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Re D (A Child) [2014] EWHC 121 (Fam)

Fact finding hearing in care proceedings in respect of an oxygen-dependent child in order to determine whether the oxygen supply had been turned off and, if so, by whom. Consideration as to the principles to be applied in such cases.

The case concerned a child (D) aged 1 year and 4 months at the time of the hearing.  D had been born with many ailments and diseases and had never been discharged from hospital.  She was reliant on continuous administration of oxygen.  The desired oxygen saturation was 97%, usually achieved by administering 3 L /min; but it could require double that.  If the saturation dropped below 92%, an alarm sounded.  The saturation level was monitored by way of a probe attached to D's foot or finger.  The alarm would therefore also sound if the probe fell off (which happened quite often).  The alarm could be silenced by pressing a button on the monitor.  D's mother (M) spent alternate nights in the hospital with D.

This was a fact finding brought by the local authority to determine whether M had deliberately switched off D's oxygen supply.  An incident occurred where nurses found that saturation was down to 40% and the oxygen tap had apparently been turned off.  Nurses had recently been in the room to check the oxygen supply device.  When they returned to the room 4-5 minutes later, the alarm was sounding.  M was aware of how to silence the alarm.

The local authority invited the court to approach the question in 2 stages:  First, the court should determine whether the oxygen supply was turned off.  If the court found on balance of probabilities that it was turned off; it should then go on to determine whether i) Nurse J had accidentally turned it off, or ii) M had deliberately turned it off.

Mostyn J provided a summary of the principles applicable to fact finding hearings.  He rejected the approach proposed by the local authority, and considered it was not applicable in cases where the harmful act (in this case, whether the oxygen was turned off) was not a certainty.  The probability of each of the three scenarios needed to be considered [37].  The Judge found that it was 55 % likely that the oxygen was turned off, but concluded that if the supply was turned off, on the balance of probabilities M had not turned it off deliberately.  He stressed that this did not lead him to conclude that nurse J had turned it off accidentally either.

Summary by Martina van der Leij, barrister, Field Court Chambers

Neutral Citation Number: [2014] EWHC 121 (Fam)
Case No: DJ13C08192


Royal Courts of Justice
Strand, London, WC2A 2LL
29 January 2014

Before :

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Between :

A Local Authority Applicant

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1st Respondent

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2nd Respondent

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a Child, D, through her Children's Guardian, 3rd Respondent
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All parties were represented by solicitors and counsel

Hearing dates: 21 January 2014 – 7 February 2014
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Approved Anonymised Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

This judgment was handed down in private on 29 January 2014. It consists of 45 paragraphs and has been signed and dated by the judge.  The judge gives leave for it to be reported in this anonymised form as Re D (a Child). 

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by his or her true name or actual location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Mr Justice Mostyn :
1.   D was born on 13 September 2012 at a hospital in England. She was born with multiple ailments and diseases. As a result she has spent her entire life in hospital. A very full report by a consultant paediatrician, indicates that D suffers, or is suspected to suffer, from, inter alia, sublugotic stenosis, chronic lung disease, cerebral palsy, visual impairment, epilepsy, sickle cell disease inherited from her parents, aspiration pneumonia, and gastroesophageal reflux. As a result she has suffered multiple cardio-respiratory arrests, is fed naso-gastrically and has undergone both insertion of a central line and a tracheostomy through which she is continuously administered oxygen – she is oxygen dependant. She will require 24 hour intensive care even upon discharge from hospital.

2.  The local authority commenced care proceedings on 7 August 2013 following an incident at about 08:15 on 2 July 2013 when it was suspected that at the hospital  D's mother deliberately switched off  D's oxygen supply
3. Following the incident the mother was arrested on suspicion of attempted murder, interviewed under caution with an interpreter, and she provided a DNA sample for the purposes of forensic examination. The police have completed their investigation and do not intend to charge the mother. They based their decision on the mother's denials that she had touched the oxygen tap; the absence of her DNA on the relevant tap; and their belief that the only DNA which could be identified on the tap belonged to the father. In fact, the police were mistaken about the last point. It has been confirmed that the major contributor to the DNA profile found on the relevant tap belongs to D herself, obviously transferred to the tap by another person. The mistake however will clearly not alter the police decision.

4.  This is my judgment on that key primary issue of fact. In the light of it all are agreed that consideration will have to be given to the future of this case in circumstances where the local authority asserts that even if that key fact did not happen the statutory threshold is crossed here by reference to other matters and that D's welfare demands that she is permanently placed with alternative carers.

