A City Council v M & Ors

These are public law proceedings concerning a little girl, Y, who is now 7 years and 7 months old. Y was placed with foster carers by A City Council (the local authority) following the tragic death of her 8 month old baby sister X, at the hands of her mother. M, their mother was severely mentally ill at the time. B’s father (F) suffers from a disease which affects his respiratory system and which is a degenerative and life-shortening.

M was arrested and shortly afterwards placed in a secure hospital. M pleaded guilty to infanticide and sentenced by a judge at a Crown Court, she was made subject to a Hospital Order pursuant to s 37 of the Mental Health Act 1983 and a restrictions order under s 41 of the Act. She will be released after successful treatment, which is likely, on the psychiatric evidence, to take 2 to 3 years, any failure to comply with psychiatric treatment after her release will lead to a recall to hospital. The restrictions imposed by the s41 order require that she seeks and obtains permission from her treating clinician and the Secretary of State before she travels abroad so that a treatment plan is put in place; this is not a ban on travel but failure to comply could lead to recall. The Crown Court heard evidence from three psychiatrists all of whom conducted in depth interviews with M and to which I shall return later in this judgement; all three considered that she would pose a risk to others, particularly (for the purpose of these proceedings) children in her care.

Clearly, and it is not disputed, the threshold as set out in s31 of the Children Act 1989 (CA) is crossed by X’s death and the psychiatric evidence regarding the risk posed by M, however, the local authority seek further findings of fact and a judgment to provide a fuller context for the placement of Y, both now and in the future. All the parties to the proceedings, including the maternal grandparents, agree that Y should be placed with her maternal aunt, MA, outside this jurisdiction, and that the legal basis for that placement should be a Special Guardianship Order (SGO), s14 CA; but the local authority and Y’s Children’s Guardian are concerned that that placement should be seen as long-term and provide a secure and settled home during Y’s minority and beyond. They are concerned that the exclusive nature of the parental responsibility that the SGO grants to the special guardian should be understood by all members of the family (including the maternal grandparents) and emphasised by a judgement of this court. The legal advice which has been obtained from the relevant foreign jurisdiction, is that their courts will be required by law to recognise and enforce the judgement and orders of this court and thus to enforce but not to modify the Child Arrangements Order (Children and Families Act 2014) and the SGO that are made in respect of Y.

Y’s father has played very little part in these proceedings and has had nothing to do with Y since he was taken to hospital just hours before X died. That he does not put himself forward as a carer is understandable given his ill-health. What is less comprehensible is that fact that he has chosen not to have any contact, at all, with his daughter since shortly after X’s death. It is notable that despite his illness he has managed to travel to see M in hospital on several occasions during this period. He has not attended court this week. He has, heretofore, refused to take part in life story work; although he now says that he will do so.

On the day that X died all of B’s immediate family disappeared from her life and she has not seen them since. The trauma of such a loss on a small child is difficult to imagine and its effect unquantifiable. It cannot be disputed that she must have been left bereft and in a very vulnerable emotional state. When her mother was sentenced in the Crown Court, and on advice from Child and Adolescent Mental Health Services (CAMHS), Y was told that her mother had admitted causing the baby’s death, that she could not remember how it had happened and that she was unwell. It was stressed that Y was not in any way responsible; but sadly during her time in foster care Y has expressed feelings of guilt about the baby dying which the foster-carer has recorded and set out in her statements (I shall return to this below).

Threshold As I have set out above both the local authority, and those representing Y herself, regard it as necessary and in best interests of Y for the court to resolve, insofar as possible, a factual framework that properly and sufficiently reflects Y’s experiences prior to her accommodation in care. Such a framework is imperative to ensuring that Y and her carer have as objectively truthful narrative as is possible going forwards but, more importantly, so that professionals (and if necessary, the court abroad) have a firm foundation on which to proceed when considering how to meet Y’s welfare needs in future or if considering the basis of any possible future dispute as to her care and living arrangements. (In due course it will augment the life-story work being carried out for Y by social services with assistance from her mother and, it is hoped, her father.) There have been concerns raised about both M and her parent’s treating the placement with MA as short-term or temporary until Y’s mother can resume her care. That is neither the purpose of the SGO nor the intention of this court in making these orders.

