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Wigan Metropolitan Borough Council v M & Ors [2016] EWFC 13

Judgment by Jackson, J concerning the importance of findings of fact being made in a timely manner. In this case the allegations to be determined were over 20 years old.

The court was concerned with J, a three year old boy who was in foster care, the local authority having become involved as a result of the father assaulting the mother. Before welfare decisions in his case could be determined, a 9-day fact finding hearing was heard to determine whether the father posed a risk to him and his mother in light of historic concerns.

In March 1994, the father and his then partner C had a baby girl called A. She died at 10 weeks of age as a result of a head injury inflicted by one of her parents. A post mortem found that she sustained a number of other serious injuries in the weeks preceding her death. A police investigation took place and the father was charged with murder which were later dropped.

The father and C separated after A's death and there was further local authority involvement with C and her next child who was born after A's death and not to this father. As part of those proceedings the final order recorded that A's injuries were non-accidental and that they were caused by one or other of her parents.  It was said that while the mother had failed to protect A, she did not murder her.  The father had not engaged in those proceedings and therefore Jackson J determined that the assessment of future risk was therefore structurally unsound.

The court found that the father was responsible for the injuries and death of A and that C failed to protect her but did so in the context of a domestically abusive relationship which demoralised C and disabled the ring of protection that an adult would normally give to a child. 

The judgment helpfully reminds practitioners of the role that Guardians and their lawyers can play in fact-finding hearings to best represent the child and assist the court.

Summary by Anna Walsh  barrister, Coram Chambers

_____________________________

IMPORTANT NOTICE
This judgment is approved for publication in the strict condition that the individuals to whom it refers are not identified in any report.  All persons, including representatives of the media, must ensure that this direction is strictly complied with.  Failure to do so may be a contempt of court.

Case No: MA15C00299
Neutral Citation Number: [2016] EWFC 13
IN THE FAMILY COURT
11 March 2016
Before :
THE HONOURABLE MR JUSTICE PETER JACKSON
Sitting at Manchester Civil Justice Centre

Between :

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

Wigan Metropolitan Borough Council
Applicant

-and-
M (1)
F (2)
J, by his Children's Guardian (3)
Respondents
-and-
C (Intervener)

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

Frances Heaton QC and Linda Sweeney (instructed by Wigan MBC) for the Applicant
Kathryn Hughes
(instructed by HCB Widdows Mason LTD) for M
Sarah Morgan QC and Carl Gorton (instructed by Platt Fishwick Solicitors) for F
Christine Bispham (instructed by Watsons Solicitors) for J
Sara Mann (instructed by Stephenson's Solicitors LLP) for C

Hearing dates: 1-10 March 2016;  Judgment date: 11 March 2016;  Released for publication 13 July 2017

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

JUDGMENT

JUDGMENT:  Wigan MBC v M (Historic Child Death)

Mr Justice Peter Jackson:

Introduction

1. The events described in this judgment are a terrible example of how wide-ranging the consequences of domestic abuse can be.  Its direct impact on adult and child victims is well known, but it can also have secondary effects.  One of those is the demoralisation of an adult victim, disabling the ring of protection that the adult would normally offer to a child.  In an extreme case, of which this is one, the result can be fatal.

2. The case is also demonstrates the importance of the court making the findings of fact necessary to underpin its decisions in a timely way.   

3. These proceedings concern J, a three-year-old boy who is in foster care.  A decision needs to be taken next week about whether he can return to his parents or to the care of his mother alone or to other family members.  A central question is whether the father represents a risk to J and his mother, based on past events. 

4. The local authority only became involved in J's life in January 2015, when he was nearly 2 years old.  This was a result of an assault by the father on the mother, which led to her going into a refuge.  When the family background was investigated, the father's history was discovered.

5. This judgment is given at the end of a fact-finding hearing lasting nine days.  Unusually, it concerns events that took place over 20 years ago.  The events did not involve J's mother, who only met the father in 2011 and did not come to hear of them until March 2015.

6. The evidence at this hearing has concerned a baby girl named A.  She was born in March 1994 and died in May 1994 at the age of 10 weeks.  She was the only child of the father and of C, who (as we are speaking of her child) I will from now on call the mother, although she is not of course the mother of J. 

7. A's death was the result of a head injury inflicted by one or other of her parents, and at post mortem she was found to have sustained a number of other serious injuries in the preceding weeks.  The parents were arrested and questioned.  The father was charged with murder, and spent some months in custody, but the charge was later dropped. 

8. A's mother ended her relationship with the father at the time of A's death.  In 1995, she had another child by a different father and the local authority brought family proceedings.  The baby was placed in foster care at birth, but went home at the age of 11 months under a care order.  This outcome was successful, and the care order was discharged in 2001.  In 1998, the mother had a third child in respect of whom no proceedings were taken.

