The London Borough of Newham v A Mother & Ors

I am concerned with two children, A, who was born in 2018, and is four years of age, and B, who was born in 2021, and is one year and nine months of age.

The parents had another child, C, who was born in 2017 and sadly died in 2020. No findings of fact have been sought by any party in respect of the circumstances of C’s death.

These public law proceedings were issued by the local authority in respect of both children after the local authority received an alert from the Royal London Hospital that the mother had been filmed on 23 April 2022 taking B into a bathroom when he was settled and well and returning to the room with him, some three minutes later, in an unconscious state. Concerns were raised about fabricated or induced illness. An Interim Care Order (‘ICO’) was made in favour of the local authority on 12 July 2022. The children have since been residing with their paternal grandparents under the ICO.

The matter was set down for a 25-day fact finding hearing. There are a number of findings sought by the local authority and the Children’s Guardian which are:

The father minimised and/or denies the possibility that the mother induced or fabricated the symptoms, telling the Social Worker that he has seen B having a seizure once in the family home, when they had to call an ambulance. He reported that professionals have got it wrong, due to the fact that there is no way the mother would do anything to harm their child;

The father failed to take into account that he had never seen the beginning of the medical episodes in the children.

On behalf of the Children’s Guardian, Mr Tughan KC and Ms Littlewood helpfully provided me with a narrative note of the legal principles I must apply in considering the issues in this case. It is agreed by all parties. The note is based on the leading authorities which I set out below and which have assisted me in my analysis of this case.

In relation to the findings of fact sought, I remind myself that the burden of proof is on the local authority.

The standard of proof is the simple balance of probabilities: Re B [2008] UKHL 35.

In Re A (A Child) [2020] EWCA Civ 1230, King LJ considered legal guidance in relation to issues of credibility, demeanour, and memory in the context of a fact-finding process in private law children’s proceedings, and legal guidance from family and wider jurisdictions.

In the judgment, King LJ observed:

In Re A (Children) [2018] EWCA Civ 1718, King LJ made the following observations in respect of the discharge of the burden of proof:

In respect of the value of oral testimony and demeanour Peter Jackson LJ in the case of

I remind myself in relation to lies told by a witness that I should take account of a revised Lucas direction. Accordingly I should only have regard to a lie told by a witness if I am satisfied that there is no innocent reason for the witness to have lied in their evidence.

The Court of Appeal considered the application of a Lucas direction in Re H-C [2016] EWCA Civ 136. McFarlane LJ, as he then was, emphasised the following at paragraph 100:

I entirely accept that the mere fact of a lie being told does not prove the primary case against the party or witness who has been found to have lied to the court.

Findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on mere suspicion, surmise, speculation or assertion: Re A (A Child) (Fact Finding Hearing: Speculation) [2011] 1 FLR 1817 and Re A (Application for Care and Placement Orders: Local Authority Failings) [2016] 1 FLR 1.

There is no obligation on a party to prove the truth of an alternative case put forward by way of defence and the failure by that party to establish the alternative case on the balance of probabilities does not of itself prove the local authority’s case: Re X (No.3) [2015] EWHC 3651 (Fam) and Re Y (No.3) [2016] EWHC 503 (Fam).

The case presented by the mother and the father is that A’s and B’s various episodes must be as a result of a cause as yet unknown to medical science (the ‘unknown cause’). Ms Grief KC and Ms Munro, on behalf of the mother, invited the court in closing submissions to reflect on a number of well known cases where the court was unable to explain the cause of a child’s death and/or injuries. The principal case relied upon was the decision of Sir Mark Hedley in the London Borough of Southwark v A Family [2020] EWHC 3117 (Fam). At the conclusion of his judgment Sir Mark observed as follows in paragraphs 182 and 187 to 188:

I respectfully agree with those observations but, of course, much turns on the facts of and the evidence in the individual case.

Mr Twomey KC and Mr Adler, on behalf of the father, raised the issue of hindsight or outcome bias. They drew my attention to the case of Surrey County Council v E [2013] EWHC 2400 (Fam) where Theis J observed at paragraph 75 that:

I respectfully agree with all of the above authorities and I have taken account of them in my consideration of the evidence and in my analysis of the same.

