The Life And Death Of Declan HaineyThe life and death of Declan Hainey
A case without precedent. A case without justice
Kenneth Roy's special report: Part I
Unexamined amidst the pre-referendum hysteria, there was an event unprecedented in Scottish legal history: the publication of a fatal accident inquiry report which ascribed culpability to someone earlier acquitted by the highest criminal court in the land.
The decision of Sheriff Ruth Anderson in the case of one-year-old Declan Hainey, whose body lay undiscovered in a squalid flat for at least seven months, gives a sensational new dimension to a saga of wide-ranging incompetence and ineptness. In particular, it raises questions about the Crown Office's handling of the case against Kim Hainey, the child's mother.
Declan Hainey was born on 17 April 2008 and died at 45 Bruce Road, Paisley, sometime between 1 July and 31 August 2009. His exact date of death will never be known. His body was too decomposed to allow that fundamental dignity about a human life.
On 30 March 2010, after social workers informed the family that they were about to report Kim and Declan Hainey as missing persons, the child's grandmother and her husband went to the flat. They found Declan dead on a bare plastic mattress in his cot, covered in a yellow towel. He was not wearing a nappy, although a soiled one lay nearby. One leg was sticking out of a baby-gro. Near his head there was a baby bottle with curdled milk, and between his legs the cellophane wrapper from a cigarette packet. There was no power in the house.
Twenty months later, a jury at the High Court in Glasgow convicted Kim Hainey, then aged 37, of murdering her son. Lord Woolman sentenced her to life imprisonment and ordered her to serve a minimum of 15 years; on a second charge that, 'conscious of her guilt', she attempted to defeat the ends of justice by failing to report his death and concealing his body, he imposed a concurrent sentence of seven years.
Although Kim Hainey went to prison, there was never any doubt that the case was destined for the appeal court. When the trial began, she was alleged to have assaulted her son, as well as wilfully neglected and ill-treated him. By the end of the case, the prosecution had dropped the word 'assault' from the indictment and it had become a charge of murder by omission rather than commission.
But it was the second of the Crown's difficulties that proved to be the undoing of the prosecution. Because of the state of the body, two pathologists who examined it were unable to conduct the normal post-mortem tests to establish whether Declan had been struck, smothered or strangled. They were left with no alternative but to declare the cause of death as 'unascertained'.
Their comment that there was no evidence of broken bones was of some value to the defence, which produced David Manghan, a specialist in orthopaedic pathology. He told the jury that, if there had been chronic neglect, he would have expected to see fractures.
In a trial dominated by expert evidence, the Crown's star witness was Susan Black, a professor of human anatomy and forensic anthropology at Dundee University, supported by Craig Cunningham, a lecturer in anthropology. Paisley CID had contacted Professor Black for an opinion on the age of Declan Hainey at the time of his death. As a result of this request, she and Dr Cunningham were invited to the post-mortem.
The examination of the skeleton turned up a disturbing feature from Susan Black's point of view. She detected in Declan's bones a phenomenon known as 'Harris lines', which in her opinion might indicate pre-death stress arising from neglect and malnutrition. Plainly, said the trial judge, this evidence was 'potentially of considerable significance'. He asked the jury to consider it carefully.
Her testimony was, however, disputed by Dr John Beattie of Yorkhill Children's Hospital, who said he saw Harris lines all the time in his practice as a paediatrician – and that they were present in perfectly healthy children.
We have attempted to review the literature on this subject. It seems that for many years, indeed for most of the 20th century, Harris lines were associated with children who – in the words of one distinguished peer-reviewed medical journal as recently as 1998 – 'experience significant physical stress such as infection or malnutrition over a sufficient period of time'.
There was also a theory that Harris lines could be a symptom of psychosocial short stature, a condition in which a child's failure to grow, if it had no organic explanation, was thought to be caused by behavioural disturbance and stress. But more recent scientific literature has cast doubt on the significance once attached to Harris lines. It is now suggested that there are many innocent reasons for their appearance in children.
So there was a disagreement in court about Harris lines. But Susan Black's evidence provoked controversy for a second reason, which turned out to be decisive.
When the trial judge invited the jury to give careful consideration to her sinister theory about Harris lines, he did so aware that the defence had already attempted to undermine her credibility, and that of Craig Cunningham, as expert witnesses. It emerged in testimony that neither possessed medical qualifications.
