Jersey Unreported Judgments

[2010]JRC174

royal court

(Samedi Division)

17^th September 2010

Before     :

Miss P. Scriven, Q.C., Commissioner and Jurats Morgan and Fisher.

 

IN THE MATTER OF QQ

Advocate E. L. Hollywood for the Minister for Health and Social Services.

Advocate D. A. Corbel for the Father of L and M.

Advocate V. Myerson for L and M represented by Guardian Tracey Goode.

Advocate P. Nicholls for the Mother of D and E.

Advocate Colley for D and E represented by Guardian Leonora Green.

judgment

the commissioner:

1.        The court is being asked to consider issues in relation to four children. They are:-

(i)        L,, who was born in 2004;

(ii)       M, who was born in 2006;

(iii)      D, who was born in 2004; and

(iv)      E, who was born in 2006.

2.        L and M are the children of X and C.  D and E are the children of B and A.  Their lives became closely linked between about late May and August 2009 when all four children lived in the same household in the care of C and A who had formed a relationship.  As a result of intervention by the Children's Service, the reasons for which will be dealt with later in this judgment, all four children were moved from the care of C and A on 21^st August 2009 (initially by voluntary agreement and later under interim care orders) and care proceeding were commenced in relation to all four of them on 21^st September 2009.

3.        All four parents were made parties to the proceedings.  Only two have participated fully, C and A.  B has a history of mental illness within the schizophrenic spectrum (described in the report of Dr Harrison dated 28^th April 2010) and he has played no part in these proceedings except for sending two letters to the court to which reference will be made later.  X now lives in Madeira with her new husband. She did not participate except to sign forms agreeing to L and M being freed for adoption, and also by giving live evidence by video link to this court.

4.        L and M are now living with X's sister and her husband, Mr and Mrs G.  It is a placement which appears to be working to their benefit, and the evidence from all the professionals who have reported on it (including the Guardian of L and M) is that they are flourishing there.  Their parents accept that they are happy there and it is in their best interests to remain permanently with Mr and Mrs G.  All parties concerned with L and M agree that a residence order should be made in favour of Mr and Mrs G and that an order should also be made freeing them for adoption.  All agree that, if the court approves this course, then it is not necessary for a care order to be made to the Minister.  The Guardian of L and M asks the court nonetheless to make findings about the treatment to which L and M have been exposed in their lives on the basis it is relevant to their life story work and to their own understanding of their history.  In any event, all parties accept that consideration of the dynamics of family life in the house which they shared with D and E whilst under the care of A and C is highly material to the proceedings which are being brought in relation to D and E; and that those findings are intertwined with the assessment of the harm which has been or is likely to be suffered by D and E in the care of A and C.

5.        As far as D and E is concerned, it is accepted that the first exercise which this court must carry out is the fact finding exercise: that is to determine whether or not they have suffered or are at risk of suffering significant harm within the meaning of Article 24 of the Children (Jersey) Law 2002.  If the "threshold criteria" (as they are frequently called) are satisfied, all parties accept that the decision as to what order will best promote the welfare of D and E must be adjourned.  The Care Plan had proposed a placement with B's sister, Ms O, but a recent medical report from her general practitioner (received after preparation of the Care Plan) has raised considerable concerns in the mind of D and E's Guardian and the Minister as to the suitability of this placement.  The proposals which the Minister makes for their long term care therefore need to be reconsidered, and so, if the threshold criteria are met, final decisions about their welfare could not be made today.  In any event, as will be clear from this judgment, in the court's view, if the threshold criteria are met, it will be extremely important for all the professionals advising the court to consider where the welfare balance lies for D and E in the light of the findings which are actually made by this court and not simply on the basis of impressions which may have been gained by them from reading untested written evidence.

6.        In relation to D and E, the Minister and D and E's Guardian support findings that the threshold criteria are made out.  It is argued on behalf of A and C that they are not; or that, even if they are, matters have now moved on.  They say that things were particularly stressful whilst L and M also lived in the home, and that they have learned and will learn how to remedy the defects in their parenting so as to enable D and E to come home.  A is expecting a baby due in August, the father of whom is C, and they wish to be able to live with all three children in their care.  If the threshold criteria are met, those arguments will require close examination at the welfare hearing when final decisions come to be made.

7.        In considering this case, we have been guided by the following principles.

The Law: The Care Proceedings

8.        By virtue of Article 24(2) of the Children (Jersey) Law 2002:-

"The court may only make a care order or supervision order if it is satisfied -

that the child concerned is suffering, or is likely to suffer, significant harm; and

that the harm, or likelihood of harm, is attributable to -

the care given to the child, or likely to be given to the child if the order were not made, not being what it would be reasonable to expect a parent to give the child."

9.        Article 24(6) provides:-

"In this Article -

"harm" means ill-treatment or the impairment of health or development;

"development" means physical, intellectual, emotional, social or behavioural development;

"health" means physical or mental health; and

"ill-treatment" includes sexual abuse and forms of ill-treatment which are not physical."

10.      It is well established that satisfaction of the threshold conditions in Article 24(2) is a necessary condition for the making of a care or supervision order; but that the finding that the threshold conditions are satisfied does not automatically lead to the making of a care or supervision order.  If the threshold conditions are satisfied, the court must go on to consider at the "welfare" stage of the case what is in the best interests of each of the children concerned in accordance with the principles which are set out fully in Article 2 (and which includes taking into consideration the full range of powers available to the court, including the making of no order).

11.      There is no statutory definition of significant harm.  In the English case of Humberside County Council v B [1993] 1 FLR 257 Booth J approved of a formulation that the words "significant harm" in section 31 of the Children Act 1989 (which is in identical terms to Article 24(2) of the Children (Jersey) Law 2002) meant harm which was considerable, noteworthy or important and was harm which a court should take into account in considering a child's future.  In the English case of Re MA (Care Threshold) [2009] EWCA Civ 853, [2009] Fam Law 1026 Ward LJ said:-

"the harm must . . . be significant enough to justify the intervention of the State and disturb the autonomy of the parents to bring up their children by themselves in the way they choose."

12.      In that case Ward LJ approved the following passage of the judgment of Hedley J in the case of Re L (Care Threshold Criteria) [2007] 1 FLR 2050 [at paras 50-51]:-

"[50] What about the court's approach, in the light of all that, to the issue of significant harm? In order to understand this concept and the range of harm that it's intended to encompass, it is right to begin with issues of policy. Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in Re KD (A Minor Ward) (Termination of Access) [1988] 1 AC 806, [1988] 2 FLR 139, at 812 and 141 respectively, said this:

'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.'

There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.

[51]   That is not, however, to say that the state has no role, as the 1989 Act fully demonstrates. Nevertheless, the 1989 Act, wide ranging though the court's and social services' powers may be, is to be operated in the context of the policy I have sought to describe. Its essence, in Part III of the 1989 Act, is the concept of working in partnership with families who have children in need. Only exceptionally should the state intervene with compulsive powers and then only when a court is satisfied that the significant harm criteria in s 31(2) is made out. Such an approach is clearly consistent with Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Article 8(1) declares a right of privacy of family life but it is not an unqualified right. Article 8(2) specifies circumstances in which the state may lawfully infringe that right. In my judgment, Art 8(2) and s 31(2) contemplate the exceptional rather than the commonplace. It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life. Significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it. Moreover, the court recognises, as Lord Nicholls of Birkenhead pointed out in Re H and others that the threshold may be comparatively low. However, it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy. It is in that context that I have sought to evaluate the factual findings I have made in this case."

13.      This passage has also been cited with approval by the Court of Appeal in Jersey in the case of In the matter of F and G (No 2) [2010] JCA 051, where it was said [at para 6 (ix)]:-

"We find that too a helpful definition because it reminds us not to fall into the trap of concluding that merely because children might be better off away from their natural parents an order is warranted. More is required to justify severance of such familial links"

14.      The task of the court is to consider parenting standards against the test of that which a "reasonable" parent would give a child.  However, it is important to look at the cultural context of the family, particularly when the parents have only recently arrived in the jurisdiction.  In the English case of Re K; Local Authority v N and Others [2005] EWHC 2956 (Fam) [2007] 1 FLR 399 Munby J said [at para 26]:-

"The task of the court considering the threshold ...... may be to evaluate parental performance by reference to the objective standard of the hypothetical "reasonable" parent, but this does not mean that the court can simply ignore the underlying cultural, social or religious realities. In the contrary, the court must always be sensitive to the cultural, social or religious realities. And the court should, I think, be slow to find that parents only recently or comparatively recently arrived from a foreign country - particularly in a country where standards and expectations may be more or less different, sometimes very different indeed, from those with which we are familiar - have fallen short of an acceptable standard of parenting if in truth they have done nothing wrong by the standards of their community. The court may consider the significance of harm in the setting of the cultural standards of the parents community, particularly in circumstances where parents are recently arrived.''

15.      The range of facts which may properly be taken into account in determining whether the threshold conditions are met is infinite.  In Re H (Child Sexual Abuse: Standard of Proof) [1996] ALL ER 1 Lord Nicholls said:-

"The range of facts which may properly be taken into account is infinite. Facts include the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue."

16.      Where, as here, a number of children are the subject of similar applications being heard together by the same court, the court must consider whether, in the case of each child, the threshold criteria are satisfied.

17.      In the English case of Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 AC 424, [1994] 3 WLR 558, the House of Lords held that the relevant time for considering whether the threshold criteria were made out in a case where protective measures have been put in place as a result of local authority intervention, and have remained in place until the time of the hearing, was at the time those arrangements were initially put in place.  In this case the Minister initiated the arrangements for child protection on 21^st August 2009 and they have been continuously in place ever since: thus this court must consider whether each of these children was suffering or was at risk of suffering significant harm on 21^st August 2009. 

18.      In order to establish that a child "has suffered" significant harm, it is necessary for the Court to be satisfied that the relevant factual matrix of past events is established on the balance of probabilities (see Re B (Care Proceedings) Standard of Proof) [2008] UKHL 35).  In the words of Baroness Hale (at para 32):-

"In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place."

19.      She went on to say [para 70]:-

"....I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold ....... is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts."

20.      Suspicion that the child has suffered significant harm is not enough (Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563).  So, where a child has suffered injuries but the Minister is unable to prove that they were sustained non-accidentally, the injuries will be insufficient to satisfy the threshold criteria (CL v East Riding Yorkshire Council, MB and BL (A Child) [2006] EWCA Civ 49).

21.      The meaning of "likely to suffer harm" was considered by the House of Lords in Re H [supra], and it was held that:-

"... the context shows that ...... likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case."

22.      In order to establish that a child is likely to suffer significant harm, the court must be satisfied, on the balance of probabilities, that the facts upon which that prediction is based actually occurred (S-B Children [2009] UKSC 17).

23.      The treatment of another child in the family may be relevant, but does not automatically establish that 'the child concerned', who is the subject of the application, is himself likely to suffer significant harm.

