H-C (Children)

This is an appeal from a fact finding determination made by Mr Justice Newton sitting in the Family Court in Manchester on 25^th August 2015. The case concerned the welfare of two half-brothers, K and J, who were the subject of care proceedings. Although the local authority’s case in support of long term orders to protect these two children from neglectful parenting, drug and alcohol abuse, domestic violence and general poor childcare was broadly based, the fact finding hearing conducted before Newton J over the course of 3 weeks in July 2015 related to the circumstances surrounding the death on 22^nd March 2014, when aged 13 months, of the youngest child of the family, another boy, A.

A died overnight on the night of 21^st/22^nd March 2014 at a time when all three boys were in the sole care of a Mr C who was staying overnight in the children’s mother’s flat. The mother was not there. Mr C is the father of J. He is not the father of either K or A, although at the time he thought that he was A’s father.

All three boys and Mr C slept in the same bed, apparently having retired for the night at around 8.20 p.m. The following morning at 6.51 a.m. Mr C dialled 999 having, on his account, recently awoken to find A apparently dead in the bed. It was common ground that the probable cause of A’s death was asphyxiation as a result of some obstruction of his breathing. The question for the court was, therefore, whether A died as a result of deliberate smothering by Mr C, which was the case for the local authority supported by the children’s guardian, or through some other non-deliberate mechanism such as being lain upon by one of the other people in the bed, or becoming wedged between the edge of the bed and the wall.

At the conclusion of an extensive trial, Newton J concluded as follows (paragraph 86):

Before the judge it was agreed by all parties that the statutory threshold criteria under Children Act l989, s 31 were established irrespective of the finding of smothering. It was also agreed that the two surviving boys would be cared for by K’s father. Nevertheless the local authority had sought a finding of deliberate smothering against Mr C and, in turn, Mr C now seeks to appeal the judge’s factual conclusion.

Mr C was granted permission to appeal by Lady Justice King on 12^th October 2015.

The short summary that I have already given as to the deficits in this couple’s parenting ability gives the flavour for what became detailed findings made by the judge as to significant negative aspects of the background and current functioning of both the mother and Mr C. The judge held that both parents had had impoverished backgrounds, and both had experienced a long struggle with drug and alcohol addiction. Their relationship, which had started in 2008, was characterised by a striking level of domestic disharmony, violence and criminal behaviour. The judge, rightly, lists the most significant events, but records that the matters that he had mentioned were but examples of “many other incidents, which are produced to support the depressing catalogue of uncontrolled behaviours and, in the father’s case, extreme behaviours of violent and drunken behaviours”. The judge considered that the circumstances that he found established demonstrated a high level of “confusion which reigned in the children’s lives”, particularly in the period leading up to March 2014. The judge held that the mother, despite the focus of the proceedings, still seemed unclear as to the children’s domestic arrangements in February and March 2014. He describes there being “a stressful situation which was far from under control” involving the mother, Mr C and the children.

The only sources of direct evidence as to what took place in the mother’s flat once the children were in the sole care of Mr C came from Mr C and, to a limited extent, from young K who was then aged 6 years and who subsequently gave an ABE interview. A toxicology report on a blood sample taken from Mr C on 22^nd March indicated high concentrations of diazepam and nordiazepam which could be consistent with regular high dose use. Mr C apparently indicated that he was a regular user of these drugs at that time, and, the judge concluded, he may have developed a tolerance to the ordinary symptoms which include drowsiness, dizziness, confusion, impaired co-ordination and loss of concentration. There is no indication that the father had taken any alcohol on the evening of 21^st March.

The judge accepted that the mother, Mr C and the children had been seen by a maternal uncle, the maternal great aunt and a maternal sister during the afternoon of 21^st March and that the father and children had returned to the mother’s flat, without the mother, shortly before 6.00 p.m. As I have indicated, Mr C asserted that all four went to bed shortly after 8.00 p.m. The judge’s account of subsequent events is as follows (paragraph 28):

As I will describe in more detail in due course, in addition to the father’s account, the judge also heard evidence from a couple who resided in the flat immediately below the mother’s flat as to what they heard during the early hours of the morning of 22^nd March.

The post-mortem on A was undertaken by Doctor Alison Amour, a Home Office pathologist with some 25 years’ experience, together with Dr Bitetti, a consultant paediatric pathologist on 25^th March 2014. The following groups of potentially significant marks were found on A’s body:

Some 14 different bruises, or areas of bruising to his head and face, including one bruise behind the right ear;

Two pressure marks to the head consistent with pressure applied to the head from a hard surface;

Injuries to the penis and the area of the penis, including what to Dr Armour appeared to be bruises and abrasions.

On the basis of the internal medical evidence the judge concluded that the most likely cause of death was asphyxiation, and stated that the question for the court was: “Whether it is possible to distinguish or deduce asphyxiation caused accidentally or deliberately”.

The judge described the window of time within which death was likely to have occurred as follows: (paragraph 66):

In her initial post-mortem report Dr Armour concluded that the marks/injuries to A’s head and face were “inconsistent with accidental causation” and “consistent with pinching, poking, prodding and I would not exclude punching”. In particular she considered that the marks/injuries “to the nose, both cheeks and chin are those of external physical violence being applied around the nose and mouth”. With respect to an area of pallor or “sparing” in the perioral area immediately around the nose and mouth Dr Armour stated: “the perioral area of sparing is consistent with the pressure effect of this area”. She therefore stated her opinion which was that: “these marks/injuries were caused by a physical force being applied to this area in order to close the airways.” This was her conclusion as to the cause of death notwithstanding noting that there were no pathognomonic signs of smothering.