The facts sought by the local authority have been reduced and are contained in the Revised Schedule of Findings dated 13 June 2014 (see below). It is the view of the local authority and the Guardian that in the absence of a judicial determination of the disputed facts the parents and, perhaps, the maternal grandparents, would continue to place a euphemistic gloss on and/or may continue to dispute the events Y experienced during her up-bringing, the effects of her upbringing on Y, the harm she has suffered as a result and the risk of suffering significant harm in the future should her placement be disrupted.

Contact There had, until the hearing on the 1^st July 2014, been a dispute between the local authority and M about whether Y should have face to face contact with her mother prior to moving to the foreign jurisdiction with her aunt, as planned, in July 2014. Y has not seen her mother or had any planned direct contact with her since the morning that X died. Y has been displaying considerable distress and displayed some uncharacteristic behaviour and upset after it has been suggested to her that she may see her mother, despite the fact that she has also said that she would like to see her mother. It is similar to the behaviour she exhibited after her grandfather put her on the phone to her mother around Christmas time (contrary to the court’s orders), a description of which is set out in the statements of her foster carer and which I shall not rehearse here. M has now said, through her counsel, that she will co-operate with the preparation of a DVD which can be watched by Y either before she leaves this country, or later when she has moved, if the professionals currently charged with her care, decide that would be appropriate. The decision will be guided by how vulnerable Y is emotionally during this delicate transition.

If Y is able to watch the DVD and if it is considered that she has handled it well and that seeing her mother is, on balance, in her interests then consideration will be given to face to face contact with her mother before she leaves. There are benefits for Y in seeing her mother particularly if she is able to demonstrate her wholehearted support for Y going to live with her aunt. Y will also see that her mother is alive, well and being cared for which will offer additional reassurance. I can well understand that M would very much like to see Y and that she feels that she can provide reassurance that no-one else can, however, Y has displayed real distress at the possibility of seeing her mother and there can be little doubt that she remains in an emotionally vulnerable state. It is far from a meeting to simply to say good bye and good luck; I reiterate that Y has not seen her mother since her baby sister died, and that in the interim she has been told that her mother caused X’s death. The maelstrom of emotions that will engulf Y in the meeting her mother proposes are self-evident and would seem to militate against such a meeting taking place, unless there are clear signs that Y is able, not just to cope with it but to benefit from it.

Framework for maternal grandparents contact Currently, following the direct contact on the phone between Y and her mother, the regular contact that Y has with her grandparents has been supervised. Y likes seeing her grandparents and appears to be relaxed and happy in their company. But there have been concerns raised about the grandparents’ willingness and ability to put Y’s interest before that of M; these concerns have substance and are set out in the assessments carried out by the social workers of the maternal grandparents as a possible placement for Y, they are shared by MA. I shall not repeat them here as they agree that Y should be placed with her aunt. In future contact will be at the discretion of Y’s aunt at her instigation and direction. Its form, frequency and duration will be a matter for MA, alone, and will take place for the benefit of Y, not her grandparents. There must be a substantial quietsome time, when MA and Y can get to know each other in peace and without interruption. Any agreement or court order must reflect this and the primacy of Y’s needs, particularly her need for stability and security.

Placement The court has read, with appreciation, the comprehensive Special Guardianship report on MA; and of the thoughtful and insightful way she has approached the responsibility she is taking on of raising her niece. There is no need to set it out in detail here, but I am certain that she will encourage Y to develop relationships within the extended maternal family, including maintaining the relationship she has with her grandparents; but as grandparents not in a parental role and secondary to her’s as Y’s principal carer. I am certain, too that MA will help Y build her own circle of friends and place within the wider community in which they live. Any orders made are to protect and secure this placement.

The history of Y and her parents is not easily determined as there is a paucity of reliable information from them both; this is particularly marked in respect of F who has filed very little evidence, apart from a very short statement just prior to this trial and some of his medical records. The most illuminating evidence is contained in his police interview, which is not challenged and upon which the court can place some reliance. Much of the concern about Y’s upbringing and life with her parents is based on what she is reported as saying after she came into care and on the behaviour she has displayed whilst in care. The evidence filed by M is limited to one statement dated the 4^th June 2014 of barely five pages in which she says that she hopes to resume care of Y in the future (paragraph 19). She gives very little by way of detail as to her life with Y. However she had extensive interviews with three psychiatrists; the contents of those interviews, which although prepared for the criminal proceedings, are prepared by experts in forensic psychiatry and were not challenged. Some of what she told the psychiatrists forms the basis of the history set out here. What M said also contradicted her statement and the basis of her case in these proceedings particularly concerning her history of mental illness and alcohol abuse.

