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	England and Wales County Court (Family)
You are here: BAILII >> Databases >> England and Wales County Court (Family) >> S and T (Children), Re [2014] EWCC B21 (Fam) (26 February 2014) URL: http://www.bailii.org/ew/cases/EWCC/Fam/2014/21.html Cite as: [2014] EWCC B21 (Fam)

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TIN THE SWINDON COUNTY COURT
IN THE MATTER OF [THE CHILDREN ACT 1989]
AND IN THE MATTER OF [S AND T] (CHILDREN)

		26 February 2014.

The proceedings

1. These proceedings concern two children who I shall refer to as S and T. S is a little girl born on [a date in] 2009, now aged 4 ½ years. T was born on [a date in] 2011 and is just 3 years old. The applications before the court are for care orders and placement orders in relation to both children. This is the final hearing.

The parties

2. The applications are made by Wiltshire Council (LA) in whose area the children reside. The children's mother is (M). She is currently in a relationship with (F) who is T's father. DNA testing carried out in 2012 established that S's father is (AB). He does not share parental responsibility for S. Numerous attempts have been made by the LA to make contact with him in relation to these proceedings, but he has failed to respond to all communications and it has not been possible to serve him with the required formal notice. In view of his failure to engage in previous proceedings or to take steps to be involved in S's life since his paternity was confirmed, I have directed that the LA need not continue to try to serve him. F does not share parental responsibility for S, but in view of the 'parenting' role he had adopted in relation to her, I consider it appropriate that I refer to him as a parent. The children are represented through their Childrens Guardian, Jerry Hawkins (CG).

Background

3. The children were previously the subject of care proceedings commenced in 2011. The LA was concerned about injuries to S in the form of bruising and a torn frenulum. Both children were removed to foster care and placed with (H), agency foster carers, where they remained for nearly 2 years while investigation into the cause of S's injuries continued. In September 2012, the LA concluded that the expert evidence commissioned to assist the court was insufficient to support the threshold findings. Blood testing had identified the presence of a transient lupus anticoagulant, possibly related to a viral infection, which the jointly instructed experts agreed was the most likely cause of the extensive bruising to S. In May 2012 when S was tested, no abnormalities in her blood clotting were detected, although it is not clear that S was specifically retested for the lupus anticoagulant at this time. Dr Debelle, consultant paediatrician, reconsidered his advice and concluded that the torn frenulum could well be an accidental injury, S being a toddler with an unsteady gait.
4. In the course of the proceedings, the LA had become concerned about the basic parenting skills of both M and F, who appeared to need a high level of advice and guidance. The sought to amend its threshold statement to reflect these concerns, citing developmental delay identified when the children first came into care. S and T were observed to have thrived while in foster care. Dr Debelle was asked to consider this issue and reported in August 2012. He concluded that there was some evidence of developmental 'catch up' in S's case since she had been in care. In addition, he raised concerns about S's behaviour in contact visits over a number of months, which he thought might indicate possible attachment issues indicative of parental neglect. He did not feel able to give a definitive opinion on this matter which would need to be sought from a child psychologist.
5. A revised threshold finding based on developmental delay was not accepted by the parents and was to be the subject of further legal argument. But in the meantime, the LA had indicated to the court that in any event it intended to embark on a programme of rehabilitation of the children back to the parents' care, with extensive work and support to be provided that would take into account the concerns identified and the parents' individual learning needs. The proceedings were further adjourned to allow this plan to be implemented, and several extensions made to the timetable to allow the plan to be taken at a pace appropriate to the children's needs. The LA informed the court that the parents "had made significant progress in building confidence, understanding and ability to parent the children" and S and T returned home on 26 March 2013.
6. In April 2013, the proceedings were finalised by permission being granted to the local authority to withdraw the case. The LA would continue to support and monitor the family without the need for orders, and had no concerns about the parents' willingness and ability to work with them. It was not felt necessary for the court to consider or make any findings on the matters contained in the LA's threshold statements in the light of the progress made. This step was agreed by all parties, including the CG at that time, Sylvie Reeve.
7. Various agencies continued to be involved with the family, including the health visitor and social worker, and Mrs Penny visited twice weekly from the Intervention Service. S and T were attending nursery and M's mother (MGM) was helping out. The records suggest that, overall, this period was positive, although T appeared to manage the transition more easily than S. In particular, it was recognised that as the children had been in foster care for almost two years, support was needed in relation to behavioural management and putting routines in place. After a few weeks, the social worker, Miss Tubbs, was concerned that F was often unavailable, still in bed, when a number of social work visits took place, and that M was being left to manage the children on her own.

Precipitating events

8. On Tuesday 28 May 2013 when Mrs Penny visited she was informed that S had been unwell at the weekend. Mrs Penny describes S as "whimpering" when she arrived, although she had brightened during the visit. S was reported to have been sick on Saturday evening, following which M and F had noticed bruising on S's face and were concerned it might be a repeat of the lupus problem. In further discussion, the parents described how S would get out of her bed at night and try to climb into T's cot, getting herself caught in the bars and hurting/bruising her legs. Having observed the bruising to S's face, Mrs Penny advised the parents that they should take the child to see her GP and assisted in making the appointment. When she revisited two days later she was told by the parents that the GP, Dr Pemsel, had said the bruising to the face was as a result of the vomiting and the bruising to the body and legs was consistent with play, including getting her legs caught trying to climb into the cot. The LA contacted Dr Pemsel who confirmed that she had accepted the parents' explanations. The parents agreed to the LA's request that S be seen by a paediatrician at Salisbury district hospital.
9. S was seen by Dr Lwin on 1 June 2013. He was very concerned about what he described as extensive bruising. He prepared a report in which he concluded that while some of the bruises were likely to be accidental, there were concerns in respect of the bruises on S's face and around her knee and he recommended further investigation. S was admitted for further tests to be done. Blood tests for abnormal clotting were negative, but did not include a repeat of the earlier test for the lupus inhibitor. After the intervention of the LA, this was later carried out and no inhibitor identified as being present.
10. S and T were made subject of police protection orders and immediately returned to the care of H. Photographs of the bruising were not taken until 2 June 2013 when they were recorded by a police photographer. It appears that the hospital was unable to facilitate making such a record over a weekend.
11. M and F were arrested and interviewed by Wiltshire police on 2 June 2013 and subsequently charged with criminal offences which the CPS has indicated will be discontinued at a hearing later this month on the basis that there is insufficient evidence to support a prosecution.
12. The children remain in the placement with H. Not surprisingly their experience of being removed for a second time has had a major impact on them. Observations by H and Miss Thomas, the social worker, suggest both children have struggled to understand what has happened to them and are at times bewildered and confused. S initially presented as very insecure and controlling, at times defiant and aggressive. Over the last few months her behaviour has stabilised but she continues to require a lot of reassurance, as does T who has become insecure and clingy and finds it difficult to be out of the foster home.
13. Following the commencement of these proceedings, the parents' relationship has been under pressure, and an incident took place on 19 July 2013 between F and M, during which F kicked M on the leg and punched her to arm. M was very distressed when describing the incident to Miss Thomas. M confirmed that nothing like that had happened previously, although she is reported to have said F was verbally abusive and controlling towards her. In their statements both parents suggest the police were called to the incident, but it appears no formal complaint was ever made although M had told Miss Thomas she would do so with the support of MGM.

