England and Wales Family Court Decisions (other Judges)

Case No: ME17C00701

 

 

IN THE FAMILY COURT AT MEDWAY

 

Anchorage House

47-67 High Street

Chatham

Kent

ME4 4DW

Date: 1^st December 2017

BEFORE:

 

HER HONOUR JUDGE LAZARUS

 

BETWEEN:

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Legal Representation

 

Ms Brown (counsel) and Ms Bates  on behalf of the Applicant

Ms Branigan QC and Ms Kothari (counsel) on behalf of M

Mr Lloyd-Jones (counsel) on behalf of MGPs

Mr Batt (counsel) on behalf of the children

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Judgment

 

Reporting Restrictions Applied: Yes - Children Act 1989

 

“If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person”.

 

 

 

Her Honour Judge Lazarus:

 

INTRODUCTION

1.            This is an unreserved oral judgment given at the end of a fact finding hearing relating to A.  A is a little boy, almost nine, who suffers from Down’s syndrome and epilepsy.  I have listened very carefully to all of the evidence and submissions.  I have thought very hard about everything that I have heard and read.

 

2.            I note by way of introduction that this has been a comparatively complex fact finding hearing which has undergone a number of significant developments during the course of this hearing and these proceedings.  Firstly, my thanks to the parties’ advocates, particularly for the Local Authority who stepped in following originally instructed counsel falling seriously ill on the morning of the first day listed for this trial and effectively saved the case from a three month adjournment.  It has also meant adaptation by other advocates to that turn of events and I am very grateful. 

 

3.            Secondly, the medical evidence reached a point of clarity and consensus during the course of these proceedings and this hearing, and particularly following the experts’ meeting which shortly preceded it but, in the course of hearing that evidence, it emphasised a number of significant concerns about the impact of and interpretation of hair strand testing in this case and I will come on, in a postscript to this judgment, to deal with those matters briefly. 

 

4.            Thirdly, the mother made some significant admissions about the impact on her of an opiate medication dependency which covered the relevant period, and which inevitably had some impact on the issues before the Court. 

 

5.            Further in outline I note that A is a much loved little boy.  He was seven, turning eight, at the time of the start of the key events in this case and is now almost nine.  He lives with his 12 year old cousin B who is also the subject of these proceedings but does not feature in this fact finding hearing save that I note, right at the outset, that she has undoubtedly experienced significant disruption, emotional turbulence, suffering and worry as a result of A’s hospitalisations and the subsequent changes to her life due to the safeguarding steps and these proceedings that have followed. 

 

6.            In a nutshell, to describe the parameters of the case, A, who suffers from Down’s Syndrome and epilepsy, was found, following a very serious epileptic episode requiring emergency hospitalisation and invasive treatment in November 2016, to have almost none of his anti-epileptic medication, sodium valproate, showing in his system.  This low level of sodium valproate was again found in a repeat test in early December 2016, and when he suffered a further serious epileptic episode in January 2017 his sodium valproate levels were still extremely and unusually low. 

 

7.            Additionally, a urine toxicology test taken on the 19^th January when he was admitted to hospital showed a very high level of tramadol and slightly lower levels of codeine, and their metabolites.  These were not drugs prescribed to A but to his mother and this led the Local Authority to issue proceedings and ultimately to seek findings that she either deliberately withheld his medication and administered her own to A, or alternatively that she neglected his medical needs and neglected his appropriate care and supervision in terms of his access to her medication. 

 

8.            A’s epilepsy has been historically hard to control.  He was diagnosed in 2012, suffered a number of seizures between that period and late 2014, and then a period of some stability without seizures from December ’14 to June ’16.  He was hospitalised in June 2016 and, as I say, in November 2016, and it was by chance that the blood test taken on his admission showed the almost zero levels of sodium valproate.

 

9.            This came to the notice of his treating consultant, Dr G, and, at a routine clinic visit thereafter on the 5^th December, mother was informed for the first time of those low levels and another blood test was undertaken.  The results were not immediately available but indeed went on to show the same low result.  Mother informed me and the parties that she was not aware of that second test result before A’s next crisis on the 19^th January when he was taken from school by ambulance suffering from serious seizures and remained admitted until the 23^rd January.

 

10.        His sodium valproate levels taken twice that day showed 16 milligrams and 20 milligrams per litre as against levels aimed for by clinicians of 50 to 100 milligrams per litre.  The urine toxicology results that I have already referred to showed positive for tramadol, codeine and morphine metabolites. 

 

11.        The social worker to whom this case was referred, once Dr G had carried out the relevant safeguarding exercise following receipt of those results on the 31^st January, visited the family home on the 1^st February and the mother at that point disclosed that she kept her medication in her lower bedside drawer.  She did not, on that date, say that any tablets were loose but divulged that information on a second visit on the 13^th February when she said a couple had been found in her drawer.  On the 6^th April 2017 she suggested it was more than a couple that had been found. 

 

12.        A protection plan was rapidly agreed whereby, firstly, from a date in February A’s medication was overseen by a trusted adult, principally A’s maternal grandmother who lives next door to A’s mother with A’s grandfather.  Ultimately, in the course of that Spring, A and B moved in early April, pursuant to the protection plan, to live with their grandparents, and the maternal grandmother was required to take over complete control of administering all of A’s medication.  By the 17^th April A’s levels of sodium valproate were as high as 132 milligrams per litre on a test taken on that date.  He has suffered no seizures since the episode in January 2017.

 

13.        At this point, although I do not do so in full due to pressures of time, I treat as being read in here the amended schedule of proposed findings prepared by Ms Brown during the course of the hearing and dated the 23^rd November 2017 (schedule attached at Annex A). That is the outline of the case that this Court has had to grapple with.  

 

14.        The findings that I ultimately have made are attached at Annex B.

 

HISTORY

15.        I turn then to a more formal introduction to the issues and, in doing so, run briefly through the history of the matter, the parties and their positions.  A’s mother is M.  She conceived A by sperm donation and his father is not known.  B is a party but, as I say, not directly involved in these proceedings.  Her parents are M2 (M’s sister), and her ex-partner, X.

 

16.        I do not touch upon the threshold issues that relate to B at this stage and M2 has not attended nor been represented during the course of this hearing due to matters relating to B not being the subject of this hearing.  Until the 4^th April B and A lived with M in her home, M having taken over the care of B following a significant deterioration in the care offered by X and M2.  Currently the children live with the maternal grandparents, who live right next door and the current position is secured by way of a Child Arrangements Order that I granted on the 20^th April 2017.

 

17.        The maternal grandparents have three children, M and M2 already mentioned and C.  They have a total of ten grandchildren including A and B.  They all live locally to each other.  C and the maternal grandfather work together in their small business.  M has provided help to C and his wife by way of childcare and to the small business by way of some significant administrative help following her father’s illness with serious heart disease in late 2016.

 

18.        M2 has three children, Y and Z and the youngest, B, who I have already mentioned.  M2 has long term issues with street drugs, particularly the use of heroin, as does X, B’s father.  B, as I say, has lived with M since August 2014 but had been living with her for time to time since her birth on a somewhat irregular basis.  Y and Z had very disrupted care during their childhoods and there were lengthy periods when they have lived with the maternal grandparents.  From the age of 13 Z lived there continuously until September 2017 when he moved to university.

 

19.        Y became a very young mother at the age of 15 with her first child P and M has provided extensive support to Y and in particular following the birth of Y’s second child, Q, in February 2016.  Q has not been a well child and has spent most weekends with M off and on since that period.  Additionally, there was a Section 47 Children’s Services investigation in relation to P in September 2016, and M has provided very intensive support to Y who found the process difficult to manage. 

 

20.        This family has also suffered two significant bereavements in 2016 and the maternal grandfather suffered extremely serious heart disease and treatment in late 2016, and I gathered from his evidence that at one point he was worried he may only have weeks to live.  This has undoubtedly been a family under extreme stress, not simply since 2016, but over a lengthy period.  The family group conference that was undertaken in August demonstrated that this is a large and close knit family.  The evidence I heard from the maternal grandparents underpinned the conclusion of that meeting that they are the core of the family, the younger members of the family radiating out from that stable family basis.

 

21.        There are numbers of friends who provide support, and I do not wish to underestimate additionally the impact on the family of these proceedings nor indeed of coping with A’s needs.  A will be nine at the end of December.  He was diagnosed with Down’s syndrome very shortly after his birth.  He has had numerous, over 40, emergency hospital admissions in his short life and on eight occasions has been transferred to paediatric intensive care.  The longest period within which he did not have any hospital admission was from the end of 2014, as I say, to June 2016. 

 

22.        As I have indicated, he was eventually diagnosed with epilepsy in May 2012 and has been under the care of Dr G, Consultant Paediatrician at XX Hospital, and Dr W, Consultant Paediatric Neurologist at YY Hospital.  He attended mainstream school until September 2016 when he transferred to his current special school, O school, which is better able to meet his educational and developmental needs.  He has learning disability, global developmental delay and limited ability to communicate.  He is generally working at a level of a neurotypical two to three year old on his last assessment. 

 

23.        He needs some help with toileting and dressing but can feed himself and is a very active eight year old.  He has a full hand grasp and I have seen a video of pincer grasp using either his index or his third finger, which video was taken on the 17^th November this year, two weeks ago.  His speech is very limited and he has been learning to sign.  At the time of the events in late 2016 and early 2017 this was very undeveloped and he has shown a good deal of progress in the last year.

 

24.        A, it is quite clear to me from the evidence I have heard, is a very much loved little boy.  I do not however, as I have indicated, underestimate the struggle that this family will have undergone in attempting to look after a little boy with Down’s syndrome.  Those suffering from Down’s syndrome are sometimes said to lack the propensity for negativity that we see in those who are not so affected, and he has charmingly and delightfully been described by the family to me as a delightful, loving, but also extremely active, busy and demanding, little boy. 

 

25.        Their feelings of love, connection, deep interest and delight in A were evident from their oral evidence, and in particular I note and have taken into account what is described in the written submissions prepared on behalf of the mother as the ‘broad canvas’, that he was a planned IVF pregnancy and a much wanted child; the mother has said to more than those simply involved in these proceedings that she loved him from the minute she had him; witnesses, professional and other, report an obvious close and affectionate bond between A and his mother and A and his other family members; and there is clearly devotion and a good understanding of his needs throughout the family. 

 

26.        They all, particularly the mother, take pride in all of his achievements and he has been offered a stable and loving home with his mother and his extended family. I note at this point that the maternal grandparents moved to live next door to the mother in recent years in order to provide that immediate availability of both support and affection for her and the children.  A has an active social life, an active school life.  He has had significant involvement with all of his cousins and the mother has had significant involvement in caring for her nephew and nieces, her great nephew and niece and all four of C’s children. 