A and B’s sister C sadly passed away in April 2020 aged two years and four months. Days before her death, C was diagnosed with Wolf-Hirschhorn Syndrome (‘WHS’), a rare genetic condition. The coroner found that C’s death was related to seizures.

The mother has since expressed to medical professionals that she blames herself for C’s death as she knew something was “not right” with C since she was born. The mother has indicated that she did not have much support regarding C’s death.

Both A and B experienced some neonatal difficulties. After A was born, she had a gastro-intestinal haemorrhage. She was on the neonatal unit for five days and required incubator oxygen, though was not intubated or ventilated. B developed respiratory difficulties at birth and required intubation, assisted ventilation, and a chest drain placement. B was also noted to have a 6mm atrial septal defect (hole in his heart) in April 2022 which appeared to have closed by August 2022.

It has been confirmed through genetic testing that neither A nor B suffer from WHS.

Both A and B have been reported by their mother to have experienced seizure- like episodes on numerous occasions. No one other than the mother has witnessed the onset of the children’s symptoms. A and B have regularly been presented to medical settings and, respectively, have spent 74 days and 33 days in hospital for reported seizures. Of particular relevance are the following incidents.

On 18 June 2020, two months after C’s death, the mother took A to A&E, stating that she had had a seizure for three minutes. She reported that A had laid down, shaken from side to side, that her eyes had glazed over and rolled backwards, and that she had a floppy episode. A was thoroughly investigated, including by way of an MRI, a 24-hour ECH and an EEG; all results were normal. A was not observed to have any episodes during the seven days for which she was an inpatient. A was prescribed clobazam and midazolam.

On 27 June 2020 A was brought to A&E again. The mother reported that she had had a seven-minute seizure during which A’s limbs had gone floppy, after which she was unresponsive for 20 to 25 minutes. The mother administered midazolam. Upon initial assessment by paramedics A was scored 3/15 on the Glasgow Coma Score (‘GCS’), meaning no eye opening and no verbal or motor response. A was still slightly floppy when she arrived at A&E. The mother expressed a wish for A to be transferred to Great Ormond Street Hospital as she was afraid that what happened to C would happen to A. The mother reported a seizure when A was on the ward, but when the nurses saw A, she was pink and well perfused. Later that day the mother was in the bathroom with A and shouted for help. When nurses entered, A was very pale, floppy and cyanosed around her lips. A began to scream and roll her eyes back. The mother again expressed her desire for a transfer to Great Ormond Street Hospital or Royal London Hospital, and a referral was made to the latter.

A underwent scalp video telemetry recording from 30 June 2020 to 3 July 2020. The mother reported an eye rolling episode during this period, although the EEG showed no changes during that period. The video telemetry did not capture any seizure activity.

On 10 July 2020 during a stay at hospital, the mother reported that A had a seizure in the bathroom which lasted just over five minutes. The mother was noted to

On 14 July 2020 the mother called an ambulance, reporting that A had collapsed and had a seizure lasting 5 minutes and 40 seconds after hitting her head on the sofa during a tantrum. The mother gave A buccal midazolam. In the ambulance, A was floppy and she projectile vomited twice.

During A’s stay in hospital on 20 July 2020, the mother told professionals that A had a cluster of seven small seizures within five minutes. The mother took a video of one of the episodes, which was noted to show A yawn and then stare to the side for under a minute. Nursing staff did not feel that the video showed any seizure activity. A’s observations were stable.

On 25 July 2020 the mother called an ambulance, stating that A had cluster seizures and then another seizure lasting seven minutes. The mother gave A buccal midazolam and said that the seizure stopped for around 40 seconds before A had a further three cluster seizures. Upon arrival the ambulance crew noted that A had a GCS of 15/15, meaning she was fully awake and responsive. A was admitted to hospital.

On 29 July 2020 the mother informed a staff nurse of A having a staring episode which she stated had occurred on the ward. The mother did not alert night staff at the time of the incident, and the episode was not witnessed by anyone other than the mother.

On 10 August 2020 the mother called an ambulance, advising that A appeared to have climbed out of her crib and landed on the floor, and the mother had found her awake but not responsive. Ambulance crew found A lying supine on the sofa, appearing to be asleep. After gentle stimulus A woke up but seemed slightly groggy. The mother was reluctant to go to hospital but eventually agreed. A was taken to A&E and upon examination was observed to be completely well apart from some dental issues.