The LA's case

14. It is the LA's case, as set out in their threshold document filed in these proceedings, that S has sustained bruising to her face, body and legs some of which may be attributable to active childhood play, but bruising to the face and the right knee are more likely to be inflicted than accidental. The court is asked to make a finding that some or all of the injuries were caused by M or F, or both of them, either by way of direct or deliberate force or by way of neglect. The LA further relies upon the children's presentation and an assessment by Dr Richer, jointly instructed child psychologist, to support a finding that both S and T have suffered significant emotional harm whilst in the care of their parents between 26 March 2013 and 1 June 2013, and as a result of neglectful or abusive parenting in the care of their parents before they were removed in June 2011.
15. I am not asked to make findings in relation to the injuries first raised in the 2011 proceedings which it was not thought necessary or proportionate to determine at the tine the LA sought permission to withdraw the proceedings. To do so would have significantly extended the time estimate for this hearing and introduced yet more delay. I am satisfied that it remains not necessary or proportionate.
16. The LA asks the court to find that threshold is now met in relation to both these children, and that sadly the evidence points to these parents being unable to meet the children's needs and that they should be found an alternative family placement. The LA seeks care orders, the care plan being permanency by way adoption for both children. Application has also been made for placement orders to be immediately considered if the care plan is approved.
17. At the outset of the proceedings, it was not clear whether the current foster carers would be in a position to adopt the children. That issue has now resolved and the LA has amended its care plan adding the following: The LA placement plan is for the children to remain placed with H who will be applying to adopt the children. The LA supports their application and has reached a financial agreement which has enabled H to put themselves forward as adopters.

The parents' case

18. In the earlier proceedings, M was assessed as lacking capacity, but a further assessment by Dr North carried out in relation to these proceedings concluded that M does have capacity and she has been able to give her own instructions to her legal representatives. I note that her full-scale IQ of 65 places her in the mild learning disability range for IQ. Although F does not meet the criteria for learning disability, his IQ scores were borderline, and he is said to have very poor social and communication skills and avoids social interaction. The difficulties M has with cognitive functioning and the support both parents needed was recognised within the previous proceedings and taken into account by the LA when working with M and F.
19. The parents do not accept that S's injuries are anything other than accidental, caused by normal childhood play of an active 4 year old. Further, the relevant date is of considerable importance. As at date of removal in June 2013, it is their case that there is no evidence that their care of the children was deficient or of any real problems following return of the children to their care. The rehabilitation programme was going as expected and had it not been for the bruises, would not have been brought to an end. The behaviours displayed by the children after this second removal are more likely to be attributable to this confusing and damaging experience than to the short period spent in the care of their parents.
20. The incident that occurred between the parents in July 2013 took place after the children were removed and was an isolated incident at a time of stress. There is no evidence of any other such incidents. It is accepted that in 2011there were arguments between them, but there is no evidence of that continuing since that time up until the children were removed.
21. It is therefore submitted that the threshold test is not met, and that the children should be returned home. Even if the court does find threshold met, the parents rely on the progress made under the plan and ask the court to consider returning the children to them, or to the MGM. If that is not possible, they fully support S and T remaining with H and are pleased that the LA has indicated that it does not intend to move the children and that H will be making an application to adopt them.

The CG's position

22. The CG leaves it to the court to determine the facts with regard to the injuries. The CG agrees with and adopts the evidence of Dr Richer that a move from their current placement for the children would be harmful and not in their best interests. For these reasons, he has been unable to firmly support the LA application until it became clear that H would be applying to adopt the children.

