England and Wales County Court (Family)

IN THE NEWCASTLE-UPON-TYNE COUNTY COURT

		The Law Courts The Quayside Newcastle-upon-Tyne NE1 3LA
		21st October 2013

1. THE JUDGE: The court is concerned with the welfare of LG, who was born on [a date in] 2010, so he is now 3 years 8 months old, and his brother, HG, born on [a date in] 2012, now 13 months old. They are the sons of RG, who was born in 1992 and is, thus, 21. L's father is SL. Despite efforts via the usual channels, he cannot be found and has played no part in L's life. H's father is LLi. Like L's father, he has played no part in H's life. On being contacted by the Local Authority, he said that he did not want to be involved at all. For the record, neither of the fathers has parental responsibility.
2. Sunderland City Council commenced proceedings on 10^th December last year seeking care orders for both boys. The care plan at the final hearing is for the making of a care order and a placement order in respect of each. That plan, which is supported by the boys' guardian, Rachael McLennan, is opposed by their mother, who seeks a return to her care. In the alternative, she seeks a return of the boys to the care of her maternal grandparents, that is to say the boys' great-grandparents, TG and LiG, who not only played an important role in the mother's life as her primary carer from the age of 5, but continued to provide a home for the mother and both boys until a very short time before these proceedings were issued. They sought party status in their own right. On 8^th August, I declined their request as being unnecessary and disproportionate given the complete alliance of interest with the mother, but directed that they be given access to all the case papers and permitted them to be present throughout the hearing, which they duly have been. I do not consider, and nor has it been suggested, that they were disadvantaged in any way by adopting that course and they have had no difficulty in ensuring that their position has been fully canvassed, Mrs G in particular giving evidence before the court at some length.
3. Why does Sunderland City Council say that the children were suffering significant harm and that that harm was because the children were not receiving the care that would be reasonably expected from a parent? This is very much a case in two parts. There is, says the Local Authority, a long background of concern regarding the mother's parenting, which the Local Authority traces back to a time before L was born. I am not going to go into detail just yet for the reasons I will come to. However, as a consequence of those concerns, the Local Authority had put in place a child in need plan in order to assist the mother and to help ensure that the boys' needs were met. This is a point on which Mr Stonor, for the mother, places considerable reliance in addressing welfare issues and mother's overall capability and potential, as I will also come to.
4. However, the precipitating event was H's admission to hospital on 18^th November 2012 when he was just 79 days or 11 weeks old. There he was discovered to have suffered a head injury comprising a boggy swelling and a fracture to the left side of his skull with bleeding over the left cerebral hemisphere of his brain. Suffice it to say at this stage that none of the various differing accounts given to paramedics, hospital staff or social workers were accepted by the paediatricians and the radiologist as being mechanisms capable of causing such injury and, accordingly, the conclusion was that this had to be a presumptive non-accidental injury.
5. Integral to the second version, however, was the suggestion that the injury may have been caused by the mother's friend, EH, who had that day called round to the mother's home and in the course of playing with H is said to have dropped him. As a consequence, on 15^th February, when the matter first came to me for case management directions, I joined EH as an intervener. On 11^th March, she duly appeared at court, indicated her willingness to cooperate, said she would instruct a solicitor that very day and an agreement to furnish her with necessary papers, suitably redacted, was reached. Those encouraging signs of active participation faltered with a fairly consistent theme of funding difficulties, albeit interlaced with suggestions that EH had not provided her solicitor with the financial information that was required. In the event, at the eleventh hour, the court having issued a witness summons as a precaution to secure her attendance, EH did indeed appear, having instructed both solicitor and counsel, and she played a full part in that section of the case that affected her, withdrawing in respect of those parts that did not. It is for that reason that I have not referred to the specific nature of the Local Authority's other concerns at this stage as being of no relevance to EH, who, despite having been warned, has not attended today, but is represented by counsel. However, it is plainly not appropriate that either she, or those who represent her, should hear in detail those other concerns.
6. Despite the singular event of the head injury, this, it was agreed, was not one of those exceptional cases identified by the President's Guidance on split hearings given in May 2010 and, thus, although compartmentalised, it was in fact a composite hearing. Nevertheless, the head injury is a distinct and isolated incident and it is convenient to deal with it as such. It is self-evidently a very serious matter justifying child protection proceedings on its own and so the findings are critical to the consideration of welfare issues.
7. From the Local Authority point of view, the case is presented thus. At 23:40 hours on 17^th November, the mother rang the North East Ambulance Service and said that H had rolled off a rug onto a wooden floor. She said he had a bump on the back of his head, which had disappeared. When the paramedics arrived, she repeated this, saying that the incident had occurred at between 13:00 and 14:00 hours that day, that is to say about ten to eleven hours earlier. H was taken to hospital, together with his mother and with EH. At 02:45 hours, the early hours of the morning, a history was given to Dr Williams, a specialist registrar, of H being placed on a duvet on the floor and how he had rolled off it onto a laminate surface, it was said, between 14:00 and 15:00 hours the previous afternoon. The mother told the doctor that she noticed a swelling on the left side of his head and that settled before returning and getting bigger. Dr Williams doubted developmentally whether H could roll at all and in answer to a direct question from him as to whether anything else had happened or whether there had been a time when the mother had not been supervising H, the answer was in the negative.
8. Much later that day at 14:40 hours, therefore, plus or minus 24 hours after the reported event, the mother returned to the hospital with EH and saw Dr Eastham, a paediatrician. During the course of interview, in which the mother was described by Dr Eastham as 'composed, no tears, no questions regarding how H is doing' and no distress on being told that H had in fact suffered a fracture to his skull and a bleed, simultaneously EH was saying that it was 'all my fault' and she was described as appropriately upset. The doctor noted that the mother did not ask to see H at any stage. A detailed account was given of EH calling round to the mother's house at about noon on the 17^th. The mother was upstairs with L. As EH lifted H out of his car seat, holding him longitudinally in front of her in her arms with his feet against her body and his head supported by her hands, she lost grip and he rolled and fell onto the laminate floor, landing on the left hand side of his head. It was said he screamed immediately, that his mother came downstairs after EH had picked him up and the mother concluded that H was fine. A demonstration was given by EH to Dr Eastham. The doctor had a tape measure and she recorded a drop of 30 centimetres, albeit noticed that the distance that was being demonstrated kept being adjusted. Dr Eastham did not give oral evidence because nobody had requested her so to do. For reasons I will come to, however, she was contacted in the course of the hearing about this very issue and confirmed that 30 centimetres was indeed the level that EH had confirmed was the height from which H had fallen. When questioned as to why this version had not been given before, both said that they were too frightened to admit that H had been dropped.
9. The next event occurred on 19^th November when the social worker visited the mother at home. Having refuted what seems to have been a red herring (and that was that Mrs G reported that she had heard that H had been dropped from a barstool), the mother gave a further account. She said that EH had arrived at her home at about eleven o'clock that morning in a highly distressed state, covered in mud and with scratches to her arms and legs and she was talking incoherently about something happening on a hill. She said that she, the boys and her boyfriend were upstairs when EH arrived, she had gone downstairs to comfort her friend, who then collected H from upstairs, took him down, calling a few minutes later to say that she had dropped him whilst kneeling on the floor with H in her arms.
10. The contemporaneous views of the doctors treating H could not support any of those mechanisms. Radiological investigation showed that the fracture to the left parietal region was at a site of thin bone. On its own it could have been an unfortunate event, but the presence of an acute subdural haemorrhage, a surface bleed, remote from the fracture site pointed to a higher level of impact than the drop account, at least, would explain. A second view was sought from Dr Sprigg, the consultant neuro-radiologist based in Sheffield who acts as a tertiary referral for the northern region and he confirmed that view. He said:

'This is an isolated head injury with a skull fracture on the left side, which means a significant impact injury. There is a small volume of acute surface bleeding towards the midline on the left side remote from the fracture site. These features are all compatible with a significant deceleration injury related to impact.'

Then he continued:

'It would be unusual to sustain a skull fracture from a fall of just 30 centimetres, but laminate is a very hard surface. On the skull x-ray, the skull vault does appear thin over the site of the fracture and I wonder whether this is simply a very unfortunate accident resulting in fracture from a low-level fall onto a very hard surface. If this was just a fracture, I would tend to accept it was an unfortunate event, but the finding of a surface haemorrhage away from the fracture site raises suspicion that there was a higher level impact involved.'