F’s history as set out in this judgement is largely gleaned from his police interview following X’s death. He has used several names during his life and does not use the names given at birth. He told the police he moved to India in the early sixties and frequently returned to the UK. He has been married twice before and has other children, who he was unable to name to the police; he had no idea of their ages, where they lived or anything else about them. F said when he went abroad he had become interested in spiritualism generally and in tantric sex which was his main focus. While abroad he was treated as a teacher and took on Hindu aliases. He described himself as a spiritual guide and said that he had, and continued to be, supported by wealthy benefactors who gave him money and other gifts. F met M overseas and said that he also travelled to other parts of the when he was with M.

When F met M it was about 2004. He said that she told him she was a recovering alcoholic and that her mother had put her in rehab for some months. He said that he promised M that he would never allow her to be put into a psychiatric unit again. He described them has having a “wonderful” time that was “wild”, during which they all had sex with everyone. Although he knew she was a recovering alcoholic he encouraged her and her friend to drink because it was “wild”. He was unable to remember where Y was born whether it was abroad or elsewhere or whether she was born in a hospital or not. Later in the interview he said X was born at home, but he could not really remember. (In fact she was born in hospital and M left 2.5 hours after she was born to go home to look after F). He told the police that M later told him that she suffered from post-natal depression after Y was born which had surprised him as he was not aware of it.

F described M as suffering bouts of depression which she hid from him and told him about later; he was also aware of her being depressed from time to time but did not encourage her to seek medical help as the medication could make it worse so they decided to deal with it themselves by “kisses and cuddles” and having sex. After X was born they both were depressed, according to F, and both took medication, Lorazepam, which had been prescribed to him. They would both cry because of the medicine. He denied that Y was aware of it though she was there. F said that M was isolated where they were living after X was born and it was wearing her down. He said she was obsessed by people not liking her.

F described being hospitalised after X was born when he was in hospital for a month, on his return he said that M described her time alone with the children as horrendous, worse than being abroad when she was teaching (when she had suffered a serious bout of mental illness) and that the television had been telling her to do things. F said that he told M in the months leading up to X’s death that they needed to see a psychiatrist but she did not want to as she was afraid that she would be locked up. They started to share medication, they had rows and made plans to leave the house and the area as M did not want to live there. In the last few weeks she spoke of killing herself, which made him angry. He did not encourage her to seek medical or psychiatric help as she did not want to be locked up and he could not manage without her anyway.

F described the events the night before the baby was killed. He said he woke up to find his wife and the baby gone. He was ill so he phoned the ambulance. He phoned M who said she was on her way to another city with X, leaving Y with him. F says that there had been no such arrangement or discussion and that he was surprised at what she said as she knew he could not care for Y. He described hearing about the arrangements for M and X to be transported back to where they lived by the police who would meet halfway. He said he told the police that M would lie to them; and that he lay in hospital feeling aggrieved, “she doesn’t love me…or care about me… she doesn’t want to see me again …which put me in a huge trauma”, because M had not phoned to ask how he was, which was unusual. Later the police came to tell him X was dead.

M is the youngest of three children and had an uneventful childhood until her teenage years when she started abusing alcohol and, on her own account, at 19 received in-patient and out-patient treatment. She managed to complete a degree course in 2001. She became interested in Buddhism, went abroad and spent three years travelling and towards the end of this period that she met F. According to one of the psychiatrists her description of her feelings at the time was suggestive of an elevated mood state. When she became pregnant with Y they came to the UK. When they arrived in the UK M became depressed and told one of the psychiatrists instructed in the criminal proceedings that she started to drink again. Y was born and after about 4 months F disappeared, apparently abroad, he told her he was in Russia. M was effectively stranded without funds and a new baby, whose passport was missing. With some difficulty she arranged travel documents and took the baby home to her mother in her home country. She then moved to another part of the country for a year where, she told the psychiatrist, she had a relationship with someone else. This came to an end in about 2008. M told the psychiatrist that she was suffering from depression but did not seek any treatment for it. This period accounts for the first two years of Y’s life.

