Birmingham City Council v LB & Ors (Rev 2)

MRS. JUSTICE KING DBE: This judgment arises out of a hearing relating to the death of Kieron Barley (KB), who was born on 22^nd August 2009 and died on 23^rd June 2011, aged just 22 months old. KB died from the sequelae of a non-accidental head injury inflicted on 19^th June 2011. Kieron Barley’s mother is Louise Barley (LB, or ‘the mother’).

KB’s father has played no part in either KB’s life or in these proceedings. Craig Lewis (CL, or ‘the father’) regarded himself as KB’s father and took on that role and responsibility.

The present hearing has been listed for a so-called finding of fact hearing. The medical evidence filed in the proceedings is unequivocal and overwhelming to the effect that KB was subjected to two serious assaults, the second of which resulted in his death. Neither parent was willing or able, prior to the start of the hearing to accept that medical evidence, despite the fact that each as I find, knew the conclusions to be true. The court has, therefore, heard extensive medical evidence from a battery of eminent experts, some of whom were subjected to challenging – sometimes verging on aggressive – cross-examination. However, when each parent subsequently went into the witness box, they accept the reality of the position, and at the conclusion of the evidence and before submissions, both the father and the mother, through their respective leading counsel, Mr Weston QC and Mr Vater QC made the inevitable concession that they now accepted the medical evidence and therefore that KB had died from an non-accidental head injury.

Whilst it will remain necessary to set out the medical evidence in a little detail, (particularly as KB had vulnerabilities which go directly to the force which would have been necessary to cause certain of his injuries), the task for the court is now to identify, if it is so able, which of the mother and the father caused KB’s fatal injuries, and to examine the state of knowledge and involvement of the other parent.

Rather than leave each of the two families, all of whom are present in court, to hear this judgment and to second guess my findings during what is inevitably going to be a quite lengthy judgment, I indicate now that I find on the balance of probabilities that the father is the perpetrator of both sets of injuries and that the mother is guilty of failing to protect KB to a very significant and serious degree.

Finally, in introduction, it should be made clear that the mother and father loved KB deeply. This was not a little boy living in a frightening twilight world of routine neglect and abuse. There is no evidence that he was subjected to more than the two assaults detailed in this judgment. Having said that, for the period of time between what I find to be the first set of injuries on 28^th May 2011 and the fatal injuries on 19^th June 2011, KB was very ill, constantly sick and constantly in pain. Further, having caused the very serious injuries on the first occasion, the father, notwithstanding that he must have known seen on a daily basis the consequences of that loss of temper, lost control a second time and killed the child he loved.

The relevant law to be applied is well established. In summary:

On 19^th June 2011 KB was admitted to hospital, a CT scan was carried out that day and an MRI scan on 22^nd June 2011. Those scans were reported by Dr Shruti Moholkar, consultant paediatric radiologist at the Birmingham Children’s Hospital. The CT scan showed significant abnormalities and a decision was made to have an MRI scan. The MRI on 22^nd June showed marked brain swelling. There were bilateral subdural haemorrhages with further evidence of blood in the ventricles, as had been seen on the CT scan. In KB’s spine, fractures to the T8 and T9 vertebral body were seen. There was blood in the thoracic spinal canal and around the spinal cord. Dr Moholkar was of the opinion that KB has suffered a severe injury to his brain due to lack of oxygen and that, in the absence of trauma or a clotting disorder, the presence of the recent blood and bilateral subdural collections raised suspicions of non-accidental injury.

A decision was made to withdraw treatment and KB died on 23^rd June 2011, Dr Alexander Kollar, forensic pathologist, supported by Dr Ostojic, a paediatric pathologist, carried out a post-mortem examination. As is usual in cases of this type, Dr Kollar obtained specialist pathological opinion in respect of KB’s bones, brain and eyes and in respect of the interpretation of the CT and MRI scans. Expert opinion was sought by him from:

Dr McCarthy, the ophthalmic pathologist, was asked to report on KB’s eyes. He found evidence of extensive recent haemorrhage into the optic nerves and into the retinas of both eyes. There was evidence of previous haemorrhage in the same area and also a large retinal scar in the right eye. Dr McCarthy was of the opinion that the recent haemorrhages were consistent with having occurred at or around the time KB collapsed. There may be, he said, some hemosiderin, (iron-laden macrophages which are indicative of the healing process), which had accumulated during the few days that KB survived, but the extent of them that he observed was such that he was confident that most of it pre-dated 19^th June and, therefore, related to a second event prior to 19^th June. Dr McCarthy regards it as likely that those iron macrophages date back to the events of 28^th May 2011. He thought that the retinal scar was likely to have been caused at the same time. Dr McCarthy, therefore, concluded that there were two events: one likely to have been on 28^th May and one on 19^th June. The damage seen in KB’s eyes is not explicable by any natural disease process; rather they are “consistent with either head impact trauma, head movement trauma or a combination of both”.

Dr Daniel du Plessis consultant paediatric neuropathologist examined the brain, its covering and the spinal cord. Dr du Plessis went into extensive detail regarding the presentation and pathological findings before turning to consider the gross neuropathology and the histological features of the neuropathology. He set out his conclusions:

Dr du Plessis, therefore, concluded:

“The clinical and pathological findings so far in this case, both positive and negative, support traumatic craniocervical (head and spine) injury as the cause of death. The character of the variety of positive and negative findings furthermore supports non-accidental rather than accidental injury as the underlying mechanism of injury, particularly in the absence of a plausible account of accidental injury.”