With respect to the two pressure marks on A’s head, Dr Armour was confident that these had probably been sustained in life and may have arisen as a result of fingertip pressure.

Dr Armour observed during the post-mortem that there was an ill-defined red mark to the nose with two linear parallel marks within it, one to the bridge and one near the tip, and that a mark to the right cheek contained a number of faint white lines within it. Examination of the pillow and pillow case from the bed revealed a white pillow with a stitched on stripe and pleated band. The dimensions of the pillowcase were seen to be consistent with these marks to the child’s cheek and nose.

Drawing matters together Dr Armour’s report so far as the head and face markings were concerned concluded as follows:

So far as the unusual signs in the area of A’s penis were concerned, Dr Armour’s opinion was that these were “consistent with a violent force being applied to this area either by forceful gripping or possibly a bite”.

Although not indicative of any cause of death, signs of hypostasis (that is pooling of the blood after death caused by the effect of gravity) were noted to the back of the body, the right side of the forehead, the right cheek, the right temple, the right ear and right side of the chin. Faint hypostasis was also present on the left side of the front of the chest, front of the abdomen and front upper two thirds of the right thigh. Some hypostasis was noted on the left upper limb and front of the right arm. It was common ground amongst the pathologists that the hypostasis, which is a post-mortem manifestation, indicated that A’s body had been lying in different positions in the period following his death and before admission to hospital.

Dr Nathaniel Cary, who was described by the judge as a highly experienced, well-known and respected Home Office consultant forensic pathologist, was jointly instructed by the parties in the care proceedings. In addition the court had evidence from Dr Malcolmson, a consultant paediatric and perinatal pathologist who had been instructed by the police.

Having come into the case and having been exposed to all of the relevant material, Dr Cary expressed an opinion as to the signs of injury and cause of death which was radically different to that put forward by Dr Armour. In summary, Dr Cary’s opinion was that the most probable explanation for the combination of signs on A’s body and his death was overlaying or becoming wedged between the side of the bed and the wall. The degree of disagreement between the experts, and the manner in which it came to be presented to the court, had, in the judge’s view, an adverse impact on the task of investigating the circumstances surrounding A’s death. The judge describes the situation in this way:

That the level of professional disagreement impacted upon the judge to such a degree is of some significance in the context of Mr C’s appeal to this court.

Two experts’ meetings were held prior to the fact finding hearing. Neither Dr Armour nor Dr Bitetti were invited to attend either meeting. Dr Cary, Dr Malcolmson, Dr Cohen and Dr Cartlidge (a consultant paediatrician) did attend. There was some movement as a result of this process in that Dr Malcolmson changed his opinion as to the probable cause of death and the penile appearances so that he became in line with the view of Dr Cary following the experts’ meetings. Insofar as is necessary, I will highlight the differences in the view of each expert when dealing with the individual symptoms.

I have already set out Dr Armour’s primary conclusion that the distribution and quantity of bruising and injuries to the head and face were consistent with physical assault. Newton J summarised the evidence of the other experts on this topic as follows (paragraph 34):

At the conclusion of the evidence the opinion of the various experts as to the causation of the two pressure marks found on A’s head and, importantly, whether these marks had been sustained prior to or after death, was inconclusive. Dr Malcolmson agreed with Dr Cary that, whilst consistent with the application of pressure from a finger or fingers, the marks may be attributable to some other non-traumatic cause. Dr Cary considered that they were consistent with the position of the body after death becoming trapped between two firm surfaces. Dr Cohen could not differentiate between the marks occurring during life or post mortem. At paragraph 36 the judge expressed his clear conclusion with respect to the two pressure marks:

After receiving all of the relevant evidence and expert opinion with respect to the penile injuries the judge expressed his conclusion as follows:

As the judge did not make a positive finding in relation to the penile injuries it is not necessary to explain the stark differences of opinion between the various medical witnesses. One aspect of this issue should not, however, pass without comment. It relates to case management. A primary issue with respect to the penile symptoms was whether or not there was evidence of bruising. Dr Armour gave her oral evidence to the hearing on a day prior to the attendance of Dr Cary. She maintained her opinion that the injuries included bruising and that they were compatible with physical assault. Prior to his attendance at court the parties had understood that Dr Cary had had access to the histological slides and that, having seen them, he did not wish to change or develop his opinion. That understanding was, unfortunately, incorrect. At court on the morning prior to going into the witness box Dr Cary indicated that he had not seen the slides and he was given the opportunity to examine them. His conclusion following that examination was that the slides that he had seen, which plainly only relate to one part of the area in focus, did not include any evidence of bruising. His evidence was that, although the area around the penis showed, in the judge’s words, “a complex presentation brought about by congestion, hypostasis and inflation”, in Dr Cary’s view “there was something other than a bruise going on”.

Although the case still had some days to run, and although, following Dr Cary’s evidence, a written request to clarify her evidence was sent to Dr Armour by the court on other matters, this court was told that no attempt was made to seek Dr Armour’s response to Dr Cary’s opinion as to the lack of any evidence of bruising on the histology sections that he had seen. The unusual signs in the child’s groin area were plainly important both as to the possibility of direct injury being inflicted on his penis and, equally, because of the context that such injuries, if proved, would establish with respect to his asphyxiation. For Dr Cartlidge, if the injuries to the penis were not explained by bruising, then he could not say that the bruises to the head were more likely to be inflicted by an adult. In like terms the judge recorded Dr Cartlidge as saying “the tone of this case changes if there were no penile bruises”. As a matter of case management, therefore, for my part, I would have expected the parties, and if not the parties then the judge, to have ensured that Dr Armour was apprised of the developments during Dr Cary’s day in court and that her considered opinion on this important topic was obtained before the judge concluded his judgment.