Kim Hainey's QC, Edward Targowski, seizing on these revelations, asked the judge to instruct the jury to disregard the evidence of both witnesses. By refusing this request, Lord Woolman handed the defence a powerful ground for appeal.
Mr Targowski went on to argue before three appeal judges that crucial evidence against his client had been flawed. The court had no difficulty in agreeing. Lord Clarke said that the trial judge had not given the jury 'the required assistance to carry out the assessment of the critical medical and scientific evidence in this case'. He added that Lord Woolman had also failed to focus the jury's attention on possible natural explanations for Declan's death.
In a devastating joint reference to Lord Woolman and Professor Black, he went on: 'Putting matters colloquially, it cannot be right for a trial judge to allow an obvious "quack" doctor to speak to a subject in a supposed expert way in relation to which he has no qualifications'.
The appeal judges quashed both convictions. Suddenly, not only was Kim Hainey innocent of murdering her child; she was also innocent of failing to report his death and of concealing his body. After 15 months in prison, rather than the 15 years to which she had been sentenced, she was a free woman. She is said to be living somewhere in England.
The collapse of the case posed a number of questions about the prosecution's strategy. Why was Kim Hainey charged with murder and not culpable homicide? Why was the indictment so poorly put together that the word 'assault' had to be dropped during the trial, and the phrase 'conscious of her guilt' meant that, as soon as the conviction for murder was quashed, the charge of attempting to defeat the ends of justice also inevitably fell? Why did the Crown place so much faith in expert testimony which was so easily discredited? And why did it allow the reputation of an eminent senior academic (albeit without the qualifications deemed necessary) to be hung out to dry after she had responded in good faith to the police's request for help?
The case would have ended there, however unsatisfactorily, but for the judicial coda of a fatal accident inquiry (FAI) into Declan Hainey's death.
The FAI is limited in scope. It considers the time and place of a suspicious or unexplained death, its cause, and any precautions which may have avoided it. There was no legal obligation to have such an inquiry in this case. The facts had been thoroughly rehearsed during the trial. There was a degree of political and public pressure, and perhaps it suited the Crown's purposes, to have them further examined. But if the FAI was an unusual course of action in the first place, the outcome makes it more remarkable still.
Most of the parties represented in the inquiry – including Kim Hainey herself – argued that, as the cause of death was 'unascertained', it was not open to the sheriff to go further. Ruth Anderson disagreed. She ruled that Kim Hainey's 'prolonged neglect' of her son was 'at least [the sheriff's italics] a contributory factor in his death'. Whatever one makes of this verdict – surprising, robust, even rather brave – it inevitably invites a re-evaluation of the whole case.
We now have a history of conflicting verdicts. It is a judicial mess. Where in any of it is justice for the dead child?
Prompted by that essential question, we devote much of this week's edition to exploring the truth about the life and death of Declan Hainey – and the troubling aftermath.
The life and death of Declan Hainey
A life in freefall. An unborn baby unprotected
Kenneth Roy's special report: Part II
Kim Hainey, who was born in 1974, was an independent young woman. She had a good job, bought a small flat with a mortgage, lived a stable life. It seemed to be the death of a relative – an uncle to whom she was close – that propelled her into depression. She started to drink heavily and to abuse drugs, including heroin. She lost both her flat and her job.
From the age of 26, Kim was never in regular employment and had no permanent home. She had scarcely known her father, but remained fitfully attached to her mother, Elizabeth Rodden. She would disappear for long periods – as long as a year – without contact.
She was twice a patient in Dykebar psychiatric hospital in Barrhead, Renfrewshire. It was there, in the early weeks of 2007, that she met a fellow patient, David Gibson, a married man with children, and formed a sexual relationship with him, as a result of which Declan was conceived in the summer of that year. By the end of 2007 the relationship had come to an end. David Gibson never saw his son. Nor did he ever express an interest in seeing him.
When Kim confided in her mother that she was pregnant, Mrs Rodden began to buy clothes and toys for the baby. In the final weeks of 2007, she and her husband went on holiday to Portugal, leaving Kim in charge of the house. When they got back in early January, she was with a man unknown to them and there was evidence of drug use. They told them to leave, and there was no further contact between mother and daughter until the day Declan was born.
