A REPORTING RESTRICTION ORDER IS IN FORCE. IT PROHIBITS THE IDENTIFICATION OF THE SURVIVING CHILDREN OR THE MOTHER, OR THEIR HOMES, SCHOOLS OR NURSERIES. IT DOES NOT PREVENT THE NAMING OF POPPI, OR HER FATHER, OR THE REPORTING OF THE CIRCUMSTANCES OF HER DEATH. THE JUDGE HAS GIVEN PERMISSION FOR THE JUDGMENT (AND ANY OF THE FACTS AND MATTERS CONTAINED IN IT) TO BE PUBLISHED ON CONDITION THAT ALL PERSONS, INCLUDING REPRESENTATIVES OF THE MEDIA, MUST ENSURE THAT THE REPORTING RESTRICTION ORDER IS STRICTLY COMPLIED WITH. FAILURE TO DO SO MAY BE A CONTEMPT OF COURT.
Before :
THE HONOURABLE MR JUSTICE PETER JACKSON
Between :
F | Applicant |
-and- | |
Cumbria County Council M The Children (by their Children’s Guardian) | Respondents |
Karl Rowley QC and Jenny Scully (instructed by Livingstons Solicitors) for the Father
Jane Cross QC and Peter Rothery (instructed by Cumbria County Council) for the Local Authority
Gillian Irving QC (instructed by Denby Co Solicitors) for the Mother
Janet Bazley QC and Carly Henley (instructed by Bendles Solicitors) for the Children’s Guardian
Hearing dates 25, 26, 30 November, 1 and 4 December 2015
Judgment date 19 January 2016
JUDGMENT (No. 7) : F v Cumbria County Council and M (Fact-Finding No. 2)
Mr Justice Peter Jackson:
Introduction
This has been a further hearing in family proceedings that concern the sisters and brothers of Poppi Worthington, who died on 12 December 2012. It follows an application by Paul Worthington, the father of Poppi and of two of the other children. In the course of the hearing, evidence about the interpretation of post-mortem findings was given by six professional witnesses, three of whom had given evidence at an earlier fact-finding hearing in March 2014. That evidence must now be put together with the evidence given at the earlier hearing so that a final conclusion can be reached.
The recent hearing and the judgment can be reported, provided the terms of the reporting restriction order made on 14 January 2015 are complied with. This prohibits the identification of the surviving children or their mother, or their homes, schools or nurseries. It does not prevent the naming of Poppi, or her father, or reporting of the circumstances of her death, provided that any report would not lead to the identification of the surviving children or their mother.
This judgment is arranged in the following way:
A Description of the proceedings
B Publicity
C Fact-finding in the Family Court
D The March 2014 findings
E The further evidence
F The submissions of the parties
G Conclusion
A DESCRIPTION OF THE PROCEEDINGS
There are three possible courts in which the circumstances of Poppi’s death might have been investigated: the Coroner's Court, the Crown Court and the Family Court. I deal with each of these as they relate to this case.
The Coroner’s Court
A coroner's inquest is held where a death was violent or unnatural or where the cause was sudden and unknown. The purpose of the inquest is to publicly establish the identity of the deceased, the place and time of death, and how the deceased came by her death.
In this case, Her Majesty's Former Senior Coroner for South and East Cumbria opened an investigation shortly after Poppi’s death. An inquest was held on 21 October 2014. No evidence was called. The coroner indicated that he had taken account of and adopted the factual findings made by this court in March 2014, but said that he was unable to refer to the findings because of reporting restrictions imposed by this court. The part of the record that is headed "How, when and where the deceased came by his or her death" was left blank.
After disquiet was expressed about this procedure, an application for a new inquest was made by the newly appointed Senior Coroner for Cumbria under the authority of the Solicitor General, acting for the Attorney General. On 22 July 2015, the Divisional Court (Burnett LJ and Holroyde J) granted the application: [2015] EWHC 2465 (Admin), saying that:
"The effect of the procedure followed by the coroner in this case was… to take all the evidence in private. It should not be forgotten that the death of Poppi was investigated and required a coronial investigation because there is reason to suspect that her death was violent or unnatural and because of the uncertainty over the cause of death. It hardly needs stating that the public investigation of such deaths is of great importance. [It] follows that the inquest which was conducted last October was irregular because it failed to perform this central function. Furthermore, it did not result in the recording of the facts which are required by the statutory scheme…. This conclusion is sufficient for the application to succeed."
A new inquest will therefore take place after the conclusion of these proceedings. Its scope will be a matter for HM Coroner, who will consider whether the case is suitable for the application of guidance published in April 2014 by the Chief Coroner with the approval of the President of the Family Division: "Family Court Proceedings - Findings of Fact Admissibility In The Coroner's Court". This allows a coroner to introduce as evidence any findings of fact made in family proceedings, a procedure designed to avoid the need to hear the same evidence more than once, save for good reason.
The ongoing reporting restriction order should not cause difficulty for the conduct of the inquest, but this court will offer any co-operation that it can to ensure that this is so.
The Crown Court
Criminal prosecution will only occur if the Crown Prosecution Service considers that there is sufficient evidence for a realistic prospect of conviction. In order to convict, a jury must be satisfied beyond reasonable doubt of the guilt of the defendant, i.e. to the criminal standard of proof.
In this case, the parents were arrested on 27 August 2013. They were interviewed on the following day and released on bail. On 16 March 2015, Cumbria Constabulary announced that neither parent would face criminal proceedings. No one has therefore been charged with, still less convicted of, any criminal offence in relation to Poppi.
The Family Court
Care proceedings are brought by local authorities in the Family Court if it is considered that children have suffered or are at risk of suffering significant harm and that it would be in their best interests for a care order or a supervision order to be made. The court makes any necessary findings of fact on the balance of probabilities, i.e. on the civil standard of proof.
In this case, Cumbria County Council issued care proceedings in relation to the surviving children on 23 October 2013. On 8 November 2013, the children were placed with a family member and on 8 January 2014, they moved into foster care.
In March 2014, the matter came before me for a fact-finding hearing concerning Poppi’s injuries and death. The local authority’s case was that Poppi had been assaulted by her father at the time of her death and that she had died as a result. This allegation had to be investigated so that the court could make decisions about the future of the other children. On 28 March 2014, having taken evidence for eight days, I gave a judgment in terms that appear below. For present purposes, it is enough to record that I found that the father had perpetrated a penetrative anal assault on Poppi at or around the time of her death, but that the cause of death was medically unascertained. There was no appeal against those findings.
On 7 October 2014, after a number of welfare assessments had been carried out, I made care orders in relation to the other children. In normal circumstances, that would have marked the end of the family proceedings.
However, on 7 April 2015, the father issued the application that is now before the court in relation to his own children. Using evidence arising out of the further police inquiry, he applied to discharge the care orders and for contact orders. This application was in effect a request for the March 2014 findings to be reconsidered. The request for a further hearing was opposed by the local authority and the mother but supported by the Children's Guardian.
A central element of the father's application was the contention that the new medical evidence offered an alternative explanation for the bleeding found at the time of Poppi’s death. This was in the evidence of Dr Cary, who had advised the police in December 2014 that "The finding of anal bleeding when the deceased was examined at the hospital is consistent with the presence of mucosal haemorrhage." and "Importantly this child was clearly suffering from an active viral infection which affects mucosal surfaces."
In granting the father's application, I said this:
At the original hearing, the main medical evidence came from three pathologists, Dr Alison Armour, Dr Stephania Bitetti and Dr Stephen Leadbeatter, and from Dr Victoria Evans, a paediatrician. Their opinions coincided in some respects and diverged in others. I substantially accepted the evidence of Dr Armour.
As a result of the fact-finding judgment, the police commissioned further medical enquiries. Opinions have now been given by Dr Nathaniel Cary (pathologist) and Dr Liina Kiho (histopathologist). Their views diverge in a number of respects from those of Dr Armour. An opinion has also been obtained from Dr Victoria Aziz, who is described as a forensic examiner.
…
In my view, the further evidence contains matters of mixed fact and opinion that deserve further consideration. In particular, it contains an alternative unifying hypothesis for the post-mortem appearances. That hypothesis was not overlooked at the earlier hearing, but it did not receive the degree of attention that is now being paid to it…
The circumstances in which the court will reopen established findings of fact are rare. There is a public and private interest in litigation being final. The impact of a renewal of the litigation on the family members can be significant, as is undoubtedly the case here. Further proceedings are also expensive, in this case to the public, and consume court time that is needed for other cases.
…
The considerations that persuade me that justice requires that a further hearing should take place are these:
The finding of fact addressed in the more recent evidence is of central importance for the family. It is of a kind that determines the children's future and is of great significance to the parents.
It will be important for the children to have an accurate understanding of what happened to their sister. The more recent evidence has the effect of raising doubt about the existing conclusion. The children’s welfare requires that the matter is resolved.
The more recent evidence, like the previous medical evidence, comes from a reputable source; further, it was commissioned in response to concerns expressed by this court about the earlier police enquiry.
While the outcome of a further hearing cannot be foreseen, it is possible that a review of the overall medical evidence may lead to a different conclusion. It may, or it may not. What can be said is that there is a serious issue to determine in the light of the further opinions.
I indicated that the further evidence was likely to be limited to medical evidence, and so it has proved.
B PUBLICITY
On 16 January 2014, the President of the Family Division issued Practice Guidance on the publication of judgments in the Family Court: https://www.judiciary.gov.uk/publications/transparency-in-the-family-courts/
The guidance relevantly states that a judgment in a substantial, contested fact-finding hearing at which serious allegations of abuse have been determined must ordinarily be published. However, the judge must have regard to all the circumstances, including the effect of publication upon any potential criminal proceedings.
The fact-finding judgment in March 2014 was not published at that time for two reasons: the risk of prejudicing any criminal proceedings in respect of which a charging decision was awaited, and the need to protect these vulnerable children and their mother from public identification at a particularly sensitive stage in the planning for the children's future.
In addition to the court’s duty to determine whether or not a judgment should be published, there is a power that can be exercised by the High Court to make reporting restriction orders where necessary for the protection of individuals or the interests of justice. Such orders are made sparingly, bearing in mind the importance of free speech.
On 27 June 2014, the local authority applied for a reporting restriction order in wide terms. The scope of the restrictions was challenged by a consortium of media organisations and on 11 July 2014, I made an order in narrower terms.
In a further judgment given on 28 July 2014, I granted a request made by the media for its lawyers to be provided with a copy of the fact-finding judgment: [2014] EWHC 2596 (Fam) http://www.bailii.org/ew/cases/EWHC/Fam/2014/2596.html.
After the coroner's inquest on 21 October 2014, I made a public statement on 27 October 2014 to explain why a reporting restriction order had been made and why it was not possible to publish the fact-finding judgment at that point. I acknowledged the concern that existed when the circumstances of a child’s death were not made known: https://www.judiciary.gov.uk/publications/family-court-public-statement-poppi-worthington/
On 14 January 2015, having received further submissions from the parties and the media, I relaxed the reporting restriction order in one respect. The resulting order, whose terms have been summarised above, remains in effect.
