England and Wales County Court (Family)

IN THE LEEDS COUNTY COURT
IN THE MATTER OF [THE CHILDREN ACT 1989]
AND IN THE MATTER OF [X, Y and Z] (CHILDREN)

		3 February 2014

1. I am concerned with three children. X, a girl born on 6 April 2007. Y, a boy born on 31 May 2008 and Z, a boy born on 19 September 2012. X's parents are F and SH. Y's mother is M. His father is unknown. Z's parents are M and F. X's maternal grandmother is AH. The LA applied for Care orders in relation to all three children. The children's social worker (SW) is Jim Clayton. The plans for the children proposed by the Local Authority, Bradford Children's Social Care, are that X and Z should be placed with AH under a Special Guardianship Order (SGO) supported by a supervision order and that Y would remain in foster care under a Care Order. The Children's Guardian (CG) is Julie Ross.

Parties and representation

2. The LA is represented by Mr Swiffen. M is represented by Mr Taylor, F is represented by Mr Brown, SH is represented by Ms McCourt and the CG is represented by Ms Kemp.

Background

3. X is now 6 years old. She is the daughter of F and SH, who went through an Islamic marriage on 14 April 2006. They lived together until 31 October 2008, X remaining with her mother for a couple of months before moving to live with F in December 2008. In November 2008 there was a s47 enquiry following discovery of marks on X's face and concerns about her being cared for by inappropriate adults. F was granted a residence order in respect of X on 18 March 2009 and she has lived with him in Bradford since then. She has had regular contact with AH, who was assessed as a very positive influence as part of those residence proceedings, and has had some contact with SH. Her half sister, Kr, lives with AH.
4. F started a relationship with M in 2008. M Lived in Humberside, where she remained until June 2013, when she moved to Bradford. F spent some weekends in Humberside with M. She came to Bradford on occasion. At some point before Z was born they had a brief separation. F resumed a sexual relationship with N, a woman who was known to them both. N later claimed that he was the father of her child.
5. On 31 May 2008 M gave birth to Y, who she says that he was conceived as a result of a sexual assault and his father is unknown. Y has significant complex health needs arising from Lissencaphaly. He has no verbal communication or mobility and is completely dependent on others to meet his needs. He is fed through a peg attached to his stomach. Z was born on 19 September 2012.
6. On 8 October 2012, Hull City Council commenced a core assessment following a referral from Jane Lowther from the Child and Families disability team in June. Ms Lowther said that historically M had been reluctant to work with social services but is now coming to terms that she needs support to manage Y's care needs. The core assessment was completed in November 2012 and recommended no further action.
7. On 19 December 2012 a safeguarding meeting was held in Humberside. An initial assessment was commenced following a referral from an anonymous person who claimed the children were being neglected. The assessment was concluded on 30 January 2013. It concluded that both M and F presented as protective and caring of the children and it was felt that the referral was malicious.
8. In June 2013, M moved from Humberside to Bradford with Y and Z to live with F.
9. Liz Lyles, a nurse, visited the home on 8 July. Y was admitted to hospital. Nurse Lyles was concerned about the chaotic nature of the house and the fact that M was giving food to Y which she believed was contrary to advice. She found it difficult to engage with the family describing them as defensive and aggressive She was also worried about how F treated Y when he had a seizure. Ramadan started in the UK on 9 July.
10. Nurse Lyles visited again on 12 July. She recorded that the parents talked about the family travelling to Iraq by car.
11. On Monday 15 July M and F took Y to see Dr Wood. Nurse Lyles was present. Dr Wood prescribed a Hyoscine patch for Y to help control his dribbling. It was a sunny day and the weather report is that the temperature reached about 24 degrees in the vicinity.
12. On Tuesday 16 July Y had a mark on his buttock. M photographed the mark. M called the community nursing team and spoke with Nurse Farnell.
13. On Wednesday 17 July M spoke by telephone with Nurse Lyles in the morning. Nurse Lyles sought advice from Dr Bargett about holding a professionals meeting to discuss the situation. She also telephoned professionals in Humberside. Nurse Lyles then phoned M and suggested that she take Y to the GP as M described the site as blistered. M refused, but telephoned back to report purple marks around the blister. Nurse Lyles asked Nurse Barrett and Nurse Yaqoob to visit the home which they did.
14. At that visit the nurses saw a wound on Y's buttock which was described as 10cm x 15 cm in size. The nurses observed that it looked like large blister had formed, burst and the skin had come away. They dressed the wound.
15. On Thursday 18 July Nurse Yaqoob phoned M and asked her if she had given Y any pain relief. Nurses Yaqoob and Lewis then visited the home and following that visit, where both M and F were present, Y was admitted to Bradford Royal Infirmary at 16.16. At 17.00 Y was assessed by Dr Newbegin.
16. Dr Jepps then saw Y at 19.40. Both M and F were present.
17. On Friday 19 July a social worker brought Y's sleep apnoea mat to hospital for Dr Jepps to consider as a potential cause of the lesion. Dr Jepps felt that the pad was unlikely to have caused the lesion and made a referral to the Emergency Duty Team at social services. An initial assessment was started which was completed on 15 August. The LA then applied for care orders in respect of all 3 children and an interim care order was made on 16 August on the basis of a plan to remove all three children from their parents' care. Y was placed in a specialist foster placement with experienced nurses as his carers. X and Z were placed together in a separate placement.
18. The case was listed for a case management hearing before me on 5^th September 2013. I directed that expert's reports were necessary to enable me to determine whether Y had suffered a non accidental injury and if possible to enable me to determine the cause of the injury. Expert evidence was filed by Dr Charles Essex, a Consultant Paediatrician and by Dr Sian Falder, a Burns specialist from Alder Hey Hospital. On 11 November, M filed a statement alleging that the wound may have been caused by Y's apnoea pad, which she described as sometimes becoming too hot to pick up. I authorised that it be tested by Mr Sykes, a Consultant engineer.

Threshold

19. Threshold is not accepted by either parent. Mr Taylor submitted on behalf of M that threshold is not crossed because the injury is not a burn and it cannot be ascribed to inadequate parenting. F's position was slightly different. His Counsel submitted that whilst F does not concede that the injury is a burn, he had said in his witness statement that "…I have to agree that it seems more likely than not that the injury sustained by Y is indeed a burn" Both parents sought to be excluded as the perpetrator of any non accidental injury to Y.

Issues for determination

20. At the commencement of the case the parties were agreed that the main issue is whether the lesion to Y's buttock was caused by:

• An allergic reaction to a Hyoscine patch

• A burn caused by an overheating apnoea pad

• Scalded skin syndrome

• A thermal burn

• An unknown cause

21. Mr Taylor conceded in his closing submissions that the lesion could not be caused by the apnoea mat or the Hyoscine patch. Both M and F in their oral evidence repeated the view that the patch could be a cause and M suggested that there were other pads, not tested, which may have heated up. The issues should therefore be considered by the court.
22. A subsidiary question was whether I have sufficient expert evidence to determine causation or whether I should adjourn the case to enable the instruction of a Consultant Dermatologist to report on whether the lesion was caused by scalded skin syndrome or some other cause.
23. In the event that I do not adjourn and I find that the lesion was caused by a thermal burn the issues which then arise for determination are:

• Was the burn caused accidentally or non accidentally?

• If it was an accident is threshold crossed?

• Was the burn caused by contact with a hot surface, either by Y being placed on the surface or a hot object being placed on Y?

• If the cause was a contact burn was it inflicted upon Y?

• If so, is it possible to identify who injured Y?

• If it is possible to identify who injured Y did the other parent know and collude with the perpetrator or were they unaware.

24. In the event that I find that the lesion was caused by a non disclosed accidental injury what is the future risk to Y, X and Z? Can they be returned to their parents or are there other risk factors which should be considered, including the alleged failure to obtain medical treatment and/ or administer pain relief?
25. In the event that I find that the lesion is a non accidental injury caused by one parent and that the other parent was unaware should there be a further assessment and if so by whom of whom and on what basis?
26. In the event that I find that the lesion is a non accidental injury caused by one or both of the parents and I am unable to identify the perpetrator should the case be adjourned for further assessment and if so by whom of whom and on what basis?
27. In the event that I find that the lesion is a non accidental injury caused by one or both of the parents and I am unable to identify the perpetrator and I determine that the case should not be adjourned where should each child live and which orders are in the best interests of each child?

Law

Statutory framework – Care orders and Special Guardianship orders

28. The threshold to there being a jurisdiction to make public law orders is that set out in the criteria of s.31(2) of the Children Act 1989. In this case it is not accepted on the parent's behalf that these criteria are satisfied. If I am satisfied that they are met on the evidence then, and only then, can I then go on to consider whether to make a care or supervision order. In order to do so I must consider the welfare of each child and apply the well-known provisions of s.1 of the Act, which also applies to making a Special Guardianship Order (SGO). This is not a public law order and so the threshold criteria do not have to be met for me to consider making an SGO
29. Section 1(1) provides that when determining any question with respect to the upbringing of a child, that child's welfare shall be the court's paramount consideration. In determining what is in a child's best welfare interests the court is to have regard to each of the factors set out in the welfare checklist in s.1(3). Section 1(5) provides that when considering whether or not to make an order under the Act with respect to a child, a court shall not make the order unless it considers that doing so would be better for her than making no order at all.
30. I am also bound to be mindful to the requirement to have regard to the general principle, set out in s.1(2), that any delay in concluding these proceedings is likely to prejudice the welfare of the children.

Burden and Standard of Proof

31. The burden of proving any fact in dispute rests on the party asserting it. The standard to which it is to be so proved is the simple balance of probabilities, no more and no less.
32. In relation to the task of proving a future risk, I note the words of Baroness Hale in Re J (Care Proceedings: Possible Perpetrators):

[49] Having adopted a flexible test of likelihood, it became all the more important to hold that an objective factual basis was required from which to draw the inference that future harm was likely. This was controversial in Re H (Minors) (Sexual Abuse: Standard of Proof) but has been firmly established ever since and for very good reasons. Care courts are often told that the best predictor of the future is the past. But prediction is only possible where the past facts are proved. A real possibility that something has happened in the past is not enough to predict that it will happen in the future. It may be the fact that a judge has found that there is a real possibility that something has happened. But that is not sufficient for this purpose. A finding of a real possibility that a child has suffered harm does not establish that he has. A finding of a real possibility that the harm which a child has suffered is 'non-accidental' does not establish that it was. A finding of a real possibility that this parent harmed a child does not establish that she did. Only a finding that he has, it was, or she did, as the case may be, can be sufficient to found a prediction that because it has happened in the past the same is likely to happen in the future. Care courts need to hear this message loud and clear.