 

27.        There has been no prior involvement in A’s life by social services and mother is noted to be a robust advocate and champion for A both with medical and educational professionals.  She has been noted to be fully engaged and proactive in relation to those needs.  She has promoted the development of his speech and effectively set up and devised a means of A gaining access to excellent treatment from a speech and language therapist, Miss Z, from whom I heard evidence.  She has shown a very good engagement with all the professionals.

 

28.        The family GP reported no concerns.  Other medical professionals from whom I have heard reported no concerns and the social worker notes a loving and caring relationship.  A appears calm and settled when at home and able to engage in his life with fun and love and energy.  Mother speaks about A consistently affectionately, including any mischief he gets up to, and I found that echoed in the evidence of the maternal grandparents. 

 

29.        The maternal grandfather described A with great affection as an extremely active boy who would hardly give him a moment’s peace in the garden or elsewhere.  I have read descriptions of him enjoying trampolining club, music, dancing, swimming, disability football, fishing trips with his grandfather, gardening, hammering, copying household tasks, cleaning and tidying and that he manged the transition to his new school very successfully.  Mother presented as upset, anxious, possibly angry at school shortly after his start there at the beginning of the Autumn term of 2016.  The school generously, and in my view appropriately, recognised that this was most likely due to significant levels of anxiety felt by M at A changing schools, he having been very well settled in his mainstream primary school before then with a network of friends who lived nearby.  This must indeed have been a very difficult transition and indeed a difficult acceptance by the mother of the lifelong difficulties that A will have.

 

30.        The evidence from the school was also touching, showing that A is an affectionate and lively child and who is getting better at his signing.  The school themselves indicated they had very little concerns, if any, in relation to A and his mother. 

 

31.        To conclude the introduction, of course A and B have been separately represented in these proceedings through their guardian.  Unfortunately, their guardian, through pressure of work, has been unable to attend most days of the hearing and unfortunately missed the second part of the mother’s evidence after she was recalled which is a matter of regret but not of criticism.  I note that all parties have been represented very ably by their advocates before me and I thank them.

 

THE LAW

32.        I turn now to the law.  The burden of proof is on the Local Authority in relation to the findings set out in the schedule.  It is for the Local Authority to satisfy me on the balance of probabilities that it has made out its case in relation to disputed facts.  The family has to prove nothing.  I must be very careful to ensure I do not reverse the burden of proof and it was rightly pointed out by Mr Justice Mostyn that there is no pseudo-burden or obligation cast on the Respondents to come up with alternative explanations.

 

33.        The standard of proof is the civil standard, namely the balance of probabilities.  In particular, as emphasised in the case of Re B (Care Proceedings Standard of Proof) [2008] UKHL 35 and Re S-B (Children) [2010] 1 Family Law Courts 1161.  I have applied that balance of probabilities.  In making any findings I have considered all the relevant evidence and submissions, even if every factor may not be specifically cited in each case. 

 

34.        I note that:

 

“The seriousness of the allegation makes no difference to the standard of proof to be applied in determining the truth of that allegation.  The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.”

 

Again, from Re B:

 

“If the evidence in respect of a particular finding sought by a party is equivocal then the court cannot make a finding on the balance of probabilities as the party seeking the finding has not discharged either the burden or the standard of proof.”

 

Re B (Threshold Criteria: Fabricated Illness) [2002] EWHC 20. 

 

35.        From Re B (Children) [2008] UKHL 35 already cited, I note, from the judgment of Lord Hoffman:

 

“If a legal rule requires a fact to be proved, [i.e.] (a fact “in issue”), a judge or jury must decide whether or not it happened.  There is no room for a finding that it might have happened.  The law operates a binary system in which the only values are 0 and 1.  The fact either happened or it did not.  If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof.  If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened.  If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”

 

36.        In Re S-B [2009] UKSC 17, Baroness Hale insisted that Re B did not represent a departure from earlier authorities in the House of Lords Supreme Court stating, at paragraph 13

 

“None of the parties in this case has invited the Supreme Court to depart from those observations, nor have they supported the comment … that Re B “was a ‘sweeping departure’ from [other] authorities in the House of Lords in relation to child abuse, most obviously the case of Re H.”  All are agreed that Re B reaffirmed the principles adopted in Re H while rejecting the nostrum, “the more serious the allegation, the more cogent the evidence needed to prove it”, which had become a commonplace but was a misinterpretation of what Lord Nicholls had in fact said.”

 

37.        In paragraph 2 of Re B Lord Hoffman further explained that sometimes the decision will be made by reference to the failure to discharge the burden of proof and in paragraph 32, Baroness Hale made the same point as follows:

 

“In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place.  If he finds it more likely than not that it did not take place, then it is treated as not having taken place.  He is not allowed to sit on the fence.  He has to find for one side or the other.  Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did.  But generally speaking a judge is able to make up his mind where the truth lies without [necessarily] needing to rely [on] the burden of proof.”

 

38.        This particularly applies in this case where the Local Authority has contended that it may be open to me to find that, while A ingested tramadol and codeine, it can be left that this is either accidental or deliberate without examining whether either particular allegation is satisfactorily established to the required standard.  I will go on to consider some of the authorities cited by Ms Brown and the arguments in refutation by Ms Branigan but, in a nutshell, I disagree with the Local Authority’s position and I consider I must, on the above principles set out in these leading authorities from the Supreme Court, and given the schedule of findings sought, carefully consider whether either of the allegations which are pleaded in the alternative, are so established to the requisite standard. 

 

39.        Findings of fact must be based on evidence.  The Court must be careful to avoid speculation, particularly in situations where there is a gap in the evidence.  As Lord Justice Munby as he then was observed in Re A (Fact Finding Hearing: Speculation) [2011] EWCA Civil 12:

 

“It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence, and not on suspicion or speculation.”

 

40.        I note of course also that the evidence of parents is of the utmost importance in a fact finding case, Re W (Non-accidental Injury) [2003] Family Court Reports 346.  In doing so I remind myself of the guidance in R v Lucas [1981] Queen’s Bench 720 where guidance is provided that where there are issues in the case as to the extent to which here a mother may have lied to this Court or to professionals investigating A’s illness and care that, firstly:

 

“I must decide whether or not [she] did deliberately tell [a lie].  If I find … [she] did, I have to ask myself why … The mere fact that a witness tells a lie is not in itself evidence that the person concerned is [a] perpetrator.  A witness may lie for many reasons.  They may possibly be “innocent” ones in the sense that they do not denote responsibility for the [alleged behaviour].  For example, they may be lies to bolster a true case; or to protect [another]; or to conceal some other disreputable conduct unrelated to [A’s care]; or out of panic, distress or confusion.”

 

41.        It follows that if I find that the mother lied, I must assess whether or not there is an innocent explanation for those lies that does not implicate her as a perpetrator.  However, if I am satisfied that there is no such explanation, I can take the lies into account in my assessment of the allegations and her role.  I have heard expert evidence from a number of doctors with different specialisations.  It is for me to weigh the expert evidence alongside the lay and other observational evidence. 

 

42.        Lord Justice Ward said in Re B (Care: Expert Witnesses) [1996] 1 Family Law Reports 667:

 

“The expert advises but the judge decides.  The judge decides on the evidence.  If there is nothing before the court, no facts or no circumstances shown to the court to throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it.  There is, however, no rule that the judge suspends judicial belief simply because the evidence is given by an expert.”

 

43.        Lady Justice Butler-Sloss added, in the same case:

 

“An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be.  It is, however, necessary for the judge to give reasons for disagreeing with experts’ conclusions or recommendations… A judge cannot substitute his own views for the views of the experts without some evidence to support what he concludes.”

 

44.         

“The expert evidence does not sit in a vacuum nor is it to be interpreted in isolation from … other evidence.  Even if an expert says that there are a number of possible explanations … it is still open to [a] Court to find on the evidence as a whole which is the probable explanation.”

 

See Re B (Non-accidental Injury) [2002] EWCA Civil 752. 

 

45.        There is extensive case law relating to the expansion of the frontiers of medical science and the need to be open to the notion that today’s medical certainty may be discarded by a subsequent generation or that research may throw light into corners that are presently dark.  That has fortunately not been an issue in this case, however, I have borne in mind some of the helpful guidance as to how decision making can be undertaken and where it is important to avoid speculation or assumption.  I note the quotation of Professor Luthert quoted with approval in the R v Harris and Others [2005] EWCA Criminal 1,980, that:

 

“It is very easy to try and fill those areas of ignorance with what we know, but I think it is very important to accept that we do not necessarily have a sufficient understanding to explain every case.” 

 

46.        So, while it remains open to a Judge to rule that the cause of an injury remains unknown, that is not what pertains in terms of the uncertainties in this case.  In this case, and in particular in relation to the issue raised by the Local Authority in terms of the deliberate or accidental ingestion of tramadol and codeine by A, it is not a matter of medical uncertainty.  He ingested.  The results are there and so, while there are those observations made in those cases that have medical uncertainty, they are distinguishable and importantly distinguishable from this case. 

 

47.        At this point I turn to the detailed submissions provided to me by Ms Brown which I have mentioned, in which she valiantly attempts to demonstrate that it may be possible for the Court to reach a conclusion that it is neither possible to determine that it is more likely than not there was a deliberate administration, and nor is it possible to determine that it is more likely than not that it was an accidental ingestion.  She cites in particular the decisions of Mr Justice Peter Jackson as he then was in Re H-C (Finding of Fact: Rehearing) [2016] EWFC 48 where he cites his own judgment in Re BR (Proof of Facts) [2015] EWFC 41.  She adapts its structured reasoning to this case, and in particular cites paragraph 17, 18, 19, 20, 21 and 22 of Re H-C, but I note that paragraph 21 of that case which she quotes states that:

 

“It is for the Court to conclude whether the Local Authority has established on the balance of probabilities that [and here we turn to the adaptation of the wording by her to this case] that mother deliberately administered tramadol and codeine.  It is for the Court to consider the likelihood that the tramadol and codeine was ingested accidentally.”

 

48.        While she then goes on to quote paragraph 22 and, again, adapts it with her own wording to the facts of this case. to assert that:

 

“It is open to the Court that it cannot exclude the possibility that the tramadol and codeine was deliberately administered, but, unless it is proved, it must be treated as a matter of law as not having occurred.”