Dr McCarthy also sent the scans to be reviewed by Dr Stoodley, who prepared a very extensive report. His findings can be summarised as follows. KB was admitted with a severe(?) encephalitic illness and, following his admission, neuroimaging showed evidence of acute subdural haemorrhage at several different and separate sites, including the thoracolumbar spine. Dr. Stoodley identified probable acute traumatic effusions, acute subarachnoid haemorrhage and intraventricular haemorrhage. There was also hypoxic-ischemic brain injury. Dr Stoodley, too, says that there is no naturally occurring medical condition which could reasonably account for KB’s presentation or the appearances of the scan. He concluded that “the appearances are strongly associated with head trauma” and he drew attention to the MRI of 17^th May 2011 which showed no evidence of such abnormality. In conclusion, Dr Stoodley referred to non-accidental head injury as the most likely cause of the imaging and that shaking was the likely cause of the injuries.

Dr Kollar sent KB’s spinal column to Professor Freemont, an osteoarticular pathologist based at the School of Biomedicine at the University of Manchester. The histological examination of the spine showed the vertebrae as osteopenic; that is to say that there was less bone tissue than might have been expected for a child of 22 months. The amount of both cortical (that is to say the outer shell) and trabecular (that is the inner meshwork) in each vertebra was less than might have been expected for a child of this age. The T8 was a collapsed vertebra capable of being noted macroscopically – that is to say by the naked eye. The healing response that Professor Freemont saw allowed the fracturing event to be dated relative to the time of KB’s death. The indication is of an event of between three and five weeks prior to death – which fits 28^th May. The T9 damage was a less significant injury. The vertebra was partially collapsed and, although it had similar changes to those seen on T8, it did not have the end plate or cortical bone changes which were seen in the other vertebra.

Professor Freemont concluded that KB was rendered more susceptible to fracturing by virtue of this osteopenia. The reduction in the amount of bone within the vertebrae related, he believed, to KB’s relative lack of mobility. Professor Freemont said that, whilst there is reduced amount of bone, nevertheless the bones were still relatively strong and there would have had to have been a significant compressive force to have caused the fractures. The fact that the fractures are of one age indicates that the compressive force required was greater than that which KB’s spine might experience in daily life – for example, falling backwards on to the bottom when learning to walk. Fractures of this type occur, he said, more commonly from force or compression from below, such as might occur if a child was forced down hard on to a hard surface and thereafter impacting either on to his bottom or on to rigid outstretched legs. Professor Freemont concluded:

“This child has sustained compressive fractures of the two thoracic vertebrae by forceful compression of the spine, most probably by being dropped from a significant height or being slammed forcefully on to his bottom or locked outstretched legs.”

In addition to the experts who have reported in the context of ascertaining the cause of death, three further experts have been asked to report within these care proceedings. They are: Mr Peter Richards, consultant paediatric surgeon at the Oxford Radcliffe, who was instructed on behalf of the parents; Professor John Wyatt, a neonatologist, who was instructed jointly by all the parties; and Dr Patrick Cartlidge, consultant paediatrician instructed on behalf of the parents.

Professor Wyatt is an expert into the causation and consequences of foetal perinatal and neonatal injury and the medical care of new-born infants. He excluded natural process or events at the time of KB’s birth as having any causal connection to KB’s death.

Mr Richards considered the likely cause of KB’s acute collapse and death to be a recent episode of head injury. In the absence of a history of significant head injury, he concluded that it was non-accidental and incurred within the acute collapse. The pattern, he said, would fit with momentary loss of control.

Dr Cartlidge prepared an overview. He was of the opinion that KB had developmental delay and was only able to sit up and roll. In his opinion, a child with such limited mobility could not have self-sustained such severe injuries. Similarly, there had been no accidental explanation and no suggestion of natural disease process, including vascular abnormality of the brain, clotting or metabolic disorders.

In relation to the acute injury (that is to say the injury inflicted on 19^th June), Dr Cartlidge concluded that the cause was non-accidental trauma, most likely caused by shaking with or without rapid impact on to a semi-yielding surface. Dr. Cartlidge ruled out an impact onto an unyielding surface in the absence of scalp swelling or a skull fracture. So far as the old injuries are concerned, Dr Cartlidge was of the view that the symptoms – that is to say intermittent vomiting, pallor, being unsettled, eye-rolling and floppiness – were consistent with the subdural bleeding around 28^th May. He did not think that impact on the sofa as he fell, or the interrupted fall to the floor from standing described by the father, would have generated anything like sufficient force to cause the subdural bleeding. Again Dr Cartlidge believes that that old injury was most likely caused non-accidentally.

In relation to the fractured vertebrae, Dr Cartlidge believes that the screaming recorded by KB at the end of May on the 999 call, and which he is reported to have continued constantly in early June, is consistent with the vertebrae having been recently fractured and causing considerable pain. Dr Cartlidge concluded that, whereas the force required to cause the fractures would have been less than is usual as a consequence of the osteopenia, nevertheless the force required would have been greater than that that is used in normal or rough handling. Dr Cartlidge is of the opinion that the fractures were caused non-accidentally by KB being slammed on to his bottom and that the screaming in late May and early June were consistent with the fractures being caused immediately prior to his evident distress being noted. Similarly, he believes that the brief impairment of consciousness seen on 28^th May is consistent with subdural and retinal bleeding having been sustained immediately before the onset of the symptoms.

It follows, therefore, that the medical evidence, now accepted by the parents, can be summarised be put as follows:

The mother has had an extraordinarily difficult start to life, and whatever findings I may feel driven to make in respect of her behaviour, that does not mean that the court does not feel considerable compassion for her and for her situation.

The mother was brought up by her mother, the maternal grandmother, SB. Living in the household were also her grandparents, FB and JB, and her brother, SB, who suffers from cerebral palsy.

In September 2004, when she was still only 16, the mother had a termination of pregnancy. The father was a man in his thirties called WM. One of the strangest features of the case is that the day after KB’s collapse, when giving a history to the child protection investigation doctor Dr Tyler, the mother said that she had given birth to a stillborn girl. She had previously told the father and his family the same, even naming the baby as “A” which had upset her, she said, when she discovered that the father had a cousin of the same name.

