Devon County Council v M & Ors

This is the final hearing within public law proceedings in relation to A, who was born in 2017. His mother is M, and his father is F, neither have British nationality.

This case was before me for a fact finding on 13 days, commencing on 25^th September 2018. Written submissions were filed on 25^th April 2018 and I handed down my judgment in that fact finding on 4^th May. For a detailed background summary of the facts of this case and how A came to be removed from the care of his parents in March 2017 I refer to paragraphs 27 to 74 of that fact finding judgment.

The short summary is that in 2017 A, who was just under 8 weeks old, when in the care of his parents became very unwell and was taken to hospital. At hospital he was found to have a number of injuries. Those injuries were in two categories. The most serious was that he sustained critical loss of brain functioning and cardiovascular failure, bilateral subdural collections resulting from haemorrhages over both cerebral hemispheres, subdural collections bilaterally within the posterior fossa, subdural collections within the lumbar-spinal cord and contusions to the brain substance. These injuries I classified as the brain injury. He was also found to have rib fractures. He was also noted to have a number of bruises.

As a result of those concerns that all those injuries were non-accidental, and in the context that A had been in the sole care of his parents when the brain injury occurred, he was removed from his parents’ care and has been subject to an interim care order ever since.

At the conclusion of the fact finding my findings were as follows. I found that this brain injury was sustained as a result of a single shaking incident by one of his parents on the evening of and this would have been as a result of a very short loss of control on the part of that parent. It was my view that this shaking was the matter of a moment and that the non-abusive parent would not have known why the baby was crying so loudly.

I further found that A had rib fractures and that these were caused in a single incident of compression of the chest during shaking between 6^th February 2017 and 1^st March, therefore finding that there were two incidents of injury. But I found that this previous injury was again caused by one or other of the parents during a momentary loss of control. I was not satisfied that the non-abusive parent would have been present during the shaking and that if they were not present that they would have had enough information that the child was crying as a result of the broken ribs.

In relation to both the brain injury and the rib fractures I was satisfied that both parents were in the pool of perpetrators but was not able to find on the balance of probabilities that one rather than the other parent caused either set of injuries.

So what had happened since the judgment of 4^th May? I now look at the evidence that the court has read or heard during this hearing.

The written evidence is comprised in one main ring binder. The documents include the judgment of 4^th May and the consequent orders. There are also a number of assessments.

The first assessment to be directed was, unusually, directed prior to the completion of the fact find. From early on in these proceedings the mother’s team were very keen that if fact findings were made about the mother then there should be an instruction of Pete Barr, an independent social worker who provides assessments on the resolutions model. The fact finding originally started in September and it will be seen from the fact finding judgment that there were necessary but significant delays in the completion of that hearing so that there were no gaps in the evidence. In particular, there was genetic testing and in the end the judgment, which was not delayed, was handed down in May.

In December, when it was apparent that there was to be a substantial delay, there was concern that this instruction of Mr Barr, if it was not confirmed, that he would no longer be available. With no dissent from any of the parties I agreed, exceptionally, that such instruction should take place. It is of note that in December the instruction was described as being a risk assessment. It is apparent from the resulting document that it is not specifically a risk assessment but deals with whether A could safely be returned to his parents’ care on the resolutions model, which relies on a family safety plan. The conclusion of this assessment was that A could be returned to his parents’ care.

What other assessments? There had been viability assessments of the maternal uncle and his wife, which was mainly positive, and the paternal uncle and his ex-partner. This was not positive due to their professed understanding of the cause of A’s injuries. They could not accept that the parents were responsible.

The viability assessment of the paternal grandfather was also negative. There was also an assessment of a discrete group of people, namely, the maternal grandmother and grandfather, and the maternal great aunt. Although that concluded as a positive assessment the local authority and guardian expressed concerns about the paucity of that assessment. There was no concern expressed concerning the ability of those individuals to give basic care to A, but it was expressed about their continued belief that the mother and father did not cause the injuries to A and that, again, would compromise their ability to protect A.

The viability assessment of the paternal grandmother was also negative as a result of her echoing the above views. That is, that she could not believe that her son could have harmed A. However, her understanding about the risks involved changed when she had access to the findings made within the judgment.

There then followed a special guardianship assessment of the paternal grandmother and her partner and this was positive. They live abroad in Europe and therefore if A was cared for by them he would live abroad, A was registered at birth as a national of that European country..