11. Against that background, the thin skull and the possibility of an unfortunate accident, a further independent opinion was sought from Dr Likeman, another consultant paediatric neuro-radiologist. His opinion was substantially the same as that of Dr Sprigg. The working assumption from studies is that the minimum distance through which it is necessary to fall to cause a fracture to the skull is 90 centimetres, that is to say waist height, kitchen worktop height, that sort of distance. Although only a minority of such falls would cause a fracture, accounts of fractures from lower falls also exist, but are rare. Working on the basis of a fall from 30 centimetres, Mr Likeman concluded that it would be 'very unlikely that it would result' in fracture. Accepting the possibility, nevertheless, the presence of a remote subdural haemorrhage made it unlikely that it resulted from a low-level fall of 30 centimetres, 'it is more likely that the facture has resulted from an unrevealed accidental injury, such as a fall from a greater height, or from a non-accidental single impact injury.' He gave the window for the fracture as being up to seven days prior to the scan on 18^th November and in his view the presence of soft tissue swelling pointed to a single impact.
12. At short notice, Dr Likeman made himself available to give evidence from Bristol via video link, for which the court was extremely grateful. He was asked to consider a demonstration by EH of the motions that she said had resulted in the fall. She did that in accordance with a statement that she had filed on the first day of the hearing dated 9^th September by kneeling on the floor, holding H ahead of her, as I have described, and moving him from side to side as she said she sang to him. In the course of this, she said that H pressed against her stomach with his feet in such a way as to cause her to lose her grip and, in turn, H had rolled and fallen.
13. Having thus demonstrated this, Mr Oliver, her counsel, measured the presumed height of H's head, which was a height demonstrated in court of 70 centimetres. When he asked Dr Likeman about it, the doctor replied that if the drop was 70 centimetres or thereabouts it would change his opinion. He said that the height of 90 centimetres comes from evidence gathered in domestic falls. He made the point that no one goes around with a tape measure so it is not possible and inappropriate, indeed, to be dogmatic about 90 centimetres, the proposition being that the higher it is the more likely it is to occur. He said although there was anecdotal evidence of fractures from lower heights, there was no precision about this but he could not say that a fall from 70 centimetres could not cause the fracture. Therefore, whilst 70 centimetres would be sufficient to change his opinion, he said 30 centimetres was very low and would definitely not lead to an anticipation of a fracture. He added that remote subdural haemorrhages, that is to say remote from the fracture, are rare. He described them as being unusual but not impossible.
14. Cross-examined by Mr Brown on behalf of the Local Authority he went further, saying that a fall from 30 centimetres was 'quite impossible' to explain, but now that the height demonstrated was closer to 90 centimetres, it made it much harder to discriminate. Therefore, he did not think that he could exclude the fracture and the haemorrhage occurring in conjunction with each other at 70 centimetres. He said the scenario demonstrated makes the possibility of that being the explanation greater than it was when the height was 30 centimetres.
15. The Local Authority had little direct evidence to offer on this issue. In fact, the social worker who had taken the account of EH's upset, Rachel Glazebrook, was unwell and her parenting assessment was spoken to by her team manager. Her initial statement had expressed concern about the changes to the story regarding H's injury and had noted that both the mother and EH explained that that was caused by a fear of the consequences. The team manager, Alison Ruddick, did not know if the social worker had had access to a police report, which in contrast to Dr Eastham's description noted that the mother additionally was distressed when visited at home. Nor did she know if or when the social worker found out that the police view ultimately was that there had been an unfortunate accident, that being the apparent justification for no contemporaneous statements, not even an entry in a pocket notebook.
16. Against that background, I turn to the evidence of the mother and EH on this issue. The mother's written account on 6^th February 2013 repeats, in essence, that recorded by the social worker in November, including EH arriving upset due to an incident at [place identified]. She conceded that B, the man who was in the house at the time of this incident, was her boyfriend, something that contradicted what she had told Dr Eastham. There were other differences in the account. She said that B was asleep. She said that she had taken H down to EH; EH had not gone upstairs. She said that she had left L playing alone upstairs and went back up when she found he was playing with and had turned on the bath taps. On hearing a bang downstairs followed by squealing, she said she had come down and EH was standing at the foot of the stairs holding H, visibly upset and saying she had dropped him. She took H in her arms. He settled. After four or five minutes of crying he 'appeared fine, responsive, not crying, did not appear to be in pain.' EH told her how H had fallen.
17. An hour or so later, H took a full bottle without difficulty, his sleeping pattern did not change. After his afternoon nap, a small lump she had previously noticed had disappeared but, after a second nap later on, the back of his head, she said, was completely flat and there was swelling over and behind his left ear. She said she called an ambulance immediately. We now know that the ambulance was in fact called at 23:40 hours. Her sister, Sh, was there by then, having arrived at about 21:00 hours. She accepted and regretted the fact that she had not called the ambulance earlier and said she would have done had she been concerned about H's presentation. She said, 'I accept that I lied to the doctors at the hospital. I was scared that someone would think [EH] had done it on purpose or that I should not have left [EH] alone with H.' She said, of her presentation to Dr Eastham, that she often put on a brave face and that, in contrast to her extreme concern for H, she may have made Dr Eastham think that in fact she did not care.
18. In her oral evidence, she repeated that EH was upset when she arrived, crying and so she had gone down to talk to her after she had let herself into the house. In contrast to her other account, she said that H was in fact downstairs in the sitting room in his car seat. She said when she went back upstairs she was sorting clothes, talking to B and L was playing. She said that she had been upstairs for an hour to an hour and a half when she heard the bang and EH subsequently described how she had dropped H. She said:

'I believed [EH]. After he stopped crying, he looked fine, apart from a little lump on the side of his head. [EH] said to take him to hospital, but I said wait a few hours and see how he was because he looked perfectly fine to me.'

She said there were consequences if we did go 'as I already had the local authority involved. I don't know what I thought would happen, but they could have taken them away there and then.' She confirmed that [EH] had stayed all day. B had gone home. That evening Sh came along. She said she was not involved in any discussion about H, but when she got him out of his seat or basket she found that the back of his head was flat and Sh had said, 'You should call an ambulance.' She said, 'I gave a false account because I was frightened. I didn't know what was going to happen.'

19. She said the following day her aunt, X, came to the house and on what the hospital had been told X knew immediately that they were lying as a child could not roll off a rug and duvet and do that much damage. She said, 'We were both in a state and she got the truth out of us.' The police came round. We were distressed. We knew we were in the wrong for telling lies. She said nothing else happened to H and she certainly had not hurt him.
20. Asked by Mr Brown why she had lied about the status of B, she said she did not think that it had mattered to Dr Eastham and she did not know why she had lied and then she did not want people to know that she had a boyfriend. She repeated that she came up with the story because of a fear of the consequences. It was pointed out to her that if a friend had accidentally dropped H, that was a wholly innocent explanation and she had not herself done anything wrong. She said, 'I didn't think people would believe it.' She agreed that H had had a visible lump and was a very small baby at the time. She said, 'I don't know why I didn't take him to hospital. I was thinking about the local authority.'
21. It was put to her that she had given an account about the appearance of EH when she had arrived at the house, being covered in mud and so on. She did not remember any of that. She said she was clean, not covered in mud or scratched. She agreed she was good friends with EH, but denied that she had talked her into giving a story. She agreed though that she had a perfectly good, truthful story and could not explain why she had not volunteered it to the hospital at the outset, despite, as she accepted, it not stacking up. She agreed she had lied to Sh and did not know why, then added that with her sister 'you can't mention anything as she'll twist my words.' She agreed she lied to her aunt when she called the following day and could not explain why she had not told her the truth, but she maintained that the story about rolling off the duvet was her story and that EH had been keen to take him to hospital. She described her as trusting and helpful, but she said, 'We only lied because we were petrified of the truth and its consequences and that's where we are now.'
22. EH is now 20. She is in full time education, working at a farm caring for animals. She has had no involvement with the local authority in her life. She was convicted of an isolated offence of shoplifting and conditionally discharged 18 months ago. That apart, nothing is known against her. She had been a friend of the mother for four or five years and was in the habit of calling round. She said, 'I love children,' albeit she has none of her own. From the time that the mother moved into her own home (and various estimates were given about that by the mother and her grandmother, but it was weeks not months), she visited most days and sometimes stayed overnight.
23. On 17^th December, she had had a disagreement with her mother and she was upset, as the mother says, when she arrived at her house. She said nothing about [an incident at a named location] and nor was she dirty or injured. When she arrived, she said, the mother was upstairs with L and B. H was in the sitting room alone in his car seat. The mother came down and comforted her in her distress and then left her alone with H to attend to L. She then repeated her account of the incident. She said, 'I knew he was hurt.' The mother disagreed. 'If it had been my child, I would have taken him to hospital, but it wasn't my choice to make.' She said she stayed for the rest of the day. 'Sh came. She'd seen his head and said take him to hospital. The mother said she would soon, but Sh called the ambulance straightaway.' At hospital, the mother told the doctor he had rolled of a duvet. She said the mother had come up with it. 'It was a lie. I heard it. I was scared.' She said that they had discussed what they were going to say because they were scared. 'None of us wanted anything bad to happen.' Having stayed overnight, the next day the mother's aunt, X, came round and she said it could not possibly have been from rolling off a duvet and she said, 'I told her exactly what had happened and it was then the police came.'
24. She said she gave Dr Eastham a demonstration of what had happened, but she was 'in bits, crying, saying I was sorry for lying.' Asked if she had been kneeling in an upright position, as she had been when she conducted her demonstration to Dr Likeman in court, she said she had not been when she had been doing the demonstration to Dr Eastham. She said that that demonstration had been more showing Dr Eastham how she was holding H rather than to do with the extent of the drop. In cross-examination, she confirmed that she had an awareness of local authority involvement in the mother's life, but no understanding as to why. She put the accident at more like 11:00 hours rather than 14:00 to 15:00 hours and she agreed she had not contradicted the mother when the mother gave that time to the professionals. She agreed that her account was of a pure accident. She said:

'I thought telling the truth would get me into more trouble. We were both terrified, it was an accident and it made matters worse by lying. I wanted to tell the truth, I hadn't really done anything wrong. It was more the fact that the local authority were involved and the fear that H would be taken off her. I know it has consequences for me and any children I have, but this is the true version and I am not lying anymore.'