At the hearing in January 2015, I published a redacted note of the reasons given for the reporting restriction order in July 2014: [2014] EWHC 4486: http://www.bailii.org/ew/cases/EWHC/Fam/2014/4486.html
A hearing was fixed for 30 March to consider the publication of the fact-finding judgment. At that stage, a charging decision was still awaited; it was finally announced on 16 March.
At the hearing on 30 March, the father notified his intention to seek a reopening of the fact-finding decision, and a date was fixed for 23 April for the application to be considered. I declined to publish the 2014 judgment in the meantime: [2015] EWHC 918 (Fam) http://www.bailii.org/ew/cases/EWHC/Fam/2015/918.html
On 23 April, I granted the father's application for a further hearing: [2015] EWFC 35 http://www.bailii.org/ew/cases/EWFC/HCJ/2015/35.html. I said this about the issue of publication:
As to the publication of the original judgment, I remain on view that this is not appropriate at this point in time, for the reasons given on 30 March. However, I have expressed a provisional view that it should be published at or around the time that the rehearing begins, rather than it being withheld until that hearing ends. There is a proper public interest in the course that these proceedings, and the other procedures surrounding Poppi's death, have taken. The media will be able to describe matters more effectively if the original findings can be described at the point when they come under review. I have also raised the possibility of the further hearing taking place in public. I will hear from the parties and the media about these issues at the next directions hearing.
The further fact-finding hearing was fixed to begin on 23 November. The question of publicity was considered at a final directions hearing on 2 November, when I heard submissions from the parties and the media orally and, subsequently, in writing. Having done so, I directed that the main part of the 2014 judgment would be published at the outset of the further hearing. The published sections would include a narrative of the events surrounding Poppi’s death, an account of the concerns expressed about the investigations that followed, and a summary of the medical evidence that was then available. The only part of the judgment that was not to be published was the section containing the court's findings, which would be published following the further hearing. As to the conduct of the hearing, I directed that it would take place in private but that, subject to any directions given during the course of the hearing, there could be daily news reporting. The judgment at the end of the further hearing would be given in public.
That order was subject to an appeal by the Children's Guardian. This was heard as a matter of urgency on 23 November by the Court of Appeal (McFarlane LJ, Macur LJ and King LJ). It was allowed to the extent that the Court of Appeal required certain further redactions to be made to the 2014 judgment. These were duly made and the resulting document was published on 25 November: [2014] EWHC 4886 (Fam) http://www.bailii.org/ew/cases/EWHC/Fam/2014/4886.html. The Court of Appeal's reasons are awaited.
The general position is that the media has since April 2009 been able to attend hearings in the Family Court, as a result of Practice Direction 27B to the Family Procedure Rules 2010. Hearings themselves remain private, but significant judgments should be published. In cases involving serious medical treatment for children and incapacitated adults, the Family Court and the Court of Protection sit in public, but the identities of the individuals are usually protected by reporting restriction orders. On 19 November 2015, a pilot scheme was announced under which hearings in the Court of Protection will be held in public, subject to reporting restrictions where necessary: https://www.judiciary.gov.uk/announcements/court-of-protection-to-test-increased-access-for-public-and-media/
There has therefore been a move in recent years in the direction of opening the work of the Family Court and the Court of Protection to public scrutiny. At the same time, there is a need to protect the children and adults who are the subject of the proceedings: it is no use taking great care to make decisions that protect their welfare if publicity exposes them to unnecessary harm.
My assessment in this case is that the balance shifted from the early stages, when the court’s proceedings had to remain private, to the present time when it is right for much more information to be given. There is a strong public interest in receiving information about the circumstances of Poppi’s death, now that the main obstacles to this happening have been removed. Even so, the children and their mother will be affected by publicity, and require the ongoing protection of the reporting restriction order.
The ability of the media to report a hearing of this kind on a day-to-day basis is unusual and the arrangements here are probably unprecedented. At the outset, ground rules were discussed and established, as follows:
The reporting restriction order made on 11 July 2014 and varied on 14 January 2015 remains in effect. Copies have been provided.
The hearing is taking place in private. Accredited media representatives may attend and are asked to sign in on a daily basis.
Any media representative who attends will be provided with the full 2014 judgment, the medical reports, the minutes of the experts’ meetings, the schedules of agreement and disagreement and the summary of medical evidence. These documents are for information, to assist with understanding the course of the hearing, and they are not for publication. They can be removed from court but they are to be kept safe and are not to be copied or given to others.
The media may report daily on the proceedings on these conditions:
Such reporting is subject to any further directions given by the court concerning what can and cannot be published if an issue arises during the course of the hearing.
Reporting (whether by live reporting, Twitter or otherwise) may not take place until after the court proceedings have concluded on any given day, so that the court has had an opportunity to consider whether any additional directions are required.
Until the publication of the final judgment, nothing is to be reported that might directly or indirectly indicate the findings that the court made in March 2014.
The final judgment, when available, will be published. At that point the full 2014 judgment will also be published.
Any queries about the ground rules should be addressed to court staff who will consult with the parties and with the court as necessary.
A copy of these rules was placed in the civil jury box where, as it happens, the media sat during the hearing. On the first two days, eight media representatives attended, with the number reducing on subsequent days. On a few occasions, issues about what could or could not be published were raised by a party or a journalist, and these were easily resolved. The opening of the hearing was extensively reported, with less coverage thereafter.
I repeat what I said at the outset of the hearing:
"I would like to emphasise that the unusual package of arrangements for this hearing arises from the application of existing law to the exceptionally unusual circumstances of this case. These arrangements do not establish new law or practice in the Family Court and they are not intended to set a precedent for other family cases."
I nonetheless record that the conduct of the journalists in court was entirely professional and their presence did not adversely affect the hearing; on the contrary, their attendance may be said to have reflected the seriousness of the occasion. The media’s ability to observe the court going about its work in this particular case, and to report and comment on the outcome and the process, has in my view been a valid exercise.
Finally, as part of the overall arrangements, this judgment was sent to the parties (but not to the media) a week before publication. This was to give advance notice to family members and to enable the children to be supported.
C FACT-FINDING IN THE FAMILY COURT
In family proceedings, as in other civil proceedings, the burden of proving a fact rests on the person who asserts it. The standard of proof is the balance of probabilities: Is it more likely than not that the alleged event occurred? Neither the seriousness of the allegation nor the seriousness of the consequences alters this.
On behalf of the father, it is submitted that I should require evidence of particular ‘cogency’ or ‘clarity’ before being satisfied that such a very serious or improbable event has occurred. I reject this invitation. Evidence is evidence. Whether it satisfies the necessary standard of proof depends on an ordinary assessment of its reliability, not on it having some special quality that changes from case to case.
However, it is a cardinal principle that the court acts on proven facts, not on concerns or suspicions. Anything less would be unfair to individuals and deprive parents of protection against arbitrary interference by the state in their family life.
On the other hand, the Family Court judge does not have to be satisfied beyond reasonable doubt that an event has occurred. Requiring the higher criminal standard of proof would deprive children of protection from mistreatment and abuse. Moreover, the evidence that can be admitted in the family courts is likely to be more extensive than would be admitted in a criminal trial.
The consequence is that the criminal and family processes may arrive at different outcomes. Recent examples from my own experience are:
The case reported as Wigan Borough Council v Fisher & Ors [2013] EWHC 3770 (Fam) and Wigan Borough Council v Fisher & Ors (Rev 1) [2015] EWFC 34, where I found that a father had caused severe injuries to his baby daughter. He was subsequently acquitted by a jury.
Wigan Council v M & Ors (Sexual Abuse: Fact-Finding) [2015] EWFC 6, where I found that a step-father had sexually abused his two step-children. No criminal charges have been brought.
Accordingly, the fact that Mr Worthington has not faced criminal proceedings does not relieve this court of the obligation to assess the evidence and reach its own conclusions according to the law.
Where there is contested expert advice, the temptation to tailor the assessment of evidence to fit with an attractive unifying hypothesis should be resisted. A conclusion that the cause of a medical finding is unknown is a respectable conclusion, not a failure.
I have been referred to authorities in relation to rehearings, in which reference is made to previous findings as a starting point, with the legal burden of proof remaining with the local authority and an evidential burden resting on those seeking to challenge the previous findings. In practice, my approach has been to add the evidence and arguments received at this further hearing to the evidence and arguments received in March 2014, and to reach a conclusion based on all the relevant information.
The hearing has been confined to a review of the medical/pathology evidence. The parties are aware of further investigations arising from Poppi’s death, for example by the Independent Police Complaints Commission, but no application was made for new evidence of this kind to be admitted. Previous findings of fact that do not rest on the medical/pathology evidence have therefore not been the subject of challenge, though the effect upon them of the evidence as a whole must be considered.
It is nonetheless convenient to start my review of the evidence with a summary of the March 2014 judgment.
D THE MARCH 2014 JUDGMENT
The earlier judgment, which will be published in full alongside this judgment, can be summarised by reference to paragraph numbers, with extended extracts from central passages:
Introduction – family members – unexpected death of Poppi – suspected acute injuries in region of anus – earlier fracture of leg – mother's history – father's history
The allegations against the parents – that one or other caused leg fracture – that both were culpable for not seeking medical treatment – that the anal injuries were caused by father – that Poppi died as result – the parents’ denials – the Guardian’s position
The law – fully summarised
The family background – the parents’ relationship – the birth of the younger children – the father’s absences
Poppi’s last day:
On 11 December 2012, P got up at her usual time of around 6.00 to 7.00 am and had breakfast as normal. The mother says she seemed to have a bit of a cold and she slept for rather longer than usual during the day. C, S and P were left at home with the father while the mother took AM, J and A to school, and then returned home. A friend of the mother’s called round with her daughter. P was put in her cot to sleep and woken by her mother. The mother says she felt warm and that she gave her Calpol. The mother then left to collect the children from school, leaving P and S with the father. When she returned, the maternal grandparents came round to the house with their three grandchildren. They stayed for about half an hour. After they left the only people in the home for the rest of the night were the parents and the six children.
P was given her tea. She was changed and put to bed around her usual time of 7.00 to 7.30 pm. I find that it was the father who changed her and the mother who put her into her cot. Having regard to the garments that P was wearing when admitted to hospital, I find that the mother is probably correct in her memory that she was put to bed wearing a nappy, a vest that fastened between the legs with poppers and a pair of pyjamas. I prefer this to the father's statements that she was wearing a babygro or an all in one suit.
There are three upstairs bedrooms. The three older children shared one bedroom. P slept alone in a box room in a cot. C and S slept in cots in the parents' bedroom.
Poppi’s death:
By about 8.00 pm the children were all in bed. The mother, who often slept downstairs on a large settee, carried out some household tasks and then watched television. At about 9.00 pm the father went upstairs with his laptop and went to bed. He followed some sports results on which he had gambled and then watched pornography, which he describes as involving adults, before falling asleep at about 10.00 pm.