The evidence

23. I start by setting out the evidence relied upon to support the findings set out in the LA's threshold statement. I shall deal firstly with the medical evidence. The hospital notes containing the observations and recordings made by the treating physicians are available in the court bundle, together with reports from the court appointed experts, Dr Ward and Dr Leisner. It was only necessary to hear oral evidence from Dr Ward, a consultant paediatrician appointed to provide expert opinion on the issue of S's bruising. She provided a written report in September 2013 which contains a review of the medical evidence. At the time of reporting the quality of the photographs provided was poor. Descriptions and body maps completed by treating physicians were available within the hospital records and Dr Ward made it clear that her discussion of the bruising was based on those descriptions and maps as well as the photographs she was confident enough to interpret. 'First copy glossy photographs' were made available when she gave her oral evidence.
24. Dr Ward referred to the research literature in relation to bruising, noting that it is no longer considered reliable to predict likely age of bruises from their colour, which she had therefore not attempted. Likely timing of bruising will therefore have to be determined in so far as it can from what accounts there may be of who saw what, and when. She referred to two common characteristics separating abusive from non abusive bruises; location and pattern. She noted that S's age and development was such that she was likely to sustain some accidental bruising as a result of her daily activities and play. Taking a holistic view, Dr Ward observed that S had more bruises than one would expect for an active child of her age. The bruises to the forehead, forearms, left hip, back and shins could have been sustained as a result of active play. However, bruises to both cheeks were unexplained and not consistent with bruising due to increased venous pressure in the course of retching and vomiting. S also had extensive bruising on the lateral and medial aspects around over and under the right knee joint. She noted that no plausible explanation for these injuries was offered, indeed she commented on the fact that for a number of these injuries the parents seemed to be unable to give an account of the circumstances in which they occurred which might be expected if S was being properly supervised. She concluded on a balance of probability that these bruises were non-accidental in origin. The likely mechanism for both the facial bruising and the bruising around the right knee was forceful gripping or grasping by an adult. On these issues she maintained her opinion in cross-examination.
25. Having had an opportunity to consider the rather better copies of the photographs, Dr Ward amended her opinion in relation to the bruising on S's forearms. She was concerned that the pictures showed more extensive bruising on the R forearm than she had appreciated and above the wrist over the muscular soft tissue on the front of the arm, a site less likely to be banged by a child. She revised her opinion of this injury and considered it more likely a gripping or grasping injury. Although she could not make the same observations in relation to the injury to the L forearm if considered on its own, taken together with the R forearm as symmetrical sites, she concluded that it was less likely that this too was accidental.
26. She considered the explanation given for the knee bruising to be possible, but unlikely. The bruises were well-defined and circular in nature and she again postulated a gripping type injury. Again, symmetry with similar but less extensive bruising to the L leg increased suspicion.
27. Dr Ward considered the previous evidence in relation to the presence of a positive lupus anti-coagulant identified as present in 2011 and concluded that it was likely a transient effect possibly related to a viral infection. Dr Leisner, consultant paediatric haematologist specialising in bleeding disorders, reported after Dr Ward, in August 2013 and confirmed this conclusion. She was able to offer her opinion based on many years experience in managing children with easy bruising and bleeding and investigating them for possible blood clotting disorders. She advised that the tests done at Salisbury hospital in June 2013 conclusively showed that the lupus anticoagulant demonstrated in December 2011 has now disappeared. The presence of lupus anticoagulant causing increased tendency to bleeding and bruising is typically transient and self-limiting and rarely lasts as long as 6 months, and the period in which it causes easy bruising is much more short-lived, a few days or weeks at most. However the lupus anticoagulant may remain persistently positive for 3-4 months causing no particular symptoms. Dr Leisner also advised that she had never heard of or come across a case of a relapse or recrudescence of the condition triggered by childhood infection. She concludes that there is no evidence of persistent haematological cause for S's bruising. Previous tests done in 2011 had already ruled out any inherited disorders.
28. I turn next to the parents' accounts. M gave evidence, telling the court that she did not cause any bruising to S, or see that done by anyone else. It was clear that she wanted to believe that S was again suffering from a medical condition similar to that which she had been advised was the cause of bruising on the last occasion. She exhibited some understanding that the medical evidence effectively ruled that out as a possibility.
29. M described how she saw S's cheeks become very red and purple in colour as she strained to vomit on the Saturday night, and that the bruising started to come through then being clearer the next morning. There was some confusion as to whether she had previously said that she first saw the bruising on the Sunday morning, and she was unable now to recall clearly. She confirmed that the bruising appeared as seen in the photographs, not initially as pinprick red dots then changing over time, as was suggested by her counsel to Dr Ward. M told the court that Dr Lwin had agreed that the bruising might have been caused by vomiting. When MGM later gave evidence, she also said the same. However, in an e-mail Dr Lwin states that this is not the case, and I note the content of his report and the steps he took in admitting S. M described S as not her usual lively self that night, and added, rather worryingly, that S had been "floppy, like a doll". When asked why she had not taken S to the GP, particularly given the previous concerns, she said she thought S was OK, and took her when asked to by the social worker.
30. M explained how she thought that the bruising to the knee was caused by S trying to climb into T's cot, something she had only seen once, but thought F had observed on a few occasions. M appeared to suggest that S had got her knee stuck and that she had to help S pull her knee back out, before putting her to back to bed. She said she noticed bruising to S's knee the next day. In terms of timing, she said this occurred a few days, possibly a week, before the vomiting incident.
31. M was unable to give an explanation for the marks on S's arms. She knew S had banged her head against the cot; otherwise she could not help with how S sustained the bruise on her temple.
32. M denied having dressed S in tights to cover up the bruises to her leg. She explained that although it was a hot day, she had run out of clean socks for S. There was a concern in the earlier proceedings that makeup had been applied to S's bruises before she was seen at the hospital. M maintained the account given in the earlier proceedings that S had applied the make up herself.
33. M had been happy to work with the LA and to have their help and advice. The MGM had also been providing support. She did not see any particular difficulty with F not assisting her with the children in the morning at times when he was unwell or catching up with sleep having stayed up in the night. She described how F had difficulty sleeping which became worse when the children returned. She described herself as a heavy sleeper and that it was F who would wake to the children and if necessary stay up through the night. M described her loving relationship with S and T, describing S as 'more cuddly' and T as preferring to turn to F for comfort. She accepted that work had been done to try to 'even out' their roles with each of the children.
34. M accepted that concerning bruising to S had occurred only while in their care. When asked to consider if it was possible that F had hurt S, she told the court that she "knew for a fact" that F had not done so saying "I have that trust in him, he wouldn't". She was asked to consider why she still had such a level of trust given the incident in July 2013 when F had injured her arm, something that had greatly upset her, was a real shock to her and she had not believed he would do. M adhered to her belief that F would not hurt S. She accepted that having said she would, she had not reported this incident to the police.
35. M was full of praise for H who she described as 'doing a lovely job'. She told the court how she was always kept informed about what they were doing and the good communication at contact handovers. It was clear that this was a placement both parents would be happy to support and would not disrupt if the children could not return to their care. Both parents were keen to keep a greater level of direct with the children if they were to remain out of their care, and confirmed their commitment to it.
36. F gave evidence about the incident in July 2013. He confirmed that it occurred because he thought M had deliberately stood on his ankle to wind him up, and so he jumped up and hit her, delivering what he described as "a play fight punch". He denied that this had happened before. When it was put to him that this had caused a similar sort of injury to that seen on S's arm he replied "it is similar to you, but no". He continued to deny that the incident should be considered as serious, saying it was not a "full-on proper hit", was through a blanket, only caused one little mark and it had not been meant in any nasty way.
37. He was asked about the bruising to S and denied having caused it or having seen M cause it. Like M, he too wanted to believe that it was due to the lupus anticoagulant, although he knew it wasn't. He had first noticed the bruising to S's face on the Saturday night. When asked if he was worried about it, he said he was and he wasn't. He accepted that S had only been taken to the GP when they were asked to, and volunteered that they had "not been quick off the mark".