On 18 August 2020 the mother called an ambulance, reporting that A had a 7.5 minute absent seizure with twitching arms and legs. The mother gave A buccal midazolam. A was found by the ambulance crew to have limited verbal communication but appearing calm and not indicating any pain or discomfort. She was conveyed to A&E. Her observations were stable.

On 1 October 2020 A was admitted to Great Ormond Street Hospital due to her recurrent episodes. A had a prolonged EEG recording which was within normal elements and did not capture any seizure events. Doctors explained to the mother that as they had been unable to capture any seizures on an EEG, they would need to trial taking A off her medication. The mother was noted to be anxious about this.

On 17 October 2020 while A was an inpatient in hospital the mother reported that she believed A was having a seizure when asleep as her left arm went up and down twice. Upon observation, A was noted by nursing staff to be settled in a deep sleep and not displaying any seizure activity.

On 13 July 2021 the mother called an ambulance to report that A had experienced apparent chest pain and collapsed, lost consciousness, was unresponsive, and had a blue tinge around her mouth. On arrival at A&E, A was active and chatty with normal observations. She was noted to have pinpoint red papules around her mouth which were attributed to dermatitis.

Following B’s birth in October 2021, no further events in respect of A were reported by the mother.

On 13 February 2022 the mother called an ambulance, reporting that she had noticed B was not moving or breathing, that his lips had turned blue, and that he was floppy. The mother stated that she had done CPR including two breaths and chest compressions. On arrival of the paramedics B was awake and alert and had an increased respiratory rate and heart rate. One of the paramedics made a referral to children’s services due to concern about B’s presentation and the mother’s mental health.

On 1 April 2022 B was admitted to A&E after his mother reported that B had been asleep on her lap when he suddenly stopped breathing and turned blue around the face. She reportedly gave him CPR and she says he came round after four minutes. When paramedics arrived, they reported that B was alert but pale and slightly sleepy.

While B was an inpatient on 2 April 2022 the mother called nursing staff and reported that his oxygen saturations fell to 88% when he was asleep and that he had gone purple around the lips for two minutes. This was not witnessed by the nursing staff. The mother further said that B had an episode of high-pitched crying immediately followed by sudden jerking of arms and legs. On arrival of a nurse, B was observed to be sweaty and mottled with low oxygen saturations of 85%. No seizure activity was observed, and an EEG showed no evidence of seizure activity. B recovered and had no further episodes that day.

On 9 April 2022 B was again presented to A&E after his mother reported that he had two seizure like episodes lasting three minutes and two minutes at home. The mother recorded a video on her phone on this occasion. At hospital B was noted to be alert and well-perfused.

Whilst at hospital on 12 April 2022 a cardiac arrest call went out while B was in the room with his mother. The mother reported that he had had an episode. B was found by staff to be unresponsive with oxygen saturations of 80%, though nurses did not witness any seizure activity. Video telemetry was undertaken for two days, and no recorded seizures were documented.

On 15 April 2022 B was reported by his mother to have had a blue episode which lasted a few seconds. Staff found B blue around the lips and gave him oxygen. Further similar episodes were reported by the mother on 16 April 2022. B had been found floppy, mottled and drowsy with ineffective breathing by the resuscitation team. He was therefore admitted to the paediatric critical care unit. Seizure activity was not captured on video telemetry.

On 20 April 2022 B required advanced paediatric life support following a crash call. His mother reported that he had had twitching and stiffening of the right arm prior to a

On 23 April 2022 there was a further incident involving B which was captured on camera. The footage shows the mother going to the bathroom and returning to pick up B. The mother removed the oxygen saturation cable from B’s foot and subsequently carried B around the room. The mother switched off the observation monitor and continued to walk around the room with B. She then took B into the bathroom and closed the door. They were in the bathroom for approximately three and a half minutes. When the mother emerged with B he was floppy and blue. The mother placed B back in the cot, reattached the oxygen saturation probe on his foot and switched on the observation monitor. She waited for the light to turn on and then pressed the emergency buzzer, before loosening the blanket in which B was swaddled.