9. During the 1995 proceedings, a great deal of thought was given to the possibility that A's mother may have been responsible for her death.  Unfortunately, neither the parties nor the court thought it necessary to establish the facts.  The father was not involved in those proceedings at all.  Accordingly, these proceedings in relation to J are the first time that a court has investigated A's injuries and death.

10. The inquiry is a narrow one.  There is no doubt that A suffered serious and fatal injuries that could only have been caused by one of her parents.  The questions that arise are: which parent was responsible, and did the other parent fail to protect?  The possible answers to the main question are that one or other parent was responsible, or that it is not possible to exclude either of them.

11. The local authority brings this case and must like anyone else discharge the burden of proving facts on the balance of probabilities.  It alleges that the father was responsible for A's death and that the mother failed to protect her.  In this, it is supported by the submissions on behalf of J's mother and his Guardian.  A's parents blame each other.

12. On behalf of the Guardian, Miss Bispham has drawn attention to some conflicting judicial statements, some of which suggest that Guardians may be expected to maintain neutrality in fact-finding hearings.  For my own part, I do not believe that one can generalise.  Guardians and their lawyers should decide for themselves how they can best represent the child.  In almost all cases, the court will be assisted by some analysis of the evidence from the child's independent standpoint.  As to the further step of seeking or supporting findings, there may be circumstances in which the Guardian concludes that the other parties have provided the court with the full range of possibilities and that it is not necessary to take sides, bearing in mind the effect on the parties' perceptions at the welfare stage.  In other cases, the Guardian may wish to seek distinctive findings.  There may be a number of other good reasons why it is appropriate for a Guardian to play a full part in the fact-finding process.  In my view, the decision of the Guardian to do so in this case is an entirely proper one.

13. During the police investigations into A's death, both her parents told lies.  The fact that a person lies about one thing does not mean that they are lying about other things.  The possible reasons for the lies have to be considered in the light of all the circumstances.

Assessment of A's parents as witnesses

14. The father and mother each gave evidence for about a day.  Given the distance in time since the events that they were describing, I approached their evidence with caution.  I was prepared to concede that it might not be possible to base conclusions about the behaviour of parents who were then in their 20s on evidence given by them in their 40s.  In fact, I have found the parents' evidence and the manner in which they gave it to be of real significance in identifying where the truth lies.

15. The father was an outwardly presentable witness but his account did not withstand the smallest amount of scrutiny.  His self-description as a very patient person who never lost control of himself was constantly contradicted by more convincing accounts.  His evidence lacked any genuine emotion.  He was unapologetic and incurious.  Even when he was confronted with obvious truths, he refused to accept them.  Asked about things that he would be bound to know, he repeatedly took refuge in assertions that he had no recollection or that he vaguely remembered.  During his four hours in the witness box, there was no sense of a man who was being wrongly accused of a terrible offence.  He showed no anger towards the mother.  Indeed, although his case is that she was responsible for A's death, he could scarcely bring himself to suggest it.  His self-centred view can be seen in his attempt to explain why the mother should have accused him of harming A: "To make me look like a bad person."  It did not occur to him that if (as he claimed) the mother was really lying, her motive would be to cover up the fact that she had killed his daughter.   

16. In contrast, the mother's evidence took the court back within minutes to the awful reality of those distant events: while she was describing them, they did not seem distant at all.  She was a most impressive witness.  Her evidence bore out the universal description of her as being a gentle, quiet and shy individual.  Her memory was incomplete where one would expect it to be, and compelling in relation to events that mattered.  Her maternal feeling for A (and her two living children, brought up by her without incident) shone through her evidence.  Her anguish and guilt that she failed to act on the warning signs were painfully genuine.  The one occasion when she had been untruthful to the police was in my assessment a lie suggested by the father and she immediately corrected it when she realised that it might be important.  Asked how she felt at being accused of harming A, she replied "Upset, angry I suppose, and frustrated because people have only my word against his."

17. It is unusual to find a case where the evidence of one parent was so emotionally in tune with events while the evidence of the other was so consistently off key.  I have considered whether the explanation for this is to be found in the passage of time.  I am clear that that is not the explanation here: rather, it is because one parent is telling the truth and the other is lying. 

18. I am also satisfied that there is a wealth of information about these past events.  There was a thorough police investigation, even though the prosecution was dropped.  Both parents were interviewed at length and have had a good opportunity to give a broadly accurate account.

