England and Wales County Court (Family)

IN THE MANCHESTER COUNTY COURT

		Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		20th February 2014

I INTRODUCTION

1. THE JUDGE: I am concerned with three children:

F, a girl born on 5^th December 2003, so now aged 10;

G, a girl born on 6^th June 2006, now aged 7; and

H, a boy, born on 20^th May 2013 and now 6 months.

2. The mother of all three children is B. I hope she will forgive me if I refer to her by shorthand as "the mother". The father of F is C, the father of G is D and the father of H is E.
3. The local authority's key social worker is I and the guardian for the three children is J. Other important individuals within the family are K, the maternal grandmother and L, the maternal aunt, who are currently caring for F and G.
4. This is the local authority's application for a care order in relation to all three children issued on 19^th August 2013. The local authority's plan for H is that he be placed for adoption and there is a linked application for a placement order for H issued more recently.
5. The mother opposes the local authority's applications and seeks the return of all three children to her care.
6. C is content with the local authority's care plan for F. He currently has limited indirect contact. He hopes that may, in due course, develop into a more meaningful relationship. He has filed evidence and he has previously attended and been represented, but given that his position is essentially agreed he has played no part in this final hearing.
7. D seeks contact to G, although he does not press the application for direct contact at this stage pending resolution of the linked criminal proceedings. He too has played a full part in these proceedings and has been represented by solicitors and counsel.
8. Similarly E has been fully involved. He positively supports the local authority's applications in relation to H.
9. J wholeheartedly supports the local authority's applications in relation to H. She agrees that F and G cannot return to the care of their mother, but has suggested that it may be too early to make final care orders.
10. The proceedings commenced as a result of H's presentation to the accident and emergency unit of Hospital A in the early hours of 4^th August 2013 with serious injuries. He was then ten weeks old, six weeks gestational age corrected for prematurity.
11. My first task is to address the issues arising from those injuries along with other factual evidence relevant to the threshold criteria. I must then go on to consider the other evidence concerning the welfare of the children and whether to grant the orders sought by the local authority.
12. I have read all of the documents contained in the main bundle at least once, many several times. I have been referred to the two lever arch files of medical records as necessary. I have read the police interviews. Where witnesses have not been the subject of challenge and have not given oral evidence I have taken their written evidence as read. In an already over long judgment I do not propose to recite all of the written or, indeed, oral evidence.
13. Over four days, albeit interrupted, commencing on 10^th February 2014, I heard oral evidence from:

(a) the mother;

(b) M, a family friend;

(c) D;

(d) L, the mother's sister;

(e) I, the key social worker; and

(f) J, the guardian.

At the conclusion of the evidence and oral submissions on 13^th February, given the obvious need for the parties to know the outcome urgently, I indicated my intention to grant the orders sought by the local authority in relation to H and to maintain the placement of F and G within their maternal family. Pressure of other work meant I was not at that stage able to give full reasons for my decision and today is the first opportunity convenient for all the parties for me to do so.

II THE AGREED BACKGROUND

14. The mother is now some 32 years of age. She appears to have had a very difficult and unstable life with a series of adult relationships which have ended very unhappily. The local authority's final statement, for instance, reveals 12 different moves since F's birth and prior to H's hospitalisation.
15. F was born as a result of the mother's relationship with C. There was a brief period between August 2009 and May 2010 when they cohabited. Thereafter there has been no direct contact between F and her father.
16. The mother then entered into a relationship with D, at that stage a married man who was her karate teacher. The relationship ended in acrimonious circumstances around the time of G's birth. D had no contact with his daughter until 2013.
17. The mother then entered into a relationship with E and moved in to live with him in about July 2011. At that time, following care proceedings, he had been approved as the carer for four children, N, O, P, Q, who now range in age from 16 to 7. N is not his child but the daughter of R, his former partner. For completeness, another of R's children, S, lives with her paternal grandparents but has visiting contact with her siblings. That relationship broke down, again amid considerable unpleasantness, in early 2013 when the mother was pregnant with H. Given E's stance in relation to these proceedings it is neither necessary nor proportionate for me to investigate or make findings in relation to the many allegations made by the mother against E.
18. At that stage the mother, along with F and G, returned to live with the maternal grandmother, K, and her sister, L. By around March or April 2013 the mother arranged for the girls to have karate lessons with D. By April she had resumed her relationship with him.
19. When H was born, some weeks prematurely, on 20^th May 2013 the position was that D would visit the home of the maternal family on several days each week. The mother and the three children would also stay at the mother's flat each weekend, D arriving around lunchtime on Saturday and staying until around lunchtime on Sunday.
20. On Sunday 4^th August 2013, in the early hours of the morning, H was presented to accident and emergency with serious head injuries. Both the mother and D were interviewed by the police on 6^th August. They both remain on police bail and it appears that no charging decisions have yet been reached by the Crown Prosecution Service.
21. The local authority was notified. H was subsequently accommodated under section 20 and placed with foster carers, where he remains. F and G were placed in the care of the maternal family where, of course, they were already living for much of the week and where they remain. The mother and D continued their relationship, living together at the mother's flat.
22. The matter came before me on 4^th September 2013. At that hearing the mother and D were presenting as a couple and sought to be assessed as such. Given the weight of the medical evidence and the entirely proper concessions at that stage that if the injuries were indeed inflicted, only the mother and D fell within the pool of potential perpetrators, it was agreed that a separate fact finding hearing was unnecessary and the matter was timetabled to an issues resolution hearing in January 2014.
23. However, in late September 2013 H was readmitted to hospital. At a hearing on 8^th November 2013, concerned that the developing medical evidence was becoming growing increasingly complex and pursuant to a recommendation to that effect from Dr Sarah Dixon, Consultant Paediatrician, I authorised the instruction of Dr. Peter Richards, consultant paediatric neurosurgeon, to review the medical evidence. He reported promptly and has subsequently answered a number of questions put to him by the parties.
24. At that November hearing the mother and D purported to have separated, although they now concede that the relationship was actually still continuing and that they were attempting to deceive the court. In the event, the mother subsequently learned that D had commenced a relationship with one of her friends and on 3^rd December 2013 he brought the relationship to an end.
25. On 5^th December the mother filed a statement which, among other things, describes her having "flashbacks" of seeing D shaking H.
26. By the date of the next hearing on 8^th January 2014 the mother also contended that at the time of the injuries she was taking an antidepressant drug called Citalopram, which had been incorrectly prescribed. At her request I approved the instruction of Dr. P.M Haddad, consultant psychiatrist, to provide expert assistance as to the potential for the mother's behaviour and memory to have been affected by an over-prescription of Citalopram.
27. Alongside the investigation of the medical issues in relation to H, the local authority key social worker has conducted assessments of each of the parents. In parallel, the Family Placement Team has assessed the placement of F and G. They have also assessed the mother's sister, W, and her husband Y, as potential carers for H, and finally X, the paternal half-sibling, has been assessed as a potential carer for F and G.
28. Sadly, the assessment of the mother's sister, W, and her husband, has proved negative. I have received a letter from W which is undated but informs me that she has appealed against the local authority's decision as she puts it, not to accept her application, "to look after my nephew, H." However, the assessment has not been challenged before me. I am satisfied that W has been advised by the local authority, by the guardian and by the mother's solicitors that it was open to her to make an appropriate application to the court should she choose to do so. I must confess my surprise that W has chosen to pursue a process of appeal by way of some internal local authority procedure rather than applying to the court. In the circumstances I have re-read the assessment, albeit it remains unchallenged, with greater care than I might otherwise have done. I have also heard evidence from the guardian on the issue. She, following her own discussions with W and Y, concluded that this was not a viable potential placement.
29. F and G appear happy and settled with their grandmother and aunt, although the local authority still has some anxieties as to the quality of the care which they are receiving. I will turn to the relevant assessments later in the course of this judgment
30. H seems to have made a reasonable recovery from his injuries, although inevitably the prognosis for his future development remains guarded.