A team of medics reviewed this footage on 25 April 2022 and concerns were raised as to fabricated or induced illness. The police were called, and the mother was arrested shortly afterwards. She was subsequently released with bail conditions not to see her children.

A was placed into her paternal grandparent’s care upon the mother being arrested. The father later signed a section 20 agreement for B to be discharged from the hospital to his paternal grandparents’ address. Both children have been living with their grandparents since this time. Neither A nor B have been observed to have any episodes since being in the care of their grandparents.

The mother had a psychiatric assessment in 2019, at which time she was noted to be going through bereavement in relation to her father and a possible depressive episode. In November 2021, she received support from Newham Hospital mental health team, which had offered bereavement support and a diagnosis of post-traumatic stress disorder relating to C’s death.

A cognitive assessment of the mother was undertaken by Dr Dowsett in September 2022. A full-scale IQ test was not completed as there was significant variation in the index scores. The mother was determined to have borderline verbal comprehension, low average perceptual organisation and extremely low working memory and processing speed. The mother scored above the threshold on screening measures for dyslexia, ADHD and autism spectrum disorder. It was recorded that the extent of the mother’s reported difficulties indicated that she was likely to have significant difficulties with independent living. Dr Dowsett recommended a specialist assessment for autism spectrum disorder.

The mother was diagnosed with autism at level 1 severity in January 2023. Her diagnostic assessment emphasised that her full psychological profile needed to be understood in the context of areas of low cognitive function, specific learning difficulty and impact of traumatic events and adverse childhood experiences. The assessment concluded that the mother will need support because of:

Special measures, including the use of an intermediary for the mother, have been in place throughout this hearing.

I have taken the mother’s vulnerabilities into account when assessing her evidence. Expert Evidence

I gave permission for five expert medical witnesses to be instructed to prepare reports for the purposes of this fact finding hearing. They were:

Further, in relation to assessments of the mother’s functioning, I approved the instruction of two experts. They were Dr Dowsett, a consultant clinical psychologist, whose report was dated 2 September 2022, and Dr Harris, a chartered psychologist with a specialism in autism, whose report was dated to 10 January 2023.

In his report Dr Dowsett offered the following conclusions and recommendations: “On a general IQ test she scored a rather inconsistent profile with

Dr Harris diagnosed the mother with autism at the level one severity. He made recommendations, in particular, about the type and level of support the mother would require to enable her to engage with and participate in this hearing and the proceedings more generally. His principal conclusions and recommendations were:

In consequence of Dr Dowsett’s and Dr Harris’ reports I appointed an intermediary to assist the mother during case management hearings, in consultations with her leading counsel and/or junior counsel and her solicitors.

The intermediary sat next to the mother throughout this fact finding hearing, including, importantly, when the mother gave her evidence. I am told and accept that as well as assisting the mother during the court hearing, the intermediary spent time with the mother at the conclusion of the court day and/or before the start of the court day to ensure the mother was following the proceedings and the evidence to the very best of her ability.

Dr Palm, the consultant paediatric pathologist was instructed to consider the circumstances of C’s death in the light of events relating to A and B. The principal conclusions set out in Dr Palm’s report are as follows:

Professor Bu’Lock, a consultant paediatric cardiologist, broadly concluded in her report that neither A nor B had any cardiac defect or condition which on the balance of probabilities explained or caused their respective ‘seizure’ episodes.

In her oral evidence Professor Bu’Lock made the following principle points:

In her report Dr Irving concluded as follows:

Neither A nor B has a definitive diagnosis of epilepsy.

Dr Irving told me in her oral evidence that genetic testing was used to support a diagnosis. She confirmed her report’s conclusion that no further genetic testing was required. She said that if it was excluded that neither A nor B had a diagnosis of epilepsy or apnoea (which neither have) then there was no basis which would warrant or necessitate any further genetic testing of either of them. She concluded her oral evidence by confirming that genetic defects do not resolve spontaneously without medical intervention.