At about 2.00 am the mother, who had not yet been to sleep, went upstairs to fetch the laptop for her own use. She may have got into the bed briefly but, noticing that S was snuffly, she took him downstairs to sleep with her. After using the laptop for a short while, she fell asleep. At some point in the night, A, who is a poor sleeper, came downstairs to sleep on the settee.
The father says that he was woken in the early hours by a scream or a cry from P. He went into her room and found her sitting in the corner of her cot. She was rigid and stiff and he thought that she may have had a bad dream. He picked her up and cuddled her and took her to his room. He sat down on the edge of the bed with P on his lap. He tried to give her her dummy, but her teeth were clenched and she would not open her mouth. He thought that she was trying to pass a stool and he undid her clothing to see what was in her nappy. He describes loosening the sticky tabs on the nappy. He thought from the smell that she had passed a stool. She became relaxed and stopped screaming. He laid her on the bed crossways with her head on a pillow. At this point AM woke and shouted ‘P’s woke me up’ and came to the doorway of her room. He told her to go back to sleep. He then went downstairs to fetch a clean nappy. While there, he exchanged a few words with the mother about what he was doing, and then went back upstairs. P was quiet so he did not disturb her but instead got into bed himself. After a few minutes he for some reason put out his hand and touched P. He realised that something was wrong. She was limp. He picked her up and ran downstairs, calling for the mother to get an ambulance.
The mother says that she was woken by P crying out loud and then heard the father upstairs. Thinking that he was dealing with her, she went back to sleep. She was aware of him coming downstairs and mentioning the time and that P had pooed. She then drifted back to sleep and was woken by the father shouting. She immediately got up and met him at the bottom of the stairs, carrying P in his arms.
Arrival of the emergency services:
At 5.56 am the mother called 999. The father attempted to perform CPR, placing P on a chair and then on the floor. He removed her nappy and pulled up her clothing. An ambulance arrived at 6.05 am. The paramedic describes P as being very pale, waxy and obviously not breathing. She picked her up and ran out of the door with her. On picking P up she noticed she was slippery and wet around her bottom. The paramedic was wearing gloves which were thrown away in the ambulance.
P was taken to hospital in the ambulance, accompanied by her father. On the journey, the paramedic and the father continued to attempt resuscitation. The cardiac monitor showed that P's heart was not beating.
Resuscitation attempts at hospital:
At 6.11 am the ambulance arrived at the hospital. A staff nurse collected P from the ambulance and took her immediately to the resuscitation room.
After P was collected from the ambulance, the paramedic who had been with her saw a mixture of blood and faeces on the stretcher sheet. The sheet was not preserved. She went into the resuscitation room and noticed there was blood on P’s bottom. She went to the relatives’ room and spoke to the father. She mentioned the blood and recalls the father saying P had been constipated for the last couple of days and had only been passing light brown ‘rabbit droppings’.
Present in the resuscitation room during the attempt to resuscitate P were Dr B, Locum Consultant Paediatrician who led, Dr A, Associate Specialist Anaesthetist, Dr M, Associate Specialist in Accident and Emergency, and a number of nurses.
Unsuccessful attempts to resuscitate P continued for about 57 minutes, during which time she received fluids and adrenaline. A needle was inserted into each lower leg before venous access was obtained through the left femoral area. Difficulties were experienced by Dr A in the insertion of endotracheal and nasogastric tubes and in the end a tube was passed through the mouth by Dr B. The mother arrived at the hospital during the course of the resuscitation.
Resuscitation ceased and P was pronounced dead at 7.07 am.
Subsequent examinations at hospital:
After P was pronounced dead she was examined by Dr B. He observed fresh bright red blood in the area of the anus and some faeces. In his medical note he described the blood as “pouring from her rectum” and said that the anal opening was “large and irregular”. In oral evidence Dr B (whose first language is not English) said that “dribbling” was a more accurate description than “pouring”. However, because he was not asked about this for over a year, the difference of emphasis only became clear during his evidence at this hearing.
Sometime before 7.30 am P was moved to the children’s ward. A nappy was put on her. She was then moved to the mortuary at around midday and was subsequently transferred to the Royal Manchester Children’s Hospital where x-rays were taken on 14 December.
The actions of the police at the home:
The police were alerted to the situation and two officers arrived at the home before the ambulance left. One (PC H) remained until 7.22 am when she was relieved, while the other went on to the hospital. PC H noted a used nappy on the floor near the fireplace. This is now believed to be the last nappy worn by P.
The paternal aunt arrived to look after the other children. The mother then left with the grandparents to go to the hospital. At 7.40 am the grandparents returned to the property.
After her arrival, the aunt removed the used nappy from the floor. She placed it in a bag and put it into a bin outside, telling one of the officers that she was doing so. She describes the contents as containing shades of dark brown very runny stool, like diarrhoea. She says that “there was a lot of it, too much to fasten the nappy tightly, or it would have seeped from the sides … it was bad”.
At 9.40 am a Crime Scene Investigator attended the property and took photographs and a video. She returned at 15.30 and took further photographs.
Between 3.10 and 4.15 pm four officers carried out a search of the home. Five used nappies were retrieved from the kitchen and from the outside bin but these did not include the nappy that the aunt had disposed of. After the search was completed no officers remained at the home.
The actions of the police at hospital:
In the meantime, P’s clothing was retained at the hospital. It consisted of a grey pyjama top and a pink baby vest.
At 10.15 am DI S, the senior investigating officer on the scene, attended hospital with a colleague. They spoke to Dr B and saw P’s body. Her clothing was removed for that purpose. They observed no visible injuries or bruising. There was no blood in her ears, nose or mouth. There was some bleeding coming from the anus which appeared when P was moved and which trickled onto her leg.
Both parents were spoken to at hospital. At 7.35 am Dr B spoke to the father in the presence of PC B [G22a]. At about 8.00 am Dr. B spoke to the mother in the presence of PC C [G26b].
During the course of the morning, the father visited the toilet to urinate on at least one occasion.
Between 12 noon and 4.05 pm a detailed account was taken from the father by DC C at the hospital and then at the police station [G104a]. At the conclusion, swabs were taken from the shaft and tip of the father’s penis.
The mother’s first account was taken by DC B [G122a].
On 14 December, a skeletal survey was performed, revealing the broken bones in the leg.
Subsequent events:
Following P’s death, the family moved to live with the grandparents. The local authority requested the mother to supervise the father’s contact with the children. On 3 January, the mother told the allocated social worker that they would be moving back home because conditions at the grandparents’ home were overcrowded. In response, the parents were invited to an informal interview with police and social services the following day, when they were informed for the first time that the leg fractures had been found. Neither parent could account for them. The family was then allowed to return to the family home with the agreement of police and social workers. There was no requirement placed on the mother to supervise the father’s contact with the children.
It was not until 9 January 2013 (four weeks after P’s death) that the surviving children were medically examined. No skeletal surveys were carried out.
P’s body was released by the Coroner and she was buried on 19 February 2013.
The post-mortem
HM Coroner instructed Dr Armour, Consultant Pathologist and Dr Bitetti, Consultant Paediatric Histopathologist to conduct the post-mortem. Because of their commitments, this could not take place until 17 December, five days after death.
Immediately before carrying out the post-mortem, Dr Armour and Dr Bitetti were orally briefed by DI S and DS C. During that discussion, mention was made of the old allegations against the father. DS C says that before embarking on the post-mortem Dr Armour referred to the leg fractures and said that she believed that this was a case of child abuse. I make no finding about this; it was not put to Dr Armour as it only emerged during cross-examination of DS C some days after Dr Armour had left the witness box. At all events, the officers and their superior officer DCI F considered the pathologist to have made a rash statement.
On 18 December, Dr Armour telephoned DI S to express concerns that there could have been penetration of the anus by a penis or object and that she was very worried about bruising to the thorax. She also described the fracture as being very unusual for a child of this age. Nonetheless, on the same date, DCI F refused to authorise the forensic testing of any samples or items seized, save for P’s blood.
The pelvic organs were retained for formalin fixing and were examined by Drs Armour and Bitetti on 21 December.
On 24 December, Dr Armour again telephoned DI S to inform her that she did not think that death was due to natural causes but rather to an unlawful act, and that the anal injuries were due to insertion or penetration.
Extraordinarily, Dr Armour’s report was not completed until 25 June 2013 and Dr Bitteti’s final report not until 3 July 2013 (though in her case an interim report was filed in February). Dr Armour explained that in a case of this seriousness, she wanted to have all the histology results before committing herself. However, this should not have prevented her from filing an interim, albeit provisional, report.
The post-mortem reports identify: -
Healing fractures of the right fibula and the right tibia.
Anal injuries comprising: -
distended and dilated anal orifice;
bruising/haemorrhage; and
tears and abrasions.
A bruise to the parametrium (the fibrous tissue that separates the supravaginal portion of
the cervix from the bladder) measuring 2.5 cm by 1 cm;
Bruising to the pharynx/oesophagus;
Nasal bleeding; and
Intra-alveolar haemorrhage - bleeding into the lungs.
The reports indicate that the cause of death is unascertained. There is no disease process evident that could account for the sudden death of P.
Dr Armour opines that the anal injuries result from penetration by a penis or penis-shaped object. As to cause of death, she proposes two possible mechanisms, referred to below.
Whether Dr. Armour’s opinion is correct is heavily in dispute.
Forensic science:
In August 2013, Mr Michael Scarborough of LGC Forensics was instructed by the police to carry out forensic tests. He reported on 21 August that tests showed P’s DNA was present on the shaft of the father’s penis, but there was no DNA from P on either the glans (the tip) or the coronal sulcus (where the tip and shaft join). Nor was there any blood or faecal matter on the penile swabs, as would be expected if there been insertion of the penis into the anus, though this would not be inevitable.
Mr Scarborough advises that there is no test that could attribute the DNA found on the father’s penis to a particular bodily fluid. It is possible that the presence of DNA on the shaft of the penis is the result of secondary transfer, with the DNA finding its way onto the father’s hands during attempts to resuscitate P and then being transferred to his penis during urination. DNA could have been removed from the tip of the penis by wiping or washing it, something the father says he did not do on the day in question.
Tests for semen on swabs taken from P’s mouth proved negative. The sheet taken from P’s cot proved negative for blood and for semen.
In November 2013, Mr Scarborough reported the results of tests for semen on swabs taken from P’s anal rim and rectum. They were negative. Mr Scarborough advises that if the father’s vasectomy was effective it would be more difficult to test for semen and you would not expect to find sperm cells. Any material deposited in the anus could have been washed away by blood or defecation.
In February 2014, Mr Scarborough reported the results of tests carried out on one of the nappies retrieved from the bin outside the property [SS/8]. No blood was found in the nappy, which contained significant amounts of DNA from P and a male other than the father, but no evidence of the father’s DNA.
