A Local Authority v W (No2) (Finding of Fact Hearing)  EWFC 68
This was a judgment handed down by MacDonald J following a Fact-Finding Hearing to consider how S suffered a hypoxic head injury when nearly 3 months old in early June 2019. The judgment was a long and detailed one and full reading is recommended. However, a summary is set out below.
The parties commenced their relationship in 2016. Their relationship was seen to be ‘characterised by instability, with frequent separations’  and was described by both parties as ‘toxic’.
Parties had their first child, L in 2018. Both parties were involved in drug use and the Father also misused alcohol. The relationship was also defined by domestic abuse and Father admitted that he had anger issues.
Before reaching the incident, which took place in June 2019, the Court found it necessary to point out the sleeping arrangements for the Children. The parents accepted that on occasions, L would sleep on an inflatable bed with the parents (and in fact it was admitted she was doing so on the morning of the incident) and that at times, Father would fall asleep whilst holding/feeding S and Mother would remove S from him without his knowledge. Father claims he does not remember these incidents happening but doesn’t deny Mother’s assertion that it happened.
In the early hours of 1 June 2019, Father returned home intoxicated with a friend, DB. DB was extremely intoxicated, and an incident took place in which S’ Moses basket was knocked off its stand by DB and S fell onto the floor. No medical assistance was sought. Both parents then contend that 1 June 2019 was a normal day.
In the early hours of 2 June 2019, L woke the parents up at 5am. Following tending to L’s needs, it was then discovered that S was not breathing and was unresponsive. Father asserted that he hit S on the back twice, which caused S to start breathing and responsive once again. An ambulance was called, and S was taken to hospital.
It should be noted that the parents’ version of events around 2 June 2019 were described to differ and be inconsistent.
Examinations of S revealed no evidence of trauma, bruises or other visible injuries. It was considered however that S was suffering from seizures whilst in hospital.
S underwent an ophthalmology review, an EEG and an MRI scan. There was no retinal haemorrhage. The EEG was reported as abnormal with evidence of diffuse and cortical damage to S’ brain. The MRI was reported as being grossly abnormal. What was seen were not classical features found in non-accidental injuries, however non-accidental injury could not be ruled out as a possible cause .
Parents agreed for L to be accommodated under Section 20 on 7 June 2019, with S joining on 17 June 2019 following being discharged.
The Court gave permission for two expert reports. The first by Professor David, a Professor of Child Health and Paediatrics and the second by Dr Stoodley, Consultant Paediatric Neuroradiologist.
Professor David set out two possible causes of S’ symptoms in his reports, either a naturally occurring, but a poorly understood process that interfered with S’ breathing or that one of his parents intentionally suffocated him. In his oral evidence, Professor David also stated a third possible cause could be that S had been overlaid by an adult. Professor David concluded that a poorly understood natural event was the more probably cause.
Dr Stoodley also set out that the symptoms could be as a result of an acute life-threatening event or either an intentional or unintentional asphyxia. Dr Stoodley concluded that from the scans, it wasn’t possible to differentiate between the two.
MacDonald J made a number of findings in relation to the parties’ relationship, domestic abuse and neglect. He also made findings that the parents had colluded to conceal their phone records around the time of S’ collapse and that they had lied about the circumstances in which S was found in a moribund state in order to disguise what really happened on that morning.
MacDonald J placed limited weight on the evidence of Professor David, one of the reasons being that Professor David had referred to, and appeared to place weight on, research conducted by Professor Meadow which had been previously criticised. He did place weight however on the following:
- The stressful and toxic nature of the household environment around the time of the incident
- The fact that the parents had engaged in co-sleeping with L in the past and that Father had fallen asleep whilst holding S, and the poor practices around that, including dismissing professional advice given
- The unlikelihood, based on other evidence the Court had heard, that L would wake up at the time, or close to the time when S was suffering from a naturally occurring respiratory arrest.
The Court concluded that “the inconsistencies in the parents’ evidence and the dishonest conduct in which they have engaged in respect to the circumstances of S’ collapse further increases the likelihood that that occurrence was a non-natural asphyxia event rather than a poorly understood natural event”  and that “the asphyxia event that…took place was caused by one or other of the parents overlaying S” .
The Court then went on to make directions for the welfare stage of the proceedings.
This case serves as a reminder that the Court needs to consider the case in the context of all of the evidence and not place extreme weight on the evidence from the medical experts.
As a final side point, this hearing appeared to take place as a remote hearing. Of interest, MacDonald J made the following comment; ‘in circumstances where I directed the that the parents should keep their cameras on during the course of the hearing and their images ‘pinned’ to the computer desktop, I in fact had a better view of the parents and their demeanour during the course of the hearing than is ordinarily available to me during the course of a face to face hearing, where the parents are sat behind their lawyers’ .
As it appears that the concept of remote hearings will continue for some time, this is an interesting point of consideration when discussing whether a hearing does require the presence of the parties in Court.