III THE LEGAL FRAMEWORK

31. I remind myself that the burden lies on the local authority to prove the allegations which it makes. The Supreme Court has clarified the position in Re: H & R [1996] 1 FLR 80. The appropriate standard of proof is the civil standard of the simple balance of probabilities. I have reminded myself of Re: B (Children) [2008] UKHL 35 and particularly the speech of Baroness Hale.
32. It is not disputed that H has sustained some injury. The questions for me to determine are:

(a) What injuries has he sustained?

(b) Were those injuries sustained accidentally or were they inflicted, or is their cause unascertained;

(c) If the injuries were inflicted by whom were they caused?

(d) If they were not inflicted by the mother has she failed to protect H from sustaining harm?

33. My approach must be to consider who falls within the band of potential perpetrators of any injury to the child. I must exclude those individuals where there is "no real possibility that they have caused any injury." That is the degree of heightened cogency referred to in North Yorkshire County Council v SA [2003] 2 FLR 849. Thereafter I am conscious that were I able to identify the individual who is responsible for the injuries to H that may be very helpful in terms of reaching decisions as to the welfare of all of the children and it may also be important to H himself in later life.
34. However, a finding as to perpetrator is not a necessary element of the threshold criteria. I approach the matter on the basis of the judgment of Lord Justice Wall, as he then was, in the Court of Appeal in Re: D (Care Proceedings, Preliminary Hearing) [2009] 2 FLR 668 at paragraph 12.
35. If I am satisfied that the mother is not the perpetrator of injury I must consider whether she has failed to protect H.
36. It is not disputed that the threshold criteria at section 31 of the Children Act is established in relation to each of the children, but the factual basis underlying that concession is not agreed.
37. My starting point in addressing the alternative options for the future of each of the children must be that the best place for any child is with a parent or in default with a member of the extended family unless there are strong welfare grounds to prefer an alternative.
38. It is trite law that I must be satisfied that any orders I make are a lawful, necessary, proportionate and reasonable response to the children's sad predicament. The granting of a care order, let alone endorsing a plan for adoption in H's case, would represent a drastic curtailment of the rights of this mother, of these fathers and of these children under Article 8 of the European Convention on Human Rights and Fundamental Freedoms which can only be justified by pressing concerns for their welfare.
39. In relation to F and G there has properly been no suggestion that the girls should be placed separately. The alternatives which I must address are whether they should return to the care of their mother or whether they should remain placed with their maternal grandmother and aunt. The issue is complicated by the fact that the local authority has not yet approved the relative carers as long term foster carers and there is a risk that they may decline to do so. In addressing those issues I have reminded myself of the provisions of section one of the Children Act 1989, the paramountcy of the children's welfare individually and collectively, addressing me to the welfare checklist at section 1(3).
40. If I decide that the girls should stay with their grandmother and aunt I must also consider whether it would be premature to grant final care orders as proposed by the local authority or whether the position should be monitored under interim care orders for a period.
41. For H, there are three potential options for his future: a return to the care of his mother, adoption, or, less realistically, remaining with his current foster carers. Once again in weighing the placement options and considering the local authority's care plan H's welfare must be my paramount concern and I must address the provisions of the welfare checklist at section 1(3) of the Children Act 1989.
42. Turning to the application for a placement order, again H's welfare remains my paramount concern and in this context I must consider his welfare throughout his life and apply the provisions of the welfare checklist at section 1(4) of the Adoption and Children Act 2002.
43. If I were to conclude that a placement order accords with H's welfare I would then have to decide whether his welfare required me to dispense with the consent of his mother to the making of such an order, his father having consented.
44. I have already referred to the established principles of Article 8. However, in construing both the Convention and domestic law I now have the assistance of the Supreme Court in Re: B (A Child) [2013] UKSC 33 followed by the decisions of the Court of Appeal particularly in Re: P (A Child) [2013] EWCA Civ 963 and Re: G (A Child) [2013] EWCA Civ 965. Those cases firmly re-emphasise that a placement for adoption is "a very extreme thing" and "a last resort" to be approved only when "nothing else will do". Both domestic and Convention law do require a high degree of justification before adoption can be endorsed as "necessary", the term in the Convention, or "required" by the Adoption and Children Act.