The background
19. The father was born in 1970.  He left school at 16.  He had a three-year relationship with a young woman, Ms P.  She gave birth to a child in 1989.  The father was present at the birth, but soon drifted out of the child's life.  Ms P accused the father of violence towards her, including during her pregnancy.  The father denies this, though he accepts that he thumped a door during an argument and I also note that in 1991, he was fined for a public order offence.  The father then had a relationship with a Ms B, which lasted for about a year.  In April 1993, he met the mother.  She quickly became pregnant, and in October of that year, they moved into a ground floor flat, consisting of no more than a bedroom, a sitting-room, a kitchen and a bathroom. 

20. The mother was born in 1974.  She left school at 16.  In her teenage years she worked at weekends in a local cats and dogs sanctuary.  She had a boyfriend for 18 months before meeting the father. 

21. The relationship between the parents lasted for no more than a year, but it was an eventful year.  Neither parent was in work and both were therefore around the home. 

22. The mother's younger sister gave evidence, which I accept, that she noticed a change in the mother after she and the father began to live together.  From being a quiet but fun-loving person, she seemed to be on edge, watching what she said and did.  She seemed to be walking on eggshells.

23. The mother's account is that her relationship with the father had become quite strained by the time they moved in together.  He was upset when she became pregnant and began to show signs of temper, of which she gave instances.  She described how a disagreement would turn into a row, he would become angry, she would become upset, then he would say that she was soft or that he had been joking.  He would punch or kick the living room and bedroom doors in temper, damaging them as seen in the photographs, or throw glasses or ornaments.  On occasions he would strike her or grab her and he once threw a drink in her face.  He would complain when she went out, but went out himself whenever he wanted.

24. Because of the mother's love of animals, the couple had a number of pets, chosen from the cats and dogs sanctuary.  The first was a kitten.  The mother describes the father as having squeezed it to make it defecate.  For whatever reason, the kitten died and the next pet, a terrier, was sent back as being too snappy.  A puppy was then brought home.  One day at New Year, the mother came home to find it limping.  The father said that he had kicked it because it had made a mess, though he later backed down from that explanation.  The mother took the dog to the vet and its leg was found to be fractured in two places.  The leg was treated and the dog returned home.  Shortly afterwards (its leg still being in plaster) it received a cut on its head that needed stitches.  This was caused by the father breaking a plate on its head in temper.  The mother was nearby and came in to find the father holding the broken plate.  He said that he had got aggravated with it, though he later claimed it had been an accident.  Asked at this hearing to explain how an accident could have caused the injury, he had nothing to say.  The mother took the dog back to the vet, and explained what had happened.  The vet refused to allow the dog to go back to the house and it went to the mother's parents before being rehomed.  The mother's father was furious, but the father did nothing to retrieve the animal or explain himself.

25. The father denies or says he cannot remember the behaviour described in the preceding paragraph.  I do not accept his denial.  The mother's evidence was obviously truthful and is supported by other indications (the injuries to the dog, the damage to the doors etc.).

26. On one occasion, the mother was observed by the father and his parents to lose patience with A.  She had just dressed A on her changing mat when she urinated on her fresh clothes.  The mother called her stupid or "a little bitch" and left the room.  She says that this was the only time she behaved like that and that she felt ashamed. 

27. During her evidence, the mother expressed her distress that she had not left the father in the light of his treatment of her and the family pet.  She said that in the light of what happened later she wished that she had been stronger.  She was young, naive and inexperienced.  She wanted to have the baby, she wanted a family, and she believed him when he said he was sorry. 

28. I find that the evidence for the period up to the birth of A represents a classic cycle of domestic abuse, with the father seeking to control the mother by emotional manipulation and outbreaks of temper and actual violence.  He discouraged her from meeting her friends (one of whom had tried to warn her about his behaviour towards his former girlfriend, Ms P), so she took the line of least resistance and stayed in.  His repeated abuse of the puppy shows a man with no patience and a capacity for cruelty to helpless creatures.  Of great concern is the mother's account that she felt frightened of aggravating him and that she tried to keep the peace by not giving him a reason to get upset or angry.  I also note and accept her evidence that the father did not like her sharing her attention with anyone else, whether it was a friend, a pet, or a baby.   

29. So it was that the mother found herself dominated by a self-centred, short-tempered bully and it was into this household that A was born.

The life and death of A

30. A was born on 7 March 1994.  She and her mother were discharged from hospital three days later.  The father attended the birth.  The mother describes A as having been absolutely perfect, and the father as being helpful initially.  At first A was an easy child, but by the end of March, she was having difficulties in feeding.  She was admitted to hospital between 31 March and 4 April with a urinary tract infection.  A chest x-ray was taken during this admission and gave no cause for concern.  On 20 April, the parents took A to the clinic for her six-week developmental assessment.  The health visitor was concerned about her poor skin colour and her blank expression and she was admitted to hospital overnight.  She returned to hospital once again between 29 April and 2 May with another urinary tract infection.  She was described as irritable, fretful, miserable, pale, and feeding poorly.  Three possible bruises were seen on the right side of her face.  On 4 May, A was seen with her mother at the clinic and nothing abnormal was noted.  