38. F confirmed that he "loved S to bits" as if she were his own child and called her "his princess", T being the "little man". He explained how S would try to climb into T's cot and would slip. He thought this had happened a couple of times between the time S saw the GP and when S was seen at the hospital. He described how sometimes he would go into the children's bedroom and S would be there "shocked and stunned" when he came in. He was unable to explain why S would appear that way, but thought it might be something to do with night terrors. He denied that S was frightened of him or that he would do anything other than put her back into her bed. The other bruises he put down to rough play including 'play fighting'.
39. He dismissed as "rubbish" concerns about his lack of support or motivation to help around the house.
40. It appears that S has given no direct account herself to anyone about how she got her bruises or indeed said that either of the parents has hurt her. She declined to respond when spoken to at the hospital; indeed she appears to have been quite silent before falling asleep. However, Miss Thomas includes information in her statements about comments reported to have been made by S since she returned to H's care. These include "don't bang my head" when she was being settled into bed, "get off me, don't hit me" when mis-behaving, and aggressive behaviour such as kicking and making fists, including towards T, accompanied by words such as "come nearer and you'll get it", "I'm not having it", "I'll kill you", "I'm not caring for you, I'll send you back". Further accounts of what S has said are contained in a letter provided by solicitors acting for H dated 10 February 2014. That S has said these things does not appear to be challenged. It also appears to be accepted that S was not seen to have extensive or concerning bruising at any time while she was in the care of H.
41. I set out next Dr Richer's evidence in relation to the children. Dr Richer, who is a very experienced consultant clinical child psychologist, was asked to assess and report on S and T. He provided his report in October 2013, as ever a model of brevity and clarity, as was his oral evidence. Dr Richer identified that both children behave in a strongly avoidantly insecure way towards both parents. He expanded on this in evidence, setting out in some detail how he had identified this from observing the contact visit, and explaining why those not attuned to assess such matters could easily miss or misinterpret a child's behaviour. This was in contrast to their behaviour with their excellent foster carer which was much more secure.
42. Dr Richer identifies that S's early experiences before she was taken into care have left her deeply insecure. He discounted that this might be the result of the earlier removal, S's behaviour on going into foster care being much more disturbed than could be accounted for by that fact alone. In addition, S's fear exhibited at the first contact after her earlier removal, particularly of F, was significant and showed disturbed, avoidant and resistant behaviour. I note that this was a concern that Dr Debelle had raised in 2012. A child who was securely attached would not be expected to behave in this way. T having been moved at 5 months was unlikely to show later consequences of any early attachment deficient parenting.
43. He suggests that there is evidence that the parents lacked skill and commitment early on and found it difficult to sustain nurturant care. Crucially, S's behaviour when first in care, taken with both children's behaviour after the failed rehabilitation attempt, indicates that they were highly stressed, if not traumatised. S's attachment system is the most damaged, T's behaviour more indicative of post-traumatic stress than deep insecurity. Dr Richer identified that H has worked skilfully and hard to correct S's insecurities and achieved considerable success, although the rehabilitation attempt set matters back. He considers H to be very sophisticated in her understanding of how to improve attachment security, and that she is the best source of therapy for the children.
44. Dr Richer was unequivocal in his recommendation that the children must not move from their current placement. He set out clearly the problems that had occurred particularly for S as a result of the age and developmental stage she had reached when the first rehabilitation was attempted. The same mistake might apply to T, given that he was now just over 3 years old. Rehabilitation home for a second time he assessed would be highly damaging and virtually guarantee that the children would develop psychological problems and underachieve educationally. A move to another placement carried similar risks which Dr Richer set out in his evidence, including drug abuse, early pregnancy, placement breakdown leading to further insecurity and general life failure.
45. On the issue of contact, he saw little value in the current frequency of contact and described it as something the children endure rather than gain from. A substantial reduction would be of benefit. In evidence he was rather unspecific about what that substantial reduction should be, talking about 6 – 12 times a year, but when asked to consider it in terms of benefit to the children, struggled to find much benefit, other than what might be derived in later years. He identified that seeing birth parents consistently over the years can be beneficial, rather than suddenly having contact not having seen them for some time. Once or twice a year would be enough.
46. I heard from Miss Tubbs who was the children's social worker during the previous proceedings and up until Miss Thomas took over in June 2013. She had worked with the parents during the rehabilitation phase and described how M and F had made significant progress, although M perhaps showed more engagement than F. She had seen a positive bond and attachment between the children and the parents, which was a significant change in that period. She confirmed that the LA had engaged psychological advice in relation to the children's needs and to direct the work done with the parents, and that generally the progress being made continued to be in the right direction. Contact improved over time to the point where S was saying that she wanted to go home.
47. Her experience of visiting during the period the children were returned to the parents was that for the first few weeks, F was up and supporting M to care for the children, but this changed. M she described as happy and well and enjoying her time with the children, asking questions and seeking guidance. The children were clean and well presented and the house tidy. However, she was concerned that the parents did not have a good understanding of the children's needs as a result of having been in foster care and their need for a high level of emotional reassurance.
48. Miss Tubbs confirmed that T managed the transition rather better than S, both children finding it difficult to leave their foster carers. However, it was her assessment that while the parents continued to need a lot of support in their care of the children, there was nothing to indicate that this plan was not working until concerns were raised about the bruising. She confirmed that there had been no other child protection concerns raised throughout that nine week period.
49. She told the court that issues the foster carers had experienced with S when she came into their care in 2011 were re-presenting when S returned to them in June 2013. This included S not wanting anyone to touch her face, particularly her mouth, and over eating. Miss Tubbs had visited the children in foster care in June 2013 and noted S's very difficult demanding and aggressive behaviour. T too was exhibiting changed behaviour in not wanting his nappy changed, either by H or at nursery. He has also found it very difficult to leave the foster home for any period of time.
50. Miss Tubbs confirmed that the LA's plan was for the children to be adopted and that contact should be restricted to the usual indirect letterbox contact. T's contact has already been reduced as he was finding weekly contact too difficult. The LA considered direct contact would be confusing to the children and that it would be important that they were able to settle into any permanent placement with reassurance that there would not be a future move. It was her view, which she acknowledged differed from that of Dr Richer, that contact was affecting the children as demonstrated by their behaviours both in and out of contact.
51. The CG evidence, once he had confirmed his position in supporting the children remaining with their current carers by whom they would be adopted, was confined to the issue of contact. He was unequivocal in his view that it would be "entirely wrong" for the court to make any contact orders as the situation required flexibility in the future to respond to the children's developing needs. It would be wrong to make an order that might not be appropriate in the future. He identified that for S and T the purpose of future contact would be to address the issues that any child in an adoptive placement is likely to have about identity, and to have a sense of reality about their birth family. It was not in their interests to continue to have a relationship of some significance with the parents, but it might well be that some minimal contact would be beneficial at an appropriate time for S and T. The CG had no concerns that M and F would be unable to support this or would seek to disrupt the placement, they having always acted in a reasonable and considered way in relation to the children's placement with H. Indeed the CG had been impressed by the parents on a number of levels in accepting without challenge the anxieties shown by the children in contact and waiting patiently and gently encouraging them to engage. The CG was also confident that if placed with H, they as very skilled and able carers with a good understanding of the children's needs were in the best position to determine if and when direct contact would be of benefit for the children and to make the appropriate contact with the parents via the letterbox system. It was important that they should be in a position to make those decisions. It was of considerable benefit that H already knew the parents and were used to supporting the children in contact with them.

