IMPORTANT NOTICE
This judgment was delivered in private.  The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their [or his/her] family must be strictly preserved.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.
Case No. 
Neutral Citation Number: [2014] EWCC B47 (Fam)
IN THE NEWCASTLE COUNTY COURT
IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF: A & B (CHILDREN)

Date: Thursday, 3rd April 2014

Before:

HER HONOUR JUDGE MOIR

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Re:  A & B (Children)

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Counsel for the Local Authority: Mr L
Counsel for the Mother: Ms F
Counsel for the Father Ms H and Ms J
Counsel for the Guardian/Children: Ms Z

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JUDGMENT
1.	THE JUDGE:  I am concerned with the welfare of two children: A, born on 7th January 1999, now aged 15 years; and B, born on 30th November 2006, aged 7.  They are both the children of C.  A’s biological father D is deceased but A has always considered E as his father.  E is the father of B.
2.	Mother and father commenced their relationship at a time when C was pregnant with A.  Father was a friend of C’s own father.  They have been a couple until recently, although with occasional separations.
3.	There has been multiagency involvement with the family over many years.  The Local Authority maintains that there are recurrent themes which can be identified within this family from an early stage and continuing with varying levels of intensity throughout the lives of these children.
4.	The Local Authority seek care orders with a plan of long-term foster care for both children and for the children to be placed together.  Supervised contact is proposed in respect of both parents, although father’s contact, in particular, will be kept under review.  At present, the Local Authority propose that the children remain with their current foster parents.
5.	Mother accepts that she is not in a position at the moment to care for either child.  Father wishes to be the sole carer for both children in the near future.  Father opposes the making of final care orders at this stage.  It is submitted on his behalf by Ms F that the care plans are flawed and should not be approved by the court.
6.	A asked for the opportunity to speak to the judge in the course of these proceedings.  I saw him in chambers along with his guardian G.  A is a young 15-year-old but made it very clear that his wish would be to return to live with both of his parents.  He wants his family to be together.  The court is in a slightly unusual position in that all the parties are aware that it has been said by mother and father that they have separated and that this time they both maintain it is a final separation.  The children have not yet been told about the separation.  Thus it has not been possible to ascertain A’s or, indeed, B’s wishes in the revised situation.  However, he is very clear wherever he is placed, A wants to be with B.  Nobody has suggested or is suggesting that A and B be placed separately.
7.	I heard oral evidence over the course of some 15 days from 23 witnesses, including various experts, and I have had the opportunity to view the interview of A undertaken by the police during the afternoon of 30th March 2013.  I have also had the opportunity to observe the mother and father in court over the days of the hearing as well as hearing their oral evidence.  I do, however, of course, bear in mind Macur LJ’s guidance which she gave in Re M (Children) [2013] EWCA Civ 1147 in looking at how much weight I place on the parents’ attitudes within the court and within the giving of evidence.  It has clearly been a very distressing case for them and I do not underestimate the effects which participating in a case of this nature must have on parents.
8.	The documentation in this case is voluminous and I have read and considered the statements, reports, medical records, police interviews and additional documents contained in the five lever arch files which are before the court.
9.	The law which I must apply is set out in a number of authorities referred to by the advocates and well known to the court.  It is the Local Authority who bring this case and the Local Authority must establish the facts upon which they base their case upon the balance of probability.  Suspicion and doubt cannot form the basis upon which to find a fact proved or to conclude that the grounds set out in section 31(2)(a) are established.
10.	The advocates representing mother, Ms H and Ms J, do not seek to argue that the threshold criteria are not made out in relation to A and B.  However, they set out in their closing submissions, and I quote from paragraph 15 of those submissions:
“It therefore cannot be said that the threshold criteria are met on the basis that the children were suffering significant harm as a result of neglect at the relevant date.  The proper evidential basis for crossing the threshold is that, on the basis of past neglect there was, on the relevant date, 31st March 2013, a likelihood, in the sense of a real possibility, that they might do so.”
The threshold is, indeed, crossed.  I will return to consider further matters of law which are to be applied in respect of K’s death and injuries at a later stage.
11.	The Local Authority initiated protective measures on 31st March 2013 following upon the death of K, who was born on 9th March 2013, so she was aged 3 weeks at the date of her death on 30th March 2013.  At the time of K’s death, all three children were the subject of child protection plans against a background of chronic neglect.  The Local Authority seek the findings set out in the schedule of findings at A117 in the bundle and amplified in the expanded findings in respect of paragraph 2.5.2 of that schedule.  The extended findings were prepared and served during the course of the hearing at the behest of mother’s advocates.  The findings sought are comprehensive and cover K’s birth and death.  They refer to chronic neglect and the mother’s drug misuse as it affected A and B.
12.	The mother accepts that she has failed to provide good enough care for the children.  I do find that, at times, when her own life has been more controlled, she has had the capacity to and has provided adequate care for the children.  However, over the span of their lives, the care provided by her has been inconsistent and her significant and enduring drug problem has impacted upon her capacity to function efficiently and to parent her children.  Father accepts that he failed to be sufficiently proactive in enquiring and while mother has accepted that, from time to time, her care of her older children was not good enough, she disputes that the extent of her neglect was such that the children should be permanently removed from her care.  While mother does not seek the return of the children to her care presently, her response to the threshold provides an indication of her lack of appreciation of the harm the chronic neglect and inconsistent parenting has caused to both A and B.
13.	Father’s failure to meet his responsibilities to his children and to sustain the level of support, which he belatedly seems to have accepted was required, has contributed to the harm A and B sustained as a result of their mother’s inadequate care.  There is evidence that when his support was forthcoming, the wellbeing of the children substantially improved.  However, his priorities did not seem to include the welfare of his children until latterly.
14.	The expanded findings in respect of chronic neglect and drug misuse involve consideration of the long history of Social Services’ involvement with the family.  Whilst trawling through numerous historic allegations may not be necessary in a large number of cases, in this particular matter, it is necessary in order to establish the chronic neglect and enduring problems to which these children were exposed prior to their removal into foster care.  The Local Authority seek to prove that recurrent themes can be identified from an early stage.  
15.	Mr L has set out within his opening of this case a number of matters in respect of chronic neglect, namely:
(a) Missed health appointments, within the latter years, dental decay for both A and B, B’s eyesight suffering, late antenatal presentation for K;
(b) Poor school attendance;
(c) Poor supervision with both A and B at times being put at risk;
(d) A lack of boundaries and routine;
(e) Poor engagement with professionals, including hostility, tape recording and simple refusal to cooperate;
(f) Volatility in the relationship between mother and father; and
(g) short-term progress followed swiftly by regression.
16.	It is also very apparent that the mother’s drug misuse, which has blighted the mother’s own life over years, is very relevant in considering the events which occurred in the years leading up to K’s birth and thereafter.  It is recognised by the professionals involved with this family that there has been good parenting at times and that A, in particular, but B also, wish to be with their mother.  A wishes the family to be together.  Clearly, this wish cannot be granted in any event as the parents have separated.  A has been at the centre of the traumatic events which have occurred within this family.  He was the first person to become aware of K’s death.  He has been removed from his family home against his wishes and he knows decisions are being made in respect of his future.  It is hardly surprising that, set against that background and in that context, he wishes things to be the same as they were before the events of 30th March last year.
17.	It is the Local Authority who bring this case and, therefore, they must prove it and, in relation to disputed facts, they must prove it on the balance of probability.  The House of Lords’ decision in Re B [2008] 2 FLR 141 made it clear that the standard of proof is the balance of probability, no more and no less, whatever the allegations or however serious those allegations are.
18.	In this case I have heard from a number of expert witnesses and I must remind myself how I am to approach their evidence.  As Ward LJ set out in Re B (Care: Expert witness) [1996] 1FLR 667, the expert advises but the judge decides.  The judge decides on the evidence.  If there is nothing before the court, no facts or circumstances shown to the court which throw doubt on the expert evidence, 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”. 