In 2008 M travelled abroad to take up a teaching post. She found conditions there very poor and, according to the psychiatrists, it was clear from her own account that she developed paranoid symptoms. She and Y returned to her country of origin and to her mother’s home. She recalled her mood state as of one of despair, said that she felt terrified and thought that the language school in which she was teaching had bugged the rooms. When she returned to her home country she thought that comments from a boyfriend and her mother’s partner had particular meanings. She left Y with her mother’s partner, drove away and attempted suicide by drinking a bottle of wine and cutting her wrists. She was admitted to hospital for 10 days.

Some time in 2008/2009 F contacted M and proposed marriage. She has accepted in her account of their life together to the psychiatrists, and it is supported by F’s account to the police, that they travelled in the two different countries and stayed in different places. Due to F’s deteriorating health they returned to the UK in 2010. Y would have been about 3 or 4 at the time. Y had by then lived in at least 6 different places with and without her father. It is not clear what the family was living on and there are no details of the circumstances of their day to day life or of their integration into the communities in which they were living.

When the family returned to the UK they came to live in England. According to F, in his interview with the police, they had not been living at their last address for more than a period of months. Despite their assertion that they had a settled life in the UK both parents have failed to provide any details or evidence of a stable and settled existence on which they could base this statement; as a result I must consider their failure to do so in the context of what is known of their lives before they moved in to the address in which Y was found asleep on the morning that her baby sister was found dead outside.

Of their mother’s mental state on that date and leading up to it there is no doubt that she was suffering severe mental illness. What is not clear is how long it had been going on, but it is more likely than not that from about February/March 2013 when F was in hospital and from his descriptions to the police M was experiencing symptoms associated with serious mental illness, had threatened suicide and that she was self-medicating to alleviate those symptoms with the encouragement and connivance of her husband who it seems, on his own evidence, did not want to lose his carer.

The local authority issued these proceedings and initiated arrangements to protect Y on 5^th September 2013 therefore that is the relevant date for the purposes of the s31 proceedings and findings sought.

The local authority sought findings, set out in their documents in support of their application and not repeated in this redacted judgement.

This case is one in which there is no dispute that the threshold has been crossed by the death of X when her mother was suffering severe mental illness. The matters in dispute which the court is being asked to decide are wider issues as to the significant harm that may have been suffered by Y as a result of her parents care. The test in s 31 is an objective one and does not call for findings as to culpability.

There is no challenge to the psychiatric opinion that M would pose a risk to children in her care; one of the psychiatrists instructed by the defence in the criminal proceedings said in his report dated 8^th April 2014 said “In my opinion, the risk of any future violence must be considered to be almost exclusively to her own children. The understanding of what happened what those risks might be is somewhat limited but the fact that she was severely mentally unwell at the time is very likely to be the most significant factor.” The other psychiatrist instructed by the defence said in her report of the 8^th May 2014 that the offence arose during a “very significant episode of mental illness and where the baby became incorporated into her irrational thought processes relating to ending her own life. [M’s] perceptions of her husband and other daughter were also affected by this illness.”

The law, which is not in dispute, can be summarised as follows. The burden of proof lies with the Local Authority.  It is the Local Authority that brings the case and they have identified the findings they invite the court to make.  The burden of proving the allegations rests with them. Some of what they seek to prove is not in dispute, with reference to local authority’s schedule, paragraph 2 is accepted; as is paragraph 3 (a) to (d); the first sentence in paragraph 4; paragraph 5, while recognising that Y’s mother was mentally unwell at the time; paragraph 6 (a) the first sentence and 6 (c) to (g); of paragraph 7 the first two sentences are undisputed fact but F disputes the last; and paragraph 8 remains disputed to the extent I have just set out.

The standard of proof is the balance of probabilities, as set out by the House of Lords in Re B (Care Proceeding: Standard of Proof) [2008] 2 FLR 141. If I accept that the evidence relied on by the Local Authority proves on the balance of probabilities that the facts set out in the schedule then those facts will be established for the purpose of these proceedings and all future decisions concerning Y’s future will be based on that finding, here and in the foreign jurisdiction where she will live.  If the Local Authority fails to prove those facts which remain in dispute the threshold will remain traversed because the facts which are not in dispute meet the criteria set out in s31 of the CA.