25. She said after the accident she had told the mother what had happened and:

'She just came out with the story. She wanted to say it. She did not say why. She said that she would get into trouble, but she didn't say expressly that it was due to a worry about the local authority.'

She agreed that it was not a very good lie. In fact, she said to the mother that, 'They'll not believe you,' and she said that was why they ended up telling the truth.

When cross-examined on behalf of the local authority she described the demonstration to Dr Eastham who was talking her through the accident. She said Dr Eastham had asked her if she was sure that it was the correct height and she said, 'I was,' and she agreed that Dr Eastham had measured 30 centimetres. She said, 'I was scared and that's why I didn't point out the true height.' She said that after the incident she had told the mother that H needed to go to hospital, but she was not accepted in relation to that. She said that H then slept and did not wake for his bottle and she knew there was something wrong with him as he was different in himself, but despite that, neither she nor the mother called the ambulance. She thought Sh had come at about 11 o'clock that evening to see the mother and that was the trigger for going to hospital.

26. She agreed with Mr Stonor that since this had happened things between her and the mother had cooled considerably, she has had very little contact indeed, a little over the phone, but not direct contact, other than at court. She said she was not lying to try and protect her. She confirmed something that she had said earlier to Mr McCain, on behalf of the children, that when she arrived, H was alone in his car seat in the sitting room, which at the time had very little furniture, in front of the television. He was just watching, staring at the television, which was on.
27. That was the evidence. The findings the Local Authority invited me to make at the conclusion of the evidence were set out by Mr Brown in his closing submissions in relation to this issue. First, that the causation of the injury is most likely to be a significant deceleration injury related to impact. It is very unlikely to have been caused by a fall of 30 centimetres, as suggested in one explanation. Second, most injuries in this context, namely, a skull fracture with a subdural haemorrhage at a different site, are caused by a fall from a height of at least 90 centimetres, although a fall from a lower height may cause such injuries. A fall from a height of 60 centimetres or lower is very unlikely to have caused an injury of this type. Third, this is either an inflicted non-accidental injury or has been caused by a fall from a greater height than the height described by the mother and EH at the time of H's admission. Four, the injury to the knee and I have not thus far mentioned that, but a half centimetre by half centimetre purple bruise overlaying anteriorly, could be consistent with a fall if the explanation of a fall from 30 centimetres is accepted. Alternatively, due to H's age and development, it is consistent with an inflicted injury for which there is no adequate explanation. In terms of perpetration, the injuries occurred whilst H was in the care of his mother. Next, they were either inflicted by the mother or, alternatively, in circumstances known to the mother, but she is yet to provide a true account of the circumstances in which they were caused. Next, that the mother failed to seek prompt medical treatment for the injuries in circumstances where it would have been appropriate for her to have done so.
28. The local authority's position at the conclusion of the evidence was that it did not feel able to invite this court to make findings that are more specific than those that I have just set out. It was the local authority's case that both mother and EH had proved themselves capable of telling significant lies. Of course, the fact they have lied does not of itself prove one version of events rather than the other. However, it does raise the question to be asked as to how the court is able to place reliance on any version which is wholly reliant on the word of either the mother or EH, but which does not have independent corroboration.
29. On behalf of the mother, Mr Stonor said that she has made serious mistakes, most particularly delaying medical attention and lying, all of which he concedes would suffice to cross threshold, but nevertheless that represents the limit of her blameworthiness. He said she corrected her account very quickly, satisfied the police that it was an unfortunate accident and expressed appropriate regret. Her behaviour is explicable by her concern as to the local authority reaction given the background of concern. There is no evidence that H was unwell before the incident with EH and, despite difficulties in its emergence, the evidence is such that the court can be satisfied that the injury was caused accidentally or at least not satisfied that it was caused non-accidentally. He makes the point that EH has no reason to protect his client.
30. Mr Oliver on her behalf also says, having regard to his client and her presentation, that it was highly unlikely that H's injuries were not caused accidentally. The general scenario described to Dr Eastham would account for the injuries and the issue is whether it was correct even then. Mr Oliver says (and is supported in this by Mr McCain and Mr Brown) that the court should find that EH is a suggestible individual, capable of being manipulated and that this is what has happened here. He says, because of the dire consequences, the mother conveyed to her as likely to follow, that is the explanation for her going along with the mother's suggestion. That collusion he described as naïve and lacking judgment, but does not render her account incredible. Thus, the general scenario to Dr Eastham as further explained to Dr Likeman is a sufficient explanation.
31. In relation to the court's task in determining findings of fact, the law is to be set out in a series of authorities, beginning with Re H and R (Child Sexual Abuse : Standard of Proof) [1996] 1 FLR 80, Re G (A Child) [2013] EWCA Civ 965, Re O and N (Minors) [2003] UKHL 18, Re B (A Child) [2013] UKSC 33, Re U and then the leading case from the House of Lords in 2008 of Re B [2008] UKHL 35. It is not necessary to set out the law at any length; there is no need for me to do so. I need to set out only so much as is necessary to indicate the standards by which I have to assess the evidence and, equally important, as will enable the mother and intervener to understand the legal principles by which they are being judged. I am entitled to and must have regard to all the evidence before me when coming to conclusions on matters of fact. The standard of proof was classically defined by Lord Nicholls in Re H and R (Child Sexual Abuse : Standard of Proof) [1996] 1 FLR 80 as the balance of probabilities standard means that a court is satisfied an event occurred if the court considers that on the evidence the occurrence of the event was more likely than not. The House of Lords reviewed that in Re B [2008] UKHL 35 and disapproved what had become the familiar formula, the more serious the allegation the more cogent the evidence needed to prove it on the basis that whilst inherent probabilities are something to be taken into account, there is no logical connection between seriousness and probability.
32. Lord Hoffmann went on to say:

'If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.'

