these matters, my conclusions are these:

(1) The threshold for intervention to protect K and J has been comprehensively crossed, regardless of any findings about the death of A.  There is no doubt that Ms H and Mr C cared about the children, and that with the help of other family members they tried to give them a normal, orderly home life.  Each of the children shows signs of having received some reasonable parenting.  However, due to adults' own personal weaknesses they were completely unable to put the children's needs first on a consistent basis.  Relationship instability, binge drinking, drug abuse and violence were a regular feature of their lives.  In particular, when he had been drinking, Mr C assaulted Ms H on a number of occasions, causing what were fortunately relatively minor injuries.  I find that the local authority has proved its case in respect of all the general allegations that it makes.  In particular, I accept the allegations in respect of Mr C's repeated violence towards Ms H.

(2) Both parents are vulnerable individuals.  The main responsibility for the children fell upon Ms H.  When he was in a fit state, Mr C was able to support her, taking on all of the childcare tasks to some extent.  But all too often, his behaviour added to Ms H's own difficulties, leading to repeated breakdowns in the children's family life.

(3) Neither parent was able to give a fully credible account of events.  The mother is now in a very fragile state.  I believe that she was trying to help the court but that the passage of time and the enormity of what has happened has taken its toll.  As for Mr C, he was, I am afraid, a pitifully poor witness.  He appeared to be overwhelmed by his situation.  The continuously tearful way in which he gave evidence raise the question of whether he was doing his best to help the court or not.  He frequently resorted to saying that he could not remember events, particularly when they related to assaults on Ms H.

(4) A number of family members spoke about the strong points of Ms H and Mr C as parents. I accept that they did some things well on a day-to-day basis, so that for example the children's home was clean and tidy.  However, it is not possible to regard parents with this history of child neglect and disorder as being "brilliant", or anything of the kind.  More specifically, the assertion in the closing submissions on behalf of Mr C that he was "a caring, patient parent" has to be viewed in the context of his being a man who regularly beat the children's mother and had recently served a prison sentence for neglecting them.  Quite apart from major breakdowns when the children had to go into the care of relatives or into foster care, I find that this was a home environment where there will not have been high levels of supervision for three lively children with differing needs. 

(5) This family received significant help from outside agencies.  Social services gave them the opportunity to strengthen their family life, but neither parent welcomed this, and nor were they truly motivated to change.  They did what they needed to do to keep social services onside, hoping to be left alone as soon as possible.  In the early months of 2014, they did not give the social worker or other members of the family a true account of how much they were seeing of each other and what their intentions were.  As for Mr C, he reduced his drinking for a time, but did not level with his substance misuse worker about his street drug intake.

(6) The social worker considered it to have been understood that Mr C was not to be having unsupervised overnight contact, despite what she felt to be the generally positive way in which his life was going.  Both Ms H and Mr C have said that they thought that he was "off supervision" in the week before A's death.  I am doubtful that they really believed that, as opposed to persuading themselves that they believed it, but even though it can now be seen as tragic that Mr C was unsupervised, this issue adds little to the overall assessment of the parents' level of engagement.

(7) From the above, I conclude that each of these parents has multiple difficulties that prevented them from offering a safe and secure environment for their children in the past, and that there is no likelihood of either of them being able to do so in the future.  I further conclude that while both of them has contributed to this state of affairs, the greater responsibility falls upon Mr C, whose alcohol-fuelled violence caused repeated crises.  Lastly, I do not find that Mr C is someone whose evidence can be taken at face value and believed if there is some other reason to doubt it.

(8) Turning to the death of A, and the injuries then seen, the picture is a complex one.  Referring only to the pathology evidence, Dr Malcolmson referred to "a number of confusing features that don't all add up".  In my view, this description applies not only to that evidence, but to the case as a whole.

(9) In relation to the bruises generally, the bald account from witnesses is that A had few if any marks on him when he went to Mr C, but that he was found with numerous recent bruises some 15 hours later.  However, as Mr Feehan and Ms Korol note, the situation is complicated by these features: (a) the bruises are all capable of being accidental or self-inflicted given A's age and developmental stage; (b) many of them are relatively insignificant and may not have been visible to a reasonable carer; (c) some possible explanations are given for the larger and visible bruises; and (d) what was seen after death was more than would have been visible in life, because of the effect of post-mortem pallor.  Furthermore, although the bruises are recent, it is not possible to discriminate on the basis of their appearance between the periods before and after the children came into the care of Mr C.