33. From the outset of my hearing this case I have reminded myself that an allegation of non-accidental injury should not be based solely on the premise that the parents cannot explain the causation of the injury.
34. I have reminded myself of the case of Re AA (A Child) [2012] EWHC 2647, where Mr Justice Baker gave a very helpful summary of the law. He started off by referring to the words of Baroness Hale of Richmond in Re: B (Children) [2008] UKHL 35, where she said:

"The likelihood of harm is the prediction from existing facts or from a multitude of such facts about what had happened in the past, about the characters and personalities of the people involved and the things which they have said or done,"

35. Baker J went on to address the burden and standard of proof. The burden of proof lies with the Local Authority. It is the Local Authority that brings these proceedings and identifies the findings that they invite the court to make, although of course it is open to me to investigate or make other findings if that is appropriate. The burden of proving the allegations rests with the Local Authority and to that extent the fact finding component of care proceedings remains essentially adversarial. The court has an important discretion as to the ambit of the inquiry, and in this era of greater judicial case management is under a greater obligation to ensure that only the relevant issues are litigated, but that does not alter the basic principle that the burden of proof rests with the Local Authority.
36. In Re S-B (Children) (Perpetrator: Non-accidental Injury) [2009] UKSC 17 Baroness Hale stated "The first question listed in the statement of facts and issues is whether it is now settled law that the test to be applied to the identification of perpetrators is the balance of probabilities. The parties are agreed that it is and they are right"
37. She developed this theme in Re B (Children) [2008] UKHL 35 when she said :

"The decisions In re H, Lancashire County Council v B, and In re O fit together as a coherent whole. The court must first be satisfied that the harm or likelihood of harm exists. Once that is established, as it was in both the Lancashire and Re O cases, the court has to decide what outcome will be best for the child. It is very much easier to decide upon a solution if the relative responsibility of the child's carers for the harm which she or another child has suffered can also be established. But the court cannot shut its eyes to the undoubted harm which has been suffered simply because it does not know who was responsible. The real answers to the dilemma posed by those cases lie elsewhere - first, in a proper approach to the standard of proof, and second, in ensuring that the same judge hears the whole case. Split hearings are one thing; split judging is quite another."

38. Lord Hoffman observed :

"If a legal rule requires the facts to be proved, a judge 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 nought and one."

39. Baroness Hale continued:

"In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue. The party with the burden of showing that something took place will not have satisfied him that it did, but generally speaking, a judge is able to make up his mind where the truth lies without needing to rely on the burden of proof."

Accidental or non accidental injury

40. In some cases it is simply not possible to say what has happened to a child or what has caused an injury. In the case of Re: R (Care proceedings: Causation) [2011] EWHC 1715 Hedley J stated:

"In my judgment a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made."

41. Findings of fact in these types of cases must be based on evidence and I should be careful to avoid speculation. I must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss observed in Re: T [2004] EWCA Civ 558

"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard or not."

42. It is also important for the court to judge the causation of an injury in context, as Ryder J observed in A County Council v A Mother and Others in 2005:

"A factual decision must be based on all available materials, be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be."

43. In A County Council and K, D and L [2005] EWHC 144, Charles J said at paragraph 49:

"In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence that either a) on the balance of probability an injury has a natural cause or it is not a non-accidental injury; or b) that a local authority has not established the existence of the threshold to the civil standard of proof. The other side of the coin of course is that in a case where the medical evidence is that there is nothing diagnostic of non-accidental injury of human agency and the clinical observation of the child, although consistent with non-accidental injury or human agency of the type asserted more usually associated with accidental injury or infection a court can reach a finding on the totality of the evidence that on the balance of probability there has in fact been a non-accidental injury or human agency as asserted and the threshold is established."

Pool of perpetrators

44. In a case of this type where there is more than one person who could be responsible for a non accidental injury it is necessary to identify the pool of perpetrators. In North Yorkshire CC v SA [2003] EWCA Civ 839 the child had suffered non-accidental injury on two occasions. Four people had looked after the child during the relevant time for the more recent injury and a large number of people might have been responsible for the older injury. The Court of Appeal held that the judge had been wrong to apply a "no possibility" test when identifying the pool of possible perpetrators. This was far too wide. Dame Elizabeth Butler-Sloss P, at para 26, preferred a test of a "likelihood or real possibility" that A or B or C was the perpetrator or a perpetrator of the inflicted injuries". In this case both M and F concede that they were looking after Y at the relevant time and that nobody else could have inflicted the injury whether accidentally or not.
45. Authorities have made it clear that wherever possible the court should identify the person who has caused or inflicted the injury, but it is important not to strain the evidence. In Re S-B (Children) (Perpetrator: Non-accidental Injury) [2009] UKSC 17
46. In Lancashire CC v B [2000] 2 AC 147 the House of Lords was concerned with the proper interpretation of the second part of the threshold test, the "attributability" criterion in section 31(2)(b). A seven-month-old baby had suffered injury from having been violently shaken on at least two occasions. Care proceedings were brought in relation to that child and also in relation to the child of a child-minder who looked after the injured child during working hours. The judge found that the injuries had been caused either by the mother, or by the father, or by the child-minder, but he could not identify the perpetrator. He concluded that the threshold criteria were not met in respect of either child, but the Court of Appeal and the House of Lords held that they were met in respect of the injured child. The House held that it was not necessary, for the purpose of section 31(2)(b), to make a finding that an individual parent whose parental responsibility would be curtailed by the order was responsible for the harm suffered. It was enough that the harm was attributable to the care given to the child not being what it ought to have been and this referred principally to the primary carers

First principles

47. In Re B-S (Children) [2013] EWCA Civ 1146 a strong Court of Appeal (comprising the Master of the Rolls, the President of the Family Division and Black LJ) provided a comprehensive review of the law in respect of cases where a non-consensual adoption is in contemplation. The judgment went far beyond the narrow question of the proper application of section 47(5) of the Adoption and Children Act 2002. It set out, consolidated and reinforced a number of fundamental matters of the greatest importance. In particular the court took the opportunity to consider the implications of the decision of the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria [2013].
48. The President reminded all judges that "it is necessary for us to go back to first principles and to emphasise a number of essential considerations that judges must always have in mind, and we emphasise this, at every stage of the process." I have borne these principles (which I set out below) in my mind through every stage of this case, involving as it does the plan for the children to be placed away from M and F, albeit in the wider family for X and Z.
49. I must, and I do pay the closest regard - and in relation both to M and F and the children and to the rights of each pursuant to the provisions of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In the context of public law family proceedings, the overarching principle remains as explained by Hale LJ, as she then was, in Re C and B (Care Order: Future Harm) [2001] 1FLR 611 at 34 as follows:

"Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.

It was as long ago as 1988 that Lord Brandon identified in Re KD (A Minor) (Access: Principles)[1988] AC 806 that:

… the best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered. Public Authorities cannot improve on nature. Public authorities exercise a supervisory role and interfere to rescue a child when the parental tie is broken by abuse or separation.

The Least Interventionist Approach

50. S.1(5) of the Children Act 1989 in conjunction with the notions of proportionality derived from or at least set out in the European jurisprudence, means that the level of state intervention should be no greater than is necessary in order to secure the child's welfare. Honouring the Article 8 rights both of M and F and of the children requires me to arrive at an outcome which is both proportionate and in the children's best welfare interests.
51. As Hale J, as she then was, said in Re O (Care or Supervision Order) [1996] 2 FLR 755, 760:

"the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children … unless there are cogent reasons to the contrary." […]

52. Implicit in all this are three important points emphasised by Lord Neuberger in Re B. First (paras 77, 104), although the child's interests in an adoption case are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare make that not possible.
53. Second (Re B para 77), as required by section 1(3)(g) of the 1989 Act and section 1(6) of the 2002 Act, the court "must" consider all the options before coming to a decision. As Lady Hale said (para 198) it is "necessary to explore and attempt alternative solutions". What are these options? That will depend upon the circumstances of the particular cases. They range, in principle, from the making of no order at one end of the spectrum to the making of an adoption order at the other. In between, there may be orders providing for the return of the child to the parent's care with the support of a family assistance order or subject to a supervision order or a care order; or the child may be placed with relatives under a residence order or a special guardianship order or in a foster placement under a care order; or the child may be placed with someone else, again under a residence order or a special guardianship order or in a foster placement under a care order.
54. Third ...Re B para 105), 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. So "before making an adoption order … the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support." In this connection it is worth remembering what Hale LJ had said in Re O (Supervision Order) [2001] EWCA Civ 16, [2001] 1 FLR 923, para 28:

"It will be the duty of everyone to ensure that, in those cases where a supervision order is proportionate as a response to the risk presented, a supervision order can be made to work, as indeed the framers of the Children Act 1989 always hoped that it would be made to work. The local authorities must deliver the services that are needed and must secure that other agencies, including the health service, also play their part, and the parents must co-operate fully."

That was said in the context of supervision orders but the point is of wider application. […]

Sufficiency of Evidence and Analysis

55. The Court of Appeal has recently stressed the requirement for cogent, reasoned evidence and analysis. This is summarised, consolidated and enhanced in Re B-S:

34. [T]here must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option. As Ryder LJ said in Re R (Children) [2013] EWCA Civ 1018, para 20, what is required is:

"evidence of the lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children."

The same judge indicated in Re S, K v The London Borough of Brent [2013] EWCA Civ 926, para 21, that what is needed is:

"An assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options".

McFarlane LJ made the same point in Re G (A Child) [2013] EWCA Civ 965, para 48, when he identified:

"the need to take into account the negatives, as well as the positives, of any plan to place a child away from her natural family".

And (Re B-S) "In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby 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 is therefore chosen without any particular consideration of whether there are internal deficits within that option.

The linear approach … 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.

We need not quote the next paragraph in McFarlane LJ's judgment, which explains in graphic and compelling terms the potential danger of adopting a linear approach.