The parents’ arrest – interviews – CPS decision awaited
Actions of the local authority – strategy meetings – misinformation from Dr W – children remain at home – children finally removed
The family proceedings
The trial in March 2014 – oral evidence – agreed documents
Concerns about professional response – Cumbria Constabulary – Cumbria County Council – the coronial investigation – the NHS Trust – the Local Safeguarding Children Board – collective responsibility
The broken leg – causation – failure to seek medical attention
I therefore find that the local authority has not proved that the fractures were caused by one or other of the parents, whether deliberately, negligently or by accident, but that it has established that the parents failed to obtain medical care for P in relation to a serious injury that they either knew or ought to have known she had suffered.
Having reached this conclusion, I further conclude that the evidence in relation to the leg fracture is of no assistance in my assessment of the cause of P’s presentation at death. The two conditions are different in time and type and I cannot in this case bring findings from one to bear upon the other.
The anal findings
The first task is to identify what physical findings were established at the post-mortem examination and in the subsequent histopathology.
Before descending to the detail of their discourse, I should record that in their different ways Dr Armour and Dr Leadbeatter were careful and helpful witnesses. Although Dr Armour holds a clear opinion about the nature of the post-mortem findings, I reject any suggestion that she has jumped to conclusions before, during or after the examination. While I am critical of the unconscionable delay in the production of her report, her evidence was clear and considered and I find that she approached her task with seriousness and skill. Likewise, Dr Leadbeatter gave valuable assistance. He was a cautious witness who measured his words with exactitude, a very proper approach in a case of this kind. In that I am bound in a very few instances to prefer the opinion of one pathologist over that of the other, this implies no criticism of the other.
The appearances identified by Dr Armour are these:
Distended and dilated anal orifice
Bruising to the external anal sphincter
Flame haemorrhages to the rectum
Anal tears
A bruise to the right parametrium (the fibrous tissue that separates the supravaginal portion of the cervix from the bladder)
Dr Leadbeatter is not comfortable with the following findings of Dr Armour:-
The anal dilation being due to trauma rather than post-mortem artefact
There being bruising to the anal sphincter
The tears being real rather than a post-mortem artefact
The appearances in the parametrium being bruising rather than discolouration
During the course of the hearing, the two pathologists explained their reasoning with reference to the post-mortem photographs which were available to the court and to the histology slides that they had jointly reviewed on the day before evidence began. I will review their evidence in relation to each appearance.
Anal dilatation or distension as seen in photograph G521.
Dr Armour describes this as a very unusual finding. When seen at post-mortem, the anus of a child is normally tightly closed and you cannot visualise a hole. In over two decades of professional experience, she had seen dilated anuses at death but only in specific types of case such as men who have been practising homosexuals for many years.
Dr Leadbeatter regards this as an indeterminate finding. Like Dr Armour, he has never previously encountered a widely dilated anus in a child under 18 years old. However, he referred to a research paper [Dr Dawn Elder] which draws attention to anal dilatation being a byproduct of death in a significant number of cases of children across the age range and not being a reliable sign of sexual abuse.
Taking account of these matters, the appearance found in hospital and on post-mortem is in my view of potential significance as an indicator of trauma when taken together with the other findings. I place more weight on the combined experience of the two pathologists than on the academic paper, which does not reflect their own findings over many years.
Flame haemorrhages to the rectum as seen in photograph G520.
Dr Armour says that these were present at 12 o’clock and 3 o’clock. Where there are flame-shaped haemorrhages alone in a child of this age, with no evidence of underlying natural cause and no infection within the gastro-intestinal tract, she would consider trauma a possible cause.
Dr Leadbeatter agrees that these haemorrhages are obviously present. They are a significant and unusual finding. He has never seen flame haemorrhages in this area in a child at post-mortem. They raise suspicion and require explanation. They would necessarily be caused by something hard going in (such as a penis) or something hard coming out.
In my view these are significant findings.
Anal tears
Dr Armour identifies an anal tear 0.5 cm in length at 4 o’clock on slide 71. She describes this as being approximately 6-7 mm from the squamo-columnar junction and lined with red blood cells. She regards this tear as genuine and not artefactual, giving detailed reasons for this view.
Dr Armour said that it is quite difficult to tear the rectal mucosa. Absent trauma, she would expect to see tears associated with inflammation, infection, hypertension or haemorrhoids. She can see how the rectum could tear as a result of a normal disease process but saw no evidence of any natural disease process here.
Dr Armour also identifies a tiny anal tear 0.5 cm in length at 4 o’clock on slide 77. The debate between her and Dr Leadbeatter about this appearance is the same as that over slide 71.
Dr Leadbeatter says that these appearances could be either traumatic or artefactual. It is in his view possible that this is a split caused during the post-mortem dissection. He would not be comfortable calling this a genuine tear as opposed to an artefact in an already congested area.
However, Dr Leadbeatter accepted that if these were not tears, there is nothing to provide a clear explanation of blood pouring or dribbling from the rectum. Bleeding from tears can be quite profuse and would not have occurred with an artefactual tear.
My conclusion on this important issue is that it would be very difficult for the court to arbitrate between the pathologists if the matter rested only upon their interpretations of the microscope slides. Both give reasoned explanations. Dr Leadbeatter did not say that these are not tears: his view was that he was not satisfied that they are.
I find that the anal tears identified by Dr Armour do exist. I reach this conclusion by looking also at the other evidence, and in particular the incontestable fact that P was found to be bleeding from the anus. This blood has to have come from somewhere and Dr Leadbeatter was unable to identify an alternative source.
I exclude any possibility that bleeding was coming from higher up the gastrointestinal tract. I accept the evidence of Dr Armour and Dr Bitetti that they examined the entire tract and opened the large and small bowel. There was no evidence of impacted faeces or of blood. There were no malaena stools (stool with a distinctive appearance and smell as a result of being mixed with blood). This conclusion is strongly supported by the appearance of the stool in the rectum, seen in a photograph, which appears soft and clear of blood. I also note the evidence of Dr B that the faeces that he saw around P’s bottom were not malaena stools.
Ultimately, Dr Leadbeatter accepts that if there was no other possible source of blood, the appearances seen by Dr Armour may be genuine tears.
I find that the source of the bleeding that was witnessed following P’s death were the anal tears identified by Dr Armour.
Bruising to the external anal sphincter seen in photographs G591 and G592.
Dr Armour identifies a W-shaped nick and a 0.5 cm bruise on the anal skin at 12 o’clock, and a linear bruise at 2 o’clock 0.5 cm x 0.1 cm.
Dr Armour also identifies a possible tiny bruise (0.1 x 0.1 mm) at 5 o’clock.
Dr Leadbeatter did not refer to these findings in his report and in evidence said that he is not sure that he can identify these findings as haemorrhages.
I was satisfied by the evidence of Dr Armour that these appearances do exist and that on the balance of probabilities they are bruises.
Bruising to the right parametrium seen in photograph G600 as fresh tissue and at G499 as a fixed specimen.
Dr Armour identifies this as a bruise 2.5 x 1 cm in size. She says that this injury is very unusual. She has never seen such an injury in 25 years experience. Her opinion is that this is a bruise caused by trauma. It is very difficult to say what type of trauma would have caused it but it would be some sort of trauma around the lower abdomen or pelvic region. It could have been caused at the same time and in the same way as the anal findings, namely by penetrative entry into the rectum. This fits with the architecture of the body.
Dr Leadbeatter did not refer to this finding in his report because he did not regard it as significant. He says that he can see discolouration where Dr Armour identifies a bruise. If it were a bruise, he would expect it to remain in the same position between the fresh and the fixed specimen (it does). If it is not a bruise, he cannot say why there is discolouration. If it is bruising, it could be due to sexual abuse. Taken in isolation, it is worrying and difficult to explain. He has never seen this finding in over 30 years’ experience. It is unique and, where one has not seen it before and there is no peer-reviewed research, one is cautious. He agrees that if there is a bruise in the parametrium, this is more consistent with something going in rather than something coming out.
I was satisfied by the evidence of Dr Armour that on the balance of probabilities there is a bruise to the parametrium.
It is common ground between the doctors that these findings, if they existed, would have been the result of trauma while P was alive. They would have been caused by something coming out the anus or something being inserted into it.
The only way that injuries to the anus could be caused by something coming from within the body would be as a result of a child swallowing something such as a toy, which did not occur here, or as a result of the passage of a hard bulky stool of the kind that results from constipation. Dr Armour said that she had never seen anal injuries such as these as a result of constipation. There is no evidence that P was constipated at or around the time of her death or that she passed a stool of this kind. On the contrary, the reliable descriptions are of her stools being loose. Nor is there any evidence that she had diarrhoea. I find that the injuries to the anal region were not the result of P passing a hard bulky stool.
The injury to the parametrium can only be explained by trauma.
Dr Armour’s hypothesis is that the findings can be unified to explain the features found at post mortem. Dr Leadbeatter accepts this, but only on the basis that the findings exist in the first place. Dr Evans agrees that, at least on the balance of probabilities, the unifying hypothesis should be accepted.
I agree with the submissions made on behalf on the father that it would be unsafe to tailor individual medical findings in order to serve a unifying hypothesis. I have not done that. My approach is based upon an assessment of the elements of the medical findings separately and in combination.
Conclusion in relation to medical evidence:
Having considered the evidence of Dr Armour, Dr Leadbeatter and Dr Evans, my clear conclusion is that the medical evidence points to the injuries to P as having been caused by penetrative trauma from outside the body.
Submissions made on behalf of the father
However, these medical findings cannot be conclusive. They have to be set against the other evidence in the case. The father relies upon a number of general matters:
There is nothing to suggest that he was anything other than a loving parent to P, or that he has any propensity to paedophilia, anal sex or sadism.
It is inherently extremely improbable that he would assault his infant daughter in an overcrowded house with one other young child sleeping in the same room, three others in the neighbouring room, and the children's mother downstairs within earshot.
The mother's own evidence was that she heard P cry out and the father go to her. This, the father suggests, shows that the cry was not the result of an assault.
The father also points to the absence of evidence that would have been expected to be found in a case of anal rape. It is argued by Mr Rowley QC and Ms Scully that this absence amounts to positive proof that the events did not occur. Significant absences are:
any blood from P or semen from the father on bedding or clothing
the father's DNA in P’s mouth or anus
P’s faeces or blood on the father's penis
any suggested penis-shaped object
any suggested lubricant.
The father argues that he has provided a broadly similar account at various different stages and that this was not shaken during the course of his evidence at this hearing. His account of P's abnormal appearance that night suggests a real experience rather than an invention.
The father moreover points out with justification that the defects in the investigation are of equal concern to him. A proper investigation would have assisted him in proving his innocence.
Conclusions on Poppi’s anal injuries
This is a more than usually troubling case. I have given anxious consideration to the question of whether the court’s inquiry has been so degraded by the deficiencies in the initial investigation as to make it impossible to draw reliable conclusions. In the end, I have concluded that this is not the case in relation to the anal injuries. Unlike the position in relation to the broken leg, there is still a mass of contemporaneous information about the events of the night on which P died, even though procedures fell far short of good practice.