In addition to the above there are the statements of the parents in response to the findings made, social work final statements and transition plan.

There are final statements for the mother and father, the care plan, a report of Dr Park of 29^th August, Mr Barr’s positive outcome schedule and the reunification plan and the guardian’s analysis. Mr Barr also provided a flow chart explaining the resolutions approach and the support network table.

I have also read all the documentation provided in a file compiled by the mother’s team, which includes a number of cases where a resolutions assessment has been referred to. Although not evidence, I have been assisted by the position statement of the local authority that was filed prior to the start of the hearing and the written submissions that were filed with the court on 15^th November. I am now handing down this judgment on 20^th November.

I have heard oral evidence from Mr Barr, the author of the resolutions report, the social worker, Miss Rawlinson, the maternal grandmother through televised evidence, a good friend of the father, and then a good friend of the mother, both being approved by Mr Barr as possible members of the family safety plan. The paternal grandmother, the mother, the father and the guardian.

What is the position of the parties as a result of the assessments and evidence as a whole?

The local authority’s care plan is for A to be made subject to a special guardianship order to the paternal grandmother and her partner. The mother and father, who continue to be a couple, wish for A to be returned to their joint care. They have effectively three positions in order of priority.

It is their first wish that A is to return to their care under a care order under the resolutions model with a support plan which would include professional involvement and the support of a family safety plan whereby certain of the friends and relatives that they had named to Mr Barr would be involved in a supportive circle around this family with the intention of keeping A safe.

Their second case is that if the court considers that there needs to be another level of safety that there would still be a care order and the professional support and family support plan, but that as extra support the maternal grandmother would live with the family, with mother and father and A for about a year.

The third case is that if the court finds that it is not possible for A to return to their care then A would be placed with the paternal grandmother under a special guardianship order.

I mention also that both parents in their statements state that if the court felt able to return A even to just one of them they would separate.

The guardian’s position supports the care plan of the local authority. She, like the local authority, considers that it is too much of a risk for A to be placed into the parents’ care and she supports a special guardianship order to the paternal grandmother in the company of her partner.

The issue for this court is that it has to decide, as in all final hearings, whether or not it can approve the care plan of the local authority. In doing so I need to consider all the realistic options for A’s care.

In order to come to that decision I need to apply the following legal principles.

In its care plan the local authority does not seek a public law order. It seeks a private law court order. It seeks a special guardianship order in favour of the maternal grandmother and her partner. However, in my duty that I will refer to below of considering all the realistic options I must also consider the fact that the parents are wanting the court not to approve the care plan in the context that they hope to persuade the court that the better option would be the return of A to their care under a care order as per the recommendation of Mr Barr.

Therefore, in order to consider whether it would be appropriate to make a care order I remind myself that a care order is a public law order and before the court can consider whether such an order would be in A’s best interests I remind myself that the court would need to be satisfied under section 31(2) that the threshold criteria are met. In this case it becomes a simple consideration. I made serious findings against the mother and father and as a result of those findings threshold is crossed.

Having determined the threshold is crossed I then consider the legal principles that I must then apply whether considering either a private law or public law order. As such I go to section one of the Children Act. I remind myself of the following provisions, namely, that the welfare of A is this court’s paramount consideration. That there is a general principle that any delay in determining the question concerning a child’s upbringing is likely to prejudice the welfare of the child. That I further need to apply the welfare checklist as set out in section 1(3) of the Children Act and I remind myself that I should only make an order under the Children Act if I consider that doing so would be better for A than not doing so.

I remind myself that the court must consider the Article 8 rights of the child and the parents and their respect for family life. Any interference with those rights must be proportionate to the risks involved. I remind myself that there is no presumption in favour of return of the child to his parents. I remind myself of the words of the then President of the Family Division, Lord Justice Munby, who said in Re: G:

“We emphasise the words ‘global’, ‘holistic’ evaluation. This point is crucial. The judicial task is to evaluate all options, undertaking a global and multi-faceted evaluation of the child’s welfare which takes into account all the negatives and positives, all the pros and cons of each option.”

To quote Lord Justice MacFarlane:

“What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own positives and negatives and each option is then compared side by side against the competing option or options.”