 

49.        That, in my view, is the nub of what the Local Authority faces and, if they do not satisfy to the relevant standard, then, as a matter of law, it is treated as not having occurred.  She also states that paragraph 9 of the case of Re BR gives guidance on the approach to be taken and I take that into account.  However, what I do note is that it may be confusing to simply attempt to adapt directly these cases that deal with unusual medical possibilities where medical research is stretching into areas of novel and difficult terrain whereas here we are dealing with the clear fact, as proved by the urine toxicology test, that A ingested the substances.

 

50.        In particular I note from her own first submissions document, which is not the document relating to the legal points that I am quoting from currently, at paragraph 24E of that document which sets out the way the Local Authority invites the Court to consider the ingestion of tramadol and codeine, at 24E it reads:

 

“There are two ways that the ingestion could have occurred, either accidentally or by the mother administering it to A.  In effect the failure by the Local Authority to prove deliberate administration will, in binary fashion, move on to the alternative findings they seek.”

 

51.        She has used the term accidentally in her submissions document but I am of course mindful of the terms set out in the findings in the schedule, namely:

 

“Alternatively, M enabled A to gain access to tramadol and codeine on a date or dates from the 15^th to the 19^th January.  M failed to keep her tramadol and codeine medication in a secure place.  M failed to supervise A properly in the period between the 15^th and the 19^th January 2017.”

 

52.        Ms Brown, frankly cleverly, cites cases relate to disputed allegations of non-accidental injury where medical evidence is relied upon to put forward novel or uncertain explanations or raise probabilities and possibilities.  But it is because the facts of this case are as they are and relate to an indisputable ingestion whereas those cases relate to the limits of current medical understanding, that I conclude that case law is very significantly distinguishable from this current situation.  In effect, Ms Brown and the Local Authority are bound by their own schedule and indeed her, in my view, correct analysis of the implications for the Local Authority and the way in which the Local Authority invites the Court to consider the question of ingestion at paragraph 24 of her original submissions document. 

53.        She goes on to cite Mr Justice Hedley in Re A (A Child) [2011] EWHC 517 and the judgment of the President, Sir Nicholas Wall, summarising this approaching in Re N [2011] EWHC 1156.  I do not seek to gainsay any of this valuable guidance, but I do assert and find that this argument and these cases, as I say, are only applicable where there is the type of medical uncertainty on the question of novel or as yet poorly understood medical conditions. 

 

54.        Ms Branigan’s document in response points out that the overall approach of the Local Authority in relation to this point is simply wrong in law and principle.  It reminds the Court of Re B, the approaches taken by Mr Justice Peter Jackson in Re H-C, Mr Justice Baker in a Local Authority v L and M [2013] EWHC 1569 (Fam) which are rooted in the foundations of Re B and illustrate an approach to the task of determining whether or not facts have been proved to the requisite standard.  She writes:

 

“If a fact isn’t proved to the requisite standard, even if the Judge is 49% suspicious that something has happened, it will not be proved and must therefore be treated as not having occurred.”

 

55.        I consider as well founded her argument that it is the Local Authority who seeks findings in accordance with its amended schedule, in particular the findings to which I have referred, and it is wrong to suggest that the mother is seeking any finding.  As I have indicated here, ingestion by A is a fact.  In that respect there is no medical uncertainty.  If I find that the Local Authority has not established its case on deliberate administration then, while there may be concerns or suspicions, it has been decided in the binary process referred to as not having occurred. 

 

56.        However, ingestion has occurred, as illustrated by the schedule of findings sought, and those remaining findings sought in the alternative relate to the lack of supervision and the neglectful storage of medication and that this thereby enabled A to obtain and ingest the medication.  These are not findings sought by the mother but accepted by her and I therefore consider as fully distinguishable the case of Re A [2011] that Ms Brown refers to where parents were seeking exoneration after the Local Authority had sought to withdraw the proceedings due to the uncertainty of the medical picture.  I will therefore be proceeding on the basis set out in the authorities to which I have referred already.

 

EVIDENCE

57.        Turning then to the evidence, I have read all the file documents.  I have been taken to relevant parts of the voluminous medical records relating to A and his mother.  I have benefitted from the written position statements and submissions documents filed on behalf of the parties.  I have seen a short and charming video clip of A picking up Rice Krispies from the kitchen table with his thumb and index finger or thumb and third finger which was taken, as I say, on the 17^th November 2017. 

 

58.        I have heard evidence from Dr G, the Consultant Paediatrician to whom I have already referred, from Miss H, the Specialist Epilepsy Nurse at XX Hospital who has had a great deal of involvement with A and his family, from Miss Z, his speech and language therapist to whom I have referred.  From Ms R, the Deputy Head at O school at which A attends.  From Mr Jerome, the previous social worker who visited the family upon the referral being received from the medical professionals.  I have heard from the mother and the maternal grandparents.  The medical experts jointly instructed within these proceedings, from whom I have heard, are Dr McGowan, Consultant Paediatrician, Dr Rushton, Trichologist and Dr McKinnon, toxicologist.  I have also heard evidence from Mr Ramsey, a scientist employed by Alere/Abbott Toxicology/Abbott. 

 

59.        I found all the expert witnesses were clear, consistent, thorough and persuasive.  The professional witnesses, save for Mr Jerome, I found to be clear, impressive, fair and their evidence was not undermined by cross examination.  Mr Jerome did his best but I found his recollections fitted on occasion poorly with his more contemporaneous notes and that those notes were in themselves shown at times to be lacking in some salient details.  His errors were not vindictive but meant that I can place perhaps less weight overall onto his recollections, albeit that I find in relation to certain key elements the mother was prepared to admit and accept that his account was what she had told Mr Jerome. 

 

60.        I have already touched upon the evidence I have heard from the maternal grandparents but in a little more detail here: I found the maternal grandfather to be touching, honest, loving, open, articulate and overall a very impressive witness and a very caring family man and I thank him for his evidence.  He painted a very vivid picture of the details of their family life and of A’s ways and I feel very grateful to him for having assisted me to understand A a great deal better than at the start of the hearing.  I am also grateful for his openness as to the difficulties his family has undergone, his own personal regrets as to how the family may have managed those difficulties, but I was impressed at his ability to reflect and express all of that.

 

61.        It also did become clear through the course of his evidence, and indeed the mother’s evidence, that she had not shared fundamental issues with either him or his wife regarding her own problems, particularly dependency on opiate medication.  Additionally, I find that she had led them to think that A’s treatment with sodium valproate syrup was somehow less effective than with the granules.  He believed, because of what M had told him, that the period of 18 months without a seizure between late 2014 and mid-2016 was a period that A had been being treated with granules, whereas, in fact, it was syrup.  I will come on in due course to consider some of the oddities of the mother’s evidence but that was a small but striking element that emerged from the family’s oral evidence before me.

 

62.        The maternal grandmother I found to be an equally impressive witness, although perhaps a degree more reserved in her ability to express it.  I found her to be a loving, conscientious, honest, stalwart member of the family; deeply loyal and deeply caring and again I would like to thank her for the efforts that she has made within this family to care for these children and to share her evidence with the Court. 

 

63.        I turn now to the mother.  I heard the mother’s evidence in two parts, inviting her to be recalled in the afternoon after the grandfather had given his evidence that morning.  This flowed from a growing concern that the mother had only touched upon her dependency on opiate medication.  But also, in the context of the puzzling elements to the case and her evidence in particular, and after hearing from the maternal grandfather who had painted an entirely convincing picture of a mother stepping up to very significant challenges within the family that they had faced in the previous year in particular, and that this stood in a stark contrast to the puzzling conundrums relating to A’s care in the relevant period.

 

64.        Her initial evidence, which I will touch on first, showed a highly appropriate and detailed awareness of, and indeed an acceptance of, the medical consensus that emerged from the experts.  I am appreciative of the mother’s ability to have understood and acknowledged that medical evidence.  She attempted to be helpful overall albeit there were still some very puzzling conundrums.  She was consistent in many of her responses and explanations and mainly gave plausible and reasonable explanations to the factual disputes posed to her through a long, detailed and thorough cross examination. 

 

65.        However, significant puzzles and suspicions remained.  She practised as a nurse for some five to six years until, I believe, around 2009.  She comes across from all sources as a reliable, organised and resourceful person and champion for A.  She clearly knew his health needs, prescriptions, diagnoses, and problems inside out and that is evident on a number of fronts: from the professionals’ evidence, the hospital records and the school notes.  She had close working relationships with all of the professionals involved with A’s care.

 

66.        She was fully aware of and engaged with his health and other needs plus her own family’s needs.  She showed some occasional stress or irritation to either school or hospital staff but I have to say that I found from the records that that was rare and appeared to be in entirely appropriate contexts: in the school context in relation to the difficult change to the new special school that I have mentioned; in the context of hospital treatment, given the number of admissions, the degree of stress and worry that must be induced by having such a sickly child from time to time, I am surprised that there were perhaps not more difficulties between her and hospital staff.  But, what was particularly puzzling in that context, is that she admitted to inconsistent administration of his antiepileptic medication.  Why?

 

67.        Why should it be inconsistent in that context?  She admitted to me that she did not keep any note of missed doses and yet she is a nurse and deeply aware of the implications of his medication, the implications of his disorder and keen for the school to ensure that he is properly medicated when he needs to have medication administered while in their care.  She did not tell the hospital, the doctor, or her family, particularly when A was admitted in November and January, of any missed doses of sodium valproate; nor did she tell Dr G and Miss H during the routine clinic visit in December when they alerted her to the low results found in November.

 

68.        She did not consider he might find or take her loose medication that was left in the bottom drawer of her bedside cabinet at home and, when she was alerted to the results of the urine toxicology test by the social worker’s visit on the 1^st February, she did not immediately search, disclose and show any loose tablets that she might have been able to find in that bottom drawer. 

 

69.        She was therefore recalled to give further evidence because of these concerns and in particular that the very brief acknowledgment in the first tranche of her evidence of having a dependency on her opiate medication at the relevant time had not provided any significant detail of how that dependency had actually been affecting her.  When she was recalled, it clearly was the first time that she had openly addressed this or perhaps even put it into words and I appreciate that it was evidently a painful and difficult process in front of a roomful of other people in Court.

 

70.        She was clearly embarrassed, troubled, felt shame and pain.  She was, at times, tearful and distressed.  She told me she did not want to admit it, especially to her family and even to herself, and she had not wanted to admit it to her parents because of her own sister’s difficulties with substance misuse and she did not want them to fear that she was going down the same way. 

 

71.        She said that she felt she could not cope on the days that she ran out of codeine, and that she would effectively retreat into her home.  She would:  “Feel like shit.” 

She would get little or nothing done.  She felt like she had the flu, she felt lethargic, she felt low and at one point even wondered whether it was because she was becoming depressed.