Under the heading “The background context” the judge summarises a range of evidence from family members and others who had interaction with A in the period prior to his death.

A started to crawl from around Christmas 2013 and many witnesses apparently observed him to bang his head in a variety of ways, but never displaying any overt injury. By mid-February A was taking his first steps. The mother’s evidence, which the judge accepted, was that A frequently fell and more frequently head butted his head against both people and objects. Again, there was no apparent injury or adverse effect recorded. The judge concluded on this point:

At 1.45 p.m. on the day before his death the maternal great aunt, whom the judge described as “an excellent witness”, saw the mother, Mr C and A on the bus. She cuddled A for approximately 5 minutes and the judge records “he was not wearing anything on his head, she did not notice any marks or bruising on him”. From this and other evidence the judge concluded that, despite the frequent bangs to the head that A encountered in the course of his ordinary life, “no witness describes the extensive injury which was discovered on the morning of 22^nd March”.

The judge heard evidence from each of the two parents. The mother, who is not directly implicated in the circumstances around A’s death, gave limited evidence as to the background circumstances but plainly impressed the judge, who found her evidence to be “compelling” and that she “clearly was a truthful witness”.

Mr C did not generate such a benevolent response from the judge. Despite the wealth of documentary evidence recording a number of significant violent assaults by Mr C upon the mother, his evidence to the judge was that he could not recall being violent to the mother on any occasion. The judge described him as “a very poor witness”.

On the day before A’s death Mr C had tried, on some fourteen occasions, to make contact with an individual who owed him money for unpaid wages. Although he denied being agitated by his inability to make contact with this individual, the judge considered that he was, nevertheless, very focussed upon it. The judge’s overall conclusion as to the credibility of Mr C was as follows:

The judge found, as an agreed fact, that the night of A’s death was the first occasion that Mr C had cared for all three children alone.

The reference to “he was not telling the truth about that evening either” refers to a finding the judge went on to make in the light of the evidence of the couple staying in the flat downstairs.

Although the judge deals with the evidence of the neighbours separately from the other lay evidence, and deals with it, for the first time, under the heading “conclusions”, it is helpful to summarise that material at this stage. The neighbours’ evidence is important because of the judge’s conclusion that their accounts are “damning and in particular paint the lie to Mr C’s assertion that he and the boys had a quiet, unbroken night”.

The judge describes the evidence at paragraphs 80 to 82 in these terms:

The judge’s conclusion on this important element in the case is at paragraph 83:

As I have already indicated, the judge removed consideration of the penile injuries from his evaluation as to the circumstances of A’s death.

In relation to the generality of the bruising to the head and face, leaving aside abrasions/reddening and the particular marks to the face and nose which matched the patterning of the pillow case, the judge was unable to find any of the bruising to the face and head to be anything other than accidental. He summarised his conclusion as follows:

So far as the two pressure marks to the head were concerned, having reviewed the evidence, the judge was unable to make any findings one way or the other, save simply to record them. He said: “I do not think that I could possibly say that they were consistent with or even caused by restraining A’s head as a pillow was applied to his face, or forcing his head down into a pillow.”

The judge then considered the appearance of abrasions and/or reddening to A’s face as follows at paragraph 69:

Dealing with the specific marks to the face and nose which were compatible with the fabric of the pillows, the judge’s conclusion was as follows:

So far as hypostasis is concerned, the judge concluded that the extensive finding of hypostasis to the back, front and sides did no more than determine that at different times A was in different positions. The hypostasis was not probative of A’s position at the time of death. The relevant paragraph is paragraph 72:

Finally, in terms of specifics, the judge dealt with “wedging or overlay” as a possible mechanism for asphyxia. He recorded that “Dr Cartlidge is very clear that A would have been very likely to extricate himself and/or that his struggles would have woken the other occupants of the bed” were he to have become compromised either by being laid upon or becoming stuck without air in the bed. On this point the judge’s concluding paragraph, at paragraph 75, is important in the appeal and is as follows:

Following his review of the medical evidence, and despite his earlier conclusion that the marks to the face and nose, the facial abrasions and the perioral pallor supported active smothering, the judge expresses the following conclusion in relation to the medical evidence as a whole (paragraph 77):

The judge’s description of his conclusion then moves on, at paragraphs 79 to 83, to include the description of the evidence of the neighbours to which I have already made extensive reference. On the basis of his findings with respect to the neighbours and in relation to the father’s evidence generally the judge formed the following specific conclusions:

Mr C’s description of a peaceful night of unbroken sleep was plainly untrue (and therefore a lie) which was not explained by feelings of shame, panic or to cover up some dreadful accident;

Nothing about Mr C’s apparent drug use or sleeping habits would render him more likely to sleep more heavily than might be commonly understood;

Mr C was especially agitated and consumed by the failure of his wages to be paid;

Mr C finds it difficult, almost impossible, to control himself when things do not go his way; he acts impulsively without thought for the consequences. He is a man whose life is chaotic and volatile, using drugs and alcohol so as to “feel normal”, and a man who commits criminal offences;

This was the first occasion that he had had the sole care of the three boys.

The judge’s ultimate conclusion is expressed at paragraph 86 as follows:

Mr Karl Rowley QC and Miss Lorraine Cavanagh represent Mr C in this appeal, as they did before the judge. Seven specific grounds of appeal are raised under two general headings. The general headings are:

The learned judge was plainly wrong in that he elevated a suspicion in respect of smothering to a finding on the balance of probabilities which was not justified on the evidence received.

The internal reasoning of the judgment is fundamentally flawed.