In evidence, the mother asked why it was relevant and tried to resist answering questions about this “stillbirth”. However, when required to, she did answer the questions and said that the birth must have happened when she was nearly at term. She told the court that the baby had been induced in September 2004 when it was discovered that the baby was dead. All this is a fabrication. The mother has never had a stillbirth; rather, in September 2004, she had a termination at eight weeks. When this was put to her, she said that she still believes that she had a stillbirth and denies lying about it. I do not accept that. The only time in her evidence, no matter how painful, that she actually tried to avoid giving answers was in relation to the so-called stillbirth. I am satisfied that the reality is that she does know that she had a termination and that it was too late to pull back from what had become an accepted part of her history. Given how damaged the mother is it would however be for a psychiatrist to interpret this behaviour on her part. It would be grossly oversimplifying the issue to put it down to attention-seeking lying.

After KB was born, the health visitor, saw the mother in the home of the maternal grandmother. It was dirty, cluttered and full of smoke. To her credit, the mother tried to tackle her grandmother, telling her that smoking in the house was bad for KB and it had to stop. The health visitor undoubtedly had a good and supportive relationship with the mother. She told the court in evidence that the mother loved KB and she was doing well in the early days. The mother clearly wanted to do better when she moved into her own home. When the health visitor visited the mother when she got her own home at she encouraged her to sort things out, telling her that she did not want to let the house get like her mother’s. Without underestimating the challenges faced by the mother, with hardly any money and a flat that was more than merely shabby, the photographs nevertheless show a living environment that is chaotic and cluttered; there is an ashtray overflowing next to the bed and, on the night of the fatal collapse, the mother and father, the mother said (although I do not necessarily accept), had to eat one after another as there was only one clean plate in the house.

The health visitor tried her level best to support the mother, and on many levels the mother did respond to that support, but, despite the health visitor trying to advise her and get her to understand the risks to KB of a series of successive partners moving in with her and having access to KB, it was obvious in her oral evidence that the mother just did not appreciate and understand the problem and the risks.

From the time of KB’s birth in August until the mother met the father in January 2011, the mother had four partners. The mother seemed to have no concept of the risk implicit in her relationship with KB’s father. When they became clear, the mother ensured that there was no contact between KB and him. The mother was not, however, I am satisfied, telling the truth when she said that she had got an injunction nor when she amended her evidence to say that she had assumed that she had an injunction because she had told her solicitors to get one.

The mother’s relationship with another one of these partners, MM, who was in his fifties, was similarly unhealthy and risky. He was violent to her and she said that he had coerced her into putting his name on to KB’s birth certificate. I have no doubt that MM was indeed violent but I do not accept that that was the reason his name appears on the certificate. Far more likely, in my judgment, is that in her desperate search for security and stability, MM represented the latest in a long line of men whom she hoped would provide her with a long-term relationship and KB with a father figure. This assessment is borne out by the fact that, within weeks (if not days) of meeting the father, once again the mother was committed to him and had introduced KB to him as a father figure.

Even though it seems likely that her relationship with the father was a far healthier one than she had enjoyed hitherto, and despite the fact that the father and his family appear to have been committed to the mother and to KB, the mother’s insecurity and lack of self-esteem is painful to view through the prism of the text traffic. One such example is seen on 3^rd April 2011 and lays bare her lack of resilience and anxiety about the future:

“Feel like a burden … Your family, the way my main family are with me, one minute they’re nice and the next they’re full of hatred towards me. Dealing with the nightmares I have most nights, feel like I let KB down as it’s my fault, you know, he’s so slow. I’m living with guilt and hurt and it’s eating me inside.”

The picture could not be more different on the side of the paternal grandparents. They are hardworking, respectable people who have bought and paid for their own house and who have had their children at the heart of their lives and concern. The father is a highly-skilled tradesman – a qualified electrician – and, in his earlier relationship with a woman, he had settled down, bought a house. They had two children, with whom he has always had extensive contact.

The father is not, however, a man without his own demons. In around 2001, he started a relationship with a woman . They were together until about 2006, and during that time had two children. For a great deal of the time, the father told me that he was working away, which put an inevitable strain on their relationship. According to his former partner’s statement, despite earning a good wage, the bills were not paid, which caused tension and, indeed, after they separated, leaving the father in the shared home, the house was repossessed when he failed to pay the mortgage.

During the course of the relationship, the father accepts that there were two incidents of domestic violence involving pushing his former partner but not, as she alleges, kicking her on one occasion. When asked about it by the police, he said:

“Yes, I used to have a violent streak when I was drinking but I stopped the drinking and I stopped the violence.”

The interview went on:

Q. And what did that… how did that manifest itself? How violent were you?

A. I’d push her a couple of times. I don’t think I ever hit her. I think I pushed her to the sofa a couple of times and hit doors.

Q. And why was that?

A. Just her winding me up, getting me angry and things.

Q. All her fault?

A. Well, with the drink as well.

Q. Did you used to drink a lot?

A. Not so much then. It was more I drank more after she left, really.

Q. So at the time you were being violent, you weren’t drinking a lot?

A. Not a great deal.

Q. And you don’t drink a lot now?

A. No.

Q. And all this time when you didn’t drink a lot but you had a violent streak?

A.

Yes.”

When asked about it in oral evidence, he told me:

“I used to be violent when I was drinking. I’d drink a bottle of gin in a night and often on my own. On a Friday night on one occasion, I drank three litres of gin and twelve pints of Guinness when I was also doing cocaine as well. At that stage, there was no one around to be violent. It needed a trigger. I was more likely to react from the drink, as the coke mellows me out. I used to drink more then. The way it was, working away, I had to pay all the bills and then I came home and she’d be going on at me. I preferred to walk away and she wasn’t letting me; so I was violent when it wasn’t always the drink; it was the pressure of circumstances.”

