The Water Is Warm Read online

  The one area that the silk could not do much about was the bruising to Martha’s forehead. Dr Springton accepted that it was possible that a mother could tip a child’s head back as part of the mechanism of opening the mouth, and the silk gave a demonstration of this in court by tipping her own head backwards. He accepted that, in an emergency, a mother would not weigh up the force required to do an act like that – people act in the agony of the moment - but he found it difficult to understand how that act would result in bruising. He had to accept that it was just possible that the bruising could have been caused in that way; I remember that reply well because the silk had to deal with it specifically in her speech. The point was pivotal and she poured loads of advocacy into it.

  The second day in court did not add anything to the weight of either side’s case. The social worker gave evidence briefly as did two of the treating consultants but there was nothing for them to add that took the case beyond the evidence of Dr Springton. To the obvious pleasure of the judge the silk laid into the social worker for coming out with a load of guff involving outdated research about so called Munchausen Syndrome by Proxy. The social worker tried to suggest that it was a diagnosable syndrome and was machine gunned down by the silk for doing so – did she have any medical training? Any psychiatric training? How did she define the word syndrome? What research had she done? Was she aware of the research that the silk then read to her?

  ‘My learned friend is producing research that neither I nor the social worker have ever seen and which was not shown to us before we came into court,’ Nagan whined.

  ‘Then neither you nor she should try to talk about things that are beyond your comprehension.’ It was like watching the silk shooting fish in a barrel.

  ‘It’s all been dealt with in case law anyway,’ the judge didn’t even make eye contact with Nagan when he spoke.

  The health visitor gave evidence that was strongly supportive of Catherine’s general qualities as a mother.

  ‘So,’ said the silk, ‘on what you saw, she’s a very good mum?’

  ‘On what I saw, yes. Very.’

  CHAPTER NINETEEN

  I can picture Catherine now as she came into the witness box at the start of the third day, looking frightened but dignified. She and I had been sitting next to each other in court up until then and I had been looking after her, acting as the line of communication between her and the silk so that the silk could focus on what she had to do. I also had to feed the silk with documents when she asked for them in court. Sitting side by side with Catherine for three days made me feel that we were linked, as if we were allies facing a common enemy. I can remember feeling an urge to hold her hand and nearly did so under the courtroom desk at one point when she turned to me and smiled, looking for reassurance after something that Springton said. She reminded me of a dog that I had once seen knocked and wounded by a car – very frightened, very bewildered and crying out for comfort.

  ‘I’ll call Ms Warrenberg,’ the silk said.

  ‘Good luck,’ I whispered to her.

  In heavily rehearsed evidence in chief over the next thirty minutes she gave a perfect performance in which she stressed her innocence and described the misery of the preceding five months. The silk asked her questions, in particular, to emphasise her good character – that she came from a good, professional and supportive background, that she was a devoted mother to Martha and that her mother, Geraldine was a role model for her.

  ‘And your mum and step-dad, I know you want to tell the judge a few words about how much they mean to you?’ This was the happy family question – the question geared to make the judge think ‘imagine this was my daughter / niece…’

  ‘They have done a brilliant job. Even though they are not here today…’

  ‘They’re looking after Martha, aren’t they?’ the silk cut in. ‘…yes, even though they are not here today, I want you to know,’ turning to the judge, ‘that I am incredibly grateful to them. They have both done so much for me and for Martha. My mum and dad...I’m sorry, that’s what I call him, I mean my step-dad… could not have done more for us.’

  ‘Just tell the judge how the last five months have been for you?’

  The silk knew her job. Catherine ended her evidence in chief in tears as she explained everything that Martha meant to her and how dreadful the past five months had been as she was separated from her baby. There was a short adjournment before Nagan began his bit.

  Little shit or not, Nagan plainly knew the vulnerabilities of our case and exploited them from the start. He began with the bruising to the forehead. He obviously realised that he was not going to get any sort of admission from Catherine and so he saw his task as trying to rubbish what she was saying on the strength of the medical evidence. He made her demonstrate the method by which she said she tipped back Martha’s head and then spent a long time on whether the actions that she had shown could possibly have caused the bruising. He scored some very obvious points and to my painful surprise did the job well. He then did a similar job on the bleeding in Martha’s mouth and on why Martha had only stopped breathing when she was with Catherine, scoring points there too.

  ‘You call your step-dad your dad?’

  ‘Yes’

  ‘You say that he and your mum looked after you very well when you were young?’

  ‘Yes.’

  ‘No problems in your childhood?’

  ‘Not really no.’

  ‘And they have looked after Martha well for the past five months?’

  ‘Yes.’

  ‘Martha did not stop breathing when she was with them, did she?’

  ‘No, maybe she had just grown out of it.’

