Almost unthinkable

Family Law|July 22nd 2015

I don’t normally write about public law children cases, but occasionally one comes along that is so extraordinary that it requires some sort of comment. A-S (Children) is just such a case.

As I have pointed out before, one of the recurring themes of my posts here is the difficult nature of the decisions faced by our family judges, on an almost daily basis. Judge Marston, the judge at the original hearing in A-S (Children), was faced with a difficult decision not because the facts were unclear, but because the conclusion that the facts pointed to was so appalling as to be almost unthinkable.

The case revolved around a 15 minute telephone call that a mother made to the emergency services, claiming that her baby had “drowned”, although he was still breathing (“drowned” of course, means to have died through submersion and inhalation of water, but in the judgment it is used on a number of occasions to mean “almost drowned” or “attempted to drown”). The call was recorded.

For the first nine minutes of the call, the baby can be heard in the background, making normal baby noises, quite unlike the sort of sounds a child would be making if it had just almost drowned. Then the mother stops talking and the sound of running water can be heard. Shortly after that, the mother is heard to scream. Then the baby is heard again grunting and coughing, then in further respiratory distress and suddenly he stops breathing at 10 minutes 48 seconds into the call, the state he was found in by the paramedic who arrived 15 minutes after the call began. Thankfully, the paramedic was able to revive the child, after making him bring up water.

Care proceedings were instituted and Judge Marston found that the mother had deliberately attempted to drown the child during the course of the telephone call – not, as the mother had claimed, that the child had almost accidentally drowned in the bath prior to the call being made. The mother appealed against this finding to the Court of Appeal.

The leading judgment in the Court of Appeal was given by the President of the Family Division Sir James Munby. Obviously, he reviewed the evidence, in particular the recording of the telephone call, which unusually meant that he was in almost as good a position as Judge Marston to come to a conclusion. That conclusion was the same as Judge Marston:

“I am convinced that the judge was right. What I was listening to during the first nine minutes or so was a baby who had not then been drowned. From this it follows inexorably, given all the other evidence, that the mother’s 999 call was false and that the drowning which took place at some point thereafter but before [the paramedic] arrived was indeed deliberate. I have anxiously asked myself whether I can truly be that confident, given that I am left speculating, as was Judge Marston, on important matters to which such a finding necessarily invites attention. I can only say that, despite my inability to provide more than speculative answers to those questions, I am convinced by what I heard. The recording is, to anyone who has heard it, extraordinarily compelling. It drives one inexorably to the conclusion at which Judge Marston arrived.”

Lord Justice Elias and Lady Justice Sharp agreed, and therefore the mother’s appeal was dismissed.

What made a mother who was described by Judge Marston as ‘loving’ and ‘kind’ do such a thing? Was it some sort of mental illness, or perhaps a cry for help? Did she really mean to kill her child? Did she attempt to drown him simply to ‘cover up’ for the fact that she had made a false 999 call? The judges could only speculate, and we may never know, unless the mother tells the truth.

The one thing that is clear about the case is that the court must always go in the direction that the facts point, even if that leads it to a conclusion that is almost unthinkable.

The full report of A-S (Children) can be read here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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