K (Threshold - Cocaine Ingestion - Failure to give evidence)

Factual and Procedural Background

This case concerns the death of a three-year-old child ("the Deceased") on 6 April 2019 in hospital, with post-mortem and toxicology evidence indicating death consistent with cocaine ingestion. The Local Authority initiated care proceedings regarding the Deceased's siblings, who were placed in foster care. The hearing before the court was to determine whether the statutory threshold for care orders was met, focusing on whether the Local Authority established that the Deceased's death resulted from cocaine ingestion while in the care of the mother, father 1, paternal grandmother, or maternal grandmother, or due to their failure to protect her, as well as exposure of the children to emotional abuse from domestic violence.

The children subject to the proceedings are L (aged 12), M (aged 5), N (aged 2), and P (aged 7 months). The factual background includes the Deceased's deteriorating health from 3 April 2019, with symptoms such as vomiting and a swollen face, leading to hospital admission and subsequent death following cardiac arrest.

Following the death, police investigations and care proceedings were commenced. The Local Authority made interim care orders for the children. The final hearing was listed for 20 days starting 21 April 2020, conducted remotely and in hybrid format due to the COVID-19 pandemic. The mother was unable to give oral evidence due to mental health issues, and the court instructed a joint expert to assess her capacity.

The Local Authority amended their threshold allegations during proceedings, withdrawing the allegation of deliberate administration of cocaine and instead alleging ingestion occurred due to culpable acts or omissions by the mother, father 1, or paternal grandmother. The maternal grandmother was no longer pursued as a party responsible for ingestion.

Legal Issues Presented

1. Whether the Local Authority has established, on the balance of probabilities, that the Deceased died as a result of cocaine ingestion caused or contributed to by one or more of the mother, father 1, paternal grandmother, or maternal grandmother.
2. Whether one or more of these individuals culpably failed to protect the Deceased from exposure to cocaine.
3. Whether the children were exposed to emotional harm as a result of domestic abuse perpetrated by father 1 upon the mother.
4. The appropriate weight to be given to the mother's failure to give oral evidence and the impact of that on the court's assessment of the evidence.

Arguments of the Parties

Local Authority's Arguments

• The mother's failure to give oral evidence should not result in her evidence being disregarded; a nuanced approach is necessary given her circumstances.
• Medical evidence establishes that the Deceased's death was caused by cardiac necrosis due to cocaine ingestion.
• Hair strand testing demonstrates repeated cocaine consumption by the mother, father 1, and paternal grandmother in the 12 months preceding July 2019.
• The mother's dishonesty about her drug use undermines her credibility, but her evidence about father 1 being a drug dealer is credible.
• The evidence shows regular presence of drugs in the households of the mother and paternal grandmother.
• Hair strand tests indicate the children were exposed to cocaine in these environments.
• Each adult knowingly exposed the children to drug-related risks and culpably failed to protect them.
• The ingestion of cocaine by the Deceased most likely occurred in the mother's home between the afternoon of 3 April and the mother's return on 4 April 2019.
• The mother and father 1 culpably failed to disclose drug use to medical professionals, potentially preventing medical intervention that could have saved the Deceased.
• Evidence supports father 1's involvement in drug dealing.
• Domestic abuse was present but not to the extent the mother alleges; the mother's account is inconsistent with other evidence.

Mother's Arguments

• The mother does not seek the return of the children and accepts a full psychiatric assessment is required.
• The court should consider her reasons for failing to give oral evidence and the context of her statements.
• The timing of the Deceased's cocaine ingestion is difficult to pinpoint but may have occurred while in the care of father 1 and paternal grandmother.
• The mother's immediate response to take the Deceased to the GP is inconsistent with knowledge of cocaine ingestion.
• The Local Authority must prove the reliability of the Chemtox hair test results over the Lextox results, which show a declining pattern of drug use.
• The mother denies interfering with hair samples and submits her evidence on drug use should be accepted.
• The mother's evidence about father 1's drug use is credible despite changes over time.
• The youngest children were likely exposed to crack cocaine at the paternal grandmother's home, not the eldest child.
• The mother asserts significant domestic abuse by father 1 prevented her from protecting the children.