44. We emphasise the words "global, holistic evaluation". This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):

"What is required is a balancing exercise in which each option 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 option or options."

Final Care Plan and parties' positions

56. The final care plan for X and Z is to place them together with AH, who is X's maternal grandmother, under a Special Guardianship Order. They would have monthly contact with their parents, supervised by the local authority, and regular contact with Y.
57. The final care plan for Y is for him to remain in foster care subject to a final care order. It is proposed that he remain in his current specialist placement and have monthly contact with his parents and additional contact with his siblings. The Children's Guardian supports the care plans. The parents oppose them.

Evidence

58. I heard the evidence of Dr Charles Essex, Consultant Neurodevelopmental paediatrician, Dr Sian Falder,Consultant Burns, Plastic and Reconstructive surgeon, Jim Clayton, the current social worker, Dr Jepps, Consultant paediatrician, David Perkins, a social worker involved in taking a history from M and F and from M, F and F's friend MG and the Children's Guardian, Julie Ross. I also had an extensive bundle of written evidence. This included viability assessments of those put forward by the parents as alternative carers, the parents themselves and SH, the parties statements, the unchallenged written evidence of Liz Lyles, palliative care nurse, Samantha Barrett, Julie Yaqoob and Daniellle Lewis, Children's Community nurses. The documentation also includes medical reports and records of treating physicians and assessments from Humberside City Council, together with medical and social work records.
59. Dr Essex explained that Y is 5 years old and has global developmental difficulties which mean that he functions at the level of a young baby. He makes some noises and moves "a fraction" but cannot move intentionally and requires 24 hour assistance and care for all his needs. The condition is life shortening, and there is a particular risk of aspiration and infection.
60. Dr Essex gave evidence that scalded skin syndrome (sss) is caused by staphylococcus infection causing the skin layers to break down and blister. He said that he comes across sss once or twice a year, maybe having seen over 60 cases in total, and is able to give expert evidence on this aspect of paediatric dermatology because he had a particular interest in skin conditions and had undertaken dermatological training and read up on the area. He said that immuno depressed children are susceptible to sss but even in children with cancer the condition is uncommon. Staphylococcus aureus is present on many people's skin so the presence on Y's swabs taken on 18, 19 and 25 July 2013 was unremarkable in his view.
61. In Dr Essex's view it is important to note that Y was not significantly unwell when he was in hospital. He was not given intravenous antibiotics which would have been an indicator of greater infection and was given oral treatment by his peg feeding site which indicates lower infection than sss infection. Further, the site of the lesion did not spread, which he would have expected in over half cases of sss and the skin did not recover reasonably quickly when Y was treated. When he saw Y a month after admission to hospital the lesion had not healed, whereas sss would have been "significantly improved".
62. Finally, he stated that in most of the cases of sss which he had seen there were several blisters, although he had seen some cases with just one.
63. Dr Essex gave evidence that the shape of the wound was significant because it had a linear edge and he had not seen sss blisters like that. The straight edges to the blister in his opinion made it much more likely to be caused mechanically. He had therefore concluded that sss was "highly unlikely" to have caused the lesion. He stressed that the treating physicians would be very alive to sss even though it is unusual
64. Dr Essex described the lesion as "pretty sizeable" and said that any 5 year old who could communicate would complain. With Y, Dr Essex felt that Y would cry and whenever he was moved the injury would hurt. He said of the injury "It was self evidently likely to cause pain. A carer would go to the doctor not just because of the way it looked but also because of its size, the pain it would cause and the need for treatment".
65. Dr Essex agreed with the opinion of Dr Falder that the Hyoscine patch could not cause the injury. He did not defer to her opinion because, he said, he had great experience of children with disability and the use of Hyoscine patches. He said that the patches are roughly the size of a thumbnail and they occasionally cause skin to go red. The patch was placed on the neck, nowhere near the buttock lesion and he said it could not therefore cause the injury in question.
66. Asked by Mr Taylor whether liquid in a nappy could cause a straight line lesion Dr Essex said that modern nappies are very efficient and that urine is not of itself going to cause a burn. He distinguished nappy rash as more irritant than causing a breakdown of the skin as witnessed on Y. Even a "high tide" of urine would not explain the shape of the injury which Dr Essex felt was caused by something pressed against the skin or which had skin pressed against it.
67. Asked about unknown aetiology Dr Essex stated that there was nothing in the microbiology results which indicated an infection, although Y is prone to chest infections. He said that there are no retrospective tests which can show sss, and that the antibiotics given to Y were not, in his opinion, administered for sss but for a developing chest problem. He advised that a dermatological opinion at this stage could add little, and opined that the hospital had mentioned sss as a possibility because it is a very remote possibility and would be wrong not to consider it. When looked at holistically however he ruled it out and felt that the most likely cause was a thermal burn due to the timing and the straight edges of the lesion.
68. Dr Falder stated that Mr Phipps, a treating physician saw Y's wound some 14 days after admission and had considered whether it had been caused by a hot flat object, hot liquid or pooled urine. Of these possibilities a contact burn was possible because the lesion had a well defined edge which is common because the object is uniformly hot so the burn takes the shape of the object. The subsequent healing time was also consistent with a thermal burn because the burn was deep and had taken well over a month to show significant signs of healing.
69. Dr Falder's evidence was that a contact burn tends to be deeper than a scald and this was a deeper burn. She said as a rough guide a shallow (first degree) burn takes a couple of weeks to heal but a deeper burn, whether 2^nd degree with burning of the dermis or third degree where the burn is down to the fatty tissue takes much longer. In her view the photographs from which she came to her opinion demonstrated a shallow second degree burn which will scar, be very red and possible quite raised. She felt that a contact burn was more likely in Y's case because of the straight edge and appearance of a corner. There was a clear burnt/ non burnt demarcation on Y's buttock, especially in the early photographs. She had raised the possibility of the implement being an iron but the demarcation of the injury is such that she said "it is difficult to describe the implement". Dr Falder was asked why she favoured the view that this was a contact burn when the treating physician, Mr Phipps, had considered other types of causation. She responded that he was not asked for an opinion as to likely cause but was noting the differential diagnoses. His opinion was on an entirely different basis to that of her expert opinion. Although Dr Falder had not seen the acute stage of the injury she said that the large range of photographs available demonstrated features which might be missed in a clinical setting when the emphasis is on treatment.
70. When asked about the likely length of exposure to a hot surface Dr Falder explained that the depth of a burn depends on the temperature and the length of time exposed. She sees a great deal of burns which are caused in a second or so by contact with an iron, a hob or hair straighteners and accepted that a cooler temperature where there is longer exposure could cause the same burn. She was clear that the deep heat cream used by F could not cause a burn.
71. Dr Falder gave evidence that the timing of this lesion was difficult because there was no history. The original photos of Y taken by his mother showed an injury which was fresh and likely to be less than 24 hours old. On 15 July there was no injury. On 16 July at 2am there is a red mark noticed, which was consistent with a fresh burn, therefore Dr Falder felt that the known history supported her timing of the injury. She was very clear that timing of burns is an inexact science.
72. She stated that the Hyoscine patch on Y's neck could not cause a burn in another part of his body and that the sleep apnoea mat could not have caused the burn because it is cold and cannot heat up.
73. Dr Falder has seen possibly 2 cases of sss in 15 years. She was not surprised that the swab taken from Y had grown staphylococcus aureus because it is present on human skin. There was insufficient data to know whether the bacterium was the type to cause the toxin which causes skin breakdown in sss. She said "I see a lot of children with staphylococcus on their skin and they don't get sss. A child with sss will have widespread inflammation and will be quite sick". She deferred to Dr Essex's view on sss as she said that it would be a paediatrician who would diagnose it, possibly with a dermatologist.
74. Dr Falder gave evidence that she did not criticise M for calling nurses rather than taking Y to the GP unless M had known that this was a contact burn and was serious.
75. Dr Jepps, a Consultant Paediatrician who had treated Y and had the opportunity to examine the injury gave evidence. She said that she had considered a range of differential diagnoses but that the instant impression was that this was a burn from contact with a hot object because there were straight lines and clearly demarcated corners. She had ruled out liquid as the cause because that would not be a straight line injury.
76. Dr Jepps gave evidence that she had considered infection as a potential cause of the lesion. She had considered sss which can present either as a rapid spread or a localised injury. She had seen about 3 or 4 cases of the rapidly spreading presentation and about 15 cases of the localised presentation. She always has staphylococcus aureus in her mind so that she doesn't miss sss. In Y's case she was clear that he did not have sss. He did not have a raised temperature, increased heartbeat, he wasn't clammy to the touch or generally unwell and the lesion's straight edges were not typical to the sss lesions she has seen. Dr Jepps stated that if she had been concerned with a possible sss case she would have taken blood to test and given intravenous fluxocillin.
77. Dr Jepps had considered whether the lesion could have been caused by urine because the weather was hot. She had seen children who had been left 14 or 15 hours in urine but the effect was "nothing like this". She felt that if he'd been left for a couple of days in very hot weather a 'burn' might have occurred but since M and F were clear that Y was changed every 4 hours that could not be the cause. F had told her that he had changed Y at 8pm on 15 July. He said this with M present and she had not challenged what he had said. Whilst the parents had been upset and had spoken very quickly Dr Jepps said she had been careful to ascertain who was saying what and it was clearly F who was saying that he had changed Y at 8pm. The time had come from him and had not been suggested by her. She said that F had been clear that it was 8pm not 8am because it was after Y had been taken to the GP and had had the Hyoscine patch prescribed.
78. Dr Jepps was aware that Mr Phipps had also queried a urine cause, but they had not discussed it.
79. Dr Jepps had also considered the apnoea mat and any hot objects around the house. She believed that a flat surface was unlikely to make such a mark because of the corners she observed.
80. Jim Clayton, the current social worker, did not use an interpreter in his conversations with F. He said that although F's English is heavily accented his grasp of the language is "not too bad" and F speaks in English to all the children, M and X's mother.
81. Mr Clayton gave evidence that the overall picture of the couple's parenting is good, and there has historically been a fairly positive view of them as parents. Although there had been some conflict with health professionals, especially the ward staff when Y was admitted, he had had full cooperation with the family. He said that the risk to all the children was unmanageable if placed with M and F because he did not know how the burn had been caused and what triggers there may be to such a serious injury. He did not feel that it was likely to be deliberately inflicted and said that the most likely cause in his mind was that it was an accident. He had gone through all the possibilities of accidental causes with M and F, who, he said, had remained consistent in saying that the Hyoscine patch had caused the burn, and felt that they had ample opportunity to tell him what had happened. The care plans for the children were based on a finding of non accidental injury to Y and a high level of risk as a result to all three children as a result.