In January 2008, Kim turned up in A&E at the Royal Alexandra Hospital in Paisley with a chest infection. She was 28 weeks' pregnant. Staff noted that she was malnourished, unkempt and running a temperature, and that her personal hygiene was poor.
What was described as an 'intensive support package' was available at the hospital to pregnant women who were abusing drugs. It consisted of one drug worker and one family support worker. Kim was the drug worker's first client – a difficult one. She was reluctant to divulge information about where she had been living or with whom. But she did admit that she was smoking five bags of heroin a day at £10 a bag.
The drug worker, who knew nothing of her client's history of mental ill-health, took her to a clinic in Paisley and Kim was given a methadone prescription.
The social workers held an initial meeting to assess her condition. One of them had only recently returned to work from long-term sick leave. Kim's GPs were not invited and there were no health visitors present. In a case crying out for inter-agency cooperation, there was none.
A report presented to a follow-up meeting contained no risk assessment, no contingency plan, no proper appraisal. And still the professionals looking after Kim Hainey had not obtained her medical records (there was some confusion about whether they were entitled to access them). The meeting concluded that there were 'no significant child protection concerns at the moment'.
How could they have arrived at such a conclusion? Kim had a history of heavy drug abuse. She had nowhere to live. She was failing to prepare for the arrival of the baby. She was not in contact with her immediate family. Deep into her pregnancy, she was neglecting her physical well-being.
Declan was born. No complications. Small, but a healthy baby. Four days later, the social workers had a further meeting. The drug worker wasn't there. Nor were any of the health visitors. Kim's medical records still hadn't been requested. But the atmosphere was positive. Those present, while confirming that there were no child protection concerns, agreed that there should be an inter-agency review within three months. There wasn't.
At first, Kim and Declan lived with Kim's mother, a loving person by all accounts, and her husband. Declan was healthy and thriving; there was an obvious bond between mother and son. When Kim announced that she had obtained the tenancy of an upper flat at 45 Bruce Road in Paisley, Elizabeth Rodden took on an extra cleaning job to help meet the cost of redecorating the flat.
The days of domestic contentment were short-lived. In late June 2008, Kim went out for the evening and returned drunk and aggressive. Declan was asleep in the living room. The police were called and alerted the social work department. The social worker who had been on sick leave reported to his boss, who said she would need to speak to Kim and see Declan, with a view to establishing whether child protection procedures should be instigated. She did neither. Kim was not spoken to. Declan was not seen.
On 6 August the case was closed. Six weeks later, Kim moved with her baby into the flat at 45 Bruce Road, where Declan would die on a date unknown.
The life and death of Declan Hainey
A mother's deceit. The judges who can't agree
Kenneth Roy's special report: Part III
Inside 45 Bruce Road
In the two formal legal documents which we can now compare – Lord Clarke's appeal court ruling and Sheriff Ruth Anderson's report on the fatal accident inquiry – there is a striking divergence.
Lord Clarke states meaningfully: 'It has to be noted that any contact with the medical services during Declan's life did not cause the medical personnel any concerns'. He quotes a consultant at Yorkhill Children's Hospital who, having studied the baby's health and social work records, testified that Declan 'had progressed normally up until and including his last examination by the doctors'.
Sheriff Anderson's report gives a quite different impression. Far from there being a steady pattern of consultation, Declan saw a GP on 11 December 2008 when he was eight months old. The sheriff is clear: this was 'the only time in his life that he was seen by a GP. It would have been unusual for any child, especially a first child, to be seen by a GP only once in the first 15 months of life'.
A health visitor from Love Street surgery gained access to the flat at 45 Bruce Road once, in March 2009. It is unclear whether the appeal judges would have regarded this as 'contact with the medical services', but, to borrow the terminology of Lord Clarke, the experience did cause the visitor some concern. She observed that Declan was 'not keen to support himself in a sitting position for any length of time' and that he was suffering from sores and what might have been a nappy rash. She arranged for a prescription.
At that stage, according to Sheriff Anderson, the case should have been re-classified from 'low priority' to 'intensive'. It wasn't. The health visitor never saw Declan again. At a subsequent meeting of the team looking after her case, the social workers considered Kim Hainey's history of cancelled appointments, and the growing suspicion that she was lying, yet the possibility of a child protection investigation was never discussed.