5.  I have read a considerable quantity of written evidence, including statements given to the police and a transcript of the mother's police interview. I heard oral testimony from the midwife E, Nurse F, Nurse G, the paediatric physiotherapist H, the then student nurse J, Nurse K, the mother and the father.

6.  In fairness to the parties it is appropriate for me to state at this early juncture that I am not satisfied on the balance of probabilities that the mother was guilty of this act of attempted filicide.  

7.  I now turn to some of the background.

8.   The mother was born on 24 April 1978 in a country identified as X, and is thus aged 35. The father was born on 24 September 1972, also in X, and is thus aged 41. They commenced a relationship in 1999 and have two older children now aged 13½ and now aged 9. In 2005 the father came to this country. At some point after he came here the mother married the father's brother and lived with him and the two children in her country of origin.

9. The father has a very chequered immigration history. He entered the country under a six-month visitor's visa. He overstayed that visa. Subsequently he has made false statements to the Home Office. In May 2007 he applied for leave to remain on the basis that he had entered this country in 1989. In November 2007 he made representations to the Home Office through his MP and stated that he had entered the country in 1992. In 2009 the father formed a relationship with a French national, L, who was exercising treaty rights here and on the basis of a claimed marriage to her applied on 18 February 2009 for an EEA family member residency card under the Immigration (European Economic Area) Regulations 2006. In fact the father did not marry L until 2010. At all events the father was duly issued with the residency card on 21 September 2010 and this is valid until 21 September 2015. Therefore the father is lawfully present in this country, even if the story is punctuated by acts of dishonesty by him. That dishonesty is most prominently exemplified by his conviction in the Crown Court on 25 June 2009 for using a false document (a forged French passport) and making false representations for gain, for which he received a sentence of 6 months' imprisonment.

10. The father's relationship with L has broken down and they were divorced in November 2013. The father has struck up a relationship with M and stays with her for about 3 nights each week. That relationship has produced two children aged 19 months and 2 months.

11. The mother entered this country on a visitor's visa on 4 April 2012. That visa was valid until 27 August 2012. She came with her husband. He returned to their country of origin after about 2 weeks. The mother then resumed her sexual relationship with the father and fell pregnant. If the mother was 25 weeks pregnant when D was born on 13 September 2012 then that would suggest that she became pregnant on 22 March 2012, before her arrival here. However a DNA test has shown that the father is overwhelming likely to be D's true father. The mother did not leave this country on 27 August 2012, as she should have done. She is therefore an over-stayer and is subject to a weekly reporting requirement by the Home Office.

12. The mother lives with the father (when he is not with M) in his flat. The father is employed as a cleaner. I have seen a glowing character reference from his employer.

13. If D is returned to her parents they will have to care for her with enormous support from the state including the provision of near round-the-clock nursing care. It is inconceivable that she could be taken to and brought up in her parents' country of origin. The unchallenged evidence of the father was that the medical facilities there are inadequate to support a child with needs as wide-ranging complex and profound as D's.

14. I now turn to the events, as I find them to be, leading up to the alleged incident on 2 July 2013. The hospital had drawn up an agreement with the parents with the aim of one or both of them staying overnight with D on alternate nights. The mother was expected to stay on Saturday 29 June 2013 but failed to attend the ward. On Sunday 30 June 2013, the mother visited D with a female whom she described at the time as her "sister". The mother was reluctant to stay but eventually agreed to do so. At all events the mother stayed in D's room on the nights of Sunday 30 June 2013 and Monday 1 July 2013.

15.  The records show that throughout D's life the mother was a caring and committed parent.

16.  During the night of 1 July 2013 Nurse F was on duty until 08:00 the following morning. The hospital history sheet shows that she attended to D's needs at 20:30, 21:30, 23:20, 00:30, 03:00, 06:30 and 07:30. It can be seen that there were appreciable periods, one as long as 3½ hours, when the mother was alone in the middle of the night with D.

17.  Nurse F handed over to Nurse G at 08:00. The student nurse H was at the nurse's station at that time.

18.  During the night of 1 July and in the morning of 2 July 2013 D's oxygen supply came through a device which was plugged into the oxygen supply at the wall. I shall describe that device although there are pictures of it in the bundle and I have been given an identical one to examine. The device is made by Oxylitre Ltd. It is, when looked at from the top, Y-shaped having a single connection point to the wall oxygen supply leading to two egress arms. When looked at from the front each arm has a glass flow-meter on top, the oxygen outlet below, and a white tap to the side, pointing out. The white tap controls the rate of the oxygen supply. The supply is turned on by rotating the tap anti-clockwise. When in the closed position the tap is held by a slight grip.  When turning the tap on from the closed position the user would distinctly feel a slight release of that grip before the tap turned freely.  If the supply is already on but the user wanted to increase it, he or she would not feel that grip – the tap just turns freely. It is therefore likely that by feel alone a user would immediately know if a tap was closed or open.