24.      The House of Lords in Lancashire County Council v B [2000] AC 147 held that the threshold criteria is established by a finding that a child has suffered harm whilst in the care of his parents or other carers without the need to establish precisely who caused the injuries.  However, the issue of who caused the injuries may be relevant at the welfare stage.  Where the court is considering the identity of a perpetrator of an injury which has been proved to have occurred, the test is whether the perpetrator can be identified on the balance of probabilities (S-B Children [supra]).  Where the court is unable to identify the perpetrator, the court should identify the people who are in the pool of possible perpetrators.  The test is whether there is a likelihood or real possibility that one or more of a number of people with access to the child was the perpetrator of the injuries.  The court must then proceed on the basis that each person within the pool is a possible perpetrator (Lancashire County Council v B [2000] AC 147; Re O and N; Re B [2003] 1 FLR 1169).

The Law: Freeing for Adoption

25.      By virtue of Article 3 of the Adoption (Jersey) Law 1961:-

"In reaching any decision relating to the adoption of infants the Court or the Minister shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the infant throughout the infant's childhood, and shall, so far as practicable, ascertain the wishes and feelings of the infant regarding the decision and give due consideration to them, having regard to the infant's age and understanding."

26.      In relation to freeing for adoption, Article 12 provides that:-

"(1) Where, on an application by the Minister, the Court is satisfied in the case of each parent or guardian of the infant that -

(a) the person freely, and with full understanding of what is involved, agrees generally and unconditionally to the making of an adoption order; or

(b) .........

the Court shall make an order declaring the infant free for adoption."

27.      In relation to L and M, their parents never married and so X is the only person with parental responsibility.  It is her consent which is governed by Article 12(1)(a).  C is their father but he does not have parental responsibility for them.  In his case the statutory requirement contained in Article 12(7) applies.  The court is required to satisfy itself that he has no intention of applying within the next 6 months for an order under Article 5 of the Children (Jersey) Law 2002 (for a parental responsibility order) or Article 10 (for a residence order); or that, if he did so, it would be likely to be refused.

28.      The court is being asked to make a residence order in favour of Mr. and Mrs. G to secure L and M's placement with them pending any adoption order being made.  The purpose would be to ensure that L and M could not be removed from them without further order of the court.  This proposal, which emanated from the Guardian, has the full support of the Minister, and in effect reflects both X and C's expressed wishes to the court.  The court is persuaded it has the power so to order following the route proposed by the Guardian, to which no party makes objection. Mr. and Mrs. G have made an application for a residence order.  They are entitled to do so by virtue of Article 10(4)(c)(ii) of the Children (Jersey) Law 2002 because they have the consent of the Minister, in whose care both L and M are.  The test as to whether a residence order should be made is the welfare test set out in Article 2 of the 2002 Law.

29.      Upon the making of a freeing order, by virtue of Articles 12 and 20 of the Adoption (Jersey) Law 1961, any orders made under the 2002 Law are extinguished unless the court directs otherwise. Article 12(5) of the Adoption (Jersey) Law 1961 provides:-

"On the making of an order under this Article parental responsibility for the infant is given to the Minister and Article 20 (2) applies as if the order were an adoption order and the Minister was the adopter."

Article 20(2)(a)(i) and (ii) of the 1961 Law provides:-

"Where an adoption order is made-

(a) the following are extinguished-

(i) the parental responsibility which any person has for the infant immediately before the making of the order,

(ii) any order under the Children (Jersey) Law 2002 unless the court directs otherwise".

30.      We accept the submission that the effect of Article 20(2)(a)(ii) enables the court to direct that a residence order in favour of Mr. and Mrs. G made before the making of a freeing order should extend after the freeing order is made.

The Law: particular aspects in relation to the evidence

31.       In relation to the expert evidence in this case, the approach we take is set out succinctly by Wall LJ (as he was) in the case of Gateshead MBC v JM [2010] EWCA Civil 12 [at para 39], when he said:-

"I regard the following as trite propositions of law:-

(1) Experts do not decide cases. Judges do. The expert's function is to advise the judge;

(2) The judge is fully entitled to accept or reject expert opinion;

(3) If the judge decides to reject an expert's advice, he or she

(a) must have a sound basis upon which to do so; and

(b) must explain why the advice is being rejected.

(4) Similar considerations arise when a judge prefers one expert's evidence to that of another. Judges must explain why they prefer the evidence of A to that of B."

32.      The court is not entitled to reject expert medical findings which are not contradicted save in the rare case where such opinion is not capable of withstanding logical analysis (Re B (A Child)(Split Hearings: Jurisdiction) [2000] 1 WLR 790 at 797, sun nom Re B (Split Hearing: Jurisdiction) [2000] 1 FLR 334 at 341; Re B (Fact Finding Hearing: Evidence) [2008] EWCA Civ 1547, [2009] 2 FLR 14.)

33.      Some of the evidence before this court has been hearsay evidence.  Hearsay evidence is admissible under Civil Evidence (Jersey) Law 2003 Article 3 and 4.  However, this Court must assess the weight which may attach to such evidence with great care.  In Re W (Minors) (Wardship: Evidence) [1990] 1 FLR 203 at 227, Neill LJ observed:-

". . . hearsay evidence is admissible as a matter of law, but... this evidence and the use to which it is put has to be handled with the greatest care and in such a way that, unless the interests of the child make it necessary, the rules of natural justice and the rights of the parents are fully and properly observed."

In R v B County Council ex parte P [1991] 2 All ER 65 at 72J Butler-Sloss LJ (as she then was) said:-

"A court presented with hearsay evidence has to look at it anxiously and consider carefully the extent to which it can properly be relied upon."

34.      Any hearsay evidence in this case must be approached with those precepts firmly in mind.  The court also takes into account the factors helpfully set out in Article 6 of the Civil Evidence (Jersey) Law 2003 which provides:-

"(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings, the court must have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) Regard may be had, in particular, to the following:

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(a) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight."

35.      In considering the question of lies given in evidence, we bear in mind the guidance given in the case of R v Lucas (Ruth) [1981] 1 QB 720 in particular at 724G and F-H and in R v Middleton [2000] TLR 293.  We take into account the fact that a person may lie for some innocent reason, for example in an attempt to bolster up a just cause or out of a sense of shame, rather than to hide the fact that he or she has behaved in the way alleged.

The Factual Background

36.      All the parents are of Portuguese/Madeiran background.

37.      A was born in 1972.  She lived in Madeira until she was 18 (apart from two years in France in her childhood).  At the age of 18, and thus in about 1990, she came to Jersey. In 1994 she gave birth to a son Z by a man, Y, who is not concerned in these proceedings.  Z only lived in A's care until he was 5 months old.  From that time onwards he has lived with and been cared for by A's parents (his maternal grandparents) in Madeira.

38.      A later formed a relationship with a man K who sadly died in the early months of 1999.  She had a daughter by him, N, who was born in 1999.  There are allegations that she was violent and aggressive towards N which will be considered later in this judgment. Social Services became concerned about A's care of N during 2002, particularly following information passed to them by the police in October 2002.  On 5^th November 2002, N moved to Madeira to be cared for by her maternal grandparents, where she has remained in their care ever since.

39.      A then met and formed a relationship with B.  The relationship soon became characterised by domestic violence.  There were cross-allegations of violent attacks by each of them upon the other.  D was born to them in 2004.  In the course of an incident on 6-7^th June 2005, D became caught up in the violence when his head was knocked by A's head which had been slapped by B.  A and D moved to a refuge for a while, but the relationship continued.  D was placed on the At Risk Register on the basis he was at risk of physical abuse as a result of the by-product of domestic violence.  E was born in 2006 and was also placed on the At Risk Register.  In July 2006, Children's Services applied for an Interim Care Order due to concerns about the impact on the children of domestic violence.  A supervision order was made for 8 weeks.  In October 2006 it appeared that the parents had separated and the proceedings came to an end.  In fact, thereafter B and A briefly resumed their relationship but appear to have separated finally by about January 2007, when A moved with the children briefly to the Causeway Centre and thereafter into States' housing.

40.      In the course of 2006 or 2007 A began a relationship with C.  He had grown up in Madeira and came to Jersey in 1999.  A told Children's Services of the relationship in November 2007.

41.      On 11 June 2007 the nursery which D was attending became concerned about bruising he had suffered.  As a result D was examined on that day by Dr Johnson, a Forensic Medical Examiner.  He was found to have sustained two linear bruises to the left cheek each about 2 cms long, and another area of bruising over his left jaw approximately 3 by 2 cms.  Dr Johnson's view was that the marks to the face were consistent with slapping.  There was also a bruise above his left elbow the causation of which was, in Dr Johnson's view, uncertain. A accepted that she had caused the bruising to his face, saying that she had slapped him earlier in an attempt to reprimand him.  A has given various contradictory accounts of the circumstances that led to her slapping him which will be considered in due course.

42.      On 17^th October 2007 D was seen with a red mark on his face, and it was agreed he would stay with B's parents, V and W, for a period.  A strategy meeting held on the next day accepted that the explanation given by A of an accidental cause mirrored the injuries.

43.      On 17^th April 2008, D was seen by the Health Visitor, Ms Q, to have facial bruising, which A said was caused by other children fighting.

44.      On 11^th December 2008, D's nursery school became concerned about a cracked/bleeding lip suffered by D, about which D is reported to have said "Mummy did it...Mummy pushed me."  D later gave explanation that it had been caused by another child at the nursery, although the nursery considered it could not have been caused in that way because D had not been with the child in question unsupervised.  A member of the nursery staff thought it might have been a cracked lip was due to cold weather.

45.      On 3^rd February 2009, D was seen at nursery school to have a slight bruise to his eye and to have grazes on his spine, neck and shoulders.  A told the school that they had been cause by E hitting him on the eye, and by a bath brush.  The school reported the incident to Children's Services.

46.      On 13^th March 2009, A was apparently witnessed by other parents outside the nursery school which D attended slapping E on the face.

47.      On 19^th March 2009, at D's nursery school, a member of staff apparently witnessed A drag E along the floor, push her and smack her bottom.

48.      On 3rd June 2009, at D's nursery school.  A was apparently observed by one of the teaching assistants on the way to school at a pedestrian crossing.  D walked ahead and when A called his name and caught up with him, D was seen to put his hands to his face in a defensive manner as if expecting a blow to the face.  She then grabbed him by the back of the neck.  She was also seen handling M in a rough manner.  The reports of these incidents from the nursery school come through a teacher Ms CC.  They are largely hearsay.  Like all other hearsay evidence in this case, they will need careful evaluation.

49.      Towards the end of May 2009 X moved to live in Madeira.  After the breakdown in her relationship with C (L and M's father), L and M remained in her care.  It appears that they saw C's mother fairly frequently after C and X separated, but they only rarely saw C.  According to the evidence of C, they stayed with him and A on about three occasions shortly after the relationship between X and C came to an end, and then did not see him or not stay with him and A until about April 2009.  X married a man called P, an Egyptian national.  She had a child by him, U, who was born in 2008.  P had problems with his immigration status and was at risk of being deported to Egypt.  X therefore decided to go to Madeira with their child U to join him there with the objective of preventing his deportation.  She did not take L and M with her.  She arranged for them to go to live with C and A.  Prior to going she signed a document stating she was passing "full custody" to C.  At the end of May 2009, after a week with their paternal grandparents, L and M went to live with C and A, joining D and E as children of the family.