(10) In relation to the bruising to the leg that was found post-mortem, I accept Dr Cartlidge's opinion that the siting of some of the marks is somewhat unusual, but note that neither he nor the other experts placed particularly strong emphasis upon them.  I find that it is possible that this bruising was caused by Mr C after A came into his care, for example by rough handling during nappy changing, or in some other way.  However, I cannot be satisfied that this is probable.  It is at least as likely that the bruises occurred at an earlier time, but were not detected.  Nor has it been established that they were inflicted as opposed to being accidentally caused by one of the other children.  Moreover, A is accepted by the local authority to have been a lively, boisterous child.  It is conceivable that at least some of these marks were accidentally caused by A himself in the course of crawling and starting to walk. 

(11) In relation to the bruising to the head and face, I accept the unanimous professional opinion that their number and distribution is concerning, though far from diagnostic of inflicted injury.  The medical evidence certainly allows for the possibility that these are injuries inflicted by adults and that they could have been inflicted by Mr C after A came into his care.  However, this has not in my view been proved.  Although no marks were seen on A by others before he went to Mr C (and in particular none were noted by Ms H's aunt or sister C that afternoon), I cannot discount the description given by Ms H and Mr C that A had two or perhaps three bruises on his forehead before that time.  He was a child who was seen to head-bang by a number of family members, although this cannot have caused anything like all of the bruises seen after death.  I am nonetheless struck by the fact that Dr O noticed far fewer bruises on first examination and that they seemed to her to be possibly accidental.  The greater number of bruises identified on post-mortem cannot be confidently assigned to the period when A was in Mr C's sole care, and no allegation has been made, still less proved, against Ms H.  The distribution of the bruising has rightly attracted attention, but none of the marks is convincingly associated with inflicted injury, nor are any of them suggestive of the delivery of heavy blows.  On a narrow balance, I therefore cannot find this allegation proved against Mr C.  Even if I am wrong about that, it is not suggested by the local authority that these marks can be found to have been caused in the course of deliberate smothering, although of course any proven assault would alter the calculus when considering how A died.

(12) That point is all the more applicable to the allegations in relation to marking on the penis, because if this was bruising, it could only be the result of abuse.  As was said by a number of witnesses, an adverse finding on this point would alter the complexion of the case.  The issue of what these post-mortem findings represent occupied more time at this hearing than any other.  In particular, an enormous amount of attention has been paid to the interpretation of the photographs named above and the biopsy from site 23.  This site and its neighbours was considered by everyone to be bruising on the basis of naked eye examination, with some further support coming from the appearance of some blood on incision.  However, the results of the histopathology were surprising and led all the experts apart from Dr Armour to revise their opinion.  In the end, no party to the proceedings argues that the appearances at this site or site 24 have been proved to be bruising, as opposed to vascular congestion arising from an unidentified inflammatory process, with or without the additional effects of any hypostasis.  I accept that is a proper conclusion.  I understand Dr Armour's reasoning, but I markedly prefer the views of the other experts on the point.  I accept that a tiny amount of extravasated blood can be seen microscopically, but find that it is highly unlikely that this could explain the naked eye appearances mimicking a bruise. 

(13) Nonetheless, the local authority has not formally withdrawn its allegation in relation to sites 25 and 26, on the basis that these appearances look somewhat different to the naked eye.  In my view, there is no longer any good foundation for a submission that sites 25 and 26 represent bruising.  Site 23 was generally considered to be a bruise until it was examined microscopically and it would be illogical to consider that sites 25 and 26 are bruising when site 23 (which was biopsied because it appeared to be the most obvious bruise) has not been shown to be a bruise.  I also consider that particular caution is needed when assessing marks to the penis: despite the exceptional amount of professional experience within the body of experts, none of them had previously engaged in a similar exercise of interpretation of penile findings.  Finally on this topic, no DNA from Mr C was recovered from the swab taken from A's penis.