The court has only the vaguest picture of the life of the mother and father together. That may be because they were only, in fact, de facto living together for about 17 days before KB was first injured. The father accepted in evidence that most nights he went out to “see the lads”. He would either go out from work and then go and see the mother, or go and see her and KB and then go out. The father said that he would have four pints if he was not driving and one if he was. I am satisfied that drink continued to play a significant role in the father’s life at about the time of KB’s death.

In addition to drink, the father had a cocaine habit which was causing him considerable difficulties. Initially, when interviewed by the police, he told the police that he did not take drugs. In a subsequent interview, he admitted to having been a regular user since about the time he had split up with his former partner. To the police, he denied drinking and using cocaine together, although in oral evidence he accepted that that had been a lie.

In May and June 2011, the father was under considerable pressure from his drug dealer. The father owed over £1,000 and the dealer and his “heavy” had been to his parents’ house and knocked on the door on a couple of occasions. They had also come to his work several times at breaks and had threatened violence. He believed them and told me that sometimes he felt frightened of the drug dealers. That is hardly surprising and was no doubt reinforced by the fact that he told me that on a previous occasion his car had been vandalised by a former dealer.

The father does not accept that he was (or is) an addict. He was using, he said, once or twice a week. He said it cost him about £100 a time. Perhaps the definition does not matter. What is significant is that the father felt unable to manage without cocaine. It was getting him into dangerous debt and preoccupied him until he had bought it and used it. I accept that he did not have a daily habit, or anything like. I accept also that the mother did not know of his habit.

By early May 2011, the father, perhaps feeling stable and happy in his new relationship, felt that he needed help and on 3^rd May 2011 went to see his GP who gave him the number of a drug helpline. The father did not make contact with the helpline.

The pressure from the dealer and his concern about his drug habit was clearly affecting the father’s day to day presentation. It was obvious to the mother that something was wrong and, given her own personal insecurities, it is not surprising that she was worried that there was a problem. For example, on 3^rd May in a text she said, “I have a funny feeling something isn’t right,” and on 18^th May, “Seems like something was up before you left.”

The father not only had his own secret problems but his relationship with the mother was very different from that with his previous partner. The mother was exceptionally needy and needed continual reassurance that the father would not leave her and that he loved her. The father said in evidence that there were times that he was frightened that she would harm herself. He had not, he said, been in a relationship before where he was worried that his partner would do something to herself.

The final ingredient to this pressure cooker was KB himself. Although, undoubtedly, sweet and loveable as he was, this period marked the build-up of the acknowledgment that there was something seriously amiss with KB developmentally and which culminated in the parents being told at a meeting on 6^th June 2011 that he had cerebral palsy. All these pressures were going on in the background and were added to by the fact that, following the father’s first assault on KB on 28^th May, had been significantly unwell and, therefore, inevitably unusually demanding and fretful during the rest of his short life.

Since the father and his former partner split up their children have stayed with the paternal grandparents virtually every other weekend. They have their own room at the house and it is to the credit of all concerned that they have managed to negotiate contact in the children’s interests in a way from which many carers of children of broken relationships could learn. The family is very close and see each other on a weekly basis.

One of the saddest parts of the case is that the mother would say (and the court would agree) that one of the best things that has happened in the sad, grim life of this young mother has been meeting the father’s family. The paternal grandmother welcomed her into her home, having her to stay with the father for contact weekends with the children and making her part of the family. I was told that the mother did not know how to play with or to stimulate KB when she first met the father in January 2011; and indeed for many months the father, not unreasonably, thought that his delay was a consequence of being left in his bouncy chair in front of the television watching Micky Mouse for hours at a time. The paternal grandmother taught the mother how to play. The grandmother showed me in court with actions how she taught the mother to play pat-a-cake and to relax and make silly noises to her baby. It was a touching display and it shows a real generosity of spirit on the part of the paternal family that they welcomed in this mother, despite the fact that, to them, she must have seemed to have come from another world.

Despite this the L family are, in many ways a closed book. The paternal grandmother said that the father does not talk about things. “We are close,” she said, “but we [in which she included herself] close things in.” She said that she did not know about the father’s cocaine problem in 2011, despite the fact that he was living at home. The father said that it was the paternal grandmother who told him to get help from the doctor in May 2011 and that he had thought that she had some idea when “the heavies” had come knocking on the door looking for him; he felt that she had guessed, but not articulated, that it was to do with drugs.

It seems to the court that the paternal grandmother did not like “unpleasantness” and did not want to know about it, and, in the weeks leading up to KB’s death, she may well have known (and probably did know) that something was wrong with the father, including that he had money worries – which in court she attributed to him having a period out of work. Tragically the father’s instincts, seen through numerous texts, was not to confide, and the paternal grandparents’ instinctive response was to tell him to “sort himself out.”

KB was born at 33 weeks on 22^nd August 2009 whilst the mother was on holiday. KB was transferred to the neonatal unit at Birmingham Women’s Hospital and on 5^th September 2009 she discharged herself to go home with her partner, MM, rather than remaining on the ward with KB. KB was discharged home on 11^th September at 36 weeks. The relationship with MM broke down soon thereafter and by 2^nd October 2009 the mother was living with KB at the home of her great-grandparents, together with the grandmother (SB), a great uncle and her brother, SB.

During the course of 2010, the mother partially remained living with the family and partially lived with a succession of men. She attended the clinic with KB with a variety of partners. By August 2010, it was clear that there were issues around KB’s development: he was not pulling himself up to stand or crawling. Concerns were raised about the state of the house and continued throughout the year. By December 2010, there were serious concerns about KB’s development and he was referred to the Child Development Clinic.