Any findings of fact in care proceedings, as in all civil cases, must be based on evidence.  As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ. 12: "It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation". I remind myself of these words as the evidence before the court in respect of Y’s life at home and the care she received from both her parents remains opaque at best and is based largely on what the parents have told other people, such as the police officers conducting the interview of F and the psychiatrists who were instructed to prepare forensic evidence for the Crown Court on sentencing and not for the purpose of these proceedings; suspicion and speculation based on what was said cannot and must not form part of my analysis and decision making. However I can properly take into account the reported words of M’s sister and her parents during their assessment as potential carers for Y as corroboration of what the parents told others during the criminal investigation.

In this case I take into account all the evidence before me and consider each piece of evidence in context of all the other evidence as a whole.  As Dame Elizabeth Butler-Sloss, President observed in Re U, Re B (Serious Injuries: Standard of Proof) [2004] EWCA Civ. 567 the court "invariably surveys a wide canvas". A point further amplified by her in Re T [2004] 2 FLR 838 at paragraph [33]:

The court has only heard limited oral evidence; from the social worker and from the Guardian regarding contact and specifically whether Y should have face to face, or direct contact with her mother prior to leaving England to go abroad to live with her aunt. I have read the evidence filed in the 4 bundles which included statements, reports and documents generated by the criminal proceedings as well as those prepared in these proceeding. None of the evidence has been challenged. I have also read some, but not all, of the medical records file in three further bundles.

This evidence included the reports on post mortem examinations carried out on the baby after her death. The post mortem was carried out on 2^nd September 2013 led by Dr H, a highly qualified forensic pathologist. He was of the opinion that it was more likely than not that there was no [his emphasis] natural disease or underlying medical condition that would account for X’s death. Despite a detailed autopsy, ancillary investigations and further tests, no natural disease had been identified; the pathological findings were consistent with drowning or suffocation as the cause of death. Dr H had concluded in his first report that it was his view that the most likely cause of death was drowning but that evidence for this was insufficient to give such a medical cause of death on the balance of probabilities.

Dr H prepared two reports the second, dated 19^th June 2014, was prepared on instructions from the local authority for this case. As Dr H set out in his report the diagnosis of drowning may be extremely challenging, for there are no specific signs that are truly diagnostic of drowning and a conclusion must be based on a combination of autopsy findings and circumstances. Later in this report he concludes that if the description of the police and ambulance staff is concluded to be correct then that evidence combined with the autopsy findings would be sufficient to allow a court to conclude, on the balance of probabilities that the baby had drowned. The baby was found, on post mortem, to have a pink frothy fluid in her airways which is often seen on drowning.

The evidence of a neighbour who first picked the baby’s body up off the ground, police officers first on the scene, para-medics from the ambulance service and the doctor on receiving the baby in hospital all describe X as being dressed in wet clothing and feeling wet and damp. Some witnesses present on that morning also speak of a large volume of clear fluid emitting from X’s nose and mouth when being carried and during attempts at resuscitation. I do not consider it necessary to set out the evidence in detail but the following witnesses spoke of wet or damp clothing on the baby; the neighbour who first picked the baby up; PC A who was with PC B and took the baby from PC C who had taken her from the neighbour said the baby felt wet to the touch and her skin was damp; PC B who took the baby from her colleague and attempted resuscitation said the baby felt wet and that a lot of liquid went on to the officer’s face; PC C said that the baby felt cold to the touch, she was not breathing and had clear liquid coming out of her mouth; The ambulance para-medic who took the baby to the ambulance to attempt resuscitation said the baby had a wet top on and when full CPR was instigated initially there was a lot of clear fluid coming from her mouth and nose. The emission of clear liquid continued as the ambulance travelled to hospital. M travelled with X to the hospital and said to the para-medics “Don’t bring her back-she wanted to die- she’s been unwell”. Another para-medic who had treated M for the cuts she had inflicted on herself at the time was present in the ambulance and heard M say that her baby wanted to die. When they arrived at the hospital the Registrar on call for paediatrics received X in A & E and described her being in a dark blue top which was wet around her shoulders.