Shorn to its essentials, the situation is one in which a healthy child with no medical condition or illness was put to bed by her mother one evening and brought downstairs eight hours later by her father in a lifeless state and with troubling injuries, most obviously significant bleeding from the anus. Careful assessment of the meticulous pathological and paediatric evidence has clearly established that the injuries were the result of trauma from outside the body.
While, as already stated, the father is not called upon to prove anything, I cannot accept his evidence about the events surrounding P’s collapse. I was not impressed by his account. His description of being woken by a cry and then removing P from her cot in a most unusual condition (clenched teeth, rigid body) before loosening her nappy and leaving her on the bed was puzzling. It is hard to understand why he should have loosened her nappy or why, having gone downstairs to get another nappy, he should have begun to go back to sleep without changing P while leaving her on the bed. There is also no explanation as to why he would then have reached out to touch P, when his whole object would on his account have been to keep her asleep as long as possible. Moreover, in the overall circumstances, the fact that this was the only occasion (according to the father) when he and P were in the bed together raises concern when taken together with the fact that P suffered injury on that very occasion. Overall, the sequence of events that the father describes is unconvincing as an account of a parent comforting a distressed child in normal circumstances.
I have observed the father, not only in the witness box but in the courtroom. In contrast to the mother, who became emotional at understandable points during the hearing, the father's presentation was unusual. He spent large parts of each day in tears and took every opportunity to make eye contact with me from the back of the court as a way of emphasising his predicament. I do not attach much significance to this behaviour during an undoubtedly emotional hearing, but it was nonetheless unusual in my experience.
It is not possible to reconstruct the exact sequence of events that led to P’s collapse without a truthful account from the father. All that can be said is that at some point after 2 am he removed P from her cot and took off her pyjama bottoms and her nappy. He then inserted his penis or another object into her anus, causing her injury. He probably replaced the nappy, which P filled with faeces at some point before or at the time that she collapsed. The father then realised what he had done and sought help.
While it is true that what has happened in this case is extremely unlikely, the position is not to be compared with cases of sudden infant death that occur without any clear signs of abuse. As has been said elsewhere, there is no logical or necessary connection between seriousness and probability. The improbability of the father assaulting P in this way must give way to the evidence that establishes that she was in fact assaulted. As to the argument that this was a crowded house, the fact remains that the father had the clear opportunity to carry out the assault, however risky it might have been. On his own account, the presence of two very young sleeping children in his own bedroom did not stop him from watching pornography.
Nor am I influenced by the mother's description of hearing the father going to P. In the circumstances, this is the only normal interpretation that would be likely to occur to her. The most that I gather from the mother's evidence is that the father was moving about. Further to this, I think it likely that the father did experience P going rigid and gritting her teeth, but sadly this will have been in the context of an assault upon her.
The father’s arguments about the absence of evidence deserve serious consideration. In fairness to him, I approach matters on the broad working assumption that any inquiry that should have been carried out, but was not, would have produced a negative result. For example, that nothing concerning would have been found on his laptop, that his DNA would not have been found in the last nappy, and that other items were properly preserved and tested with negative results. In the circumstances, he is entitled to these assumptions. Likewise, there is a credible innocent explanation for the presence of DNA on the shaft of his penis.
Nevertheless, even though Mr Scarborough would have expected further positive results following an act of anal rape, the forensic evidence does not exonerate the father in the manner claimed. Rather, it affects the probabilities and has to be set against all the other evidence.
With regard to the absence of P’s DNA from the tip of the father's penis, this does not negate penetration by the penis as any DNA may have been lost by washing or ordinary movement; nor of course does it negate penetration by other means. The non-production of sperm that may have followed the father's vasectomy could reduce the likelihood of seminal fluid being detected, particularly as five days had passed before the swabs were taken in a suboptimal way. The absence of any report of P’s blood in the bedroom or living room would seem at first sight to be highly significant, but has to be taken along with the evidence that clearly establishes that she was bleeding in the ambulance moments later.
These matters weigh heavily in the father's favour, but I find that, when placed in the balance, they are ultimately outweighed by the fact that P suffered injuries causing substantial bleeding from the anus and that she collapsed for no plausible reason. The only explanation for those stubborn facts is that she suffered anal penetration and the only person who could realistically have done this to her was her father.
I find that the father perpetrated a penetrative anal assault on P, either using his penis or some other unidentified object.
Cause of death – Dr Bitetti finds no natural cause – Dr Armour’s opinion – Dr Leadbeatter’s opinion – conclusion:
As stated, the local authority, supported by the mother and to an extent by the Guardian, invites the court to find that P died as a result of the assault upon her either by suffocation, or from reflex cardiac arrest or from another unidentified cause. Having considered the matter carefully, I have concluded that it would not be appropriate to make that finding. Instead, I find that P died during or shortly after the assault upon her but that the cause of her death is unascertained.
I understand the wish to bring as much clarity as possible to such a grave question and I sympathise with the argument that this hearing represents an opportunity to answer it. However, it is neither necessary nor safe to go beyond the finding that I have made. Dr Armour’s hypothesis may be correct, but, like Dr Leadbeatter, I consider that the evidence on this question is not sufficiently strong to underpin her conclusion. I have taken account of the post-mortem findings relating to the lip, the throat and the lungs. I conclude that they are suspicious but unexplained. Having heard from Dr A, I cannot exclude the possibility that one or more of the injuries to the pharynx and oesophagus might have been caused by the attempts at intubation during a very difficult process of attempted resuscitation. Likewise, suffocation is not the only mechanism by which the marks to the lip might have been caused. The blood in the nose may be associated with abuse, but I cannot discount the possibility that it may have been caused during the protracted CPR at home, in the ambulance and in hospital. The extent of the intra-alveolar haemorrhages is more than mild but is not diagnostic. In conclusion, it is possible that P died of suffocation, but this has not been proved by the existing evidence.
E THE FURTHER EVIDENCE
This was given by the following witnesses:
Dr Alison Armour, a consultant pathologist of many years experience, accredited by the Home Office since 1998.
Dr Nathaniel Cary, a consultant pathologist of many years experience, accredited by the Home Office since 1992.
Dr Victoria Evans, currently working with Greater Manchester Police as the senior consultant forensic physician, and having a special interest since 1985 in the examination of suspected sexual abuse victims.
Dr Victoria Aziz, a general practitioner working with the Metropolitan Police as a sexual offences and child abuse examiner since 1991.
Dr Stephen Leadbeatter, a senior lecturer in forensic pathology of many years experience, accredited by the Home Office since 1987.
Dr Liina Kiho, a consultant histopathologist since 1999, currently working at Great Ormond Street Hospital (by video-link).
Drs Armour, Evans and Leadbeatter were witnesses at the 2014 hearing. Dr Stephania Bitetti, consultant paediatric histopathologist, who gave evidence at that hearing, was unavailable to give evidence on this occasion.
The witnesses became involved in these proceedings in different ways. Drs Armour and Bitetti were originally instructed by HM Coroner. Drs Evans and Leadbeatter were instructed as an expert witnesses in these proceedings. Drs Cary, Kiho and Aziz were instructed by the National Crime Agency. This has meant that the formal process of instruction that exists under the rules and practice directions in Part 25 of the Family Procedure Rules were only followed in the cases of Dr Evans and Dr Leadbeatter. However, ahead of this hearing, the Guardian’s representatives marshalled the evidence, including by calling two experts’ meetings from which a schedule of agreement and disagreement was created.
Before coming to the detail of this evidence, a number of things can be said:
There is a large measure of agreement between the four pathologists about the post-mortem appearances, i.e. each sees what the other is describing.
There is significant disagreement between the pathologists about the interpretation of seven specific findings. The whole of their evidence focused on those matters.
Five of the seven appearances featured in the 2014 proceedings. The remaining two were raised by Dr Armour as a result of her re-examination of the specimens.
Dr Armour did not claim any advantage as the pathologist who conducted the post-mortem examination. She said that the descriptions, photographs and slides should enable others to form an equally informed opinion.
It is not an easy task to choose between the competing views of such experienced specialists. To compound matters, the pathology evidence revealed a world of small differences and strong feelings. This was most apparent in the evidence of Dr Cary, who described Dr Armour's evidence in one respect as irresponsible, in another as bordering on the ridiculous and in a third as a significant overcall. This aspect of the matter has not made the evidence easier to assess.
Although the complex medical evidence has taken up a large part of the 2014 hearing and the whole of the 2015 hearing, it is by no means the only evidence in the case. As Dr Cary remarked, “Pathology is only one part of the picture.”
The general position of each of the witnesses called at this hearing is as follows.
Dr Alison Armour
Dr Armour stated that she has not altered her opinion in relation to the five appearances previously identified and she elaborated on the two further matters that she first took note of when she viewed new slides cut at Dr Kiho’s laboratory. She explained and defended her opinions on each point. In the absence of a disease process, the cause of bleeding is, she said, likely to be some sort of trauma.
Dr Armour discussed the natural process of autolysis, which is the degeneration of cells and tissue that occurs after death. It can corrupt post-mortem findings. The time required for autolytic change is highly variable, depending upon the organ and temperature. Given that Poppi’s body was refrigerated, the appearances at post-mortem were not in Dr Armour’s view significantly affected by autolysis, and such post-mortem changes as are seen in the sections are minimal and easy to identify. The red blood cells and connective tissue cells were all intact. Autolysis certainly cannot explain the bleeding at around the time of death.
Dr Armour confirmed that the presence of the common enterovirus genotype Coxsackie A6 had been noted from the outset. This is a mild, self-limiting illness. The effect of a virus is to change the appearance of a cell and this may sometimes be seen microscopically. She confirmed that in this case there is no microscopic evidence of such a process, which would anyway end on death. She noted that by the time of the second experts’ meeting, the theory that viral infection could provide an alternative unifying hypothesis for the post-mortem findings was agreed to be unlikely.
Dr Armour addressed the suggestion that the appearances might be the result of purge. She agreed that bloodstained, sometimes frothy, fluid can be emitted in the agonal period, typically from the nose or mouth. It does not have the appearance of frank blood and she has not seen frank blood coming from the rectum of the child in any other case.
Dr Armour considered Dr Cary’s suggestion that the presence of blood might be due to it having escaped from the congested or overfilled pelvic tissues seen at post-mortem by a process described as extravasation. This entails blood cells escaping through cell walls into somewhere that they should not be – depending upon the judgement of the pathologist, these might be seen as a bruise or haemorrhage. She could not understand how the suggested process could happen merely as a post-mortem phenomenon.
Dr Armour described how the pelvic organs were removed during the autopsy and placed together in formalin. She had to accept that there was a risk of contamination between the gastrointestinal organs and the gynaecological organs during this process.
Dr Armour did not find any evidence of hypostasis, which is the dependent pooling of blood after death as a result of pressure effect, and can be difficult to differentiate from bruising.
Dr Armour says that this was and is a difficult case with a very rare constellation of appearances in a child of this age. She accepted that the other pathologists might be right in their view that there is an absence of evidence and that she might be wrong. She considered that the key to understanding lay in the speed of death and the presence of frank blood around the time of death. These were influential for her in evaluating and re-evaluating the case.