19.	 The court is, of course, in a unique position, in that I have had the opportunity, indeed duty and responsibility, to consider all the evidence before me and to analyse it.  As was said by Butler-Sloss when she was President in Re U, Re B [2004] 2 FLR 263 at paragraph 26:
“It is for the purpose of satisfying that threshold that the local authority seeks to prove specific facts against the parent or parents. Only if it succeeds in that task can its application for a care or supervision order proceed. Thus the preliminary issue of fact constitutes the gateway to a judicial discretion as to what steps should be taken to protect the child and to promote his welfare.”
She goes on to deal with the overall position.
“ For the Judge invariably surveys a wide canvas, including a detailed history of the parents’ lives, their relationship and their inter-action with professionals. There will be many contributions to this context, family members, neighbours, health records, as well as the observation of professionals such as social workers, health visitors and children’s guardian.   In the end the Judge must make clear findings on the issues of fact before the Court, resting on the evidence led by the parties and such additional evidence as the Judge may have required in the exercise of his quasi-inquisitorial function. All this is the prelude to a further and fuller investigation of a range of choices in search of the protection and welfare of the children. A positive finding against a parent or both parents does not in itself preclude the possibility of rehabilitation. All depends on the facts and circumstances of the individual case.”

The judge in care proceedings we are reminded must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners which are presently dark.  
20.	I have heard from a number of medical experts who are eminent in their particular field.  In particular, I heard from M, who is the professor of bone and joint pathology; from N, paediatric pathologist; O, forensic pathologist; and P, neuropathologist.  They have each given evidence in respect of their own speciality.  I must look at and analyse the evidence I have heard, including that of each expert, and do my best to reach a conclusion, applying the balance of probability test to the evidence.  
21.	The nature and extent of the neglect is, in fact, not greatly disputed.  The expanded schedule of findings sought has been responded to by C.  I will come to father’s position shortly.  The advocates on mother’s behalf sought the expanded schedule and specifically asked for it to include examples.  The responses emphasise mother’s assertion that, by January 2013, the neglect alleged previously had been rectified.  Mother does accept that important medical and dental appointments were missed.  She accepts school attendance and matters concerning school were neglected and punctuality for both A and B was problematic.  She accepts that A, aged 8, was caught smoking and out of the home after 8pm, only supervised by a 14-year-old girl, and she accepts lack of supervision over a number of years resulting in incidents of A and B walking the streets, A drinking alcohol and setting fires, and she also accepts failure to provide boundaries and routines.  Both children have been present on occasions when mother has been arrested for shoplifting and A, aged 10, was involved in a dwelling house burglary, was arrested for theft and involved in an incident damaging trees.  Both mother and father have been banned from the local shopping centre, mother for shoplifting and father for an altercation with the security guard.
22.	Mother also accepts that her cooperation with professionals was often poor.  Although she explains that she has a poor short-term memory and struggled to manage appointments made by post, she also accepts that she was not always accurate about her drug-taking but says she did not deliberately seek to deceive professionals about her drug misuse.
23.	I am satisfied that the neglect of these children was significant and longstanding.  Improvements were made from time to time but they were never sustained.  Mother, in response to paragraph 15(g) in the schedule of findings, accepts that position and, in submission on mother’s behalf, Ms H and Ms J set out:  
“The mother accepts that she has failed to provide good enough care for the children and this has been the case at various times over the years.  Whilst at times her care has been good, at others it has, on many occasions, fallen below an appropriate standard.”
They ask the court to take a balanced view of the past as far as mother is concerned and Miss F, on behalf of father, similarly stresses the positives in respect of E’s parenting.
24.	It seems from the social work evidence I have heard that the children very much love their parents and, indeed, I know that they wish to go home, as I have already described.  R described the children as two lovely children, very polite and well-mannered and easy to engage.  My experience of A was that he was a polite, somewhat shy, courteous young man.  Both parents have demonstrated loving behaviour and affection for their children which has been witnessed on numerous occasions by the professionals involved in the case.  However, it is also apparent that both parents failed to meet the needs of their children and the response of mother in the scheduled findings sought is as follows:
“The episodes of neglectful care occurred over a long period of time but the situation was improving.”
It is  further set out:
“Mother has already accepted that her care was not consistently good enough and this occurred over a long period, although, by February 2013, their physical, education and emotional needs were not being neglected.”
25.	Father, in his response to paragraph 16, namely the allegation that this neglect was significant and longstanding, sets out:
“Denied, though father accepts that, over the years, the needs of the children were not met consistently.”
26.	In oral evidence, it was noticeable that mother in respect of certain matters, such as the missing of appointments or not ensuring B wore her glasses, added caveats such as, “We tried our best” or, “I had a phobia about opening letters” or, “My short-term memory is bad.”  In relation to the expanded schedule providing examples, particularly in respect of lack of supervision, C’s response is:
“Mother has no recall but does not dispute the records.”
27.	It is of concern that C claims to have no recollection, whether that is in fact genuine or not.  If mother has, in fact, forgotten incidents such as when A was smoking and drinking and setting fires or being brought home in a police car, it seems that her lack of concern for A’s welfare can be seen as significant.  These are incidents which would and should have been memorable to a concerned parent.
28.	E’s position in respect of the neglect is set out in his response at A121 within the bundle.  It is set out in relation to (c), which was the allegation of chronic neglect:
“As to (c), father accepts he largely left day-to-day responsibility for care to mother who failed to offer consistent standard of care to the children (see below) which he failed to recognise or be sufficiently enquiring about.”
29.	At A124 in the bundle, father sets out that he repeats and accepts he failed to be sufficiently proactive or enquiring.  “ of(a), (b), (c),” which deal with medical appointments, school attendance and supervision, it is said:
“Are accepted, save when father took appropriate possibility. (d) [that is boundaries and routines] is accepted, save when father was physically present.  (e) [cooperation with professionals] is partially accepted, in that the father regrets he was not always fully cooperative with the professionals.”
30.	Father’s case in relation to the neglect is that he did not realise it was happening.  In his oral evidence, I take a number of examples of what he said in this regard:
“I did not realise they were not at school for a lot of years.”
“I was ignorant of what was going on a lot of the time.  I was not there.”
“If I am not there, how can I ensure anything?”
Miss F submits that the Local Authority have focused overly upon the historical negatives, rather than looking at the very positive picture that existed prior to K’s death and both Local Authority and guardian, she says, have failed to properly evaluate the future.
31.	The reality, however, is that over the majority of the lives of both A and B, the care they received was inconsistent and neglectful.  The submissions made on father’s behalf concentrate on the future for obvious reasons.  It is submitted that there is acknowledgement on his part that he wished he had done more and that he focused too much on his work.  
32.	E had always accepted responsibility for A and it is to his credit that he did not make any difference between A and his own daughter B but he failed both of them by ignoring or just not bothering to be vigilant in regard to their welfare.  He was well aware of the mother’s drug habit and, certainly, in 2006 was present in discussion with the social workers about the difficulties that mother had in respect of caring for A and managing her substance misuse.  Following B’s birth, by May 2007, significant improvements were noted and E, it seems, was offering support and assisting the mother.  Father was thus well aware that C struggled to provide good enough care without his support but, with his support, the children’s needs could be met.  Yet the standard of care deteriorated and A was left home alone, found on the roof of a building and he was observed smoking, out after 8pm with a 14-year-old girl and mother went shoplifting with B in the buggy.  
33.	Father’s response is he felt guilty and should have been there.  In evidence, E repeated that he should have done more but that he would come into the home, have a carry on with the kids and it was a happy household and he thought everything was okay.  He would not accept that, essentially, they lived as a family but said he only stayed with C occasionally.  He said:
“I was ignorant of what was going on a lot of the time.  I was not there.  When I realised how bad things were, I did step up to the mark.  I was shocked when [S] pointed out how bad it was.  I was kept in the dark with a lot of things.”  