IV MY ASSESSMENT OF THE WITNESSES

45. On the whole, the mother gave her evidence calmly and without a great deal of emotion. She is clearly an intelligent and articulate woman. Her presentation was unusual. When asked a simple question she tended to go off on a tangent and this was particularly marked when her account was challenged. It is perhaps a small point and one to which I do not attach much weight beyond noting it, but I was struck by the fact that she rarely called her children by their names, referring to them as "my son" or "my daughter". Sadly, I have been driven to the conclusion that I cannot place safe reliance on the reliability or the honesty of the mother's evidence. I found her description of the "flashbacks", which emerged in December of last year, particularly implausible.
46. None of the parties now suggest that M is a reliable historian. I can place only limited reliance upon her evidence.
47. D gave his evidence well. Broadly, he appeared straightforward, open and answered questions directly and properly. It is not the manner in which he gave his evidence which gives rise to any concerns at all. It is the content of that evidence which, I have ultimately been driven to conclude, cannot be accurate.
48. I was impressed by L. She seemed to me to be a sensible and caring woman. Even bearing in mind that her instincts will inevitably be to support her sister I thought she strove to be honest. Her evidence is not subject to substantial challenge and I accept it without any real reservation.
49. The key social worker, I, and the CAFCASS guardian, J, are experienced professionals who gave their evidence thoughtfully and with appropriate care and moderation. I accept that they are each doing their honest best to assist the court, that they have analysed the issues with care and that they have expressed their written and oral evidence clearly. I can safely rely on their advice and wisdom.

V MY FINDINGS

H's Injuries

50. In reaching my decisions upon the medical issues in relation to H I have relied upon the following reports which have not been challenged:

(a) Dr. Sarah Dixon, consultant paediatrician, dated 9^th August 2013, with an addendum on 20^th October 2013 and her comments upon Dr Richards report dated 3^rd February 2014;

(b) Dr. Peter Richards consultant paediatric neurosurgeon, dated 18^th December 2013 and his subsequent responses to questions posed by the parties;

(c) Mr. Roberto Ramirez consultant paediatric neurosurgeon, dated 4^th December 2013.

There is no dissent between those doctors, all of some eminence in their respective fields. I accept their opinion and advice without any real reservation.

(d) In relation to the mother I have the assistance of the reports of a number of doctors from her GP practice, but particularly those dated 31^st October 2013 and 2^nd January 2014, along with the report of

(e) Dr. Haddad, consultant psychiatrist, dated 28^th January 2014.

Again that evidence is unchallenged and again I accept it.

51. I bear in mind Miss A's submission that I must place the medical evidence in the context of the whole of the case, what is commonly described as "the broader canvas", and that it is theoretically open to me to reach a conclusion which does not accord with the medical evidence.

(a) What injuries has H sustained?

52. In the morning of 4^th August H was presented in a state of acute collapse and with a history of him having stopped breathing. In more technical terms he had mild to moderate encephalopathy. He was subsequently transferred to Hospital B under the specialist care of the neurosurgery team and Dr. Dixon.
53. CT scanning on 4^th August and subsequent MRI scanning revealed that H had a bilateral acute subdural haemorrhage.
54. In addition there were bilateral chronic subdural haemorrhages which were older, at least seven days older, than the acute haemorrhage. There were other small abnormalities present in the brain consistent with, but not probative of, trauma.
55. H suffered from raised intracranial pressure. His head was swollen. He was fractious, not inclined to movement. He had episodes of vomiting, and poor feeding to the extent he required feeding through a nasogastric tube.
56. Retinal haemorrhages "too many to count" were observed on H's admission. On 6^th August he was examined by a consultant ophthalmological surgeon, Miss Gajdosova. In the right eye she observed and recorded multiple multilayered diffuse retinal haemorrhages. In the left eye there were four scattered retinal haemorrhages.
57. H was discharged to foster care. On 16^th September 2013 he was readmitted to Hospital B with a re-bleed into the existing subdural haemorrhage. He required surgical aspiration via a burr hole and he was detained in hospital, this time for nearly a month. For a time he was again very poorly indeed. Such a re-bleed is a recognised complication of an acute subdural haematoma and does not affect the initial diagnosis.

I propose to take the next two questions together.

(b) Were those injuries sustained accidentally or were they inflicted, or is their cause unascertained?

(c) If the injuries were inflicted by whom were they caused?

I will address the acute injures first.