  The silk had covered the point as best she could with Springton in his evidence. She and I had spent a long time preparing this part of the cross examination of the doctor. The silk had made the point that unexplained cot deaths do happen and that ALTEs (apparent life threatening events) do also occur in otherwise healthy children. Springton had accepted that there may be a number of reasons for this and the silk had explored three main possibilities. I can remember the theatre of this part of the case very well because the silk had managed to get the judge and the expert involved in an almost hushed and private discussion where I watched three big minds whirring around a complex bit of medicine. I want to get back into a bit of it, to see how much I can remember of the medical aspects of the case. I spoke about it often with Josh, who found it interesting as a nurse.

  First, they had looked at apnoea (where a baby suddenly stops breathing) as a result of incomplete physiological or neurological development, sometimes leading to sudden infant death in other children. Although Springton had cited research about how rare this was and had said that no physiological abnormality had been detected he also acknowledged that, as in sudden infant deaths, neurological under-development might be impossible to detect. So, on the basis of the research into sudden infant death syndrome it remained an unexplained possibility which, on the state of the then current medical research, could not be entirely ruled out on medical grounds alone. As he said, in very rare cases young babies do die or stop breathing suddenly and do so for unexplained reasons.

  Second, gastro oesophageal reflux, where gastric fluid or vomit comes up into the throat and can cause choking. He accepted that it is perfectly possible for a young child to experience a period during her early development where reflux-induced respiratory failure occurs but doubted that was the cause of what happened with Martha. However, he accepted that it could not be ruled out entirely as a possibility. ‘Never say never in medicine,’ he agreed. A child may choke on its own sick and, he had to accept, the carer might not observe the small amounts of sick or gastric fluid involved.

  Third, unidentified infection or inflammation of the respiratory system, such as bronchiolitis. Again, he had said, no signs of anything like that had been found. She did not have a raised temperature, was possibly slightly snotty but not stuffy and there were no reports of her
being consistently unwell just before the collapses. The fact that there had been three episodes over a period of time also militated against unidentified infection, he thought.

  If Nagan had been sensible he would have left the medical evidence to the doctors. But he didn’t. He tried asking Catherine a lot of questions about it, trying to rubbish each of the three possibilities that had been identified in Dr Springton’s evidence as doubtful possibilities.

  Silk and judge had eventually shut him up. After numerous reminders from the silk that ‘Dr Springton said that it was possible’ the judge exploded with ‘Mr Nagan all this is in the medical report and isn’t challenged. At the end of the day it’s for me to decide what did actually happen.’ Catherine just looked bewildered in the witness box while the arguments between bar and bench were being sorted out.

  Nagan then went on to make some even worse points. Had Catherine tried to suffocate Martha with a pillow - there had been no prior mention of a pillow and children of that age don’t have them. Had Catherine attempted to smother Martha while suffering from post-natal depression at a time when her milk stopped - a point which ran completely against the health visitor’s evidence?

  He did also begin to make another point. How had Catherine realised that Martha had stopped breathing? Catherine knew the point was coming as we had discussed it but, if Nagan had handled it carefully, there were points that he could have scored there as well, particularly about the second occasion that Martha had stopped breathing. However, he didn’t and he lost the attention of the judge again. ‘It’s like a ticking clock in a room, you don’t notice it until it stops,’ Catherine had replied.

  The cross examination was long and tense and, at the end, Catherine was obviously exhausted and I remember thinking to myself ‘whatever is the judge going to make of it?’

  Next day saw Geraldine giving evidence and again there were points for Nagan to score with her. Martha had never stopped breathing when in Geraldine’s care was the first point, which the silk could only partially defend by saying that, if a child is to stop breathing, it is likely to be when she was very young and was being looked after by her primary carer, her mother. He also ran the point that, because Geraldine thought that Catherine was such a good mother, she would never be able to protect Martha if the judge made findings that Catherine had harmed her – the judge stopped that questioning because it all depended on what findings, if any, he was going to make. However, Nagan had made his point.

  There is one other thing that arose during her questioning which I want to mention because of the impact that it had later on.

  ‘Catherine is a good mother, you say?’

  ‘Yes.’

  ‘She would never harm her own child?’

  ‘No, of course not’ – I remember Geraldine looking across at Catherine.

  ‘You and your husband agreed that you would not leave Catherine alone with Martha while she has been living with you, didn’t you?’

  ‘Yes,’ Geraldine began to look anxious.

  ‘Was there any need for that…for you to be there whenever Catherine was with Martha?’

  ‘Not really. But we did what we were told.’

  ‘What do you mean?’

  ‘We never left them alone.’

  ‘Never?’

  There was a pause. ‘Well we did once but only for a short while.’

  She went on to explain that she had needed some food from the shops, it was raining and she did not want to take Martha out in the rain; so Catherine had looked after Martha for about an hour at Geraldine’s home while Geraldine nipped out to the shops.

  ‘Are you quite sure that only happened once?’

  ‘Yes, quite sure.’

  ‘Is there any evidence to suggest otherwise, Mr Nagan?’ the judge asked.

  ‘No, Your Honour.’ He left the point there.

  The final witness was Brian, Catherine’s step-father. He only gave evidence of character – that means he was there to look the judge in the eye and say what a good mum she was.