Factual Findings

52. I have reminded myself of the relevant legal principles that apply in relation to factual findings which I summarise as follows. The standard of proof is the balance of probabilities. If the court finds that a fact is proved, the court will treat that fact as established and all future decisions about a child's welfare will be based on that finding. Equally, if a particular finding sought is not proved, the court must disregard the allegation completely. There is no room for a finding that something may have happened.
53. Findings must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation. When considering cases of suspected child abuse the court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. Judges are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses.
54. The evidence of the parents is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them.
55. Witnesses may tell lies in the course of an investigation and when giving evidence and that a witness may lie for many reasons. The fact that a witness has lied about some matters does not mean that he or she has lied about everything. The court will need to consider carefully how such evidence should be treated.
56. Appropriate attention must be paid to the opinion of medical experts, but it is not the only available evidence and expert opinion needs to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence and there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts. The court must resist the temptation to believe that it is always possible to identify the cause of injury to a child.
57. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. However, it may not always be possible to make a determination, and a judge should not strain to do so, but identify who should remain in the pool of potential perpetrators. The test of whether a particular person is in the pool of possible perpetrators is whether there is likelihood or a real possibility that he or she was the perpetrator.
58. I have applied these principles, as I have considered the evidence in relation to the factual findings sought.
59. I start with the bruises to the face. The bruises to the cheeks are sited symmetrically on each side, and I would describe them as being on or below the cheekbone, which fits with Mrs Penny's description. The parents' oral evidence was that this bruising appeared as it is seen in the photographs, almost immediately after S had been vomiting on the evening on 25 May 2013. They did not suggest the bruising had changed in any way and had assumed it was caused by S retching. It was certainly visible the next morning and was seen by the nursery and Mrs Penny at the beginning of the following week. I accept Dr Ward's evidence that the symmetry and site of these injuries is unusual, albeit I note that they are not in the fleshy centre of the cheeks.
60. The injury over the temple does not appear to be recorded by any observers until S was seen at the hospital, however, it may not have been visible under her fringe which I note was held back for photographs to be taken. In the circumstances, it is not possible to say when this bruising occurred, and whether it occurred at the same time as any of the other bruising. Dr Ward raised some concerns in her evidence about the position of this bruise and lack of explanation. I note that M said she thought S might have hit her head on the cot, but there did not appear to be any clear indication as to when this occurred.
61. I turn next to the bruising to the legs. This bruising could represent one episode of injury or several over a period. If the latter, it gives some weight to the cause being a repeated action, although I note Dr Ward's observation that one would not expect to see such a broad spread of bruising. Both parents have given accounts of seeing such bruising after S got her knee stuck between the cot bars. M said this had occurred some days before the vomiting episode, which ties in with what was said to Mrs Penny on 28 May and F says this happened on a couple of occasions after S had been seen by the GP. On 29 May when S was seen by the GP she noted only bruising on the anterior aspect of the shin. By 30 May, the more extensive bruising to the knees was observed and recorded by Mrs Penny. I am satisfied that the GP would have noted such extensive bruising had it been present. I therefore find that the knee bruising seen in the photographs occurred during the period between 29 May and 30 May 2013. I find it is likely that this cluster of bruises resulted from one incident rather than being a collection of bruises of differing ages. I accept Dr Ward's opinion that the site of these bruises is unusual and note her comments about possible symmetry with marks around S's left knee.
62. The bruising to the arms does not appear to have been noted until S was examined by Dr Lwin. However, Mrs Penny did not remove S's top, and it is not clear whether the GP carried out a full observation of S's arms. I am unable to say when these bruises appeared. I accept Dr Ward's opinion that a child is less likely to accidentally hit their forearm causing bruising in this area and note her comments about symmetry being more suggestive of a non-accidental cause.
63. The remaining bruises have no features suggestive that they may have been deliberately inflicted. The amount of bruising seen on S is a concern.
64. I turn next to the issue of likely causation. Tests carried out in the previous proceedings have ruled out any organic or inherited blood disorder. I have considered the possibility that the cause of these bruises is the presence of a transient lupus anticoagulant. Dr Leisner's evidence is unequivocal on this issue and based on testing carried out within a very few days of the bruising having first been observed. If the lupus anticoagulant is not present, it cannot be the cause of the bruising, and I can immediately rule that out.
65. In the absence of an underlying medical cause for the bruising, Dr Ward identifies the likely cause of the bruising as blunt trauma, whether deliberately inflicted or otherwise. I have considered whether the bruises to the cheeks might have been caused by S vomiting. The medical evidence was that forceful vomiting might potentially lead to pinprick red spots, but none of the experts accepted that it could cause the bruising seen in the photographs, or that initial petechial bruising could develop into those marks. I do not accept M's and MGM's evidence that Dr Lwin agreed the cheek bruising was due to vomiting. I find it is unlikely that these bruises are the result of S having vomited. Their origin is more likely than not the result of a blunt trauma to both sides of the face.
66. None of the bruising is pathognomic of deliberately inflicted injury. There are no clear hand prints or finger marks requiring explanation. The bruises that Dr Ward suggests are more likely than not caused by a gripping or grasping action are consistent with that mechanism, but could also be consistent with a number of alternative mechanisms.
67. Where it is suggested that parents may have caused injury to a child, detailed observations of the parents, both in giving evidence and the way in which they have conducted themselves throughout the proceedings, obviously assists the court in determining whether that is likely or not. I have found both M and F to be co-operative and engaged in the process throughout. Their desire to have the children returned to their care is sincere and undoubted. However, I had a number of concerns about the accounts that they gave. It a concern that both parents continued to raise the lupus inhibitor as a potential explanation for the bruising long after the medical evidence had effectively excluded that possibility. I accept their evidence that the cheek bruising occurred at around the time when S was unwell and vomiting, although I have found it is unlikely to have been caused by that. Neither parent is able to give an alternative explanation for how these injuries have occurred at that time in a very unwell child, described as limp and not her usual lively self.
68. The parents did not appear to appreciate why there was concern that it was only when S was in their care that she appeared with such a significant amount of bruising. F's explanation that it could have been caused by rough play, or play fighting raises issues of lack of appropriate supervision given S's age, and should also be considered in the context of how he similarly described his assault on M.