31. On behalf of the local authority, Ms Heaton QC and Ms Sweeney have set out the large number of medical contacts that occurred:

Date

Seen by

7/3/94-

10/3/94

Born and in hospital

11/3/94

Midwife visit

12/3/94

Midwife visit

13/3/94

Midwife visit

15/3/94

Midwife visit

16/3/94

GP

17/3/94

Health Visitor

22/3/94

Midwife

24/3/94

Dr post-natal visit

30/3/94

On call doctor– A screaming, won't feed

31/3/94

GP

Midwife visit

On-call GP who refers A to hospital

Admitted to hospital

2/4/94

Chest x-ray in hospital

3/4/94

Discharged

11/4/94

Outpatient follow-up appointment

Health Visitor

20/4/94

Well Baby Clinic 6 week check

HV concerned

GP examined A

Admitted to hospital 

21/4/94

Discharged from hospital

27/4/94

Well Baby Clinic

29/4/94

GP

Admitted to hospital

2/5/94

Discharged from hospital

4/5/94

Well Baby Clinic

11/5/94

Well Baby Clinic


32. An appendix to the police report shows that A was seen during her short life by at least 35 health professionals.  None of them registered any concern about her care.  A health visitor who saw A on some seven occasions describes the mother handling her appropriately and confidently with good eye contact.

33. I am satisfied that the mother took A for medical attention whenever she considered she needed it.  The father's attitude to the repeated medical attendances was at best grudging.  I also note that although A suffered a number of fractures during April and May, none of these was apparent to health professionals.  This needs to be borne in mind when considering the likely state of knowledge of a non-abusing parent.

34. My assessment of the care arrangements for A is that both parents took part, but that it was an unequal partnership.  The father would tend to be up first in the morning, while the mother would do any overnight care.  When A was feeding well and remaining quiet, the father was willing to do his share of feeding and dressing her, but when A refused to take a feed or to be consoled, he would swiftly pass her to the mother or (as on her last day) the mother's sister.  On at least one occasion, he squeezed A on the pretext that she was constipated and would be more comfortable if she could empty her bowels.  On occasions he would become aggravated and hold A in one hand or put her down roughly into her chair or cot or onto the bed, sometimes holding her with one hand around the upper body.  That is the mother's evidence, and I accept it.

35. On Saturday 14 May, the father went out with his friends, returning home at 4 a.m. on the Sunday.

36. On Monday 16 May, the parents went out in the morning.  The mother's sister came by in the afternoon for a few hours, taking over the feeding from the father when A was not taking her bottle.  At some stage during the day, the mother had a bath with A.  After the sister left at 5 or 6 p.m, A was alone with her parents until her death.

37. The mother describes the father taking a bath while she prepared A for bed, giving her her last feed at 9.00 or 9.30 p.m.  She says that A almost took a full bottle, the most she had ever drunk.  She then put A in her bouncy chair in the sitting room and went to have a bath herself (the bath earlier in the day had been for A).  According to the mother, that is the last time she handled A.

38. The mother says that while she was in the bath, she heard a loud cry from A and a sound like somebody hitting a radiator, but she could not remember in which order.  She went to see what was happening, and found the father tucking A into her cot in the bedroom.  She seemed normal.  The parents then had their supper, which the father had cooked.  A was crying, murmuring or moaning from time to time and, unusually, the father went to check on her. 

39. At around 11 p.m., the parents went to bed.  A was still murmuring or whimpering and the mother moved her in her cot into the living room, placing the cot on an armchair with A lying on her side.  According to the mother, that is the last time she saw A alive.  The parents then engaged in sexual activity in the bedroom before going to sleep.  Neither of them describes getting up in the night.

40. In the morning, the mother woke at about 8 a.m.  She says that she jumped out of bed because she felt that something was wrong: she had never slept that late and A had not woken her.  She went into the living room.  She found A face down in her cot.  As she picked her up and turned her over she realised that A was cold and that her face was covered in purple blotches.  She screamed and dropped her back into the cot.  She ran to a neighbour's house to call an ambulance.

41. Evidence was given by a number of neighbours.  They described the mother as being absolutely distraught, collapsing to the ground outside the flat and fainting inside it.  They also witnessed the father throwing a glass object of some kind into the kitchen, where it broke.  At least one of the neighbours heard the mother crying words such as "I didn't kill my baby" in the street as the ambulance left.