33. Reminding myself throughout that the burden rests on the local authority, I have to say that I found it extremely difficult to make any kind of sense of the evidence of the mother and EH to ascertain the real motive for lying and to determine whether the account that is now given can be accepted as the unvarnished truth. I repeat, the burden, of course, rests on the local authority and I remind myself, and emphasise, that there is nothing here for the mother or EH to prove. They are, however, the key witnesses because one or more probably both of them are the only people who know what happened to H. Accepting as I do the medical evidence, that unchallenged from the treating doctors, that subject to some scrutiny from Dr Likeman, it seems to the court that as matters stood on 18^th November there was no account that would explain H's injuries.
34. Thus, I accept that H's head injury was most likely to be due to a significant deceleration injury relating to impact and very unlikely to have been caused by a fall from 30 centimetres, as Dr Likeman put it, having appropriately cautioned himself against being dogmatic, 'quite impossible' to explain. Thus, the general proposition remains clear. I entirely accept that Dr Likeman cannot be dogmatic about 90 centimetres, reminding myself that in any event it is only a minority of falls from that height that result in fractures. Further, that one cannot rule out a fall from a lesser height resulting in a fracture, albeit a fall from 60 centimetres or less is 'very unlikely' to cause this type of injury. Thus, having accepted this evidence, along with the concerns of both radiologists that the subdural haemorrhage was remote from the fracture line, the issue for acute consideration is not whether EH's account to the court is capable of providing an appropriate explanation, it is, but whether it is credible. That in turn requires my assessment of her and the mother and their evidence.
35. I remind myself, in accordance with Lady Justice Macur very recently in Re M [2013] EWCA 1147, that this assessment must draw upon more than their performance in court. It is a nerve-racking experience, however hard the court tries to make a witness comfortable, and the atmosphere is, of course, emotionally charged. Therefore, it would be quite wrong to judge either of them on their performance in court. Furthermore, that they have both lied is accepted by them. I remind myself of the warning given in Lucas [1981] QB 720 that a lie is only evidence of guilt if the court is satisfied that it was made deliberately; that people may and do lie not because they are guilty, but for other reasons, such as, in this context, to protect someone; out of panic; because of the fear of consequences and that lies alone are insufficient to make findings and that other evidence should be sought to corroborate guilt.
36. My starting point is the apparent inexplicability of the initial lie. Even allowing for panic, concern as to what the local authority might think or, worse, do, I have struggled to understand why an apparently wholly innocent accident, doubtless embarrassing, upsetting and regrettable, of course, has triggered such an astonishing train of events. On the account of both the mother and EH, the mother is completely innocent of anything to do with H's injuries. There is nothing known about EH that would suggest that she was a remotely improper person to whom the care of H should not be entrusted. She has nothing in her past, her upbringing, her own life experiences, that on the face of it render her unsuitable. Wholly respectable, decent, caring adults do nevertheless have accidents with children that with hindsight could perhaps have been avoided, but do not begin to trigger child protection concerns. I repeat. It can be very embarrassing and upsetting, but not concerning in those terms.
37. EH was such a person and so had no earthly reason to lie, but, more importantly, nor did the mother because whatever else the mother had done, and she has given differing accounts, but I am satisfied that she had left H downstairs, consider that L was unsupervised upstairs and strongly suspect, as I think EH did as cross-examination from Mr McCain teased out, that mother was actually upstairs in bed with her boyfriend at a time when she should have been caring for L, then only 34 months old. Neglectful and even scandalous though that might have been, it did not contribute one jot to the issue of blame worthiness if EH did drop H as she says that she did. Thus, on any view, the lie was inexplicable and it is difficult to see how EH accepting responsibility could have begun to have had the adverse consequences the mother now claims.
38. I accept that whatever happened, EH's instinct was to seek treatment, but it is clear that she felt unable to assert herself and that the actions that followed were not initiated by either her or the mother. Thus, the mother's evidence that she called the ambulance immediately on discovering H's swelling is not borne out by all the evidence. Sh, the mother told Dr Eastham, had been there since 9 o'clock. The mother said she had lied to her too. The mother did not say to me, as EH did, that it was Sh who was insistent and who overrode the mother's indication that she would call the ambulance soon. Without Sh's intervention, I have no confidence that an ambulance would ever have been called. It goes to the failure to seek treatment, but it is also relevant to credibility because, having told the hospital lies that night and in the early hours of the morning, it took the intervention of another third party, the mother's aunt, X, to provoke the mother and EH into giving the fall explanation. That only emerged in the oral evidence. It cannot be found in either of the mother's statements, in the statement of EH or in the account given to the social worker in the period that followed. It took, according to EH, this person, from whom the court has not heard, to point out forcefully that a fracture could not have come from rolling off a duvet. The mother only told the court of that account after EH had given oral evidence of it. 'She got the truth out of us,' is what was said. This was the second family member to whom they lied and it was the second family member who had triggered some reluctant action by bringing some blunt common sense to bear.
39. Even then, as now is asserted, the account remained incomplete and misleading because, despite what was plainly Dr Eastham's very clear and focused interest in establishing from what height H had fallen for reasons which are obviously understood by reference to Dr Likeman's evidence, but which I struggle to consider could have been lost on EH or the mother, she going to the lengths of getting a tape measure to establish as best she could the height from which H had fallen, EH asked me to conclude that it was actually a far greater height now, presumably fully in the knowledge that 30 centimetres simply will not do.
40. Counsel for the local authority and the children point to the general lack of candour of the mother and EH, but specifically on this issue I was surprised to hear EH say (and it was in evidence in chief) that she thought that if she showed a lower drop that she would not be in as much trouble. Asked why, she said that the police were shouting, but, looking at Dr Eastham's contemporaneous note, the care then taken to check this is quite apparent, a point that was reinforced by Dr Eastham's email received during the course of the hearing in which she explained how and where she measured from. '[EH] confirmed to me this was the level from which H had fallen.'
41. Thus, the lack of candour on EH's part in relation to this issue of a height from which H had fallen is of a serious order because if she now tells the truth, it follows she was again misleading the professionals, having apparently taken the decision that she would now tell the truth. She had agreed that the first lie was not a very good one, 'that's why we ended up telling the truth,' save that it now transpires that the second account was not the truth either. That lack of frankness causes the court the utmost concern that it has still not been told the unvarnished truth. Where the reasons for lying in the first place are, frankly, so difficult to comprehend, that is an added anxiety. Nor am I much persuaded that EH's reported demeanour helps much. I agree with the submission that she is a suggestible, even a malleable witness.
42. Despite her initial willingness to assist this case, it was only at the final hearing that she finally appeared with some evidence and there was no proper explanation for her not having done so previously. I still do not understand why she was prepared to lie or what possible adverse consequences she perceived could have flowed to her or indeed the mother if she exclusively was responsible. She, like the mother, had not before this hearing volunteered the information about the mother's aunt and what appears to have been her pivotal role in telling the truth. It is clear what Dr Eastham was told was not in that sense willingly volunteered, rather it was dragged out of the mother and EH by the force of the mother's aunt's dismissal of the nonsensical story that had been told at first.
43. There is, of course, a concern that having lied once, even once a witness starts to tell the truth they are not accepted and I have the Lucas issues very much in mind. However, it seems to the court that even at this stage there are unanswered, inexplicable questions and the court is presented with a further alleged admission that the truth to Dr Eastham was not what it purported to be. In all of this, although now accepted by the mother in her concessions, the enormity of the potential harm to H in not receiving treatment does not seem to have hit home. Just how EH, let alone H's mother, could have failed to seek treatment, failed when I find they were pushed into it by Sh, to give an account that was not even remotely connected to the truth and then on EH's account to minimise the circumstances of the so called true account, makes the court again question seriously how anything that is said by either of them can be relied on. I have anxiously given thought as to how or why EH would continue to lie if, as appears to be the case, relations with the mother have completely broken off. It would appear that she has nothing to gain and much to lose if she was in fact seeking to protect the mother. Quite apart from all the difficulties in the evidence, and I accept that she has told us more than the mother has to the mother's detriment - for example H left alone in front of the television in the living room, L unsupervised, the mother and B up to goodness knows what, as well as opening a window on the involvement of Sh and especially the mother's aunt - it may simply be that she does not find that she can bring herself to give a wholly different account to that which she gave Dr Eastham and, in the knowledge of what the experts have said, confined herself to improving upon that which was previously stated.
44. At the end of the day, I am afraid, the court does not know what happened to H, other than that he sustained a significant head injury in the care of his mother, who then lied and colluded with EH as to the circumstances with the account continuing to vary from that event in November last year right through to the trial in September of this year. The more that this is explored the less convinced the court is that this was a non-accidental injury because there has been so much dishonesty and deceit, not just about what happened, but with regard to the circumstances surrounding those events. I cannot accept, therefore, that it was an accidental injury. I can in the circumstances, absent any explanation that would fit prior to September (itself a variation of a rejected explanation), be satisfied that they were caused non-accidentally. I could not begin to be persuaded by the police view, itself inexplicable having regard to the medical opinion then available.
45. EH's distress is in my judgment as consistent with being put in a position where she had on any view a seriously injured child in her sight and was collusive in relation to lying significantly as to what had happened, as having been personally responsible for it. She may well have been very upset, but on the evidence, I cannot be satisfied as to how or why because the court has not been given the true explanation. Accordingly, I make the findings that the local authority seeks in the amended form I have already referred to because, on the balance of probabilities, I find that these injuries were caused non-accidentally. They were inflicted injuries in circumstances that are not known to anyone, save for the mother and/or EH, at a time when H was in his mother's care and that both the mother and EH remain within the pool of perpetrators. No amount of straining within the bounds permissible for this purpose can bring about a conclusion to what the President has repeatedly called the stringent standard required to identify which of the two, if it be but one, is responsible.

[Counsel for EH withdrew at the Court's request.]