(14) In reaching my conclusions about the allegations of non-fatal and fatal injury, I do not overlook the evidence from the neighbours.  This is one of the perplexing features of the case.  Taken at face value, Mr H and Ms P separately describe hearing sounds coming from the flat above that would be consistent with Mr C having lost his temper during the night and early morning and with a child crying.  However, there are a number of features that have to be taken into account.  The first is that both Mr H and Ms P (as they now accept) lied on oath about their dysfunctional relationship at their own family court hearing last year.  As part of that lie, they told Newton J in July 2015 in these proceedings that they had not discussed their evidence: in fact, they had spoken about this case for about an hour in June 2015 when the news of Mr C being charged with murder became public.  These lies were, I accept, motivated by considerations relating to their own family; accordingly I do not find that their untruthfulness destroys their credibility in relation to the issues before me.  Of more relevance is the fact that what happened to A is an emotionally charged subject for them, bearing in mind the removal of their own child.  There are also other matters to consider.  The first is that it was not until a week after the event that they gave their first accounts, even though the police had, as Mr H put it, been going up and down stairs all week – something he said he regarded as none of his business.  Next, the layout of the building in relation to the outside world gives rise to the possibility that any sounds heard by Mr H in the middle of the night were coming from elsewhere than the upper flat, and that his certainty on that question is misplaced.  This is particularly worth considering as Mr H's description is of hearing raised voices that he interpreted as being a domestic argument between a couple, while the evidence establishes that Mr C was the only adult in the flat and that he did not make any phone calls at the relevant times.  Also, the occupant of the other upstairs flat (who did not attend to give evidence) has a lengthy criminal record for drug dealing: he or others may have been on the move that night.  As to Ms P's account, there is in my view nothing to overcome the likelihood that what she was hearing at dawn was the aftermath of Mr C discovering A to be moribund.  That is something which undoubtedly will have caused a deal of noise, followed by the arrival of the emergency services, something that surprisingly neither Ms P nor Mr H say they heard.  The words Ms P describes hearing – "I fucking hate you. Get out now." – are not easy to reconcile with an assault by an adult on a toddler.  It is also hard to escape the feeling that the account given of Ms P saying "It sounds like a baby's being battered upstairs" owes something hindsight.  Taking all these matters together, I cannot find Mr H and Ms P to be witnesses upon whom I can rely when trying to reconstruct what took place in the upstairs flat.
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(15) In relation to the cause of A's death, the evidence establishes that he almost certainly died as a result of being asphyxiated and that at and from the point of death he was on his front and on his back for significant periods of time.  The medical evidence does not establish which position came first, but the evidence of Mr C (which in this instance has been consistent) is that A was found on his back in the morning.  I therefore consider it probable that A was on his front at an earlier stage and that he was asphyxiated face down. 

(16) The time of death not been established, but the general opinion of the experts was that he had been dead for some hours before the ambulance arrived, and probably nearer to midnight than dawn, which was just after 6.00 a.m. that day.

(17) As to how A came to be asphyxiated, I find that there are valid arguments in favour of accident and of deliberate smothering.  The evidence, medical and non-medical, allows for either possibility and each conclusion has its difficulties.

(18) I consider that these factors point towards deliberate smothering:

• Mr C has a history of violence towards Ms H, including when the children have been nearby. 

• Mr C has lied about the extent of this violence.

• This was the first occasion that Mr C had the three children with him overnight on his own.

• A is significantly older than the typical victim of overlaying.

• A would have been expected to struggle and alert an adult if he was being overlain.

• Mr C gives no account of taking Valium after the middle of the previous day or of feeling sedated.  He says he felt fine. 

• It is difficult to explain how A's body was moved after death from a prone position to the supine position he was found in, but it is not impossible that he was disturbed in the course of a complicated co-sleeping arrangement.

• Mr C's four-minute delay in calling an ambulance is troubling.

(19) In favour of an accidental cause:

• Mr C's violence is associated with excessive drinking.  The blood test taken at noon the following day showed no evidence of alcohol intake.

• The levels of diazepam and nordiazepam found in Mr C's blood were significant and might conceivably explain a failure to respond to A's struggles.

• The fact that Mr C did not open any of the six text messages sent by Ms H between 2.39 and 2.58 a.m. is consistent with his account that he was asleep at the time.

• Mr C has never been witnessed to be violent or even rough towards a child.  For him to have smothered A would have required an act of cruelty lasting at least 30 seconds and probably in the order of a minute or thereabouts. 

• The sleeping arrangements were overcrowded and hazardous. 

• Although older than average, A was not outside the age group for whom overlaying is a risk. 

• Mr C is quite a large man (5'11" tall and then weighing 14 stone).

• The pressure marks on A's head are of particular interest because they were caused within a relatively narrow timespan at or after the time of death.  They are, as Dr Lawler said, the most specific findings.  They might have been caused by A becoming wedged in the corner between the bed and the wall, or perhaps being trapped there by Mr C's sleeping body, and as such they give some support to an overlaying and/or wedging scenario.  It is of course far from certain that they were caused in this way, but it is not entirely implausible.  If, on the other hand, they had been caused by deliberate force, it would have entailed Mr C not only forcing A's head into a soft object to smother him, but also forcing him against a hard object until he died, increasing the cruelty involved.

• Alongside this, there is an absence of the kind of injury in the area of the nose and mouth that may (but need not always) accompany deliberate suffocation.

• The absence of any account by K (aged 6) at his ABE interview on 2 April of any violent disturbance in the flat that night or of A having any "hurts": it a real possibility that K would have become aware if Mr C was inflicting injuries on A during the evening and in particular that he might have witnessed a major loss of control; his inability to describe anything of that kind speaks more for overlaying than smothering. 

• No injury was sustained that night by J, or by K.  If A was the subject of repeated violence, he was singled out.