82. He described M as a "fierce advocate for Y" and that she had strong views about him being cared for at home rather than in respite care or in a hospice towards the end of his life. He had seen M handling Y and did not have any issues about her handling which was confident and firm. He was aware that others on the ward felt that M was too rough.
83. Mr Clayton had considered whether the risk could be managed by putting in the intensive support team to help the parents but this would be of limited duration and since nothing was accepted as deficient by the parents there was little to work with. He said "They can't be there 24/7 monitoring the situation". He had considered whether it was possible to return X and Z to the parents but felt that the risk was severe to all 3 children. He accepted that Y attending school in future would be a protective factor and that Y is monitored consistently by professionals because of his condition.
84. Mr Clayton gave evidence that Y's current carers are being assessed as long term carers and it is likely Y would stay there in the longer term. He said that caring for Y is a "massive task" and that M had shown dedication in the way that she had cared for him. Y has a life limiting condition and both M and F worked as a team to care for him. He said that he was sure Y would want to be with them if it were safe, and that there were limitations to foster care even of the very high standard he is currently receiving.
85. Mr Brown suggested to Mr Clayton that it is important to balance Y's quality of life with the quantity of his life. The social worker agreed that whilst M may be prepared to take a small risk of infection by giving Y 'tasters' of food so that he could enjoy the experience, a professional foster carer could not act in such a way. He gave assurances to the court that M and F would continue to be involved in end of life planning for Y and in any significant medical decisions, rather than leaving the decision making to the foster carers. He had not spoken with the foster carers about how they would keep M and F informed of medical appointments and decisions. When asked about Y's current end of life plan he said "I don't know the plan but there is one in place. I'm not aware that it's been discussed with M".
86. Mr Clayton acknowledged that the starting point is always to keep siblings together, which would be possible if all three were returned to M and F but was not possible on the LA plans because AH could not care for Y. He said that contact would take place and that "…balancing the risk it's the best we can do".
87. Mr Clayton's assessment of AH was that she had had a reasonable relationship with F in the past, and has had good contact with X and Z. In his view they could move to her "in a matter of days".
88. Mr Sheikh, the initial assessment social worker, gave evidence that he had attended the hospital on 19 July to complete the initial assessment. He spoke with F and his colleague spoke with M. He took handwritten notes of the conversation which was conducted in English. He was happy to proceed without an interpreter although he was aware that English is not F's first language. Mr Sheikh said that F may struggle with complex English, for example technical terms, but his conversational language skills were good enough to describe the history of events. He said "He answered the questions and I understood his answers. I don't recall him using words like 'maybe'. He stated that F converses with M and the children in English. F had told him that he had seen the mark for the first time at 8pm on 15 July.
89. Mr Perkins, who was also one of the initial social work team, gave evidence that he had spoken with both M and F together and separately about the events of 15 July. He had coincidentally met F in 2011 in relation to other proceedings. He recognised him when he saw him. Both in 2011 and in 2013 he had spoken to F without an interpreter. In 2013 he had asked F if he would like an interpreter present and he said no. Mr Perkins said that in general he was confident that they had communicated well and that F had wanted to talk. He said: "If he hadn't wanted to talk we wouldn't have had such extensive notes!" He had not met with Mr Sheikh or spoken to him about the case. Mr Brown suggested to him that communication can't have been so good because he had noted that F had said he had cleaned a baby's bottom with his tongue. Mr Perkins said he had been very surprised when F had said that but that it was metaphorical which is why he had used the phrase "lost in translation". Mr Perkins said he was aware that M had said they had gone to Leeds that day but F had not, and he was trying to clarify the chronology.
90. M gave evidence that she is pregnant. She said that she has been in a relationship with F for a long time but initially she lived in Humberside and he lived in Bradford. They met in 2008 through an internet dating site. She thought Y was about 3 months old at the time. Y's father was Kurdish and F is Kurdish but she said that she had not met F before.
91. She said that F would come across for weekends and they had eventually decided to live together, following which she had moved to Bradford in June 2013. They had obtained a house across the street from F's home and the plan was for them all to live together at some point. In 2012 they had spent most of the summer and most weekends together. M said that she trusts F with the care of all the children, including Y, and that they had settled into a routine. She said that they speak English at home but she does have to repeat some things.
92. The normal routine is that F would take X to school and when he returned he would start to deal with Y and Z whilst M remained in bed until 10am. F would prepare breakfast. The couple would share the cooking. Generally F would put the children to bed unless he was going out which happened 2 or 3 times per week. M said that she doesn't sleep properly, often not going to sleep until 5 am when she has gone to bed at midnight. She listens to the radio. She said that whilst F does much of the daytime care for the children she undertakes the overnight care, listening out for Y on his baby monitor and checking the nappies 2 or 3 times after midnight. She felt that Y preferred F to undertake tasks such as showering him.
93. On 15 July a friend had taken X to school and the family were up early because Y was going to the GP. F drove them to see Dr Woods who had examined him without his nappy. When they returned to the car it was hot so M opened the windows and doors to cool it down. She said that when they got into the car it was cool enough. It was close to dinner time when they left the hospital and they had been in the car park for a "good" 45 minutes. In cross examination M said that in fact it had taken about 10-15 minutes for the car to cool.
94. M said that F drove to his friends shop. He went into the shop and she stayed in the car with Y and Z. In his absence M changed and fed both children. She laid Y on the back seat to change him. M denied that she was unhappy at being left outside the shop with the children in the car on a hot day for a long time. Mr Swiffen stated that M's statement had suggested that she had gone into the shop. She said that it may have been F who had told her that his friend was in the shop and said "I wasn't fully happy. I was a little bit cross. I didn't say anything while the kids were there." Mr Swiffen asked her why she thought F had initially said that they hadn't visited anyone that day. She replied "Maybe he forgot or he didn't have chance to see his cousin." He also asked her why F had said she had come into the shop if she had stayed in the car. She said that she must have forgotten.
95. M raised the possibility that the heat in the car may have caused the injury. Mr Swiffen asked her if she had any worries at the time about the heat of the car seat would she have laid Y on it and she said that she would not. She said he was on the seat for a very short time and the windows in the rear of the car are dark glass which keeps the sun out.
96. Mr Swiffen asked M what they were doing between 1.30pm and 3.45pm as the time was unaccounted for. M responded that the traffic may have meant that the journey had taken longer on that day.
97. M stated that because they would be too late to pick X up from school she had asked a friend to pick her up. When they got home F had stayed there about 20 minutes and then had gone out at some time between 5pm and 6pm.
98. When questioning F, Mr Swiffen suggested that F had been clear with several people, including Dr Jepps, Mr Sheikh, Miss Nicholson and Mr Perkins that he had changed Y's nappy at 8pm on 15 July. F said "There might have been a misunderstanding. I didn't quite understand and in addition I was out that evening to visit a friend. I didn't ask what date they were asking me about".
99. When asked by Ms Kemp what X had had for her tea, M could not recall. She said that Y was put in his "peapod" seat in the living room where he stayed until about 6pm. There was no heat source in the room where Y was and she filled the paddling pool with water for X. She supervised X and Z in the pool and gave Y some juice at about 6pm. He remained there until about 8pm when she had given him his milk and his medication and completed his exercises and a nappy change. M stated that she put Z to bed at about 7.30 and X and Y to bed at about 8 pm. She said "I took him (Y) up. He was fine". She thought she had checked him again at 10pm and midnight.
100. Mr Swiffen asked F why he had told Mr Sheikh that he had noticed some redness when he changed Y's nappy at 8pm. He said that he had not said that but in fact had said that he had not seen it until 2am. Any references to changing Y at 8pm that evening were misinterpretations of the fact that he said he would generally change Y's nappy at 8pm. Mr Swiffen also asked F why he had said he had seen redness to Y's bottom when he took Y out of the peapod to which he replied "I didn't mean his bottom. I meant his tummy which was sore."
101. F said that he had taken the children in from the car, had a short rest and then gone out. He had been to the barbers and to a restaurant where he had seen friends and had a meal. It was Ramadan but he had dropped his fast that day and when he had left the restaurant at about 10pm he had taken two friends home and called to see his friend Mohammed who was drinking alcohol before going home after midnight.
102. Mr Swiffen pointed out that until the care proceedings started F had been clear with everyone that he had been in all night and had cared for Y but that this had changed to going out once the proceedings were issued. F said that he had installed more CCTV cameras when the proceedings started and had then tried to remember what had happened.
103. Mr Swiffen asked M why she had said she had bathed Y in her statement. She said "I might have said that but I didn't", and then said that in fact she might have bathed him but she was really tired. Mr Swiffen asked M why F had initially said that he had changed Y at 8pm and had later changed his story to say that he had gone out. M suggested that F may have been confused.
104. M told me that F had returned at about half past midnight. She said that when F came home he did not come straight to bed. There are baby monitors in each room of the house and she heard him make a cup of tea and she could hear Y gurgling happily. When F came to bed at about 2am "…he possibly said something about Y's bottom but it didn't register really. He said he had put Sudocreme on it." She said that she didn't ask him about the mark. Mr Swiffen suggested that that was because she was aware of the mark already. She denied that. She said that the next day was just a normal day. F took X to school and returned to sort Y out at which time he called her to come downstairs because he had seen something. He said it was worse than last night.
105. M stated that when she saw the mark in the morning she rang the medical team for advice. Mr Swiffen asked her why she had told them that this was a reaction to the Hyoscine patch – which was on his neck – when in fact he had a blistered bottom. M said that she couldn't tell the team that it was a burn because she didn't know that it was. She said that she had said Y wasn't in pain because she hadn't noticed that he was.
106. Mr Swiffen asked M why she had taken photographs of the injury. She said "It wasn't there on the Monday. I didn't want to be accused of doing this. She had not explained to F why she was taking the photographs. He asked why M had not returned the calls to the nurses at the medical team or taken Y to the GP which was "round the corner". M said that she had asked the nurses to come out and didn't know why she hadn't gone to the GP. She was asked why she had refused to take Y to the GP when the nurse had suggested it and she said: "I didn't. I asked for someone to come to the home. It does take me a while to take their advice."