46. The findings I have just made are, of course, directly relevant to welfare issues, but there are other issues which in the circumstances I consider can be dealt with more shortly than had the case been concerned with those alone. I alluded to the background of local authority concern and they date back to a period beginning in October 2009 up until the time when the children were received into care following the incident concerning H. Much of it came from the Health Visitor Service. Amongst the concerns noted were a reluctance on the mother's part to accept professional advice and the volatile relationship which existed between her and her sister, which played into broader social issues concerning the family as a whole. There were issues of poor supervision. L's speech was found to be limited and he was failing to meet developmental milestones, which were to be contrasted with the developmental progress that he subsequently made in care. The mother's difficulty managing L's behaviour and setting boundaries. The mother's failure to ensure that L attended relevant health appointments and so on, that included a failure to attend to his dental hygiene with the consequence that he had a large number of teeth removed once received into care. There were also issues concerning the mother's behaviour generally whilst living with her grandparents and the poor, physical condition of the children. The overall view of the health visitor was that the mother's parenting ability was limited, that she was an inconsistent parent, reluctant to take advice or to implement it and she thereby failed to prioritise the children's needs and the development of L in particular had suffered as a consequence.
47. The local authority has, of course, carried out a parenting assessment. That was also negative. It was concluded in March of this year. One of the points which is made which is relevant to the issues I now have to consider is that for most of this period, certainly up until a very short time before H's hospitalisation, the mother and L and then H had lived with the mother's grandparents, Mr and Mrs G. Essentially, these concerns could be said to fall under the category of chronic neglect, arising in accordance with the local authority's schedule from the mother's vulnerability and immaturity, something that she accepts and attributes to her own undeniably difficult childhood. The complaint that she failed to seek antenatal care promptly, putting herself and her babies at risk, is something that she accepted, (not appreciating that she was pregnant with L until she was 20 weeks pregnant and with H until 32 weeks) in the full knowledge of the pregnancy at 12 to 13 weeks, that being concealed from her grandparents because of her concern as to her grandmother's reaction. Other concerns in the schedule, the use of alcohol to excess and drugs, was denied by the mother. She also denied a number of lifestyle issues as well as difficulties managing L and setting boundaries. Whilst she has accepted that she has needed some help with stimulation, attending health appointments and so on, it is the mother's case that she worked positively with professionals in order to meet her children's needs.
48. The local authority parenting assessment to which I have alluded is a lengthy, detailed piece of work running to 50 pages. It recognises, prior to the head injury, the intermittent nature of the local authority involvement, but in terms of the mother's basic care, points to L not having developed in accordance with the appropriate verbal accounts from the mother as to how she had cared for him. His overall development was delayed when received into care and although fine and gross motor skills have improved, his speech remains poor. She demonstrated, it was said, inappropriate impatience with L in contact, has had expectations of him which were not age appropriate, as well as failed to follow advice regarding boundaries and rules in contact, which has tended to focus on H rather than L. The latter's focus seems to have been on his grandmother, raising a question in the local authority's mind as to who was L's real carer. The mother also disclosed something of a lifestyle involving parties and drinks, which was inconsistent with her being the primary carer. Thus, taken in conjunction with the head injury, the local authority assessment was negative as to the mother's ability both to meet as well as to prioritise the needs of the children.
49. As I have previously mentioned, the author of that report was not available at the hearing. The team manager who gave evidence had familiarised herself with the case, having already signed off the care plan, but she agreed that it was less than ideal her giving evidence in the social worker's stead. She recognised that prior to the injury the involvement had all been on the basis of a child in need as opposed to child protection and she said that she felt that the parenting assessment which was prepared after three 60 to 90 minute sessions was in her view sufficiently robust and reliable. She recognised that there were positives, that the mother had attended all of L's speech and language appointments since he was received into care and that she had verbalised appropriate parenting skills and offered both, but most particularly H, physical affection. She acknowledged good things on contact, as well as frustration, which she accepted was understandable in the artificial environment of supervised contact, all of which the mother has attended.
50. However, she also reported that the mother's engagement was inconsistent and that was something that she did not attribute to the less than optimal environment. There was an issue as to her consistency in attending care team meetings and a parenting course offered was said to have met with the initial response by the mother that she did not need it and then when she accepted, she did not turn up. Various housing issues arose. She has now quit the tenancy of the property where H was injured. It was not possible to get to the source of the allegations regarding parties and damage to property. I say here and now that I attach no weight to those matters at all having regard to the observations of the President during the process of family justice reform as well as the specific remarks of Lady Justice Black in Re P [2013] EWCA Civ 963.
51. Perhaps of more immediate impact, however, was the evidence of the health visitor, Clare Pritchard, personally involved from July 2010 to date. Her statement, effectively a running chronology of her involvement, again not entirely compliant with the remarks of the President or Lady Justice Black in that latter case, pointed to involvement greatly in excess of seven visits anticipated by a healthy child plan. None of the visits, she stressed, were unannounced, yet almost half failed or were ineffective. Her evidence was that, save for the last two weeks, they were always at the home of the maternal great-grandparents.
52. She gave specific examples of concerns. L's speech and language, that the mother had agreed to a referral, but denied that there was a concern which may have explained the otherwise unexplained missed appointments. The mother's inability to manage L's age-appropriate behaviour, despite advice which she appeared to understand. The mother's inability to provide boundaries and routines, despite asking for help, which was given and not then implemented. The mother's frank disagreement with professional advice over a number of matters, the example she gave was over prop-feeding. The observation that whilst the grandparents provided a home, managed bills, finances, cooking and cleaning, relieving the mother of those tasks, the time that the mother has to parent the children did not seem to be working. The mother's inconsistent and volatile relationship with her sister, which went from the mother saying that she was taking out an injunction to keep her sister from her to a suggestion, which to be fair the mother denied, that she at times had a caring role so far as L was concerned. The mother's apparent failure to avoid the giving of sugary drinks, despite frequent reinforcement. At the age of 3, L appears to have had 9 or 11 (there are differing accounts) teeth removed due to decay, secondary to poor dental hygiene and diet. Accordingly, the health visitor's concern was the mother's inconsistency and inability to apply learned knowledge on a consistent basis.
53. In cross-examination, she agreed that it was the mother who was a person who self-evidently needed much support and that that had been provided until November 2012. She agreed that the picture presented was not unremittingly negative and so, for example, although she is reported as an individual who comes across initially as quite aggressive, she is capable of building a rapport, cooperating and working with professionals. However, she was reluctant to accept that the mother was keen to accept help. An example was given over nursery nurse support, but what she said was she would agree to some offers of help and engage with a childcare worker, but she was insistent that the mother had declined a family support worker until very shortly before H's injury. She agreed that the mother was capable of some insight, but said it was 'sporadic, much like her interaction with L.' She disagreed with an entry in the initial assessment that suggested that L was meeting his developmental milestones. She accepted that there was greater cooperation in the nine-week period before H was injured though. She was very clear that L's speech, whilst not a case of not being able to talk at all, comprised maybe three or four clear, single words as opposed to the expected minimum of 50, mainly communicating by utterances or pointing.
54. To Mr McCain she said that despite extensive support the mother's care was very inconsistent. She said the great-grandparents were mainly present when she visited and so were the beneficiaries of whatever advice she was giving. She said she once observed an argument between them and the mother in front of the children. Overall, she did not think that they were successful in influencing the mother positively and so, for example, she said the great-grandparents knew very well the issue with regard to L's diet and the outcome so far as his teeth were concerned. Relevant not just to the question of the suitability of the great-grandparents as alternative carers, the evidence concerning and from them is also relevant to issues concerning the mother. As indicated, they were subject to a parenting assessment, which was negative. It highlights the fact that until, in that author's view, two weeks before H's injuries the boys were living at their great-grandparents home, the attachment between L and his great-grandmother was plain to see and positive. Although the great-grandparents said that the mother was the primary carer and they only assisted, the social worker's impression coincided with that of the health visitor that they were much more involved than they were admitting. Thus, the developmental issues identified in L are not only denied by the great-grandparents, but they are, say the local authority, implicated in them.
55. They are reported as having denied that the mother could have had any responsibility for H's injury, something that was much in dispute when they gave evidence, but did say that they would have sought medical advice had it happened whilst H was living with them. The extent to which the great-grandparents were in dispute over issues went further. They denied that the mother's care of the boys was inadequate and, for example, his great-grandmother claimed that L cleaned his teeth daily with her, thus suggesting that it was clear that he had been taught how to do that and was able to do it for himself. There was also an issue that they had permitted their daughter, Mi, as well as Sh, whose children had been removed from their care, to care for L. The great-grandfather is 69 and has a history of two heart attacks and whilst the great-grandmother is only 57, overall this constellation of issues, their lack of insight and their failure to address the shortcomings in the children's care had led the local authority to conclude that they lacked the capacity to protect.
56. Mrs Ruddick denied any shortcomings in that assessment, not mentioned thus far but acknowledged by her, and that assessment is the fact that they are also caring for J. J is 15. He is another grandson and they have looked after him since he was 10. Mrs Ruddick recognised that J seems to have done well, and that provided some indication of their ability in a parenting role, but pointed out that the needs of two pre-school age children who have already suffered significant harm are very different to those of a 10 year old J as he was when he was placed.
57. Mrs G took great exception to much of what was said about her and her husband in the parenting assessment. She gave evidence having filed a detailed statement in addition to that filed with the application for party status. In it she says that she did not have any concerns about the care that the mother gave the children, that she, the mother, was the main carer and she simply helped. They were 'doing really well', they were happy and the mother sought advice when she needed it, but seemed to manage well. L's speech issue was not through any want of stimulation. The mother had suffered, as had the grandmother's son, from speech difficulties as infants and she said whilst there was an issue, it was not as bad as the social worker says it was. In evidence, she said that she wondered if it was in fact hereditary. She said all in all his speech was her only concern and had it been a case of there being any other concerns, she would herself have contacted the Local Authority. She said that so far as L's teeth were concerned, she assumed that the mother cleaned them for him on an evening. She said she knew they had too many sweets and pop and she claimed that L had a set routine at all times.
58. She plainly understood the medical evidence regarding H's injury. She said she wanted to believe that the mother was telling the truth, but she would accept the court's finding and if that meant that the children's contact with her had to be supervised, she would do it.
59. She gave evidence. She was an appealing witness who appeared fit and sprightly. Her wish to do what is right for her children is quite clear and not in question. Married for 42 years, she is the mother of three, including Mi, the mother's mother. The full time carer of the mother from the age of 5 until shortly before H's injuries, she described her as 'really good with children', if less so with housework. She needed help with discipline, but that was all. She said she was quite wrong for not taking H to hospital, but she knew that and the boys should go back to her now. She acknowledged that there has been extensive Local Authority involvement in the extended family. Her daughter, Mi, has seven children who were not brought up together, three of them live with their mother. Sh, one of them, does not care for any of her children. The mother lived with them because of the inability of her mother to look after her.
60. Turning to L, she acknowledged that he had lived most of his life in her home. Asked about the mother's willingness to accept advice from the health visitor, she said that if she did not accept it she would do her own thing. She claimed the mother did act on the advice about L's diet, but nevertheless added that she had not noticed a problem with his teeth. Had there been any problems, for example, caring for the boys or associated with her lifestyle, she would not have let the mother move out of her home. She said that the concerns described by the health visitor were about 'normal things'. She insisted that the mother remained capable of looking after the children and it was her clear preference that she should do just that.
61. The mother said in writing that she understood the local authority concerns due to H's injury and her priority was to work with professionals and have the children back as soon as possible. She maintained that she had worked with the local authority, attended all things asked of her and been as open and honest as she could be. She had moved from the address where H was injured back to the other side of the River Wear to be closer to family and friends. She insisted that she would cooperate in the future. When cross-examined, she accepted that she had not agreed with everything that the health visitor had advised her. She said, 'I would rather do stuff myself.' That said, she denied not cooperating regarding speech and language and she said that she had always taken the advice concerned with managing L's behaviour. Like her grandmother, she said that he would throw a tantrum if denied what he wanted, but overall the criticisms of her care of him or his behaviour were wrong or exaggerated. On being asked to think about L having up to eleven teeth removed in a single session, reluctantly she said that she did not know how he would have felt, but eventually concluded, on reflection, that it would have been painful for him and that she was responsible for that.
62. I finally heard from the children's guardian. She had provided the court with some valuable information concerning the children. On placement, the foster carer had described them as very withdrawn. A huge improvement has been noted in their overall presentation, that they are now more confident and interactive. She supported the making of an interim care order at the outset and, in her final analysis, supported the local authority plan. The children, she said, continued to be settled, responding well to routines and boundaries and dealing with contact without it causing them distress or anxiety. The balancing exercise she said that she well understood and addressing it, she concluded that the risk of harm and neglect was unacceptably high if these children were returned to their mother.
63. The guardian had also met with the great-grandparents prior to the final hearing and had viewed the local authority files regarding J, setting out in a position statement her conclusions. She did not doubt their good intentions but the more she discussed matters with the great-grandparents, the more concerned she became because of their inability to understand the mother's limitations, their belief (as reported to the court) that she had parented the boys appropriately and the great-grandmother's inability to see anything wrong with the mother not engaging with L in contact. A 2008 report regarding J raised the additional anxiety that they were then citing age as a bar to having younger children in their care, J being older and more self-reliant, as well as saying that they lacked energy for younger children. Mrs G had then cited their health concerns, but in court said that they no longer were an issue.
64. The evidence heard in court, including from Mrs G, did not change the guardian's conclusion. Cross-examined by Mr Stonor she fully recognised that the mother's age and background were such that she would need support and that there would be issues. She agreed that prior to H's injury there were, as she put it, 'snapshots of good interaction', but they had to be placed alongside the indicators of concern and she questioned how much insight the mother really had. Recognising that she had accepted some advice, she questioned how much she had in fact absorbed and how motivated she was to carry it through. It was suggested to her that her assessment was lacking in rigorous analysis based on inadequate information, but she said that her two meetings with the mother as well as her observation of two contacts, taken in conjunction with the Local Authority, were sufficient properly to enable her to express her views.
65. I will come to the law shortly, but mindful of the very recent authorities, Mr Stonor submits that the very high standard that needs to be met before approving the care plan simply has not been met. The head injury aside, he submits that this is a child in need and not a child protection case and had the head injury not occurred, there would have been no basis for removal. With appropriate support, he submits that the children should return to their mother. There are, he says, sufficient positives in her care, with sufficient acknowledgement by her of her shortcomings, for example, regarding L's dental care, to give grounds for optimism. The parenting assessment, he says, was inadequate and the evidence overall falls short of the degree of analysis the Court of Appeal has said is essential prior to the making of the orders sought.
66. In making his submissions, I was rightly reminded of the judgment of the Supreme Court in Re B (A Child) [2013] UKSC 33 and the still more recent decision of the Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146, in which the President gave the judgment of the court. Subsequent to the receipt of submissions, the Court of Appeal handed down its judgment in Re W (Adoption: Set Aside and leave to Oppose) [2010] EWCA Civ 1535 in which the President said that the principles from that case and Re B-S (Children) [2013] EWCA Civ 1146 taken together must now inform practice in all care cases, the former directing the court's approach to the question of making care orders and placement orders and to the issue of proportionality, the latter elucidating what is required from the local authority when the care plan as here is for adoption. Re B was recently described by the Court of Appeal as rich in detail in relation to the approach to the European Court of Human Rights and Article 8 proportionately in public law children cases, the issue which is central to care planning here.
67. The judgment of the President of the Supreme Court in Re B (A Child) [2013] UKSC 33, Lord Neuberger, is particularly relevant. The context of that case was a case where the local authority was seeking authority to place a child for adoption. The statutory threshold was satisfied on what was said to be a relatively modest factual basis, but the final orders being sought were at the highest level of interference with Article 8 rights to family life. Thus, it was a case described as being at the extreme end of state intervention, the permanent removal of a child and placement for adoption against the will of a parent. It is that context which has to be placed around what Lord Neuberger said. At paragraph 73 he said that the court had to treat the welfare of the child as the paramount consideration and that involved taking into account the factors set out in what is known as the welfare checklist, which includes the range of powers available to the court. It also has to be construed with the range of powers to be considered under the Adoption and Children Act 2002, bearing in mind the provisions of the United Nations Convention on the rights of a child. He said this:

'A care order in a case such as this is a very extreme thing, a last resort, as it would be very likely to result in the child being adopted against the wishes of both her parents.

As already mentioned, it is clear that a judge cannot properly decide that a care order should be made in such circumstances, unless the order is proportionate bearing in mind the requirements of Article 8.

It appears to me that, given that the Judge concluded that the section 31(2) threshold was crossed, he should only have made a care order if he had been satisfied that it was necessary to do so in order to protect the interests of the child. By "necessary", I mean, to use Lady Hale's phrase, "where nothing else will do". I consider that this conclusion is clear under the 1989 Act, interpreted in the absence of the Convention, but it is put beyond doubt by Article 8.

It seems to me to be inherent in section 1(1) that a care order should be a last resort, because the interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in section 1(3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests. As to Article 8, the Strasbourg court decisions cited by Lady Hale make it clear that such an order can only be made in "exceptional circumstances", and that it could only be justified by "overriding requirements pertaining to the child's welfare", or, putting the same point in slightly different words, "by the overriding necessity of the interests of the child".

68. He continued.

'The high threshold to be crossed before a court should make an adoption order against the natural parents' wishes is also clear from the United Nations Convention.'

Referring to Hodgkin and Newell's handbook on the Convention, which states "there is a presumption within the Convention that children's best interests are served by being with their parents wherever possible", he points out that that is reflected in the Convention which provides in Article 8 that a child has, as far as possible, the right to know and to be cared for by his or her parents and in Article 9, "a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child".'

He continued saying of other articles and authorities referred to:

'They all give added weight to the importance of emphasising the principle that adoption of a child against her parents' wishes should only be contemplated as a last resort – when all else fails. Although the child's interests in an adoption case are "paramount", a court must never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them.'

69. The same handbook went on to suggest that:

'An adoption can only occur if parents are unwilling or are deemed by judicial process to be unable to discharge" their responsibilities towards the child. It means that before making an adoption order in such a case the court must be satisfied that there is no practical way of the authorities or others providing the requisite assistance and support.'

Lady Hale, who agreed with all members of the court, summarised the position:

'We also all agree that a court can only separate a child from her parents if satisfied that it is necessary to do so, that "nothing else will do".'