The local authority seeks findings that Y was at risk of significant harm because there were inappropriate sexual boundaries in place in her home and she was exposed to explicit sexual behaviour. The evidence of what actually took place in the home is limited to what was said by F in his police interview about using sexual activity to deal with M’s depression latterly and the couple’s adherence to a belief in the healing properties of sexual energy more generally. M told a psychiatrist instructed by the prosecution of the sexually open nature of her relationship with her husband, and her belief that sexual contact is part of the sexual healing of others. She told the psychiatrist that her husband would welcome her having sexual intercourse with others in their home so he could feel the sexual energy and that he subsequently received detailed accounts of these sexual encounters. There is a statement taken by the police of a man who had sex with M on four or five occasions prior to the death of the baby. He would arrive late at night and M would be wearing diaphanous clothing and was naked underneath. The last time was on the night after F was taken into hospital. Both parents say that they had ceased their wider sexual encounters after they left India. This unchallenged evidence would seem to indicate otherwise, certainly latterly and at a time when Y was in the house.

The most immediately concerning evidence is the uninhibited and sexualized behaviour of Y once in foster care. Y masturbated very frequently in the foster home and did so in front of other people who were visiting and at the dining table; sometimes taking her clothes off to do so. It is reported that she continues to do so almost every day. Y was only six years old when she came into foster care. The court entirely rejects her mother’s comment that this is no more than an early sexual awakening. It is very unusual sexualized behaviour in a young child and any sexual awakening must have been encouraged or engendered. How it happened far from clear; Y herself is recorded as saying that it made her feel better when she was thinking. She also said that her mummy used to tickle her there when she was in the bath, however she has not gone on to say any more than that. Y is reported as saying that her mother had boyfriends and seeing her in the bedroom with a man when her mother shouted at her and told her to go to her room.

When she came into care Y was wetting herself. This went over and above bedwetting at night which would be unsurprising in a child who had lost her home, her parents and her baby sister. It was reported that Y would crouch down on her bed or in the corner of her room and urinate; she would urinate on her clothes. She wet herself when out with the foster carer and at school. This behaviour is indicative of considerable emotional distress and disturbance in this child.

Y has spoken of what she understands to have happened. She has displayed distress and acted out after contact with her grandparents and when it has been suggested that she might see her mother. Despite saying she wants to Y had also said it would be alright if she did not as long as the indirect contact continued. Y is reported as saying that she was frightened at home, that robbers would come and her father could not fight them off; that her mother and father were always shouting and falling out and told her to get to her room. She is reported as saying that her mother could not look after X as she was crying all the time; that her mother banged her head off the wall. Y is reported as telling her foster carer that her parents would go out to play Black Jack and leave her in the house with X and that she had to feed the baby to stop her crying.

Y is reported as telling her foster carer that she, Y, had been worrying that it was her fault X died. “I worried a long time before she died, is it my fault?” Y said to her foster carer that she always worried that X was going to die, for a long, long time before she did; and then the baby did die. It is reported that she said “I keep thinking if X fell off the bed onto a knife that would make her die…and if she went under the water in the bath that would make her die, because my Mom has the water very deep.” She put her hands up to her chin and said up to here; Y said she could not stop worrying about it all the time. Around Easter, the foster carer reports that they when they were out and Y said “My Mom didn’t do it on purpose, she was ill”. Y got tearful and upset; the foster carer described Y’s distress as heart-wrenching, affecting her whole body “from the toes upwards”.

The foster carer described Y’s distress after she had contact when her grandfather put her on the phone with her mother. She was reported as saying her mother had cried on the phone to her. She had more temper tantrums and was more tearful at night, and, in the opinion of the foster carer Y was set back. Y is reported as saying that the grandparents told her she would go to live with her Auntie and would have a sleep-over with them when she did. After her Guardian visited her at school on 19^th June 2014 Y was again very distressed. The guardian had spoken to her about the possibility of seeing her mother. Her foster carer said she was in a “terrible state”, angry and shouting at tea-time and then becoming very tearful and sobbing. Y told her foster carer that her Guardian had come to see her at school and “said that maybe I could see my mum to say goodbye and I was too embarrassed to let [the guardian] know I was really upset inside.” She then went to talk about the baby dying and how she thought it was her fault. Y is reported to have told her foster carer that if she had come out of her bedroom maybe she could have stopped it happening; that if her mother had seen her watching maybe she would not have done it as she would have been embarrassed. Y was very upset all night, waking from nightmares and saying she was frightened but not of what she was frightened. She made a reference (as she had on a previous occasion) to her mother getting her to help her father out of the bath and seeing “his privates”; something she clearly did not like. Her disturbed behaviour continued all weekend and although it lessened at night her temper tantrums continued throughout the day. The foster carer writes that it was as if Y had a change of personality.