In January 2011, the mother and father met at the pool club and started a relationship which developed rapidly. On 11^th March 2011, the mother rang the health visitor visiting team about a disturbance at the home of her grandparents. The mother said that KB had become hysterical and that she had left the house to stay with a friend.

In the light of this incident, the health visitor, with whom the mother undoubtedly had an excellent relationship, made a referral to social care. The concerns at that stage were identified as the mother’s general vulnerability due to her history, and the poor state of the house, which, whilst improved in some ways, remained unsuitable, and further concerns, as the mother had recently disclosed to her counsellor, that she was concerned by the number of male callers that the grandmother had to the house. The health visitor was also concerned at the number of short-term relationships the mother had had which, added together with the mother’s own history of mental health problems, potentially impacted on her ability effectively to parent KB, a child with complex needs and who had already been exposed to violence within the home. The referral also highlighted that the mother was happy to engage in appointments with the health services, attended appropriately and that her general care of KB was good.

Following the incident, the mother moved first into a hostel and then to stay at her aunt’s home with KB. This was intended to be a short-term solution and in itself brought increased tensions as her uncle appears to have been reluctant to have her and KB in the house.

On 28^th March 2011, the mother and father took KB to see Dr Fadahunnsi, a specialist doctor in community and paediatrics. Dr Fadahunnsi has worked in paediatrics for over 20 years. She is not, however, either a qualified paediatrician or a consultant, and explained to the court that she works under a consultant at the clinic. On examination, subsequently recorded in her notes, police statement and her Children Act statement, Dr Fadahunnsi said that KB had macrocephaly, a diagnosis with which Dr Cartlidge and Mr Richards both disagree. As Dr Fadahunci gave her evidence, her discomfort became apparent and, when asked, she said that in using that word (macrocephaly) she was not using it as a diagnosis but as a description meaning that KB had a big head compared with his height and weight.

Dr Fadahunnsi referred KB for an MRI scan which was carried out on 17^th May 2011 and reported upon by Dr Alton, consultant paediatric radiologist. The MRI scan revealed no evidence of injury but some evidence of loss of brain tissue. Dr Alton felt there to be dilated ventricles, just on the side of abnormal, consistent with PVL. Dr Stoodley, subsequently reviewing the scan, felt that the ventricles were prominent but not pathologically enlarged, and, therefore, just within the range of normal. In the event, the post mortem examination of the brain showed that KB did not have PVL. Dr Alton and Dr Stoodley met. They both agreed that there was some loss of brain tissue but nothing that would predispose KB to the injuries subsequently seen on the later CT and MRI scans.

That scan of 17^th May provided a critical marker from which the injuries later sustained by KB and from which he died can be plotted. It is agreed by all the treating and forensic experts that, as of 17^th May 2011, KB had not sustained any form of brain injury and there was no haemorrhaging, either acute or chronic, in any part of his brain.

Dr Fadahunnsi saw the mother and father again on 6^th June 2011. KB’s development was reviewed at this time. Although he was sitting without support and could roll over, he could not sit from rolling and he was still making no attempt to crawl. Dr Fadahunnsi told the parents that, on review of his developmental history and the brain scan, a finding of a diagnosis of cerebral palsy was appropriate.

In conducting his overview of KB, Dr Cartlidge’s opinion was that the signs and presentation of KB were inconsistent with a diagnosis of cerebral palsy. When this was put to Dr Fadahunnsi, she was clearly upset and said that she had done her best. She refused to comment on this aspect of the case, restating that she was not a consultant.

I have absolutely no doubt that Dr Fadahunci did her best. She made a careful examination of KB, who was very delayed, approximately functioning as an eight-month old when he was 19 months of age, and she was kind and sympathetic when she saw the mother on 6^th June to tell her of the results of the MRI scan, which she believed were consistent with the diagnosis of cerebral palsy. Dr Fadahunci was further hampered because, unbeknown to her when she examined KB on 6^th June 2011, she was unaware of the very severe injuries he had sustained a few days previously on 28^th May, an incident which was reported to her merely as a recent fall leading to him being seen at the Birmingham Children’s Hospital.

On 10^th May 201, the mother collected the keys to her property at her pleasure in having a place of her own can be seen from the text message she sent when she collected the keys. She moved in almost immediately with KB. The father spent nearly every night with the mother at the property but did not completely move in, a topic about which there was considerable text traffic between the couple. The flat needed a great deal of work done to it but, whilst looking grim to an outsider, for the mother it was her own home where she could live with KB, as opposed to under sufferance at her aunt’s or in the toxic environment of her mother’s or, indeed, under the roof of a succession of transient male partners.

The paternal grandmother told the court that each year the entire family go for a week’s holiday. The week when this was to take place in 2011 was to start, I think, on 30^th May. The grandmother was clear that had the bookings not been made so far in advance, the family’s expectation and hope would have been that the mother and KB would have been going with them on that holiday.

On 27^th May 2011, because they were going to be apart for a week, the parents went out for the evening leaving KB to stay overnight with the maternal grandmother. It is unclear precisely how late out the parents stayed, although it is known that they went into a club at ten past eleven in the evening. It is likely that they did not get home until 1.00 am or even later. From their normal pattern of life, I am satisfied that they had been drinking.

The following morning, the father got up at 6.00 am and went to work, finishing at 2.00 pm. Later that day, the mother left KB alone with the father while she went to the local Poundland to buy tiles for the floor in the flat. At 17.13, the father rang 999. The history he gave was that KB had fallen over and “gone really floppy.” KB stood up, he said, and “tried to get on to a chair.” He caught his head on the chair and then hit it on a sofa and then hit it on the floor. “His eyes seemed to roll to the back of his head and when he picked him up he went all floppy.” At 17.17, the father sent a text message to the mother saying, “Get home. Little one just fell. Called ambulance.” At 17.20 the ambulance arrived at the house.