During the course of Dr Irving’s evidence it became apparent that she had not had the opportunity to read and consider Professor Bu’Lock’s report. She was invited to do so and to provide an addendum report. In her addendum she concluded that:

In her report of 28 April 2023 Dr Ward concluded as follows in respect of A:

In respect of B, Dr Ward expressed the following opinions:

In her oral evidence Dr Ward confirmed that the above remained her opinions. She explained that the consequences for a child subjected to fabricated or induced illness were having to undergo multiple unnecessary, and sometimes painful, medical investigations and repeated admissions to hospital. She also described the adverse psychological impact of these events, including the impact on a child’s psychological development. In respect of induced illness as a result of attempts to suffocate or obstruct a young child’s airway, she explained that these actions are extremely harmful which could result in the child’s death or could have life limiting consequences for the child.

She told that me that the evidence for the inducement of illness was stronger in the case of B than it was in the case of A. The events of 9 April and 23 April when B had to be resuscitated were life threatening and could have resulted in his death. The response of the mother after B’s collapse on 23 April, which was captured on the hospital video camera, was completely inappropriate. B was in extremis and needed immediate medical attention.

In her cross-examination of Dr Ward, Ms Grief KC explored a number of possible medical causes for the ‘seizure’ events suffered by A and B (including mould in the then family accommodation, asthma, epilepsy, food allergy or reflux). Dr Ward was clear that epilepsy and asthma did not spontaneously resolve without medical intervention.

Dr Ward advised that the episode suffered by A on 17 October 2020 was innocuous and not suspicious. Nonetheless the actions of the mother led to A undergoing unnecessary medical treatment and investigations. In respect of the episode on 20 January 2021 the history given by the mother did not fit with how A presented to the medical staff. In every other presentation of A or B to paramedics and/or medical staff at various hospitals there was no medical explanation for the presentation of or symptoms exhibited by either A or B. The only possible exceptions in respect of A having a reduced level of consciousness and/or being floppy, were when the mother inappropriately and wrongly administered buccal midazolam to A, as set out on in paragraph 4(x) above.

Dr Ward agreed with the proposition put forward by Mr Tughan KC, leading counsel for the children’s guardian, that as the episodes relating to A tailed off, so the episodes relating to B commenced and quickly escalated in frequency.

In his report of 7 March 2023 Dr Appleton reached the following conclusions:

Dr Appleton confirmed his opinion that neither A nor B, on the balance of probabilities, had experienced any unprovoked epileptic seizures. In respect of A, he set out in his report six clear and comprehensive reasons why he had reached this conclusion and in respect of B he set out five clear and comprehensive reasons.

In the course of his cross-examination by Ms Grief KC, Dr Appleton said that he was confident that A did not have self limiting infantile epilepsy and concluded by saying that it was highly unlikely that she suffered from this condition.

Ms Cook KC was cross-examining Dr Appleton about the video of 23 April 2022 when the mother was seen taking B to the toilet with her. He referred to B being seen in his cot shortly before this when the mother went to the toilet without B. B is seen following his mother’s movements as she left the side of the cot to walk to the ensuite bathroom. Dr Appleton characterised B’s actions and presentation as ‘frozen watchfulness’, namely that the baby was anxious and scared that something was going to happen to him. This opinion was not set out in his report.

I asked what was it about B’s presentation that had led him to this conclusion. He replied that B’s eyes were wide open and fixed on following his mother’s movements but, most importantly, B demonstrated no other facial expression and made no sounds at all.

Unsurprisingly, Ms Grief KC sought to challenge the doctor on this aspect of his evidence and I permitted her to cross-examine him again on this issue. She asked what qualifications he had to give this opinion to the court. Dr Appleton conceded that he did not have a psychiatric qualification but had studied psychiatry during the course of his training. Further he added that this opinion was based on his clinical experience of treating babies and children over a very long period of time which included treating children who had been or were suspected of having been abused by their parents or carers.

I should observe that Dr Appleton had not been provided with the video of 23 April 2022 at the time when he was preparing his report and only viewed it subsequently.

In my judgment, Dr Appleton is a hugely experienced consultant paediatric neurologist and he was a very impressive expert witness. He gave his evidence in clear, measured but unambiguous terms. I am in no doubt that he has the appropriate clinical experience and expertise to give this opinion. I accept it.