Dr Nathaniel Cary
Dr Cary gave his opinion with regard to each of the post-mortem appearances. Overall, he does not completely exclude some sort of penetration of the rectum, but he describes the pathology as being entirely neutral. He concedes that Dr Armour is not wrong to be concerned about the findings in the light of the bleeding and that it is not possible to exclude digital trauma arising from minimal anal penetration.
Dr Cary was more willing than Dr Leadbeatter to contemplate autolytic change occurring as soon as five days after death, but accepted that it was not relevant on the day of death. As to the early post-mortem interval, he referred to the concept of congested tissue accompanied by pressure effect. He said that the passive oozing of blood around the time of death, particularly from the nose or mouth, is very common and is not understood.
Dr Cary was highly critical of Dr Armour for making so much of the presence of foreign material in the pelvic cavity. He was particularly emphatic that there was a need to be incredibly cautious about this and that he had never come across a case where so much attention had been paid to this finding. He further described her views on the alignment of cells at the suggested tears as being outside the range of reasonable opinion. She is right in her observation, but not in her conclusion.
Dr Cary accepted that the bleeding is an important feature that requires explanation. He cannot explain it, but says that there are cases of unexplained bleeding in adults and children. Fresh blood can occur in the early post-mortem interval as a benign leakage, but it would be unusual to find it at the anus and rectum. It is different from the concept of purge, which is a later phenomenon. Having further considered the question of virus, he agreed that it did not help. He could not assist with an alternative cause for the bleeding from Poppi’s anus.
Dr Cary agrees that this is a very worrying picture and that the possibility of anal penetration cannot be set aside, particularly if it was carried out with an object that would cause less injury than a penis. He agreed with Dr Aziz that the insertion of a penis-shaped object would be expected to lead to a number of marked injuries, including perianal bruising, even if there was a very short survival interval. Digital penetration would be of a different order of magnitude and might cause no injury at all.
Dr Victoria Evans
Dr Evans summarised her view with reference to the pathology evidence. She said that if Dr Armour’s analysis is correct, she remained of the view that these were probably injuries caused by penetrative trauma. If on the other hand there is no positive evidence of trauma, she could not exclude anal penetration, but could not say on the balance of probabilities that it had occurred. She said that the more of the signs that were confirmed, the greater her confidence. In particular, she would place weight on perianal bruising and, because of the possible association with bleeding, on lacerations, for which she could think of no other explanation. The undoubted anal dilatation is not a sign to be ignored, but it would not on its own persuade her that there had been penetration. From a clinical perspective, trauma would be the first differential diagnosis for findings of this sort.
Dr Evans has no knowledge in life or in literature of Dr Cary’s suggestion that the bleeding could have come from extravasation from congested blood vessels. Mucosal haemorrhage can cause minimal spotting of blood, but she would not expect the degree of bleeding that is described in this case, though it might be a contributing factor.
Dr Evans took issue with some of the opinions of Dr Aziz in relation to the effects of an assault by a penile object on a child of this age. She said that all or some of the injuries would probably be expected, but it could not be said that penetration must cause obvious injury. In slightly older living children who give a clear history of recent penetrative anal abuse, there are not always signs of injury. The anal sphincter of a child that is not toilet-trained will offer less resistance, and penetration therefore carries less risk of injury. The dimensions of the penetrating object are of course relevant. Dr Evans gave details of her views on possible injuries, with reference to the "Purple Book", published in May 2015 by the Royal College of Paediatrics and Child Health – The Physical Signs of Child Sexual Abuse.
Asked about the bleeding, she said that the witness accounts described a significant amount of blood. She suggested that bleeding that occurred while Poppi was alive may have pooled in the anus and come out when the child was moved. Dilatation of the anus would make this easier.
Dr Victoria Aziz
Dr Aziz stated that she had examined a lot of children where there was a history of suspected abuse and that she had always seen severe lacerations or tears. She had never seen a case of penetration without lacerations or tears. It was eventually established that the group of children to which she was referring were ones where she had been called in because there were obvious injuries associated with abuse.
She was clear that there will be four key features of a penetrative anal assault: very considerable pain, significant tearing, bruising and swelling, a great deal of bleeding and screaming or crying for some time. Her understanding of the history is that Poppi quietened quickly, when she saw as pointing against penetration. Disagreeing with Dr Evans, she regarded it is inevitable that there would be full-thickness laceration of the anal margin to the rectum. She accepted that forceful digital penetration could occur without this, but it would still cause bleeding. She did not accept that the amount of blood was consistent with the two small tears reported by Dr Armour and says that it must have come from somewhere else. She saw the absence of any description of blood at home as significant.
Dr Aziz says that she could offer no plausible explanation for the bleeding, and did not consider it within her expertise to explain the bleeding in the ambulance or at the hospital. Asked whether the bleeding could be the result of trauma, she says that she could not answer and responded by questioning where the blood had come from. She could not accept that all that blood could have arisen without penetration, but if there was penetration there must be lacerations. She had difficulty in accepting that there could be penetration without injury, and did not accept Dr Evans' view that the extent of injury could be variable.
Dr Stephen Leadbeatter
Dr Leadbeatter confirmed that his opinions had not altered. As to the additional appearances raised by Dr Armour, he would not say that they were not contamination. He reiterated that an explanation for the bleeding has to be found and that there must be a bleeding point in the shape of a broken blood vessel. However, he cannot provide pathological evidence for the source of the blood. He sees difficulty in saying that blood seen at or close to the point of death, (i.e. at the time that Poppi was in the ambulance) had occurred as a post-mortem change. He discussed autolysis, which does not occur within a short time after death.
Dr Leadbeatter considered cases where blood or, more usually, bloodstained fluid had issued from the nose or mouth at the time of death. He had not seen blood issuing from the anus or rectum as a function of death in an infant or child. He would consider whether this was trauma or whether it could be related to increased vascularity or congestion of the vessels. The latter might be possible if there was a history of bowel disturbance. He said that Dr Evans' explanation of blood pooling within the anus is possible.
Dr Leadbeatter reviewed his previous findings and concluded that if it is established that all the findings existed, he could not exclude penetrative anal assault, indeed the findings would be consistent with that explanation. He said that the question of what actually happened does not depend upon the pathology and that the opinions of the forensic physicians should be considered in determining the broad canvas. He said that the message from literature is that we have to be cautious about over-interpreting findings and that there is no precise answer to the sort of trauma that might explain the appearances in Poppi.
On the question of virus, Dr Leadbeatter could see nothing to take him to say that this might have had a direct cytopathic effect, i.e. an effect on cells that would lead them to bleed. There is no research literature describing this. The suggestion that blood might leak from vessels under pressure requires sufficient pressure to break vessel walls. He would not see the concept of purge as relevant to bleeding at the point of death, and the appearances generally do not suggest autolysis of a degree that would result in bleeding. He had not seen haemorrhaging from the anus that could be attributed to resuscitation.
Dr Leadbeatter did not know that any inference could be drawn from the apparent asymmetry between the size of a large penetrating object and the amount of injury resulting.
Dr Liina Kiho
Dr Kiho explained that she and Dr Cary regularly work together. If there had been penetration by an adult penis she would expect definite bruising, swelling, reddening and injury to the anal skin mucosa, with tears and lacerations. Histologically, she would expect tissue disruption, fibrin, oedema and cellular reaction.
Dr Kiho described autolysis as a process, not an event. It is of no relevance to the perimortem period and the blood from the anus cannot be related to it. She agreed with Dr Armour and Dr Leadbeatter that in general terms the cellular structure in the areas under consideration was well preserved, but there were also some patchy autolytic changes. She stated that after death blood can extravasate into surrounding tissue under the effects of gravity, but could not comment on timing. She did not suggest that the bleeding could be the result of resuscitation. Babies receive CPR and bleeding is not seen from the anus.
Overall, Dr Kiho did not accept that the signs were consistent with traumatic anal injury, saying that it was just one of the possibilities and she did not see positive findings to make her comfortable with the diagnosis. She said that unless there is very clear evidence of traumatic injuries, all changes are very difficult to interpret. She raised the possibility of coagulation disorder as a hypothetical possibility for some of the findings, but said that she is not suggesting that Poppi had suffered from this. She also raised the possibility of constipation or diarrhoea as a contributory factor.
As she had not previously fully understood the sequence of events, Dr Kiho was taken through the timeline for the morning of Poppi’s death, and the descriptions of bleeding. She agreed that these findings are concerning in any context. There must be an explanation for frank blood issuing from the anus within minutes of death. She did not consider that virus could be the cause, describing the hypothesis as too far-fetched. It is unlikely that the bleeding arose from congestion, which is a relatively common finding in any tissue. She says that she had no pathological explanation for how the blood came from the anus, especially as there was no circulation. She had never seen blood, as opposed to bloodstained fluid, in this location. She regarded the appearances under discussion as being insufficient to explain the bleeding, though she deferred to the forensic physicians. Either something has been missed, or the blood is unexplained.
Next, I review once again the evidence in relation to each appearance.
Anal dilatation or distension
There is agreement that Poppi’s anus had a dilatated, irregular appearance. The interpretation of this finding is contentious. Dr Armour continues to regard it as a significant finding in such a young child, suggestive of abuse in the context of its size, irregularity and coexistence with other appearances. The other witnesses consider it a not uncommon post-mortem finding arising from the effect of death. Dr Cary says that he finds it in a few percent of all his cases. For Drs Cary, Kiho and Aziz, the finding adds nothing and is of no significance, alone or with the other appearances. Drs Leadbeatter and Evans say that it is an indeterminate finding from which one cannot draw a conclusion in isolation, but it is not irrelevant when looking at the picture as a whole.
Flame haemorrhages to the rectum
Dr Armour identified the presence of haemorrhages at 12 o’clock and 3 o’clock. These are areas of bleeding into underlying tissue, just below the surface and more superficial than bruises. These could have a number of causes, apart from trauma. They could be the result of chronic constipation, inflammatory conditions of the bowel or of a small polyp, but none of these apply. As to the view of Drs Cary and Kiho that these haemorrhages may be caused by post-mortem changes, Dr Armour could not see the mechanism for this causing a distinct area of haemorrhage.
Dr Leadbeatter confirmed his previous evidence. These haemorrhages are obviously present. They are a significant and unusual finding. He has never seen flame haemorrhages in this area in a child at post-mortem. He does not see them as a post-mortem change. They raise suspicion and require explanation. They would necessarily be caused by something hard going in or something hard coming out.
Dr Cary and Dr Kiho accept that these mucosal haemorrhages exist (described by Dr Cary as "bright red patches typical of blood") but they are of the view that they do not represent genuine ante-mortem injury as opposed to a post-mortem area of autolytic extravasation. They are not confirmed microscopically. If they were the result of trauma, Dr Kiho would expect to see more evidence than this. Some degree of trauma cannot be excluded, but there is no unequivocal confirmation.