The three points made under the first heading are, in summary:

Having rejected Dr Armour’s evidence in respect of some of the injuries, the judge failed to bring the apparent certainty of her evidence in respect of those rejected elements into an evaluation to consider whether it undermined her conclusions as to the cause of death;

Favouring Dr Armour’s interpretation of the significance of the marks to the face, facial abrasions and perioral pallor over that of Dr Cary and others for no sufficient reason;

Placing weight upon the evidence of the neighbours which that testimony could not bear and failing to reconcile or properly address the apparent incompatibility of the medical evidence with the neighbours’ account.

With respect to the second heading four points are made:

The judge proceeded to a finding of smothering despite having stripped the abusive context from the case by rejecting the allegations about bruising to the head;

The judge expressed contradictory conclusions in relation to hypostasis in determining whether smothering had occurred;

The judge failed to assess and analyse the effect of the ABE evidence of K;

The judge failed to undertake an adequate analysis of the father’s character, motivation and credibility in the light of all the evidence in the case.

In his oral submissions Mr Rowley focussed upon the manner in which the overall geography of the case had changed in the lead up to the hearing. From a high point represented by the original conclusions of Dr Armour which attributed a traumatic origin to each of the four areas of apparent injury, by the close of the evidence the facial bruising (as distinct from abrasions) and the unusual presentation around the penis had been excluded. The judge, nevertheless, apparently relied upon Dr Armour’s opinion with regard to the facial abrasions in preference to that put forward by Dr Cary. Yet, in Mr Rowley’s submission, the judge accepted Dr Armour’s opinion on those points without engaging with the fact that he had felt it necessary to reject her opinion on these other important matters.

More generally, Mr Rowley submits that the judge was plainly deflected in his analysis of the case by the dispute between the experts, principally Dr Armour and Dr Cary, yet he does not explain how his evaluation of the evidence has been compromised by that unwelcome aspect of the case. For example Mr Rowley points to paragraph 30 where the judge states:

Another particular point highlighted by Mr Rowley is that the judge brings in “the pattern of the hypostasis” as one of the three factors in support of his conclusion that “overlaying is most unlikely to have occurred” at paragraph 75, despite his clearly stated conclusion as to hypostasis at paragraph 72 (set out at paragraph 45 above).

Mr Rowley submitted that the case all turned upon the judge’s conclusion as to the neighbours’ evidence. That this is so is established by paragraph 77 in which the judge stated that the medical evidence “does not necessarily assist on the assessment of likelihood”. With respect to the evidence from the neighbours Mr Rowley submits that the judge was in error in placing any reliance as to the cause of death on the female neighbour who, on the judge’s findings, was reporting overhearing noise and conversation at a time when “A was likely to be already dead”. The importance of the neighbours’ evidence therefore turned entirely upon the male neighbour and what he thought he had heard at around 4 a.m. as he moved from the sofa to his bed and before he fell asleep.

At the start of the appeal hearing we heard an application by Mr Rowley to adduce fresh evidence which had recently become available to Mr C’s legal team. The evidence arises out of care proceedings with respect to the child of the neighbours. An application was made to the court to rely upon a redacted copy of the judgment given by Her Honour Judge Singleton QC on 4^th November 2015 in the course of the proceedings in relation to the neighbours’ child, together with two statements, one from each neighbour, filed subsequently in those proceedings.

Using the structure established by Ladd v Marshall [1954] 1 WLR 1489, Mr Rowley submits that:

This evidence could not have been obtained with reasonable diligence for use at the trial;

The evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

The evidence is such as is presumably to be believed, or is apparently credible, though need not be incontrovertible.

It is necessary to summarise this material. HHJ Singleton’s judgment firstly establishes that the male neighbour has a “very concerning history” for “extreme violence against women” and that he, despite detailed allegations of his behaviour in recent times, denied specific matters which the judge subsequently found proved. Secondly, partly because of the history of violence, the social services in the build up to the care proceedings in relation to their child, had required the couple to enter into an agreement to remain separate and apart. In this respect the judge found that numerous breaches of the agreement were proved. In this regard the court had obtained telephone records relating to the couple which demonstrated that they had been in regular contact, despite the terms of the agreement.

The direct relevance to the present appeal arises from Judge Singleton’s judgment at paragraph 58, part of which reads as follows:

At the conclusion of the hearing, and no doubt to give the couple, but particularly the mother, one last chance to demonstrate trustworthiness, the judge indicated an expectation that the couple should provide details to the court of the telephone conversation on 5^th June.

The two statements made by the couple after the judge’s judgment deal, amongst other things, with the telephone call. The female neighbour relates the telephone call on 5^th directly to the fact that on 4^th June the police had apparently contacted her former partner to tell them of the decision to charge Mr C with respect to A’s death. She understood that the police had asked her former partner to let her know and to ask her to contact the police officer. She states that the one hour telephone conversation was about this matter. In his statement her former partner agrees with her account of the telephone call.

The local authority, supported by Mr Rothery on behalf of the Children’s Guardian, opposed the application to admit this fresh material. In doing so they accepted that the evidence was not available at the time of the trial and that it was potentially credible; their opposition was therefore focussed upon ground (b) namely its potential influence on the result of the case.

Having heard submissions we announced our decision which was to admit this material. We did so on the basis that the new material is plainly relevant to, what was for the judge, a particularly important aspect of the evidence in this case. It is not an understatement to say that, in the context of his analysis of the other evidence, without any evidence from the neighbours the judge would not have made the finding of smothering that he made. The judge regarded each of the two neighbours as “impressive” witnesses. Further, we were taken to the cross-examination of the female neighbour who, in terms, denied having any communication with her former partner about these matters (save around the time of the event).