Father 1's Arguments

• The cocaine ingested by the Deceased was present in the mother's home and was the mother's cocaine, not his.
• Father 1 has suffered the loss of the Deceased and the children and the emotional impact affects his recall.
• He does not seek to compel the mother to give evidence and invites the court to apply caution to her untested written evidence.
• He challenges the mother's changing accounts and denies being a drug dealer, highlighting lack of physical evidence of dealing.
• He denies living at the mother's property as a primary carer and disputes responsibility for the cocaine ingestion.
• He denies significant domestic abuse, asserting the mother's account is fabricated.

Father 2's Arguments

• Supports the Local Authority's analysis.

Paternal Grandmother's Arguments

• Relies on expert evidence that the Deceased's symptoms do not support ingestion during her care on 4 April.
• Denies cocaine use, attributing positive hair results to environmental contamination.
• Denies role in the Deceased's cocaine ingestion or exposure of other children.
• Describes herself as a caring grandmother who would have taken the Deceased to hospital if concerned.
• Points to drug use and dealing by father 1 and others in her household but denies culpability for the Deceased's death.
• Requests credit for her willingness to give evidence.

Maternal Grandmother's Arguments

The Local Authority accepted that the maternal grandmother's hair samples and premises showed environmental contamination rather than drug use. She gave evidence remotely and appeared frank and consistent. She denied knowledge of drug use by the mother or father 1 and was not involved in the mother's household at the relevant time. She supported the conclusion that she was not responsible for the Deceased's cocaine ingestion.

Guardian's Arguments

• A nuanced approach is required regarding the mother's failure to give evidence.
• Evidence supports periods of high conflict between the mother and father 1 but questions the extent of domestic abuse alleged by the mother.
• Evidence supports father 1's involvement in cocaine supply and the paternal grandmother's knowledge thereof.
• The mother protected father 1 despite his drug use and the paternal grandmother condoned drug use by caring for the children.
• Medical evidence on timing of ingestion is unclear but supports ingestion occurring at the mother's home between teatime on 3 April and the mother's return on 4 April.
• Father 1's evidence concerning his whereabouts and activities on 3/4 April is unreliable.
• Mother failed to protect children from drug exposure.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a comprehensive assessment of the evidence, including expert medical and toxicological evidence, witness statements, interviews, and documentary records. The medical experts agreed, on the balance of probabilities, that the Deceased died from cardiac necrosis caused by cocaine ingestion. The court considered the timing of ingestion to be most likely on the afternoon or early evening of 3 April 2019, at the mother's home.

The court noted the inconsistencies and unreliability in the evidence of the mother and father 1, particularly regarding drug use and domestic abuse. The mother declined to give oral evidence due to mental health issues, but the court accepted her statements and interviews with appropriate caution. The father's evidence was found to be frequently dishonest and evasive, especially concerning his drug involvement.

The paternal grandmother was found to have some indirect responsibility due to her knowledge of drug use and supply within the family environment, but not direct responsibility for the Deceased's ingestion. The maternal grandmother was considered a credible witness with limited involvement in the relevant events.

The court found that father 1 was the primary individual responsible for bringing cocaine into the mother's home and that the mother was aware but failed to take effective protective measures, not due to fear but due to the nature of their relationship and her own drug use. The court rejected the mother's account of extensive domestic abuse preventing her protection of the children as unsupported by the evidence.

The court emphasized the tragic and avoidable nature of the Deceased's death, attributing primary responsibility to father 1, secondary responsibility to the mother, and a more diffuse responsibility to the paternal grandmother. The court acknowledged the complex personal histories and relationships involved but concluded that the presence and careless handling of cocaine in the home led to the Deceased's death.

Holding and Implications

The court held that the Local Authority has established, on the balance of probabilities, that the Deceased died as a result of cocaine ingestion which occurred in the mother's home on the afternoon or early evening of 3 April 2019.

It was found that father 1 brought the cocaine into the home in connection with his drug-related activities and carelessly left it accessible, leading to the Deceased's ingestion and death. The mother was aware of the drug presence and failed to protect the children effectively, though not due to fear but due to the nature of her relationship and her own drug use. The paternal grandmother bore indirect responsibility due to knowledge and tolerance of drug use in the household.

The decision results in the continuation of care proceedings and protective orders for the children. No new legal precedent was established; the judgment applies established principles regarding burden and standard of proof, assessment of evidence, and drawing inferences in family law proceedings. The case underscores the dangers of drug misuse and the tragic consequences of exposure of children to illicit drugs.