50.      In early June 2009, C and A together with all four children were re-housed in bigger accommodation.  The new accommodation was further from D's nursery school making it difficult for A, who did not have a car, to get him there.  At the suggestion of his paternal grandfather, W, D went to live with his paternal grandparents for about six weeks until the end of the nursery school term, and the paternal grandparents took on the responsibility of taking and collecting him from nursery each day.  He returned home for the school summer holiday.

51.      On 29^th July 2009, the Children's Service received a referral emanating from V, D and E's paternal grandmother, who had observed a mark under M's left eye which she reported the other children had said was caused by A because M would not eat her dinner.  Concerns were also reported that M was made to sit on the floor to eat whilst the other children sat at the table.

52.      On 30^th July 2009 Miss Jenner and another social worker, Miss Tandy from the Children's Service, went to A and C's home.  They saw a mark on M's left arm and three small bruises on her right upper arm.  M and L told Miss Jenner that the mark on M's face was caused because M would not eat her dinner.  M, L and E said that while the other children ate at the table, M sat on the floor.  M was taken for medical examination and her injuries were noted and described by Dr Barrett (to which we shall return).

53.      On 5^th August 2009, D told Miss Jenner that "mummy" (by whom he confirmed he meant A) and "daddy" (whom he confirmed was C) were sad because they were hurting M and L.

54.      On the following day, 6^th August 2009 Miss Jenner and a Health Visitor, Miss Pointon, conducted a joint home visit. They noted L and M to be sitting on the floor in silence and appeared as if cowering against the sofa.

55.      On 10^th August 2009, Miss Jenner and Miss Fernandes, a Portuguese speaking social worker, took L and M out.  L described living in a "sad house' where A "clouts" M on the back, arms and face.  Neither child wished to return home.

56.      On 21^st August 2009, Ms Jenner and Ms Fernandez made a visit to A and C's home.  Ms Jenner had been becoming concerned because A had not responded to phone calls from her, the family had failed to attend NSPCC Pathways on the previous day (despite attendance being an agreed part of the child protection plan) and, unusually, the paternal grandparents V and W had not been allowed to see the children that week.  On arrival, they were allowed into the home.  M had bruising to her left cheek as well as other marks including a dark linear bruise to the back of the leg and bruising to the buttocks.  Ms Fernandez asked M in Portuguese about the mark on her face and M replied in Portuguese that mummy did it.  M then went over to Ms Jenner and Ms Jenner asked her in English what was it on her face and M said in English "Mummy did it".  M was taken to see Dr Johnson who was concerned that a bruising on her cheek was a bite mark, and that the size of it (4 x 4 cms) would make it unlikely it was caused by a child.  She was also concerned that a linear bruise to the back of the leg was consistent with being slapped or hit by something, and that bruising to the buttocks may represent punches or finger tip bruising.  The bruising to the face was subsequently considered by a court appointed forensic odontologist Dr Martin.  We shall consider the evidence in relation to this in the course of this judgement.

57.      On 21^st August 2009 all four children moved from the care of A and C.  L and M initially went to their paternal grandparents, then briefly to a paternal aunt.  These family members could not keep them for personal reasons.  After a short period in foster care they went, on 10^th September 2009, to live with Mr and Mrs G where they have remained.  D and E went initially to their paternal grandparents V and W, who were unable to keep them for personal reasons. They then moved to foster carers where they remain.

58.      As we turn to consider the evidence, we record that we have read all the documents in the voluminous material to which our attention has been drawn, which includes the statements of all the witnesses, as well as the material parts of the notes and records.  We have heard oral evidence from the witnesses listed in Appendix A.  We have been helped by detailed written submissions from the advocates, supplemented by short oral submissions.  We have taken into account everything we have read and heard in the task of evaluating the evidence and drawing conclusions.

Cultural and Language Issues

59.      The court has borne in mind the cultural background of the parents as well as of many of the lay witnesses in this case, which is Portuguese/Madeiran.  It is a factor the parents come from within this community, and have tended to live within the community.  However, the parents are not newcomers, having lived in Jersey for many years.  There was some suggestion that rough handling and physical chastisement of children may be more common in the parenting given by members of this community, but a number of members of the community gave evidence to the effect that they regarded A's handling of the children as outside acceptable limits.

60.      Language was exposed as a difficulty in this case.  It is likely to have been a real problem from time to time as the parents and witnesses dealt with the agencies.  A stark example appeared in the evidence of Mr. DD, who was a neighbour of A for some years.  In a statement to the police he described seeing A "bite" the children on a number of occasions, and hearing D say "don't bite me".  In fact, when he came to give his oral evidence, having had his police statement translated to him, he was at pains to point out from the onset that there was an error in the police statement.  The word "bite" appeared several times in the police statement, but was a mistake for "beat".  All the references to "bite" in his statement in fact meant "beat".  We observe, having heard him, that his accent was such that the error was understandable.  Many witnesses, A and C included, were able to speak reasonable day to day English, but not subtle English, and there were moments when there were clearly difficulties in translation even with the assistance of the court interpreters, and several attempts had to be made to clarify precisely what was being said.  We have taken this into account when assessing the evidence of all the witnesses.  We have also taken it into account when considering the hearsay evidence of two witnesses who were not called, Mr EE and Ms FF.  We have borne in mind the fact that they are also members of the Portugese/Madeiran community, and have not given oral evidence to clarify whether what appears in writing is a correct record of what they wish to say.  In those circumstances, we do not think it would be prudent to place reliance on their untested evidence.

Positive factors

61.      The court is mindful of the fact that there are positive features in relation to both C and A which have not been emphasised in the course of the proceedings.  It is not suggested that either has problems with abuse of drugs or alcohol.  There is no suggestion that the house or the children have ever been dirty.  If anything, the criticism is made of A that she is, in effect, too house-proud.  Her home was always well looked after and clean.  There was complaint that the children were only allowed to have toys in their bedrooms, not in the living room.  We must make it clear that this seems to the court to be well within the range of parenting choices which it is open to individual parents to make without risk of state intervention.  When C and A moved with all four children to their new house in June 2009, the house had three bedrooms, two on the top floor, and one on the ground floor.  This was far from an ideal arrangement.  Criticism is made that they choose to put L and M in the bedroom downstairs.  However, we regard that as being within reasonable parental choice.  Whatever arrangement they had chosen could be open to some criticism.  Some weight was placed by the Minister on the fact that they were not honest to the social workers about where L and M were sleeping, but we accept there could have been some fluidity, with the children occasionally sleeping upstairs.

62.      There is no evidence that the relationship between A and C is characterised by domestic violence.  We shall return to this topic below, but we bear in mind that this is in contrast with the relationship between A and B.  The relationship between A and C, on the evidence available to this court, appears to be robust and loyal, although how it will develop only time will tell.

63.      Furthermore, we take into account that much of the recent contact has been of good quality.  C has only taken up just over half of the contact visits arranged for A and C, and has made them promises which he has not kept (which are factors which call into question his insight and commitment to them) but they have enjoyed seeing him when he has chosen to attend.  A does not see L and M but her contact with D and E is of good quality, although she has a tendency to give in to them in relation to eating and food during contact, and we are satisfied, on the balance of probabilities, that towards the end of the contact visit in August 2009, at a stage when E was upset, she behaved in a way which both the contact supervisor and V, D and E's paternal grandmother who was collecting the children, found intimidating.  D and E have regularly asked to go home during and at the end of contact.

Sexualised behaviour

64.      Some attention has been drawn by the Minister and by the guardian for D and E to what is labelled as sexualised behaviour.  It deserves careful scrutiny.

65.      Miss Querns, a Health Visitor, described how, during a visit to the home on 19^th February 2009, E took her nappy off, lay on the ground, pulled D on top of her and said "He is mine, he is mine".  It was a very quick episode, and A intervened when the health visitor asked her to do so.  When cross-examined on behalf of the Guardian for D and E, Miss Querns said: -

"I don't think you can say for sure that that was sexualised behaviour. It was behaviour that I witnessed --- that I saw. If it was sexualised behaviour, I can't say what they would have acted in that way".

She went on to say in answer to a question as to whether it could have been copied "from parents, adults, possibly?" that that could be possible. In her oral evidence, A could not remember the incident but accepted it might have happened.

66.      The social worker for D and E, Mr Kean, reported that on 20^th December 2009, the foster mother observed E to go up to the foster mother's birth child and pat her vaginal area over her clothes.  On 25^th December 2009 the foster mother saw D putting a stethoscope from a toy doctors set on E's vaginal area over her clothes and that D said, "let's listen to this".  The foster mother intervened and told the children that they should not touch each other's private parts.  About twenty minutes later the foster mother said that D came out with the words "my mum touches my willy".  The foster mother asked him some questions about it, to which D responded that it happened at home in front of the TV on the sofa and that he liked it.  D was subsequently asked about the events of Christmas Day by Mr Kean and a police officer.  D was unable to recall anything about it when asked with open questions.  Eventually Mr Kean said that "the questioning became more direct".  D was asked if he ever played with his privates and answered yes.  He was then asked if anyone else ever played with his privates and replied that E had; when asked where he said it was on the sofa at Nan's house.

67.      These incidents, taken individually or viewed together, are not sufficient to satisfy us on the balance of probabilities that either D or E has been sexually abused.  There could be a number of explanations for what was described.  The event witnessed by Miss Querns was not one which satisfied her that it was sexualised behaviour.  The playing with the stethoscope may be no more than a version of a game of "doctors and nurses".  D's remarks to the foster mother and then Mr Kean about the touching of his privates were inconsistent; and in neither case is there any record of what questions were asked to invoke the responses given.  In the interview with Mr Keen, D was clearly led to the topic before he would talk of it; and much of what D said to the foster mother (who did not give evidence) was the result of questioning from her.  A may have touched his penis for reasons of hygiene or health.  It is a possibility that the children might have witnessed some inappropriate sexualised activity, but this can only be speculative.

68.      It was suggested on behalf of the Minister that A did not take the events of 19^th February sufficiently seriously, but the whole incident took place over a short period of time and Miss Querns accepted that A dealt with the matter swiftly when asked by Miss Querns to do so.

69.      The evidence as it stands therefore fails to establish on the balance of probabilities either there has been behaviour by the children which can be categorised as sexualised or they have been exposed to inappropriate sexual behaviour by adults, and thus for the purposes of the threshold criteria, we disregard it.

