A-S (Children)

In a fact-finding appeal, a deliberate harm finding may properly be inferred from the totality of the evidence even when the precise motive or mechanism remains unknown. A contemporaneous recording, interpreted with expert evidence, may establish when an injury occurred. Where the evidence shows that a child was vocalising normally before the alleged event, that may be incompatible with the alleged earlier injury and may justify a later timing. A false emergency call, followed by the event it falsely described and persistent lies about it, may support an inference of deliberate harm rather than accident. The appellate court may listen to the recording itself where it is then in almost as good a position as the trial judge to assess it. If the finding was properly open on the evidence, the appeal should be dismissed.

The mother appealed against findings made by His Honour Judge Marston in the Family Court at Bristol on 31 October 2014 during care proceedings concerning L and his siblings. The judge found that the mother had deliberately drowned L, who was approximately seven months old, after making a 999 call which falsely suggested that he had already drowned in a bath.

The mother accepted negligence but denied deliberate drowning. She challenged the judge’s interpretation of the emergency call, the expert evidence, the alleged timing and mechanism of the drowning, and the reasoning said to reverse the burden of proof. The central issue was whether the evidence established that the drowning occurred after the call began and was deliberate.

The appeal was dismissed unanimously. Sir James Munby delivered the judgment, with Lord Justice Elias and Lady Justice Sharp agreeing.

1. The Court of Appeal listened to the 999 recording, as had the trial judge and the experts. It was therefore in almost as good a position as the judge to assess the crucial evidence. During the first nine minutes, the recording contained normal baby vocalisations and crying, without coughing, grunting, wheezing or other respiratory distress. The expert evidence established that those sounds were incompatible with a child who had already drowned and required resuscitation.
2. That evidence properly supported the conclusion that L had not drowned before the call. The drowning occurred approximately nine minutes after the recording began, before the paramedic arrived. The timing finding was properly open to the trial judge and was unassailable on appeal.
3. The finding of deliberate drowning was also properly open. Once the timing was established, the mother’s account that L had already fallen into the water was false. The court regarded it as compelling that an accidental drowning should then have occurred in accordance with the false account, while the mother persisted in lies about what had happened. Those matters supported deliberate harm rather than accident.
4. The court distinguished the evidential inference from speculation about the mother’s motive or the precise mechanism of drowning. The inability to determine those matters did not prevent a confident finding about the timing and deliberate nature of the event. The appeal was dismissed.

• Court of Appeal (Civil Division) — Dismissed the mother’s appeal from the Family Court’s fact-finding judgment and order; [2015] EWCA Civ 748.
• Family Court at Bristol — His Honour Judge Marston made findings on 31 October 2014, including that the mother had deliberately drowned L. The final hearing had not yet taken place.