Anal tears
Dr Armour identifies an anal tear 0.5 cm in length at 4 o’clock on slide 71 and a tiny anal tear 1-2 mm in length at 4 o’clock on slide 77. She distinguishes these from a number of obviously artefactual tears in that these two have red cells lining the tear, arising from submucosal haemorrhage. She refers to good cellular preservation in these areas. She accepts that there is no accumulation of the clotting agent fibrin, but this would not necessarily arise if there is a sudden death.
Dr Leadbeatter remains of the view that these appearances could be either traumatic or artefactual. It is in his view possible that slide 71 shows a split caused during the post-mortem dissection. He would not be comfortable calling this a genuine tear as opposed to an artefact in an already congested area.
Dr Cary, with whom Dr Kiho agrees, can see mucosal haemorrhage. He says that he does not dispute that "there is something there", but he considers it likely to be congestion and autolysis. There is no unequivocal evidence of any tearing. Going further than Dr Leadbeatter or Dr Kiho, Dr Cary asserted that Dr Armour’s view fell outside the range of reasonable opinion.
Dr Kiho says that she saw what Dr Armour sees. It was a split or separation alongside areas that are agreed to exhibit artefactual damage. She did not consider it credible to suggest that this discontinuity has been a tear in life, describing this as naive. She would expect fibrin to be present within a very short time of a genuine injury. She said that the evidence of antemortem damage is very weak. She said that it could not be the source of the bleeding.
Bruising to the external anal sphincter
Dr Armour confirms her previous findings, being a W-shaped nick and a 0.5 cm bruise on the anal skin at 12 o’clock, a linear bruise at 2 o’clock (0.5 cm x 0.1 cm) and a possible tiny bruise (0.1 x 0.1 mm) at 5 o’clock. [There was no disagreement between the pathologists about the existence of these appearances, but I note that in giving evidence on this occasion, Dr Armour referred to three areas of bruising at seven, eight and nine o'clock, the largest being at nine o'clock at 0.5 cm x 0.4 cm. I did not ask her about this.]
Dr Armour considered and rejected the possibility that this was simply congestion, in other words a lot of red blood cells confined within cell walls and giving a reddened appearance. This is to be contrasted with bruising or haemorrhage, where there is a leakage of red cells into surrounding tissues. It is possible to distinguish between bruising and congestion at post-mortem. Bruising will remain in the same place between the fresh and the fixed specimens, while congested blood will move around and look different. In this way, she considers that these are bruises and not congestion, although there is also marked congestion in the area.
Dr Leadbeatter says that there is reddening and congestion but no clear sign of bruising. Drs Cary and Kiho are of the same opinion. Dr Cary sees blood both within the blood vessels and outside them. Dr Kiho sees the appearances with the naked eye but cannot confirm them under the microscope. The appearances cannot exclude anal penetration, but she and Dr Cary consider that the pathology is neutral in this respect. If there had been the insertion of something the size of the penis, one would expect to see tears and really obvious trauma.
Bruising to the right parametrium
Dr Armour restated her opinion. She identifies this as a bruise 2.5 x 1 cm in size in an area where there is a lot of congestion. She says that this injury is striking and very unusual and she has never seen it before. Despite the congestion, the tissue is well-preserved and not autolytic. Her opinion is that this is a bruise caused by trauma and not an agonal change. It remains in the same position between the fresh and fixed specimens and the histology. It is very difficult to say what type of trauma would have caused it, but it would be some sort of trauma around the lower abdomen or pelvic region. It could have been caused at the same time and in the same way as the anal findings, namely by penetrative entry into the rectum. This fits with the architecture of the body.
Dr Leadbeatter can see discolouration where Dr Armour identifies a bruise. If it were a bruise, he would expect it to remain in the same position between the fresh and the fixed specimen, which it does. Having looked at the appearance again, he sees extravasation of blood and as such is prepared to call it a bruise, albeit with some discomfort. He cannot say how it was caused. Taken in isolation, it is worrying and difficult to explain. He has never seen this finding before. The ease or difficulty with which it might have been caused does not assist him in saying what it is.
Dr Cary considers it inherently unlikely that the appearance is the result of trauma given its deep location, small size and solitary nature. He cannot see how this tissue can be damaged without trauma to other structures. It is an isolated finding that he has not seen described as traumatic before. He does not believe it crosses the threshold as being a traumatic lesion: it is not impossible but it is improbable.
Dr Kiho agrees. She confirms evidence of bleeding in this area, but she would not associate it with an assault. On the basis of pin-pricks recorded by Dr Armour on external examination, she raises the possibility that this was the result of an failed attempt at a right femoral vein cannulation, the post-mortem photographs showing that Poppi was ultimately cannulated on the left side.
Foreign material in the pelvic cavity
In September 2015, when Dr Armour examined slides that had been cut at Great Ormond Street, she noted the presence of faeculent material in the pelvic cavity. This was particularly obvious in slide 48. She describes it as faecal vegetable matter associated with red blood cells, whose presence deep within the section, and not only on the periphery, indicated a genuine finding with the appearance of a bruise. There is other faeculent matter that is recognisably contamination.
Dr Armour accepted that the only other way in which the faecal material in slide 48 could have entered the pelvic cavity would have been via a full thickness tear in the rectal lumen, a serious injury that was not found. She said that she inferred the existence of such a tear from the presence of the vegetable material. At one point in Mr Rowley's cross-examination, she strongly disagreed with his suggestion that this deduction was unsafe, saying that she was as sure of the existence of this unseen tear as of the existence of the tears that she did see.
Dr Leadbeatter believes that he saw this material when he first examined the slides, but discounted it as an obvious artefact arising from the post-mortem process. The existence of a bone fragment puts the fact that there was some contamination beyond doubt. He is not persuaded that the material described by Dr Armour is sitting within the tissue, and he does not think that the appearances on slides 48 and 64 add to or subtract from the overall picture. His view is supported by Dr Carey and Dr Kiho, who consider that the appearance of matter within the tissue may merely be the visualisation of a clefted area.
Sloughed-off glandular epithelial cells associated with red blood cells
Again, this was a new observation by Dr Armour. These cells, which originate in the gastrointestinal tract and have a distinctive appearance, were seen in a number of sections, for example slides 48 and 64, and she contends that their presence deep within the section suggests a genuine finding and not post-mortem contamination.
The other pathologists regarded these appearances as being of no significance.
F THE SUBMISSIONS OF THE PARTIES
The skilful and cooperative way in which the legal representatives have approached this hearing meant that it was possible to conclude it within five days, with judgment being reserved. Written closing submissions running to about 100 pages were delivered, and supplemented orally. The following summary can only reflect the main features of the detailed arguments that I have considered.
The father
Mr Rowley QC and Ms Scully assert that the local authority has failed to prove that Poppi suffered any form of sexual assault and that the court simply does not know what happened on the day in question. They remind the court that the father has no history of sexual interest in children and that for a loving parent to assault his own child in a crowded house in the early hours of the morning would be both risky and out of character. A number of features can be considered to be positive proof that such an assault did not happen: the absence of blood in the house; the lack of biological material from the father at the scene or on Poppi; the lack of any other injury to Poppi. The fact that the court found Mr Worthington's evidence puzzling and unconvincing must be seen against its previous conclusions about the medical evidence.
In relation to the medical evidence, Mr Rowley and Ms Scully submit that the anal findings should be regarded as unexplained. The level of disagreement from eminent experts with Dr Armour’s conclusions should incline the court against accepting her interpretations. They submit that she conceived the idea of abuse from the outset and has interpreted ambiguous signs in accordance with that notion. Her views have remained fixed and her evidence in relation to the two additional findings is likely to be wrong and must undermine her overall hypothesis. To prefer Dr Armour’s evidence over that of the other distinguished pathologists would be fundamentally unsafe. The appearances are unusual, the anal bleeding is anomalous, but taken as a whole they raise no more than suspicion.
As to specific findings, the presence of foreign material and glandular epithelial cells in the pelvic cavity cannot be said to be other than contamination or post-mortem artefact; autolysis is a plausible explanation for the presence of blood outside blood vessels; the evidence of Dr Cary and Dr Kiho shows that anal dilatation or distension is a neutral finding that does not have the significance previously attached to it; the flame haemorrhages to the rectum are associated with significant congestion; importantly, if the court cannot be satisfied that the observed findings were in fact anal tears; the absence of an alternative identified source of bleeding cannot make the findings into tears; lacerations with an object the size of a penis would cause more substantial rectal injuries; the bruising to the anus identified by Dr Armour does not convince the other pathologists; nor do they attach the same significance to the findings in the parametrium, which is anyway at a distance physiologically.
Mr Rowley and Ms Scully reiterate that while the presence of blood requires explanation, it is not for the father to explain it. The desire to find an explanation cannot alter the science. While digital penetration can leave few or no physical signs, there is no more evidence for it than for penile penetration.
The local authority
The position of Cumbria County Council is that the 2014 findings should be maintained. Miss Cross QC and Mr Rothery note that the non-medical evidence remains unaltered. They submit that the alternative hypothesis for the presence of bleeding – mucosal haemorrhage possibly linked to viral infection – has not survived examination during the hearing. No other new issues have been raised by Dr Cary or Dr Kiho. The explanation provided by Dr Armour and Dr Evans is the only explanation for the bleeding.
Miss Cross and Mr Rothery are critical of the informal manner in which the new experts came to be involved, and point to misunderstandings and misstatements that are said to have resulted. For example, Dr Cary said in his December 2014 report that "A natural cause of death does not appear to have been given proper consideration." and "The occurrence of active viral infection at the time of death appears to have been overlooked by Dr Armour." Neither of these statements is correct. Dr Bitetti specifically examined possible natural causes of death and found none, and she dealt in some detail with the question of viral infection. The approach that Dr Cary and Dr Kiho take to the relevance of autolytic change is challenged on the basis of the evidence of Dr Armour and Dr Leadbeatter. It is suggested that the approach of Dr Aziz was dogmatic and unreflective, and that the approach of Dr Evans is to be preferred.
In relation to specific findings: the anal dilatation is not diagnostic but it is an important part of the picture that cannot be ignored; the flame-shaped haemorrhages are agreed to exist and are plausibly explained as having a traumatic origin; the anal tears, though small, are likely to have a traumatic origin and not an artefactual one, given the bleeding at around the time of death; other suggested explanations for the bleeding (autolysis, virus, prolonged resuscitation in the presence of a blood clotting disorder, congestion of the anal mucosa, purge, hypostasis, anal fissures) have all been considered and found wanting; the bruising to the external anal sphincter is identified by Dr Armour and is not affected by the evidence of the other pathologists; the finding in the parametrium is clear and unusual, even if its interpretation is not agreed, and there is no reason to change the previous finding; the debate about faeculent material and glandular epithelial cells in the pelvic cavity does not take the matter forward and does not affect Dr Armour’s credibility.
The mother
On the mother's behalf, Ms Irving QC submits that the 2014 finding should not be disturbed. The conclusions reached in 2014 are as safe today as they were then. She emphasises the undisputed factual background against which the medical evidence is to be assessed. She is critical of the disorderly way in which the three new doctors came to be instructed.