  ‘Your Honour, I question why we need to hear from this witness at all,’ Nagan said.

  ‘I bet he does,’ I whispered to Catherine.

  ‘That’s up to Ms Philpott,’ the judge said.

  ‘Then I will call him, please,’ the silk said. We had discussed his statement before calling him and the silk was keen for the judge to put a face to Brian’s name.

  Brian came up to proof very well. The judge obviously warmed to him as he spoke, with his slight hint of a Birmingham accent giving him the sound of a local lad, of how he had helped to look after Catherine from a very early age. ‘She’s always been a lovely girl and we are so very proud of her,’ he said and looked towards Catherine from the witness box. She just continued to look down at the desk.

  The next thing was for the advocates to make closing speeches. The silk came first and, by the end of her speech I sensed that we had probably won. ‘Why should a professional woman and loving mother from a solid background behave in the way alleged by the local authority against the daughter that she loves?’ That line and the line that even the medics thought that Catherine’s explanations were possible formed the basis of what she had to say. ‘The burden of proof is on the local authority. It must prove its case against Ms Warrenberg, she does not have to prove her innocence. Even though the standard of proof is no more than the balance of probability the local authority has got nowhere near proving its case. Possible things happen - that’s why we all take precautions.’

  She also had saved this point for closing speeches: ‘How, on the local authority’s case is there any association between the bruising on Martha’s forehead and the allegation of attempted suffocation. There isn’t any. At best its case on the bruising is one of an allegation of generalised mistreatment by the mother, but there is no basis for that sort of general allegation given the evidence of the very high quality of the mother’s care of her child in every other aspect. On the mother’s case there is a clear explanation that puts the bruising in context. That is why it should be accepted or at very least the local authority’s case rejected.’ It was a trick of the trade - if you can, always keep one killer point to closing speeches and then ram it home with all your might. It may well be the last thing that the judge remembers and carries into his retiring room. The silk did just that.

  Nagan also sensed that he had lost because his speech went on for far too long and in much too insistent detail.

  ‘Just for the sake of completeness, I would like to examine that point further with Your Honour.’

  ‘Oh, for fuck’s sake!’ the silk wrote on a piece of paper that she passed to me from the front row.

  The silk sat looking out of the window, still with one long leg crossed over the other while Nagan spoke, giving a brilliant display of utter boredom. When he made a bad point tediously, she lolled her head backwards slightly and looked at the ceiling. At one point the judge caught her eye, his face judiciously blank but his thoughts as plain as a pike staff.

  The guardian’s barrister, who had asked next to no questions during the whole hearing, made a short speech of no real effect. I can’t even remember his name.

  ‘I will give judgment tomorrow at 2 p.m.,’ the judge announced at the end of the speeches.

  ‘I thought you were never going to stop,’ the silk said to Nagan after the judge had risen.

  ‘Is there life after death?’ she whispered to me as we left court.

  ‘Don’t know. But don’t ask Nagan – by the time he had finished answering you would have found out – for sure.’

  ‘You acerbic bastard,’ the silk said. ‘Time you bought me a drink. Champagne, I think. And none of your rubbish.’

  CHAPTER TWENTY

  Catherine was shaking visibly while the judge read out the judgment. She kept wringing her hands on the desk in front of us both and staring at them. Occasionally she would reach for a tissue and wipe her eyes or blow her nose quietly. I was trying to write down some of
what the judge was saying because, although he had typed out the judgment, he didn’t hand it down until after he had read it out. He gave a full account of the case, the law that he applied, the key evidence and the conclusions that he reached. Only after about an hour of analysis did the direction of the judgment finally start to become clear.

  ‘This sounds hopeful,’ I wrote on a piece of paper and pushed it towards Catherine. She just looked at me.

  In the end the judge rejected all of the local authority’s allegations and agreed that the local authority had got nowhere near proving its case to the requisite standard. He accepted that the bruising to Martha’s forehead required very careful analysis as did the fact that Martha only suffered collapses when in Catherine’s care. He then did examine them with care and accepted most of the arguments that the silk had advanced. Recurrence of three episodes of apnoea does not prove that any of them was caused deliberately; it is just as possible that they arose through underlying infection or some unidentified physiological or neurological abnormality. Further, he said, when balanced against the mother’s good character and the fact that her explanations provided a possible medical explanation, there was no reason to accept the local authority’s case against her on the issue of bruising or anything else. The single lapse in compliance with the agreement did not add anything to the forensic process in which he was engaged. He said that he could only decide the case on evidence that was placed before him and could not express himself in terms of certainty. However, he was firmly persuaded that the local authority’s case fell well short of meeting even the civil standard of proof.

  Catherine burst into tears. Then she stood up and said directly to the judge: ‘Thank you. Thank you so much. You can’t begin to imagine how much that means to us.’

  Nagan looked stony faced and the social worker sat shaking her head. Even now I can remember that the time within which an appeal notice would have to be brought was 21 days - there never was an appeal and so that was the end of the case – care proceedings dismissed. It was Friday 13 September 2002.