58. The clear conclusion of Dr. Dixon, confirmed by Dr Richards, is that in a non-mobile baby, the presence of encephalopathy, together with both retinal and subdural haemorrhages, in the absence of any identifiable accidental trauma is strongly suggestive of inflicted head trauma, probably by the mechanism of shaking. Referring to the "acute" presentation, the position is graphically put by Dr. Richards at E91:

"The clinical picture of a mild to moderate encephalopathy of sudden onset, subdural and subarachnoid bleeding and retinal haemorrhages in the absence of any identifiable medical conditions are features known to be associated with recent injury. H's presentation on 4^th August 2013 could therefore be associated with an episode of recent injury. The only plausible alternative diagnosis that would explain the whole clinical presentation was that he was suffering from a disease that was previously unknown to the medical profession and whose nature has not been determined since."

59. At E92, he continues, describing the presentation as one that can follow injuries inflicted by a carer shaking the child and opining:

"The minimum force required to cause such injuries is not known as infants cannot be experimented upon. But on the basis of confessions from perpetrators many clinicians who care for acutely ill infants consider that the degree of force would be in excess of normal handling and at a level such that a mentally competent witness is likely to appreciate it as abnormal handling likely to cause injury and intervene to stop it. However, it is also accepted that in the absence of any features of severe extracranial injury, such as fractures and bruises, or features of repeated systematic abuse, that many such events occur during a momentary loss of control on the part of a carer who had not planned to injure the child. H's presentation would be compatible with such an event."

60. In relation to this injury it has not been contended that there are, realistically, any potential perpetrators "in the pool" other than the mother and D. For the avoidance of any doubt whatsoever I record that there is no evidence at all which might point to either F or G having caused this injury.
61. On the accounts of both the mother and D, H was his usual self during 3^rd August. They both gave a similar account of D arriving at around 1pm, of him changing and feeding H before they all set off for a family party at the home of the mother's aunt. It was a sunny day and for much of the afternoon H was asleep in the garden in his pushchair. He woke on occasions and was fed. Other family members were on hand. The event was enjoyable and H's behaviour entirely normal. He was described by D as "perfectly fine" and content.
62. The mother, D and the girls then returned to the mother's flat at around 8pm. The mother went out briefly to pay for electricity. When she returned she told me that H was asleep on a sloping chair and the girls were playing on their Wii. Subsequently the girls went to bed and both the mother and D then recall watching a film. H woke. He was fed by D. There was no difficulty in him taking his bottle and D changed him. The mother gave him a kiss and put him back down to sleep on the chair. By then she was very tired and went to bed at around 11 o'clock kissing H and D as she left.
63. D says that around 1.30am he was ready for bed himself and decided to wake H for a feed and to change him before he went to bed. He says he picked H up. H was immediately "floppy". He tried for some 30 to 40 seconds to revive him before calling the mother. He had to call her twice. When she arrived in the living room he told her to call 999 and she did so. Paramedics arrived very quickly, followed by an ambulance and H was taken to Hospital A.
64. That account is entirely reflected in the mother's early statements and police interviews. However, immediately following the breakdown of her relationship with the father on 5^th December 2013 she filed a statement wherein she adds two important details. Firstly, she says that she heard H giving a high pitched scream just before she heard D call her. Secondly, that when she went into the room she observed D shaking H from side to side and hitting him. Those new elements of the account are denied by D and I reject them as fictitious for reasons which I will set out in due course.
65. Putting aside those later embellishments, basically the court is left with D's own account, confirmed by the mother, set in the context of the medical evidence. D is quite clear that H was fine at the stage when the mother went to bed. He had taken his bottle and was well. By the time of the 999 call he was in a state of collapse and had certainly sustained injury. D was the only person present at the point when H must have collapsed.
66. To quote from Dr. Dixon:

"The finding of the acute subdural haemorrhage correlates to the history of H being seen to be well at 22.30 hours and becoming acutely unwell in the early hours of 4^th August. The most likely timing for causation of the acute subdural haematoma is immediately prior to his collapse."

67. Dr. Richards concurs:

"Given that there is a clear history of him being normal in terms of behaviour up until the point of his acute collapse it is likely on the balance of probabilities that the point of change from normality to abnormality was the point of injury."

68. There is some very limited supporting evidence pointing to D as a perpetrator of H's acute injures alongside his own account and the medical evidence. I am cautious about placing excessive weight upon such flimsy foundations but I record the following matters of detail:

(a) D accepts that he told L that he had indeed "shaken H". He told her that at a bus stop outside the hospital. He went on to give her, and subsequently the court, a demonstration which he described as "jiggling" the baby. This "jiggling" process is insufficiently vigorous to have caused H's injuries, but the very fact that he told L that he had "shaken H" is worrying.

(b) I note that D, like the mother, has been prepared to lie to the court and the local authority in an effort to present their relationship as having ended by the time of the hearing in November when they were still, very much, a couple.

(c) In his statement to the police, to the court and in oral evidence D said that nothing untoward had happened whilst the mother was out paying the electricity and that in fact H was asleep throughout. However, on 4^th December at a contact session observed by BB, F said that, whilst her mother was out of the flat:

"H had poohed himself, it had gone all over his back, D had stripped him and put him in the sink and washed him, slapped his bottom and H was screaming."

I also note that the mother, contrary to the evidence she gave before me, told Dr. Dixon that when she returned from paying the electricity, F was crying in the corner and G was having a tantrum.

I was suspicious about what F said because I am quite clear that words have previously been put in her mouth by her mother. Nevertheless, when her account was suggested to him in evidence, D accepted that he had indeed needed to change and wash H in the sink and that he had simply forgotten to include that incident in any previous account of matters. Reminding myself that people do lie for all sorts of reasons, some of them unconnected with guilt, I am, just, persuaded that he deliberately failed to mention that incident because he knew it did not cast him in a good light.