Domestic Violence

70.      The relationship between A and B was characterised by episodes of domestic violence.  It was accepted by all parties that B used violence on A from time to time.  A accepted in her oral evidence that she was also on occasions the perpetrator of violence upon him, although later in her evidence she sought to minimise her role, saying that her use of violence was in self-defence or due to arguments over his use of the car.  There is no doubt that on one occasion D was caught up directly in the violence after a blow by B to A.  The impact of seeing domestic violence and living in the world of fear and volatility which follows on from it can be extremely harmful for children.  A accepted that the children were at risk of suffering from physical and emotional harm as a result of the domestic violence in this relationship.

71.      However, after the separation of A and B, there is no further evidence of domestic violence.  The relationship ended early in 2007, a long time before the relevant time for consideration of the threshold criteria.  As we have already said, there is no evidence of domestic violence in the relationship between A and C.  We therefore ignore the historic problem of domestic violence for the purpose of establishing whether or not the threshold criteria were crossed on the relevant date of 21^st August 2009.

A's care of N

72.      The Minister asks the court to take into consideration evidence about the way A treated N, the daughter to whom A gave birth in 1999.  Whilst it is a long time since A last had care of her (2002), the Minister submits that her behaviour to N which, it is alleged, included aggressive, volatile and at times inappropriately violent behaviour, are a part of a pattern which manifests itself from time to time in A's care of young children, and can be seen in her care of D, E, L and M.

73.      In considering this period, it is important to bear in mind the circumstances in which A was living. N's father had been killed in a tragic accident in the very early stages of A's pregnancy.  She was left therefore, through no fault of her own, with no emotional or financial support from N's father, and, no doubt, she was having to cope with her own grief in the aftermath of his death.  For the first four months after N's birth her sister S came over from Madeira to help her, but S returned to Madeira at the end of that period.  A had no family in Jersey.  She had no proper accommodation for herself and N, and was living either in hostel accommodation or was dependant on the kindness of a friend, known in these proceedings as Godmother I who took her in and offered her and N a roof over their heads for a while.  This however had no security, and indeed must have created tensions with Godmother I because it put Godmother I's own housing position in jeopardy.  A left N in Godmother I's care for periods of time.  She was criticised for leaving N with an unlicensed childminder, but we do not find that this criticism takes account of the difficult realities of A's life at that stage.

74.      In April 2001 staff at the hostel, where A and N were living, made the first referral to the Children's Service about A's handling of N.  Several people had reported to the staff their concerns in relation to alleged "rough handing" by A of N.  A was said to shout angrily and to hit N, although staff had not witnessed the latter.  Rough handling became a familiar motif in the evidence of many witnesses.  It was used to describe both shouting and physical manhandling.  In her oral evidence, A accepted that other people thought she handled her children roughly, but the only rough handling which she accepted was that she shouted at the children.  Her case was that she had only hit one of her children once, and that was when she slapped D in June 2007 (causing the bruising to D which was seen by Dr Johnson on 11^th June: see paragraph 39 above).

75.      Miss AA knew A when N was living in her care.  She is the primary source of evidence relating to this period.  There is a statement from her boyfriend at the time Mr BB, but he did not give oral evidence, and for the reasons already stated, we have not thought it safe to take it into account bearing in mind the language problems experienced in this case.

76.      Miss AA gave evidence that on an occasion in July 2002, she had gone to visit A and another friend.  Miss AA was standing in A's bedroom.  Her back was to the door and she was facing the bed.  She saw N being thrown onto the bed.  She did not see the beginning of the episode; the first thing she knew was seeing the baby flying through the air past her and on to the bed.  The doorway was behind her, and when she looked, A was at the door of the room (where N had come from) and was angry.  The distance from the door, and thus the distance N must have travelled was about two metres.  Her police statement said that after the fall the baby was "suffocated (choked) and could not breathe" [spelling corrected].  In her oral evidence it became clear, with the assistance of the interpreter, that she did not mean suffocated but that the baby could not breathe; and when the meaning of the word "winded" was explained to her she agreed that the baby was, in effect, winded.

77.      She also gave evidence that for a period of time when she lived next to A she frequently heard her shouting at N and saw her slapping N on the bottom, sometimes hard, and sometimes causing bruises.

78.      On an occasion in about April 2002, in Miss AA's car, N was playing with Miss AA's boyfriend's glasses, which were slightly broken, but which N broke more. A then hit N on the face causing N to start to bleed from the mouth.  Miss AA was asked why she had not reported the incident and said that A had seemed remorseful at the time.

79.      On a different occasion in 2002, she saw A kick N on her buttocks, kicking her from the kitchen door to the main door, a distance of about a metre.  About two weeks afterwards Miss AA reported her concerns to the police and made a statement to them which is dated 10^th July 2002.

80.      Miss AA also gave evidence that, after she had contacted the police to tell them of her concerns, A came to collect N from Godmother I who had been looking after her.  Miss AA was also there. Miss AA said that she and Godmother I had been told by the police not to hand N over to A.  A, in frustration that N was not being given to her, attacked Miss AA and put her hands around her neck.

81.      In May 2010, shortly before this hearing commenced, after it had become clear that the Minister was seeking to rely on Miss AA's police statement about A's care of N, Miss AA gave evidence that A had seen her together with A's sister in a car going to the Iceland supermarket.  When she was in the supermarket A had barged into her.

82.      It would be appropriate at this stage to set out our findings about A's evidence and its credibility.  There were many points of her evidence where she gave contradictory accounts of the same event.  She gave an explanation that she did so because of nervousness.  We have given careful consideration to that possibility.  Whilst we have no doubt that A found giving evidence stressful, there were wide discrepancies and contradictions in her evidence which are not satisfactorily explained by nervousness.  She, like other witnesses, at times needed help with interpretation.  We have considered her linguistic difficulties carefully, but, making all allowance for them, there were discrepancies which could not be explained by misunderstanding or confusion of language.  We shall not attempt to list all the discrepancies.  We shall give some examples when dealing with particular aspects of the case against her.

83.      In relation to Miss AA, in her evidence in chief A was asked if she had ever assaulted Miss AA.  She said clearly, unequivocally and emphatically that she had not done so.  However, this was in direct contradiction to what she had said in her written evidence to the court, the contents of which she had initially confirmed in her evidence in chief to be true.  In her statement of 23^rd October 2009, she accepted she had assaulted Miss AA.  In that statement she said in relation to Miss AA, "She is the woman I assaulted on 19 July 2002. ............... I was livid and yes I assaulted her for doing this to me and A" [para 7].  It was not until this contradiction was specifically put to her in cross examination, that she admitted that she had indeed assaulted Miss AA by holding her around the throat.  Even this acceptance was followed by further discrepancies.  First of all denied she had been livid (or very, very angry) when she did so, but later she accepted she had in fact been livid.

84.      Her oral evidence about the "Iceland" incident was equally unsatisfactory.  She said first of all that she did not know Miss AA was in the Iceland supermarket.  She said she had seen her sister going there in the car, but she had not seen Miss AA.  However, later in her evidence she accepted that she had seen Miss AA in the car with her sister (a fact which was also confirmed by her sister when she later gave evidence).

85.      Whilst A sought to deny Miss AA's description of her behaviour and her parenting, and to suggest that the motive for Miss AA saying adverse things about her parenting in 2002 was because of a dispute between A's boyfriend at the time (B) and Miss AA's boyfriend and because A owed Miss AA money, we do not accept that this was Miss AA's motivation.  The accounts Miss AA gave contained credible detail.  Having had the opportunity to see and hear both Miss AA and A give oral evidence about these matters, we accept Miss AA's evidence about the matters that are set out in paragraphs 74 to 79 above.

86.      The episode when A threw N on to the bed was one of clear potential danger to N, although fortunately seems to have caused N no harm.  On this and on other occasions when, as we have found, she has used violence on N her reaction was likely to have been a loss of control when under stress.  She was reckless or heedless as to the consequences of her behaviour on the child.  Her assault on Miss AA when Miss AA retained her child was likely to have had a similar trigger; her frustration at not being allowed to have her child was understandable, but her reaction was impulsive, frightening for the recipient, potentially dangerous and out of control.

A's care of D and E

87.      We have already touched upon the volatile and aggressive relationship between A and B.  As we have said, after that relationship came to an end, the problem of domestic violence, and its consequences for the children, came to an end.  What we shall go on to consider here is the care she has provided to D and E since her separation from B.

88.      The evidence about this aspect of the case upon which the Minister primarily relies comes from Mr and Mrs DD, who were A's neighbours from about 2006 until late May 2009, W and V (the paternal grandparents of D and E); and Mrs CC who was a teacher at the nursery school which D attended between September 2008 and July 2009.

The evidence of Mr and Mrs DD

89.      Language was a significant problem in relation to the evidence of both these witnesses.  We have already referred above to the stark difference in one respect between the statement Mr DD gave to the police and what he meant in relation to the use of the word "bite " and "beat".  We have no doubt that the oral evidence of each, as it emerged through questioning and with the careful use of interpretation where necessary, is more reliable that the statements either made to the police.

90.      In his oral evidence, what Mr DD said about A's parenting amounted to this.  From about 2006 he and his wife had been neighbours of A.  They lived in the same block of flats but their flats were not adjacent; A's flat was across a corridor and on a different level from his.  There was a common courtyard area at the back, which it was possible to see into from the balcony and bedroom window of Mr DD's flat. He was at work for much for the day, and largely relied upon what his wife said in relation to what he knew about A's care of the children. In essence he said he had heard shouting, screaming and swearing by A at the children.  On one occasion he saw A grabbing D.  She shouted at D, started to hit him on his arms and body and then pushed him to the floor.  She was in a real rage that day.  That was the worst incident he saw. On other occasions he saw her push the children and slap them on the legs.  When asked in cross-examination on behalf of A whether what he had observed had been reasonable chastisement, he replied "What I saw more was the way she was speaking to the children, swearing, calling them names in English and Portuguese; push them and rub them in the clothes and try and push them here and there."  Later, of the swearing, he said that it happened really a lot.  On one occasion he saw C hit E on the hands, grab her by the arm, lift her up and take her from the courtyard into the house.  He had worked with V in 1973-1974, and had next seen her again when she visited A's flat.  She had subsequently telephoned him about the children.  He made his report to the police about A only after the children had been taken into care, and because he was asked to do so by V.

91.      It became clear from the evidence of Mrs DD that there had been some dissension between neighbours in the flats as to the use of the courtyard. Mrs DD was clearly very concerned about noise, and not just from A.  Like Mr DD, her major concern was that A regularly yelled and swore at the children, although there was one occasion when she saw A push D to the ground.  She sometimes saw A slap D or E's bottom but not with force.  She also saw C grab E on one occasion and slap her on the hand.

92.      Both were only able to describe the parenting which went on in the public space of the courtyard, not what went on within the confines of the home.  Neither of them went into A's flat, and they could not hear what went on inside it from their own flat.

93.      Although they know V, and it was she who suggested that they should report their concerns to the police, we do not find (as was suggested by A) that they have lied to the court through friendship or loyalty to V, and we accept their accounts as summarised above.