Drawing matters together we therefore concluded that the evidence arising from the judgment of HHJ Singleton and the two statements from the neighbours was such that, if it had been given before Newton J, it would probably have had an important influence on the result of the case. In particular it might well have called into question the judge’s ability to rely to the extent that he did on the testimony of the male neighbour as to what he heard in the small hours of the morning.

In presenting the case for the local authority Miss Jane Cross QC and Miss Heather Hobson, who appeared below, rightly stress the great advantage that the trial judge had in hearing the extensive evidence from expert and lay witnesses and in being able to evaluate their presentation and demeanour in the witness box, an advantage which is simply not available to this court.

The local authority stresses that, although the judge did not agree with some of the conclusions to which Dr Armour came, he did not reject her expert opinion on the basis that it was fundamentally flawed. In relation to the facial bruising, for example, he simply came to a different conclusion after taking into account a broader landscape of factual evidence about A than had been available to Dr Armour. With respect to the judge’s rejection of Dr Armour’s conclusion as to the unusual signs in the area around A’s penis, Miss Cross points to the fact that Dr Armour was not a single joint expert and did not have the opportunity to consider, and respond to, Dr Cary’s evidence and opinion following his viewing of the histological slides immediately before his oral evidence. Whilst that submission is factually correct, it loses some of its weight in my view, once it is understood that the local authority took no step to obtain any response from Dr Armour following Dr Cary’s oral evidence.

Miss Cross submits that the judge was perfectly entitled to prefer and accept Dr Armour’s evidence as to the significance of marks around the mouth and nose which were, in the expert’s view, consistent with smothering. He was also, in Miss Cross’s submission, entitled to conclude that, although the pattern of hypostasis was not itself probative of the position of death, it was probably not consistent with overlaying once the circumstances in which any overlaying might have occurred are considered.

So far as the crucial evidence of the neighbours is concerned, the local authority’s basic submission is that the judge was entitled to conclude that both of the neighbours were impressive witnesses and to accept their account which was in stark contrast to that of Mr C. In the light of the fresh material admitted for the purposes of the appeal, Miss Cross submitted that adverse findings as to the reliability of these two witnesses with respect to the circumstances of their own family life, does not establish, as night follows day, that the judge was in error in relying upon their testimony in the proceedings regarding A. The neighbours did not know Mr C or anything about the family in the flat upstairs. They had no reason to lie or exaggerate their evidence to Newton J. The discovery of the new material therefore did not, in the local authority’s view, detract in any way from the credibility of the couple’s evidence in these proceedings.

In her oral submissions Miss Cross accepted that at times it may be difficult to follow the line of judicial reasoning through the judgment, and this was particularly so when attempting to identify the nexus between individual facts and the medical evidence. Later she put the same point in a slightly different way by accepting that, in places, it is difficult to reconcile particular references to the medical evidence with the underlying facts. However, her overall submission was that, despite these apparent difficulties, it was nevertheless possible to follow the route taken by the judge to his overall conclusion.

The local authority accepts that the medical evidence was not determinative of the issue of smothering. Miss Cross was plain that the medical evidence was merely consistent with either smothering or accidental suffocation.

With respect to ground 1(b), which relates to the judge’s preference for Dr Armour’s interpretation of the significance of the marks to the face, facial abrasions and perioral pallor, Miss Cross submitted that the judge was entitled to prefer Dr Armour’s evidence. In response the court asked Miss Cross to identify that part of the judgment where the judge analysed this important aspect of the case. Miss Cross took the court to paragraphs 70 and 71 (reproduced at paragraph 44 above). Those two paragraphs, however, do not actually include any analysis by the judge. Paragraph 70 is a straight recital of the competing points made by Dr Armour, on the one hand, and Dr Cary, on the other. The short, one sentence, paragraph 71 simply records the judge’s conclusion. For convenience I reproduce paragraph 71 again at this point:

With respect to the judge, paragraph 71 is not easy to understand both in terms of its own internal construction and, more importantly, in the context of the judgment as a whole. During submissions the court made the following points to Miss Cross in this regard:

The distinction drawn by the judge as between “some organic cause” and “active smothering” is not a correct statement of the issue in the case. There was no suggestion that A died as a result of “some organic cause”. The essential choice was between suffocation as a result of his airflow becoming compromised through becoming wedged in the bed or being lain upon by one of the other occupants, or smothering.

With regard to the facial abrasions, the judge had concluded in paragraph 69 that “the likelihood of abrasion (through trauma) requires weighing with the other aspects”. He could not rule out this reddening to A’s face being explained by a bout of sickness reported by Mr C and K earlier in the previous evening. Yet, within two paragraphs of that conclusion, the judge expressed himself to be satisfied on the balance of probabilities that the facial abrasions supported a conclusion of active smothering;

Paragraph 71 where the judge expresses himself to be satisfied that “Dr Armour is correct” is difficult to reconcile with paragraph 87 where the judge states “I make clear, sure findings but not for the reasons or process of reasoning set out by Dr Armour”.

The judge’s conclusion at paragraph 71 that these three signs “support” active smothering is also at odds with his statement at paragraph 77 that “the evidence of pathology and the medical evidence does not necessarily assist on the assessment of likelihood.”

Similar difficulties arise with respect to paragraph 72 which deals with the extensive hypostasis. The judge concludes there that the hypostasis “does no more than determine that at different times that A was in different positions. None is probative of the position of death”. That conclusion would seem to be in direct contrast with that expressed at the end of paragraph 75 in relation to the possibility of A being lain upon by another occupant of the bed:

Despite the best efforts of Miss Cross to address these points, for my part, they remain examples of what Miss Cross accepted were difficulties in the judgment.