Back in October 2008, Kim had hosted a Halloween party at 45 Bruce Road. Her mother was there. It was the last time any member of the family was inside the flat until the discovery of Declan's body almost exactly five months later. Some degree of normality was still being observed as late as April 2009, when the family organised a meal to celebrate Declan's first birthday – it was the last time they saw him alive. Kim continued to visit her mother, often two or three times a week, but never with Declan.
Four days after the birthday party, a dispenser at Lloyds pharmacy where Kim picked up her methadone prescription asked her why she no longer brought Declan with her. The answer – she tended to excuse his absence by saying that he had been enrolled in a nursery or was with a neighbour – was unconvincing. The following day two social workers visited the flat and saw Declan for the first and last time.
For the whole of their hour-long visit, he lay in his travel cot watching a children's DVD and drinking from his bottle. He seemed pale and quiet and failed to react in any way, even when his mother became angry and offensive to the social workers in front of him.
The next and final contact with professional carers was towards the outer limit of the two-month period (July-August 2009) when Declan's death is officially thought to have occurred. It is possible that on 17 August, when a health visitor called at 45 Bruce Road and got no response, Declan was already dead. Two days later Kim phoned the health visitor and told her that she had no worries about Declan, that he was walking and had a good appetite.
But the neighbours had their suspicions. One family who had heard Declan crying every day for periods of between four and five hours, mostly in the evenings, went on holiday in August. When they returned, they were soon struck by the difference. Declan wasn't crying any more.
The excuses kept piling up. Kim told one neighbour that Declan was now in nursery full-time and that she was working in her uncle's garage. The neighbour was curious enough to visit the garage. She discovered that Kim was not working there, that it was not owned by her uncle, and that no-one at the garage knew her.
It is interesting that it was two private individuals – the pharmacist and the neighbour – who took it upon themselves to investigate, rather than any of the caring professionals. In defence of the latter, the size of the typical caseload – 300 for each of the health visitors – increased the likelihood of errors of judgement and of vulnerable people slipping through the net. Whatever the explanation in the case of Kim and Declan Hainey, no-one joined the dots.
What happened on the day of Declan's death and in the weeks and months after it? Kim testified at her trial that, the night before he died, Declan had been well. She, however, had a cold and was feeling poorly, so she put him down to sleep and left him watching a DVD.
When she woke in the morning, she went to make a bottle of milk for her son. She looked into his carry-cot and he was 'just lying there'. She picked him up, 'begged him not to go' and took him into bed beside her. She gave him mouth-to-mouth resuscitation, but his lips were blue and he had 'this fixed look in his eyes'. She said she could not accept that he was dead and started preparing things for him 'like I normally would'. She went into denial, dealing with the situation by telling herself that Declan was still alive. As her QC, Edward Targowski, put it: 'She simply went into a downward spiral'.
That was Kim Hainey's account of her mental condition and her actions: an account that led all the way to the appeal court and her eventual acquittal.
But there is a new and alternative version of what happened: a more incriminating one.
The life and death of Declan Hainey
A damning verdict. Where does it leave the case?
Kenneth Roy's special report: Part IV
Lord Clarke and Professor Susan Black
It was Kim Hainey's sworn testimony in the High Court, during her trial for murder, that she never left Declan alone overnight. If she was lying, a vital question re-presents itself:
What would be the effect on a child's health if he was left alone – not just overnight but for 48 hours?
Dr John Beattie of Yorkhill Children's Hospital gave the jury his professional opinion. He said that if a child of Declan's age was unattended for so long a period the body would become 'progressively dehydrated', the child would be in 'a very poor condition' and there might be signs of brain dysfunction.
That opinion receives no more than a passing mention in the appeal court judgement, which was mainly concerned with the perceived lack of credibility of Susan Black and Lord Woolman's misdirection of the jury. But in the light of Sheriff Ruth Anderson's report, it assumes huge importance.
First the sheriff finds 'abundant evidence' that Kim left Declan unattended on many occasions – sometimes for a few hours, at least once overnight, at least once for around 48 hours when she was staying with her new boyfriend – and that Declan 'spent many hours over many evenings crying and uncomforted'.