69. While I am dealing with the conversation on 4^th December, I am unimpressed with `the mother's attempt to over egg that particular pudding by suggesting that F had also given an account of observing D shaking H some time before the 999 call. There is no record of that in the contact officer's notes and F was completely bewildered as to what she is "supposed" to be saying when she was later interviewed by Miss Harrison and in her ABE interview.
70. As Miss A submits on his behalf it is indeed ironic that the most damaging evidence against D is his own. I have also to bear in mind that he has successfully brought up a daughter and has a good relationship with his grandchild, he has worked as a karate instructor with children for many years and there is no evidence of any inappropriate behaviour in the whole of his history. Although H is not his child I have a very clear impression that he was very fond of H. He was present at his birth and was willing to participate in his care. In those circumstances, I have genuinely racked my brains to see if there could be any alternative explanation.
71. What, then, is the evidence which might point to the mother as the perpetrator of H's injuries? I begin with the constellation of factors which she accepted had taken her to a point of total exhaustion by August 2013.

a. Two lively and demanding daughters to care for,

b. School holidays

c. A premature baby who woke repeatedly in the night to be fed,

d. The aftermath of the breakdown of her relationship with E,

e. Her depression and

f. What I judge to be her general lack of effective coping mechanisms.

In summary, the mother was having real problems in managing life with three children on a day to day level. Sadly, as she concedes, she has significant psychological difficulties which must to be addressed. These are the type of stressful factors which might result in a parent momentarily losing control with a crying baby.

72. The mother is now clear in her evidence that she certainly did not injure H, that there is no occasion when she shook him and that she would have remembered if she had done so. However, the fact is that she had previously been willing to hypothesise that she might indeed have caused H's injuries while under the influence of prescribed medication. That very fact does give rise to anxiety. I note that this suggestion first arose in discussions with the social worker when the mother remained in a relationship with D. I fear she may have been trying to protect him. However, the suggestion was elaborated upon at the hearing in January 2014 after they had separated when the issues around her medication arose.
73. I am satisfied that, in error, the mother's GP gave her two prescriptions for Citalopram an antidepressant, at 80 milligrams per day instead of the intended dose of 40 milligrams per day. Those prescriptions were issued on 20^th June 2013 and 5^th August 2013. The error was corrected on 29^th August 2013. I accept the unchallenged evidence of Dr. Haddad that the approved dose of Citalopram for healthy adults is currently 40 milligrams per day. In the comparatively recent past the approved dose was 60 milligrams per day. Dr. Haddad would not anticipate that a patient would experience significant serotonin toxicity at 80 milligrams per day and the risk of side effects would be reduced if the patient had already taken Citalopram without adverse effects, as the mother had done for a considerable period. Dr. Haddad anticipated that if a patient did develop any side effects of the medication they would be mild but might typically include agitation, tremor and a fast heart rate. Side effects would not normally include symptoms such as confusion or memory impairment.
74. It is theoretically possible that if the mother was also taking Tramadol, which she had also been prescribed alongside Citalopram, the two drugs could have combined with a side effect which might have included a degree of confusion.
75. I have reached the conclusion that the mother's willingness to concede that she might have shaken H whilst adversely affected by Citalopram is a "red herring" and simply does not assist me in determining how and by whom H's injuries were caused.
76. The evidence of Dr Haddad in relation to Citalopram is also relevant to my assessment of the veracity of the elaborating details of the mother hearing a scream and seeing H being shaken by D, before the ambulance arrived on 4^th August 2013. I am not persuaded that she is telling me the truth about either of those details. It is, in my judgment frankly incredible that B could have forgotten incidents which really occurred only for them to return in the form of a "flashback". For her to say, as she did in evidence, that when she made her first statements to the police, hospital and court "I did not have a full recollection of the evening" but that, as time has moved on, she "remembers more" is wholly unconvincing. The mother has given clear and consistent accounts of events on to treating doctors, to the police, to the court, in her statements and in her oral evidence. Those accounts descend to minute details and are consistent with the version of events presented by D until they separated. Apart from a momentary lapse during the 999 call when she cannot recall her telephone number there is no evidence of any contemporaneous confusion or inability to recollect events. Hearing her new baby scream or seeing him being shaken are hardly trivial details which might easily be overlooked by this or any mother
77. I note that this account emerged only after D had left her for another woman. It is consistent with a pattern of vilification of the fathers of her children when she has fallen out with them. Although, broadly, I am not impressed with the evidence of M I do accept that the mother expressed a desire to wreak vengeance upon D, once she discovered his infidelity.
78. Although discreditable, I am not persuaded that the mother's lies point to her as perpetrator of H's injuries. Moreover, even if I am wrong in rejecting the mother's evidence of those matters, that actually makes no difference in terms of my analysis of what happened to H. The scream adds little and, on any account, H had collapsed several minutes before the mother came into the room and hence any injury had already been sustained
79. If the mother did shake H without D's knowledge it can only have been earlier in the day, before D arrived at her flat. After D arrived she was not alone with H. H was observed to be well and happy during the afternoon and evening thereafter. On the medical evidence the timing of an insult during the morning of 3^rd August 2013 is completely wrong.
80. I have, of course, also considered with care the mother's and D's accounts of the various, apparently trivial, incidents which occurred during the course of 3^rd August. There is no evidence that any of those small incidents, if they occurred, caused D more than momentary discomfort. They were extremely unlikely to have caused injuries of such gravity. On the medical evidence timing is, again, inapt.
81. Finally, Mr B has suggested that perhaps the mother and D are both lying and D is "taking the blame" for the mother. D does not strike me as a particularly selfless man. These are not parents who are still in a continuing relationship. I find that collusion to that degree is vanishingly improbable.
82. In conclusion, bearing in mind the father own account, the cogency of the medical evidence and the absence of any realistic alternative scenario, I am satisfied that the injury must have been caused when H was in the sole care of D, that the event causing the injury has not been disclosed to the court and that on the balance of probabilities it was D who inflicted H's acute injuries by shaking him.