• The delay in calling an ambulance can be seen in the context of the very variable way in which people react in a crisis, the personalities involved, and their attitude to authority.

• Mr C's distress during the protracted 999 call was certainly genuine.  It is of course possible that this was guilty rather than innocent distress, but there is nothing in the call to suggest this.

• It is accepted that such account as Mr C has given of the night in question has remained broadly consistent.

(20) Factors that are non-specific:

• My above findings in relation to the bruising to the leg and head.

• My above findings in relation to the marks on the penis. 

• The indeterminate cause of the abrasions on A's cheeks and the linear marks on the nose and cheek caused by bedding.

• On my findings, the evidence of the neighbours.

• Even on my critical assessment of Mr C's evidence, there was nothing in it to further increase the level of suspicion arising from the surrounding circumstances.

• Mr C's general tendency to lie when it suits him and the lies identified by the local authority do not in my view corroborate the allegation of smothering in any significant way. 

• I do not consider that Mr C's grievance about not being paid for a piece of work has anything beyond speculation to contribute to an assessment of what befell A.

(21) I find this matter to be unusually finely balanced.  Having considered the competing arguments and the evidence as a whole, I have concluded that the local authority has not established on the balance of probabilities that A was deliberately smothered by Mr C.  I consider it at least as likely that A died as a result of being overlain by Mr C and/or wedged in a position where he could not breathe. 

(22) I acknowledge that my conclusion is accompanied by a considerable degree of suspicion and uncertainty about the events of that night.  I cannot exclude the possibility that Mr C deliberately smothered A, but this has not been proved, and accordingly it will be treated as a matter of law as not having occurred.

(23) This rehearing has placed a heavy burden on all those who participated, particularly the family members.  However I am in no doubt that it was right for the death of A to be reinvestigated in the light of the further evidence that is now available.  The issue was far too serious to be left in limbo and, given the state of the evidence, the local authority was obliged to proceed as it is done.

(24) Finally, I am happy to record the very high level of cooperation between the medical experts in preparation for this hearing.  The post-mortem findings have received their most intense consideration, and the witnesses offered honest professional opinions and gave evidence with proper respect for their colleagues. 

(25) I need, nevertheless, to address the criticism made of Dr Armour by those representing Mr C and Ms H.  It is said (1) that she should have drawn attention in her post-mortem report to the lack of support for penile bruising in the original histopathology conducted by Dr Bitetti; (2) that she was unwilling to properly consider possible accidental explanations for the facial bruising; (3) that she was unduly dogmatic about the presence of penile bruising in the face of the strong contrary opinions of her colleagues; and (4) that she amalgamated five soft or neutral signs (pressure marks, abrasions, intra-alveolar haemorrhage, pattern marks, perioral pallor) into an inappropriate expression of certainty about smothering as the cause of death. 

(26) In Re U (Serious Injury: Standard of Proof); Re B  at paragraph 23 it was said that  "The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice".  Having measured Dr Armour's evidence against this standard, I do not consider the criticism that has been made of her to be entirely borne out.  This was on any view an unusually complex case for a pathologist and the constellation of findings at post-mortem was very concerning.  In relation to the bruising, Dr Armour's views commanded widespread support.  In relation to the issue of penile bruising and cause of death, it cannot be said with any certainty that her conclusions are wrong.  However, I do consider that there is some substance in the specific criticisms of her reasoning in two respects.  The first is that I would have expected an expert of Dr Armour's calibre to have referred to Dr Bitetti's investigation in her original report and to have given greater weight to the views of distinguished colleagues about the difficulties in diagnosing penile bruising, particularly when the relative absence of convincing histopathology was so exhaustively investigated.  The second is that the five weak signs listed in the footnote could not in my view sustain the weight of certainty of Dr Armour's conclusion about the cause of death: in this respect, the cross examination by Mr Rowley QC was telling.  I therefore felt unable to accept her opinion on those issues in preference to those of her colleagues.  In this case, her adherence to her views was, I regret, unduly tenacious.  It should nevertheless be recorded that her conduct of the post-mortem was not subject to any criticism and that her mastery of the detail of the pathology was typically formidable. 

(27) I would not want these remarks to deter any expert, Dr Armour included, from expressing honestly-held, scientifically-based opinions, whether they are in accordance with the views of colleagues or not.  The proper administration of justice depends upon experts being frank and, where necessary, fearless.  Where there is a difference of professional opinion, the court must choose, and the fact that an opinion is not accepted in a particular case, even when accompanied by strictures of the kind expressed above, need have no consequences for that expert's professional standing.  My observations should be seen in this light.

(28) I end by thanking the parties' representatives for the manner in which this hearing has been conducted, and by acknowledging in particular the good work done by the solicitors for the local authority and the Guardian, Ms Dawson and Ms Walsh.