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K (Threshold - Cocaine Ingestion - Failure to give evidence) [2020] EWHC 2502 (Fam)

Judgment determining whether the LA had satisfied threshold in circumstances where the subject children’s sibling, K, aged 3, had died as a result of alleged cocaine ingestion.

Background
Lieven J was concerned with four children, aged from 7 months to 11 years of age.  Their sister, K, aged 3, died in hospital in the early hours of 6 April 2019.  She had been unwell with vomiting overnight on 3 April 2019 and was sleepy and had puffy eyes the following day. She was taken by her mother to the GP on the afternoon of 4 April 2019. The GP called an ambulance.  In hospital, K was drowsy with fluctuating responsiveness. It was suspected that she might have meningitis or sepsis.  On 6 April 2019, she suffered a sudden cardiac arrest and, despite CPR, did not recover.  During the paediatric post-mortem investigation, Dr Palm was concerned at the findings. K's heart muscle showed necrosis. Post-mortem toxicology detected cocaine. As a consequence, a special post mortem was undertaken.  The parents and grandmothers were arrested. Subsequent hair strand testing of the adults and the children showed the presence of cocaine and its metabolites.  The local authority issued proceedings and the children were placed in foster care under ICOs.  Their youngest sibling joined them when she was born.

The LA alleged that K died as a consequence of cardiac necrosis caused by the deliberate administration or accidental ingestion of cocaine while she was in the care of one or more of her mother, father, PGM or MGM; and that those four individuals had failed to protected her.

Hearing

The fact finding hearing was listed for four weeks in April 2020.  The expert evidence focused on whether K's death was caused by cocaine use and the extent of drug use by the parents and grandmothers.  Other evidence concerned issues of drug use (including F's involvement with drug supply) and domestic abuse.

The COVID pandemic impacted significantly upon the conduct of the hearing.  The expert evidence was heard remotely and the case adjourned to June 2020 to enable a hybrid hearing.  Case management decisions were appealed and the appeal refused ([2020] EWHC 1233 (Fam) and [2020] EWCA Civ 734). 

In June 2020, the matter was further adjourned as the mother had taken an overdose.  In July 2020, Dr McEvedy assessed the mother as capable of giving evidence.  The mother filed a statement that she was not in the right frame of mind to give evidence. No party sought to compel her to give evidence. 

This is a very lengthy judgment.  The law is set out in detail, in particular the approach to be taken to hearsay evidence and the weight to be given to the mother's evidence, in light of her decision not to give evidence.  Lieven J endorsed the approach of Brooke LJ in Wisniewski v Central Manchester Health Authority [1998] PIQR P324.  Lieven J noted:

• These are inquisitorial proceedings rather than adversarial.  The court is required to survey all the evidence and to avoid compartmentalisation.

• The legislative framework allows for the admission of hearsay evidence.

• The approach to lies in Lucas requires a measured approach. There is a spectrum.  At one end, where the court is satisfied a person has deliberately, without excuse, refused to come to court to support their written statement, the court may refuse to place any weight on any of their evidence and draw inferences against them. In other cases, the court will consider the circumstances of their failure to give evidence, the explanations, the evidence itself and the issues it goes to. Where there is compelling evidence explaining an inability to attend, full weight might be given and no inferences drawn. In between will be cases where the court might determine it is appropriate to give weight to some evidence but not to other evidence and to draw some but not necessarily all possible inferences.

Evidence
The documentary evidence exceeded 8000 pages.  The court heard oral evidence from 7 expert witnesses: Dr Cirimele (forensic toxicologist)d, Professor Forrest (forensic toxicologist), Dr Hawcutt (consultant general paediatrician and lecturer in paediatric or clinical pharmacology), Dr Ashworth (consultant paediatric pathologist and special cardiac lead at GOSH), Dr Cary (consultant forensic pathologist), Dr Palm (consultant paediatric pathologist) and Prof Bu'Lock (consultant in congenital and paediatric cardiology). Professor Jacques, paediatric neuropathologist, also provided a report but was not called to give evidence.

Lieven J sets out the expert evidence in great detail.  She analyses in particular the toxicological evidence, considers the nuance of hair strand testing in children and assesses potentially conflicting HST results. 

At the conclusion of the expert evidence, the local authority significantly amended the finding sought and alleged that cocaine was ingested by K while in the care of and due to the culpable actions or neglect of either M, F or PGM. Alternatively, they culpably failed to protect her. Findings were not pursued against MGM as it was accepted that her HST and the drug screening of her home were consistent with exposure to drugs from others' actions.   The parties all accepted that K had ingested cocaine at some point which had caused the cardiac necrosis, which led to her death. The circumstances of how she had come to ingest cocaine remained in issue. 

Lieven J sets out and analyses the factual evidence from the lay parties with care.  In particular, she addresses the weight to be given to the mother's evidence, the father submitting it should be discounted.  Lieven J notes that though the mother was not subjected to cross examination, she could get a sense of her character and reliability as a historian from the recordings of her police interviews.  The father was an unreliable and often dishonest witness; PGM was an unsatisfactory witness though with moments of honesty. While M, F and PGM bear responsibility, they are not one-dimensional bad characters. MGM was the only honest, reliable witness.

Conclusion

Lieven J draws together the evidence and made findings in respect of drug use by the mother, father and PGM; and the nature of the parents' relationship.  In respect of K, the judge found that she died as a result of ingesting cocaine in M's home at some point in the afternoon or early evening of 3 April 2019. F bore responsibility for bringing the cocaine into the home and leaving it carelessly so as to be ingested by K. M was aware of F bringing cocaine into the home and processing it. Despite being generally protective, M did not prevent this due to their relationship and her own recreational use. A reasonable person ought to have identified the risk posed by F and taken steps to protect the children. 

Though a disclosure to hospital staff of the possibility of cocaine might have led to action to prevent K's death, Lieven J was not satisfied that the possibility of K having ingested cocaine was on M's radar.  She was prepared to accept that if F had known K had ingested cocaine, he would have somehow indicated this. He was sufficiently self-absorbed and unaware of the children's welfare that it might not have occurred to him that the children may have ingested cocaine that he had left lying around. PGM did not bear direct responsibility for K's ingestion but bears indirect responsibility as the head of a family steeped in Class A drug use over many years and her cavalier attitude to the risks.

Lieven J observes that K's death was needless and avoidable. She concludes: "If ever there was a lesson of the perils of drug misuse this provides it. I have little doubt that adults, young people and children will continue to die from the deliberate and inadvertent ingestion of illicit drugs. The complacency that accompanies frequent misuse is perhaps one of the biggest problems. Whether this family is able to learn from this tragedy remains to be seen. I hope they and others do".

Summary by Victoria Roberts, barrister, Coram Chambers

Read the full judgmentt of  K (Threshold - Cocaine Ingestion - Failure to give evidence) [2020] EWHC 2502 (Fam)  on BAILII