42. The ambulance received the call at 8.37 and arrived at 8.41.  They were told by the mother that they were too late.  The father took them into the bedroom, where they found A in her carrycot.  They describe her condition, including that her body was blue and felt very cold, with rigor mortis setting in.  They notified their control of a cot death and took A to hospital, where at 10.07 she was pronounced dead.

43. It will be apparent that the father had moved the cot into the bedroom while the mother was outside the flat.  It is also apparent that the parents agreed that they would tell the police that A had been found in the bedroom, because this is what they said in interview.  The father says that this was either the mother's idea or a joint decision.  I do not accept that.  The mother was in no state to make plans of that sort, but she agreed that it looked better that A had died in the bedroom than alone in the sitting room.

The police investigation 

44. The police investigation gathered over 90 witness statements and reports from police, medical professionals, family members, and friends and acquaintances. 

45. On 18 May, a pathologist conducted a post-mortem examination.  He recorded no external marks of violence.  The case initially appeared to be one of cot death, but on further investigation old fractures of the ribs and a fracture of the skull with haemorrhage were identified.  The examination was suspended and the case passed to an experienced Home Office pathologist, who completed it later that day.

46. The mother gives evidence, which I accept, that at an early stage the father had said that he was opposed to a post-mortem examination taking place. 

47. The parents were each interviewed over several hours on 18 and 19 May.  On the evening of the second day, the father was charged with murder and the mother was released without charge.  Evidence was given at this hearing by a detective inspector and a detective sergeant, both of whom were and remain convinced that A was killed by her father.

48. It is of note that the injuries to A only became known to the police after the initial interviews of the parents.  They were then arrested.  At that point, the mother spontaneously volunteered that A had been in the living room and not in the bedroom.  The father persisted with the lie even after the investigation had become a murder enquiry.  My assessment is that the mother was unwilling to misrepresent the position once she realised that details of that kind were important.  I do not consider that her joining in the lie, which was suggested by the father, damages her overall credibility.

49. The course of the police investigation is contained in an unusually lengthy report from the detective inspector, which might be said to represent the prosecution case against the father. 

50. The father remained in prison on remand for three months.  During this period, he wrote a document bearing the date 13 June 1994.  In it, he gives an account of events that he did not give during the course of his lengthy interviews.  It appears that this document, which was not seen by anybody until the end of 2015, found its way into the papers now before the court as a result of the process of disclosure from the police archive.  The father had it in his possession when he attended a Magistrates Court hearing later in June 1994.  It seems that it was removed from him during the course of the search, but the investigating officers never came to see it.  Had they done so, they would have interviewed further.

51. The letter, which runs to 13 pages, contains allegations that A was mistreated by the mother.  She is accused of throwing objects such as a glass ashtray, smashing a plate and making marks on the walls.  There is a description of the mother assaulting A after her last feed by putting her onto her changing mat on a hard floor in a way that hit her head "quite hard".  The father also says that he heard the mother moving A during the night, that A cried and that this is what killed her.

52. This account only came to light over 20 years later.  The father's allegations against the mother tend to mirror acts of which she had accused him.  Until the letter was discovered the father gave no account of the mother being up in the night, or of A crying.   Even at the time, the father said nothing of this kind to anybody, whether to the police or his family or his lawyers, even though he was in custody facing a charge of murder.  The first his own mother knew of these allegations was when she gave evidence at this hearing.  The father was unable to explain any of this. 

53. I find that this letter was a transparent attempt by the father to shift blame for A's death onto the mother and that he is seeking to exploit it for that purpose at this hearing.  The evidential value of the letter is as a further demonstration of the way the father operates.

The medical evidence
54. There is no significant discrepancy in the picture described by the medical experts.  These include:

Dr William Lawler, Home Office pathologist in 1994
Dr Helen Carty, consultant paediatric radiologist in 1994
Dr Owen Arthurs, consultant paediatric radiologist, an expert witness in these proceedings
Dr Hilary Smith, consultant paediatrician in 1994 and an expert witness in these proceedings
Dr Liina Kiho, forensic pathologist, an expert witness in these proceedings

55. Dr Smith and Dr Kiho gave evidence at this hearing.

56. A had no intrinsic medical condition that predisposed her to injury or illness.

57. The cause of death was an acute head injury. 

58. A was found to have the following injuries, resulting from at least three separate assaults:

(a) A recent complex skull fracture extending from the vertex down to the posterior aspect of the skull vault.

(b) Anterolateral healing fractures of the right 3rd, 4th, 5th and 6th ribs.