It is the opinion of the psychiatrist instructed by the prosecution that M suffered bouts of a schizoaffective disorder mental illness, both of the depressive and manic type, during adulthood although she has been treated for it only once in the past. This psychiatrist was of the view that M avoided such treatment through her lifestyle choices and her use of alternative coping strategies such as meditation and mindfulness skills. Latterly she also self medicated with the assistance of her husband. The psychiatrist makes reference to discussions with M’s GP in which it was confirmed that neither M nor her husband had disclosed previous mental health problems to the surgery, and that there were no concerns about her mental health until X was a few months old and F was admitted to hospital.

In M’s statement to this court she denies having long-standing mental health issues; accepting only a brief rehab at 19 years old and 10 days hospitalization in 2008 on her return to her home country. This is at variance with what she has told the psychiatrist instructed by her defence team at a time when the aim was to plead diminished responsibility. It is also at variance with the evidence of her husband. There can be little doubt that she did not disclose even the limited mental illness she accepts in her statement to her GP. There are undisputed and clear indication that she suffered depression after Y was born; her husband says she told him so and her description of her mood state when she returned to her home country with Y in 2006 bears it out. Both of them were aware that she was depressed and having difficulty coping, at the very least after, X was born, particularly when F went into hospital for a month.

At the end when X died M was severely mentally ill and lacked insight into what she was doing. M cannot be criticised for being depressed or for finding it very difficult to cope with a sick old man, a little girl and a baby to care for; but she and her husband can be criticised for failing to seek help earlier on when help was sorely needed. Her deteriorating mental health was noticed by her neighbour over the month prior to the baby’s death.

Before X died. Both F and M have either chosen to forget or not been able to remember what happened the night before X died. M cannot remember what led to her killing the baby on that morning; she was in a florid state of mental illness. Most of the details that are known are from the statements taken by the police of witnesses. M left with the baby in the car and abandoned the vehicle. She called a cab but was very vague both as to her destination and the purpose of her journey; she seemed to believe it was at the behest of her husband.

F called an ambulance at about 6 am the previous morning. The ambulance attended to take F to hospital and found Y (then 6 years old) asleep. The police were called and they arranged with another police force to return M and the baby so Y could be placed with her at home. M seemed to be looking after the baby well; X was seen to be happy and content. There was no indication, least of all from M herself that she was suffering from depression, felt unduly stressed or was mentally ill.

Late on the night before the baby died M had a further brief sexual encounter with the same man. He heard a baby crying and said in his statement that M was anxious to see to the baby. There is no further evidence about what happened that night from M or any other source until a neighbour saw M who had cut her wrists the following morning. M had called the emergency services; there is a transcript of the calls she made. This was shortly followed by the arrival of the police and the ambulance.

I have not set out all of the evidence above just that which is relevant to the disputed facts and to form such narrative as there can be in the absence of a full and coherent explanation from both of the parents. M cannot recall what took place on the morning X died because she was so mentally unwell at the time. But she has, in my view deliberately, failed to set out the life that she and Y led prior to Y being taken into care. It is more likely than not that she has done so in order to minimise the difficulties she encountered and the effects of her chosen lifestyle on her daughter. It is also likely that M did so in the hope that it would help her resume the care of Y in the future as she sets out in paragraph 19 of her statement. This stance, while understandable, undermines her claim to support Y’s placement with MA; and, if conveyed to Y, would tend to undermine the placement itself. Even if M recovers and is released it would be some years before she could travel to the foreign jurisdiction. Y will be well settled, probably in or about to start secondary education and any attempt to move her would not be conducive to her long-term stability and welfare during adolescence. It is the view of this court that no such move or application to the courts of the foreign jurisdiction to bring about such a move should be contemplated, in the light of the findings I have made.