 

72.        She said she felt panic when she realised from time to time that she had no or few codeine tablets left until her next prescription, that she felt obsessed about her own medication and used to count the days and how many tablets she had left and this she described as a major preoccupation.  This would prompt her, on occasions where she had run out of her codeine medication, to trigger a new prescription a few days earlier than the fortnightly cycle in order to get more of it made up sooner.  I have seen a table prepared by the Local Authority which shows this pattern, albeit these detailed dates were not explicitly put to the mother, but it runs from October 2016 to January 2017 showing that on only one of those fortnightly prescriptions did the full 14 days run.  The rest varied between the shortest gap between prescriptions of nine days, ranging through ten, eleven, twelve or thirteen days. 

 

73.        Her explanation of how this situation arose was that she had become used to taking codeine, and its effects therefore were becoming less unless she took more.  Her reasons for being prescribed this medication were originally for pain-killing purposes and I do not doubt that she has been diagnosed as suffering from painful disorders, one disorder with her eyes and another with a surgery to her ankle.  However, her description of when she realised that it was on taking codeine she could relieve herself of those awful feelings of lethargy, lowness, flu-like symptoms was an effective description of a real dependency; and so she began taking more per day than prescribed and therefore running low or running out towards the end of the fortnight.

 

74.        It is clear from her functioning, presentation and other aspects of her evidence and the evidence of others that this is not a woman who resorted, as many do, to street drugs or obtaining other medication illicitly during this period.  Instead, she juggled her prescription. 

 

75.        However, from the limited evidence before me I cannot know the extent or history of her difficulty in full.  There is a context evident from the medical records which has not been fully examined in this hearing.  She has been prescribed opiate medication for at least 10 years, and a number of concerns appear to be raised historically in the medical records, none of which have been examined in detail nor put to the mother, nor made the subject of any detailed forensic analysis within this hearing.  They are not issues that I can therefore determine now.  They may or may not need to be assessed and they may or may not prove relevant in due course.

 

76.        However, in her initial evidence, I am forced to find that the mother clearly did lie to me as to how she took her medication, and in particular her codeine.  She described taking two tablets a couple of times a day which is clearly wrong.  It was an act of minimisation at a point where she had not yet given the fuller and more detailed admission of her difficulties in the second tranche of her evidence.  It is exactly the kind of lie to which the Lucas direction applies and I can see that she was attempting still, even at the point of giving evidence before me this Monday, to conceal the extent of her dependency and what it looked like. 

 

77.        Nonetheless, it does have implications.  It makes it difficult for this Court to rely fully on everything that she has said, which may have implications for how to interpret her care of A.  She told me that she clearly knew she had a problem, at least since mid-October 2016.  But I think I can make no clear finding about that in the context to which I have referred, namely, the minimising lie she told me in the first part of her evidence and also in the context of extensive medical records that have not been fully examined.  She accepts however, quite properly, that this will have had an impact on the care she gave A.

 

78.        I note she told no one, not even the GP who helped her come off her opiate medication this year and move instead onto Gabapentin.  I also note, to her credit, that she nonetheless achieved that change from opiate medication to Gabapentin, which is a good and important step.  She told me she feels a lot better, a lot more settled.  I commend her for that.

 

79.        However, I cannot but note the degree to which she was able to conceal from everybody, even her treating GP assisting her in moving away from this medication, of the extent and nature of her dependency.  This must and does have implications for how some of her evidence might be interpreted.  I note that her very close family who love her dearly and who live next door to her were not kept informed nor did they even notice any significant change in her behaviour or presentation.  This was a very well concealed problem.  I therefore find that this has been a very significant set of admissions by the mother but they are an initial set of admissions and I find that the picture of a complex and longstanding period of opiate medication use must currently be seen as incomplete and that it does not answer all the queries and concerns raised thus far. 

 

MEDICAL EVIDENCE

80.        I turn now to the medical evidence.  Before the proceedings began, hair strand testing was sought and obtained from Alere/Abbott Toxicology/Abbott and the results are recorded in Miss Reed’s report of the 31^st March 2017 which shows the results for four sections of hair covering approximately November or December 2016 through to March 2017 and that tramadol could be found in each such section.  The analysis in that report and a subsequent letter of the 28^th March 2017 will be the subject of further considerations at the end of this judgment, as I have already indicated, particularly in the light of the recent judgment of Mr Justice Peter Jackson as he then was Re H [2017] EWFC 64.  However, that report and letter led the parties, and in particular the Local Authority, in my view, understandably, but ultimately it turns out mistakenly, to consider that there were likely to have been multiple ingestions of tramadol by A over each of the relevant four periods tested for. 

 

81.        In fact, following the joint Court instructed experts examining all the medical information, they reached a significant and rather different consensus emerging particularly through the experts’ meeting and highlighting how important such meetings before fact finding hearings can be.  That meeting involved the Consultant Paediatrician, Dr McGowan, the eminent Toxicologist, Dr McKinnon, and Trichologist, Dr Rushton.  I found each of these experts to be careful, thoughtful and thorough, deferring appropriately to relevant areas of expertise held by their colleagues.  Interestingly, Drs McKinnon and Rushton were both instructed and had reported in this case prior to the recent hearing in which they also both gave evidence before Mr Justice Jackson which took place in September of this year and led to his judgment in Re H and which has proved to be a useful and influential case in assisting to understand and interpret and use hair strand testing more appropriately.

 

82.        However, they gave evidence before me after that judgment and, in this case, they were all in complete agreement.  I found the process of hearing Drs McKinnon and Rushton give evidence together, having been sworn together, and thereby address the outstanding issues either in turn or adding to or commenting on each other’s evidence, was immensely helpful and undoubtedly took less time than hearing from them sequentially.  I was also hugely assisted by the factual medical witnesses, Dr G and Miss H.  They were both clear.  They avoided speculation and they were very fair.

 

83.        From them I grasped a good understanding of A’s epilepsy and his presentation and indeed of the excellent impression of and working relationship that they generally had with his mother.  Overall, the agreed position that was arrived at in relation to the sodium valproate was as follows:

 

84.        At the relevant period in 2016 A was being prescribed sodium valproate syrup to be taken twice daily.  The dosage that I understand to have been applicable in November of last year, prior to his admission, was some 640 milligrams per day.  On discharge on the 17^th November it was raised to 720 milligrams per day. 

 

85.        The experts, and I believe also Dr G, from his position of experience and as a factual medical witness speaking from his expertise, indicated that there should be no difference in terms of absorption and effectiveness between the syrup and the granules.  They were simply different modes of administration.  It was also clear that the test results taken on the 7^th November and the 5^th December showed less than 3 milligrams per litre.  Dr McKinnon explained to me that although the result formally indicates a figure above zero, effectively he said this means there was almost nothing, so little to nothing in his system that it should be considered as being zero. 

 

86.        In terms of the time it might take to reach such a low level, the experts discussed matters in the following terms: that, although in some circumstances it might take weeks to reach such low levels, weeks of non-administration if he had been regularly medicated to the appropriate expected therapeutic levels, nonetheless, Dr McKinnon and Dr McGowan agreed that it was not possible to identify such longer period and that the most sustainable conclusion based upon the half-life of sodium valproate in the body, was a period of at least two days of consecutive failures to administer any doses, i.e. a minimum of four consecutive doses.  It was confirmed that sodium valproate levels were and are not routinely tested for whether in A or others, as the levels achieved vary between individuals and vary in terms of the point at which therapeutic impact is achieved.

 

87.        The level aimed for in children such as A is 50 to 100 milligrams per litre.  However, it would be misleading to call this a normal level and both Dr G and Dr McGowan confirmed that seizure control is not correlative with the amount found in the body, save of course that significantly low levels will have a significantly lower therapeutic impact and will increase the risk of seizures taking place.  The sodium valproate levels on the 19^th January 2017 of 16 and 20 milligrams per litre only still fall within an exceptionally low range and clearly A had not been receiving appropriate doses of his medication as prescribed to him.  But they could not say how many had been missed before his admission and the testing undertaken on that date. 

 

88.        Dr McGowan confirmed that while vomiting over a relevant period briefly before a test and shortly after taking medication no doubt might reduce the amount available to be absorbed, that neither diarrhoea nor constipation would have that effect of reducing his sodium valproate levels as seen here.  I note of course that there is no history of vomiting in the relevant period and the mother confirmed that this had not been a problem. 

 

89.        Dr McKinnon confirmed that the very high levels achieved of sodium valproate in his system by April of 2017 of 132 milligrams per litre after his medication had been overseen or administered by his maternal grandmother do not assist in understanding or interpreting the low levels seen in November and January or any timings that might apply to administration or non-administration of his medication.

 

90.        That medical evidence in relation to sodium valproate is all agreed to and accepted by the mother. 

 

91.        Turning to the position in relation to tramadol and codeine, the urine test undertaken on the 19^th January proved to be key evidence.  It tested for both tramadol and codeine and their metabolites and showed exceptionally high levels of tramadol, sufficient, Dr McKinnon told me, to represent an overdose in adults.  Dr McGowan and Dr McKinnon both agreed that this meant A had ingested tramadol shortly before that test on the 19^th January 2017 but that it was not possible to say exactly when, except that it must have been at least in the very few days beforehand up to at the earliest the 15^th January.

 

92.        It was agreed between the experts that it was not possible to say from the medical evidence if he had taken tablets all in one go on a single occasion or over a few days, and therefore whether the effects on levels in A’s system were cumulative or sudden.  It was concluded between them that A must have taken at least two of the mother’s 20 milligram capsules of tramadol of the type that she was prescribed at the time in order to achieve the high levels found in the urine test but they could not say how many more than two. 

 

93.        The hair strand testing undertaken in March only tested for tramadol, did not test for tramadol metabolites and did not test for codeine.  The experts’ overall view was that the test, for a number of complex reasons, was in fact consistent with the analysis that I have set out and could not safely be established to the relevant standard that there has been ingestion over each of the four, approximately monthly, periods.  And, in fact, the picture was of a peak in January, reducing over the subsequent period, which was consistent with a single period of high ingestion shortly before the 19^th January which may then, through band broadening effects or the presence of resting hair or the slow growth of A’s hair because of his suffering from alopecia or taking sodium valproate, may have led to the interpretation of Alere/Abbott Toxicology/Abbott as showing positive results for tramadol in each of the four sections tested. This was because of the ways in which either older hair was present among younger strands, or sebum and sweat had caused the substance and its metabolites to spread up and down the growing hair.  Also, the hair strand testing that was subsequently undertaken in June, which showed extremely low levels of tramadol and codeine, was also consistent with that analysis by the experts.