He also said:
“If I’m not there, how can I ensure something?  I should have been a lot more enquiring, until I realised something was going wrong and then I worked with everyone.”
34.	E knew in 2006 that C was unable to provide good enough care on her own.  The evidence was there before him of the mother’s drug problems.  He expressed himself concerned about mother’s substance misuse and mother’s ability to meet her own health needs within the meeting in September 2006 when speaking to the social worker.  In 2008, it is recorded that, on 10th July, after a warning of a possible police protection order, father is very supportive of mother and pledges to help her and ensure her wellbeing.  Father, it is recorded, “Said he felt guilty and says he should have been there.” On 17th September 2009, it is recorded that the health visitor and social worker made a joint visit and gave clear advice to both mother and father, advising father that he is also responsible for the children, and both parents signed an agreement.  
35.	The later events to which I have referred and will refer echo what had occurred in the past.  The father’s reactions and response in the past were similar to his reactions and response which he provided in the oral evidence to the court.  The concerns and neglect of the children, however, continued.
36.	It was reinforced to the father on 10th November 2009 at a care team meeting that he needed to accept responsibility and be aware at that stage that mother is at risk of overdosing.  Yet, within six weeks of that meeting, there had been three police referrals about A, largely due to the lack of supervision by the mother.  
37.	It is recognised that there was an improvement in the care offered to the children towards the end of 2012 and the early part of 2013.  That improvement post-dated the social worker’s indication that the Local Authority may consider presenting a plan to prevent the baby being brought home after birth and following a long discussion with the father mid-December about him assuming the role of primary carer.
38.	One of C’s major problems which impacted upon the care of the children was her longstanding and enduring drug misuse.  T, a worker at Organisation A gave evidence that she knew mother very well.  She had been involved with mother for five years, during which time mother’s engagement was poor.  She often did not attend.  It seems there was confusion and miscommunication during the early part of January 2013 about whether it was appropriate to reduce the methadone prescription.  Such confusion and miscommunication is regrettable and did have an effect on C, U, the consultant at Hospital B, taking the view that the most important thing with a pregnant woman was to keep her stable; Organisation A had thought she should reduce her prescription during pregnancy.  
39.	It is clear that, in early January, mother felt most unwell and sought help.  Mother and father attended to see V, the midwife specialising in drug problem pregnancies, on 16th January and asked for help.  C felt very, very unwell.  She was admitted to hospital on 21st January.  On 16th January, mother had admitted to using amphetamine, temazepam, diazepam and cannabis.  The methadone was still being reduced but, on 16th January 2013, a new prescription increasing the methadone was provided.  C was advised about the risks of using illicit substances while pregnant and the effect upon the unborn baby.  Mother was admitted on 21st January and it is recorded that she told U, upon admission, that she had taken “loads of benzos” on Thursday.  That is 17th January.  Mother admits that she remembers saying she took some benzos but she says that she did not say “loads”.  Thus, it seems, the very day after she was warned about taking illlicit substances and its effect upon the baby, she took, whether it was loads or some, illicit drugs which she knew were potentially harmful to her child.  She accepted that she had been given clear advice and that she had ignored it.  She described it in evidence before me as a “minor setback”.
40.	I am satisfied that mother continues to have a limited understanding of the effects of her drug misuse upon her children.  Unfortunately, it seems from T’s oral evidence that mother’s engagement with her continues to be at times poor and inconsistent.  C has not been truthful about her drug misuse over the years and she told the police on 31st March 2013, when interviewed, and 3rd April 2013, that she had not taken drugs during pregnancy.  This assertion is patently untrue.
41.	Father could not be anything other than well aware of mother’s difficulties with drugs over the years and the effect it had upon her functioning and yet it seems he largely left matters to mother in respect of the children until late 2012.  He was closely involved with mother’s admission to hospital at the beginning of 2013.  
42.	It is not alleged that C has had any history of violence towards her children.  There is no history of aggression by her to them.  As submitted by Ms H and Ms J, the risks which concerned the social workers about the mother were about negligence and the impact of her taking drugs but never that she would assault K.
43.	I have heard evidence in relation to the agreement reached after K’s birth on 9th March 2013.  K was suffering withdrawal and was prescribed oramorph, which the mother was required to administer.  It was expected that K would be unsettled but, in fact, there were no particular difficulties recorded with the withdrawal.  However, K suffered very considerably, it seems, from wind.  
44.	A written agreement dated 25th February 2013 had been drawn up by the Local Authority.  The expectations upon the parents are set out in a document found at C200b:
“Parents to ensure that [A] and [B] attend school punctually every day.
Parents to ensure that [B’s] squint is reviewed at [Hospital C] with it likely that her care will transfer to a local optician.
[C] to fully engage with midwifery services, to attend all antenatal appointments and work with [Organisation A] when they resume her care.
Parents to allow a social worker to visit the home regularly and complete further assessments with both announced and unannounced home visits.
[C] to engage with [Organisation A], to attend all appointments and complete urine samples as required.
[E] to take full responsibility for the care of the children.  It is expected that [C] will not be on her own with either of the children until it is agreed by the Local Authority for [C] to have some care of the children.  
[C] has recently been into hospital for a detox and while she states she is remaining abstinent, the Local Authority require information from urine analysis to confirm this. [V] will provide this information to the Local Authority.  She is expecting to be taking weekly urine analysis.
[E] will have a discussion with his mother to ask for her assistance in being with [C] while he is out of the family home.
Both parents to attend all meetings.
Both parents to inform the social worker of any difficulties being experienced in order for the social worker to provide support.
[E] and [C] to inform the social worker of any changes in circumstances.
[E] and [C] to work with family recovery programme that will be in place to monitor the family and provide support following the birth of the baby.  It will be anticipated that this will include morning visits to enable assessment of the early morning routine and late evening to assess the night-time routine.
Will sign the written agreement.”
45.	The Local Authority, of course, had their duties also.  This document of expectation made clear the approach  the Local Authority were taking to the family in the event that the baby was to go home with the parents.
46.	E in evidence said he did not recall signing a written agreement.  He said there were five separate ones.  However, he accepted that there was an agreement of which he was in breach.  He said he breached it three times.  He said the Local Authority were aware he did the school run every day and that he attended at the meetings with Social Services and, therefore, they were aware C had been left at home with K.  E did not accept that leaving C on her own when he attended a meeting or did the school run was very different to leaving her at home overnight with three children to care for, including a baby.  He did not accept that night-time could be challenging.  He said everyone would be asleep.  He accepted that nobody knew he was working at night but he said it was not like a night shift.  Further, he said S had relaxed the agreement.  When asked when that occurred, he said:
“She was at the house and saying how well things were going and I asked her if I could go to work now and she said, ‘Aye’.”
E said that he left C in the house by herself to go to meetings and that he did not think going to work was any different.
47.	S, in evidence, stated that the agreement set out in the bundle at C200a was a working agreement and no further agreement was provided up until K’s birth.  She said there was no revision of the expectations.  She told me:
“I wasn’t aware [E] was at work.  If I was aware he was working night shift, under the contract of expectation, he would have asked his mum and I would have done some assessment work.”
S said at the meeting on 28th March that the professionals were aware upon that occasion that C was looking after the children during the course of that meeting.  S said that she was satisfied at that meeting that E was not concerned around mother’s presentation on that day.  S said what was discussed was that C was not to be left on her own with the children but that she was aware that E was coming to meetings leaving C and, on those occasions, she would be at home with the children.  S did not accept that she agreed that E could go to work as often as he wanted as long as the children got to school, which was E’s contention in evidence.