(c) Healing fractures of the left posterior 3rd, 4th and 6th ribs at the costovertebral junctions.

(d) A recent fracture to the left 5th rib.

(e) Possible fractures of the right posterior 12th, and left costochondral junctions of the 5th, 6th, 7th and 8th ribs.

(f) A displaced healing fracture of the mid-shaft of the right radius.

(g) Four recent bruises:- one to the left upper eyelid [0.5x0.2cm], two right ear helix [0.2x 0.2cm 0.3x0.2cm] and one on the left cheek below the outer corner of the eye [1x1cm].

(h) Two [possibly three] linear scratch abrasion marks to the right side of the back of the neck [0.8cm and 0.7cm].

(i) Extensive recent bruising within the whole of the left side of the inner scalp.

(j) Recent lacerations and contusions over the left parietal region of the brain.

(k) Diffuse axonal injury in the corpus callosum.

59. As to mechanism:

(a) The skull fracture was the result of an acute impact injury associated with traumatic brain injury.  It was a very severe injury requiring extremely hard force.

(b) The rib fractures were caused by an adult squeezing the chest involving severe compression from both front and back, and possibly while the child was being shaken.

(c) The right arm fracture was caused by an adult who either manipulated the arm by applying angulated pressure or inflicted a direct blow to the forearm causing the fracture to the right radius.

(d) The bruise within the eye socket is the result of a direct impact from a fist or heel of the hand.

(e) The bruise on the cheek was caused by impact or pressure.

(f) The bruises to the ear were caused by squeezing while pulling and twisting or by a direct blow across the ear.

(g) The scratches to the back of the neck were caused by scratching or grasping that part. 

60. As to timing:

(a) The skull fracture, associated internal bruising and contusions to the brain were caused at the same time and led to A's death.  She would not have fed following an injury of this severity.  The survival period cannot be identified with precision but will have been no more than a few hours and possibly as short as a few minutes (i.e. from some point beginning in the later part of 16 May).  The observation of the ambulance crew that the baby felt cold suggests that A had been dead for some time before their arrival. 

(b) The injury to the corpus callosum occurred at least 4 days prior to death.

(c) The fractures occurred within 1 to 6 weeks prior to her death, with the rib fractures occurring on at least two occasions, one occasion being about four weeks prior to death (so around 19 April) and the arm fracture being about three weeks old (so around 26 April). 

61. As to A's likely presentation:

(a) Dr Smith considers that A would have cried for an extended period when she sustained the blow to her head.  There is an account by the mother of hearing A crying from the bathroom, but not for an extended period.

(b) As regards the arm fracture, Dr Smith would expect an astute (attuned) parent to be aware that the baby was in pain when handled, as when she was dressed and undressed.

(c) The evidence is that fractures to the ribs would cause the baby generalised discomfort that might not be recognised as being the result of injury.

62. A's stomach contents included a quantity of milk, tending to confirm that she had taken a feed shortly before her death.

63. Further analysis by a forensic scientist who reported in September 1994 showed that A had a significant amount of paracetamol in her system.  Neither parent admits administering medication of this kind, which would in any event be inappropriate for such a small baby.  No paracetamol was found at the home in May 1994, but no systematic search was carried out.  After the report was received, the issue was further investigated by the police, who interviewed the parents again in April 1995.  They were unable to reach any conclusion.  There must be a suspicion that the perpetrator of the injuries administered the medication in an attempt to mask A's pain and discomfort. 

The proceedings in relation to the mother's second child

64. This child was born in July 1995.  Because of the history, she was placed in foster care.  The proceedings ended in July 1996 with the making of a care order with a plan for placement in the mother's care.  I have seen the papers in that case and heard evidence from the responsible social workers, Mr C and Mrs D.

65. The decision that the child should be placed with her mother as part of a closely supervised process was one that was reached after considerable multi-agency discussion.  There was a measure of professional disagreement, but the mother's caring behaviour at contact and the favourable contents of a psychological report eventually tipped the balance.

66. The final order records that A's injuries were non-accidental and that they were caused by one or other of her parents.  It was said that while the mother had failed to protect A, she did not murder her.  It was also said that there was a low but real possibility that she had inflicted the injuries and that accordingly there was a risk of significant harm to the second child. 

67. The difficulties with this approach need hardly be stated.  In order to assess future risk, there needs to be an understanding of what has happened in the past.  This assessment was structurally unsound.  The father was not engaged.  Social services made a brief and half-hearted attempt to speak to him, but he did not respond.

68. However, having heard the evidence of the social workers, who were inexperienced at the time, I have no criticism to make of them individually.  Given the framework in which they were working, their assessments were thoughtful and thorough.  They were far from underestimating the risks involved in a placement with the mother and they did not receive appropriate direction from senior colleagues or from the Children's Guardian or from the court.