Ground 2(c) of the appellant’s grounds of appeal relates to the ABE interview undertaken by six year old K, during which he reported that nothing untoward had occurred in the bedroom overnight on 21^st March. K’s interview is mentioned briefly in two paragraphs of the judgment. At paragraph 75 the judge states:

Miss Cross accepts that there is no analysis of K’s ABE interview in the judgment. She explains that it is not surprising that that is the case because K’s interview did not feature at all in the hearing. For various reasons the local authority did not put K forward as a reliable witness of details, for example K asserted that A had never fallen over, in contrast to the evidence of all of the adult witnesses who knew him. In response on this point Mr Rowley pointed to the closing submissions made on behalf of Mr C which directly refer to K’s ABE interview and he told this court that the judge had been invited to view the ABE interview in the court room, but had declined to do so though the learned judge stated that he did view the interview in chambers.

Finally, in terms of detailed submissions, Miss Cross firmly argued that Mr C’s challenge, in ground 2(d), to the judge’s clear negative findings as to his credibility could not be successfully challenged on appeal. Findings as to credibility of this nature fall fairly and squarely within the domain of a trial judge and, without the clearest of evidence to the contrary, were unassailable on appeal.

On behalf of the Children’s Guardian, Mr Rothery, who appeared below, supported the local authority’s opposition to the appeal. He, in like manner to Miss Cross, accepted that there were difficulties in establishing that the judge had adequately signposted the route he had taken to reach his overall conclusion. At the hearing both the local authority and the Children’s Guardian had argued in support of a different route, namely by finding that the facial bruising, or at least some of it, was inflicted upon A by way of an assault or assaults on the night of his death. Mr Rothery accepted that it was not possible to re-argue that point on appeal in the absence of a respondent’s notice filed either by the local authority or the Guardian, supporting the judge’s overall conclusion on this alternative factual basis.

In the course of his submissions the court took Mr Rothery to an additional area of apparent imprecision or confusion in the judgment relating to the likelihood that A would have struggled once his airways became blocked no matter what mechanism, be it overlaying or smothering, was the cause of the blockage. The judge deals with this point in passing at paragraph 75: “either hypothesis would entail some struggle” and he uses that point in concluding, in the same paragraph, that overlaying is a “most unlikely” explanation. The judge states: “the advices of Dr Cartlidge apply just as strongly here, A would have struggled.” Mr Rothery confirmed that Dr Cartlidge’s evidence was that there would indeed have been struggling whatever the cause of the blocked airways might be and that the occupants of the bed would have been woken. Mr Rothery told this court that a possible explanation for the children in the bed, and in particular K, being unaware of any struggle in the context of smothering was a suggestion (not based on any evidence) that A may have been smothered by Mr C away from the bed in some other part of the flat. Although that suggestion may have been made during the trial, it finds no place in the judgment and it is at odds with the judge’s statement that he is ‘sure’ that all the strands of the evidence “point inexorably to one conclusion”, namely, that Mr C temporarily lost control and pushed A into the pillow, possibly to keep him quiet, but causing him to suffocate. It therefore remains important, in my view that, in contrast to the judge’s deployment of Dr Cartlidge’s evidence about struggling in support of his rejection of overlaying as an explanation, the judge does not refer to the absence of any account of struggling when stating his conclusion in favour of smothering.

Mr Rothery made the sound submission that K’s evidence as to an unbroken night does not fit with either explanation as there would have been signs of struggling from A in any event. The judge was therefore, in his submission, entitled not to put any substantial weight on K’s recorded account.

So far as the judge’s reliance upon hypostasis is concerned, Mr Rothery accepted that paragraphs 72 and 75 do not sit easily together. However, he submitted that the multiple locations where hypostasis was identified indicated that A’s body must have moved position on a number of occasions overnight, after death, yet Mr C provided no explanation for any such movement. In Mr Rothery’s submission the signs of hypostasis helped to give the lie to Mr C’s assertion that he had experienced an unbroken night’s sleep.

In his short response to the submissions of the local authority and the Children’s Guardian, Mr Rowley explained that the judge’s inability to find any evidence of assault to A resulting in bruising to the face, head or groin, meant that the allegation of smothering arose “out of a clear blue sky” in the sense that there was, therefore, no evidence at all of Mr C ever being violent or aggressive towards any of the children. This was, he submitted, a factor that the judge did not draw into his analysis yet, on Mr Rowley’s case, it had to be addressed once the medical evidence as to non-accidental bruising was rejected.

Appeals against fact finding determinations in cases of suspected child abuse by experienced family judges very rarely succeed. This court, rightly, attaches a very substantial premium to the privileged position of the trial judge who has immersed him or herself comprehensively in the wealth of detail generated by such cases and has had the crucial advantage of seeing each of the key witnesses, both professional and lay, over an extended period in the court room and in the witness box. The starting point in approaching any such appeal therefore is that the judge’s judgment should be upheld unless the factual determination is wrong, in the sense of simply not being open to the judge on the evidence, or the judge’s reasoning and analysis are flawed to a serious degree, or there is some other serious procedural/fair trial error. In the present appeal there is no suggestion that the judge’s conclusion was wrong in the sense of being untenable on the totality of the evidence. For example, Mr Rowley accepts that if the judge had found bruising to the face, head or groin resulting from an assault inflicted on A on the night of his death, then that finding, together with the other medical evidence, might well have supported a conclusion in favour of deliberate smothering in a manner that would make any appeal by Mr C unlikely. The case presented to this court, therefore, is one based upon the assertion that the judge’s analysis and reasoning are either unsustainable or fundamentally flawed.