 

94.        On the basis of those agreed opinions, the Local Authority thereafter no longer pursued any argument that tramadol had continued to be ingested after the 19^th January through the subsequent months tested for but instead focussed their findings on whether A had been deliberately administered these substances or had accessed them himself. 

 

95.        Turning to codeine, like tramadol this had been ingested shortly before the 19^th January and the same observations as to timings apply.  It was not at an exceptionally high level and the level shown in his urine toxicology test could have been reached by a single tablet.  The hair strand tests in March did not include any testing for codeine and so cannot assist in any interpretation in relation to that substance.  The tests in June are unable to take the matter further for the reasons I have referred to.

 

96.        Additionally, the experts concluded that tramadol and codeine may have contributed to his seizure episode in January as their effects and side effects, in particular tramadol, can include a number of presentations that both Dr McGowan and Dr G felt might contribute to an onset of seizures.  Indeed, one particular side effect of tramadol is just that, namely to trigger seizures.  However, the role of tramadol and codeine in that episode remains unclear and they could not confirm whether or not it would definitely have done so.

 

97.        The submissions made on the mother’s behalf were to contend that, on the medical evidence and the observational evidence, it is more likely than not that the tablets were all taken at once, say on the evening of the 18^th January, because he was unwell that night, as set out in the school communication notebook by the mother that went with him to school on the morning of the 19^th January, whereas the school records and the mother confirms that he was quite well from the 15^th to the 18^th.  However, on the medical evidence, it being impossible to know what tablets were taken when and therefore what cumulative effect may or may not have been building up, I find it is not possible to be precise as to any one particular occasion or date when A may have ingested one or more tablets. 

 

98.        That evidence I have summarised in relation to the tramadol and codeine, save for that last point which is contended that I have just dealt with, is accepted on behalf of the mother. 

 

DISCUSSION & CONCLUDING FINDINGS

99.        This therefore then takes me to the remaining contested findings sought by the Local Authority.  Namely, was sodium valproate deliberately withheld as opposed to some other explanation and, secondly, was A deliberately administered mother’s medication by his mother or did he access them through insecure and neglectful storage and supervision?

 

100.    Turning firstly to the alleged deliberate failure to administer sodium valproate.  The mother has accepted that she inadvertently and irregularly failed to give the odd dose and that she failed to note it.  She said that this occurred because A may well have become tired in the evenings and fallen asleep and therefore she missed it.  She gives no such similar explanation for missing the morning dose.  Her further evidence suggested to me in somewhat vague terms that her difficulties with her opiate medication dependency and its preoccupations would have effectively meant, as she put it, that she took her eye off the ball.  She could be no more precise than that.

 

101.    The Local Authority’s case is based on the following matters.  Firstly, the extensive competence and detailed knowledge and understanding that the mother has and that she has clearly demonstrated in a number of different ways, both with medical and educational professionals, in relation to A’s medical needs, treatment and implications of both of those.  That she was, through this period, able to give extensive practical and emotional support to her family and provide a high level of practical parenting in every other respect to A. 

 

102.    In addition, the Local Authority cites the following, firstly, that the mother gave an untrue account to medical staff about A’s presentation and attendance at school shortly before his admission to a Specialist London Children’s Unit with the serious seizure episode on the 7^th November.  I note that I have heard no evidence from any member of staff involved in that admission or any member of ambulance staff involved in transporting A and his mother on that occasion.  I note that it is said that the history from the mother was that A had been unwell during the seven days prior, requiring time off school, and that he had been seen by his teacher to show eye rolling and twitching on the day in question.  The evidence from the school quite clearly shows that none of that is true, that he was at school every day and that there was no noting of eye rolling or twitching in any of the recordings and that they would have so recorded it.

 

103.    The mother’s explanation to me is that the medical staff to whom she gave this information misunderstood her, that she had in fact been referring to the half term week off school when he had been ill, a week prior to the admission, and that she was not saying that he had needed time off school in the week immediately preceding the admission.  Additionally, she claims that she was told by his Learning Support Assistant, but not his teacher, that that person had noted the twitching and eye rolling.  It therefore had not been recorded by the teacher formally. 

 

104.    In the light of my interpretation of the mother’s evidence, I am afraid that I cannot fully accept her explanation of the twitching and eye rolling information from the school.  However, as indicated, I have not heard any evidence at all from the ambulance staff or at the Specialist London Children’s Unit.  I therefore do not consider that I am in a position to make any sort of finding that she actively lied to those medical staff members upon his admission on the 7^th November as to the circumstances which immediately preceded that collapse. 

 

105.    Secondly, the Local Authority relies on the extensive conversations that the mother had with the school about the necessity that they comply with his need for Calpol medication if he were to come in feeling unwell.  Thirdly, on the 30^th November 2016 she wrote down the details of A’s sodium valproate medication doses in the school contact book. These matters are evident from the school evidence.

 

106.    Fourthly, they rely on the discussion that took place between the mother, Dr G and Miss H, at the clinic on the 5^th December 2016, when the Local Authority says that mother presented a disingenuous account of previous sodium valproate testing and information she had been given that the levels had previously been low but that they meant very little.

 

107.    I heard evidence from Dr G and Miss H on this point.  They were quite clear as to the nature of the conversation and I am happy to accept their clear account of that conversation.  Indeed, the mother did not materially depart from their recollection of that conversation. 

 

108.    What she indicated, however, was that she was in fact simply referring back to the fact that A had previously, on one occasion, been so tested for sodium valproate although Dr G believed he had not, and in fact we found that test in the medical records.  As to her assertion that she must have discussed this with Dr W in the terms suggested, she agreed that she said that but she had not been certain it actually was, because it may have been a discussion with some other doctor involved in A’s care at some point in the past in relation to this matter.  However, because she was led to think by Dr G that there had been no such previous test undertaken in XX Hospital, then she thought it must have been a discussion with Dr W at the other hospital.

 

109.    Dr G then attempted to contact Dr W who confirmed that no tests of that sort had been undertaken by the YY Hospital.  What is prayed in aid on mother’s behalf is how would the mother have known this, namely that A had in fact been tested and that levels found do not correlate with therapeutic impact and, as Dr G confirmed in his evidence, testing is not regularly undertaken because it does not provide useful information, unless in fact she had been told those facts on some previous occasion.  I accept the arguments put forward on the behalf of the mother in respect of this issue, in that there is clearly an example of previous sodium valproate testing and that it is unlikely that she would have known this unusual feature of sodium valproate treatment, namely that it is rarely tested for and that the results are rarely correlative with anything that would make such testing useful, unless she had indeed been told by some medical professional.  So, I do not find that her account given to Dr G and Miss H was disingenuous in the way put forward by the Local Authority.

 

110.    Fifthly, the Local Authority relies on M telling the school that A’s body was not absorbing his antiepileptic medication properly.  This is a somewhat equivocal point to rely upon as levels and dosages do need to vary between individuals.  Clearly, here however it is not accurate.  It was not a question of non-absorption.  Given what we now know, that the mother knew she had not been giving the medication properly, it is a heavily misleading comment made by her, and I so find. 

 

111.    Sixthly, the Local Authority rely on the mother asking the GP to change the timing of A’s antibiotic medication as it may possibly be interfering with the levels of sodium valproate in his system and asking him to do that on the 3^rd January, which suggests that she was very well aware of medication levels. 

 

112.    Seventhly, they rely on four occasions when the mother visited her GP in January prior to A’s collapse on the 19^th January to seek out appropriate treatment for herself, which is highly suggestive of someone who is well able to cope with her own needs, those often being the needs that fall by the wayside first when someone has taken their eye off the ball and is finding it hard to cope. 

 

113.    Eighthly, they rely on the fact that on the 13^th February 2017, mother told Mr Jerome that she had raised concern around A’s medication not being absorbed.  That, in itself, is a repetition of the misleading comment made earlier.  I do not find her comment to him that she was told by the doctors that sodium valproate levels are not always accurate is particularly germane, given my earlier finding that, by then, she knew that there were at least two occasions on which his sodium valproate levels had been tested and showed very little, if any, in his system and she also well knew that she had not been administering his medication fully.  Therefore, that too was a distracting and potentially misleading comment.

 

114.    She also said to Mr Jerome on the same occasion:  “He went 18 months without seizure.  If I wasn’t giving his medication, why is he not fitting?”

That 18 month period related of course to December 2014 to June 2016 and not to the current period of November ’16 to early ’17 and therefore that too was a distraction and potentially misleading.  The Local Authority also draws to my attention that the mother lied about A’s constipation and diarrhoea as a purported explanation for the low sodium valproate levels prior to November 2017 and she went into this in some length in the first tranche of her evidence. 

 

115.    It is clear to me that these lies are directly connected to a fallacious attempt to deflect responsibility from herself onto an illness of A’s to explain the low sodium valproate levels.  I find, given the way in which M otherwise dealt with A’s illnesses and attendances at the GP and indeed her attendance at the GP with just such an issue in May, that she would have at least notified the GP or taken A back to the GP if he had in fact been suffering from such serious levels of diarrhoea.  She had taken him to the GP in September when constipation was raised and Movicol was prescribed but this was not raised subsequently in the period leading up to nor on admission for his November episode. 

 

116.    I also note that the evidence from Dr McGowan, quite clearly, was that constipation and diarrhoea would not affect the levels of absorption.  Therefore, unfortunately, I am driven to conclude that the mother, both before me and to others, has attempted, by way of this lie, to deflect responsibility for the low sodium valproate levels as I have indicated.  Looking at all of the evidence overall in relation to this issue, I find that the mother knowingly failed to give A his sodium valproate medication and knowingly concealed that failure from all the professionals at every stage between early November and January.  She continued not to disclose it during the follow up period after the episode on the 19^th January. 

 

117.    The failure to disclose was to the medical professionals at the Specialist London Children’s Unit, to ambulance staff, to Dr G, to Miss H, to the emergency treating team at XX Hospital in January and to her family.  However, I cannot be satisfied, on the balance of probabilities, that it was deliberately unadministered with the intent to do him that harm, despite the highly concerning and suspicious-looking circumstances.  It is clear that she knew what he should have been receiving.  It is clear that she knew he should have been receiving morning and evening doses.  It is clear that she knew what the likely impact of it would have been and she knew what the doses should be. 

 

118.    However, given the evidence I have heard of the degree of preoccupation she had with her dependency on opiate medication, and given that there is no clear evidence that would otherwise point to deliberate withholding of medication, I cannot find that the standard of proof is met to the requisite level and the Local Authority do not satisfy me that that allegation of deliberately withheld medication is met.  But, what I do find is that the combination of the mother’s dependency and misuse of her prescribed medication and her knowing failure to give sodium valproate and her knowing failure to then inform the medical professionals was a highly risky combination for A and in effect a failure to protect him from whatever was operating in her life and a failure to meet her obligations to care for him and his medical needs safely and appropriately.  It still inevitably leaves a number of questions unanswered that this Court is unable to find answers to, given the scope of the evidence and the nature of the hearing before me. 