69. Their evidence that they had no difficulty in managing the children once they returned to their care is not credible in the light of the evidence about how the children presented when returned to H's care, and in the light of Dr Richer's assessment. The LA was aware that S was finding the experience more difficult than T, and a high level of support was being provided. The LA was concerned at the parents' level of understanding of S's emotional needs at this time.
70. I accept the parents' evidence that S was trying to climb in to T's cot and that she was hurting herself when doing this. I have considered their descriptions of how S would get her knee stuck in the cot bars which appears to have happened on more than one occasion and I do find that credible. I accept Dr Ward's evidence that it is unlikely that getting her knee stuck in the cot bars would cause these injuries, but I note the parents describing having to push S's knee back through. This might well have involved a gripping or grasping action to be applied to the knee, which if done with excessive force could be a cause of such bruising.
71. It is most concerning that the parents took no action when these bruises appeared. On 25 May, S was obviously extremely unwell. M's description of her being "limp" is very worrying indeed. It seems no medical advice was sought. The bruising around the knees it appears was simply covered up; no further appointment had been sought with the GP. The parents should have been concerned about such extensive bruising suddenly appearing within such a short time. Covering up bruises was a concern raised in the earlier proceedings. M's account that on the previous occasion S applied the makeup herself is not credible. At the time, F admitted in his police interview that this had been done as M was worried about what people might think. F confirmed that in May 2013, they were again worried about what might happen as a result of S having sustained more bruising in their care. I find it is significant that S was sent to the nursery in tights on 31 May 2013, which on my assessment of the evidence would be the day after the knee bruises are likely to have first appeared. M's explanation that this was because there were no socks I find not truthful.
72. The incident in July raises obvious concerns about F's volatility and the fact that he inflicted injuries to M, including bruising to her arm that appears to have similarities to that seen on S. It is also of concern that when giving their evidence, both parents and MGM sought to minimise it, raising the possibility that they might also take the same approach to other matters. It did not seem to have given M any cause to reconsider her view about F, who she continues to believe would not have harmed S. I found F to have shown no sign of taking any responsibility for his actions.
73. Finally, the evidence of what S has said strongly suggests that she has either been hit, or been afraid of being hit, and been worried that T might be hit. I can be confident that this has not happened while she has been cared for by H. S's aggressive behaviour is linked to words that are likely to be repeats of what she has heard adults say. While some of that could be due to watching inappropriate material, other comments such as being sent back are most likely to have been directed at her. Again, I can exclude these comments having emanated from H.
74. Having carefully balanced all of the relevant evidence, I am satisfied that taken overall it does support a finding on the balance of probabilities that some of the bruising is likely to have been inflicted on S by one or both of the parents, as follows. I find that the bruising to the cheeks is more likely than not inflicted during the evening of 25 May. I am satisfied that it is unlikely that this was caused accidentally. How it was caused I am unable to say; it may represent a gripping injury, or she may have been hit to both sides of the head. The bruising to the knees I find to have occurred between 29 and 30 May, and likely to be the result of S's knee having been gripped with inappropriate force. The injuries to the arms I also find likely to have been inflicted. I find it unlikely that S would have caused these injuries to herself given their location. These injuries may be the result of inappropriate gripping of the forearm as Dr Ward suggests, or could be the result of a direct punch or hit. My findings in relation to these injuries suggest that S has been subjected to rough handling, likely by an adult in temper, under stress, and struggling to provide appropriate care in such circumstances. This raises a distinct possibility that these are not the only such incidents to have occurred. I make no findings in relation to likely causation of the remaining bruises.
75. I have considered whether it is possible to identify the likely perpetrator, the parents being the only potential perpetrators in the pool. Within the proceedings, neither parent has blamed the other, although in M's statement she suggests that they were doing so immediately after the children were removed.
76. The evidence suggests that F was finding it more difficult than M to cope with the children after they were rehabilitated. The difference seen in his relationship with T from that with S was of sufficient concern that the LA included some work in the plan to address this. F himself points out that there have been no injuries to T. His increased difficulty sleeping and being unavailable to assist in the mornings left M to manage on her own, but ongoing observations of her with the children raised no concerns. The parents agreed that it was F who was left to manage S when she woke up at night, and his evidence about how S would appear when he went into the room suggests a child in a state of fear. This behaviour must be considered in the context of S's apparent fear of F at the first contact visit after she was removed in 2011. The incident in July when he lashed out at M, albeit an isolated incident, demonstrates that F is capable of inflicting a similar type of physical harm to that inflicted on S, when angry and under stress. There are no such indications in relation to M. These considerations support a finding that it is more likely than not that F is the perpetrator of these injuries to S. I find it unlikely that M would not have been aware of F's inappropriate handling of S, and the evidence supports a finding that M has failed to act protectively.
77. In addition to finding that F has caused injury to S, the evidence supports a general finding that S's physical safety and well-being has been grossly neglected by both M and F. This finding is made in the context of the previous history, known to both M and F, that concerns had been raised previously about excessive bruising to S. Being aware that S was covered in bruises they took no steps to treat them, protect her from further injury, or seek medical advice until directed to do so, and this at a time when they themselves were apparently expressing concern that the injuries might once again be due to the lupus defect. M's reaction was to try to cover them up.
78. Finally, I have considered the finding sought that the children's emotional needs have not been met while in the care of M and F, including prior to being removed in 2011. I am satisfied that the evidence demonstrates that the parents found caring for S and T prior to the LA first becoming involved in 2011 a difficult task, and failed to meet their emotional needs. Similarly, following rehabilitation, both parents were again overwhelmed at times in managing the children's care and meeting their needs. Their inability to properly understand the children's emotional needs as a result of having been in foster care has almost certainly contributed to this. These findings are supported by the evidence from the earlier proceedings and Dr Richer's assessment which I accept and rely on. The fact that it is made with the benefit of hindsight does not detract from his conclusions. I have considered how such a finding fits with the LA's observations during the period the children were with the parents and note that there remained concerns and a high level of support continued to be provided. The report of the psychologist instructed by the LA during the rehabilitation process, but not previously disclosed, sets out those concerns and gives the background context within which the LA thought it was working.