The chronic subdural haemorrhage

83. I rely again upon the medical evidence and I quote from the report of Mr Richards which accords with the evidence of Dr Dixon :

"There are many causes of acute bleeding that can lead on to the development of chronic subdural haematoma but they are usually readily identifiable by the clinical history and a series of tests. No such cause has been identified in this case. Injuries well recognised as a cause of acute subdural bleeding include birth injury, accidental injury or non-accidental injury originating with a shake.

The event that would cause a chronic subdural haematoma is likely to have occurred some weeks before the haematoma reaches a size where it is detectable and in this case, in terms of timing alone, birth cannot be excluded as a cause of the chronic subdural haematoma identified in August. However, in the research projects that identify that acute subdural bleeding can occur as a result of birth the least likely method of birth to cause subdural bleeding was caesarean section. A well recognised cause of acute subdural bleeding leading to chronic subdural haematomas is following an episode of shaking and statistically this has been identified in community based studies as the commonest cause of acute subdural haematomas."

Mr Richards concludes at E95:

"It is also possible and statistically most likely that at some stage in his life he had suffered an earlier similar [shaking] injury that led to the formation of a chronic subdural haematoma over both cerebral hemispheres, though this cannot be said with certainty as other than the presence of the chronic subdural haematoma there are no other features to support this possibility."

84. I am satisfied to the appropriate standard that this was also an inflicted injury. I have noted that both the mother and D had extensive opportunities to cause that injury. Both would have been alone with him during the relevant period.
85. The only realistic alternative to this being an earlier shaking injury is birth trauma. H would have been very unfortunate indeed to have sustained a statistically unusual injury during a caesarean section only to suffer a completely unconnected shaking injury causing very similar consequences some ten weeks later.
86. In one sense it is neither necessary nor profitable for me to try to identify the perpetrator of this injury or to try to pinpoint the date for this first trauma given my findings in relation to the acute subdural injury. I do however note that if the measurement of H's head size at eight weeks, that is mid July, is correct then his head size grew from the fifth to the ninety-eighth centile, which certainly suggests that the injury had already been sustained by then. That is dealt with at E94 by Mr Richards:

"I also note that on 30^th July H was examined by his General Practitioner because he appeared unwell. It is apparent from the note at H799 that that was a careful examination. He was particularly noted to have loose stools but to be generally irritable and unhappy. That evidence may be consistent with a more recent injury but there is quite a history of H appearing sometimes irritable, difficult to settle, sometimes sleeping more than usual, and sometimes crying with a high pitched scream in the weeks immediately preceding 4^th August again consistent with a head injury.

87. Having reached the conclusion that this is also an inflicted injury, there is no evidence that anyone other than the mother and D could fall within the pool of potential perpetrators. The case is unusual as Mr B submits and I have to bear in mind the unfavourable impression I have of the mother's evidence. But on balance I have concluded that the more likely perpetrator of the injury is D. I think it is improbable that two different adults caring for H would separately, and apparently unknown to each other, shake him on two separate occasions causing strikingly similar injuries

(d) If the injuries were not inflicted by the mother has she failed to protect H from sustaining harm,

88. The mother accepted in evidence that she had neglected her responsibilities as a mother to the children. There is no evidence that she delayed in obtaining medical treatment for H but her conduct following H's admission to hospital does her no credit. She was enthusiastically in favour of being jointly assessed to care for H with D. She failed to grasp the essential blunt point that if she had not shaken her son he was the only other person who could have done so. She prioritised that relationship over her children. She was keen for D to be seen in the best possible light until the relationship broke down when she did not hesitate to vilify him.
89. I have not accepted her account of her seeing D shaking H. Were she to be telling me the truth about that, then her subsequent conduct at the hospital and during these proceedings in failing to reveal what he had done until she had subsequently fallen out with him would have been a failure to protect at the very highest level.

The Threshold criteria - additional findings

90. Given the gravity of my findings in relation to H's injuries the other matters which the local authority rely upon assume a reduced significance, although in terms of future planning for the children they are of some importance. The draft threshold criteria are set out at A7 onwards.
91. The relevant allegations which are conceded and which I accept are these:

(i) The observations of the mother preparing a shandy for F, who was then aged 2 years and 6 months, indicating that her General Practitioner advised that that was "all right" and it was also all right for her daughter to drink a half glass of wine.

(ii) That the mother's emotional and psychological health was fragile.

(iii) The unstable and volatile nature of the mother's relationships with her partners.

(iv) The mother's chaotic lifestyle, which included periods of homelessness and separations and reconciliations with C and D.

(v) The volatile nature of the mother's relationship with members of her family and her associates.

There are other matters that are contended for by the local authority which are denied by the mother but which, having read the historical documents with care, I also accept:

(vi) That from time to time dating back to 2005, there were poor home conditions within the mother's household and concerns that the children's emotional health and development were being neglected by the mother.

(vii) The mother did not address the concerns with Children's Services A and moved to Place Name A in July 2010.

92. I am satisfied that each of the children has suffered significant harm and that they were likely to suffer significant harm in the future by reason of the care afforded to them, or likely to be afforded to them, by their mother and fathers.