70. Those of us reading the judgment in January who felt that the bar to be crossed was higher than might previously have been thought, have had that feeling confirmed in the judgment in Re B-S (Children) [2013] EWCA Civ 1146, as well as that given by Lord Justice Ryder in Re W (Adoption: Set Aside and leave to Oppose) [2010] EWCA Civ 1535, as well as in the judgment of Lord Justice McFarlane in Re G (A Child) [2013] EWCA Civ 965, reported in July 2013. Before touching on Re G (A Child) [2013] EWCA Civ 965, however, I need to address Re B-S (Children) [2013] EWCA Civ 1146 because it reminds courts faced with making such far-reaching decisions that, first, it is not enough to show that a child could be placed in a more beneficial environment for his upbringing, an endorsement of the observations of the European Court in Y-C in the United Kingdom. Next, that Re B (A Child) [2013] UKSC 33 rightly used striking language as to the degree of necessity required before making such orders. Third, the need to explore and attempt alternative solutions was emphasised. Fourth, as was Lord Neuberger's reminder, that the court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer. Fifth, the court emphasised the need for proper evidence from both the Local Authority and the guardian, addressing all the options realistically possible and containing an analysis of the arguments for and against each option. On that issue, as well as the need for a global holistic evaluation, the Court of Appeal specifically endorsed what Lord Justice McFarlane said in Re G (A Child) [2013] EWCA Civ 965 and, absent such evidence, the court will not be properly equipped to decide such issues.
71. If the threshold is established, the final stage of the proceedings involves the court evaluating which set of arrangements for the child's future care are to be endorsed by the court's order and that evaluation is conducted by affording paramount consideration to the child's welfare, what Lord Justice McFarlane called 'the welfare evaluation'. The paramountcy principle, therefore, applies. Thus, in answering the question in that case, whether a child should be rehabilitated or placed under a care order with a plan for long term fostering, he said:

'A single holistic question of this type is in structural terms distinct from a series of isolated linear questions where at no stage are the pros and cons of each option balanced against each other in a single process.'

He continues by reference to the welfare checklist to look specifically at change in circumstances, the harm that a child is at risk of suffering or has suffered and the capability of parents and said this under subparagraph (c):

'Consideration for the effect of any change in the child's circumstances must involve, considering in the present case, not just the prospect of returning to the mother's care, but also include consideration of the effects positive and negative of placement in long term foster care.'

Under subparagraph (e):

'Consideration of the risk of harm obviously will include potential for future harm from parental care, but must also require evaluation of any risk of harm from any alternative option provided by any other person, namely, the local authority as a corporate parent, for example, emotional harm as a result of long term separation of a child from his parent.'

Under subparagraph (f):

'When considering how capable each of the parents is to meet a child's needs, that involves consideration of the parents' capacity alongside the strength and detriments of the Local Authority's capacity to meet their needs through fostering.'

72. When considering adoption, given the focus requires the need to take into account negatives as well as positives, he said:

'It is of particular note that the 2002 welfare checklist requires the court to have regard to the likely effect on the child throughout the child's life if having ceased to be a member of the original family and become and adopted person.'

He continued:

'In most childcare cases, the choice will fall to be made between two or more options. The judicial exercise should not be a linear process where each option other than the most draconian is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that at the end of the line the only option left standing is the most draconian and that it is, therefore, chosen without any particular consideration of whether there are any internal deficits within that option. The linear approach, in my view, is not apt where the judicial task is to undertake a global holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare. What is required is a balancing exercise in which each is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared side by side against the competing options.'