Threshold findings

79. On the basis of these findings, I am satisfied that the required threshold criteria under s.31(2) Children Act 1989 are met. S has suffered significant physical and emotional harm and neglect, and T has suffered significant emotional harm and neglect. This harm has occurred while in the care of M and F, and is attributable to their not giving the children the care it would be reasonable to expect a parent to give.

Welfare considerations

80. I turn now to consider the LA's application for care orders, and if granted, placement orders. I remind myself that the welfare of the children is the paramount consideration and the matters set out in the welfare checklist in s.1(3) Children Act 1989 must be considered and balanced. As the LA care plan is for adoption, it is also necessary to consider the provisions of the welfare checklist provided in s.1(4) Adoption and Children Act 2002.
81. The children are not expressing any desire to return to the care of their parents, indeed S has said that she does not wish to return home, and T is finding it extremely difficult to leave the foster carer's house which appears to be a place of some security for him. Dr Richer described how they 'manage' contact with their parents. This expression of their current wishes and their relationship with their parents must be considered in the light of their experience of being removed twice from the care of their parents, and having spent a considerable period in the care of H. When the LA was previously working towards returning the children to the care of their parents, S was said to have expressed different views, however I have found since then that she has been subject to physical ill-treatment. The children will have no understanding of the longer term issues to be considered by the court at this time, including in relation to adoption.
82. S and T have suffered a disrupted childhood and neglect of their needs which has impacted on their development as identified by Dr Richer. The children are now in need of therapeutic parenting which in his view is best provided by the children remaining with H. He has set out the risk of harm and the possible long-term implications for the children if there are further disruptions to their attachments at what he identifies as critical stages in their development. It is his firm opinion that the children should not experience any change in their circumstances, except in so far as that reinforces and supports the placement. He is supported by the CG in these views. The LA does not intend moving the children now that a way forward has been found to underpin this placement with permanency. The LA relies on and accepts Dr Richer's conclusions and Miss Tubbs told the court how important it is that S and T are parented by carers who know about and understand the children's attachment difficulties, have an awareness of the children's experiences to date and have the skill and ability to read and manage their complex behaviours. The current carers are in a particularly strong position in being able to meet the children's needs as skilled foster carers with a good understanding of attachment needs, and in having experienced with S and T the changes in placement and understanding the background to and reasons for the court proceedings.
83. S and T are half siblings, but have grown up together and will have no understanding at this age of such issues. Sibling relationships are generally considered some of the most important in a child's life, particularly where there are shared experiences of upbringing, and indeed normally endure long into adulthood providing mutual support. The LA does not intend that they should be separated and this would not appear to be in either child's interest.
84. If S and T were to return to the care of M and F it is likely that they would be at risk of suffering further similar harm to that which I have already identified has occurred. I have no doubt that M and F are genuine in their love for both S and T and have tried to do their best taking into account their own limitations and parenting abilities, and more recently in the extremely difficult circumstances of the children having returned to their care after an extensive period in foster care where they received a very high level of care. However, the sad conclusion has to be reached that these parents could not cope, and are simply unable to manage parenting these children to a good enough standard where they would be safe in their care. That is unlikely to change given their inability to manage even with a high level of support and guidance which was provided during the rehabilitation phase and continued during the time S and T were in their care between March and May 2013. I have taken into account Dr Richer's evidence about the relationship the children have with their parents, the insecure attachments both children exhibit. I have considered the CG view as to the level of relationship that is appropriate for the children with their parents in the future.
85. I have considered whether the MGP's could offer a permanent home for the children. MGM gave evidence which left me in no doubt that they are sincere and have the best of motives in putting themselves forward; indeed they are described by the LA as loving and committed grandparents with whom the children have a positive relationship. In spite of that, the conclusion of the viability assessment is negative. I am asked to consider whether this is a report that should be relied upon given the positive special guardianship report which is to be filed in separate proceedings in relation to another granddaughter currently being looked after by the MGP's. That report is, of course, considering matters from the perspective of the child to which it relates, and in these proceedings, I must consider matters from the perspective of S and T, and taking into account their needs as I have already identified them.
86. There are very clear difficulties in relation to this proposal, not least the number of children that MGM would be caring for within the household. They have two children of their own living in the household, as well as their granddaughter who is 2 years old. To accommodate S and T, into an already no doubt busy household will be a challenge. That challenge is increased by their need for a high level of attention and therapeutic parenting. Listening to the MGM's evidence, I found her unable to properly understand the concerns of the LA, particularly in adhering to the lupus inhibitor as a possible cause of the bruising, suggesting that she had heard Dr Lwin agree that the cheek bruising was the result of S vomiting, and down playing the difficulties in the relationship between M and F, specifically the incident in July 2013. The LA questions their ability to properly understand S and T's attachment difficulties and the impact their early life experiences and changes have had on their emotional development, and to provide sufficiently protective parenting. I accept the LA's concerns in relation to this potential placement.
87. I have considered the implications for S and T if they are not to return to their parents' care or that of the MGP's. This would result in them growing up outside their birth family with all that brings in the form of a need for a sense of identity and understanding of how that comes to be necessary. Dr Richer has identified that the success of such a placement is likely to be dependent upon the skill and commitment of the carers and that although both foster placements and adoptive placements carry a risk of breakdown, there are a number of factors in this case that attach to the placement with H that would mitigate against such risks. I remind myself that the severing of family ties is only to be taken in circumstances where it can be said that is necessary and proportionate to meet the children's welfare. The court should consider carefully what links might be appropriately retained if such a placement is found to be required.
88. I have considered whether there is a realistic option for the children to remain in long term foster care. Such an option would mean the children retained a legal link with their birth family, and possibly some limited contact. The LA's view is that long term foster care is insufficiently secure for these children who, given their attachment difficulties, will have a high need for a sense of identity and permanence which can only be provided by them being adopted. Dr Richer was rather less convinced that this needed to be provided by an order, rather than by the reality of the children's experience living with their carers, but I understood him to be giving a psychologists view of the situation. The difficulty with such an order is the inability to ensure in the long term that the children remain in that placement, a particular difficulty where H are agency foster carers, and the on-going and potentially stigmatising experience for the children of being 'in care' with all the intrusive monitoring that involves. I find it a significant disadvantage that their actual carers would not hold parental responsibility for them rather than the LA being their corporate parent.
89. I have considered whether a Special Guardianship Order might be appropriate to meet these children's needs. A legal link with the birth family would be retained, but the ability of the parents to exercise their parental responsibility would be limited. The Special Guardians would hold parental responsibility and the disadvantages I have identified of being 'in care' would not apply. I take into account that a SGO is an order that is capable of being reversed. Unlike an adoption order, no permanent legal link would be created for the children with the Special Guardians. Their status within the placement would be dependent upon the order remaining, and ends when they reach adulthood. For these particular children, their experiences to date create a particular need for them to have a sense of permanency about a future placement, and this factor must be given a great deal of weight.
90. Finally, I have considered the implications for the children of them being adopted and becoming full members of their adoptive family, who will have sole parental responsibility for them. Such an order would extinguish all legal ties with the birth family but provide the sense of permanence and identity it is suggested that these children will need, not only throughout their childhood, but as adults. The LA would only be involved in supporting the adoptive placement and any contact. This is the most far-reaching interference in the parties' article 8 rights and where they may be in conflict, those of children take precedence. In this case, I take into account that the parents themselves support this placement if the court concludes that the children cannot return to their care.
91. I have considered and balanced the various options and reminded myself of the very high level of justification required to allow a court to approve a plan for adoption as being necessary and proportionate. I conclude that in this case, the evidence is clearly in support of a conclusion that both S's and T's welfare will only be adequately met by them remaining where they are in the very capable care of H. The permanency needed for this placement can only be secured through the making of adoption orders. I am satisfied that the LA has taken all appropriate steps to retain the children within the family, considered all reasonable alternative family placements and that this is a case of last resort, and that 'nothing else will do'. I have framed my conclusion on the basis that the plan is for the children to remain with H. I should add that, were the option of a placement with H not available, then the evidence would still support an adoptive placement for all the reasons I have set out.
92. On the issue of contact, I have considered the representations made and do not consider that the court should make any order in this regard. I agree with and adopt the views of the CG that H is well-placed to make appropriate decisions about contact for S and T. They will want to take into account my findings, the evidence of Dr Richer and the CG, as well as discussing matters with the LA's adoption team.
93. I approve the LA's care plan for adoption, and make the care orders required.