W and V

94.      W and V have been devoted grandparents to D and E throughout their lives.  It became clear during the course of the evidence that they have always done a great deal to offer support to A and to the children, both before and after A's separation from B.  One example is the fact that, as well as looking after the children, they used to take and collect A from a series of jobs.  B has not worked, and A was the breadwinner.  It is to the credit of A that she strove to support her children financially, and to the grandparents that they helped her to do so.  They had a car, which she did not, and they were prepared to take the time and trouble to help her in this way.

95.      We observe that, just as when N was a baby, it appears that A was heavily dependant on the support given her by Godmother I, so with the care of D and E, from the time they were born until they were removed from her care, she was heavily dependant on the paternal grandparents.

96.      A says that they did not like her after her separation from B and that they resented the presence of C in her and the children's lives.  Whether or not that is true, it did not diminish in any way the time and effort they have been prepared to devote to their grandchildren, or the support they were willing to give A.  The children continued to spend a great deal of time with them after A's separation from B.  They often took the children at extremely short notice at A's request to help her.  Despite bad health and frailty, in June 2009, when A and C moved with the children to new accommodation, and A proposed to remove D from nursery school because of her difficulty in travelling there from the new home, W and V stepped into the breach and offered D a home.  He stayed with them for a number of weeks until the end of term, and we have no doubt that he thoroughly enjoyed his time with them.

97.      Both gave evidence about their concerns in relation to A's parenting.  Once again, it is important to pay regard to their oral evidence.  V had, on occasion, some language difficulties and required the help of careful interpretation in order to pinpoint her meaning.  When cross examined, V said that the first concern she had was when D was about 2 and she noticed bruising on his face and arms.  The bruising to his arms was as if someone had grabbed him; they were like finger marks.  She said she had spoken to A about the bruising and that A "told me she did it herself because in Madeira people do that to children, and I said to her, No, Madeira people, they are very caring for children, they are very kind to children".  She had not seen any bruising until after A's separation from B.  She had seen D being slapped by A.  She explained that what she had seen was slapping to D's face (with an open hand) not punching (with a closed fist); an example where language had become confused and needed clarifying. In her dealings with A and with C, she had seen both being rough in the way they handled the children.

98.      W said that he was first concerned when D was about two and a half years old.  He had come out of the house crying with bruises on is face.  W had said to A "Do you have to hit him around the face?" and A had just shrugged.  He had not personally seen A hit D.  He could remember quite a few occasions when he had seen bruises on D's face, and he had asked D about it.  D had said "Mummy did it."  D and E would often cry when they had to go back home and would ask if they could stay.  His concern about A was that she was very heavy handed.  In cross examination on behalf of A he said he had seen bruises on D's face whilst A was still living with B.  Whilst in his statement he had said that he saw bruising on D's face, legs and arms at the time he was going to nursery, when cross examined he said the bruising was usually on his legs and arms, and the bruising was on his face a few times.  A frequently swore at the children calling them names, sometimes in English but mostly in Portuguese.

99.      In assessing their evidence we have taken into account the fact that they are doting grandparents; and as such no doubt tend to be protective of their grandchildren. We bear in mind the fact that visits and stays with grandparents may well be more attractive to the children than home life; they would not be the only children who find home life mundane compared with the special time grandparents afford them, and have not wanted to go home at the end of an enjoyable time with their grandparents. However, we do not believe that they were lying or being deliberately dishonest in their evidence to the court. We do not find that their evidence was manufactured because they felt some resentment towards A and C, and accept their accounts as set out above.

The evidence from D's nursery school

100.   Mrs CC, a teacher and the Lower School Manager of the nursery school which D attended from September 2008 to July 2009 gave evidence.  Although D started school in September, it soon became clear to staff that he was not potty trained.  The nursery did not have the facilities to deal with a child who is not potty trained.  A had been told this before D went, but she had assured Mrs CC that he was potty trained.  He then had to have time off after he had started so that he could become potty trained, and he then had further time off because he had broken his arm.

101.   On 9^th December 2008 he was seen at the nursery school with a split lip.  When asked how he got it he said that "Mummy did it" and that "Mummy pushed me".  One of the nursery officers who was a qualified first aider thought that it might be a cold sore.  When she asked D about it later D said another child had done it, but that was not possible because the children had not been left alone unsupervised.

102.   On 3^rd February 2009, A pointed out to a nursery officer that there was a slight bruise to D's eye and a graze down his spine from the top of his neck to halfway down his back, which she said was caused because E had hit D on the eye and the graze was caused by a bath brush.  A said she felt she wanted some help managing the children's behaviour, but when the school asked if she would like a referral to an outside agency she declined saying she would contact the health visitor.

103.   A would often bring E with her when she dropped off D.  The nursery staff, including Mrs CC, were worried about the generally rough manner in which A handled E.  On 19^th March 2009, A was seen by Mrs CC to pick up E by the wrist, lift her and attempt to carry her through the door.  Mrs CC explained to A that she should pick up E under the arms rather than by the wrist, advice which A accepted.  Later on the same day, A was seen by a nursery officer to drag E across the floor, push her and smack her.  She said to the nursery officer that she was having difficulty managing E's behaviour.  The school offered to refer her to an outside agency but she said she preferred to contact her health visitor.  Later on the same day, Mrs CC spoke to the health visitor Miss Querns about it who said she was going to try to get A to go to parenting classes.

104.   Also during March 2009, two other nursery parents who followed a similar path to school as A, and a teaching assistant, reported that A had slapped E on the face on the way to school.  Mrs CC told the court that the nursery had never had any concerns expressed to them about other parent's behaviour before this.

105.   On 3rd June 2009 A was seen by one of the teaching assistants on the way to school at a pedestrian crossing.  D walked ahead and when A called his name and caught up with him, D was seen to put his hands to his face in a defensive manner as if expecting a blow to the face.  A then grabbed him by the back of the neck.  She was also seen handling M in a rough manner.  In her oral evidence, Mrs CC explained that her understanding of this event was that D had gone ahead of A.  A called him to stop.  As she got closer D put his hands up in front of his face as if to shield himself from a blow to the face.  It was that reaction by D which was of particular concern to the teaching assistant.

106.   From about that time onwards, during the summer term, D was brought to nursery by W, and the nursery had no further contact with A.  Despite W's apparent frailty, the nursery noticed enormous improvements in D's behaviour and general disposition during that time.  His relationships with other children improved, and he was more willing to communicate and share his experiences from home.  He smiled and laughed more and seemed more relaxed and happy.  Mrs CC did not think this was attributable to the fact that D was being more familiar with the nursery; if that had been the case she would have expected to see a difference over time within the year, as opposed to this which was quite a significant change.

107.   The evidence given by Mrs CC contained substantial amounts of hearsay.  The weight that should be attached to it therefore requires very careful consideration by this court.  We bear in mind the fact that it was not suggested to Mrs CC that she was lying or that she had any personal animus against A.  Nor was it suggested that the nursery assistants, or the other parents, had any personal hostility to A for any reason, or had any reason to lie about what they were reporting.  Their names were made known to A so that she was in a position to say whether any of them might have reason to tell lies about her.  She did not.  There is therefore no motivation discernible for any members of the nursery staff or the parents concerned to lie or misrepresent material.  The reports were made to the nursery almost contemporaneously with the events when they would have been fresh in the minds of the people making them.  The written records kept by the nursery are likely to have been conscientiously compiled. In the circumstances we consider that the evidence is likely to be reliable.

A's account

108.   In considering the question of the care A gave to D and E, it is important to take into account A's own evidence about it.  As we have said, she accepted in her oral evidence that people considered her handling was rough, but she did not think that it was rough.  She denied all suggestions of slapping either D or E, except for a single occasion when she accepted she slapped D causing the bruising to his face which was seen by Dr Johnson on 11^th June 2007.  In relation to that episode, she has given radically differing accounts of the circumstances which led up to it.

109.   Her first account was given to social workers at the time (in June 2007).  She said that D and E had been fighting.  She pulled D off E and slapped his face.  She also said that she had been having support from her ex partner B, who often had D, and that this was the first morning for a while that she had had both children together and she had become stressed.

110.   In her first statement to the court dated 23^rd October 2009, she gave a different account.  She said that she was going through quite a difficult period with D at the time.  He was not eating properly and kept chewing his food and then spitting it out onto his clothes.

111.   In her oral evidence there was yet another account.  She said she slapped D because he got sick when she was feeding him quickly to hurry him up to get him to the nursery.  At the time E was in the bedroom sleeping.

112.   Later in her oral evidence her account changed again: this time she said that it was an accident and that she did not hit him on purpose.

113.   Because this was the one and only occasion on which, according to her, she had ever slapped any of her children, one would have expected it to be a memorable event.  Her differing accounts cannot be accounted for by language; each is detailed and contains a radically different narrative.  The discrepancies cannot be explained by confusion over a particular word or words.  We do not accept that they are accounted for by nervousness.

114.   She also said in her oral evidence that she did not hit him hard.  This was, in our view, a clear example of her seeking to minimise what she had done.  We bear in mind that the blow was hard enough to cause the bruises which were seen by Dr. Johnson (described at paragraph 39 above), and Dr Johnson's evidence that it would have needed considerable force to cause them.  We also take into account the fact that D was only 2 years old at the time.

115.   Although she denied hitting D on any other occasion, when he was cross examined C accepted that at the beginning of their relationship A had told him that she had slapped D because he was running across a road.  C acknowledged that this must have been a different occasion from the one that A accepted took place in June 2007, or from the incident which concerned the teaching assistant on 3^rd June 2009.

116.   Later in her oral evidence A's evidence changed again and she accepted she had smacked the children on the bottom but said it was only as a part of reasonable chastisement.

117.   We are driven to the conclusion that A was not being frank to the court about the level of her physical aggression towards the children, and that her denials of hitting the children and with force are untrue.  Her differing accounts of the events which led to the bruising on 11^th June 2007 probably reflect various examples of behaviour by D which have caused her to hit him on the face from time to time; so that she is now unable to remember specifically which one it was that led to her hitting him on 11^th June 2007.

X's account

118.   X is a party to these proceedings.  Although she is in Madeira, arrangements were made for her to give evidence by video link.  The purpose was for her to give evidence about her wishes in relation to L and M and as to whether or not she consented to them being freed for adoption.  In the course of her evidence in chief she said that she had known A in about 2007 when they lived in the same hostel for about two weeks where they had adjoining rooms.  She heard A swearing at D on one or two occasions.  She also said that once she saw A smack the children outside a church when C was there.  She also spoke of C hitting the children when they lived together.  This evidence was fresh in the context of these proceedings, and there was an adjournment to allow C and A to give instructions on it.

119.   Her evidence resonates with other evidence about A's behaviour towards the children.  However, we note that she was prepared to leave her own children L and M in A's and C's care, and to transfer custody of them to C.  She says she told L and M's health visitor Miss Pointon about her concerns.  She did ask Miss Pointon to keep a watching brief on the situation when L and M went to live with A and C.  However, Miss Pointon said that no express concerns about A's parenting was relayed to her by X, which we accept. In the circumstances therefore, we do not rely on this evidence in reaching the conclusions which are set out below about A's or C's parenting style.