The question of what weight I should give to his opinion of frozen watchfulness or what account I take of it in my overall analysis of the evidence in this case is a different issue. In light of the totality of the evidence in this case, but without doubting for one moment Dr Appleton’s description of frozen watchfulness, I propose to put the doctor’s evidence to one side and not take it into account in my overall analysis. Furthermore, I am fortified in coming to this view because the mother was not cross-examined about it (for the avoidance of doubt, I make this observation as a simple statement of fact and it should not read as to imply that I am making any criticism of counsel: I am not).

In total five treating clinicians for A and B were called to give evidence and 3 medical staff were called. None of them had witnessed the onset of a ‘seizure’ event in either A or B.

I note the significant evidence of four of these witnesses:

The mother presented herself as an anxious mother who had suffered the tragedy of the loss of her first child, C, during an epileptic seizure. She accepted that from time to time she may have misinterpreted a period of absence in A or shaking/jerks by A or B as an epileptic seizure. Save for this the mother maintained a steadfast denial of fabricating or inducing symptoms in either A or B.

The mother emphatically denied that she had ever obstructed A’s or B’s airways whether with her hand, a piece of cloth, a pillow or by any other means.

She insisted she had only ever administered buccal midazolam to A in accordance with the instructions given to her by medical staff, namely only to do so after the child had been suffering a seizure of more than five minutes.

The mother had videoed A and B on a number of occasions each when they were suffering ‘seizures’ or when they were in a state of collapse and unconsciousness. Of particular note is that none of these videos captured the onset of the event in respect of either child.

The mother’s overall behaviour towards A and B are exemplified by two video recordings both of which feature B. They are the video recording of B on 9 April 2022 and the hospital video recording of the room in which B was being cared for on 23 April 2022.

The recording of B on 9 April, which lasts for some 3 minutes, shows B in an apparently lifeless condition and during which agonal (end of life) gasps are heard from him. The mother is not seen to take any steps to assist the recovery of her child who is obviously in extremis. Only after stopping the recording does the mother telephone 999 and attempt to resuscitate B.

When Ms Cook KC put this video to the mother she responded that she had been told to video the episodes. When asked if B had needed her to help him, she replied no, that she needed to video him. She did not accept that she had done anything wrong nor did she accept that B had very nearly died as a result of this episode. When asked if she had caused the collapse of B, she said that she had not done anything.

The mother said that she did not know the video in B’s hospital room was still activated on 23 April 2022. The second recording received during this hearing captured events earlier in the morning of 23 April than the first recording when the mother eventually took B into the bathroom with her. This second recording showed the mother feeding B his bottle whilst B was laying in his cot on his back with the mother holding the bottle on the side of his cot. On two occasions, each lasting several minutes, the mother is seen propping up B’s bottle on some blankets and/or bedding and then going into the bathroom alone, closing the door behind her.

The first video showed the mother waking up. B is awake and quiet. The mother went to the bathroom twice leaving B in his cot. After the second time she went over to B’s cot, removed the leads on him, switched off the monitoring machine and carried B in her arms around the room for a short while. B is awake, alert and seemingly

B was now in a state of collapse and, as the mother agreed with me, in an apparently lifeless state. Did the mother rush to and pull the emergency alarm to seek immediate emergency help for her baby which it was entirely obvious that he desperately needed? No. Without any seeming panic or speed, the mother slowly placed B in his cot, slowly replaced the leads on B and switched on the monitoring machine. Only then did she pull the emergency alarm which brought nurses and doctors rushing to his room and resuscitation procedures were commenced. The mother was spoken to by Dr X.

Dr X explained that she found the mother was calm in her mood and effect. The mother was not very forthcoming in her account of B’s collapse and said very little. Dr X has past experience of parents whose child has suddenly collapsed to be extremely panicked. In contrast the mother’s presentation she said was very unusual.

At a meeting of the treating clinicians on 25 April 2022, they carefully watched the video of two days previously. At the conclusion of this meeting child protection procedures were instituted and the police were notified. The mother’s care of B ceased. The mother was arrested by the police.

Since that date B has not suffered any episodes of sudden collapse or any collapse at all.

When cross-examined by Mr Tughan KC, on behalf of the Children’s Guardian, about why she had taken off B’s leads, she said they were a trip hazard. When asked why she had taken B into the bathroom on this occasion, she said she did not want to leave him alone in case he had a seizure. She said she was glad she had taken B into the bathroom because if she had not he would have had a seizure and no one would have known. When asked why she had put B back in his cot and re-attached the leads before pulling the emergency alarm, the mother said this was what she had been told to do by the nursing staff. When asked if she had been “setting the scene” unaware, as she was, that the camera in the room was activated, she denied having done so.