 

119.    I turn then to the question of the ingestion by A of his mother’s medication.  The expert evidence could not assist as to how A would have ingested the tramadol and codeine.  Dr McGowan (I considered this was just within her expertise although there was inevitably an element of speculation) doubted that he might have had a clear pincer grasp at the time in January of this year and she referenced there some of the statements filed by the other professionals involved in A’s life, but she clearly described how he would have had no real difficulty clawing small items towards him and grasping them into his palm, even if they were in the bottom of a drawer.  I, of course, have now seen the video that I have described and heard evidence of his ability to pick up very small items with his fingers, for example Rice Krispies, raisins and the like, and that ability predates January of this year. 

 

120.    I have seen a capsule of tramadol of the type prescribed to the mother.  It is of, what I would call, average capsule size.  I have not seen one of the codeine tablets, although it has been carefully described to me by the mother as a very small white tablet, approximately half the size of a normal round aspirin tablet.  I am satisfied with the nature of her description and she also tried to draw it to approximate scale. 

 

121.    I heard evidence from the Speech and Language Therapist about how A was able to pick up laminated sheets by sliding them towards him and then placing his thumb and fingers around on either side of the sheet.  I find and am satisfied that A would have had sufficient fine motor skills in whatever way he would have needed to pick up capsules or small tablets that he may have found in the bottom of a drawer or elsewhere.  I also note that he was fond of copying activities and fond of tidying and was said to be in and out of drawers and cupboards on a frequent basis.  I also note that it is said he needs to be watched like a hawk in order to avoid him getting into trouble because he is so actively into things, much as a toddler would be. 

 

122.    I note that none of the family, those who have provided the most vivid descriptions of his physical skills, have suggested he would necessarily be able to take tablets from a blister pack and I consider, in the light of his need for help with dressing and, on viewing the video, the stubbiness of his fingers, that overall it is unlikely that he would be able to extract tablets from a blister pack by himself. 

 

123.    The mother denies any deliberate administration and I found that her and her family’s evidence, their description of their shock and upset and fear when the social worker first shared with them the information on the 1^st February and their actions immediately thereafter appear to be genuine.  I also note that in this description of mother’s dependency on her medication and that her evidence as to her obsession with every tablet, of having to time it and manage it and live through periods of low availability or non-availability of codeine, that this inevitably begs a very important question:  Why on earth would she have wasted any tablets by deliberately dosing her son with her own medication and thereby depriving herself of her precious codeine supply? 

 

124.    I found this to be a particularly significant factor in weighing all of the issues on this point.  I note of course that she did not describe the same level of obsession in relation to the tramadol, however, in that respect the urine testing which shows the presence of codeine is of significance because it does show that A clearly ingested at least one codeine tablet and so the point of significance that I have mentioned applies. 

 

125.    The Local Authority’s argument to establish, they say, that there has been a deliberate administration of this medicine to A is set out in some detail in Ms Brown’s closing submissions document and in particular at paragraph 28. 

 

126.    I accept firstly that it cannot be seen in a vacuum from the incidents of November and December and I bear that in mind.  I also bear in mind the wider canvas issues to which I have already referred at the outset of this judgment raised on mother’s behalf in written submissions provided to me for that purpose.  The particular points that the Local Authority further asks me to consider are as follows:

 

127.    Firstly, that the toxicology results were extremely high for tramadol.  I do not find that this assists at all in determining whether there was deliberate administration or not.  It may even be suggested that the opposite is the case, that rather than simply experimenting with a child by offering a low dose by way of deliberate administration that would not harm the child gravely, why would someone possibly threaten a child’s life by administering such a large amount deliberately, particularly in the context of this child evidently being so much loved.  It is equally indicative of a chance ingestion of a high amount shortly before the 19^th by A accessing the medication himself.  This point is therefore of no particular probative value. 

 

128.    Secondly, what is cited is the effect on A of ingesting tramadol being drowsiness, sedation and seizures.  Well, there are other effects including possible death through overdose and I do not find that the possible effect on A assists me as to whether there is a deliberate administration of this medication. 

 

129.    Thirdly, it is suggested that A attended school well on the Monday, Tuesday, Wednesday beforehand and did not attend the GP in the days beforehand and the mother made a routine visit to the school on the 18^th January.  I do not find that any of those factors assist me one way or the other to determine whether there was a deliberate or other ingestion of the medication. 

 

130.    Fourthly, that A was unwell overnight on the 18^th January.  Again, that would fit with either scenario, A accessing the medication or his mother deliberately administering so it does not assist me.  Fifthly, it is suggested that his presentation as described in the school contact book on the morning of the 19^th is similar to that described on the 28^th September and 8^th December 2016 and the 10^th January 2017.  I do not see why that assists me in determining that there was some deliberate administration. 

 

131.    Sixthly, it is said that A would have been unlikely to have been able to get into his mother’s handbag unnoticed.  Given that it is not suggested by anybody that he could remove tablets from a blister pack and it is not suggested that loose tablets were kept by the mother in her handbag, again, I do not find it of any assistance as to whether or not he could have gained access to the mother’s handbag in determining this issue. 

 

132.    Seventhly, it is suggested that the mother’s account of taking tablets out of the blister packet but putting them in the bottom drawer of her bedside cabinet is difficult to comprehend.  She gave the explanation that doing so was for the purposes of ease of access in the night and therefore it makes little sense, say the Local Authority, that she should then have put them in a closed drawer.  I do consider that this is one of the conundrums in this case.  However, I also note that it is nonetheless easier to simply open a drawer and take out loose tablets than it is, in the middle of the night, to open a drawer and take out a packet and extract tablets from a packet and then from a blister pack in the middle of the night.  So, it is a degree easier. 

 

133.    It also offers some limited degree of protection from having loose tablets on readily visible surfaces such as on top of the bedside cabinet by the side of the bed.  So, while it is somewhat difficult to understand, it is not completely impossible to understand why the mother put forward this explanation of her practice with her tablets.  I have to add therefore, that it does not add a great deal to the picture in terms of determining whether or not there was a deliberate administration of this medication to A.

 

134.    Eighthly, it is said by the Local Authority that it is highly unlikely that there would be a tablet on the floor, given mother’s habits around her medication and her high standards of housekeeping.  It is not suggested that there were loose tablets on the floor and therefore I do not find that that point assists me in reaching a determination on this issue. 

 

135.    Ninthly, it is suggested that it is highly unlikely that all of the following steps happened at least once and perhaps up to three times if one tablet was taken on each separate occasion in the relevant period without either the mother or B seeing something and the mother not noticing any change in A’s health or presentation.  Before I run on to consider the various steps, I do however note of course that the medical evidence has not been able to assist us as to how A’s health or presentation would have changed if he had simply been taking one tablet at a time with day or days between each ingestion during the relevant short period before the 19^th.  Therefore, that issue of not noticing his health or presentation does not really assist me. 

 

136.    However, turning to the steps required in this element of the Local Authority’s submissions, the steps required would be as follows: A gaining access to the drawer; A taking at least three tablets, one codeine and two tramadol, without making a noise which would be heard, without drawing attention to his actions by some other means, without leaving a mess or any trace, without taking out the boxes and without playing with the boxes; and that he had to pick up a tiny white tablet and two small green capsules from a drawer; and then, before eating them, had to seat himself down on a chair or a bed, that being his absolutely invariable habit before he eats anything.  That is evidence that I heard from his grandfather and I accept that A will not eat unless he is comfortably seated.

 

137.    I bear in mind all of those steps.  I note the mother’s evidence was that she would leave A unattended, watching a television programme or similar or playing on an iPad, while sitting on her bed next to her bedside cabinet in the evenings, while she would take some 15 minutes or so to have a shower.  B might well not be with him, but undertaking some other activity of her own.  It would be unlikely for his activities to be heard or noticed in that context. 

 

138.    It would of course mean that A could have been into that drawer, spotted the tablets, taken them out and closed the drawer, sat himself on the bed or somewhere nearby and eaten the tablets on one or more occasions.  There is some freight to this point and I do not discount it.  But inevitably what is being suggested is that this was not observed at all and that it might be considered to be somewhat unlikely.  It is, however, not impossible. 

 

139.    I take into account all of the points raised by the Local Authority, the contextual evidence in relation to the mother’s efforts at home and elsewhere, the recent nature of her evidence in relation to her opiate dependency, the fact that she did not seem to be failing to cope in any other way, the surprising description of keeping her medication loose in the bottom drawer in the light of her obsession with her medication, and I set that against all the rest of the evidence to which I have referred and which is set out elsewhere and I may not be specifically citing but I have taken into account and, while I accept that there do exist a number of odd or possibly suspicious elements, as I have indicated when running through the case law, I am not permitted to make findings simply based on suspicion.  I consider that the Local Authority has not established to the requisite standard that these medications were deliberately administered to A. 

 

140.    The findings that the Local Authority seeks in the alternative, namely that she failed to keep her tramadol and codeine medication in a secure place, she failed to supervise A properly so as to prevent him from taking that medication between the 15^th and the 19^tb January and thereby enabled A to gain access and ingest tramadol and codeine on a date or dates between the 15^th and 19^th January and failed to observe that he had done so, are all made out on the evidence that I do have to the requisite standard for the reasons I have given and on the basis of the admissions made. 

 

141.    Those admissions are made in that this was how both the grandparents and the mother kept her medication, although that has now changed to a more secure arrangement.  I have heard and accepted evidence that A was into everything, that he loves eating anything and that he appears well able to have been able to retrieve from the bottom of the drawer even items as small as a capsule and a tablet and that it would not have been difficult for him to have done so, seated himself on a bed or somewhere nearby and taken those tablets on one or more occasions in the relevant period.  That picture fits with the description of A and I consider is made out to the requisite standard. 

 

142.    It does not assist to describe that ingestion by A which are consequent upon the mother’s failings as accidental or inadvertent.  That detracts from the reckless, careless or negligent arrangements that were in place and suggests that it is somehow A’s doing.  The fact is, he did thereby, as a result of this surprising carelessness, ingest those medications and suffered a very serious seizure episode at a time when he was showing such high levels of these medications in his system on the 19^th January, and which episode may have been induced or complicated by the ingestion of that medication and that, while the mother’s actions were not deliberate in terms of actively administering the medication to A, they again raise serious questions about her care of A and a degree of surprising recklessness in that context. 