107. M told me that it's not possible that F had caused the injury. She questioned in her evidence whether since it was a hot day the leather seats had caused the burn but was satisfied that the seat was not too hot. She said that her relationship with F was good, although like any couple they have arguments. She gave an example of F being 10 minutes late for Z's birth but confirmed that she is not concerned about his fidelity.
108. Mr Swiffen asked M about a conversation she had had late at night in hospital with a nurse on the ward on 3 August 2013 when she had spoken about F "playing away". M's reaction was that a woman she knew in Humberside had said that F had had sex with her and she had had a baby. She said "She's a liar". Mr Swiffen explored this with M and she said that the woman used to babysit for her. F had told her that he didn't have sex with the woman and she said "She's had sex with most people in Humberside". They had received a letter alleging that F was the father of the child after she had moved to Bradford and she had read the letter to him. A DNA test had been arranged but had not been done and she had not asked F why it had not been undertaken. Miss Kemp suggested that there was a long history between F and the woman in Humberside which had caused tension. M agreed that she had seen a copy of a Daytime television show where both the woman and F had featured in respect to difficulties in their relationship.
109. F explained that he had been on a Daytime television show with the woman from Humberside before she became pregnant. He said that he had not had a DNA test because his GP doesn't do them and that he had told the social workers involved with that child that he would look after that child if nobody wanted it. In cross examination F said that he had declined to take the test.
110. F told me that he had been married and had had a child who he had had to leave. He had also cared for a refugee child. Mr Swiffen asked F how old the Humberside baby is. F said he thought the baby was 1 or 2 years old, and that it was older than Z. He accepted that he had had a sexual relationship with the woman, but not at the relevant time and said that the matter had not caused any difficulties with M.
111. M said that she does not swear at the children and she denied calling them little shits. She said that nurse Lyles was mistaken when she described M as aggressive and she may have misinterpreted the fact that she had said "He's had a shit". F's evidence was that in fact it was he who had smelt the nappy and said "He's had a little shit".
112. M also denied that she had sworn at the children in front of Nurse Yacoub and denied saying "It's the only language they understand". F also said that M does not swear at the children. She also denied that X often looked after Y when he was having a seizure as observed by Ms Barratt. She said "I've told her not to. She does it once in a blue moon".
113. Mr Swiffen asked M about Y's pain reaction, and suggested that she must have realised that Y was in pain. She said "he jumps at the slightest little touch". He pointed out that M had told the nurses that she had not given Y any pain relief. She said that if she had been advised to give it to him she would have done. She could not recall Y being in visible pain as Nurse Lewis removed the dressing and she denied that she had been reluctant to take Y to the hospital. Mr Swiffen suggested that the only reason Y was taken was because F had said he should go. M denied this.
114. Mr Swiffen asked M about the apnoea mat, and asked her why she had said that at times it had been too hot to pick up when in fact it has no heating element. She said that it had got hot on occasions and that she had 3 mats and only one had been tested.
115. M said that despite the evidence she did not "fully" accept that the injury was a burn caused by contact with a hot object. She said "I don't see how it could have happened. I still say it's a reaction to the Hyoscine patch" She said "Nobody has burnt him and nobody would have put a hot object on his bottom. I haven't hurt him I love my children."
116. F said that he had not hurt Y and he didn't think M had. He said he was unable to say whether the cause of the lesion was an accident or not.
117. F said that his first language is Kurdish and that he is unable to read or write in English. He gave evidence through an interpreter. He agreed that he speaks to SH, M and the children in English and that he had not had an interpreter when he had appeared on the Daytime television show. He said that his English causes him difficulties when he has appointments which involve more formal language. He did not require an interpreter when he visited the GP but had struggled when he took his driving licence exam, taking 32 attempts to pass it. He explained that he had been ill when Y was in hospital and he had concentrated on Y when he was at the hospital, rather than on the conversations with nurses and doctors. He agreed that he had attended private law court proceedings in Bradford in respect of X and participated without an interpreter. He said he didn't need one because "The solicitor explained everything".
118. Mr Swiffen asked F why he had asked to be attached to a heart monitor at the hospital. F replied that he has a cardiac monitor of his own but he had forgotten it and simply wanted to check his blood pressure. Mr Swiffen asked him why he had changed his story. He said that the information from Social Workers was a pack of lies and said that Jim Clayton was racist because he had refused to place the children with an Asian friend.
119. F denied that there had been any stresses and strains in the home when M had moved in and he had taken on the burden of the daytime child care. He said he had not been frustrated by it but had wanted to look after the children. He explained that his father had been killed when he was 9 years old and he had cared for his family. The fact that it was Ramadan had not made a difference to him either, in fact he felt that it was better to keep busy. He denied that he was ever aggressive and said that M had taught him how to deal with Y's seizures and he had done it how she had shown him.
120. F accepted that he had been in a very emotional state when Y was in hospital. When told M had said he appeared to be scared he said "Why should I be scared? I had compassion for the kids. I told my mum what was going on. She lives abroad". He said that he was acting strangely because he was worried. He had asked M what had happened when he was out on the evening of the 15^th and whether anyone else had been to the house, but denied discussing with her what to say about what had happened. He had asked her about why people were saying it was a burn to Y's bottom and she had talked about reactions to drugs and the patch. He said "I'm not sure who to believe" but was clear that if it was a burn it would be M who was responsible as he had not burnt Y. F produced a bundle of internet printouts from his jacket which were about reactions to drugs and Hyoscine patches. They were in English and he said that M had given them to him a couple of weeks before the hearing. He said that when he sees the documents he believes M but that he believes the doctors as well. Mr Swiffen pointed out to him that they were dated 8 December 2013 which was the previous Saturday night, in the course of the proceedings. F said that he didn't know when they had been printed.
121. F said that he had installed CCTV in the home when Y was in hospital so that he could show nothing would happen to the children.
122. MG said that he had known F about 10 years. He said that since he works and F doesn't he sees F once or twice a week and that on most Saturdays they go to a particular restaurant for a meal. He was aware that X is not living with the family but said that F had not given him the reasons other than to say that one of the children had been unwell and social services had taken the children.
123. He said the issue of him giving evidence had only come about recently but he was very well able to recall what had happened because it was the fifth day of Ramadan and he hadn't fasted that day. He had not discussed the day at all with F but had recently been contacted by a lawyer to ask him to attend court. He recalled F going to the restaurant on 15 July and offering him a lift home. The restaurant had closed at 10pm and they had chatted for an hour. He checked his watch when F dropped him home and it was 11.15pm. He particularly remembered the time because he had an appointment the next day. He also told me that a man called "Uncle Ibrahim" had also been given a lift home.
124. Julie Ross, the Children's Guardian, said that she supported the Local Authority plans in the event that I find that the injury is a non accidental injury. She said that the injury is serious and in her view is equivalent to a child with broken bones. In her assessment the risk of harm would be too great to return the children to M and F. She said that if one of the parents is exonerated then that person should be assessed further, although she was concerned that neither M nor F seemed to be open to the possibility that this could be non accidental injury.
125. In her assessment it is not possible to manage risk when there would appear to be deliberate infliction of injury. She felt that the evident stresses and strains, including money problems, infidelity and child care responsibilities taken together with the events of the day were insufficient to be regarded as triggers to such serious actions.
126. Ms Ross said that she had hoped an accidental cause for Y's lesion would be found. M and F have cooperated with her and they appear to have a loving relationship with the children, however on the balance of the evidence she was concerned that this was a serious injury in circumstances where the M and F had told differing accounts and therefore the ideal of reunification was not possible. She could not envisage any support package which could be put in place to enable the M and F to care for the children.
127. Ms Ross said that she agreed with the care plan for Y. In her opinion there needs to be a care order to share PR with M and to place him in foster care, hopefully with his current carers who are nurses rather than in residential care. She did not feel that adoption was a realistic option for Y, especially since it is important to maintain sibling contact, it would mean another change for Y and it would be unlikely that an adoptive home would be found for a child with such profound life limiting difficulties. There is of course a risk of change of placement with foster care however Ms Ross opined that retention of family is important for Y. She was concerned that the LA must involve M with major medical issues and end of life decision making, and said that it would be important for M to attend appointments with Consultants but not routine appointments.
128. Ms Ross also supports the care plan for X and Z. Although Z is not related to AH he has been with X since his birth and they have a good attachment. Adoption would mean separation from his half sibling and would end contact with his family. Although he is young Ms Ross assessed that the benefits of a family placement outweigh placement for adoption. X will be placed in a home she knows with a half sister and she has a good attachment to AH. Ms Ross was confident that AH would promote parental contact and sibling contact. She said that in her view a care order is not necessary because a special guardianship order would support the placement and would mean that the children would not have a statutory parent, but she supported the making of a supervision order to assist with contact issues. Ms Ross had never used an interpreter when speaking with F: "His English is heavily accented but is very good".
129. Ms Ross expressed surprise that X and Z remained at home without proceedings even though Dr Jepp had said from the outset that this was a contact burn. She felt that it would have been more prudent to seek removal of the children whilst enquiries were made. On receipt of the second opinion the LA had followed that course but it was some weeks after the injury.
130. Ms Ross said that the infliction of a burn in these circumstances would point to deliberate infliction rather than loss of control. She said that even though the parents otherwise seem to be loving and caring Y is defenceless and can't cry. In her opinion to burn him and then not give him pain relief, if that's happened, was cruel. Although this was a "one off" it was sufficiently significant to mean that all three children were at risk of serious physical harm even with parents who appeared to be affable and caring.
131. Mr Taylor suggested to Ms Ross that her view had been obscured because she was so shocked by the injury and that she had not fully considered how the case could be managed. Ms Ross said she had looked for an accidental cause and had wanted all options to be explored, including the apnoea mat, the Hyoscine patch and the question of a skin condition. She agreed that it is preferable for any child to be with his parent if it's safe but said "In this case, it isn't." More inconsistencies had been uncovered during the course of the hearing which was of concern for her.