The mother said she had not done anything to B. She denied suffocating him and she denied that she had been trying to kill B.

Throughout her evidence the mother maintained that the expert witnesses and the treating clinicians were wrong. She insisted that A and B must have suffered episodes of sudden collapse as a result of a medical condition as yet unknown.

It was plain and clear from the father’s evidence that he:

The father accepted that the expert witnesses were agreed, as were the treating clinicians who had given evidence, that neither child had or had had a medical condition which would explain the ‘seizure’ episodes that both of the children suffered. He doggedly maintained the view that some, as yet, unknown medical condition accounted for their respective collapses. In light of the fact that these episodes (i) resolved spontaneously and without medical intervention for A and B and (ii) ceased immediately upon the mother being removed from the care of B, the father had to maintain that the unknown medical condition had spontaneously resolved at the same time.

He was asked to confirm that he had viewed the video taken by the mother of B on 9 April 2022. This video lasted some three minutes. It showed B to be collapsed and in extremis. Professor Bu’Lock had described B’s respiration in this video as agonal gasps (i.e. close to death). During the video the mother simply filmed B and had made no attempt to assist or resuscitate her baby. When the father was asked what he thought of what he had seen on this video, he first said that he had not thought anything of it and then said the mother was doing what she had been told by the medical professionals.

In respect of the sudden collapse of B on 23 April 2022 when he was alone in the bathroom with the mother, the father said that this event and the mother’s response to it did not ring alarm bells for him. He then added that the mother had done what she had, purportedly, been told to do by medical staff. He would not accept that the mother, when she emerged with an apparently lifeless B in her arms, should have immediately pulled the emergency alarm.

He accepted that in respect of A’s and B’s admissions to hospital he had very largely been absent. He was involved on three occasions with A’s hospitalisation in late 2020 and had occasionally dropped off items for the mother or stayed with A or B whilst the mother briefly left the ward and/or the children’s rooms.

The father asserted that he had not failed to protect either A or B because he had allowed both of them to be taken to hospital, from time to time, for treatment and investigations.

I am extremely grateful to leading and junior counsel for their comprehensive and helpful written closing submissions. I have carefully read them and I have taken account of all of them.

I make the following preliminary observations.

The tragic death of C had a profound adverse impact on the mother and the father. The mother became highly anxious in her care of A and then B. There was a serious decline in the father’s mental health. Whilst recognising and accepting these understandable reactions to C’s death they do not fully explain nor justify the later actions or behaviours of the parents that I set out below.

The following important propositions are advanced on behalf of the local authority:

The chronology of the events concerning A and B are highly significant. In their closing submissions on behalf of the local authority, Ms Cook KC and Ms Channa summarised the key elements of the chronology as follows:

Buccal Midazolam is a drug which is used to treat a number of conditions, including seizures. In respect of seizures it is generally prescribed when a child has suffered a prolonged seizure in excess of 5 minutes. Dr Appleton explained an appropriate dose administered to a child might lower the child’s consciousness, cause the child to become floppy and/or reduce the child’s respiratory rate. It would be extremely rare for it to cause a child to have an acute respiratory arrest and for the child to stop breathing. For reasons I set out below:

The medical experts are agreed:

The evidence of the various clinicians who treated A and/or B are at one with the medical experts.

In oral evidence and when challenged in cross examination by counsel, none of the expert witnesses and none of the treating clinicians who were called to give evidence deviated from their previously expressed opinions and/or conclusions.

I have no hesitation in accepting the opinions and/or conclusions of the expert witnesses and of the treating clinicians. The notion that either A or B both had an unknown medical condition which then resolved spontaneously without any medical intervention is patently absurd. This is an entirely fanciful and false basis for the episodes suffered by both children which is only entertained and repeated by the mother and the father.

I have no hesitation in accepting the evidence given by the various members of the nursing staff who were involved with the care and treatment of A and B.

When considering the evidence of the mother I have well in mind the opinions and recommendations of Dr Dowsett and Dr Harris in relation to the mother’s vulnerabilities and difficulties; most especially her diagnosis of autism.