73. Finally, in Re W (Adoption: Set Aside and leave to Oppose) [2010] EWCA Civ 1535 the court has said that the approach to exercising its jurisdiction involves making the following judgments. First, what is the timetable within the child's welfare to be determined? Second, what are the key issues that need to be determined for the ultimate decision to be made? Third, whether there are jurisdictional facts, which, if found, are sufficient to satisfy the threshold. Fourth, what are the key findings in respect of the key issues identified? The response to those questions then inform the answers to the three questions previously identified by Lady Hale in the matter of Re. J (Children). First, what is the harm and/or the likelihood of harm? Second, to what is the harm or likelihood attributable? Third, what will be best for the child? The court must then conduct an evaluation of the placement options considering what services are available in respect of each, identifying, first, the welfare analysis of the available placement options that are available; second, the best option among those available on a welfare evaluation; and third, what orders are proportionate and necessary, if any.
74. To an extent, Mr Stonor's submissions were overtaken by my findings with regard to H's injuries. Even if I accept his broad proposition that the concerns of the Local Authority were broadly those of a child in need prior to then, the events of 17^th and 18^th November transport this case into one concerning child protection. Furthermore, whereas in, for example, Re B (A Child) [2013] UKSC 33 where the threshold was said to be satisfied on a relatively modest basis, those remarks cannot be said to apply here. H sustained very significant injuries indeed in circumstances that are not properly understood and. whilst that is bad enough, the admitted failure to seek treatment until many hours had passed, and even then on cajoling by another family member, raises the most serious concern as to the mother's ability to protect her children and to seek help which, in the circumstances, could without any degree of hyperbole be described as lifesaving. That latter concern has echoes with what I find to be a pattern of, at best, selective acceptance of advice from professionals over the duration of L's life in circumstances where she needs help, knows she needs help and suffers from no suggested disability preventing her from either seeking or acting upon such advice. Still further, that she did not adopt such an approach to advice confirmed not just from the health visitor and social worker, but from her own grandmother, her primary carer, that if she thinks she knows better she will ignore the advice. For someone with such deficits, which I accept are not of her making, it is a very worrying trait and such that it is difficult to see how it can properly be compensated by any form of support.
75. That was the position when the mother had the support of the great-grandparents, albeit I accept that had H been injured in their household they would have ensured treatment, as well as the intensive support from the health visitor and the local authority, yet despite that she continued to do as she pleased. That was exactly the case over her description of the reasons for not seeking treatment for H. Had her sister not visited, I question whether she would have sought treatment at all and it pervades the case before and after she left her grandparents' immediate care. The other example which I struggle to categorise as a 'mere' child in need concern is L's teeth. Although the mother claimed she acted on advice regarding drinks and sweets, it is clear that she cannot have done. For a child of 3 to have had surgically extracted nine or eleven (it matters not which) of its 20 milk teeth, which themselves would have only fully emerged at between 24 and 30 months, is not just shocking.
76. The Supreme Court in Re B (A Child) [2013] UKSC 33 also revisited and confirmed both the meaning of 'significant harm' and the meaning of 'likely' in section 31(2) of the Act. In it the justices were unanimous in their view that the court should avoid attempting to explain the word 'significant' in the context of the concept of significant harm, reiterating that it is harm which was 'considerable, noteworthy or important' and requires something more than commonplace human failing or inadequacy. Conduct amounting to significant harm does not have to be intentional or deliberate. It is enough that the harm or likelihood of harm was attributable to the parents. In this context, there has to be a deficiency in parental care rather than parental character, albeit the latter is relevant to the extent that it might affect the quality of the parenting given to the child. In respect of the meaning of 'likely', the Supreme Court reaffirmed the decision in Re. J and reiterated that the likelihood of significant harm means no more than a real possibility that it will occur and it constitutes a comparatively low threshold.
77. In my judgment, that damage to L's teeth was significant harm. Furthermore, despite her and her grandmother's protestations, I am satisfied that L has evident signs of quite mild developmental delay. Although Mrs G suggests that speech problems are possibly genetic, there is no evidence to support that. That other family members themselves, who had impoverished childhoods compromising their ability to function, suffered such a difficulty is not an answer, but it is not limited to that. There is also the evidence of delayed fine and gross motor skills and the progress made in foster care, even if the denial of lack of stimulation points to this being less serious than the local authority suggest as the family would have it indicates to the court. I find that L has indeed suffered neglect that has had an impact on his physical and social development. Again that is, in my judgment, properly characterised as considerable, noteworthy or important and whilst it is true that the Local Authority had not taken child protection measures, it did not, for example, know about the state of his teeth. As Mrs Ruddick said to Mr McCain, it was quite likely that the persistent problems of the type that were identified before November would have resulted with the health visitor escalating her concerns, in turn resulting in an initial child protection conference meeting. In other words, in my judgment, this had all the hallmarks of a chronic case where L was bumping along the bottom, despite the help and intervention, with the usual problem of knowing at what point protection measures were required and the addition of H to the family was likely to accelerate that process.
78. I am very conscious of the fact that H's injury occurred after the mother moved out of her grandparents' home. There is a dispute as to whether it was as little as two weeks or as much as two months before. In truth, I do not think it much matters. I accept that she obtained the property in mid-September, but despite her evidence that she moved in at the end of September, it is clear from the health visitor's record that certainly as at 16^th October she was still at her grandparents' and being given advice then as to what she should do when she moved into her new home. Therefore, I think it is likely to be less than four weeks rather than anything like as long as two months. However, either way, it is not very long. That is went so badly wrong so quickly is perhaps an indicator of how fragile things were before. It is very difficult to know exactly what was going on, but if I accept EH's evidence to this extent, we have a picture of a baby, frankly neglected, put in its car seat alone in front of the television, L running around upstairs, playing with taps with the risk of his fingers being trapped, burnt or both. The mother spending time in her bedroom with her then very recent boyfriend, denied to all despite her claim that there is nothing known against him.
79. That she was keen to get her own place is, of course, entirely understood. What mother of two would not want to have her own home? That she was also under some pressure to leave her grandparents' home is apparent. In August, her grandfather had called the mother an 'idiot' over her pregnancy, saying to the health visitor that he did not know where she was going to live. Days later, both grandparents were saying that they wanted her to move out. I am sure it cannot have been easy for any of them, but that said, the issues that were arising before then, to the court's mind, demonstrate that even with help from the grandparents, with help from the health visitor and the involvement of the nursery nurse who was coming out to visit at the home, L's needs were not being consistently met. The midwife did make a child protection referral in July. In my judgment, the safety of this placement even before the mother left her grandparents was doubtful.
80. The role of the grandparents has to be considered in all of this. Their good intentions are not in doubt but, despite their apparent success with J, I struggle to accept that they were doing more than containing, not very successfully, a bad situation. The evidence of Mrs G was fairly uncompromising. She declined to recognise any shortcomings in her granddaughter's care other than her selectivity over advice. She thought that the mother had taken advice about L's diet but was completely unaware of the appalling state of his teeth. The matters raised by the health visitor were characterised as 'normal things', L's developmental delay was genetic and her considered position appeared to be that the mother was 'really good with the children'. Her only real criticism was the failure by the mother to take H to hospital, her admitted lies being justified by fear.
81. There is an issue as to the relative responsibility of each with regard to L's care. The attachment between L and his great-grandmother is very apparent in contact. It is as apparent as the relative lack of attachment between L and his mother also observed. Like the guardian, I consider that Mrs G has played a very significant role in L's upbringing, certainly more than she has admitted. Therefore, not only does she have to accept a significant measure of responsibility for the things that have gone wrong, her ability to protect and her capability as a primary carer are very much in question. Allied to her assessment of the mother's ability as a parent, so her insight into the mother and into the needs of very small children is also questioned. The help the mother received, the grandmother got as well. As the health visitor said, 'She was always there. She knew what the issues were.' Thus, she either minimises those concerns or she lacks insight.
82. The jurisdictional facts found are, I am satisfied, sufficient to satisfy the threshold and that applies both to the mother and the grandparents, even if the latter were not implicated in H's injuries. Thus, adopting Lady Hale's questions, it seems that each of these children have suffered harm. L has suffered, I am satisfied, from chronic neglect resulting in developmental delay as well as physical harm. H has suffered from very serious physical injury in circumstances which remain unexplained. The picture from EH points to the fact that he was being neglected as well. It seems to the court that absent considerable intervention, each is likely to suffer further harm. Next, H's physical injury aside, it is not just the mother, but her grandparents, Mrs G in particular, who are responsible for that harm for the reasons that I have discussed and the mother is, of course, responsible for the physical harm in the way that I have already explained to H.
83. Therefore, what is best for each child? In considering what is best I have well in mind a number of positive features. They were emphasised, of course, by Mr Stonor and I have referred to a number of them already. The mother and Mr and Mrs G, I am quite satisfied, love L and H very much indeed and I am in no doubt that this is reciprocated. At times, it appears that the mother has been able to meet their needs and it is true that in contact incidents of positive interaction can readily be seen, contact to which the mother has been wholly committed. The mother, I accept, has from time to time shown herself capable of reflection, for example, comparing deficits in her own parenting that she did not want to have repeated with her children, and she is able, at least when she agrees, to cooperate and work with professionals. The initial assessment carried out in September confirmed that L was, for example, getting to nursery on time and the nursery at least (it should be said the health visitor did not agree) thought that he was meeting developmental milestones and the mother was working with the nursery latterly regarding L's behaviour and said to be engaging well.
84. I have to approach all of this holistically and consider what options exist. The options, it seems to the court, the realistic options as described in the recent authorities, are a return to the mother, a placement with their great-grandparents, a placement in long-term foster care or adoption. No one would deny the importance and advantages of being brought up within the birth family. I have set out at some length the views of the higher courts and others on this and the enormity of taking a legal step to deny a child or its family that right. This mother, ignoring the lifestyle issues in respect of which I decline to make findings for the want of direct evidence, has demonstrated over a significant period of time her inability safely and consistently to meet her children's needs, culminating in the very serious events of 17^th November. Furthermore, that failure has been against a background of support, both family and professional, for all of L's life, leading the court to the conclusions. The local authority says (and the guardian adopts) that there is no level of support that can ensure that the boys' needs are consistently and safely met. I agree with the local authority, there is no level of support that can avoid an unacceptable risk of physical and emotional harm. Despite the mother's claims that she would work with professionals, she has demonstrated at best patchy or inconsistent cooperation and, having found her to be an unreliable witness who has not told me the truth about H's injuries or her reaction to those events, there is no confidence that she will behave differently in the future.
85. Although Mr and Mrs G are not in any sense implicated in the events of 17^th November, they are, I am satisfied, in all that goes before. They failed to prevent L from being exposed not just to the risk, but to actual harm with regard to his health and his emotional and social development and that goes beyond, by some measure, Mr Stonor's submission that the words of Mr Justice Hedley in Re L (Threshold Conditions) [2007] 1 FLR 2050, endorsing those of Lord Templeman in Re KD (A Minor : Ward) (Termination of Access) 1988 1 AC, apply. Looking at the latter, this is not simply a case of being concerned that they or the mother are not wise, not rich, not educated. I have real concerns about the management and care of these children over a significant period of time. I am concerned that the grandparents have historically declined to care for young children, pointing to health issues, and even if (and there is no medical evidence to support this) one can put them to one side, their great-grandfather is now 69, he will be 87 when H achieves his majority and his great-grandmother will be 75 when he reaches that age.
86. This is, as I say, a case where the significant harm criteria are made out and made out in the care of the three adults I am concerned with here and the provision of professional help has not prevented that harm from occurring. Long term fostering would have the obvious attraction of maintaining the family link and contact could safely be organised. L well knows his mother and his great-grandmother and H no doubt is getting to know them, but these are very young children and long term fostering brings with it the very significant disadvantages that Lord Justice McFarlane pointed out: the provision of an interfering statutory parent forever checking up, holding meetings, reviewing their circumstances, the inability of the statutory parent to promise L and H the same carer throughout their minority, the more so where both remain so young. Foster carers' circumstances can and do change and do so in a way that prevents the continuity of care. Other children come and go from such households. Children end up being subject to applications and the renewed scrutiny that litigation brings by well-meaning family who want more contact or to have them home, but above all, long term foster care denies a child the right to be claimed with profound consequences for their emotional development.
87. Adoption meets that latter point best of all if it is not possible to go home, but it is not of itself a panacea. There is the inevitable upset not just of the move, but of, more significantly, the loss of contact with family members. There is the realisation that they have ceased to belong to their birth family and now belong to another family, albeit the plan to place L and H together would mean that they would retain their very important sibling bond.
88. Weighing all of those options to determine which best meets the needs of H and L, the advantages and disadvantages of each; considering them in the context of the welfare checklist with specific reference to their physical and emotional needs; the likely effect of the change on their circumstances; their very young age and their need for protection throughout what significant period of minority remains and the harm that each has suffered, I am driven to the conclusion that above all it is the capability of the mother and the grandparents that is such that in considering the range of powers available, even taking into account such help as could be provided, the welfare of L and H cannot be safeguarded.
89. It is, therefore, one of those exceptional cases where I am satisfied it is proportionate to make a care order and to do so on the basis, notwithstanding the obvious disadvantages, that the appropriate order best meeting L and H's needs is a placement order to give them the chance to be claimed and to afford them the greatest measure of security that they can enjoy if they cannot safely have that in their family. L and H are, of course, too young to express wishes and feelings. They have a need at this very young age for security, stability and safety, to ensure that their physical, emotional and eventually educational needs are met, against a background that each have suffered significant harm, that the court cannot adequately safeguard them from by any other order. Adoption will, of course, have the effect of H and L ceasing to be members of their birth family. That is a profound loss, but I am satisfied that it is a necessary and proportionate one to ensure that their welfare is safeguarded. It is, I am afraid, one of those cases where nothing else will do because of the children's life experiences thus far and the harm that each has suffered.
90. The order is, therefore, necessary, proportionate and takes into account the Article 8 rights of H and L on the one hand and their mother and great-grandparents on the other, despite their understandable wishes and feelings because of their inability to provide them with the secure environment in which each can develop and have their needs met safely. I appreciate, of course, that the mother cannot possibly consent to this, but I am satisfied that the welfare needs of each are such that the court should dispense with her consent under section 52(1) of the 2002 Act and I so do.
91. This is, of course, a desperately sad case and there are very few words that a court can offer the family in such circumstances as they face up to their loss. The only consolation, and it is a long way down the line, is that this order gives L and H the opportunity to fulfil their potential in a way that their mother has not been able to do so and I hope that that is some consolation in the long term.
92. I will direct, having regard to the nature of the order I have made, that there be a transcript of this judgment prepared at public expense.
93. Subject to those matters, I will make the orders that the local authority invites.
[Judgment ends]