Submissions

132. All advocates produced very detailed and helpful written submissions which I have read very carefully. The submissions were approved by their clients and I shall not set them out here but I do commend each for the effort put in. The advocates also agreed a short summary of applicable law. This again was very helpful and enabled them to concentrate on the factual matters so important to their clients. I am grateful to them all. They also had the opportunity to expand orally.
133. Mr Swiffen submitted that neither M nor F have provided any explanation for the burn and neither has indicated that anybody else could have been responsible for causing it. He said "…absent of any explanation, on the balance of probability this burn was non accidental, caused by a hot object being placed on Y's buttock, that it was inflicted by M or F". He also submitted that whoever was not the perpetrator of the burn failed to protect Y from sustaining this injury and that there has been collusion between the parents to try to cover up what has happened to Y, they both knowing the real cause of the injury. The LA do not suggest that I can identify the actual perpetrator of the injury, Mr Swiffen submitting: "The local authority has carefully considered whether it is possible to determine whether there is sufficiently cogent evidence to determine which of the 2 parents is the perpetrator. Its conclusion is that neither parent has given a truthful account of what has happened to Y. Both have attempted to cover up what has happened. It is impossible to identify the perpetrator on the evidence, but the court can conclude it was one of the two of them."
134. Mr Taylor urged me not to come to a finding against such caring parents. He said that grossly cruel behaviour is very unlikely from such an obviously caring mother. M has always been very loving towards Y and has ensured that he received the best attention. She had done "a wonderful job" and all were agreed that she loves her children very much. M has worked with the Guardian and the social worker and has cooperated fully with the proceedings. Mr Taylor made it clear that whilst matters had been raised about F's conduct, M did not wish to put forward a positive case against him. On the question of pain relief Mr Taylor submitted that M and F had administered Calpol to Y and had applied Sudocrem to the lesion, which was entirely appropriate.
135. Mr Brown echoed Mr Taylor's submissions that this was not a case where the parents blamed each other. F did not put forward a positive case against M, but stressed the positives about himself to demonstrate that it is unlikely to be he who inflicted the injury.
136. Mr Brown urged me to ignore the references to F's behaviour in leaving his first wife and child and towards the refugee child he cared for when travelling to the UK, as irrelevant to Y. He said that recent evidence shows that F was caring very well for these three children and has acted always in their interests.

My assessment of the professional evidence.

137. I found the evidence of Drs Essex, Falder and Jepps to be helpful. Each gave evidence in a balanced and professional manner and all had carefully assessed all the available evidence. None displayed "expert arrogance" and they were willing to discuss all the possibilities, however far fetched they may have seemed. Dr Essex impressed me with his willingness to concede that he should have included more on the differential diagnoses in his initial report and have been less dismissive of the suggestions made about impetigo and other dermatological conditions in his written responses to questions raised on behalf of the children. All maintained their professional opinions that the lesion to Y's buttock was most likely caused by a thermal contact burn and gave well reasoned explanations for the opinions they gave.
138. My overall concern about the evidence of Mr Clayton was that he had been over simplistic in his assessment of risk and in respect of causation. Mr Clayton clearly wanted there to be an accidental cause for the lesion and he was not as robust in challenging the parents during the assessment as he might have been. He seems to have accepted the assertion that the parents were very good carers without delving any deeper. He did not really investigate the strains in their household, including the alleged infidelity of F as evidenced by the enquires made by Humberside, nor did he analyse the impact of the enormous changes in location, routine and roles which had been implemented during the few weeks before the admission. His evidence was flawed in this regard.
139. I found the evidence of Mr Perkins and Mr Sheikh to be measured and balanced. They had not colluded and gave insightful and independent views about the version of events given by F shortly after admission.
140. Ms Ross gave clear, well considered and analytical evidence. My only criticism of Ms Ross evidence was that she had not given serious consideration to loss of control and had concentrated on an aspect of premeditated infliction of harm. It is incumbent on professionals to analyse all options. On balance however her evidence was otherwise very helpful.

My assessment of M's evidence

141. Given that M's care of Y had impressed some of the medical professionals in Humberside, I was surprised by her attitude towards the medical profession when she gave her evidence. I assessed her as someone who has little regard for the views of others if they do not coincide with her own, and it seemed clear that the "tenuous" nature of her relationship with some was due to this.
142. Whilst perfect parenting is not required of anyone, there were indicators in this case that M does have a short temper with the children. I reject her and F's evidence that she does not swear at them. The evidence of Nurse Lyles there being lots of swearing in the home and the children being referred to as "little shits" is consistent with the evidence of Nurse Yaqoob that M was swearing at the children and said "this was the only language that the child responds to". The explanation that the parents were simply stating that Y had had a "little shit" was frankly unbelievable. Similarly, I accept that on occasions M let X do some of the caring for Y, as observed by professionals.
143. M's evidence about what happened on 15 and 16 July was inconsistent and lacked credibility. She was unable to account for all her movements from leaving Dr Woods surgery late morning, travelling to Leeds, which is usually a 15 - 20 minute journey, to see F's friend to then returning after a 10- 45 minute visit to Leeds at about 4 pm. She gave varying accounts of what happened when they arrived home. In her oral evidence and in the core assessment she said she went to bed at 8.30 pm. In her Children Act statement she said she went to bed at midnight. In her oral evidence she said that at 8 pm she gave Y his milk and medicine and changed his nappy, then took him straight to bed, checking him at 10 pm and midnight. This was the first time she had mentioned checking him at 10 pm. In the core assessment M stated that F came up to bed at 1 am and he then got up when he heard Y grunt. In her Children Act statement she said he had come to bed at 2 am. Finally, in the core assessment M said F first showed her the mark at 9.30/ 10 am the following morning but in her Children Act statement she states he told her when he came back to bed in the night that there was a red mark and rash on Y's buttock and body and that he had applied Sudocream to it.
144. Many people are inconsistent when they give accounts of what has happened in stressful situations. In this case however I find that M's evidence goes beyond normal forgetfulness. At times during cross examination M was positively evasive. I have borne in mind that people lie for many reasons and that because they lie about one thing does not mean that they lie about another. In my assessment however M has deliberately tried to hide what happened to Y. I do not know her motivation for doing so. It was particularly telling that M could not explain why she did not follow her normal routine of checking Y every hour or couple of hours during the night. On one version of events she was in bed from 8pm until 9.30am without regularly checking on him
145. M told me that she photographed the lesion when she saw it in the morning, but has been unable to explain why. She suggested to the nurses that the lesion was akin to an allergic reaction when it was absolutely obvious to anyone who saw it that it was nowhere near the place where the Hyoscine patch had been and it was clearly blistered and very sore. She even said in one telephone call that the patch had pulled the skin off which was plainly untrue. Mr Swiffen submitted that careful analysis of the nurses' evidence indicates that M was "far from proactive in obtaining medical attention". I find that M failed to return numerous calls from Miss Lyles on the 16^th and that she did not call the hospital 4 or 5 times that day because there is no record of any calls from her being received.
146. Parents are often put in a difficult position when allegations of non accidental injury are made and they are asked to explain the cause. I realise that a parent in that situation may put forward all sorts of explanations which are later discredited. I am always willing to give such parents the benefit of the doubt and am very slow to criticise them for their actions. In this case however M has gone significantly further: In respect of the apnoea pad in her statement of the 11th July she said "the mat can become very warm and on some occasions if left on, it has been too hot to pick up." The engineer's report indicates the pad cannot generate heat. M's evidence that there were other pads which she used which may mean the wrong pad was tested was deliberate deceit. M has always referred to the pad. The pad was given to the police. The pad was tested. I find that she was engaged in an active act of deception designed to cover up what happened to Y, and that the reason for that deception is because she is hiding the truth, whatever that might be. This goes much further than slight exculpatory deception. I find her evidence to be a complete tangled web of deceit.

My assessment of F's evidence.

147. Many parents give evidence through an interpreter. I am used to hearing evidence given in that way and do not draw inferences from it. Even where a person can speak some English the stress of a court situation can mean that they use an interpreter to ensure that their evidence is what they want to say. In this case F has used an interpreter, and I make no criticism of him for doing so. The reason his ability to understand and speak English is relevant is because he has raised it as an explanation for the fact that until the care proceedings started he told people that he was at home on the night of the 15^th and since then he has said that in fact he went out. He states that those who recorded or recall the former position misunderstood him and should not be believed because he did not have an interpreter.
148. F has had three relationships with English women. He has spoken with them and his children in English, and in his statement F describes his conversational English as being good. In the private law proceedings relating to X he engaged with professionals, including Mr Perkins, and with the court without an interpreter and in these proceedings he has been asked whether he wanted an interpreter (by Mr Perkins) but has not requested any interpretation until the hearings. Both Jim Clayton and Julie Ross have said that they have had no need to use an interpreter when conversing with him, and F appeared on the Daytime television show without an interpreter.
149. I was satisfied on the evidence of Dr Jepps and the social workers who took a history from F shortly after Y was admitted, that the information that F was at home on the 15^th July 2013 came from him. He was able to give them considerable detail. The detail had to come from him, it was not something they could have made up or got from elsewhere. Dr Jepp in particular is meticulous about her note taking and attributing what is written to the person who said it. I find that at the time F understood what was being asked and what he said in response.
150. That of course leaves me with the issue of whether F was at home that night or not. He has told two very detailed and very different versions. At least one must be a lie.
151. In the core assessment F said that on the 15th July they had not visited anybody, but this was changed in his Children Act statement to include a trip to see a friend in Leeds. In that statement F said that they had returned home in the early afternoon, which changed in oral evidence to around 4pm.
152. On 18 July he told Dr Newbiggin that Y was "washed and dressed Monday night by dad". On the same day Dr Jepps noted F " …confirmed he had changed Y's nappy at 8 pm on Monday and 2 am early Tuesday morning." The next day he told Mr Sheikh that he had "…changed [Y] at 8 pm and noticed red to buttock at that time but not as much as it is now. Coughing up phlegm at 2 am next, when changed nappy saw a big massive red mark...". He maintained this position to Ms Perkins on 8 August, saying that he put Y to bed at 8-9 pm, taking him out of his pea pod and noticing a sore on his buttock.
153. The alternative version is that he went out at about 5pm and was with friends until the early hours of the next morning. This is born out by MG, who I have to say I found to be a very unsatisfactory witness. He had an apparently detailed recollection of 15 July 2013, despite not being asked to recall what had happened for months. His version of the night's events was almost word perfect with F's, yet he was vague on other details. F could give minute detail about the evening whereas he was very sketchy as to what had happened during the day.
154. Mr Swiffen submitted "The court is left with 2 diametrically opposed accounts. One is a deliberately false account but it is very difficult to know which. Did he see the injury at 8 pm or at 2 am ? Why lie about when he first saw it ? It is very difficult to know why he has committed such a lie on such a grand scale. Either it is a part of an attempt by him to distance himself as a possible perpetrator of the injury or it is part of a collusion with the mother to try to cover up what has happened. Either way this lie should profoundly affect the court's overall view of his credibility." This submission encapsulates the problem of F's evidence about the events of 15 and 16 July.
155. Sadly, this rather stark illustration of F's lack of credibility was not isolated. It permeated his whole evidence. Even the simple question of whether he had any other children was met with obfuscation and attempted deception. His feigning belief that the question was about children in England was unbelievable, as was his lack of candour in relation to his relationship with the woman in Humberside and his failure to obtain DNA evidence. His attempt to bolster M's claim that she had not called the children little shits by suggesting he had said Y "has had a little shit" was further evidence of his willingness to lie.