When the paramedics came into the flat, KB was lying on the sofa, his hands up by his ears, screaming. The father was described as being very agitated and pacing. He said that he had been teaching KB to walk and that he had fallen and banged his head on the side of the sofa. He said that the mother was out at her brother’s as she was having problems with the child’s father. That is a bizarre comment which has not been explored or clarified in evidence. The paramedics told the father the importance of the mother coming back quickly and there were a number of telephone calls between them before the mother finally arrived enabling the ambulance crew to leave.

When he got to hospital, KB was examined. By this stage, he was alert with a full Glasgow Coma Score. In the light of the history of a head injury, it was felt that he should remain in hospital for some six hours for observation. The parents, however, were keen to go home. I am satisfied that the medical records are accurate when it is recorded that the parents had told the doctors that a neighbour was looking after a sibling and that the father had to go to work. I am satisfied that the mother simply made this up to provide herself with an excuse for leaving the hospital. Prior to KB leaving hospital, his left shoulder was x-rayed, showing no bony injury.

Within a couple of hours of getting home at 23.37, the mother made a call to NHS Direct. KB was clearly very ill. He was screaming and being sick. The mother was advised to take him straight to Accident & Emergency. He was kept in hospital overnight and discharged the following morning.

That afternoon, on 29^th May, the parents and KB went to visit the paternal grandparents before returning home in the afternoon. As planned, the father then returned to the paternal grandparents’ home in order to leave early for the holiday the following morning, 13^th May. KB, however, remained ill. Texts on 29^th May show KB continuing to be sick and the mother having had a bad night with KB.

The following day, 30^th May, at 16.30, the mother once again rang NHS Direct. She had described KB as not eating or drinking properly, as screaming and being “pale as hell”. She said that he was not sleeping for long “and just wakes screaming”. The mother was again advised to take KB straight to Accident & Emergency. She did not do so.

That evening a relative of the mother, EB, was planning on spending the night with her. They met at the maternal grandmother’s home and walked KB home in the pushchair. Whilst EB was there, KB was clearly unwell. He was sick and EB thought he looked grey and observed that he did not seem to be focussing upon her but it was as if he was looking through her. EB was sufficiently concerned to ring her own mother for advice. Her mother’s advice was to call an ambulance, which this time was duly done, and at 19.54 an ambulance was called and KB was taken back to hospital. KB was again kept in overnight. No specific neurological abnormality was noted and no bruising or swellings to the scalp or head. At 7.30 on 31^st May, KB was, once again, discharged home.

After KB’s death, the police investigations led to the parents being interviewed on 14^th July 2011. Both told the police that the fall on 28^th May had occurred when the father was trying to teach KB how to walk. Both told the police, in terms, that both the mother and father were present at the time of that fall. The father described KB as lying on the floor moaning, looking dazed as though he had knocked himself out. The mother described him as being dazed and floppy and not making a sound and then crying. In his evidence, the father accepted that the account given to the police in relation to the presence of the mother at the time of KB’s fall was a lie. It had been the mother’s idea that they should lie to the police, he said. The mother had said that they should do so as she did not believe him to have harmed KB and she did not want anyone to suggest otherwise. The mother, in her evidence, was less forthright, using the same excuse that she had used in relation to the stillbirth by saying that she had thought about it so many times and repeated the various accounts so often that she had got confused and came to believe that she had been present when KB fell on 28^th May.

I accept the account given by the father that, at the mother’s suggestion, they quite deliberately lied to the police in order to mislead them into believing that the father was not alone with KB when he fell. I find that the deception was maintained for as long as they possibly could. The mother, who had, hitherto, had an excellent relationship with the health visitor, when she saw her on 9^th June did not tell her that KB had been admitted to hospital three times just a couple of weeks earlier.

In these proceedings, the mother and father both filed wholly inadequate statements. Neither statement made any reference whatsoever to KB’s fall or subsequent hospital admissions on 28^th May, a matter of weeks before KB’s death. Once detailed disclosure was obtained, the truth was bound to come out, not least the evidence of the paramedics and the text that the father had sent to the mother urging her to come home.

At the beginning of the hearing, the court was given a recording of the 999 call made by the father on 28^th May. During the course of the proceedings, the mother listened to that call for the first time. No one listening to the tape could have been other than horrified. Throughout the call KB can be heard screaming in agony in the background. It must have been quite desperate for the mother to have sat and listened to that recording and to hear the distress of her child.

Listening to the 999 call provoked the production of a second statement from the mother which the court gave permission to be filed on 11^th March, several days after the beginning of the case. In that statement, she said that she had actually been out of the house for about 35 minutes when the father spoke to her telling her that she needed to go home. She said that when she got home she had said something to the effect of “What the hell has gone on?” and she accepted that the account that she gave to the police in her interview on 14^th July was not correct and said:

“I do wonder if we spoke about it so much that I began to believe that I was there.”

The mother described her understandable distress in listening to the tape. She said she had never previously heard KB scream and cry to that extent and wished that she had listened to the recording earlier and that the police had played it to her in her interviews in 2010 which were “no comment” interviews. She concluded her statement by saying:

“I now have some doubts about what happened on that date to KB as a result of listening to the evidence from the doctors and SH and hearing the tape.”

Whilst not instructed to make direct allegations against the mother, Mr Vater QC hinted in his closing submission that there was little evidence of encephalopathy at the time of KB’s fall on 29^th May and that something could have happened to KB after the father had gone on holiday. Mr Vater used this suggestion to pray in aid his primary submission that this is a so-called uncertain perpetrator case.