48.	It is clear that the perceived risk to the children in being cared for by the mother was a risk of neglecting their needs.  However, I am satisfied that father was aware that the expectation upon him was that he was there to supervise the mother’s care of the children.  Short absences, such as time taken out for meetings or taking the children to school, I find were very different to leaving mother for significant periods of time when he was working and that he was aware of this and that it was certainly not envisaged that C would be left alone with the children overnight.  Even if E was of the view, which I doubt, that it was accepted he could work, he must have been aware because of C’s difficulties, of which he knew, and the concerns expressed by Social Services about her abilities to care for the children, that Social Services would not have contemplated an arrangement whereby C was left overnight caring for K, A and B.
49.	It is suggested on behalf of the father in submission and I quote from paragraph 8:
“It was plainly the case that all involved were working on the basis that mother would be the hands-on primary care giver to the newborn baby with father being more active in the care of the older children.  The suggestion that [E] had to supervise the mother’s care of her baby is not supported by the evidence and in oral evidence [S] was far from clear that emphatic guidance had been given to the father and was plainly not prepared to state with certainty that the conversation father says he had with her about going to work did not occur.  It is submitted that the Local Authority cannot reasonably sustain its position given their own evidence.”
S in evidence said that she did not recall saying father could go to work.  It has been suggested that the court should be aware that because of the tragic circumstances, a serious case review was required which may have had some influence on what S recollected as she was the social worker allocated to the case when K died.  I reject that interpretation and I am satisfied and find that whatever latitude there may have been in relation to how father carried out the role of supervising, it did not include the possibility of leaving mother on her own with the care of all three children overnight and I am also satisfied that father knew that in staying out overnight, he had been in breach of what was expected of him.  It seems that father was working quite extensively and I am satisfied that the Local Authority did not know because he had not informed them of just how many hours he spent outside the home and away from the family.  It was incumbent upon him, in accordance with the agreement, to inform the Local Authority of any change in circumstances and any difficulties.  Thus I find this was a significant deceit which did fundamentally undermine the safeguarding plan.  Sadly, therefore, the tragedy occurred which would not have occurred had E been, as was expected of him by the Local Authority, present overnight in the house.
50.	In the days before K’s death, the health visitor W reported that she did have some difficulties making contact with the family, both antenatally and following K’s birth but that things appeared to be going nicely.  It seems K had not regained her birth weight and there was some difficulty getting her wind up but the health visitor was clear that she had no undue concerns about C and her care of K.  The health visitor was also very clear that she had advised C about the dangers of co-sleeping.  Although in evidence C initially denied that she was told about dangers in co-sleeping, she then accepted that she had been told not to co-sleep and that she knew the risks of so doing.  She maintained that she had not been given the leaflet about it.  I find that C had been told and was well aware of the risks co-sleeping presented and either ignored such risks or, in the circumstances, took the view that such risks were by then irrelevant.
51.	There were appointments missed, which mother accepted, and there was a relapse into drug misuse.  Mother took temazepam after K was born, she told the police to help her sleep.  Also, in her police interview, mother said she took amphetamine which someone brought to the house.  In her statement, mother says that she went to her friend’s house on the Tuesday before K died.  In her statement at page 232 in the bundle, paragraph 17, mother sets out:
“On the Tuesday before K died, I took her round to show her to one of my friends.  My friends offered me some amphetamine, which I took.  Amphetamine did not usually have much effect on me, other than giving me more energy, and I never suffered any come down effect.  I now realise this was irresponsible behaviour when I had K in my care.”
Thus it seems there were at least two occasions in the two weeks two days that K was at home that mother took amphetamine.  She also took temazepam and was continuing to take prescribed methadone.  
52.	In her Children Act statement, at paragraph 18, she sets out:
“On Thursday - I think it was Thursday - before K died, I had an argument with E about his son [X].  [X] had stayed over at our house on Wednesday night as he often did.  [X] is a difficult teenager who treats the home like a hotel.  [X] never clears up after himself and would help himself to anything out of the cupboards or fridge.  I was really cross that [X] had simply left all of his dirty dishes in the sink for me to wash up.  I was obviously tired because I was the mother of a young baby and I was waking up during the night to ensure she had regular feeds.  I told [E] that he should take [X] back to his home.  It can be seen from the police photographs that I like my kitchen to be kept clean and tidy, particularly because this was where I was preparing K’s bottles and medication.  [E] was annoyed with me for telling him to take [X] home and he always accuses me of not liking [X].  I think [E] lets [X] get away with things because he feels guilty that he has not always been there for [X].”
It is apparent from this paragraph that there was an argument, that mother understandably was angry that, as a mother of a new baby who had all the duties and responsibilities involved in looking after a new baby and getting up at night to feed the baby, she was tired and resented, understandably, X, who she said was treating the house like a hotel.  In oral evidence, mother accepted there had been an argument but said she did not tell the police about it because it did not really seem important.  It was about dirty dishes.  She said it was a disagreement.  She was not that annoyed over a few dishes.
53.	The evidence Y gave both to the police and to the court is relevant:
“On Thursday, 28th March, [E] worked a night shift.  After work, we went to his house.  We both went in the house and I stayed at his home on my own whilst he and [C] did the school run and sorted out their daily routine.  Both [C] and [E] returned with [K] at around 9.30am to 10am.  [E] and I had a sleep in the living room until lunchtime.  I remember [E] and [C] began arguing about [E’s] grown-up son from a previous relationship [X].  I cannot remember exactly what the argument entailed.  I seem to remember it being something about how [E] got in trouble if he ever tells [A] off.  [A] is [C’s] son from a previous relationship and she gives [E] a hard time if he ever tells [A] off.  I got the impression that this had an impact on the argument when [C] was complaining about [X].  As a result of this argument, [E] told me that he and I were to go to the unit and prepare for the evening.”
It is clear that the argument was sufficient for Y to note it.  He went on to say within that statement:
“Usually, we would go back to [E’s] but he said we were to go back to the unit as he did not want to go home as a result of the argument.”
54.	In oral evidence before me, Y described it as, “Not raised voices and yelling, just say tit for tat” and he could hear bits of squabbling going on.  He said he could tell from E’s expression that something was up.  He stated that E did not say he had stayed out because of a row but had said something about clearing the air.  
55.	It seems likely that there had been a row which was significant for both E and C.  C accepted in evidence that it was significant for both of them and yet she did not tell the police about it.  E did not phone to say he was not coming home.  Apparently, he usually did if he was staying out.  C, in answer to a question, “Why this very night [E] did not tell you he was not going to come home” told the court it was because of the disagreement.
56.	C accepted that K had difficulties with wind and that the remedies they had tried, such as Infacol and Dentinox, were not working.  It was put to her that it was a problem which upset and frustrated her.  She replied, “More upset”.  Mr L put to C that she was cross, referring to E and the argument and his failure to come home, to which mother responded, “Yes,” that she was exhausted, referring to the demands of a tiny baby and one with wind, to which she answered “Yes”, but when Mr L put it to her that she lost it, she responded, “Certainly not.  I love my children, all three of them.”
57.	C gave an account in oral evidence of what occurred during the hours before K’s death.  She also, of course, gave an account to the police.  The medical records reveal the account mother gave to the doctors when K was taken to the hospital.  C in court gave an account of what occurred and I read from my notes:
“Q.  You woke up at 5am?
A.  Yes.
Q.  Took the time from the television?
A.  Yes.
Q.  Changed the nappy?
A.  Yes.
Q.  There was a dirty nappy and you remembered the oramorph?
A.  Yes, I fed her.  I made up the feed.  I gave her the oramorph first.  I was bottle feeding her.  I would measure the oramorph into the syringe and put the oramorph in the teat of the bottle and let K suck it.  K was in her Moses basket.  I changed her bum and put her back in the Moses basket when I put the kettle on to make the bottle.  I came back in and gave her the oramorph.  If was in a little plastic box.  It took no longer than five minutes.  I put her back in the Moses basket and then made the bottle up.  I put the cold tap on to cool the bottle.  Then I fed her.  I winded her.  I was talking to her for about half an hour after I’d done other things.  I think I fell asleep with her after that.  No longer than half an hour was spent.  I talked to her for half an hour.  It was getting on to 6am. 