Collusion.

156. I am left in no doubt that both parents have lied and lied extensively. It seems clear to me that they have colluded with one another to hide the truth from me. The collusion runs throughout their evidence, with clear examples such as F's attempt to deflect criticism of M for denigrating the children and M supporting F's story change on the basis that he had been misunderstood. I am satisfied on the evidence that M and F are covering up. I do not know who is covering for whom. I do not know why they have both lied so extensively whilst claiming to love all three children and to put their needs above all else.

Findings on disputed issues

157. I wish to make it plain that I have not looked at the issues in separate compartments or in a linear fashion but have considered them as part of the overall evidence in the case. I separate them out here only for clarity and to demonstrate my reasoning and analysis. Throughout I have borne in mind that these parents have been observed to be normal loving and caring parents by several professionals.

Was the lesion caused by an allergic reaction to a Hyoscine patch?

158. The alternatives put forward by the parents have been carefully considered by the experts. The explanations include an allergic reaction to medication, in particular the hyoscine patch. This explanation is categorically refuted by the experts because the patch was in a different location to the site, at most it could cause reddening to the skin, and it could not cause a burn injury. I accept the expert evidence on this issue and find that the patch did not cause the injury to Y's bottom, nor was it caused by a reaction to any other medication, deep heat cream or sudocrem..

Was the lesion caused by a thermal burn incurred by placing Y on an overheating apnoea pad?

159. I agreed to the testing of the pad by an expert because M had described the pad as becoming too hot to handle on occasions. Irrespective of her continuing to use such a pad for Y in the knowledge that it could overheat, it seemed essential to find out whether the pad could provide a potential accidental explanation. The testing revealed that it could not heat at all. It cannot have caused the injury to Y's bottom and I find as a fact that it did not.

Was the lesion caused by scalded skin syndrome?

160. In their evidence, Ms Falder and Dr Essex felt it was extremely unlikely that sss was responsible for the injury. It is an extremely rare condition, but Dr Essex indicated he encountered around 2 cases of it each year and Ms Falder and Dr Jepps had knowledge of the condition. I have borne in mind the fact that Dr Jepps stated in her oral evidence that she had considered scalded skin syndrome as a differential diagnosis when Y arrived on her ward. She said that had she thought was a factor she would have required samples to be taken for testing. Dr Jepps had the benefit of seeing the lesion at the time. She was struck by the straight edges and the corners that were apparent on the edge of the lesion and was clear that the appearance was not characteristic of the syndrome
161. In addition, Y did not present with a raised temperature or feeling unwell, and M confirmed he had not been ill. Dr Jepps was clear that he would have been unwell if he had sss and would have required intravenous antibiotics, which he did not. Dr Jepps also saw photographs of the lesion taken by M earlier in the week, which confirmed her opinion that Y was not suffering from sss because the lesion had not grown in size in the course of the week. The burns unit at Pinderfields did not test Y for sss. Again, it is likely in my view that they would have tested for it had they felt it was a potential cause, although I do not place any weight on this as it is an assumption.
162. Dr Essex agreed entirely with Dr Jepps and he highlighted the same issues which led him to the conclusion that this was not sss. He said "I consider it very unlikely. Although this condition causes blistering and the skin can peel, it does not cause such straight edges to the lesions and does not look like the lesion shown in the photographs. The child is usually more overall unwell than Y is described as being at the time."
163. Dr Essex has a particular interest in the field of dermatology and based his conclusions both on his considerable clinical experience as well as the information from text books and studies. The written material from the texts provided by the experts confirms " recovery without scarring is usually within 5-7 days with or without antibiotics ..." , whereas Y's injury was still not completely healed in December 2013. Finally, Ms Falder ( whilst deferring to the paediatric opinion ) stated "I think this diagnosis is unlikely, particularly in view of the regular edges of Y's wound." In her evidence she has identified the same issues which had been identified by Jepps and Essex in coming to the conclusion scalded skin syndrome was "very unlikely".
164. I have considered the expert evidence very carefully and I am satisfied on the evidence before me that is very unlikely that the injury to Y was caused by sss because it had been considered as a differential diagnosis by the treating physicians, the lesion has uncharacteristically straight edges, Y was not significantly unwell and the lesion didn't heal in the way a patient with sss recovers.

Do I have sufficient expert evidence to determine this issue or should I adjourn the case to enable the instruction of a Consultant Dermatologist?

165. The Children's Guardian did not pursue an application for further evidence on this issue when she had heard the expert evidence in the context of the evidence as a whole. Neither Counsel for M or F made a formal Part 25 application giving details of any expert who they submitted should be instructed. Nonetheless I have considered whether I feel that any further evidence is "necessary" and I have concluded that it is not. Firstly, because diagnosis of sss does not always require the referral of a child to a dermatologist, as it is usually made by the treating paediatrician. Secondly, because there is no "retrospective" test for sss which could be undertaken now. In addition I have the evidence of Dr Jepp which is credible and unchallenged that she considered the diagnosis at the time and finally I have the expertise of Dr Essex who has a particular interest in paediatric dermatology and who has seen over 60 cases of sss. Their expertise is sufficient to guide me in this area, perhaps greater than some dermatologists. None of them suggested that any further testing, for sss or any other cause, or further opinion was necessary and for these reasons I concur with their view.

Was the lesion caused by a thermal burn and if so how?

166. I have considered evidence from the treating team at Bradford Royal Infirmary, Dr Jepps and Dr Pye, information from the treating team at Pinderfields, including Mr Phipps a plastic surgeon and the independent paediatric overview given by Dr Essex together with the independent report of Ms Falder, who is a burns specialist.
167. All the medical evidence indicates that this was, on balance, a thermal burn. The measured, balanced and careful evidence given by the medical witnesses was cogent and compelling, and I accept it in its entirety. I find that this was a burn from contact with a hot object because there were straight lines and clearly demarcated corners to the injury, which liquid would not cause. The shape of the wound is significant because it had a linear and straight edges to the blister which means it is much more likely to be caused mechanically. This burn was described by Dr Essex as "pretty sizeable" and I accept his evidence that any 5 year old who could communicate would complain. Y of course cannot complain in that way, but I accept Dr Essex's evidence that Y would cry and whenever he was moved the injury would hurt. I find that any carer of Y would know from his facial reactions and his overall demeanour that this burn hurt, particularly when he was moved.

Was this an accidental or non accidental injury?

168. The simple fact that this was a thermal burn does not prove that it was caused non accidentally. Y's circumstances mean that he could not have moved himself onto a heat source nor put one on himself. There were no heat sources in the car when the parents left Dr Woods surgery, especially since the windows in the back are of darker glass and because M cooled the car down before they set off. There were no heat sources in the room at home where Y was placed in his pea pod when they arrived home and nothing with which X could have picked up and placed on her brother to cause the injury in play. Y wasn't exposed to excessive sun and his nappy was regularly changed so there was no possibility of a lengthy exposure to urine even if that could cause the injury. The apnoea pad didn't cause the burn and the Hyoscine patch, sudocrem and deep heat did not cause it. He was supervised carefully by M or F as part of their daily routine and they report nothing occurring which could provide an accidental cause. They don't have to disprove the case however, and I have borne the burden of proof in mind throughout my deliberations in respect of this case. I am satisfied that there was no accidental cause for the injury to Y.
169. I have borne in mind that M and F are both parents who have been assessed as competent carers by the social worker. I have borne in mind that this is an isolated incident in parenting which has been accepted to be good enough. I am very aware that normally caring parents are less likely to inflict an injury on a child than those who have obvious anger problems or those who are generally neglectful.
170. The conduct of the parents in these proceedings does however weigh heavily against them. They have lied and colluded and deliberately tried to hide the history of what happened to Y on 15 and 16 July 2013.
171. There are some clues as to the state of their relationship. They had the pressure of recently moving into one home having lived apart for several years. They had the pressure of new routines, roles and responsibilities. They had the strain of caring for a very disabled child in addition to the demands of a baby and X. They had financial pressures, evidenced by F looking to borrow money from his friend on 15^th July to pay for car insurance. They also had the exposed infidelity of F with the woman in Humberside and the investigations which arose from that.
172. I have concluded that the local authority have proved on the evidence that this injury was caused non accidentally whilst Y was in the care of one or both of his parents and that both parents are in the pool of possible perpetrators of that injury.

Having found that the lesion was caused by an inflicted thermal burn can I identify the perpetrator of this non accidental injury?

173. I have tried to piece together what happened to Y, because it would be in all the children's interests for me to identify a perpetrator. I cannot do so. The evidence points to both and it is impossible for me to separate the strands of fact and fiction to identify which one. The people who could have helped me are M and F. They have decided to stick together and hide the truth.

Should M and F have obtained earlier medical treatment for Y and administered pain relief?