I am satisfied that the description of KB’s presentation given by the father in the 999 call to the paramedics and in the police interviews, when neither knew the relevance of his specific symptoms, are, in fact, all consistent with an encephalopathic episode. For example, in the 999 call, the father refers to his eyes rolling back to the back of his head, to him being all floppy and there are references to him being dazed and looking as if he had knocked himself out. It follows, therefore, that I am entirely satisfied – in fact, beyond the balance of probabilities – that KB sustained serious non-accidental injuries; namely, the facture to the T8 vertebra and the damage to the T9, caused by KB having been slammed down on to his bottom or on to locked straight legs, together with bilateral subdural haemorrhages and retinal haemorrhages caused by some sort of shaking or shaking impact mechanism. The injuries were inflicted on KB whilst in the sole care of his father and I am satisfied on the balance of probabilities that he caused those injuries.

EB, who gave evidence, and the paternal grandmother each date the change and deterioration in KB’s heath to the date of the MRI scan on 17^th May 2011. I am satisfied that they are mistaken in their submissions for the following reasons:

Far from the holiday with his family acting as a release and restorative, there was clearly a serious row, between the father and his sister at the end of the holiday. Something going wrong was perhaps inevitable; the father’s problems about the drug dealers and his drug-taking had not gone away, and now, in addition, he knew that immediately prior to leaving on holiday he had not only harmed KB but and was receiving blow by blow accounts from the mother by text message about KB’s continued illness and his admissions to hospital following the assault.

There was clearly a serious argument. The father told the mother in a text that he would be late returning home because he had to go and see his children who believed that they were responsible for an argument on holiday. That underscores the significance of the dispute, as the father was proposing to go KT’s home to see the children in order to reassure them. It is equally clear that they were not reassured, as the father subsequently recorded in a text that it had been a distressing visit and the children had been most unhappy.

The father, after the holiday, returned to the mother distressed. The texts on 8^th June show the mother trying to find out what was wrong with him. At 23.48 that night, the mother was trying to persuade the father to come to bed and said;

The following day, they were given the news that KB had cerebral palsy. Each of the mother and father said in evidence that the diagnosis was really a relief so that they now knew what the problem was, and that the mother’s brother had cerebral palsy so that they knew what they were dealing with. I do not accept that it was quite so straightforward. There are two little pieces of evidence that suggest otherwise. The mother told her nurse-therapist that after the diagnosis she could not be around KB for a while; and there is another piece of evidence that the father had to go out in the car for a while to come to terms with it and cope.

On the night of 18^th June 2011, the mother, father and KB stayed overnight with the paternal grandparents. On Sunday morning, all was seemingly well. They spent the day with the paternal family and had returned to the mother’s property at somewhere between half past three and four. KB was fed first. It would appear that the parents then ate separately. The mother suggested, as I have already referred, that they ate one after another as there was only one clean plate in the house. That did not accord with the father’s recollection. Looking at the photographs taken by the police after KB’s death, it seems likely that the mother is, yet again, proving to be an unreliable historian, as one empty plate, with a knife and food and food debris, is next to the kitchen sink, and, on the floor, seemingly hastily abandoned, next to KB’s chair, is a second plate with similar unfinished food on it.

Both parents give a consistent account to the extent that the father played with KB while the mother ate her tea. The father noticed that KB had a wet nappy and took him to the bedroom to change him. They are agreed that the mother finished her meal, (although that is inconsistent with the half-eaten food on the plate on the floor), and ran a bath for KB. After that their accounts not only diverge one from the other but also from contemporaneous evidence and observations of the paramedics.

At 19.06, the mother called an ambulance. She told the emergency operator:

“My son was fine because my partner took him into the bedroom to get some clean clothes for me. Wet through his nappy … and he has come back. He’s just lifeless; he’s not even breathing properly.”

The rapid response team quickly arrived at the house. The mother was standing on the pavement and directed them inside, saying that he was making funny noises.

I am satisfied that the account given by Mr Anthony White, the paramedic, is accurate when he described seeing KB in the front room on a changing mat wearing a nappy. KB was pale, cool to the touch and appeared to Mr White to be dead. There was a large amount of vomit in his mouth which Mr White cleared and he was unable to find a pulse. CPR was given. KB was intubated, ventilated and doses of adrenalin administered before he was taken to the ambulance for transfer to the Birmingham Children’s Hospital. Dr Hannah Borden, an anaesthetic registrar, joined the crew on the ambulance in order to cannulate KB’s jugular vein in order to give him another shot of adrenalin.

After they arrived at the Children’s Hospital, Dr Borden spoke to the parents in the company of one of the emergency team. The mother was crying and being comforted by the father. Dr Borden told them that resuscitation was still ongoing and asked what had happened. Dr Borden’s note records that the mother had told her that KB had been found in his cot “blue and gurgling”.

What can be gleaned from the contemporaneous records is that:

The accounts given by the parents in their evidence and to the police are inconsistent and incompatible with the contemporaneous records. The accounts have now morphed into an unspecified event occurring at some point between the lounge and the bathroom and that KB either actually went into the bath (mother) or near the bath water (father) but that he had been stripped and was not wearing a nappy. All the evidence given by the mother and father about what happened immediately prior to KB’s collapse is unsatisfactory, obviously incomplete and untrue.

I accept the submission of the Local Authority that the case as presented by the mother is an attempt by her to conceal the fact that KB collapsed whilst he was alone with the father in the bedroom. I find that KB sustained fatal injuries before he left the bedroom and that he was, indeed, as the mother told Dr Borden, blue and gurgling in his cot, it follows that he was cyanosed and dying by the time he was carried out of the room. It is impossible to tell, and has no direct impact on the court’s findings, whether the various accounts of the role that a bath played in the events is entirely made up or whether, in some vain and desperate attempt to revive KB, he was, in fact, put into a bath prior to the ambulance being called.