I remember A coming down and saying K didn’t look right.  When I looked at her, she didn’t look right, so I rang the ambulance.  They told me how to give her CPR.  I knew deep down it was too late but I was still trying.”
58.	Mrs Z in her submissions on behalf of the guardian sets out and I quote:
“Astonishingly, the mother’s account of events leading up to [K’s] death is of an uneventful evening during which [K] presented normally and gave no cause for concern.  The mother had always been consistent in her account that she had fallen asleep with [K] lying in the crook of her left arm, closest to the back of the sofa, both mother and baby covered with a duvet which did not obstruct the baby’s breathing, exactly the same position as when woken by [A].  
This simply cannot be given the post-mortem findings of the full thickness skull fracture 40mm in length and the expert evidence of the force required and mechanism for such an injury to occur.  [K’s] death occurred before the body’s healing process had time to react.  There was no fibrin formation in the bone.  The underlying bruise had not had time to develop and be visible to the eye and there was no injury to the brain.  [M] considered that it was plausible that the head injury had been sustained within minutes of death and probably less than two hours.  [O] indicated that the presence of hypostasis at 9.12am suggested death had occurred at least an hour or two before, therefore between 7 and 8am.”
59.	I accept this submission sets out an overview of the evidence before the court.  I have heard evidence from C and note that her description is detailed and her recollection before she says she fell asleep with K in her arms is very clear.  Thereafter, she says it is blurry.  I do not underestimate the effect the realisation that K was not alive must have had upon the mother.  Thankfully, none of us know what C went through upon the realisation of the death of her daughter and any consideration of mother’s recollection or lack of it of what occurred between 6am and 9am must, indeed, be set against that background.  
60.	C has always maintained that she has not knowingly caused any harm to K.  Ms H reminds me of the importance of the so-called Lucas direction and I have very much in mind the words of Baker J in Devon County Council v EB & Ors (Minors) [2013] EWHC 968 (Fam) which Ms H sets out within the submissions:
“It is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing.  The court must be careful to bear in mind that a witness may lie for various reasons, such as shame, misplaced loyalty, panic, fear, distress and the fact that the witness has lied about some matters does not mean that he or she has lied about everything.”
61.	Indeed, I also take into account the evidence of the guardian which Ms H has set out, “ mother presents as an emotionally vulnerable adult who has not sought bereavement counselling to assist her both with the loss of her parents, which both she and E identified as remaining a painful and current issue for her.  In my view, her unresolved feelings of loss have been heightened and compounded by her recent sad loss of K under such tragic circumstances.”
62.	  Both parents are likely to be suffering additional stress due to the very nature of these proceedings and the outcome of any findings made in relation to K.  I also, of course, bear in mind that it is said that mother has a poor memory. 
63.	 However, even considering all these matters, it is difficult to reconcile mother’s ability to give a very detailed account up until 6am and then for her to be able to recall nothing at all until A woke her at 9am, at which time K was already dead.  Upon mother’s account of things, there was nothing at all wrong or untoward as far as her daughter was concerned before 6am when they both went to sleep.  However, at 9am, K was dead with a 40mm full thickness fracture to her head.  Mother, in fact, in evidence, when it was asked of her by Mr L if she still thought that she, mother, had had a fit, said, “Yes, it is the only explanation.”  
64.	I have heard a number of doctors who are eminent in their own fields and I must consider their evidence, as Ryder J, as he then was, set out in A County Council v A Mother and Others [2005] EWCH (Fam) 31:  
“A factual decision must be based on all available materials i.e. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be.”
65.	In a case of this nature before me, the judge is uniquely able to, quoting from Re U, survey the whole landscape.  Charles J, as Ms H refers to in A County Council v KD observed:
“It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on other evidence.  The judge must always remember that she or he is the person who makes the final decision.”
66.	I recognise, of course, that is for me to decide on the facts and medical opinion as presented in the evidence and to recognise also, as Hedley J put it and quoted by Ms H:
“In my judgment a conclusion of unknown aetiology in respect of an infant represents neither a provision of professional nor forensic failure.  It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism.  Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.” 
67.	The thrust of the mother’s case is set out in the conclusions in the written submissions of Ms H and Ms J presented to the court.
“The cause of death in this case remains unknown.  That conclusion does not represent a failure of the forensic process.  Rather more, it is the forensic process at its most rigorous and fair.  Here, the cause of death may be asphyxia caused by the mother overlaying on a sofa stacked at a hazardous angle.  It may be death for the reasons which cause sudden infant death syndrome deaths.  The evidence does not enable the court to make any clear findings, certainly not that death was an immediate or almost instantaneous result of head injury.
The cause of the fracture also remains unknown.  It is inherently unlikely that this mother, who, whatever her faults, loved her baby and was gentle with her would inflict serious injury on her beloved baby.  The extraordinary angle of the sofa and the associated pressure caused by gravity, make a crush injury the likely cause.  Such a crush injury may well have happened while mother was in a deep sleep, unable to know what position she moved in and out whilst asleep.”
68.	The court spent considerable time investigating the two speculative explanations which mother put forward.  I remind myself it is not for the mother to prove one or other of them was the cause of the skull fracture or the death but mother advances them as a possible explanation and, thus, they were and should be subject to examination.
69.	In relation to the mother having a seizure, Mr L refers to the what he calls “red herring nature” of the seizure explanation.  He sets out:
(a) it is not mentioned by mother as a possible explanation during her police interviews on 31st March or 3rd April 2013, even though during the latter interview mother was telling the police about her very recent fit and confirmed that she does not suffer from epilepsy; 
(b) it was first raised by father rather than mother on 19th April 2013; 
(c) it is not mentioned by mother to the police as a possible explanation until 21st August 2013 and only then at the prompting of mother’s solicitor; 
(d) AA, who has known mother for many years and has particular expertise in treating drug addicts, had not considered seizures to be a significant problem for mother and had pointed to a gap of at least seven years during which no seizures had been reported; 
(e) T, who has a similar close and longstanding involvement with mother, confirmed in evidence that mother had never spoken to her about the fits.
70.	I accept all those matters as being relevant in consideration of the explanation that the injury could have been caused by mother taking a fit.  Perhaps, however, it is BB’s evidence, the consultant neurosurgeon, which is most relevant and convincing.  His opinion is that C does not suffer from epilepsy but it seems that she does suffer some sort of seizures which are psychologically or likely to be psychologically determined.  They appear to occur at times of stress.  He was clear:
“(1) if she had a seizure, she would be awake when it started;
(2) she would be aware that she had had a seizure;
(3) he said, “I think people all always know that they had a seizure afterwards”;
(4) “I cannot exclude the remote possibility she had a seizure but there is no evidence she did and I think it is most unlikely she did.”
71.	Ms H submits at paragraph 77 of her submissions:
“It is also important to take into account the fact that her seizures are followed by drowsiness.  She could have woken, had a seizure of which she recalls nothing, to be followed by drowsiness and a return to sleep.”
72.	Taking BB’s evidence as a whole, I find that it is unlikely that C had a fit but, if she did, it is more likely that any seizure would occur when she was awake and that she would be aware of it even if it was followed by drowsiness and then a return to sleep.  She would know if she had had a seizure.  The possibility that she had a seizure and somehow, in flailing around, caused K’s skull fracture and that mother was unaware of what had happened is not supported by the evidence which I have heard and, upon the balance of probability, does not explain the skull fracture.
73.	Another possibility put forward by C is that the head injury was caused by crushing or overlaying.  The experts at their meeting on 25th November 2013 agreed that the fracture is probably the end result of trauma, whether accidental or non-accidental, and that while a crushing mechanism could not be completely excluded, it was extremely unlikely.  The much more likely mechanism was a rapid blow with a hard object.  The views of the doctors at the experts’ meeting bear consideration and are set out at E13 1 within the bundle.  The transcript sets out:
“The next question is: to what extent do the experts favour crushing as a possible or probable mechanism for the fracture?”
