England and Wales Family Court Decisions (other Judges)

IN THE MAIDSTONE COMBINED COURT CENTRE

		The Law Courts Barker Road Maidstone Kent ME16 8EQ
		20 March 2018

"This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court."

"This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved."

Her Honour Judge W Backhouse:

1. I am concerned with two children L, a boy born on [a date in] 2013, who is, therefore, four, and D, a girl born on [a date in], who is 20 months old. Their mother is Ms C. The father of L is Mr B and the father of D is Mr H. This is a judgment solely in relation to the findings which the Local Authority, Kent County Council, seek against Ms C and Mr H, and which form their threshold in this application. I will give a further judgment in terms of the welfare disposal of the two children after the parties have had a chance to consider this judgment and make further submissions.
   
2. I should explain how it is that I am only able to give a fact finding judgment, even though the case was listed for a final hearing and indeed, I have heard all the evidence in the case over some 7 days. Proceedings started on 31 May 2017 and there has been much delay, so that we are now at week 42. My involvement started a few weeks before the final hearing when the mother's solicitor alerted me by email to a long list of matters which remained to be clarified and information which had not been provided by the Local Authority. I listed two pre-trial review hearings at which I attempted to sort out the remaining issues, including the witnesses to be called and the witness template.
3. The LA's care plan is for the children to move to live with their maternal aunt and uncle, Mr and Mrs G under a Special Guardianship Order. However, by the time the final hearing started, the LA had still not completed the medical checks or references for the prospective special guardians or completed their financial assessment and the prospective special guardians had not obtained legal advice on the proposed support plan. More fundamentally, when I read the SG assessment of Mr and Mrs G, I realised that the social worker who had conducted the assessment had not interviewed Mr G at all and had only had one meeting with Mrs G. The assessment failed to deal with a number of significant issues. The same applied to the other SG assessments she had conducted of two other sets of prospective SGS. It is regrettable that this basic defect had not been spotted at any point earlier. The LA conceded that a fresh assessment would need to be undertaken by another social worker and that this would take some weeks. Given the level of L's behavioural and emotional issues, any assessment needs to be thorough and robust. At the final hearing therefore, the LA's cate plan was inchoate.
4. Further, evidence was given at the final hearing about L's exclusion from school in January 2018, since when he has been receiving only 1.5 hours per day of home tuition. It transpired from the evidence from the school and Virtual School Kent ('VSK') that although the school had called it a fixed term exclusion for two weeks, it was in effect a permanent exclusion. VSK required time to consider what was the best school for L in the future, the support he would need in his new school and what educational provision should be made for him in the meantime. This is essential information for any prospective carer.
5. Turning now to the allegations against Ms C and Mr H, these proceedings were instituted after L was seen on 22 May 2017 by the then allocated social worker, Susan Giardina, with bruising to his forehead and both eyes. The Local Authority was alerted to these injuries by a call from Mr H's mother, Mrs B. Ms Giardina attended the property where Ms C, Mr H and the two children were living, with a colleague, a senior practitioner. They spoke to L on his own, and the children were subsequently removed that day under a written agreement. They initially stayed with Mrs B, but on 31 May 2017 the Local Authority issued an application for an Emergency Protection Order and an interim Care Order. The latter was granted on 8 June 2017. The children have been in foster care since 31 May.
6. The Local Authority seeks 16 findings. They are grouped under four headings. Numbers 1 to 5 are in relation to alleged non-accidental injury amounting to physical harm. Numbers 6 to 8 are under the heading inappropriate, cruel and/or excessive punishment amounting to physical and/or emotional harm. Numbers 9 to 15 are under the heading domestic abuse amounting to emotional harm to D and/or L, and number 16 is under the heading of mental health relating to Ms C. None of the findings relate to Mr B.
7. Ms C and Mr H accept that the threshold is met but solely on the basis of harm caused to L as a result of domestic abuse in their relationship; they contest the rest of the allegations. In particular, they deny that they caused the bruising to L.
8. The law is that it is for the Local Authority to prove the allegations on the balance of probabilities. The same standard of proof, namely the ordinary civil standard, applies, irrespective of the seriousness of the allegations. I give myself the classic Lucas direction in this case, namely that just because a person lies about one thing, it does not follow that they are lying about everything else or other things, and, secondly, that people lie for many reasons, including fear, guilt, embarrassment or to protect others.
9. The evidence in relation to the injuries has come from Ms Giardina, the allocated social worker at the time, from Dr Das, who carried out a child protection medical on 22 May 2017 and from Dr Yadav, consultant paediatrician, who produced a report and an addendum based on Dr Das' notes and photographs of L's bruising. There is a report from Sandy Gaskins, a clinical psychologist, in relation to L, of November 2017 and psychiatric reports on both Ms C and Mr H from Dr Royston. All these experts gave oral evidence. There is police evidence, including records of callouts to Ms C's address, photographs of L and transcripts and DVDs of interviews given by Ms C and Mr H to the police. I heard from the mother and Mr H and also from the social worker who took over from Ms Giardina, Ms Inma Macias Sanchez.
10. The history, as far as it is relevant, is this. Ms C has ADD, diagnosed when she was a teenager, which is usually well controlled with two medications. She also has depression, which, again, is well controlled with antidepressants. She says that she has only not taken her medication while pregnant and breastfeeding and there were also a few days before 19 May 2017 when she was without her medication, due to a local shortage.
11. Her relationship with Mr B broke up in late 2014, and she says that L was very upset by this and she herself became depressed. Her relationship with Mr H started in around, I think, September 2015. On finding out about this, she says that Mr B caused damage to her flat, which led to her moving in with Mr H. She became pregnant soon after the start of her relationship with Mr H, and D was born the following [a date in] 2016. In terms of Mr H, he himself had a very abusive childhood at the hands of his father, after his mother left him and his sister with the father when he was only four.
12. There were concerns about domestic violence between Mr H and Ms C as early as April 2016 when L told the nursery that:

"Mr H hits Mummy and causes bruises."

13. There are then a number of records of police callouts to Ms C's home, including on 31 July 2016 and, importantly, on 22 October 2016, when she was seen outside the property with L with obvious injuries including bruising to her face and a cut lip; indeed, L pulled her top down to show the police an injury on her shoulder. Ms C refused to say who caused these injuries, save to say that L had hurt her lip throwing a toy at her. She did tell the police that whoever had done this had been strangling her so that she could not breathe or speak, but she said that she did not want him arrested and was clearly anxious, according to the police notes, that Mr H would not think that she had made any allegations against him. She subsequently made a statement to the police claiming she had been assaulted by an unknown woman in an alleyway, although she now admits that that allegation, together with the suggestion that L had caused the cut lip, were both false. Despite lack of co-operation by Ms C, Mr H was convicted of common assault on her and was sentenced to a community sentence and unpaid work requirement. He did not comply with that sentence, and eventually it was substituted with a suspended sentence.
14. There were then an increasing number of callouts between February 2017 and 15 May 2017, including four alone in May. Usually neighbours reported hearing raised voices and arguing between Mr H and Ms C. Social services had become involved the previous year and the children were under a child in need plan. Throughout that involvement, Ms C remained unco-operative with social services and denied that there were any problems in the relationship and, on occasion, denied access to her property. Mr H was seen by the police on one occasion as being very aggressive and out of control. Despite receiving lots of advice and support about domestic violence services, Ms C did not engage. She told the Local Authority that she and Mr H were living separately, but this was not true.
15. In their oral evidence to me, Ms C, who has now completed the Freedom programme and is taking part in what is called the Toolkit, which, I think, is a further support group, admitted that arguments between them became more and more frequent, eventually becoming weekly. They both admitted that the arguments were over any little thing, and Ms C said that the pattern would be that Mr H would try to stop her shouting and would have her on the floor, strangling her, with his knee on her stomach, and she would scratch him to get him off her, and that this is what happened on 19 May while L was at nursery.
16. On 22 May, when the social worker went round, she saw that Mr H had a gouge to his nose and scratches on his arms, and Ms C volunteered, without being asked, that she had done that. Ms C's and Mr H's account to the social workers of how L developed the marks is that they appeared on 19 May. After the argument that I have just referred to, Ms C collected L from nursery. She said:

"He wouldn't listen, was probably running off",

and when they got home she sent him to his room to calm down. She said that this was a strategy which the social worker at the time had suggested to deal with L's behaviour. Mr H said that he did not even see L before he went to his room. They agree that L was crying and tantruming for about 20 minutes until he calmed down, which is when Ms C let him out, although the door was not locked.