19.  On 1-2 July 2013 the right hand egress arm (as you look at it) was connected to a green tube which supplied D with her oxygen via a Swedish Nose connected to her tracheostomy. This would have been on all the time, unless the left hand arm was in use. The left hand egress arm was connected to the nebulizer, which is device that prepares medicines as a mist or spray which then is mixed with the incoming oxygen. Certain medicines are given to D this way.     

20.  The usual rate of supply of oxygen to D is about 3 litres per minute (LPM). The level is signified by a red ball in the flow-meter. The device can supply up to 15 LPM. To give 3 LPM the tap needs to be turned about 180 degrees, or half a revolution. If things are bad for D then the supply will be increased perhaps to 6 LPM, which requires a number of complete revolutions.

21.  D is connected to a monitoring device via a probe attached to her foot or finger. The monitor records two pieces of data. The left hand reading is the oxygen saturation in the blood; the right hand reading is the heart-rate. A normal oxygen saturation reading is around 97 (the datum is the percentage level). If it falls below 92 then the alarm sounds. This happens often because the probe falls off. The alarm can be silenced by a red button on the top right hand face of the monitor.

22.  If the oxygen supply is cut then D's oxygen saturation level will quickly and abruptly fall; the alarm will sound; and the supply will need to be urgently restored. But it is important to understand that D's oxygen saturation level can abruptly fall even when her regular oxygen supply is on. When that happens the oxygen supply needs to be quickly increased. 

23.  On 2 July 2013 at 08:00 Nurse G entered D's bedroom. The mother was certainly in bed; Nurse G thought she was asleep. Nurse G checked D's oxygen saturation level; it was at 92 and therefore just normal. She placed on the mother's bed a meal menu. She then left the room taking the emergency tracheostomy box in order to check that it was in good order at the nurse's station, which was directly outside D's room. At the station Nurse G met the student nurse J, who asked her if she could check the oxygen supply device and the suction equipment. Nurse G agreed.

24.  J entered the room about 4-5 minutes after Nurse G had left it. During this 4-5 minute period Nurse G says she saw the mother standing by D's bed on the side where the oxygen supply is. 

25.  On entry to the room J did not notice anything amiss other than the alarm sounding; but she thought this was because the probe had come adrift. The mother was in bed. She checked the nebulizer by turning the tap on the left hand egress arm of the oxygen supply device on and off i.e. a short turn anti-clockwise followed by an equivalent turn clockwise. She checked the suction device. She says she did not touch the right hand arm of the oxygen supply device. Nurse G then re-entered the room; she recalls that J summoned her, but J has no such memory. J states that she remembers commenting to Nurse G that D seemed to be working harder to breathe. Nurse G states that in addition to the alarm sounding (which was not unusual) D had gone very pale and was emitting much saliva and other secretions from her mouth and nose. She glanced at the flow-meter and concluded from the position of the red ball that the oxygen supply was very low. While looking at D she reached for the right hand tap with her left hand and on feeling the grip to which I have referred concluded that it was turned off. She immediately turned the tap through a number of revolutions to take the supply to 6 LPM. She stated to J that the oxygen tap was off J responded that she had not touched the right hand tap; she had only touched the left hand one.

26.  At 08:40 Nurse G made an entry in the hospital history sheet which stated "attended due to D desaturating, and colour change. Noted oxygen to tracheostomy had been switched off". At 11:15 she made a report of the incident to the ward manager. This recorded that the incident had occurred at 08:15. The report states:

"attended the above patient due to being unwell, characterised by desaturating , colour change around the lips, and copious secretions from her mouth, monitor read saturation of 40%, check oxygen at the point of delivery (wall oxygen) found to be switched off. Restarted at 6L and then reduced oxygen saturations recovered and gave suction. Mum present at time" 

27.  At 09:10 the paediatric physiotherapist H attended for a regular session. In a written statement she acknowledged that she had a good rapport with the mother but on this occasion the atmosphere was different. She stated:

"When I went into the room on 2 July 2013 I was met with a different feeling in the room. Mum was quite distant and there was no engagement. She didn't acknowledge me or interact with me. To me it was a different situation. There was no communication."

28. H went on to record that during this session the mother washed her daughter and while this task was being performed her saturation levels fell to 79% and her colour went pale. The alarm sounded and the mother silenced it. H told the mother that she should not do this without telling somebody.