Nevertheless, I found the mother to be a wholly unsatisfactory witness. The majority of her answers were limited to “I don’t know” or “I didn’t do anything”. From time to time during her evidence she mentioned that she had short-term memory problems, only then just minutes later to give a detailed account of an event, such as her account of what she did when she took B into the bathroom on 23 April 2022.

At various times she gave answers which were plainly untruthful and/or were inconsistent with the account she had previously given to medical professionals, social workers and/or to the police. I take account of the following matters by way of examples only:

I am satisfied that the mother did not have an innocent explanation for giving any of her untruthful answers and/or inconsistent accounts.

The mother’s actions and behaviours in respect of the episodes suffered by A are exemplified by the following two examples:

The mother’s actions and behaviours in respect of the episodes suffered by B are exemplified by the events of 9 April and 23 April 2023 which I have set out in detail in paragraphs 90 to 100 above.

Prior to the father giving evidence, I reminded myself of the caution advised by the Court of Appeal of making findings of failure to protect in respect of a non-abusive parent or carer. In the case of Re L-W (Children) [2019] EWCA Civ 159. King LJ said at paragraphs 62 to 64 as follows:

In the course of the written submissions on behalf of the father, Mr Twomey KC and Mr Adler, drew my attention to a subsequent decision of the Court of Appeal in Re G- L-T (Children) [2019] EWCA Civ 717 where at paragraphs 72 to 74 King LJ said:

I respectfully agree and I have adopted this approach when considering the findings of failure to protect sought against the father.

The father’s evidence was very deeply concerning. He told me he knew the medical experts had excluded any medical cause or explanation for the episodes and/or collapses suffered by A or B. Yet, like the mother, he clung to the notion that their episodes and collapses were as a result of a cause unknown to medical science in the face of compelling, indeed overwhelming, expert evidence to the contrary.

On his evidence, the father did not at any time question whether the mother had any role in the events relating to A or B. He did not take any or any meaningful steps to better understand what was happening to his children. I well understand that some parents struggle to accept that their partner whom they love, has harmed one of their children. There comes a time, however, when a parent must or, at least, should put the interests of their children first. This father did not.

As the cross-examination of the father progressed the concerns about his evidence increased to a point where he said in terms that:

On the balance of probabilities, indeed I am sure, that the father is wholly enmeshed with the mother and is unable to put the needs of his children ahead of his relationship with and love for the mother.

Accordingly, I have no hesitation in concluding that the father failed to protect either A or B.

I accept that in many respects the parents afforded good and positive care to A and B.

However the medical evidence, from the experts and from the treating clinicians is compelling, indeed overwhelming that neither A nor B had any medical condition which would cause them to suddenly collapse or to suffer seizures.

The notion that both children suffered from an unknown medical cause which spontaneously resolved without any medical intervention is simply not credible. In April 2022 B suffered 12 episodes of collapse. The moment his mother no longer had care of him they ceased without any medical intervention. The only possible conclusion on the totality of the evidence is that the mother induced all of these events in A and B.

The father suffered with poor mental health exacerbated by the death of C. This does not explain nor justify his almost total absence during A’s and B’s prolonged periods in hospital. He never questioned the mother about these events suffered by both of his children. He rarely, if ever, spoke with the treating clinicians to gain an understanding of his children’s respective medical conditions. In short he took no step to protect his children.

On the balance of probabilities, indeed I am sure, that the local authority have proved each and every finding of fact sought against the mother and father.

Accordingly I make the findings of fact as set out in paragraph 4 above. Conclusion

I am in no doubt that the mother fabricated symptoms in both A and B and, on occasions, induced symptoms in A and B by obstructing their airways. The events were particularly marked in the case of B who between 1 April and 23 April 2022 on no less than 12 occasions, suffered a collapse and on 6 of those occasions he had to be medically resuscitated. These events very nearly led to his death.

Similarly, I am in no doubt that the father failed to protect both A and B for the reasons I have set out above.

Against the background of the findings of fact I have made, this matter will be listed for a welfare hearing to determine with whom A and B should live and, if not with either the mother and/or the father, the nature, duration and frequency with which they should spend time with the children.