O responds:
“It is the same answer, really, that statistically this injury is usually the end result of a baby’s head being bashed against something but if you accept the mother’s or the court accepts the mother’s version of events, that was, well, they went asleep to the sofa and you ask the question, ‘could This injury be the result of crushing?’ then I think the answer has to be, ‘Yes’.
N: Again, I agree with [O].  I think particularly in this case in the context of being on a sofa, particularly the way the sofa was edged up at front, creates a particularly hazard sleeping environment and I think with regard to section (d) of the question... I think this needs to be considered also as a possible cause of injury or the fracture.
M:  Yes, I think we’ve got three possibilities here, (d(1), (2) and (e).  Whilst, you know, I’m sure [O] is right, I think everything points rather more towards a very rapid blow against or with a hard object, rather than a sort of slow crushing type of injury leading to this fracture and the lack of any underlying brain problem.  So, yes, it’s a possibility but, like [O], I think it’s... in terms of probability, it’s much less probable than either (1) or (2)... sorry, (d)(1) and (2).
O:  Essentially, my position... I mean the other thing that I don’t like for it being pressure is the amount of bruising that was present, so I think, you know, that in addition... that in addition points to it being a blow or an impact of some sort but I couldn’t exclude the possibility that it is crushing.
P:  I think there are three things here, isn’t it?  There’s the bruise, the fracture and the underlying brain and I think, putting all of those three things together, it seems to me much more likely to be a blow either of the head against something or something against the head but I agree with [O]: you cannot completely exclude this due to crushing.”
74.	M said:
“And, as we said earlier regarding the pliability of an infant of this age, still I think that would tend to favour [and he is referring to the impact injury].”
P comes back and says:
“I agree with the comment just made.  There’s a tilt in favour of impact rather than crush.”
75.	It is clear that the doctors together considered very carefully the possibilities and weighed up the various facts of which they were aware and came to a conclusion that the cause of the injury is more likely to be a blow to the head.  The oral evidence of each expert confirmed the position that while crushing was not impossible, it was much less probable than a blow.  O reiterated his view that crushing was less likely because of the degree of bruising and, in his oral evidence, P stated:
“The absence of brain injury did lead to consideration of the significant possibility of crush injury, yes, on the information made available to me, child sleeping with the mother, and in that context it needed some serious consideration whether that mechanism could cause an injury like that.”
76.	N said he was not aware of any case where there was overlaying and a skull fracture in his experience.  O’s only experience of a skull fracture being caused by overlay or crushing was an account of a mother falling downstairs and landing on top of her child.  The pliability of a young infant’s skull militates against crushing causing the fracture and, as P stated at the experts’ meeting and as referred to by O, if you are lying on your left-hand side, the right side is closer to you than the left.  There was nothing at all on the right side but her head.  He said it was within the realms of common sense.
77.	The experts, as is their duty, considered matters extremely carefully.  If the mother’s consistent account of the baby’s position in her arms is correct, then the skull fracture is on the wrong side for the crushing to have caused the skull fracture.  Further, mother in her police interview, as she accepted in evidence, was at pains to point out that there had been little risk of overlaying.  The sofa was leather.  There was a duvet between it and the mother.  K was lying on mother’s left arm.  She was able to breathe.  A’s description of mother and K does not suggest overlaying or, indeed, asphyxia.  
78.	The issue of the angle of the sofa was considered and Ms H refers in her submission to the exceptional nature of the sofa.  I accept that for some unidentified reason the sofa was at an angle of 18 to 20 degrees.  Ms H submits it has to be factored into a real appraisal of this case.  N said it was the first time he had come across a scenario where the baby was sleeping on an angled surface.  He said co-sleeping on a sofa was recognised as a hazard and with a slope, by common sense, it made it more hazardous.
79.	Having full regard to all the evidence, including the angle of the sofa, the angle of the sofa does not alter my view that overlaying or asphyxia is improbable as a cause of the fracture.
80.	Mr L points to the fact that mother was obviously struggling, in that she had care of three children, including a newborn baby.  I do not doubt that K was a much loved baby and welcomed by the mother.  However, she was demanding, as all new babies are.  She needed treatment for withdrawal symptoms, although it seems that that was not a particular concern, but she did have severe wind.  Mother, on her own account, was clearly upset by it and described it as “horrible to watch”.  Father had left mother to cope on her own, not just on this occasion but on other occasions when he went to work.  Revealingly, mother had lapsed into drug misuse, amphetamine and temazepam.  She said she needed the latter to help her sleep.  However, she was, of course, also, as she set out in her statement, tired and complaining of lack of sleep.  There was dissension between mother and father the previous evening.  Y describes an argument, despite both mother and father playing down the importance of it.  Mother was left overnight without any communication from father as to what he was doing.  Apparently, he would usually phone and let mother know.  It is not a comfortable picture.  
81.	I do not speculate as to exactly what occurred.  I do not know exactly what occurred.  The mother does.  It is not, I repeat, for the mother to prove how it occurred.  Nor does the fact that I rely on overlaying as improbable mean that it was non-accidental.  However, taking all the evidence before me, I am satisfied that the most likely explanation for the skull fracture was the infliction of a rapid and forceful blow against or with a hard object.  K was immobile and just 3 weeks old.  There is, I find, no other plausible explanation for the skull fracture and there is no suggestion of anyone else being involved or any other intervening events.  C must know what occurred, even if she is unable or unwilling to face the reality of it.  I find that the injury was non-accidental injury and it was caused by C.
82.	The medical experts agreed at the meeting on 25th November 2013 that the skull fracture and the overlying bruise were probably the result of the same trauma.  As O said, it is just common sense, in that the fracture was smack in the middle of the bruise.  The medical evidence in relation to when the head injury was sustained placed the likely timeframe as within six hours of death and probably much closer.  This was agreed at the experts’ meeting when the experts agreed, when it was put to them, that the fracture was probably sustained within minutes or less than six hours before death.  M stated at that meeting:
“The amount of bleeding that I saw makes me think, and the absence of any fibrin at all makes me think, that this was much closer to... the interval between fracture and death was much less than six hours but it’s just that, you know, it would be very easy for someone to come along and say, ‘Well, can you be certain of that?  Can you give me a much more accurate timing?’ and the answer is not it’s within six hours but, in all probability, much closer to the time of death than six hours.”
83.	In oral evidence, M stated that, in relation to the time of death, based upon the absence of the formation of fibrin, that you usually see fibrin in two hours and that it must have formed within twelve hours, it is probably less than two hours and almost certainly less than six hours.  He agreed that it was perfectly plausible that the event happened within minutes of death.  He said such scenario was entirely plausible.  M agreed that he did not know what effect the oramorph which K was taking would have upon the production of fibrin.
84.	While I accept there are features in the pathology which are consistent with asphyxia and with whatever causes sudden infant death syndrome, neither on the evidence before me are likely.  N in oral evidence said it would never be possible to classify the death as a SIDS death because of the skull fracture, although mother did have some of the risk factors for sudden infant death syndrome, in that she took drugs, but he said sudden infant death syndrome is a diagnosis of exclusion.
85.	I also take note of what CC said at E163, paragraph 50, in relation to drug users:
“The mothers in the two groups differed in other ways.  Those using methadone tend to present late for antenatal care, arrive for delivery unbooked and are more likely to smoke during pregnancy and their infants present with poor foetal growth.  The fact that maternal methadone use is associated with a higher infant mortality does not, therefore, mean that methadone causes sudden infant death syndrome.”
86.	Further, I find it is inherently improbable that having sustained a non-accidental fracture to her skull, within two hours or less K suffered an entirely unrelated death from SIDS.  