In respect of finding 1: I find on the balance of probabilities and on the evidence of the parents themselves that Y and her mother have had a peripatetic lifestyle during which there was no semblance of stability. The moves were not made as part of any planned pattern related to work or career progression as is usually the case when families move with this level of frequency. There is no evidence of what the family lived on; there is little or no evidence of integration into any local community or wider society. Even when in the UK which is the longest period the family were in one place; there is no evidence of settlement or integration. Indeed F’s evidence is that M wanted to move on again. It cannot be disputed that F dipped in and out of Y’s early life and that his role as a parent has been diminished by his need for M to care for him. There is no evidence that he has ever taken on a caring or nurturing role for any of his children, some of whom he cannot even name. This must have affected Y’s emotional security and development and her needs have always come second to the wishes of her parents.

Y’s behaviour alone gives rise to considerable concern about sexual boundaries within the home. The masturbation seems a pernicious and a well established pattern of behaviour which must have been learnt and most probably encouraged. It is not acceptable behaviour for a child of this age and it is likely to be emotionally damaging to have sexual feeling aroused at an early age. Y has already suffered emotional harm as a result, which is attributable to the care of her parents. While there is no evidence to support any finding of direct physical sexual abuse there is evidence on the balance of probabilities from her behaviour that, at the very least, Y has been exposed to uninhibited sexual behaviour and, it must follow, inappropriate sexual boundaries. Given the explanations of both parents of their belief in sexual healing during the police investigation and criminal proceedings and the evidence of the man with whom M had sex during the summer prior to X’s death it is more likely than not that they continued their sexual practices throughout their marriage.

Finding 2 is not disputed and therefore it must follow that finding 3 (e) cannot be disputed either. I find that from March to September that year M was the children’s primary or sole carer. There is little, if any, evidence from any source that F participated in the care of the children before March and none at all after March. He did not attempt to get any treatment for M as her mental health deteriorated again; in fact according to him part of the reason he decided against such a course is that it would have deprived him of a carer.

As Y was present at home during the period her mother’s mental health worsened it was inevitable that she would have been aware of her mother’s delusional beliefs and acutely anxious behaviour. It is difficult to see such behaviour could have done anything other than frighten and worry her. I find 3(g) proved. Neither parent took any steps to protect Y from the consequences to her of her mother’s being mentally unwell nor have they provided any evidence about how they may have attempted to do so. They should have sought professional help, they did not do so. 3 (h) is proved on the balance of probabilities.

It is the evidence of F as contained in his police interview that the relationship between him and M was deteriorating; he spoke of rows and of them both crying. His assertion that his would not have affected Y serves only to illustrate his almost total lack of insight into how a small child might be affected by witnessing and/or being aware of such behaviour in her parents. I find 4 is proved in its entirety.

5 is not disputed.

As to 6 with reference to the opinion of the pathologist as set out above and the undisputed and unchallenged evidence of the witnesses first on the scene when the baby was found I find that X’s death was more likely than not caused by drowning at the hands of her mother; the precise circumstances of the drowning are not known and cannot be ascertained.

F has failed to provide any information or input into life story work for Y. This stance is reflected in the missing parts of the history as set out in this judgement. He has declined any contact with Y since he told her that her sister was dead. He has in fact and in deed abandoned her. He has made absolutely no efforts on her behalf, offered no reassurance, no love and undertaken not one single act of sympathy or care for his little daughter. His illness is no excuse as he has both visited and supported his wife in secure hospital. His police interview was self-obsessed and self-reverential; he is a father of breathtaking selfishness who is only concerned for himself and his own comfort. He has failed his child.

F failed both his children by putting his own interests in having M available to care for him before their needs and well-being. He also failed his wife by choosing not to do anything, at all, to get her the help and support she so badly needed as her mental health deteriorated before his eyes. F deludes himself if he believes himself to be a guide or healer of any description.

As a result of the findings and the undisputed facts of this case 8 is proved to the required standard of proof. Y remains at risk of significant harm over and about that which she has already suffered because her father cannot and will not provide the care that she needs. Her mother is currently detained under a hospital order (with restrictions) and she is considered to pose a risk to her own children.

Even on release, given her history, there is more than a possibility of relapse with further risk of significant harm to any child in her care.

This is my judgement