The placement application

94. I turn next to consider the LA's application for a placement order. The conclusions that I have reached in approving the care plan for adoption, and making the care orders apply equally in relation to this application. I have already given consideration to the s.1(4) welfare checklist and remind myself that the welfare of the child is paramount.
95. I am reminded by the case of Re A [2013] EWCA Civ 1611 that a placement order is an order which permits the LA to place a child for adoption with any prospective adopters who may be chosen by the authority. In this case I am satisfied that the LA intends to place with H, as the amended care plan makes clear and the children's IRO, who should be provided with a copy of my judgement and the approved plan, has responsibility for ensuring that the plan is adhered to and any changes made to it are in the children's best interest. In those circumstances, there seems to be no difficulty with the court granting a placement order so that the LA can formally 'place' the children with H as soon as matching has been completed. The intention to place with named persons does not amount to a condition on the placement order.
96. However, a difficulty arises in relation to dispensing with the parents consent to adoption, which is required under s.52(1) Adoption Children Act 2002. The indications from the parents are that they will support H adopting the children. This is a hugely important factor for children, parents, and H, and likely to contribute to the stability of the placement in the long-term that should be recognised. I recognise they may not wish to consent to a placement order. I cannot find that it is appropriate to dispense with parental consent to adoption in such circumstances where the parents would consent to an adoption application made by H.
97. Refusal to make a placement order will prevent the LA formally placing the children with H as prospective adopters, but does not prevent H applying to adopt. The court can give permission for an early application to be made if the statutory time-limits under s.42 ACA 2002 that determine when such an application can be made would result in delay. It is likely in this case that such permission would be given.
98. The LA is concerned that the issue of parental consent may still need to be dealt with if the parents fail to give that consent. Representations have been made by the parents that the court should not make the placement order for the reasons I have set out, and I propose to invite the parents to consider granting advance consent under s.20 to adoption of S and T by H. I would hope this can be dealt with by the CG. If necessary, I can adjourn the LA's application rather than dismiss it at this time. If consent is forthcoming, the LA's application can be withdrawn or dismissed, if it is not, I will reconsider the application and the issue as to whether it is appropriate to dispense with parental consent.