The balancing exercise for H

93. The mother has contended for a long term foster placement with H's current carers. I am satisfied that they are admirable individuals who have offered H an extraordinarily high quality of care and I hope, Miss C that you will ensure that a formal commendation is passed to them from me. However, they are professional foster carers of considerable experience. They, themselves, have formed a strong view that H deserves the opportunity of an adoptive placement. They are not in a position to make a long term commitment to H. This is not a realistic option.
94. There are no potential carers within either the maternal or paternal family.
95. Given that H is still only 9 months old there are only two realistic options which fall for my consideration. Could he return to his mother's care or must he be placed for adoption?
96. Returning to his mother's care would enable H to grow up with a mother who, despite her deficiencies, does love him very much indeed. He would be able to enjoy a relationship with his sisters and extended family. There would be difficulties about any meaningful relationship with his father but at least that possibility would exist.
97. Balanced against those advantages is the clear evidence that H would be exposed to a continuing risk of really significant physical and emotional harm in his mother's care. I do not wish to dwell upon these matters because I recognise how painful they are, At present and even with family support, she struggles to lead a stable, balanced life for herself let alone manage the upbringing of a vulnerable child successfully. It is through no fault of her own that she has been treated for depression more or less continuously since 2001. Recently, she has begun to attend courses and counselling and I sincerely hope that that will help her. But her problems are of a magnitude that they will not be resolved in a timescale which would enable her to meet H's needs.
98. There is also evidence, I am sorry, to say, of an insensitivity to the emotional needs of her children; the way that all the fathers were cut out of their children's life, the manner in which G was reintroduced to D by simply being taken to his karate class and basically left to get on with it, her unrealistic promises to F and G about them returning home, the lack of emotional warmth. I had no sense from the mother's evidence that she has developed any real understanding of these issues
99. It is important that I read into this judgment the evidence of E who has reached the heartbreaking decision not to put himself forward to care for H:

"Whilst I love and care for him deeply I accept that to care for him as well as my other children would be a difficult task and I think it would be better for H to have the best start in life that he could possibly have and I think that would be by way of him being placed outside the family in an adoptive placement. I do not believe that H's needs would best be met by B or by any member of her family."

I note Miss D's submissions on his behalf. His is not a stance of passive acquiescence but a positive desire to achieve what is best for his son.

100. On behalf of the Local Authority I has undertaken a careful assessment of the mother and each of the fathers. Neither she nor J has approached their recommendations lightly. They have given particular weight to the separation of H from F and G as well as his parents.
101. I am acutely aware that adoption is no panacea and adopters face all the vicissitudes of life faced by ordinary parents with the added complication that they are caring for a child who is not their birth child. Adoptions can and do breakdown, sometimes with disastrous consequences. On the other hand H is still less than one year old. He should be placed relatively speedily. The evidence is that there are 100 potential matches for him in Establishment A. Statistically at least the prospects for successful adoption are very good.
102. H has had an extraordinarily difficult start to life. Born prematurely, he has been subjected to two separate serious head injuries suffering pain and distress. He has been removed from his mother, placed with foster carers and then spent a month in hospital as a result of his injuries. H needs and deserves the opportunity of a safe, stable, secure and permanent family and in my judgment adoption offers not only the best prospect, but the only realistic prospect, of him achieving that. I accept the evidence of the local authority, the guardian and the father that this is genuinely a case where "nothing else will do" for H.
103. The position really is so clear that H's welfare requires me to dispense with the mother's consent to the making of a placement order.
104. I record my hope that both parents will, if prospective adopters agree, have the opportunity to meet them and that they will contribute to the life story work for their son. There is no reason why prospective adopters should not be asked if they might be willing to facilitate direct contact between E and H, though that cannot be a requirement of the search and I would not wish to raise unrealistic expectations in E's mind.

The balancing exercise for F and G

105. I bear in mind that both F and G have expressed the wish to return to the care of the mother and, indeed, were that the court's decision both the grandmother and aunt have expressed their intention to provide her with any support she may require. Balanced against the obvious advantages of a return to the care of a loving mother is the harm that F and G have both suffered by reason of the level of care which the mother has offered to them and the likelihood of that harm continuing.
106. Until she separated from D the mother was content for F and G to remain in the care of her mother and sister and in her heart of hearts I believe that she acknowledges that that is still where they are indeed best placed. I note the careful way in which Miss E put her submissions, that in "an ideal world" she would like to care for the girls herself. In her evidence she, herself, acknowledged that she was currently not really in a position to do that. I am satisfied that the best place for them is with their grandmother and aunt.
107. There have however, been problems in that placement. So that it is clear that I understand the extent of those problems I intend to set them out. This assessment arises from the work of the Family Placement social worker, CC. She has not yet been able to recommend to the fostering panel that they be approved as long term foster carers. On 28^th January they were only approved as short term foster carers pending further work and an adjourned panel date in May. The concerns include these:

a. The receipt of Child Benefit and Tax Credit via the mother,

b. Defensiveness of the mother's position in relation to H's injuries, although in the light of my findings their judgment was correct

c. A tendency to accept the mother's account of matters without real question and especially her views about her former partners,

d. That home conditions are sometimes only just acceptable

e. That the property is overcrowded,

f. That there are times when the grandmother has appeared very stressed by the assessment process and a couple of occasions when she has complained of feeling exhausted,

g. The absence of contingency plans if the aunt formed a relationship and decided to move from her mother's home ,

h. The reliance upon W, who has not been assessed favourably, to take the children to and sometimes from school, and

i. W's and the grandmother's involvement in requests to separate F and G from E's children who attend the same school and with whom they had previously been on friendly terms.

j. Finally, and I do attach real importance to this, the wholly inappropriate involvement of the girls, and especially F, in adult conversations and issues and insensitivity to the impact upon both girls of the mother's continuing involvement in the lives of grandmother and aunt . I had hoped that this was an issue which was diminishing. I was alarmed to read in I's final statement, at paragraph 10.8, a record of G's conversation with her school pastoral worker, DD:

"While in nurture group today G said: 'We have to get mummy back.' I said: 'What do you mean?' She said: 'When the social worker comes I have to say I want to live with mummy.' I said: 'Okay, does F need to say anything?' She said: 'Yes. She has to say I want to live with mummy.' I said: 'Who said that you have to say that?' She said: 'Grandma.' She went on to say: 'H has been adopted and we will never see him again.'"