Despite the strong priority that I readily afford to upholding a factual determination of this nature, I have been driven to the position of accepting the submissions made on behalf of Mr C to the effect that this judgment cannot stand as an acceptable analysis of the evidence in this case in support of what is, on any view, a most serious conclusion. As a result, if my Lord and my Lady agree, the appeal will be allowed and the matter may have to be re-heard in due course in the Family Court. In those circumstances it is right to stress that the appeal has turned upon evaluation of the judicial analysis, rather than an evaluation of the core evidence. If the matter is re-heard in the Family Court, it will be open to the next judge to form his or her conclusion on each and every aspect of the evidence afresh. Nothing that I have said in this judgment is intended to do more than review the analysis undertaken by Newton J. Nothing that I have said should indicate what weight, or lack of weight, should be attached to any individual aspect of the evidence in this case in the event of a re-trial.

In the light of those observations, I will explain in short terms the reasons in support of the conclusion to which I have come.

Miss Cross and Mr Rothery were, I regret to say, correct in accepting that there are difficulties in following the route that the judge took through the factual evidence and expert opinion in order to reach his overall conclusion. In two respects aspects of the judge’s conclusions on specific matters seem to be in direct conflict with each other. This is so in relation to his approach to facial abrasion which is left open at the conclusion of paragraph 69, yet it is taken as a positive feature in support of active smothering at paragraph 71. The second such conflict relates to hypostasis which is assessed in neutral, non-probative terms in paragraph 72, yet is used to support the conclusion that overlaying is “most unlikely” in paragraph 75.

A less specific, but nonetheless important, apparent conflict is demonstrated by comparing the statement in paragraph 71 that the judge is satisfied “that Dr Armour is correct” with respect to the marking to the nose and mouth in contrast to paragraph 87 where the judge states that his clear and sure findings are “not for the reasons or process or reasoning set out by Dr Armour”.

The judge’s overall conclusion on the medical evidence is unclear and, in part, confusing. At paragraph 71 he expresses himself to be satisfied on the balance of probability that the marks to the face and the perioral pallor “all support active smothering”, yet at paragraph 77 the judge states that “the evidence of pathology and the medical evidence does not necessarily assist on the assessment of likelihood”. The unease generated by this apparent inconsistency is, in my view, significantly exacerbated by the description the judge gives of the possible diagnoses between which he is making a decision as being “some organic cause” on the one hand and “active smothering” on the other, when an organic cause was never actively postulated whereas inadvertent suffocation was.

The manner in which the judge has dealt with the evidence of Dr Cartlidge as to A putting up a struggle whichever mechanism was the true cause of his asphyxia together with the evidence from K’s ABE interview is fundamentally inconsistent. The judge apparently relies upon Dr Cartlidge’s evidence of struggle and, also, relies upon K’s account of an undisturbed night, in support of his conclusion that overlaying and/or wedging was “most unlikely”. However, the judge does not rely, or indeed refer to, Dr Cartlidge and K in this respect when evaluating the alternative option of smothering in the bed (which was the judge’s ultimate finding).

A further matter of, in my view, important detail relates to the absence of any sign of tearing to the frenulum. The frenulum is the short bridge of skin connecting the front of the top of a child’s gum to the inside of his upper lip. If such a tear to the frenulum were present it would have been strongly indicative of trauma. Whilst the contrary, namely its absence, does not rule out trauma, the fact that there was no injury to the frenulum was, for Dr Cary, important in analysing the overall configuration of the signs immediately around A’s nose and mouth. The judge only refers to this aspect of the evidence in short terms (at paragraph 69) as part of his assessment of the causation of signs of abrasion or reddening to the child’s face. The judge states: “the failure to identify injury inside the mouth Dr Cary also considered relevant.” This is stated to be part of the constellation of factors leading the judge to rule out sickness as a cause of the reddening.

Dr Armour’s post mortem report records the area of reddening as being “3.5 cms diameter to the right cheek with an abraded appearance” and “a diffuse irregular red mark 5 x 4 cms to the left cheek”. Given the location of these signs it is unclear why the judge referred to Dr Cary’s evidence about the frenulum, which relates to the upper lip immediately below the nose, as the abrasions/reddening were on the child’s cheeks. In any event, although the judge notes that Dr Cary considered the absence of a tear to the frenulum to be relevant, the judgment does not record how, or whether, the judge drew that feature into his analysis.

Secondly with regard to the frenulum, and of more concern, is that when the judge moves on in paragraphs 70 and 71 to deal directly with the marks around A’s mouth and nose, no reference at all is made to the absence of a frenular tear.

Thirdly, having stated that the unfortunate conflict between Dr Armour and Dr Cary had significantly hampered the evaluation of the evidence and tainted its robustness, the judge did not go on to explain how this feature of the trial had actually impacted upon his ability to come to any conclusions.

Finally I turn to the aspects of the non-medical evidence upon which the judge relied. The importance of this evidence to the judge’s evaluation is plain. On one view of the judicial analysis, and this was the closing position of the local authority, the medical evidence was to be regarded as no more than neutral, neither pointing towards a finding of smothering nor asphyxiation from another source; that, indeed, was the closing position of the local authority. After reviewing the non-medical evidence, however, the judge was sufficiently satisfied that A had died as a result of a deliberate act by Mr C that he expressed his conclusion in terms of the criminal standard, namely that the evidence pointed ‘inexorably’ to a finding about which the judge was ‘sure’.