174. Dr Essex said of the injury "It was self evidently likely to cause pain. A carer would go to the doctor not just because of the way it looked but also because of its size, the pain it would cause and the need for treatment". Anyone looking at the photographs would agree. Dr Falder said that she would not criticise parents for calling the nurse rather than taking to the GP providing they didn't know that this was a thermal burn. In this case I have found that the parents did know that this was a significant thermal burn. I find that rather than take the obvious action of taking Y to A and E or to the GP they delayed treatment by reporting the matter by phone to the nurse, with M clearly suggesting that this mark was caused by an allergic reaction. Whilst F was the parent who eventually insisted that Y was taken to hospital I find that he did so because he realised that there was no alternative at that stage because the nurses were obviously very concerned. I find that M and F would have known that Y was in pain and that he needed pain relief, yet they ignored advice to give it. I reject F's contention that it was M's role to decide about pain relief. He was in the role of a joint main carer. He professes to love Y and be concerned for him. He should have taken action to help Y but he did not. I reject M's assertion to the nurses that Y wasn't in pain. He self evidently was – as they witnessed him grimace. I find that M was aware of his needs but chose to disregard them and to minimise any suggestion that he was suffering. I find that both M and F knew that Y had been significantly injured and that they should have acted to protect him. Both chose not to, and chose instead to try to hide the real cause of his injury and thereby deny his pain.

Threshold

175. In the light of these findings I am satisfied that the threshold is met in respect of each child. In the case of Y because he has suffered significant physical harm at the hands of one or both of his parents, and in respect of X and Z because they are thereby at risk of significant physical harm.

Consideration of Welfare checklist

176. Parliament has provided that when determining where X, Y and Z should live and which order is appropriate I should have particular regard to the Welfare Checklist. I have done so, and have kept their needs paramount throughout my consideration of the case.

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

X has a good relationship with F and with M. She also has a good bond with AH and her half sister Kr who lives with AH. She is close to her brothers and cares for them. She clearly would like to be with M and F if possible but equally has said that she would like to live with AH. I imagine she is very confused about her circumstances and what has happened to Y.

Y has a good bond with his M and with F as far as one can tell. He cannot express his wishes but I am sure he would like to remain within his birth family if possible.

Z has a good relationship with his parents and although he cannot yet verbalise his wishes, I am sure that he would wish to be brought up by his parents and to remain with his siblings. Z has always been with his sister X and there is a bond between them. His contact with AH has been positive.

(b)his physical, emotional and educational needs;

X has an urgent need for her circumstances to be clear and to know where she is going to spend her childhood. She has already had a change of residence from her M to her F therefore needs physical and emotional stability.

Y has very significant additional needs due to his disability. Those needs will change over time but it is particularly important for him to have his health and educational needs met in order for him to reach his full potential.

Z is still a baby. He needs emotional and physical care and stimulation to help him develop.

(c)the likely effect on him of any change in his circumstances;

X I am concerned that any change in circumstances for X needs to be permanent because of the disruption to her life thus far.

For Y the most important thing is that he is cared for in a family setting by people who understand his profound needs. He should be with M and F if it is safe for him to be there. If he remains in foster care it is very important that his current placement is maintained as it takes time to understand his needs and interpret his feelings. Residential care would not be suitable for Y.

Z has formed good attachments to his parents and his foster carers. He is able to form good bonds with his carers but it is important that any change should be to a permanent home.

(d)his age, sex, background and any characteristics of his which the court considers relevant;

X is close to her siblings and it is important that that closeness is promoted as she has had an unsettled past.

It is particularly relevant that Y is a little boy with serious cognitive impairment and developmental delay.

Z is a normal baby who is developing well.

(e)any harm which he has suffered or is at risk of suffering;

Y suffered a burn to his left buttock described by Ms Falder as a deep thermal wound. When examined by the treating paediatrician on the 8th July it was described as 9 x 11 cm in size at its maximum and consisted of a shape that had a straight edge and side edge at right angles to each other. The burn was sustained at some time following Dr Wood's examination of Y after approximately noon on the 15th July and prior to approximately 10 am on the 16th July. Y would have been extremely distressed at the time this burn was sustained, and those who knew him well would have known he was in considerable distress. Thereafter when the affected area was touched he would have been very uncomfortable and would show it through grimacing. Y has therefore suffered significant physical harm in the form of a contact burn and neglect of his needs whilst in the care of his mother and father. He is at risk of suffering significant physical harm and neglect if returned to their care.

X and Z have not been harmed. The case in relation to them is put that they are at risk of significant harm if returned to their parent's based on the harm suffered by Y. I do not have to be satisfied that such harm is more likely than not to happen. It is enough that there is "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case". The feared harm in this case is very serious. Their brother had a serious contact burn inflicted upon him in unexplained circumstances. Without knowledge of whether M or F caused the injury and the triggers which made them act as they have, I am satisfied that there is a real possibility, which cannot be ignored, that they too could suffer significant harm.

(f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

M or F or both together have injured Y by causing him to have a significant burn. They have lied about the surroundings so much that it is not possible for me to say what happened and to identify a perpetrator. I am satisfied that if one parent caused the injury the other knew and that they worked together to avoid detection until it became clear that Y had to be admitted to hospital. This meant that although Y was in pain he was not given appropriate relief. Their actions show an inability to meet the needs of their children by protecting them from harm and keeping them safe.

SH has been thoroughly assessed as able to care for X and Z both now and throughout their childhoods.

(g)the range of powers available to the court under this Act in the proceedings in question.

I have a full range of powers available to me. I could make no order which would mean that the children would return to M and F. I could adjourn the proceedings and direct further assessment of M and F either with or without the children or any combination of the children in their care. I can make orders under s 8 including residence orders, which I could make in favour of M or F. If threshold is proved I can make care or supervision orders in relation to each or all of the children. I can make a Special Guardianship Order in favour of AH in relation to X and Z.

Analysis of Placement Options

Placement of the children with M and F

177. Placement of some or all of the children with their parents should be the starting point wherever possible. It's what I am sure they would want and is what their parents want. The placement can only be in their interests however if it is a safe placement. In this case it would not be safe, and the risks to each of them, of significant physical harm cannot be managed under a care order. I don't know what triggered the injury to Y. I don't know who was responsible for it. I do know that the parents knew that something serious had happened to him and they have tried very hard to protect themselves and each other with lies and collusion. Neither has put the children first and admitted what happened. I cannot trust either parent to protect against the other and I cannot expect the Local authority to provide 24 hour monitoring in the home. Placement with M and F is not a safe option for these children.

Placement of X and Z with AH supported by a supervision order

178. The advantages to X and Z are that they would be in a family placement which would not be subject to the fetters of corporate parenting. Their carer will receive a support package which will enable her to care for them during their minority and I have no doubt that her attachment to them will continue far into their adulthood. The SGO gives AH the ability to exercise parental responsibility in a way similar to the Local Authority under a care order and these types of orders are much more secure than a residence order because they are more difficult to challenge in the future. The supervision orders give AH the additional support needed in respect of contact. The assessment of AH is thorough and can be relied upon.

Placement of X and M in foster care

179. The advantages of foster care for X and Z are that they would remain members of their birth family, and I am sure that X has a strong sense of identity about her family and attachment to Y and Z, while they would still be provided with appropriate nurturing care. All siblings could have contact. The real disadvantages for them would be that they would be looked after by corporate carers who could change careers and who would in any event hand over care to the community via the leaving care team at 18 or 21. The risks of breakdown of long term foster placements are well known and would make the placement particularly unsuitable for Z. Both children would also have the inevitable restrictions placed upon them which corporate parenting brings.

Placement of X and Z for adoption

180. For X and Z this would give them the option of becoming members of a new family, which would of course give them security. There may be difficulties in them seeing Y, who is very important to them and they would lose contact with Kr, M, F and SH. Further, they would cease to be, in law and fact, members of their birth family, and they clearly have attachments to those family members I have mentioned. For Z the chances of a successful adoptive placement would be good bearing in mind his age, but since adoption is a last resort and there is a wider family placement available, adoption would not on balance be in his best interests.

Placement of Y in foster care

181. Y's needs are very significant. His current placement is highly specialist and is very suitable. The disadvantages for him are that corporate parenting is risk averse and he may not have the opportunities to be exposed to riskier but life enhancing options which M may have taken for him and of placement breakdown in the event that his carers choose to stop fostering.

Placement of Y for adoption

182. The reality for Y is that he would be very difficult to place for adoption. He would lose the contact with his siblings which is very important to him and to M and F. M's contribution to his end of life planning would be lost and another move would mean he would have the trauma once again of placement with strangers.

Comparison of options

183. Having weighed each option and considered the internal positives and negatives I have compared them side by side.
184. What X needs is a stable placement which will maintain her family identity but will also provide her with protection from harm.
185. What Y needs is a family home which will safely provide good enough care in order to meet his needs. His mother cannot do so. Of the other options, placement in long term foster care is clearly better for him than adoption because links to his family can be maintained by direct contact.
186. What Z needs is a placement within his wider family which enables him to live with X, to whom he is attached and maintain safe contact with his parents.

Adjournment for further assessment

187. I have carefully considered whether it would be appropriate to adjourn for a further assessment of M and F. I can see no benefit in the delay that this would cause. In the light of my findings even if one of the parents now confessed to the infliction of harm and claimed that the other was entirely without knowledge or blame they simply could not be believed in the light of the obvious collusion which I have found. Similarly, in the light of that same sustained and clear collusion the non perpetrator could not be assessed in the timescales for these children, who need a decision to be made for them without further delay.

Decision

188. I have therefore concluded, taking into account all of the evidence both oral and written and applying the relevant law whilst keeping the children's welfare as my paramount consideration, that their needs can only be met by placement as follows. X and Z shall be placed with AH under a Special Guardianship Order. I make supervision orders in respect of them for 12 months to enable support for contact to be put in place. Y will remain in foster care as it is not safe for him to be returned to M and F. I ask that the IRO monitors this special little boy's placement very carefully to ensure that he is not moved around but is maintained in his current foster placement if at all possible.

Order

1. There shall be a Special Guardianship Order in favour of AH in respect of X and Z

2. There shall be supervision orders in respect of X and Z in favour of Bradford City Council for 12 Months.

3. There shall be a Care order in respect of Y in favour of Bradford City Council.

4. There shall be no order for costs save Public Funding assessment of the Respondents' costs.