These children are confused enough without adults making it worse

108. I have not heard evidence from CC but I do not underestimate the difficulties and I accept that this is not a perfect placement. However, I am concerned that, taken overall, her report presents quite a negative picture and I fear that the very real positives of this placement have not been accentuated. I understand that the welfare of F and G has recently been enhanced by a clear working agreement and a better understanding of the real issues, that the family have moved on to some extent and that some optimism for the future is justified
109. I invited L to be present through the whole of the evidence in this case because I was concerned that she and her mother had an imperfect picture of the circumstances in which F and G came to need their love and support. I was very encouraged by L's evidence and the observations of the good relationship which has already been developed with the key social worker. I's evidence was this:

"I think the children are best placed where they are right now. Having had lengthy discussions with L I am convinced that we can work together to overcome the obstacles for the girls remaining with them. I am happy to say that hearing her evidence she has developed more insight into some of the concerns."

Later in questioning she said it would only be as a drastic last resort that the children would be moved. I have already expressed the view in discussions with the advocates that the real focus now should be upon the local authority doing everything it can to support and assist this family in undertaking the difficult task they have volunteered for because of their love for F and G. A repeated process of "assessment" does seem more suited to someone applying to be a professional foster carer than a family member.

110. Unless some dire emergency which would justify an emergency protection order arises, the local authority has agreed that, should they reach the regrettable conclusion that this placement cannot be maintained, they will give the family six weeks' notice before actually moving the girls. That would enable the matter to be brought back to court and the local authority decision reviewed before any dramatic step is taken.
111. I accept that the coming months will be particularly challenging for the children, for the grandmother and aunt, and for the mother, as F and G learn, contrary to the promises they have been made, they are not returning home to their mother and that H is indeed to be placed for adoption. In that context, there are advantages in the guardian remaining involved to support and assist the children. I appreciate her legitimate anxiety that at this stage she cannot have the degree of confidence or certainty that she would like to have in the sustainability of this placement and the efficacy of the local authority plans to support it.
112. However, the only real alternative to my making a final care order today is to adjourn this case until after the date of the fostering panel in May 2014. Allowing for the filing of further final care plans, responses and the report from the children's guardian the case would not be ready for hearing until June or July, nearly a year after the proceedings commenced.
113. There are some advantages in the proceedings being concluded today. It removes the tension and anxiety inherent in everyone having to come back to court and it enables F and G to be given as clear a message as is possible as to their future placement.
114. However, the real point is that, however it is dressed up, what I am actually being asked to do is to monitor and oversee the implementation of the local authority's care plan. That is now not a permissible role for the court and I decline to do so. I must repose confidence in this local authority, its social worker and its independent reviewing officer. I find the local authority's plans are sufficiently choate for me to approve them and make final care orders in relation to F and G.
115. I am, of course, aware in reaching that decision of L's legitimate concern that if they needed to challenge the local authority's decision making processes they would not qualify for legal aid and would find it extraordinarily difficult to incur the costs of instructing a solicitor. I propose to reserve the case to myself in any event and L can be entirely confident that she can come and discuss matters with me unaided by a lawyer if that should, sadly, prove necessary.

VI ORDERS

In relation to H

116. Recording that I approve the local authority's care plan and with the consent of the father I make a care order.
117. Recording that I dispense with the consent of the mother and with the consent of the father I make a placement order.
118. I reserve any further applications to myself unless geographically that is inconvenient for prospective adopters.
119. I give leave to the Local Authority to disclose any relevant documents to prospective adopters.

In relation to F and G

120. Recording that I approve the local authority's care plan to maintain the placement with K and L, subject to their approval as long term foster carers. I make care orders.
121. I reserve any further applications in relation to those children to myself.

Generally

122. I direct a transcript of this judgment. I trust that those who have instructed the following experts will ensure that a copy of it is sent to them, that is, Dr Dixon, Mr Richards and Dr Haddad with my thanks for the clarity and helpfulness of their respective written evidence and for the speed with which it was produced.
123. An anonymised version of this judgment will be placed on the BAILII website.
124. I direct the usual assessments of costs.

THE JUDGE: I would like the parties, and particularly the guardian, to give some thought to the hand over to the independent reviewing officer. . It seems to me the independent reviewing officer will need to see a transcript of my judgment, the guardian's report, the Local Authority final statement and the final care plans?

There are a number of very obvious issues that need to be covered but the issues for the girls are quite complex. They include the support that is necessary for the placement, the instruction of the psychotherapist, liaison with the girls' schools, the monitoring of contact to the mother, the devising of a very clear working agreement with the carers as to what is and what is not permissible following this order and the various arrangements for contact with the children's parents. But I have no doubt you can draw up a more thorough list with the assistance of your colleagues

MISS C: I think so.

.

[Brief discussions re recording E's consent to H's placement for adoption follow]