87.	In his report at E110b, O sets out:
“Thus, a full and detailed post-mortem examination, including histology, toxicology and three specialist options has failed to provide a definite explanation for [K’s] death.  Specifically, there was no evidence that she died as a result of poisoning, with the toxicology being essentially negative; no natural disease was identified that might have caused or contributed to the death by way of, for example, congenital disease or infection; and the only injury present, a large bruise under the scalp with a related skull fracture, was not accompanied by any significant damage to the brain and, therefore, does not provide a definite explanation for death.  [P’s] report should be consulted for the detail but whilst head injury could explain death, the usual types of abnormality seen to the brain and surrounding membranes in fatal head injuries in children were not present.  It is well recognised that infants of [K’s] age can simply be found dead in the morning and that a full and detailed post-mortem examination may not provide an explanation for death.  In these circumstances, the label ‘sudden infant death syndrome’ is applied.  While such a mechanism of death could explain [K’s] death, by convention the label ‘sudden infant death syndrome’ is not applied when features such as significant injury are evident.”
He concludes, therefore, that as far as he, the pathologist is concerned, the cause of K’s death remains unascertained.
88.	The oral evidence of M and O confirmed the medical view that the closer in time the infliction of the skull fracture to the death, then the more likely the death was caused by the skull fracture.  The medical experts are unable to say with absolute certainty, other than that it was within six hours of the skull fracture occurring.  All thought probably less than two hours and M said that it was entirely plausible that the event happened within minutes of death.  O was also of the view that it was plausible the fracture occurred within minutes of death.  P said the head injury as a cause of death was entirely plausible if the death happened within minutes of the fracture.
89.	Mother said that at or about 6am, when she went to sleep, there was no injury to K’s skull.  At 9am, there was a fracture and K was dead.  However, no reliance can be placed on mother’s account of matters and there is no other evidence or witness as to what occurred during these hours.
90.	P discussed that there was no evidence of traumatic injury to the brain or spinal cord which could be explained if death occurred very quickly and there was insufficient time for the brain to swell.  If there was a period of survival, he said, one would expect the brain to swell significantly.  N accepted that the nearer in time the skull fracture to the time of death, the more likely it was that it was the cause of death.  He went on to say that is common sense but accepted it was beyond his expertise.
91.	The experts, in giving evidence, confined themselves to the medical findings and were cautious about attributing death to the skull fracture.  O remained of the view that the cause of death was unascertained from a medical point of view, as did N.  However, taking all the evidence which the court has and on the balance of probabilities, I find that it is likely that death occurred as a direct result of the injuries to the head.  DD, consultant paediatrician, in evidence said that babies usually cry out at the time their skull is fractured and that they may cry for a short time after this.  However, it is recognised that, after the initial break, this area does not appear to be particularly painful because the broken edges cannot move.  Bearing in mind, on mother’s account, the proximity of mother and K, it is unlikely that if K did cry out, the mother had not heard her.  
92.	It is not possible because of the lack of a credible account as to what happened from the mother to determine any further what actually occurred.  The scenario as recounted by the mother, however, I find is improbable.
93.	Ms H queries would this mother have gone to sleep with a dead or dying baby in her arms?  I accept that when seen by the ambulance man, mother appeared upset and genuinely distressed but I can do no more than repeat only C knows what actually did happen in the time leading up to K’s death.  I have made the findings which I have upon the evidence which is available to me and I find that evidence is sufficient to support the findings which I make.
94.	Findings are sought in relation to father’s drug misuse and his alleged non-cooperation with court approved enquiries into his drug taking and medical history.  The father has a documented history of drug misuse.  Father was convicted of drug offences in 2002 but insisted, in these proceedings, he had not used drugs for years.  C’s evidence would contradict this assertion.  She set out in her December statement at C227:
“For many years, [E] has used amphetamine.  When we were living together with the children, he would take the amphetamine every day.  [E] knew that drug testing would reveal his amphetamine use and this is why he shaved his hair, so that testing could not take place.  I assume that [E] is not using amphetamine now because he knows that he is going to have another drug test.”
95.	In oral evidence, C, as Mr L put it, backtracked and said it was a couple of years ago that father had used it every day.  Her oral evidence, actually, was contradictory of her written evidence but C would not accept that she was lying in either her statement or oral evidence.  I have already found C to be untruthful.  Therefore, her evidence cannot be relied upon in relation to this issue any more than any other issue.  However, she does now support the children residing with father, which was not the position when she signed her statement.
96.	Father’s account was that it was more than a year ago since he smoked cannabis and more than two years since he had amphetamine.  He says, although he was referred to the doctor for drug use, he did not go because it was not a problem.  E’s medical history reveals difficulties that he has had at times with stress, anxiety and depression as well as drug misuse.
97.	The court wished to have an up-to-date drug test.  Father shaved his body hair.  He said it was something he was in the habit of doing and vehemently denies that he did so to avoid the results of an up-to-date drug test being obtained.  C said in evidence sometimes he did shave his body hair.  Photographs were produced to the court to show previous occasions when he had shaved his body hair.  In her statement, C said:
“[E] knew drug testing would reveal his amphetamine use and this is why he shaved his hair, so testing could not take place.  I assume [E] is not using amphetamine now because he knows he is going to have another drug test.”
98.	I remind myself that C is unreliable and that other matters in that statement of 10th December are disputed.  Further, Miss F submits that having gone to such lengths to evade hair strand testing, it makes no sense to then provide a sample knowing amphetamine would be revealed.
99.	The expert evidence in this regard recognised the possibility that E could have either ingested amphetamine unknowingly at his work at the nightclub or through contamination at home.  There is no evidence of E being observed by any of the professionals at any time to be under the influence of drugs.
100.	I approach E’s evidence about the drug test with some caution and scepticism.  The hair strand test which was eventually obtained was positive for amphetamine.  In his statement on 4th December 2013, E stated:
“Right from the outset, I have made it clear to everybody involved in the case that I will provide a hair strand test, blood, urine, drugs samples, whatever.”
Yet he continued to shave his body hair even after the court direction was made on 5th July.  It is difficult to reach any conclusion other than he wished to avoid testing.  The expert evidence to which I have referred allows for the possibility of contamination but the explanations put forward by E of contamination by finishing off drinks in a nightclub would require, according to the expert, very regular contact with contaminated drinks and otherwise contamination would be by direct contact between hand and hair.  It is possible but I find unlikely.
101.	I accept E was very much against mother’s drug taking and father’s use of drugs is not and does not seem in the past to ever have developed into the sort of problem that mother has had.  It is father’s credibility and capacity for frankness which is largely the concern of the court around this matter.
102.	In the same statement, that is 10th December 2013, C raises for the first time that E was violent towards her and that she was scared when he shouted at her.  She sets out:
“I can remember two occasions during my relationship with [E] when he has been physically violent towards me.  On one occasion, when I was having a disagreement with [E], he kicked me in the face while wearing his steel-cap boots.  [A], who was little saw, this incident and was very distressed.  I sustained a black eye as a result of this.  There was another occasion when [E] slapped me across the face.  As a result of these incidents, I am quite scared of [E] when he shouts at me.  [E] has never raised his hands to [A] or [B] and he knows I would never allow that to happen.”
103.	In oral evidence, C reduced the allegation of physical violence to one occasion.  C said, in fact, she could not remember E slapping her across the face at all, despite the fact that she gave oral evidence only four weeks after the date of the statement.  She maintains, however, that the incident with the boot did happen when A was 3 or 4 and it was not an accident.  She maintains she was scared of E when he shouts.  E denies he has ever been physically violent to C and that the incident years ago when he was kicking off his work boot was an accident.  C maintained her account in oral evidence in respect of the boot incident but although it seems something did happen, I cannot determine that it was deliberate.  C’s evidence has been found to be unreliable in many regards.
104.	The relationship between C and E has been for many years volatile and inconsistent.  It has not been a violent relationship.  E, following upon K’s death, was, no doubt, distraught.  He indicated an intention to separate from mother on 19th April 2013, when he spoke to the social worker, and he confirmed it in his position statement for the hearing on 5th July 2013.  An email from his solicitors on 29th October 2013 confirmed his position.  However, at the start of the hearing, both C and E were still living in the same house.