It was not until 19.49 at the hospital that a pulse was sustained and KB was transferred to the intensive care unit. On 20^th June, the police interviewed the mother under caution. She now spoke of KB having been fine when the father brought him back in from the bedroom. On 21^st June, a skeletal survey was carried out and the spine fracture to the T8 vertebra and the lesser damage to the T9 vertebra was discovered. On the same day, the eyes were examined and bilateral multi-layered retinal haemorrhages observed. On 22^nd June, the MRI was carried out on the brain and spine, showing catastrophic brain damage.

The following day, on 23^rd June 2011, life support was withdrawn and KB was pronounced dead at 13.42.

Following the death of KB, the parents have continued to live together. In late December, there were two episodes of violence. One is referred to in a text on 23^rd December when the mother texted to the father saying, “I’m sorry I yawned in your face, but you didn’t need to hit me so hard around the head though.” The father’s reply was, “It wasn’t hard.” In oral evidence, the father sought to justify this, saying it was “merely a clip”.

On New Year’s Eve, there was a further incident between the mother and father. They had been out drinking and, according to the father, both were drunk. On their return to the property, it is common ground that the mother completely lost control. She was smashing up the flat and destroying the photographs of KB. The father accepts that he slapped the mother but said that it was in the context of her being completely hysterical and him being unable to calm her down and to stop her being destructive. The mother accepts that that was the position, and I accept that that event is somewhat different to the other three episodes of domestic violence detailed in this judgment. When writing in her diary about the incident a few days later, the mother said (in writing to KB):

“I’m so sorry, son. Please forgive me. It’s for destroying his photographs. I’m also hurting as I never, ever thought Craig would raise his hand to me, especially when I’m carrying his child.”

On 2^nd May 2012, the mother and father were arrested on suspicion of murder and interviewed by the police.

Ultimately, I found the father to be a man of contradictions. I have no doubt that he is, by nature and inclination, a straightforward and truthful man, albeit private, but who finds it difficult to confide. In many points of detail during the evidence, I preferred his evidence to that of the mother, who, I regret to say, often simply makes things up. The father had real problems with drugs, and possibly drink, together with the other pressures I have outlined above.

Mr Vater QC, in his closing submissions, whilst maintaining his primary submission that the court could not identify the perpetrator to the requisite standard of proof, suggested to the court that if it did, indeed, find the father to be the perpetrator, the court may find that the heart of the problems lay within KB’s disabilities. The father told the court in evidence that he had believed that KB was slow only because he had been grossly under-estimated within the mother’s household. That part is undoubtedly true. The father and his family were clearly committed to “bring KB on”: to teach him to feed himself, to play, to talk and, significantly, to walk. Mr Vater suggests that it may be significant – and I agree – that the incident on 28^th May, (when I am satisfied that the father had a momentary loss of control and assaulted KB), occurred at a time when the father was trying to teach KB to walk.

The father was under all the pressures I have already outlined. He was probably tired, having had a late night the night before and then having gone to work. He was used to the well-regulated and supportive environment of his parents and the bright responsiveness of his own children. Whilst only the father knows what actually happened, it is not hard to see the frustration when KB failed to “learn” to walk despite his endeavours. The tragedy was that no matter how under stimulated KB was there was a significant measure of developmental delay and KB simply could not learn to walk, no matter what encouragement was given to him.

I am satisfied that the father is a man of hasty temper. The incidents of domestic violence show that to be the case, as do other glimpses of the mother and father’s life revealed through texts – for example, the father throwing down the mother’s laptop when irritated. Whilst these are not serious in themselves, in that neither his former partner nor the mother were hurt, (although it was responsible for the ending of his former relationship), they do demonstrate a sudden lack of control, and the father himself told the court that these lapses occur, not only in drink, but under pressure.

Upon his return from holiday, things were only worse. The father’s beloved children had been upset. KB was off colour and miserable. The father is by no means a stupid man. He must have feared that he was responsible for KB being unwell. As Mr Vater pointed out, the father wanted to take a pride in bringing KB on, and then, in June, came the news that there would be no cure, that this was not under stimulation but cerebral palsy, and the mother’s brother was the only point of reference for a picture of what lay in the future.

The court has no idea what happened on the afternoon of June 19^th. Neither the mother nor the father, at present, are prepared to tell the court what triggered the second loss of temper on the part of the father. I am satisfied, on the balance of probabilities, that something happened whilst the father was in the bedroom alone with KB. He was there, he told me, trying to find clothes, an almost impossible task given the state of the room. Whether in frustration he threw KB into the cot to free up his hands to find something clean to put on him, rather than putting him in the cot whilst he hunted for clothes (as he told the court), only the father knows. It may be that the mother does not herself know what the catalyst was, but she undoubtedly knows that the father did something to KB when he was alone in the bedroom. In the same way that she devised an alibi for the father for 28^th May, she has attempted ever since to cover up and to protect the father rather than her child.

The Local Authority, when addressing the issue of the mother’s failure to protect, reminds the court that this is not a case of a mother in denial. The mother, Ms Probyn on behalf of the Local Authority says, has sought to mislead the investigation by the police and the court by way of deliberate lies into the circumstances both before and at the time of her son’s death. I accept that to be the case. Similarly, the Local Authority says that this is not a mother who came belatedly to understand the medical evidence, as she was in the flat when KB died and, in a flat of that size, she must have known that something terrible had happened. I accept also that to be the case.

The mother’s failure to protect inevitably must be put into the context of her own appalling background and circumstances, but that is no comfort now and she must always reproach herself, one suspects, for covering up that first appalling incident on 28^th May instead of intervening in order to protect her child, had she done so KB might have been alive today.