 

143.    Accordingly, with the provisos and slight changes of wording to which I have already referred during the course of this judgment, I make findings 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 and findings 23, 24, 25 and 26 of the schedule (attached at Annex B), but which bears the following amendments to the original local authority schedule. 

 

144.    I remove the wording that refers to a normal range of prescribed medication from paragraphs 1 to 4.  I add the wording to paragraphs 7 and 13 that the hospital admissions included invasive treatment.  I alter the wording at number 11 to read: the ingestion of codeine and tramadol was either a number of tablets taken on one occasion or the ingestion of those tablets taking place over a period of time between the 15^th January and the morning of the 19^th January.

 

145.    I add wording to paragraphs 15 and 16 that the failure to give A any sodium valproate involved at least four consecutive doses missed on each of those occasions.  Paragraph 18, I modify as follows: that while she has not yet given a true account, she has attempted to give a better account which is somewhat clearer but she cannot recall nor kept a note of the doses that were missed and that it is appropriate to draw the inference from the findings overall and the complete picture of the evidence from M herself, and from the medical evidence, is that it is more likely than not that A’s antiepileptic medication was significantly inadequately administered to him over the whole period from November ’16 to January ’17. 

 

146.    At paragraph 19, that is to be expanded to include a failure to inform Dr G and Miss H at the clinic appointment on the 5^th December and the failure to inform any medical staff on or after the 19^tb January of the inadequate dosages of sodium valproate in the periods leading up to those respective dates.  At paragraph 25, the wording is modified to remove the words ‘or at all’, so it reads: M failed to supervise A properly so as to prevent his access to her medication in the period between the 15^th and the 19^th January.  Those are my findings.  I turn now to the postscript.

 

HAIR STRAND TESTING

147.    Notwithstanding the findings that I have made, it is nonetheless necessary for me to add a postscript to this judgment in relation to the hair strand testing provided in this case by Alere/Abbott Toxicology (now Abbott) and particularly in the light of the important observations and guidance provided by Mr Justice Peter Jackson, as he then was, in Re H [2017] EWFC 64, and in particular at paragraphs 25, 57 and 59: 

“25. Any assessment of a family situation, whether carried out by the court or by other professionals, involves the gathering and analysis of a range of information.  Most of the information is factual, and in some cases it will be interpreted by experts, who will express an opinion.  That will be the case when scientific investigations such as hair strand tests are carried out.  These tests can provide important information, but in order for that to be of real use, the expert must (a) describe the process, (b) record the results, and (c) explain their possible significance, all in a way that can be clearly understood by those likely to rely on the information.  If these important requirements are not met, there is a risk that the results will acquire a pseudo-certainty, particularly because (unlike most other forms of information in this field) they appear as numbers.”   

“57. The parties have made suggestions as to how the presentation of reports might be developed so as to be most useful to those working in the field of family justice.  I will record some of these suggestions and some of my own.  Before doing so, I note that each of the testing organisations already produces reports that contain much of the necessary information in one shape or another.  It is also important to stress the responsibility for making proper use of scientific evidence falls both on the writer and the reader.  The writer must make sure as far as possible that the true significance of the data is explained in a way that reduces the risk of it becoming lost in translation.  The reader must take care to understand what is being read, and not jump to a conclusion about drug or alcohol use without understanding the significance of the data and its place in the overall evidence.

“59. There are currently nine accredited hair strand testing organisations working in the family law area.  It is not for the court hearing one case to dictate the way reports are written by those who have intervened in this case or by others who have not taken part, but I include the following seven suggestions in case they are helpful.

(1)          Use of high/medium/low descriptor:

This is in my view useful, provided it is accompanied by:

·         A numerical description of the boundaries between high/medium/low, with an explanation of the manner in which the boundaries are set should be stated.

·         A clear statement that the description is of the level of substance found and not of the level of use, though there may a broad correlation.

·         A reminder that the finding from the test must always be set alongside other sources of information, particularly where the results are in the low range.

(2)          Reporting of data below the cut-off range:

There is currently inconsistency as between organisations on reporting substances detected between the lower limit of detection (LLoD) and the lower limit of quantification (LLoQ), and those between the LLoQ and the cut-off point.

I would suggest that reports record all findings, so that:

·         a finding below the LLoQ is described as “detected, but so low that it is not quantifiable”

·         A result falling below the cut-off level is given in numerical form

and that this data is accompanied by a clear explanation of the reason for the cut-off point and the need for particular caution in relation to data that falls below it. 

(3)          Terminology

Efforts to understand the significance of tests are hampered by the lack of a common vocabulary to describe results in the very low ranges, Descriptions such as “positive”, “negative”, “indicates that” and “not detected” can be used and understood vaguely or incorrectly.  The creation of a common vocabulary across the industry could only be achieved by a body such as the SoHT.  In the absence of uniformity, reporters should define their terms precisely so that they can be accurately understood.

(4)          Expressions of probability:

The Family Court works on the civil standard of proof, namely the balance of probabilities.  It would therefore help if opinions about testing results could be expressed in that way.  For example:

“Taken in isolation, these findings are in my opinion more likely than not to indicate ingestion of [drug].”

“Taken in isolation, these findings are in my opinion more likely than not to indicate that [drug] has not been ingested because….”

“Taken in isolation, these findings are in my opinion more likely to indicate exposure to [drug] than ingestion.”

(5)          Where there is reason to believe that environmental contamination may be an issue, this should be fully described, together with an analysis of any factors that may help the reader to distinguish between the possibilities.

(6)          The FAQ sheet accompanying the report (which might better be described as “Essential Information”), might be tailored to give information relevant to the particular report, and thereby make it easier to assimilate.

(7)     When it is known that testing has been carried out by more than one organisation, the report should explain that the findings may be variable as between organisations.”

 

148.    In this case Alere/Abbott were instructed prior to proceedings to provide hair strand testing on A, the sample being taken in March and the report is dated the 31^st March 2017.  They were only asked to test for tramadol, not for codeine.  They tested for tramadol but none of its metabolites which, in itself, may have made it harder to determine the question of ingestion, exposure, timing and the like.  The terms used to describe the analysis in the report of the 31^st March and the subsequent letter of the 28^th April, which was in answer to a number of questions posed, were unhelpfully worded and which, in combination with the tabular and numerical depiction of the results in the report of the 31^st March, lent a spurious degree of certainty to their analysis, entirely as warned of in the judgment in Re H.

 

149.    The troubling wording is used on the page in which there is the tabular and numerical representation in the report of the 31^st March showing four hair samples of one centimetre sections, save for the last, which is a half centimetre section, and showing a figure for tramadol appearing in a box beneath each such centimetre section heading, and a similar box showing the presence of wash samples for tramadol in the first three sections but not the oldest section.  The paragraph beneath states:

 

“Positive results for drug use are not expected to arise unless the drug is ingested on multiple occasions within the investigated time period covered by each hair section tested.” 

Then:

“Tramadol has been detected in each of the four hair sections analysed at a concentration greater than the reporting cut off level for tramadol.”

 

150.    On the next page:

 

“In my opinion, from the results of the testing, the most likely explanation for the results is that tramadol has entered the body of A,  however, from the results of the hair testing, I am unable to determine the mechanism(s) of how tramadol has entered his body.  The concentrations of tramadol in the hair are decreasing from the second oldest hair section to the most recent hair section tested.”

 

151.    There is then a paragraph headed additional information which deals with approximate hair growth rate and leading to the conclusion that the hair tested could represent the overall approximate time period from the end of November 2016 to the beginning of March 2017. 

 

152.    The letter of the 28^th April answered a number of questions including whether it were possible if there could be any seepage of tramadol across the segments of the hair strands tested.  At this point there then comes the first mention of resting or telogen phase hair but absolutely no discussion at all of any of the other ‘seepage’ factors raised by Dr McKinnon and Dr Rushton in their expert reports, which the Court received subsequently.   These factors do not represent novel science, and can be given different names such as diffusion or band broadening, which are the terms used in the experts’ reports, and which relate to the sweat and sebum in which the drug and its metabolite is excreted passing up and down the strand of hair in question, thus blurring or confusing the time period analysis applied to particular sections of the hair. 

 

153.    Additionally, an answer is given in that letter:

 

“In my opinion it is highly unlikely that the ingestion of tramadol by A on one occasion would account for the positive results in the four hair sections analysed, and the results are most likely to be due to the drug entering the body on multiple occasions.  However, it is not possible to determine when this took place.” 

 

At the very best the letter goes on to say that:

 

“The hair growth rate and growth cycle in babies and children can differ and it is not possible to determine the time period represented by the hair analysed from A.  The time period detailed in the report is for guidance only, and therefore my interpretation of the results is not affected, even if the hair growth rate is changed due to the use of sodium valproate.”

 

154.    Clearly, at the very least, and as in fact quite properly acceded to by Mr Ramsey when he came to give evidence, it would have been of assistance for there to have been far greater clarity in the language used by Alere/Abbott.  The clear impression from the letter of 28^th April was that tramadol had entered the body of A on multiple occasions and during each one of the periods covered by each of the sections.  It is also absolutely clear that the reports from Alere/Abbott were not tailored to consider what effect, if any, A’s age, his Down’s Syndrome or his medication had had on the analysis, or in particular to consider the issue of telogen hair or slower hair growth in a child taking sodium valproate, or how that might affect band broadening. 

 

155.    The evidence from Mr Ramsey was appropriate in acknowledging that there could have been included more detailed descriptions in relation to each of those issues, both generally and specifically, in this case, which would have assisted the reader in understanding the import of what was being read. 

 

156.    It is quite clear to me that even a discerning reader would not have been able to fully understand the significance of the data in the absence of further detail, proper explanation, and a more tailored report.  But I go a stage further than that and consider that the wording in the report, even in combination with the letter, is potentially misleading because, in the absence of that detailed information relating to those confounding factors, the suggestion is quite clearly made that such results would not be present unless the drug was ingested on multiple occasions within each period covered by each hair section tested, easily leading to an understanding that A must have ingested tramadol in December, January, February and March. 

 

157.    The additional documents which are said to accompany these reports are of two different sorts, called ‘Technical Specification’ and ‘Supporting Material - hair analysis’.  Mr Ramsey’s oral evidence to me was that he thought that these issues relating to the structure of hair, hair growth, resting hair, telogen hair, broad banding, diffusion, seepage, longitudinal slippage, and the impact of variations in sampling and segmenting, would all be found in those documents.  They are not. 