69. I note that the social workers felt that the mother knew more than she was saying about what had happened to A, but I also note that she was described as having been severely depressed and highly anxious at the time.  The mother gave evidence at this hearing that she had had a very hard 12 to 18 months.  She felt hopeless.  She had lost A, her home and her relationship with someone she thought she loved.  At around the same time, her mother died.  She was desperately anxious to be allowed to care for the child that had been taken from her.

70.  I refer to evidence given by the mother's half-brother D.  He had contacted social services in November 1995 to say that he had seen the mother walking with a baby in a pram in the street, hitting a kitten with an iron bar.  This allegation was investigated at the time but not substantiated.  I can quite see why that was, if only because the mother's child was in foster care at the time.  D is a man with long-standing behavioural difficulties and a serious criminal record.   He was and remains estranged from the mother and other members of his family, and he knew nothing of A's circumstances.  I find that the original allegation was malicious and that D's evidence at this hearing was worthless. 

71. The outcome in relation to the second child may not have been based on sound foundations, but it was the right outcome for that child and for the mother's third child, born in 1998.  They have grown up successfully in her care and are now at university in one case and doing A-levels in the other. The care order in relation to the second child was discharged by consent in 2001.

72. However, while the mother was in one sense a beneficiary of the inadequate court process 20 years ago, the same shortcomings also deprived her of the opportunity to be exonerated in relation to the death of A at a much earlier date.

The case on behalf of the father

73. Ms Sarah Morgan QC and Mr Carl Gorton have said everything possible on behalf of the father.  They query whether it is safe for the court to identify a perpetrator and argue that if it is, the court should find it was the mother.
 
74. In the first place, they drew attention to the passage of time and remind the court that these parents are not necessarily the people that they were in 1994.  I accept that point and have taken it into account.  However, it does not assist the father in relation to matters that he could not reasonably forget.

75. They note the trenchant conclusions reached by the investigating officers about who was responsible for A's death and contend that this has skewed the information that is now before the court.  As to that, I am not influenced in my conclusions by the views of the police officers.  This court has essentially the same core information and it is able to reach its own view about it.

76. Next, it is said that caution should be exercised in relation to evidence suggesting that the father has a propensity for causing injury.  I again accept that caution is appropriate, but I consider that the evidence in relation to the father's behaviour with animals and his observed treatment of A during her lifetime is of significant relevance when assessing which of these parents is the likely perpetrator.  I do not accept the submission that an old-fashioned view of propensity shaped this case against the father from the start and that the evidence has been compiled to suit.  The view about the father's character has been formed on the basis of credible evidence.  Nor do I accept that assumptions were made in favour of the mother.  The officers explained why they came to believe that the father was responsible: having travelled a similar route during the course of this hearing, I can easily understand how they reached that judgment.

77. Attention is understandably drawn to the occasion when the mother lost patience with A.  It is suggested that this shows the mother to have a short fuse.  I do not reach that conclusion.  What is described was a regrettable but isolated moment of frustration that involved no danger to A and is a world away from the sort of behaviour that was common in the father.

78. Complaint is rightly made about the absence of a fact-finding process in 1995.  It is said that this deprived the father of the opportunity to clear his name and that his absence from those proceedings now works against him.  I do not accept this last point.  The information in the 1995 papers gives a very balanced picture of the mother and it has been possible for those representing the father to point to some of the negatives without the father being exposed to the same scrutiny.  In that the court reached a conclusion in 1995 about the likely perpetrator, that cannot carry any weight now.

79. It is said that the letter written in prison is of evidential value as being contemporaneous.  I have explained why I disagree.  As to being contemporaneous, a truly contemporaneous account is one given at the time.  This document never saw the light of day.  It is not situated in time at all.

80. Attention is drawn to the mother's greater opportunity to cause injury in the father's absence.  There were a limited number of occasions when the mother went out, leaving A with the father for no more than the time it took her to get local shops and return.  In contrast, the father was out more often and for longer.  This is true, but the father also had opportunities to cause injury.

81. It is also said that the mother's apparent failure to notice injuries if they were caused by the father is inconsistent with the suggested picture of her as an assiduous parent.  Even on the basis of the mother's account, this point deserves consideration.  The mother knew that the father was capable of being rough, but she says that she did not see any significant injury to A.  My conclusion is that this aspect of the matter has to be looked at in the overall context.  The mother was herself in a vulnerable position.  She was an inexperienced parent, no more than 20 years old and under considerable pressure from the father.  She repeatedly took A for medical care when, as she put it, she was "not herself".  It is also to be noted that the doctors and other health professionals did not identify any bony injuries, including the arm injury which might have been the most obvious.  I believe the mother's evidence that she did not think that the father would cause serious injury and that she was not aware that serious injury had been caused until the police informed her of the fact.