Next she finds 'ample evidence' that Kim was failing to care for her son, that he did not attend nursery as she protested he did, that she made it difficult for health visitors and social workers to maintain contact with her, that after Declan died she failed to call the emergency services or her family, and that she continued to 'go about her business' with her son's body in the house.
Sheriff Anderson, in stark contrast to the defence's account of a grieving woman going into a downward spiral, finds that Kim 'seemed bright and chatty and well-turned out' after Declan's death, informing an experienced health visitor that her son was thriving, that he liked to brush his teeth, that he enjoyed a particular television programme. She finds that Kim went on living in the flat at least some of the time, that while her son lay dead she was eating in it, drinking in it, taking heroin and cannabis in it.
Meanwhile, there was a baby bath full of soiled nappies, and the place was in such disarray that the carpets were no longer visible. But the sheriff emphatically rejects the suggestion that Kim was having a lengthy and severe breakdown of some unspecified nature. 'There was a history of lying and manipulation and after her son's death that pattern of behaviour continued...I reject the submission that she was at all times a loving mother who suffered a severe breakdown on the death of her son'.
Finally the sheriff reaches a damning conclusion. True, the pathological findings had been very restricted because of the state of the body. 'In my view,' she states, 'that does not mean that I must set aside all of the evidence before the inquiry which pointed to Kim Hainey's prolonged neglect of her child, from at least the beginning of February 2009. Nor does it mean that I should not take into account the way in which his mother treated his body after death nor her determined efforts over many months to deceive others into believing that Declan was still alive'.
Putting it at its mildest, the verdict of the fatal accident inquiry – that Kim Hainey's 'prolonged neglect' of her son was 'at least a contributory factor in his death' – tends to call into question the earlier comprehensive acquittal.
So what – if anything – happens now?
Sheriff Anderson notes without comment – though the fact she mentions it at all is significant – that the Crown has in certain circumstances the power to re-indict Kim Hainey under the Double Jeopardy (Scotland) Act 2011. The double jeopardy principle – which prevents an acquitted person being tried again – is enshrined in law by the recent legislation, but exceptions are now permitted.
A suspect can face re-trial for a very serious crime if 'compelling new evidence' has emerged. Is the evidence produced by the fatal accident inquiry 'new' or 'compelling' enough? We have ourselves pointed to inconsistencies – for example in the judicial divergence over Declan's contact with medical services and the significance of such contact as there was. We also suggest that, if the neglect was as overwhelming as Ruth Anderson contends, misdirection of the jury on the specific issue of the credibility of expert witnesses was not sufficient to dispose of the matter.
In April 2013, when both convictions were quashed, the Crown Office announced with surprising haste that 'it would not be appropriate to apply for a re-trial'. It has a duty in the public interest to reconsider that decision.
Finally, here are some basic statistics about the tragically brief and wretched life of Declan Hainey.
The fatal accident inquiry heard from eight neighbours and friends who saw both mother and son at various times from September 2008 until the summer of 2009; from eight employees of Renfrewshire Council's social work department, five of whom had direct contact with Kim and her son; from two GPs at the surgery where they were patients; from four health visitors who held Declan's file.
Despite the direct or indirect involvement of so many responsible people, Declan was never adequately protected. How many more have been involved in the various judicial hearings since then? Dozens; possibly hundreds. Yet the result of this monumental effort is deeply unimpressive.
Justice for Declan? If only.
I find this case deeply distressing. It makes me so angry that this wee baby was so badly let down by EVERY single adult in his wee life.
The warning signs were all there yet no one protected this wee man.
The fact she was a patient in a mental hospital and an active drug addict should have been enough for this wee boy to be on child protection. No ifs ands or buts. The fact she was not letting any of them in should have been when they got a court order and got into the house without her permission. That could have saved that baby's wee life.
The state the house was in did not happen overnight, health visitors or social workers must have seen how dirty it was.
The fact the health visitor had concerns about the colour of Declans skin, how quiet he was and the fact he wasn't sitting up properly should have had her onto the phone to social workers and the doctor straight away.
Kimberly Hainey is guilty of gross neglect but so are the social workers, health visitors and any other person who did nothing.
If I did not see my grandkids for any length of time I would be at their door myself. I would not take no for an answer.
God Bless the wee soul. I hope he is at peace now. Its heartbreaking.