 

158.    It is quite clear that the FAQs in the supporting material document fall a long way short of mentioning, let alone covering in sufficient detail, this science which is not novel or controversial but is a standard set of variables and confounding factors that apply to hair strand testing; and that information should all be available in the supporting material and was not in this case.  Additionally, it is noted, in terms of case management, that that supporting material needs to be provided, and at least served on the other parties, if not actually filed as part of the core bundle.  The absence of the appropriate discussion of those relevant issues and their impact, however briefly, in the report and subsequent letter is a particularly good example of a failure as envisaged and described in Mr Justice Peter Jackson’s analysis in Re H. 

 

159.    To assist with that in this case, it would have been helpful for Alere/Abbott to have been sent a formal letter of instruction setting out key information, namely that the donor, A, was a child with Down syndrome suffering from epilepsy, was being treated with sodium valproate with a summary of the potential impact on his hair growth, that he suffered from alopecia and to be given the results of any other tests and in particular the urine toxicology test.  Once proceedings had begun in this case, it would have been helpful for Alere/Abbott to be effectively instructed or re-instructed as a joint Court instructed expert with access to relevant papers and attending the experts’ meeting.  In this case they were invited to attend the experts’ meeting but were unable to do so.

 

160.    Additionally, any letter of instruction should have requested testing for metabolites as well as the parent drug.  This case also highlights the importance of blood and urine tests being undertaken of samples either taken from the original treating hospital or from samples taken as soon as possible, dependent upon the relevant circumstances in the case. 

 

161.    Fortunately, before Mr Ramsey gave his evidence, was provided with the reports from the jointly instructed Toxicologist and Trichologist and the transcript of the experts’ meeting and with the results of the urine test.  That led him, by way of a thoroughly productive meeting at Court with the advocates and an expansion by way of his oral evidence upon the reports provided by Alere/Abbott Toxicology, to a very helpful and thoughtful position that he took on behalf of Alere/Abbott to acknowledge and accept the specialist expert opinion, to acknowledge that the wording of the reports in this case was unfortunate and potentially misleading, to acknowledge that better information should have been included in the body of the report, and also should have been, and he expected it to have been, in the supporting material, which, unfortunately, it is not. 

 

162.    I was grateful to Mr Ramsey for his flexibility and appropriate response but it remains to be seen whether this is borne out in subsequent cases with adequate and better information and explanations being provided.  However, it is quite clear that in this case, if the further questions had not been posed of Alere/Abbott, if that in turn had not led to the instruction of joint Court instructed experts in the form of Drs McKinnon and Rushton, then the inadequate and misleading wording in the Alere/Abbott reports would have been fundamentally misleading and it would have been impossible for the representatives of the parties and for the Court to have a clear and accurate understanding of the true interpretation of A’s hair strand testing results and their implications in this complex case.  All of which goes, in this particular case, to re-emphasise the observations of Mr Justice Peter Jackson in Re H, and to suggest the need for a very great deal of vigilance in relation to hair strand testing and the need to focus on it as simply one small part of the evidence which requires careful and rigorous analysis as opposed to the broad brush wording used in the reports in this case. 

 

HHJ Lazarus

 

 

 

AMENDED SCHEDULE OF PROPOSED FINDINGS

IN RELATION TO THRESHOLD

_________________________________________________

 

At the relevant date, 11 April 2017, A was suffering and was likely to suffer significant harm attributable to the care given to him or likely to be given to him by M.

 

Harm suffered by A which is outside the care which it would be reasonable to expect a parent to give.

 

1.      On 7 November 2016, the level of sodium valproate measured in A’s blood was less than 3mg/litre (the normal range on his prescribed medication being 50-100mg/litre).

 

2.      On 5 December 2016, the level of sodium valproate measured in A’s blood was less than 3mg/litre (the normal range on his prescribed medication being 50-100mg/litre).

 

3.      On 19 January 2017 at 1334 hours, the level of sodium valproate measured in A’s blood was 16mg/ litre (the normal range on his prescribed medication being 50-100mg/litre).

 

4.      On 19 January 2017 at 1644 hours, the level of sodium valproate measured in A’s blood was 20 mg/litre (the normal range on his prescribed medication being 50-100mg/litre).

 

5.      The recorded levels of sodium valproate in A’s blood caused him to be at risk of suffering epileptic seizures and/or suffering harm as a result of seizures and/or requiring medical attention and/or hospitalisation.

 

6.      A suffered epileptic seizures on 7 November 2016.

 

7.      A’s medical treatment following his seizures on 7 November 2016 resulted in hospital admission for ten days.

 

8.      The hospital admission from 7 to 17 November 2016 and his recovery at home following discharge resulted in A missing twelve days of school.

 

9.      A suffered epileptic seizures on 19 January 2017.

 

10.  On 19 January 2017, the following substances which were not prescribed to him were measured in A’s urine:

a.       Morphine 0.38mg/litre

b.      Codeine 1.07mg/litre

c.       Tramadol 1295mg/litre

d.      Tramadol metabolites 119mg/litre and 94mg/litre.

 

11.  A ingested codeine and more than one tablet (50mg) of Tramadol on or before 19 January 2017.  The ingestion of codeine and Tramadol took place in either one event (a period of uninterrupted time) or, if in more than one event, in a series of events between15 to 19 January 2017.

 

12.  The ingestion of codeine and Tramadol caused A to be at risk of dizziness, respiratory problems and seizures.

 

13.  A’s medical treatment following his seizures on 19 January 2017 resulted in hospital admission for twelve days. 

 

14.  The hospital admission from 19 to 30 January 2017 and his recovery at home following discharge resulted in A missing nine days of school.

 

The harm suffered is attributable to the care given to A by M

 

15.  M did not give A any sodium valproate medication prior to 7 November 2016 for a period exceeding two days.

 

16.  M did not give A any sodium valproate medication prior to 5 December 2016 for a period exceeding two days.

17.  M did not give A his sodium valproate medication as prescribed prior to 19 January 2017. 

 

18.  M has not given a true account of her administration to A of the prescribed sodium valproate medication.

 

19.  On A’s admission to hospital on 7 November 2016, M failed to inform the medical staff treating A that he had not been receiving his prescribed dose of sodium valproate.

 

20.  A ingested codeine and more than one tablet (50mg) of Tramadol in either a single dose or in multiple doses on a date or dates between15 to 19 January.

 

21.  M administered Tramadol and codeine to A on a date or dates from 15 to 19 January.

 

22.  M failed to inform the medical staff treating A on 19 January 2017 that he had or may have ingested Tramadol and codeine in the days preceding his admission.

 

23.  Alternatively, M enabled A to gain access to Tramadol and codeine on a date or dates from 15 to 19 January. 

 

24.  M failed to keep her Tramadol and codeine medication in a secure place.

 

25.  M failed to supervise A properly so as to prevent his access to her medication in the period between the 15^th and the 19^th January. 

 

26.  M failed to observe that A had gained access to her medication and ingested multiple tablets.

 

Joanne Brown - 4 Paper Buildings

Counsel for Kent County Council

23 November 2017

 

 

 

 

 

At the relevant date, 11 April 2017, A was suffering and was likely to suffer significant harm attributable to the care given to him or likely to be given to him by M.

 

Harm suffered by A which is outside the care which it would be reasonable to expect a parent to give.

 

1.      On 7 November 2016, the level of sodium valproate measured in A’s blood was less than 3mg/litre.

 

2.      On 5 December 2016, the level of sodium valproate measured in A’s blood was less than 3mg/litre.

 

3.      On 19 January 2017 at 1334 hours, the level of sodium valproate measured in A’s blood was 16mg/ litre.

 

4.      On 19 January 2017 at 1644 hours, the level of sodium valproate measured in A’s blood was 20 mg/litre (the normal range on his prescribed medication being 50-100mg/litre).

 

5.      The recorded levels of sodium valproate in A’s blood caused him to be at risk of suffering epileptic seizures and/or suffering harm as a result of seizures and/or requiring medical attention and/or hospitalisation.

 

6.      A suffered epileptic seizures on 7 November 2016.

 

7.      A’s medical treatment following his seizures on 7 November 2016 resulted in hospital admission for ten days, which included invasive treatment.

 

8.      The hospital admission from 7 to 17 November 2016 and his recovery at home following discharge resulted in A missing twelve days of school.

 

9.      A suffered epileptic seizures on 19 January 2017.

 

10.  On 19 January 2017, the following substances which were not prescribed to him were measured in A’s urine:

a.       Morphine 0.38mg/litre

b.      Codeine 1.07mg/litre

c.       Tramadol 1295mg/litre

d.      Tramadol metabolites 119mg/litre and 94mg/litre.

 

11.  A ingested codeine and more than one tablet (50mg) of Tramadol on or before 19 January 2017.  The ingestion of codeine and Tramadol was either a number of tablets taken on one occasion or the ingestion of those tablets taking place over a period of time between the 15^th and the morning of the 19^th January.

 

12.  The ingestion of codeine and Tramadol caused A to be at risk of dizziness, respiratory problems and seizures.

 

13.  A’s medical treatment following his seizures on 19 January 2017 resulted in hospital admission for twelve days. 

 

14.  The hospital admission from 19 to 30 January 2017 and his recovery at home following discharge resulted in A missing nine days of school.

 

The harm suffered is attributable to the care given to A by M

 

15.  M did not give A any sodium valproate medication prior to 7 November 2016 for a period exceeding two days, involving at least four consecutive doses missed.

 

16.  M did not give A any sodium valproate medication prior to 5 December 2016 for a period exceeding two days, involving at least four consecutive doses missed.

 

17.  M did not give A his sodium valproate medication as prescribed prior to 19 January 2017. 

 

18.  M has not given a true account of her administration to A of the prescribed sodium valproate medication – she has attempted to give a better account which is somewhat clearer but she cannot recall nor kept a note of the doses that were missed. It is appropriate to draw the inference from the findings overall and the complete picture of the evidence from M herself, and from the medical evidence, that it is more likely than not that A’s anti-epileptic medication was significantly inadequately administered to him over the whole period from November 2016 to January 2017.

 

19.  On or after A’s admissions to hospital on 7 November 2016 and 19 January 2017,  and at the clinic appointment with Dr G and Miss H on 5 December 2016,M failed to inform the medical staff treating A that he had received inadequate dosages of sodium valproate in the periods leading up to those respective dates. 

 

20.  [No additional finding – see finding 11]

 

21.  No finding.

 

22.  [No additional finding – see amended finding 19].

 

23.  Alternatively, M enabled A to gain access to Tramadol and codeine on a date or dates from 15 to 19 January. 

 

24.  M failed to keep her Tramadol and codeine medication in a secure place.

 

25.  M failed to supervise A properly or at all in the period between 15 and 19 January 2017.

 

26.  M failed to observe that A had gained access to her medication and ingested multiple tablets.