82. Ms Morgan also contends that the occasion the mother describes as happening when she was in the bathroom is unlikely to have been the fatal injury because of A's relatively normal presentation afterwards.  I accept the local authority's case on this point:

"If [the mother] is believed, and it is submitted that she is the far more credible witness, then A either died as a result of the blow in the bedroom and was deteriorating over the next few hours or another event occurred after 12.10 a.m. whilst she was asleep and of which she has no knowledge. This is against a background of a young vulnerable mother in an abusive relationship with a baby who is clearly distressed, unwell, feeding badly and irritable. It is submitted that [the mother] may not reasonably have been expected to have been aware that the fracture site was causing pain."

83. As to A's reaction to her final injuries, it is possible that she  did not cry in the way that Dr Smith would have expected and that what the mother heard was her reaction to being injured.  It is also possible that the baby was injured in the living room by her father while her mother was asleep.  In the end, this issue does not take matters very much further forward as the same points apply to the father as they do to the mother.  This was a small flat, but unless the parents were acting in collusion to injure A – something that I reject as a possibility – it would be necessary for the perpetrator to cover up what he or she had done if the other parent was not to become aware. 

84. The father's decision to move A into the bedroom while the mother sought help is far more consistent with a man who was covering his tracks than with a parent who had come upon his dead child without warning. 

85. It is said that the mother awoke with feelings of foreboding because she knew what she had done.  Her own explanation for feeling that something was wrong is in my view far more likely.  Having considered all the information about this mother, I completely reject the possibility that she would injure her child and then go back to bed and go to sleep.

86. Attention is understandably drawn to the mother crying out that she had not killed her baby.  I do not attach any significant weight to this.  A parent in that situation must feel a sense of blame and if the mother had been responsible, it is most unlikely that she would draw attention to the fact in this way.

87. I have further considered the Guardian's analysis of the possibility that the truth is still not out and that neither parent can be excluded as a perpetrator.  This analysis includes the absence of any information from the non-abusing parent, the lack of any account of intense, persistent crying, the limited opportunity for injury to be caused in such a small flat without the knowledge of both parents, and the evidence of Dr Smith on these issues.  Having considered it, I agree with the submission made by Ms Bispham that these considerations do not point inexorably to the conclusion that the other parent must have known what was happening.  Dr Smith said that the expectation would be serious crying, then gradual quietening as the consequences of the injury and swelling cause unconsciousness; she would expect moaning or "whimpering to the point where the child became unconscious."  This is not unlike what the mother describes, and certainly not sufficiently unlike it to render her evidence unworthy of belief.

Conclusions

88. For all these reasons, I find that it was the father who caused A's injuries and death.  Having injured her, he did nothing to get her the medical help that she needed, and that might have saved her life.  He instead did what he could to conceal what he had done from the mother and from those who later investigated. 

89. I accept the mother's denial that she administered paracetamol to A, and consequently find that it is the father who must have done so

90. In relation to the allegation of a failure to protect, my conclusions are these.  There is no doubt that the mother did not protect A from assaults by the father over a period of several weeks.  Whether and to what extent that represented a failure on her part is a matter that I have carefully considered.  Other parties have represented the failure, if it occurred, as having been "massive" or "breath-taking".  

91. In my view, this characterisation does not pay sufficient regard to the reality of the mother's situation.  As I said at the outset of this judgment, the effects of domestic abuse have to be understood.  I do find that the mother failed to protect A, but I go no further in blaming her than she blames herself.  She is filled with self-reproach for not leaving the father, but I consider that for her to have done so would have required more strength and determination she then possessed. 

92. The father by contrast has shown himself to be completely incapable of taking responsibility for his actions.  His behaviour towards A was violent and uncaring and he has compounded it by trying to blame the mother in a cowardly and reprehensible way.  She has lived with intense feelings of guilt for her entirely secondary part in this tragedy, and will no doubt continue to do so.  Having now had to relive those terrible events during proceedings that she did nothing to bring about, the least she is entitled to is a clear statement from this court that it was he, and not she, who bears the entire responsibility for A's death. 

93. That concludes A's mother's involvement in these proceedings.  I will now move to consider the consequences of these findings for J.

Post-script: 13 July 2017
94. The judgment above was not released for publication at an earlier date to avoid prejudice to further investigations that were being carried out by Greater Manchester Police.  The outcome of those investigations being that no criminal charges are to be brought, the judgment is now released for publication.