105.	Mother’s position statement for 5th July 2013 said quite the opposite to father’s and the guardian was of the view on 2nd December 2013 that C had only just found out about father’s intention to separate.  Father told the court he had made it clear to the mother in October their future did not lie together.  There have been numerous occasions in the past when mother and father have separated, only to reconcile at a later date.  It seems that even after July, the sexual relationship continued, until, on E’s account, C renewed her contact with DD, someone whom she had known for some time.  C maintained that the relationship with DD was a friendship only.  Both parents agreed that the last time they had sexual intercourse was October.  E accepted that his behaviour could be interpreted as giving mixed messages to C.
106.	It is, in my view, difficult to assess just what happens when a longstanding relationship is brought to an end, particularly when both parties are dealing with the aftermath of a tragedy which they have both sustained.  It has been apparent to everyone involved with C just how vulnerable she is and E has known her all her life and been extremely close to her.  It perhaps needed the recognition that C was making serious allegations against him of deceit and violence to prompt him to take the steps to move out.  E went to see C on Christmas Day and they have spent some time together since.  In all the circumstances, I find it is unsurprising that E went to see C on Christmas Day and, in some ways, it demonstrates that he has a care for her.  Christmas Day must have been an extremely difficult time for both of them.  It seems the relationship is not ongoing presently but the permanence of the separation remains to be tested.
107.	I heard evidence from the contact supervisor in relation to contact.  Taken as a whole, contact was positive and both E and C have demonstrated, and I have no doubt of, their great love for their children.  They have both been committed to contact.  It does not seem to me necessary to pick over the detail of individual contacts.  It seems to be the case that the parents found contact more difficult when EE was the supervisor.  However, taking contact as a whole over a lengthy period of time with many contacts and set against a very difficult background, contact has been positive for both these children.  
108.	Both B and A want to go home to their family but that, of course, is not possible.  C has recognised that she cannot care for the children at this stage.  The guardian told the court this step by the mother was important in regard for the children.  It is submitted on behalf of the father that it would be disproportionate to make final care orders and, as I have mentioned, Miss F submits that the plans are fundamentally flawed.  Father seeks to have an assessment not only in relation to his ability to care for the children in the near future but, alternatively, if he was not caring for them, the progress of contact.  
109.	Although A and B’s wishes have not been ascertained against the background of the separation and mother’s inability to care for them, it is unlikely that determining their wishes set against the background of this case would make a significant difference to the outcome.  Although, of course, it does not follow that because he has made some errors in the past, long-term foster care rather than residing with father must be the outcome for A and B, the history cannot be ignored.  There is a considerable amount of evidence before the court.  The ability of the father to provide physical care is accepted and I have mentioned at various stages that the children’s circumstances improved when father was involved in their care.  It is his commitment to being a full-time father and his ability to prioritise the needs of the children which give rise to concern.  Father shares responsibility for the chronic neglect of A and B and although he has expressed regret about the past, I am not  satisfied he fully appreciates his role in it or recognises his shortcomings in that regard.  In oral evidence, he was still very keen to emphasise that the neglect of the children had happened largely when he was not there.  
110.	An overview of all the evidence does not inspire confidence that E can make and sustain all the necessary changes which would be required of him to provide full-time care to these children.  These children have undergone inconsistency and unpredictability in their lives.  E had not been a consistent figure in their lives until shortly before the birth and death of K.  They have sustained the trauma of the death of their sister, the break-up of their family and their removal into foster care.  They are needy children, as summarised in the parenting assessment.  They need to have their future decided.
111.	If, having reviewed the evidence, there was a reasonable prospect that father could take over their care in the immediate future, it may have been worth undertaking an assessment to see what help and assistance he may have required but I am conscious that a move to their father which could not be sustained and broke down would be catastrophic for these children.  
112.	It is not possible to ignore the mother’s role in the children’s future.  She will continue to have contact to the children.  The reaction of the parents to the judgment is unknown, but I am satisfied C does have the capacity to undermine father’s care of the children.  She would find it difficult to accept the children were with father and she could only have supervised contact.  I base this view on the knowledge gained of mother through her evidence and through the written evidence before me, which is substantial.  It is not so long since the mother was saying she would prefer the children to be in foster care rather than being with father.  She said that she said this when she was upset and angry but it cannot be ruled out that she may well be upset and angry at times in the future.  In answer to a question from Mrs Z on behalf of the guardian, mother was asked whether her view now was that the children were better with E.  C’s answer was yes, until she sorted herself out.  C’s response to the following question, “If you sort yourself out?” was, “Hopefully, the children would be back home.”  I find this response on behalf of the mother to be revealing as to the way she would approach the children being with father.
113.	E seems to have an over optimistic view of his ability to manage not only the children but also C.  He told me, when asked if he thought C would accept the children living with him, “Yes, because, in care, she would get less contact.”  E’s view, I find, is perhaps over simplistic.  
114.	It is to his credit that father prefers to be in work and, in evidence, he talks about reducing his hours to 30 rather than 40 hours a week if he had the children.  Whether he would be able to work even at a reduced level and meet the children’s needs is, in my view, questionable.  It seems from father’s medical records and father’s responses in evidence that albeit some time ago, lack of money arising from not working caused the father stress and anxiety which necessitated attendance at the doctor’s.  
115.	The guardian submits there are many imponderables which militate against the father being able to care for the children at this stage.  I find that such imponderables would not be remedied by reason of an assessment.  It the passage of time and response of both the mother and father to the changed circumstances and to the judgment which will inform as to whether father can provide safety, security and consistency which A and B need.  This will take some time and consideration.
116.	The children need their future to be settled.  A in December was desperate to know what was to happen for the future.  The Local Authority and The guardian argue that there is a pressing need for final orders.  It is, of course, the welfare of both A and B which is my paramount concern.  I must look at the position for the future realistically.  Clearly, there are weighty arguments and benefits to a child being brought up by a parent and if such an outcome can meet the needs of the child, the court will look no further.  However, I am satisfied for the reasons set out within this judgment that there is too much that is uncertain in such an option for A and B and for the court to be confident that their needs would be met.  The delay which would be occasioned by further assessment is not justifiable.  I am, of course, conscious of the requirement set out in Re BS to look at all the options which are available and, in my view, having considered all the options, care by either of the parents cannot meet the needs of these children.
117.	As far as contact is concerned, for the father, I do find there is scope to look at contact once the children are settled following them learning about the judgment, the parental separation, possibly for A his true paternity, although that will have to be handled very carefully and, in my view, unless A himself raises it, caution should be exercised as to timing, bearing in mind the changes that A will have to cope with in the near future.  There will need to be careful monitoring and review of contact.  The progress to unsupervised contact for the father and consideration of overnight contact must be left to the discretion of the Local Authority.
118.	The mother accepts her contact must be supervised and, similarly, the level of contact for mother must be for the discretion of the Local Authority.  It very much depends upon the reactions of the children to what they are told in relation to this matter and, in this case, as in many others, it is impossible to predict just what effect the knowledge that they are not returning to the care of either of their parents will have upon the children.  It is, in my view, their reaction which needs to be carefully monitored and for the Local Authority to make appropriate contact arrangements thereupon.  The Local Authority have a statutory duty to consider contact.  There is a good relationship presently between the parents and FF, the social worker, and I deem it unnecessary and inappropriate for the court to remain involved to oversee the Local Authority’s handling of contact.  The updated contact plan of 16th January 2014 represents careful thought and envisages ongoing assessment, particularly in relation to the father.  I would hope that there can be a moving towards a level of contact which is in line with the children’s best interests and their wishes.
119.	Thus I make the care orders in relation to both children and approve the care plan, expressing the view that I hope that it is possible that A and B can remain in their present foster placement, where, it seems, A certainly was happy to remain, of course only if he could not go home.
[Judgment ends]