As to the medical evidence, Dr Armour’s opinion should be preferred, as providing the only rational explanation for the frank blood seen issuing from Poppi’s anus minutes after her collapse. However, her additional evidence about material in the pelvic cavity should be approached with caution. Ms Irving analyses the evidence in relation to the bleeding and submits that trauma is the most likely explanation. As to the likely effects of penetration, she argues that the opinion of Dr Evans should be preferred to that of Dr Aziz. The various findings should be seen as a whole and not looked at in isolation from the bleeding.
The Children’s Guardian
The Guardian is neutral as to whether the court should confirm or alter its former findings. Ms Bazley QC and Ms Henley provide an analysis of features of the evidence that point one way or another. They note that the opinions of the doctors who gave evidence at the earlier hearing are essentially unchanged. They argue that the further evidence given by Dr Armour about foreign material does not assist in reaching conclusions about the medical evidence overall. In summary, they observe that the burden of the evidence from the pathologists is that the pathological signs do not support a conclusion that Poppi was anally penetrated by an adult male penis or similar object. This does not preclude the possibility of penetration by a smaller object. Dr Aziz ’s assertion that severe tears and laceration always accompany anal penetration by an object the size of a penis should be seen in the context of the cohort of children to which she refers.
As to the appearances, the main difference between the pathologists is whether they may be artefactual, in other words a result of post-mortem changes or of the post-mortem examination itself. However, the frank blood observed by health professionals close to the time of the child’s collapse continues to require an explanation.
F CONCLUSION
The purpose of this hearing has been to review my previous finding that Poppi’s father perpetrated a penetrative anal assault on her, either using his penis or some other unidentified object.
The cause of Poppi’s death is unascertained, in other words we do not know the medical reason for her death. That is the conclusion that was reached in 2014 and there is no reason to reconsider it. The fact that Poppi died is the tragic context within which this inquiry has been carried out, but theories about the reason for her death are no more than unproven speculation and are of no assistance when considering whether, and if so how, she suffered injuries.
In the course of this judgment I have reviewed the medical evidence in detail. It is an important part of the overall picture. However, it is by no means the only evidence, and it must now be placed alongside other sources of information.
With regard to the evidence from other sources, my assessment remains unchanged. The following important information, fully set out above, should be read into my conclusions at this point:
The events in the home on 11/12 December 2012 [20-26]
The observations of paramedics and medical staff [27-35]
The actions of the police [36-50]
Forensic science [61-66]
The father’s evidence [143-144]
With regard to the medical witnesses, I am satisfied that each of them has assisted the court to the best of their skill and understanding. I do not find the issues about how Drs Armour, Cary, Kiho and Aziz were instructed and approached their task to be of assistance when comparing and assessing their evidence.
I turn to the seven appearances considered at this hearing.
Anal dilatation or distension
My conclusion in 2014 was that this appearance is of potential significance as an indicator of trauma when taken together with the other findings. This remains my view. The further evidence establishes that the appearance is less unusual than had previously been understood, but it is nonetheless a finding that cannot be ignored.
Flame haemorrhages to the rectum
In my view, these findings retain their significance. They are well-defined, localised appearances. Drs Cary and Kiho do not dispute that they could have a traumatic cause and I consider this more in keeping with the appearances than the alternative explanation of autolytic extravasation.
Anal tears
When this matter was considered on the basis of the earlier evidence, I noted that it would be difficult for the court to arbitrate between the pathologists if the matter rested only upon their interpretations of the microscope slides. There were reasoned explanations of both points of view. Dr Leadbeatter did not say that they are not tears: his view was that he was not satisfied that they are.
Having given the question further consideration, I find that the additional evidence takes the matter no further forward. The evidence of Dr Cary and Dr Kiho is entitled to respect, but it effectively reiterates the prior evidence of Dr Leadbeatter, only with added emphasis.
It is important to bear in mind that no pathologist is saying that these are not tears. The written submission on behalf of the father is incorrect in saying that "the preponderance of the evidence does not admit of the discontinuities being genuine tears." Rather, a difference of opinion has been expressed, extending even to the question of whether pathology can supply an answer one way or another. In this last regard, I note the respectful approach of Dr Leadbeatter, who does not suggest that his professional colleagues are not entitled to their conclusions, but instead that they are conclusions that he does not himself reach. For my own part, having considered Dr Armour’s evidence at length on two occasions, I have no reason to believe that her opinions are outwith the bounds of proper professional judgement. She has stated and defended her reasoning in a rational manner and I approach matters on the basis that her conclusions should be considered on their merits, alongside those of her colleagues. I say this notwithstanding the reservations expressed below about one aspect of her evidence.
It must be remembered that the pathology evidence has to be assessed both on its own and in combination with other evidence that might shine light upon it. It was for this reason that I previously found that the small anal tears as identified by Dr Armour do exist, saying: "I reach this conclusion by looking also at the other evidence, and in particular the incontestable fact that P was found to be bleeding from the anus. This blood has to have come from somewhere and Dr Leadbeatter was unable to identify an alternative source."
It is apparent that the further evidence heard at this hearing provides no plausible alternative source for the contemporaneous bleeding. It is not possible that it was the result of autolysis, purge or hypostasis. There is no credible evidence that virus played any part. I reject, as having no recognised medical foundation, the hypothesis that the bleeding was the result of the escape of blood from congested cells due to some pressure effect at the time of death. Nor is there any indication of what natural process might have caused a pressure effect. It is not plausible that bleeding from the anus was the unprecedented result of prolonged resuscitation, particularly when Poppi had no coagulation disorder and where there were signs of bleeding before most of the resuscitation took place. The possibility that blood came from higher up the gastrointestinal tract was and remains excluded, and the evidence is that Poppi neither suffered from constipation nor from chronic diarrhoea of the kind that might create anal fissures.
Dr Leadbeatter has accepted that if there was no other possible source of blood, the appearances seen by Dr Armour may be genuine tears. It is the evidence of Dr Evans and Dr Cary that relatively small cuts in mucosal surfaces with large numbers of blood vessels can cause significant bleeding.
Considering all these matters and taking the pathology evidence in context, I find that Dr Armour’s opinion remains coherent. I adhere to the conclusion that it is more probable than not that the tears existed and that they were the source of the bleeding that was witnessed following Poppi’s death.
Bruising to the external anal sphincter
On the issue of whether the appearances are bruises, the debate has not really developed since the previous hearing. Once again, the court is faced with an acknowledged appearance and a disputed interpretation. The issue cannot be resolved on a headcount, and the evidence must be assessed as it stands. Although Dr Armour is in a minority, she has focused closely on the question and maintained her reasoning. Dr Cary was concerned, as was Dr Aziz, that a greater amount of bruising would accompany penile penetration, but this argument does not assist in the determination of whether these small bruises existed or not. Overall, I remain satisfied by the evidence of Dr Armour that these appearances do exist and that, on the balance of probabilities, they are bruises. Insofar as Dr Aziz and Dr Evans differ as to the injuries that would be caused by penetration, I prefer the evidence of Dr Evans, which is that the picture is variable.
Bruising to the right parametrium
Again, the evidence about this issue is largely unchanged from that given at the previous hearing, though further attention has been paid to the likelihood of the parametrium sustaining an injury in circumstances where the surrounding tissues were spared. I remain satisfied on the balance of probability that there was extravasation of blood into surrounding tissue and that this represents a bruise or a haemorrhage.
Foreign material in the pelvic cavity
I am not satisfied that the presence of faeculent material in the pelvic cavity is a genuine anomaly as opposed to post-mortem contamination. I did not find this aspect of the evidence of Dr Armour to be convincing. There is a clear possibility that the matter to which she refers entered the pelvic cavity during the post-mortem process. In relation to this aspect of the evidence, I prefer the views of Drs Leadbeatter, Cary and Kiho to those of Dr Armour, which are no more than speculative. Unlike a number of the previous appearances, there is an explanation for the presence of faeculent material in the pelvic cavity that is at least as plausible as a traumatic explanation. It is possible that Dr Armour is right, but the available evidence does not support her contention and her assertion to Mr Rowley that she was sure that there was an unseen tear in the rectal lumen was out of keeping with the generally measured tone of her evidence.
Sloughed-off glandular epithelial cells associated with red blood cells
For the same reasons as those given in relation to the faeculent material, I am not satisfied that these appearances represent a genuine finding as opposed to post-mortem contamination.
I therefore conclude that at the time of her death Poppi had five abnormal conditions: a dilatated anus, flame haemorrhages to the rectum, anal tears, bruising to the external anal sphincter and bruising or haemorrhage to the right parametrium. These conditions were subtle but, taken together, they are significant. With regard to the first four, my conclusion, expressed at paragraph 136 of the earlier judgment, is unchanged, namely that the medical evidence points to their being caused by penetrative trauma from outside the body. I find that the appearances in the right parametrium were also likely to have been the result of trauma, but I am not now able to reach a conclusion about the form that this took and whether it occurred in the same manner as the other findings. It is as possible that it is the result of attempted cannulation or resuscitation as that it was caused by penetrative assault.
I remain of the view that the observation of significant bleeding within 15 minutes of the 999 call is a crucial feature in this case and that it can only sensibly be explained as being a result of penetrative trauma. I have considered a range of alternative possibilities, described above, and none of them is at all plausible. I have also considered the possibility that the post-mortem findings and the bleeding cannot be explained. If that was the proper conclusion, I would not hesitate to reach it. However, this is not a case where a child has collapsed without any abnormal signs. The evidence is not at the frontiers of science. Poppi was bleeding, there must have been a source for the bleeding, and there is evidence that explains it.
For the court to conduct a further hearing in a case of this kind is highly unusual. It does not do so simply because others hold different views to those of a witness whose evidence has been accepted. This further hearing took place because it was asserted that there was evidence capable of establishing an alternative plausible hypothesis for the bleeding, namely that it may have come from congested blood vessels that had been affected by a viral infection. But even before the hearing began, that assertion had vanished like frost in May.
In conclusion, stepping back and reviewing the evidence as a whole, I arrive at the same view as I expressed at paragraph 142 of the previous judgment:
Shorn to its essentials, the situation is one in which a healthy child with no medical condition or illness was put to bed by her mother one evening and brought downstairs eight hours later by her father in a lifeless state and with troubling injuries, most obviously significant bleeding from the anus. Careful assessment of the meticulous pathological and paediatric evidence has clearly established that the injuries were the result of trauma from outside the body.
My finding at paragraph 152 was that the father perpetrated a penetrative anal assault on Poppi, either using his penis or some other unidentified object. That remains my conclusion. Some witnesses at this hearing have expressed the view that penetration with a penis would have been expected to cause more obvious injuries. That may be so, but the evidence does not exclude any one of a number of distressing possibilities. As I said before, it is not possible to reconstruct the exact sequence of events that led to Poppi’s collapse without a truthful account from the father.
In the light of this conclusion, these applications are dismissed.
This judgment and the 2014 judgment will be placed on the Bailii website.
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