The elements of the non-medical evidence were:

On the basis of the neighbours’ evidence “Mr C’s description of a peaceful night of unbroken sleep is plainly untrue”, and leading to the conclusion that he is not lying to cover up some “dreadful accident or mistake”;

Mr C has a propensity to lose control of himself when matters do not go his way; he acts impulsively without thought for the consequences;

This was the first occasion on which he had looked after all three children;

Mr C was especially agitated and consumed by the fact that he had not been paid the wages that were due to him that day;

Mr C’s comment to the mother that he has ‘to live with this for the rest of his life’, was, in the judge’s view, a rare glimpse of truth.

Within that list of factors, although the judge does not expressly prioritise them, the finding that Mr C lied about the quietness in his flat that night is given the greatest prominence in this section of the judge’s analysis. A family court, in common with a criminal court, can rely upon a finding that a witness has lied as evidence in support of a primary positive allegation. The well-known authority is the case of R v Lucas (R) [1981] QB 720 in which the Court of Appeal Criminal Division, after stressing that people sometimes tell lies for reasons other than a belief that the lie is necessary to conceal guilt, held that four conditions must be satisfied before a defendant’s lie could be seen as supporting the prosecution case as explained in the judgment of the court given by Lord Lane CJ:

The decision in R v Lucas has been the subject of a number of further decisions of the Court of Appeal Criminal Division over the years, however the core conditions set out by Lord Lane remain authoritative. The approach in R v Lucas is not confined, as it was on the facts of Lucas itself, to a statement made out of court and can apply to a “lie” made in the course of the court proceedings and the approach is not limited solely to evidence concerning accomplices.

In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of R v Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the “lie” has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice.

One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the “lie” is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane’s judgment in Lucas, where the relevant conditions are satisfied the lie is “capable of amounting to a corroboration”. In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton [2001] Crim.L.R. 251.

In the present case Newton J did not directly refer to R v Lucas or to the conditions set out within that authority. By implication he held that Mr C’s account of a quiet night was given deliberately, and secondly he held, rightly, that that account related to a material issue in the case. In stating that he had “stepped back to consider whether that is because of shame or panic, or because of some dreadful accident” the judge was, again by implication, considering the general thrust of R v Lucas and, in stating that “overall I reject any notion that his lies masque some dreadful accident or mistake”, he seemingly rejected an innocent explanation for the “lie”. There is, however, ground for concern that the judge may have overstepped the line and adopted an approach which, in the criminal context, would not be permitted by his statement in paragraph 79 of the judgment as follows:

I have taken the opportunity to refer to R v Lucas in the hope that a reminder of the relevant approach taken in the criminal jurisdiction will be of assistance generally in family cases. In the context of this appeal I am left unclear as to whether the judge fell into error in his approach to the lie.

Turning to the substance of the neighbours’ evidence there is, however, ground for concern that the judge has conflated the accounts of the two neighbours when, in reality, they were each describing two separate episodes during the early morning on 22^nd March. The crucial distinction between the two is that, on the judge’s findings, A may have still been alive when the male neighbour reports hearing noises from the upstairs flat, whereas A was very probably deceased before the female neighbour woke up. As the judge held, the female neighbour’s account may well be compatible with that given by Mr C. The significance of this evidence therefore turned on the male neighbour’s account, and not the female’s.

The male neighbour’s evidence was heard by the judge and it therefore falls very squarely in the territory which commands the greatest respect from any appellate court. That said, the male neighbour’s account was limited and related to a memory gained after waking up in the small hours of the morning on a sofa before moving to his bed and then falling, once again, fast asleep. Whilst the judge was entitled to form the conclusion that he did, it was, in my view, a slender basis upon which to mount the findings of smothering that the judge then went on to make.

My conclusion on this aspect of the case is that the judge failed to explain the approach that he had taken to the issue of Mr C’s ‘lies’ with sufficient clarity. It is not clear whether the judge relied upon the lies as direct proof of smothering, which would not be permissible, or merely as corroboration of some other (unspecified) evidence which was probative of smothering. The need for caution in this respect is underlined by the judge’s finding that the medical evidence did not necessarily assist in determining the likelihood of smothering. A finding that the night in the upstairs flat was not undisturbed, as Mr C had asserted, would not, without more be directly probative of smothering. Concern over this aspect of the judgment is enhanced by my conclusion that the judge has conflated, or failed sufficiently to separate, the evidence of the two neighbours when the account given by at least one, if not both, may well relate to a time after A had died.

I should make it plain that I would have been persuaded to allow this appeal on the basis that I have so far described even if there had been no fresh evidence relating to the neighbours. Had the fresh evidence that is now available been before Newton J, the neighbours would undoubtedly have been questioned about it and the judge would have taken that evidence, and the witnesses response to it, into account. We do not know what the outcome would have been but it may well have materially altered the judge’s evaluation of the degree of reliability he could attach to their testimony as against that of Mr C and, for that matter, K. Given the pivotal importance that Newton J attached to the neighbours’ evidence, in circumstances where, on his evaluation the medical evidence was equivocal, this fresh evidence would of itself have persuaded me that the present finding should be set aside.

For the reasons that I have given I have been driven to the unwelcome conclusion that this appeal must be allowed and the findings of the judge that Mr C smothered A should be set aside. We have been told that Mr C is shortly to stand trial in the criminal court in relation to this matter. There is no question of a re-trial in the Family Court prior to the criminal trial taking place given that that is fixed for April 2016. No doubt the question of a re-hearing in the Family Court will be considered after the criminal trial has concluded. The question of whether a re-hearing is necessary should be kept under active consideration by the parties and the Family Court. The effect of our order today is simply to set aside the finding. Whilst a re-hearing in the Family Court may take place, I would not, for my part, require that the matter be re-heard come what may.

I agree.

I also agree.