The Health Visitor

120.   Miss Querns was D and E's Health Visitor from January 2008 until June 2009 when the family moved.  She offered an enhanced health visiting service because A was struggling with their behaviour.  Both children had eating problems and both had speech and language delay.  She also supported D with his potty training when he had started nursery.  She saw the children in January 2008 (twice), April 2008 (once), May 2008 (once), June 2008 (once), October 2008 (once), November 2008 (once); and then in January 2009 (twice), February 2009 (twice), May 2009 (once) and June 2009 (once).  We have set this out because it can be seen that there were periods of months when she did not see the family.  She arranged for D to attend SAL for assistance with his speech delay, but he failed to attend and was discharged.  She also offered to refer E to SAL but A declined the offer. She encouraged A to attend both the Bridge Facility and Parenting Classes because A had a lack of understanding of her children's needs for positive parenting.

121.   She did not describe seeing rough or violent parenting by A on any of her visits. She saw bruising to D's face on one occasion, and accepted an explanation that it was caused by the children fighting.  However, she felt that A was struggling to cope with the children, and as a result she had asked the nursery to let her know of any concerns.

122.   On 11^th May 2009 A told her that she was planning to have L and M in her care.  Miss Querns explained that she felt it would place A under undue pressure in a situation where there had been a cluster of events which were consistent with her struggling to parent her own children, and she advised A that she probably would not cope.  A did not demonstrate an understanding of this and had unrealistic expectations of her ability to cope.  In the light of what was to happen when L and M went to live with her, this was prophetic.  As far as D and E are concerned, we accept the evidence of Miss Querns that A was struggling to cope with D and E.

Conclusions

123.   Whilst we have set out various strands of the evidence and our findings as to the credibility of witnesses above, we must make it clear that we have carefully considered the totality of the evidence, and the way one part weighs against another, before coming to our conclusions.  The evidence outlined above given by Mr and Mrs DD, and by V and W must be viewed in the context of the evidence from the nursery school, which is of a pattern of behaviour consistent with their evidence.  The nursery school evidence is important because whilst A claims there is a motivation in the others to lie, she makes no such claim against those expressing concern at and to the nursery school.  It is also consistent with the evidence which we heard about A's handling of N.  In considering the totality of the evidence, we have also taken into account A's own unreliable evidence, in which she sought to minimise her slapping of D.  We accept the situation described by Miss Querns of a mother who was struggling with the children's behaviour.

124.   The evidence leads us to the conclusion on the balance of probabilities that A found it difficult to cope with D and E and had poor child management strategies.  When under stress she demonstrated volatile behaviour towards them, shouting and swearing at them and manhandling them.  On occasions she used inappropriate force on them which included slapping both E and D on the face.  On occasions, she slapped D sufficiently hard to cause bruising to him.

125.   We must make it clear that we make no findings on the balance of probabilities that the bruising and split lip seen by nursery on 11^th December 2008 and 3rd February 2009 were caused by her.  It is simply not possible to say whether or not they were and we therefore exclude them as evidence of injury caused by A.  However, that does not erode the general findings above.

126.   As far as C is concerned, far less of the evidence was directed at a criticism of his parenting.  In terms of suggestions that he was heavy handed or violent to D and E, we do not find, on the evidence before us, that what was reliably described was outside the wide band of permissible parenting.  However, we do find that he must have been aware of the way in which A handled D and E and that he did nothing to intervene or to remonstrate with her.  He took no steps to protect D or E.  They were not his children.  He may, as he said in his evidence, have considered her to be the experienced parent, or he may have thought that since they were her children and not his, he should not intervene.  However, as will appear in this judgment, the same passivity and lack of insight was demonstrated by him in relation to his own children L and M after they had come to live with him and A.

A and C's care of L and M

127.   L and M were, in effect, abandoned by their mother X, with whom they had always lived, when she left them to go to Madeira in May 2009.  It was bound to take a heavy toll on L and M.  They went to live with C, who had never involved himself closely in their lives before then and had rarely seen them, and with A, who knew them even less well, who was already finding it difficult to cope with her own two children, and who responded badly to parenting when she felt under stress.  Looked at in that setting, it is not surprising that L and M had enormous difficulties in their care.

128.   From about a week or so after her arrival in A and C's home, M's demeanour changed, probably as the reality of her abandonment by her mother began to come home to her.  She and L were in need of support, empathy and understanding from the adults caring from them.  However, they did not get it from either A or C.

129.   M became quiet and withdrawn.  She lost her appetite and began to loose weight.  She began to wet herself regularly, and in due course began to soil herself.  On two occasions, according to A and C, having soiled herself she then smeared faeces onto walls, her clothes and into her hair.  This deterioration in her behaviour at home with A and C was, however, in marked contrast to the way M behaved when she was not in the care of A and C.  We accept the evidence of X that when M lived with her, M did not soil herself at all and only rarely wet herself.  We also accept the evidence of V that when M went to visit and stay with V and W during the summer of 2009, she appeared happy, that she was not withdrawn and that neither wetting nor soiling by her was a problem in their home.

130.   When Miss Jenner visited A and C's home on 6^th August 2009, both L and M were sitting in silence on the floor and appeared as if cowering against the sofa.  M was not allowed to sit on the sofa in A and C's home because of A's fear she would wet it.  She had to sit on the floor.  The wetting and soiling, when it began, were probably particularly aggravating to A because, as we have observed, she was house proud.  On one occasion, when V and W were taking all the children out to the beach, V strapped M into E's car seat in V's car.  We accept V's evidence that A, upon finding her there, rapidly unstrapped her and threw her out of the car seat so she fell on the floor of the car.  The reason behind it may have been because she was worried that M would wet the car seat, or because M was in the seat she regarded as E's.  Whatever her reasoning, her reaction to M was one of aggressive rejection.

131.   It is clear that A thought that M had become withdrawn, was not eating, and was wetting and soiling deliberately in order to spite her; to "stab her in the back" as she described it to the social worker Miss Jenner.  Miss Jenner described her impression of A's attitude to L and M as follows:-

"[A] appear cold and distant to L and M.  She feels they are not grateful.  She appears to have no understanding of attachment and the huge trauma that L and M are going through or the effect on the whole family of introducing other children.  She finds it difficult to cope with M's soiling and the smell of it and by M taking a long time to eat."

132.   As A told Miss Jenner and in effect accepted in cross examination, L and M were not the package she had wanted.  She did not want to develop a relationship with them.  The deterioration in M's behaviour was not understood by A as a sign of a girl who was unhappy, and in urgent need of affection and help.  She showed no insight or understanding of the profound losses that both had suffered, or that her own handling of M must have been making M's behaviour a great deal worse.  When giving her oral evidence A showed only coldness towards M and L. Her hostility to M was clear.  She showed no genuine regret as to how she had treated L and M, and no real or convincing insight, even now, into how they must have been feeling.

133.   C, despite the fact that he is M and L's father, equally seems to have felt no empathy towards and shown no insight into the way his own children must have been feeling.  There is no evidence that at any stage he tried to intervene with A on M's behalf.  On the contrary, he simply deferred to A whom he regarded as the experienced parent.  He gave evidence with easy affability; but strikingly, as with A, his oral evidence failed to demonstrate convincingly that he has gained more insight or empathy now.

134.   It is in this context that two particular allegations of violence against M have to be investigated.  On 30^th July 2009 and 20^th August 2009, bruising was seen by the social workers on M which was then subject to medical scrutiny.  On the second occasion, 20^th August 2009, she had a suspected bite mark to her cheek which was, very properly, referred for specialist odontological opinion.  We shall deal with these episodes in chronological order.

Injuries to M seen on 30^th July 2009

135.   On 30^th July 2009, bruising seen on M by the social workers Miss Jenner and Miss Fernandes was referred for examination to Dr Barrett.  He has described a number of bruises which included a small broken bruise over her left cheek which he considered to be consistent with direct blunt trauma.  There was also a series of brown bruises of the upper arm.  The main grouping consisted of three bruises.  They were situated in a position where M might have been held and were consistent with fingertip bruising.  There was a further bruise to her forearm which was also consistent with a forceful grip.  We disregard a bruise on her leg in a place commonly bruised in the course of normal play and which did not concern Dr Barrett, and other marks which he thought could have been the result of eczema.

136.   Dr Barrett was at pains to say, very properly, that whilst he could say with confidence that the bruises which concerned him were the result of direct blunt trauma, it was not possible for him to determine whether they were caused accidentally or were inflicted non-accidentally.  In his view, many other factors needed to be taken into account in determining whether the cause was accidental or non-accidental, such as whether there was any relevant medical history, whether or not it was the carers who contacted the medical services, and what accounts were given in relation to the cause of the injuries by the adults and the child.  We accept that questions of whether these bruises were the result of non accidental or accidental trauma must be answered by an examination of the whole context of the case.  The evidence which is available to this court is far wider than the limited information available to him.  The medical expert can assist with his/her opinion, but it must be scrutinised in the context of all the evidence available to the court.  That is the exercise we must and do conduct here.

137.   Dr Barrett raised the question of whether there is any relevant medical history which may account for bruising in M.  The answer to this question is that there is none.  Shortly after M was removed from A and C's care, Dr Tim Malpass, a consultant paediatrician in the paediatric department of the General Hospital, St Helier, directed that appropriate screening tests be conducted to establish whether there might be any medical, metabolic or haematological cause for the bruising.  A full blood count, clotting, urea and electrolyte and liver function tests were undertaken.  The tests specifically included screening for clotting disorders.  All the results were within normal limits.  Specifically there was no evidence of congenital or acquired bleeding disorder to explain unusual bleeding.

138.   We take into account the fact that there were a number of children living in the household who would on occasions, no doubt, play boisterously, and that on occasions they have hit others too hard.  We take into account the fact that children get bruised in the course of ordinary play, and may fall and have other accidents.  In that context, the explanation for the bruises is of importance.  What is said by the adults and the children about the cause of particular bruises requires to be evaluated carefully, as must what is known about the personalities, tensions and dynamics within the home.

139.   We turn to the explanations given by A and C for these injuries.  On 30^th July 2010 A told Miss Tandy that the bruising was caused when M fell.  Although A gave this explanation for the injury to M to Miss Tandy, she later gave a different account.  She was interviewed on separate occasions by Dr Harrison and Dr Young (experts who have prepared assessments which will be relevant to the "welfare" stage of the hearing of this case if the court is satisfied that the threshold criteria have been met).  She told each of them that M never had a mark under her eye.  We accept that M did indeed have such a mark (as described by Miss Jenner and Dr Barrett), and that A was simply not telling the truth when she denied, on these two separate occasions, that M had had such an injury. In our view A has failed to provide a consistent or reliable account of how this bruising was sustained.  She sought to deny the existence of the bruising on the face in an attempt to minimise and cover up her own behaviour.