17. When he came out of his bedroom, she says that he had lots of little red dots on his forehead and back of his neck and the area under his eyes was deep red and puffy. Mr H thought, in addition, that he had little red dots under his eyes. They both thought this must be a rash. However, the next day the marks looked more like bruises, and Ms C called 111, and we have the transcript of that call, when she gave the same account of him crying and coming out with the little red dots, etc, and she said to the operator it was weird. She was advised to see a GP.
18. Over the weekend Mr H's sisters turned up uninvited, and Ms C remembers telling them the same account, because, of course, they could see the bruises. On Sunday she went to the pharmacy at Asda to try to collect her prescription and showed L to the pharmacist, who also suggested going to the GP. She says that on the Monday morning she went to a neighbour to use her phone, as both Ms C and Mr H had run out of credit on their phones, and tried to call the GP but could not get through. At about 10 o'clock the social workers arrived.
19. After the removal of the children, it is worth noting that Ms C allowed Mr H back into her home in June 2017. He again seriously assaulted her on 23 June, just after she had undergone a termination of pregnancy. She says he punched her in the stomach and strangled her, and she went to her aunt's, Ms G. This time she supported a prosecution. Mr H pleaded not guilty but was convicted and is serving a prison sentence of eight months currently.
20. Turning, then, to the evidence, I have to say that the beginning of the investigation into the marks seen on L was marred by poor evidence collection. Ms Giardina and her colleague had the crucial first conversation with L in his bedroom on 22 May. Despite Ms Giardina appearing on the witness template for several weeks prior to this final hearing, she apparently was not warned about coming to Court until the day before she was due to give evidence. As a result, she did not have her case notes with her and could remember very little. There was an adjournment to allow her to go back to the office to try and find the original notes she made of that interview. She could not find the notebook she used, but she did print off the case note that she says she entered onto the Local Authority's system on the evening of 22 May. She says that, given the concern for the children's safety and all that they had to deal with on that visit, she had to amplify the few notes she had taken during the visit while sitting outside in her car at the end of the visit. She then typed up the case note. She also wrote the first statement for the proceedings only two days later, on 24 May.
21. Despite the proximity in time of the creation of both the case note and the statement, there are striking differences between them. The case note describes that:

"L was playing with his toys and showing us his books. He stated he had been naughty and Mr H put him in his bedroom. L said this made him cry. Lorraine [That is the other worker] showed L a Mickey Mouse toy and asked him about Mickey's eyes. L did not disclose anything about injuring his eyes."

22. In her statement, however, the account is this:

"L was immediately spoken to alone by the social workers but did not disclose how the injuries occurred. L stated that Mummy and Mr H were having a moody and he was sent to his bedroom for being naughty. L stated he had not been naughty and he'd cried in his bedroom."

23. It was apparent that the reference about 'having a moody' comes in the second statement, not the first, and the statement about Mr H having sent him to the bedroom appears in the first, not the second. To make matters worse, in her oral evidence, some ten months later, Ms Giardina thought that she remembered seeing a mark on the back of L's neck, which does not appear in either the note or the statement, and, indeed, no mark is noted on Dr Das body maps. I, therefore, have to approach Ms Giardina's evidence with some caution as to its accuracy, but, in essence, all it tells me is that L said that he was sent to his room, he cried and he made no allegations as to how he got the bruises/ marks.
24. Now I turn to Dr Das examination. He completed the familiar body maps, showing the marks found on L. Unusually the body maps are not dated. The sizes of the marks are not given and the marks are not described in terms of colour or appearance. Dr Das report suggested that there was a suspicion of non-accidental injury as the bruising to the eyes was to both eyes. His report is, I think, also marred by the fact that he gives no indication as to what was said by the social worker in the presence of the mother or later in their chat after Ms C had left. Dr Das said frequently in evidence that he could not remember, and was altogether an unimpressive witness.
25. Then I turn to the police evidence. There are three photographs of L's face showing the bruising. Extraordinarily, the photographs are undated, and the Local Authority has not been able to ascertain when they were taken. It appears that it must be after 22 May. Certainly the bruising as it then appears is different to the marks noted by Dr Das. In particular, the bruising appears to be more diffuse, rather than the linear marks he depicts. It is also worth noting that the police do not seem to have considered an Achieving Best Evidence interview with L. As I have said, Ms C and Mr H attended the police station of their own volition and were interviewed under caution. I have watched the DVDs of those interviews. They gave the same account as they did initially and have done at all times subsequently.
26. So then I come to Dr Yadav's report. This is dated 8 August 2017. In essence, his conclusion is as follows:

"The forehead is a prominent part of the face and likely to be injured in accidental falls, and in my opinion the injuries to the forehead could have been caused accidentally in an active, mobile child",...which describes L). He goes on to say:

"The area around the eyes protected by the eye socket and the skull bones are less likely to be injured in accidental falls. The only explanation given by the family was that he was sent to his room and he cried and rubbed his eyes. In my opinion the bruising is extensive bruising on both sides of the face and the areas around his eyes, and these are not likely to be caused by a child using his hands to rub his eyes and are likely to have been caused by blunt injury. There is no pattern seen in the bruising, hence I am unable to comment if any implement has been used. In my opinion these injuries are likely to be from blunt trauma applied with significant force. It is not possible to time the bruises based on colour or shape, hence I'm unable to time the injury. The force used to cause these injuries was likely to be significantly more than what is used for usual playful activity in children of his age, one to ten."

27. He describes the injuries as petechial bruising, extensive petechial bruising to the forehead and bruising to both eyes. Throughout the rest of his first report and his addendum report, Dr Yadav repeats those conclusions. The parents did put forward a suggestion, as noted in his report, that L has a habit of rubbing his eyes hard when crying, but Dr Yadav, both in the report and in the witness box, said he had never known a child sustain bruising in that fashion. The parents also suggested that L, whilst in his bedroom, could have fallen onto the floor or a piece of furniture or a toy. Dr Yadav's opinion in an addendum report is that if that had happened, L is more likely to have injured a bony prominence, i.e. his forehead, his nose, his chin, and that is unlikely to have caused the bruising to his eyes. He was also asked whether L could have, essentially, punched or hurt himself in his eyes, i.e. caused the injury himself, and his response to that was that L had not been seen, either before or after, to have done any such thing.
28. In the witness box he continued to maintain that the three likely causes of the bruising were blunt trauma, serious infection or a blood disorder, and the last two were ruled out by the blood tests ordered by Dr Das. The most likely explanation, he maintained, is blunt trauma, using fist, fingers or an implement. However, in cross-examination he did concede two very important caveats. Firstly, that if there was an accidental injury to L's forehead, which he had already flagged up in his report as possible, the bruising round the eyes could be from blood tracking down subsequently and pooling in the lax skin under the eyes. However, Dr Yadav said that if this were the case, one would usually see what he described as racoon eyes, i.e. bruising all the way round. The other caveat, which is not mentioned at all in his report, is that petechiae, i.e. the little red dots, which are, in fact, bleeding in the skin, can be caused by straining, vomiting or crying. However, Dr Yadav said that in that case they are usually seen over the top half of the body. He also conceded that some of the petechiae could have faded more quickly than others, and certainly Dr Das, as I have said, found nothing on L's neck by the time of 22 May.
29. Both counsel for Ms C and Mr H, that is Ms Porter and Mr Braithwaite, have made criticisms of Dr Yadav's report, and I have to say that I agree with those criticisms. The chief of those is that Dr Yadav does not acknowledge anywhere the limitations of the evidence on which he was basing his report, namely the undated photographs and the poor body maps prepared by Dr Das. Without dated photographs he cannot know how much time had elapsed since 19 May before the photos were taken. He cannot know how these injuries progressed, how they changed or, indeed, what they looked like at any point prior to the photographs, save for what Dr Das managed to convey.
30. But the second failing, in my judgment, is that he simply did not engage with the account given by Ms C and Mr H. They have said all along that L cried, and I think it is a significant omission by Dr Yadav to even mention the possibility of crying causing petechiae, and this in a child who, as we know, is capable of working himself up to a pitch of emotion. He also does not follow through the conclusion in the report that the forehead injury could have been accidental, and again I think it is significant that he did not even mention the possibility of blood tracking down.
31. In my judgment, he is far too dogmatic in his conclusions, and both in his report and answers to questions and in his oral evidence he was dismissive and, indeed, impatient with questions or alternative explanations. I am afraid that I have to conclude that his evidence cannot be said to be fair or balanced, which therefore limits the reliance that I can place on his conclusions.
32. So let us turn to Ms C's and Mr H's accounts and their credibility. Ms C has, as she admits, lied blatantly to the police in October 2016. She has also lied to social services at times. Her statement contains an untruth, namely about the 19 May argument, where she says she scratched Mr H because he was restraining her/comforting her, which, I observe, was always an unlikely explanation. However, in my judgment, her oral evidence was markedly different, and I consider that she was open and candid with the Court. She admitted she had contact with Mr H in August last year and a long phone conversation with him in January this year, when he managed to ring her using WhatsApp after she had blocked him using any other method of contact. She told the Court things that she did not have to and which, arguably, might put her case in a worse light. I am thinking in particular of the fact that she told me that she had made repeated promises to L that the arguments and fights would not happen again. She conceded there were many more incidents than those recorded by the police. She agreed that Mr H had held his hand over L's mouth at least twice, she thought, for about two minutes.
33. If I ask myself why she lied on previous occasions, in my judgment it was because she was frightened of Mr H and frightened of the consequences of being honest with the police, and, indeed, her desire to protect him and her fear were obvious to the police, as set out in their report. Indeed, it seems to me that the incident of 22 October 2016 is a paradigm of what was going on for Ms C and L throughout their cohabitation with Mr H. From Ms C's evidence, the police reports, L's comments, social services' own evidence, in my judgment her relationship with Mr H has all the hallmarks of a highly abusive and controlling relationship.
34. Whilst Mr H's evidence was somewhat contradictory, he did admit that:

"Most of the reason for the arguments, I can't let things go. I'm petty. I pick on the littlest things. I need clarity with how we stand with one another. If we're not totally in agreement it plays with my head."

35. I am satisfied that there were arguments of increasing frequency over any little thing, which often led to severe and, indeed, potentially lethal violence from Mr H to Ms C. There is evidence of the family having to tiptoe round his moods. The effect of the situation is that Ms C, as is common with victims of domestic abuse, isolated herself from her family. She denied that there was anything wrong and she was not able to accept help, and, as the courts see very frequently in such cases, she stayed with Mr H or went back to him because, as she said, she felt lonely and at times as if he was the only person who understood what she was feeling. She describes herself as 'in recovery', which I think is a good description. It is well known that the effects of domestic abuse are corrosive and it takes time for a victim to process what has happened, see the behaviour for what it is and to recover one's confidence.
36. Turning to Mr H's evidence in the box, he said that he could not remember a very great deal. I thought that he had a somewhat selective memory, but, as I have said, he was also contradictory, and he did in fact admit that he had caused the October 2016 injuries, despite denials to Dr Royston and in his statement. It was noticeable from the cross-examination of mother, which he instructed Mr Braithwaite to put, and from his own evidence, that he is very concerned with how he is viewed. In my judgment, he seems to have conflicting impulses over the domestic abuse. He has in the past and at times now been able to admit his responsibility, but at other times he is anxious to impress on the Court that it was not all his fault. One can only have compassion for Mr H for the childhood abuse he suffered, but he needs to take responsibility for his actions as an adult. It was never the mother's case, nor the Local Authority's case, that he is wholly responsible for L's current behaviour. Whatever injuries Ms C caused Mr H during his assaults on her, he needs to accept that he was the perpetrator in this relationship and the sooner that he can do that, the greater the chances, as he put it, that he will be able to better himself.
37. So, as I have set out, both Ms C and Mr H have at times lied or had a lack of honesty around the domestic abuse. What, then, of their accounts of 19 May last year? They both have a propensity for aggression or violence. Mr H has the two convictions for domestic violence. Dr Royston said he had obvious anger issues. Ms C admits that when she is not taking her ADD medication she is more short tempered and can be aggressive, and there had, of course, been that argument or fight that very day when Mr H had suffered the scratches. The Local Authority says that these parents have given no cogent explanation for L's injuries and, indeed, no detailed account of that day and that that suggests that one or other perpetrated the injuries and that the other failed to protect. The parents say that they have told all they know. I note that Ms C's account in the 111 call is consistent with what she has always said. That was a call before, one might say, anyone from authority got involved, and it would perhaps not have been wise to make that call or, indeed, let Mr H's sisters in to the home if those injuries had been inflicted. I should say that neither Mr H nor Ms C are unintelligent.
38. It is also, I think, noteworthy that even now, when both of them have reason to be angry at the other for different reasons, they do not accuse the other of being responsible for the injuries. Crucially, in my judgment, L has at no time, either on 22 May or at any point in the intervening ten months, made any allegation against either of them that they caused the bruising or indeed referred to the bruising to his eyes at all. L is a very bright boy by all accounts, who has made various allegations of different kinds against both his mother and Mr H. I will say more about those later, but if I take what he said at face value, he has said nothing about his eyes. If he had been punched in the face or poked in the eyes he would have known it and he would have remembered. As to the lack of a detailed account of that day, it seems to me that sadly this is a case where the arguments between the parents were so frequent and it was so common to send L to his room as a punishment, that they simply cannot remember the details of individual occasions.
39. So coming to the schedule of allegations the relevant date is 22 May 2017, when the children were removed under the written agreement. 1A recites the fact of the injuries that L sustained. Those are accepted and clearly he did sustain them. However, for the reasons set out above, I am not satisfied that either Ms C or Mr H caused those injuries, and I am not satisfied that, in fact, they were inflicted injuries at all. The Local Authority have not proved their case on the balance of probabilities. That being the case, numbers 2 and 3 on the schedule are not proved. 4 is an allegation that they failed to pursue timely medical examination for around three days. Mr Clough, for the Local Authority, does not really pursue this. It seems to me not a proper finding to seek. There was no need for medical examination or treatment, but, in any event, Ms C did, in my judgment, make appropriate efforts to have medical professionals comment on the injuries. 5 is not proved in terms of being open and honest as to how the injuries were sustained.
40. Turning, then, to the issue of punishment, number 6 alleges that Mr H held his hand over L's mouth. That is admitted by Mr H on one occasion. Ms C says it was twice. I accept what she says, and I also accept that it was for an extended period on each occasion while Mr H was holding L against his body. It must have been very distressing for L, and I accept that Ms C objected to that action.
41. 7 and 8 are in relation to what L has said to the foster carer at various points, as recorded in the foster carer's notes. 7 is that Ms C put her hands around L's throat and choked him, and has told L that if she pushes hard on the bone in his throat it will kill him, or L has witnessed this. 8 is that Ms C and/or Mr H have used physical chastisement, including slaps and pushes, to L's face, head, bottom, back and/or other parts of his body. I have to say that if we read the foster carer's notes, L has, particularly at the outset, said a lot of very distressing things, goading the foster carer to hurt him when he has been naughty and putting his hands round his throat and making gasping sounds.
42. Ms C and Mr H admit that they used to smack his bottom, and Ms C admits that L has seen Mr H strangling her and has heard her say:

"Don't hurt me. Don't strangle me. You'll kill me."

43. And it may well be that L is acting out what he has seen or trying to make sense of his experiences. Quite properly, Mr Clough concedes that the evidence may not be sufficient to prove those allegations. I cannot be satisfied on the evidence I have got that Ms C has choked L or made that threat or that either of them has slapped or pushed him, other than as admitted. However, in my judgment, the evidence does point to a lack of empathy from both of them towards L. Mr H certainly saw L as difficult, and there were, in my judgment, inappropriate punishments, particularly sending L to his room for long periods without any comforting or what the school would call reparative conversation at the end of the time. I know that this is what Ms C understood the social worker to have advised, but it seems to me that she, too, shared, to some extent, the notion that there was something wrong with L rather than L being or acting as he did as a product of what he was going through. I would certainly not call anything that happened cruel or excessive, but it was inappropriate with a lack of empathy.
44. I think it is also right to make a finding that there have been extended periods in L's life when Ms C has not been as emotionally available to him as he needed. She admits that she is more short tempered when she is not on her medication, and Mr H describes her as more cut off. There was the period of her pregnancy with D when she was off her medication, as well as the period of her relationship with Mr H, when, because of what was happening to her, I think it is likely that Ms C simply did not have the emotional energy to focus on L's needs. However, I think it is an exaggeration to say, as Ms Macias Sanchez did, that this was the case for almost the whole of L's life.
45. Turning, then, to the domestic abuse, I have made findings about the extent and responsibility for the domestic abuse already. It is quite obvious, and, indeed, it is admitted, that both children were present during these arguments and assaults and would have seen or at least heard them. They would have seen the injuries on their mother and on Mr H. L even now talks about the shouting and arguing from them both. As I said, the 22 October 2016 incident really shines a light on what was going on, firstly because L was blamed by Ms C for one of her injuries in front of him, but, secondly, because at the age of three he had the presence of mind to pull her jumper down and show the police the injury that she had not told them about. This speaks volumes, in my judgment, that L, even at that age, could not trust Ms C to protect either herself or him. So 9 is made out. I think the fact that MARAC has assessed the case as high risk is, frankly, not a proper threshold finding, but 9 is made out, as I have already said.
46. 10 is an allegation that mother has failed to protect the children by failing to separate from Mr H while the children were in her care, minimising and excusing incidents of physical abuse and failing to pursue prosecution or engage with the support services. Well, she did do all those things. However, in my judgment, it is not appropriate to classify the effect of Ms C being a victim of domestic abuse as a failure to protect. Domestic abuse has a corrosive effect on the victim, sapping her self-confidence, sense of self-worth and agency. I have found that this is what happened to Ms C. I understand Mr Clough's submission that one needs to look at the effect on the children, and, indeed, I am coming to that, but if the Court takes domestic abuse seriously, as it does, and understands its nature and effect then it is simply not appropriate to make a finding of failure to protect, with its connotation of culpability. That is not to say that the court will not need to look at whether Ms C has taken on the learning from the Freedom programme and will be able to keep herself and the children safe in the future.
47. 11 is in relation to L's aggressive and violent behaviours, and those are amply evidenced, and I find that that is the case. 12 reads as follows:

"L presents with poor emotional regulation and aggression and has" I think that must be 'a diagnosis' "of developmental trauma disorder related to experience of witnessing and being the subject of violence within the home."

48. This diagnosis comes from Mrs Gaskins. She admits that it is not a recognised diagnosis. It was put forward in a paper by a group of psychologists in 2005. That has not been accepted by the main body of psychologists. In my judgment, it is not proper to put such a diagnosis in a Court report. What is abundantly clear, though, and this is her essential conclusion, is that L is a deeply traumatised child as a result of his experiences of the domestic abuse. He has not felt safe in the care of his mother and he does not trust her.
49. And that leads on to 13, which is that he has an insecure, ambivalent attachment to his mother, again as diagnosed by Mrs Gaskins, and that I accept. The trauma and insecurity do not just make L aggressive or have poor emotional regulation but they profoundly affect all aspects of his life. He is a child who desperately needs routine. They have impacted on his ability to settle at school, from which he has been excluded. They have impacted on the kind of care he needs.
50. 14 is in relation to D. 'D presents as a depressed and detached infant. Her exposure to domestic abuse in the home has caused her significant emotional harm'. The reference to 'depressed and detached infant' comes from Mrs Gaskins' report. It is a final addendum paragraph at the end of the report on L. She says that she felt it was her safeguarding duty to make the comment, having seen D's presentation whilst Mrs Gaskins was talking to the foster carer about L.

"Author's note: I have not been asked to comment on D's presentation but feel it is appropriate to say that D's placid and quiet behaviour when first placed in foster care makes me feel that her presentation was one of a depressed and detached infant. When babies do not receive appropriate care and protection they first become distressed, display despair and become detached. This is particularly prevalent in cases which include domestic abuse."

51. In my judgment, and, indeed, Mrs Gaskins accepted this, she has strayed well beyond her remit and is not entitled to reach that conclusion based on merely seeing D once; it was not even an observation. This is in no shape or form a proper assessment of D. Insofar as Mrs Gaskins was concerned that D did not seem bothered or upset by her presence, her views are contradicted by that of the foster carer, who said that whilst D was a placid child when she first came into care, the foster carer had no concerns about her. And, indeed, the foster carer's notes show that within days D was animated and playing normally. Mrs Gaskins, in oral evidence, said that the foster carer told her that D does not know how to play, she pokes at toys. There is no evidence of that from the foster carer, but one would have to factor in what is now known, that D does not have sight in one eye and there could be co-ordination issues. So I am afraid that that so-called diagnosis just cannot stand, nor is there any evidence that D has suffered significant emotional harm as a result of the domestic abuse. She has clearly been exposed to it, and at the relevant time there was clearly a risk that she was likely to suffer significant emotional harm as a result of that abuse, but, apart from that finding, I make no further finding in relation to 14.
52. Mr Clough concedes that 15 does not take matters further. I agree. As to 16, he does not pursue this, but I think it is worth saying that it is simply not right to say that Ms C has failed to take her medication consistently. She has taken it consistently, save where advised not to, namely when she is pregnant and breastfeeding or when she could not get hold of it.
53. So those are the findings which I am prepared to make.