29. The significance of this evidence is obvious. As I have already noted it is possible for the oxygen saturation levels to fall abruptly even when D is receiving a normal supply of oxygen. This happened shortly after Nurse G had increased the supply to 6 LPM. Nurse G accepted in answer to a question from me that such an event could have occurred while she was with D earlier that morning.

30. The mother completely denies turning off D's oxygen supply. The father was not present during this episode. However it was his view that it was unthinkable that the mother would have done such a thing.

31.  At this point it is convenient to me to set out in summary form the applicable legal principles for a case such as this. The principles are these:–

i) The local authority must prove its allegations on the balance of probabilities, no more, no less: Re B (Care Proceedings: Standard of Proof), [2009] 1 AC 11, [2008] 3 WLR 1, [2008] 2 FLR 141, at paras [2] and [70].

ii) The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the court is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened: Re B (Care Proceedings: Standard of Proof), at para [2] per Lord Hoffmann.

iii) The more serious or improbable the allegation the greater the need for evidential 'cogency': Re Dellow's Will Trusts; Lloyd's Bank v Institute of Cancer Research [1964] 1 WLR 451 at 455; Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, [1996] 2 WLR 8, [1996] 1 FLR 80; Re S-B (Children) (Care Proceedings: Standard of Proof), [2010] 1 AC 678, [2010] 2 WLR 238, [2010] 1 FLR 1161 at para [13]. Evidential cogency is obviously needed where the harmful event is itself disputed. However, where there is no dispute that it happened the improbability of the event is irrelevant: Re B (Care Proceedings: Standard of Proof), at paras [72] and [73].

iv) Sometimes the burden of proof will come to the judge's rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge ought to be able to make up his mind where the truth lies without needing to rely upon the burden of proof: Re B (Care Proceedings: Standard of Proof) at paras [2] and [32]; Rhesa Shipping Co SA v Edmond and Another: The Popi M  [1985] 1 WLR 948.

v) It is impermissible for a judge to conclude in the case of a series of improbable causes that the least improbable or least unlikely is nonetheless the cause of the event: Rhesa Shipping Co SA v Edmond and Another: The Popi MIde v ATB Sales Ltd; Lexus Financial Services t/a Toyota Financial Services (UK) plc v Russell [2008] EWCA Civ 424 at para [4].

vi) There is no pseudo-burden or obligation cast on the respondents to come up with alternative explanations: Lancashire County Council v D and E [2010] 2 FLR 196 at paras [36] and [37]; Re C and D (Photographs of Injuries) [2011] 1 FLR 990, at para [203].

vii) The assessment of credibility generally involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore, contemporary documents are always of the utmost importance: Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403, per Lord Pearce; A County Council v M and F [2011] EWHC 1804 (Fam) [2012] 2 FLR 939 at paras [29] and [30].

32. This case is not a "pool of possible perpetrators" class of case governed by the principles in Re S-B (Children) (Care Proceedings: Standard of Proof). In such a case the harmful act is a certainty and there is a pool of at least two guilty perpetrators. Here the harmful act is not a certainty and the most that can be said against J is that she was negligent.

33. In this case all are agreed that there is a closed class of possible scenarios. They are:

i) The oxygen supply was not in fact turned off, and Nurse G is mistaken in believing that it was; or

ii) The oxygen supply was accidentally turned off by J; or

iii) The oxygen supply was deliberately turned off by the mother.

34. Counsel for the Local Authority asks me to consider scenario (i) first. She invites me to find first on the balance of probabilities that the oxygen supply was indeed turned off and that Nurse G is not mistaken about that. As I will explain, I accept that submission notwithstanding that I have some serious concerns that I may well be wrong. I will find on the barest balance of probability that the supply was turned off. I appreciate that in a different context in Re B (Care Proceedings: Standard of Proof) at para 44 Lady Hale stated that "it is positively unhelpful to have the sort of indication of percentages that the judge was invited to give in this case". However I do not think that prevents me from indicating, only for the sake of example, that the probability that the supply was turned off was 55% (or as the mathematicians would say P = 0.55 and Q = 0.45). Indeed, were I not to do so I believe that a serious injustice may well arise in this and other cases, for the reasons that follow.

35. If I approach the exercise in the staged way suggested by Counsel for the Local Authority then the 55% probability which I ascribe to scenario (i) is converted by reason of Lord Hoffmann's binary method of judging to a 100% certainty (or P = 1). What is a mere likelihood (in the true sense of the word) is transmuted into a certainty. The 45% probability that the oxygen supply was not turned off simply will not feature in the second stage which inquires into who turned it off.