140.   C said he thought that he had possibly caused the grip marks to M's arms by holding her during play.  In the light of the medical advice that M had no medical/haematological susceptibility to easy bruising, we find it difficult to believe that normal play could have led to handling of such force as to cause bruising to M's arms, and, on the balance of probabilities we reject that playful holding was the cause of the bruising to her arms.  C could provide no explanation for the bruise to her face.

141.   We turn now to the various accounts given by the children in relation to the bruising.

142.   On 29^th July 2009, when all four children had been visiting V and W, M was seen to have a mark under her eye which D, L and E told V was caused by A because M would not eat her dinner.  It was that which prompted V to get in touch with Children's Services.  As we have already said at paragraph 50 above, when Miss Jenner visited A and C's home on the following day, 30^th July 2009, she saw the mark under M's left eye. In conversation with her both L and M said that "Mummy did it".  When M was asked about it again by the other social worker who was present, Miss Tandy, A intervened before M could answer (with the explanation of a fall down stairs set out at paragraph 137 above).

143.   About a week later, on 6th August 2009, when Miss Jenner was talking to L and M, L said "Mummy and Daddy are sad" and on Miss Jenner enquiring why, L said "because they're hurting M and L."  On 10^th August 2009, L spoke to Miss Fernandes and Miss Jenner of living in a "sad house" where A and M were sad because A "clouts" M on the legs, back, arms, neck and face.  Miss Fernandes confirmed in her oral evidence that "clouts" was the word used spontaneously by L.  When it was time for Miss Jenner and Miss Fernandes to return L and M to the home of A and C at the end of their meeting, M was extremely reluctant to go back, stating "no go mummy" and pulling on Miss Jenner's hand.  L also voiced his wish not to return to A or C.

144.   We approach this part of the evidence with the starting point that it is by no means the case that children always tell the truth; they may well not do so.  Once again, the context is important. How close in time was the event of which the child was speaking?  Was it likely to have been fresh in his/her mind?  Was the child speaking spontaneously or in circumstances where a suggestion as to the answer had been made to him/her?  Does the child have any reason to lie?  Is the child known to be a child who frequently lies/ fabricates, or not?  Has the child given the same account consistently, or has the account varied or been retracted?

145.   We have considered what the children have said very carefully.  We do not overvalue this part of the evidence, but it is part of the picture.  On occasions the children have not told the truth.  For example, when D was asked about the bruising to his face which A accepts she caused on 11^th June 2007, he did not say she had caused it but gave a different explanation.  When D was asked about the bruising to his face seen at school on 11^th December 2008, he gave an explanation of having been hurt by another child which the nursery school thought was unlikely to be true (see paragraph 42 above).  However, none of these children is described as a child who frequently lies or fabricates.  We take into account the fact that at the time the comments set out above were made, they were very close in time to the events, and that the events would have been fresh in their minds.  The context of each is such that they conveyed straightforward information, unprompted, using their own words.

146.   After they were removed from A and C's care, both L and M have on occasion subsequently spoken of being hit by A.  They have given further details about the way the way they say they were treated in A and C's home.  These accounts were much later and were made in circumstances where there were long interviews which were not recorded.  Neither had been the subject of an ABE (Achieving Best Evidence) interview.  We therefore do not rely on what was said then, apart from noting that they have repeated and at no stage retracted their accounts of being hit by A.

147.   What the children have said must be seen in the context of the family dynamics. A was, as we have found, a woman whose parenting style included times when she would loose her temper and use inappropriate violence on the child with whom she was feeling frustrated.  This was true of her parenting of her own children, N, D and E, whom she no doubt loved (and loves) very much.  She had no such bonds of affection to M.  M was a child to whom she was unsympathetic, indeed hostile, and whose behaviour she found stressful.  She believed that M was deliberately trying to spite her when she wet herself (which she did frequently in A and C's home), soiled, or had difficulties eating.

148.   When the bruising to M's face and arms is seen in the context of what the children said spontaneously and contemporaneously about it, of A's lying about it and C's failure to provide an adequate explanation, and the general dynamics within the home, we are driven to the conclusion that the bruising to M's face and arms seen by Dr Barrett was caused by A.

Injuries seen on M on 21^st August 2009

149.   On 21^st August 2009 Miss Jenner and Miss Fernandes visited A and C's home again.  They immediately became aware of marks on M's cheek which looked to each of them as if they resembled an adult bite mark.  There were also a considerable number of other bruises on M, and as a result she was taken to see Dr Johnson.

150.   Dr Johnson's view was that the bruising on her cheek was a possible bite mark, and that its size (4 cms by 4 cms) was such that it was unlikely to have been caused by children of the ages of the other children in the home.  There was also a linear bruise on her left leg, a bruise on her left buttock and two bruises on her right buttocks.  In Dr. Johnson's opinion, the linear bruise on the left leg was consistent with being slapped or hit with something, and the bruises to the buttocks may represent punching or fingertip bruising.

151.   Dr Johnson was concerned at what appeared to her to be bruising of different ages, which she advised was suggestive of non-accidental injury.  However, this court takes into account Dr Barrett's evidence that there are grave difficulties in the accurate aging of bruises based on their appearance. In her oral own evidence, Dr Johnson accepted that the aging of bruising was difficult.  We therefore disregard Dr Johnson's evidence about the potential significance of bruising of differing ages.

152.   Dr Barrett was shown photographs of the bruising to the leg and buttocks in the course of his evidence.  He had the disadvantage of only seeing photographs rather than the bruises themselves.  He was of the view that the cause of the bruising to the leg and buttocks was blunt force trauma, which could be accidental or non accidental and could have been caused by a fall downstairs.  Once again, we are mindful of his observations that in order to determine whether this type of non-specific bruising did or did not have an accidental cause it is necessary to consider all the circumstances of the case.  Dr. Malpass had seen the bruises several days later, and expressed the view that they were accidental, but we accept Dr. Johnson's point that by the time Dr. Malpass saw them they would be likely to have faded considerably. Dr Malpass was not called to explain his view that they were accidental.  However, in the light of the far more significant bruising to the face, it is not necessary for us to resolve the question of the cause of this bruising.

153.   Because of the highly specialist nature of the interpretation of possible bite marks, the parties to these proceedings very properly agreed that advice should be sought from an expert in that field. Dr Martin, an extremely experienced odontologist, was therefore jointly instructed by the parties.  He was asked to advise whether or not the bruising on M's cheek was a human bite mark, and if so, whether it was likely to have been caused by an adult or a child. In his opinion:-

"The bruising exhibits the characteristics of a human bite mark such that, according to the standard classification, it falls into the category of "definite human bite mark".

This was the highest category in terms of degree of certainty.

154.   In his oral evidence he said that he had great difficulty in thinking of any mechanism other than biting which could cause the pattern of bruising which was seen here.  Specific potential explanations were put to him on behalf of A and C that the bruising seen could have been caused by a fall onto pebbles or small stones, or by a kick in the face by a shoe (which we shall set out in some detail later).  His firm advice to the court was that the bruising could not have been caused in either of the ways proposed and that neither was consistent with the appearance of the bruising to the face here.

155.   As to whether the bite mark was that of an adult or a child, he said that the bruising was consistent with adult dentition.  In his opinion this was not a child's bite mark; from the appearance of the bruising, in his view the perpetrator would have had to be at least 12 years of age.

156.   He also gave evidence about the amount of force required to cause the injury he saw.  He explained to the court that it would have required a substantial degree of force to inflict a bite mark of the type seen on M, and that it would have caused a great deal of pain and distress to M at the time it was inflicted.

157.   Dr Martin was subsequently asked to examine impressions taken of both A and C's teeth and reported that he could exclude neither as the perpetrator of the bite mark.

158.   On the instruction of the police, Dr Paul Liddiard, also an experienced odontologist, had reviewed the photographs of the bruising to M's cheek.  He was not required to give evidence by any of the parties to these proceedings, but his report was made available to this court.  In it he expressed the view that "This is more than likely an adult bite".  He explained that the gap between the upper and lower parts of the bruise was "too great a gap to have been perpetrated by a sibling child, aged 3 to 5 years, who would still have deciduous (milk) dentition."  The other children living in A and C's household, D, E and L, were in this age range.

159.   Thus the view of both experts with the relevant expertise in this area is that this bruising was caused by an adult bite mark.  There is a difference only as to the strength of their opinion.  Dr Liddiard regards it as a bite mark on the balance of probabilities, which is the relevant standard of proof in these proceedings and therefore sufficient to ground findings.  Dr Martin holds the same opinion even more strongly.  Dr Martin in the course of his evidence was able to give cogent and impressive explanation of the reasoning process by which he had reached the conclusion that the bite was an adult bite mark, and why the alternative explanations put forward by A and C would not have caused bruising of the same appearance.  We accept his evidence about this.  We find that on the balance of probabilities (at least) the bruising seen on 21^st August 2009 was caused by an adult bite.

160.   What explanation do A and C give for the bruising to M's cheek?  Two possible accidents are postulated.  One was a fall by M at a wedding a few days before 21^st August 2009, when M was playing outside with other children and fell on a surface of pebbles or small stones.  The other was an event later at the same wedding when C was break dancing and accidentally kicked M.  Witnesses who saw these events came to speak of them, and we accept that both these accidents probably happened.  However, as we have said, we accept Dr Martin's evidence that a fall on pebbles or small stones, or an accidental kick by C while he was dancing, would not produce bruising of the type sustained by M and that neither of these accidents accounts for the manifestation on M's cheek a few days later of an adult bite mark.

161.   We are left therefore with a need for an explanation of how it came about that B sustained an adult bite mark.  A and C have provided no such explanation.  They accepted that following the wedding, M was in the care of one or other of them throughout, and that she was not in the care of any other adult.  Contrary to usual practice, none of the children was allowed to see V or W during the period after the wedding.  A, C and the children were due to attend NSPCC Pathways on 19^th August 2009 (to help with parenting skills as part of the child protection plan) but failed to do so.  Whilst A and C say that M was in the company of other children after the wedding, neither describes her being with a child over twelve. Neither reported M experiencing the distress and pain which must have been obvious to any carer at and following the infliction of the bite upon her. Neither suggested at any stage in their evidence that the bite had occurred at the wedding.  A suggestion was put forward for the first time in the closing submissions on behalf of A that the bite could have been sustained at the wedding.  However, in view of Dr Martin's evidence as to the degree of pain and distress that M would have experienced when the bite was inflicted, we find that it is highly unlikely that M could have been bitten there without A, C or the other witnesses who were at the wedding having been aware of her pain and distress (as they were after her fall outside and her accidental kick when C was dancing), and it is also unlikely that such an assault would have taken place in a public space where other adults and children were always proximate.

162.   Thus we conclude that M sustained an adult bite mark at some stage whilst in the care of A and C following the wedding.  She was in the care of A and/or C throughout, yet neither can provide an explanation for it.  No other adult had care of M during that period.  Thus they are both potential perpetrators of that injury.  Neither is excluded on the orthodontic evidence.  Can the court make a finding as to who is likely to have been the perpetrator?