36. This is a very problematic and an arguably illogical method of proceeding. What it means is that were I to adopt it I would be left with a straight binary choice between J and the mother. If I decide that on the balance of probabilities it was not the mother (i.e. that the probability of her having done it was less than 50%) then it has to follow, so the argument goes, that J did it by accident as the relevant probabilities of the scenarios (here, in stage 2, only (ii) and (iii)) have to add up to one.

37. But that is a flawed approach. It puts up a false choice. Let us say, for the sake of example (and I am not actually deciding this, for reasons which I will explain), that I conclude that as between the mother and J the probability is 40/60 then the true probabilities of the three scenarios are:

i) The oxygen supply was not turned off: P1 = 0.45 (and thus Q1 = 0.55)

ii) J turned it off by accident: P2 = (0.6 x Q1) = 0.33

iii) The mother turned it off deliberately: P3 = (0.4 x Q1) = 0.22

It can be seen that the sum of the relevant probabilities (P1 + P2 + P3) is 1, which is what it has to be. The probabilities of the competing scenarios have to add up to 1, no more, no less. There is no scope for some unallocated probability, as the House of Lords in Re B (Care Proceedings: Standard of Proof) made abundantly clear. If Counsel for the Local Authority's technique were followed the relevant probabilities of the competing scenarios would add up to more than 1, which is completely impossible.

38. It can also be seen that in neither of scenarios (ii) and (iii) is the probability more than 50%, or anything approaching that, and so on this analysis if I find on the balance of probability that the mother did not turn off the oxygen supply deliberately, then it just does not follow that it is more likely than not that J did so by accident. If the judging exercise is done in parallel, rather than in series, as I believe it must, then it can be seen that the least unlikely explanation is in fact that the oxygen supply was not turned off.

39. Put another way, a way which is less numeric and more linguistic, if there is an alleged primary harmful act and a whodunit between two possible perpetrators then in deciding the whodunit the possibility that the primary act was not in fact harmful has to be taken into account.

40. I have already indicated that on the barest balance of probabilities Nurse G was right to deduce that the oxygen supply was turned off. The grip on the tap in the off position is distinct if slight. She has been consistent in her contemporaneous statements. She is an experienced and meticulous nurse. On the other hand, she accepted that this may well have been an event where the oxygen saturation level fell even though the oxygen was on, and that she may have jumped to a conclusion. There was a great drama happening and attention to detail may have been wanting. Having considered the matter very carefully I am satisfied, just, that the supply was turned off, but I do record that my doubts are very real.

41. If the mother turned off the supply then she must have done so just before J entered the room who, let us recall, intended to check the "functioning of the wall mounted oxygen supply" (per Nurse G's statement). For two people to have touched the device within such a short span of time for different reasons would have been an extraordinary coincidence. Further, it seems improbable that if the mother had a filicidal intention that she would act on it at this nursing change-over time when there was much coming and going and a general air of busy-ness.

42. It was suggested that the mother would have been exhausted by a second night of broken sleep and did this act out of love to relieve D of her suffering. As against that the mother's belief system as a Muslim (as explained by each of the parents, and of which I can take judicial notice) would strongly militate against such conduct. Although the mother's evidence was given in a foreign language and translated I watched her very carefully and formed the view that it was unlikely that there would be any circumstances where she would try to kill one of her children. I am entitled to take into account the inherent unlikelihood of a mother intending to murder her own child. I do not place any weight on H's subjective feeling that her rapport with the mother had changed. This is far too nebulous and intangible on which to base any conclusions. 

43. I have considered Nurse G's statement that she saw the mother standing by D's bed in the 4-5 minute window before J entered the room. I consider that it is likely that Nurse G  is mistaken about this. In her oral testimony she stated that when she first entered the room the mother was in bed, asleep. J saw the mother in bed when she entered. I think it more likely than not that the mother was in bed throughout that period. But it is in that period, and only in that period, when she must have done the deed, if she did do it.

44. It must be recalled that J entered the room specifically to check the functioning of the wall mounted oxygen supply. She says that she turned the left hand tap on and off but did not touch the right hand tap. That would not have amounted to a check of the supply. I consider that it is distinctly possible that she checked both but neglected to turn back on the right hand tap.

45. Having weighed all the evidence very clearly I conclude on the balance of probabilities that if the supply was turned off the mother did not do it. In the light of Lady Hale's strictures I do not ascribe a percentage probability to this finding but I am confident in it. But it does not follow from this finding that I am concluding that J did turn the supply off by accident. Far from it. A correct application of the laws of probability leads me to conclude that in relation to her also I am not satisfied on the balance of probability that she accidentally turned off the supply.