163.   In this context it is relevant to take into account what M herself said about the bruising to her cheek.  On 21^st August 2009 when Miss Jenner and Miss Fernandes saw the bruising, each spoke to M separately.  We accept that each did so in a non-leading way. Miss Fernandes asked her in Portuguese what the mark on her face was. M's immediate response was to point to the bruising on her face and to say that Mummy (by whom she meant A) did it.  Miss Jenner then had a similar conversation with her in English.  She also enquired about the mark in a non-leading way, and M's response was spontaneous and was exactly the same.

164.   Just over a month later, on 26^th September 2009, A saw M with Mrs G and went to speak to them. A asked M who had injured her face, and M replied, "You did".

165.   Once again we regard what M has said with care.  We shall not repeat the points we made above about our approach to the evidence of what the children have said.  We consider this part of the evidence with similar caution.  However, we take into account the fact that the comments made by M were not suggested to her and were made spontaneously while the events were fresh in her mind.  She repeated them in the presence of A, and has never contradicted them.

166.   Once again, we must look at the broader context of the case.  The content of paragraph 145 above is equally relevant here and we shall not repeat it.  The fact of the matter is that as between C and A, A is the one whom we have found to be capable of using violence upon a child at a point when she looses control.  She is the one who felt active hostility and resentment towards M.  In all the circumstances we are led to the conclusion, on balance of probabilities, that it is likely that the perpetrator of the bite mark to M was A.

167.   We have reached this conclusion about the bite mark without taking into account other evidence about A biting.  The first was evidence from B that A bit him whilst they were living together.  We have seen a hospital entry recording the fact that B attended hospital during his relationship with A having sustained bruising to his chest which he said had been caused by his partner biting him.  A agreed she was his partner at the time but denied that she had bitten him.  The evidence from B about this was in a brief letter he wrote to the court.  He had also written to the court a longer letter speaking well of A as a mother whilst they lived together.  As we have said, B did not attend the hearing and did not give oral evidence. In the context of his history of serious mental illness, we find it difficult to assess what weight we can safely give to anything he has said, and we therefore disregard this untested evidence.  A's sister told the court that on one occasion when she was aged about six and A was aged about ten, A bit her.  We accept this evidence but take into account that this was in the context of a squabble between siblings when A was a child.  We therefore think it is fairer to disregard this evidence.

168.   Whilst we have found A to be the perpetrator of these injures to M, there can be no doubt but that C failed to protect her from harm.  He may or may not have been present when particular injuries were caused, but he must have been aware of the nature and personality of A, and of her heavy handed and volatile parenting style with moments of violence towards the children in her care.  He must also have been aware of the way that M was being neglected in the home.  A stark example of neglect is the fact that she began soiling, and on two occasions she smeared the walls of her room and her hair with faeces.  No doubt, A became even angrier with her as a result.  Neither of the adults on whom she was dependent sought professional help for a girl who by now was clearly enormously distressed.

169.   It follows that we find that all four children have suffered harm when living with C and A.  It is likely that all received blows which were more than reasonable chastisement when A was angry.  In L and M's case, both suffered physical injury in the form of bruising as a result of A's violence.  In M's case the violence included the administration of a bite by A, an injury which we regard as vicious.  All were exposed to a parenting regime of volatility and unpredictability.  All four must have seen the ill treatment of M; which must have acutely affected both L and M, who were already vulnerable through being left by their mother.  The extent to which the ill treatment of M had an impact on D and E is not clear on the evidence before us; protective factors may be their youth, the fact they were not treated as badly, and that the period when all lived together was brief.  Had the situation continued without the intervention of the Children's Service, it had the potential to cause profound damage to all the children of that household, although in different ways.

170.   In reaching these conclusions we have taken into account the cultural background to the case. We have borne in mind that Miss AA, Mr and Mrs DD, V and W are all members of the Portuguese/Madeiran community but were concerned about A's way of parenting.  We also take into account the fact that A in her Response to Threshold accepted that hitting a child in the face was "harmful and unacceptable".  The cultural factors do not provide an adequate explanation for the matters we have found proved.

171.   The threshold criteria are therefore made out in relation to each child.

The Orders

172.   As to L and M, the path their future should take is agreed.  They have been fortunate to find a caring home with Mr and Mrs G, where their needs are recognised and where they are nurtured.  It is in their best interests to stay there.  If they were to be moved from Mr and Mrs G, it would be likely to lead to yet more insecurity and instability for them.  We approve the agreed proposal that we should make a residence order in relation to Mr and Mrs G, and make an order freeing them for adoption.

173.   We heard evidence from both X and C on the point. X made it clear that she wholeheartedly agreed to an order freeing L and M for adoption, understanding what that means.  She also said she would like the children to remain with Mr and Mrs G even if, for some reason, they could not adopt them.  C expressed similar views.  Whilst his consent is not necessary, because he does not have parental responsibility, it was something he offered.  It was clear from his evidence that he does not intend to make an application for parental responsibility or for a residence order within the next six months; indeed, through his advocate, he agreed that an outstanding application by him for a parental responsibility order should be dismissed.  He expressed the wish to continue to see L and M.  The Children's Service has set out its proposals for contact in the care plan.  It proposes that his contact should continue at a reduced rate, although it will need to be kept under review to ensure that it meets the children's needs, and that ultimately, if and when an adoption order is made, it will become a matter for Mr and Mrs G to decide what contact is in the best interests of L and M.  In light of the care plan, C did not seek to persuade the court to make a contact order in his favour.  L and M have enjoyed their contact to C.  We encourage him to take up the contact he is offered, and not to let them down by failing to attend.  He has not taken up almost half of the contact he had been offered to date, and in doing so has failed to prioritise them.  It is important that he does not make unrealistic promises to them which are then not fulfilled, as he has done in the past.  In that way, contact will be of benefit to L and M.

174.   Taking L and M's best interests as our paramount consideration, we dismiss the application for a care order because a better regime for securing the future of these children will be provided by the making of a residence order in favour of Mr and Mrs G and an order freeing them for adoption.  We so order.  We also direct pursuant to Article 20(2)(a)(ii) of the Adoption (Jersey) Law 1961 that the residence order shall continue to have force notwithstanding the making of the freeing order.

175.   The Minister expressed concern that A and C might seek to disrupt L and M's placement with Mr and Mrs G and sought injunctions restraining A and C from behaving in a way which might do so.  There were a number of allegations of threats made by A and C towards those involved in the case.  Some, although not all, were in the form of hearsay evidence which was not tested in front of us, and some, although not all, seem to have been transmitted through B, whose reliability, as we have already commented, we find difficult to evaluate.  As the case has developed, it has not proved necessary for us to resolve these allegations.

176.   For their part, A and C denied the allegations of intimidation.  They have assured the court that they support the placement with Mr and Mrs G, and that they would not seek to disrupt it.  The court suggested that a way forward might be for A and C to provide those assurances that they would not do so in the form of undertakings which would have the force of court orders.  They have offered such undertakings, making it clear that in doing so they make no admissions as to past behaviour but see the value of drawing a line in the sand and offering reassurance to the G's that they will not try to disrupt L and M's placement with them.

177.   We have welcomed those undertakings, and trust that the future for L and M will be calm and secure.  The orders we are making represent a new beginning to which C has consented.  However, if there were to be any attempt to disrupt or destabilise the placement in breach of the undertakings, A and C should be in no doubt that the court will enforce them.  Furthermore, they should be in no doubt that any breach of the undertakings may also jeopardise the contact which C has with L and M.

178.   As far as D and E are concerned, for the reasons set out in paragraph 6 above, we adjourn the decision as to what order is in their best interests.  The proposals as to their future placement require to be further explored.  We wish the experts to consider the advice they have given to this court in the light of the findings made in this judgment, not in the context of the unproved allegations contained in the papers.  Whilst further thought is being given to this case, contact between D and E and A and C should remain at the current level.  The children are enjoying it.  Any change in the frequency of contact should only be made when it can be explained to them in the context of the decision which is yet to be made about where they will spend their future.

179.   We do not intend to limit in any way the welfare considerations which any party, or any expert advising the court, wishes to place before us when we come to make final decisions about where D and E should live, but for convenience, we shall identify some of the matters which it seems to us will need thought.  We ask those advising the court and the parties to consider the question of whether it would be in D and E's interests to live with A and C in the absence of L and M (who will not, in the light of this judgment, return to their care).  What, if any, additional factors need to be taken into account as a result of the birth of their baby expected to be born towards the end of August?  If the Children's Service concludes that there should be a placement of D and E with Ms O or with other members of the extended family, what are the practicalities of that placement in the light of the personalities of the relevant family members?  If a placement with Ms O is not proposed by the Children's Service, does she wish to have party status to make her own application?  We ask the Children's Service and the Guardian to speak to her to explain steps she may take if she wishes to do so, and to urge her to do so without delay.  If the Children's Service recommends a placement outside the family, what are the practicalities of finding such a placement and what time scales are realistically involved?

180.   There has already been substantial delay in these children's lives. D and E have spent the best part of the year without certainty as to what the future holds for them.  They have lived in foster placements which are short term.  Their future needs to be resolved as soon as possible.  We direct that the case be listed for the "welfare" part of the hearing to commence later this year with a time estimate of 5 days.  There should be a directions hearing by telephone at a date to be arranged before that hearing.

181.   Finally, we express our thanks to all the advocates in the case for the careful way they have presented the case, and for their full and helpful written submissions.

Authorities

Children (Jersey) Law 2002.

Humberside County Council v B [1993] 1 FLR 257.

Children Act 1989.

Re MA (Care Threshold) [2009] EWCA Civ 853, [2009] Fam Law 1026.

Re L (Care Threshold Criteria) [2007] 1 FLR 2050.

In the matter of F and G (No 2) [2010] JCA 051.

Re K; Local Authority v N and Others [2005] EWHC 2956 (Fam), [2007] 1 FLR 399.

Re H (Child Sexual Abuse: Standard of Proof) [1996] ALL ER 1.

Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 AC 424, [1994] 3 WLR 558.

Re B (Care Proceedings) Standard of Proof) [2008] UKHL 35.

Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563.

CL v East Riding Yorkshire Council, MB and BL (A Child) [2006] EWCA Civ 49.

S-B Children [2009] UKSC 17.

Lancashire County Council v B [2000] AC 147.

Re O and N; Re B [2003] 1 FLR 1169.

Adoption (Jersey) Law 1961.

Gateshead MBC v JM [2010] EWCA Civil 12.

Re B (A Child)(Split Hearings: Jurisdiction) [2000] 1 WLR 790.

Re B (Split Hearing: Jurisdiction) [2000] 1 FLR 334.

Re B (Fact Finding Hearing: Evidence) [2008] EWCA Civ 1547, [2009] 2 FLR 14.

Civil Evidence (Jersey) Law 2003.

Re W (Minors) (Wardship: Evidence) [1990] 1 FLR 203.

R v B County Council ex parte P [1991] 2 All ER 65.

R v Lucas (Ruth) [1981] 1 QB 720.

R v Middleton [2000] TLR 293.