I remind myself of the case of CM v Blackburn with Darwen BC [2014] EWCA Civ 1479. I refer to when the President agreed with Lord Justice Ryder when he said at paragraph 34:

“It involves a process of deductive reasoning. It does not require there to be no other realistic option on the table, even less so no other option or that there is only one possible course for the child. It is not a standard of proof. It is a description of the conclusion of a process of deductive reasoning within which there has been a careful consideration of each of the realistic options that are available on the facts so that there is no other comparable option that will meet the best interests of the child.”

I have also considered the case of Re: T (A Child) [2018] EWCA Civ 650, which decides that the court’s assessment and evaluation of risk is sovereign within these proceedings and that the local authority cannot refuse to provide lawful and reasonable services that would be necessary to support the court’s decision if by doing so it would unlawfully breach the rights of the family concerned, or if the decision making processes are lawful on public law grounds.

I deal now with the evidence. This is a case where neither the local authority nor the guardian support the recommendations of the single joint expert, Mr Barr. I am being asked by the local authority to reject his recommendations and consider an alternative family option. Exceptionally, in view of the positions of these parties in this judgment I propose to refer to much of the evidence of each witness in turn.

I refer initially to his report. This is dated 31^st August. Under the summary of conclusions at paragraph 18 he concludes that it would be in the interests of A for reunification work to begin with his parents. At paragraph 19 he writes:

“Given the antecedents I have concluded that although my recommendation for reunification is a positive one it is not without associated risk. If the process of reunification proceeds it will be incumbent on all concerned to proceed with great care and it will be important to follow the recommendations in respect of the process for reunification.”

At paragraph 20 he concludes that one of the great strengths to emerge from this assessment has been a family safety plan, a critical part of any resolutions type assessment. He had identified nine people who were committed to prioritising A’s needs over any allegiances that they might have with A’s parents.

At paragraph 22 he concluded that the parents do genuinely understand the reasons why there was so much professional anxiety around the circumstances leading up to A’s injuries and about the possibility of his returning to the parents’ care.

At paragraph 23 he concluded that the parents have started to develop some trust with professionals around them and that they have also developed their openness and honesty, both with professionals and with family and friends who are part of the proposed family safety plan.

At paragraph 24 he concluded he has a concern in the nature of the parents’ relationship, particularly their communication with each other. He says that this is not just about the fact that they mostly communicate in English, which is the second language for them, but it is about not communicating significant information to each other. But he states that it is a marker of the parents’ commitment to the process that within a week of receiving feedback from him that he had concerns, that they had organised relationship counselling with RELATE, although at that stage he had not seen any feedback.

Finally, in his summary of conclusions he reports on the physical and cognitive progress that A has made and, although crediting the foster carer, he is also convinced that it is down to the longer but less frequent contact that A has been having with his parents in their home.

His report explains for the purposes of the assessment that he has drawn on the body of literature of working with denied child abusers. An example of this is The Resolutions Approach: Working With Denial In Child Protection Cases by Hiles and Luger. Within the report he refers to the differences in his approach in a resolutions assessment compared to what he refers to as the Bristol method, which is conducted by systemic family therapists and his own way of doing the work which he follows as a traditional social worker.

He refers in paragraph 17 of the report that he still relies on “the framework for assessment of children in need and their families”. The guardian makes the point that in his approach Mr Barr has missed some of the phases out set out in the resolutions approach document, most importantly, the role play phase, and as such has not spent time putting challenging questions to the parents about hypothetical issues that would occur if A was returned to their care.

He assessed also all those individuals who agreed to be part of the family safety plan, including the mother’s sister-in-law, who claimed that the father had anger issues.

Whereas Mr Barr accepts that he had not completed all the phases he did not consider that such invalidated his assessment as he maintained that he and the Bristol approach follow the same principles, which are as follows. Firstly, the importance of helping parents to ensure that they understand the reasons for professional anxiety about their children. Secondly, that the parents can work openly and honestly now and in the future with a range of professionals, friends and family, and thirdly, that there is a place of safety network of family and friends augmented by key professionals who understand the concerns and can be relied upon to prioritise the needs of the child and reporting concerns to the appropriate agency in a timely manner.

Inevitably, in case like this, where the local authority and guardian did not accept the recommendation of the expert, much of the cross-examination centred on main issues. I collated his evidence concerning these issues.

First of all, risk. He was asked whether he was able to say that A would be safe when cared for by the perpetrator. His response was:

“No one is able to say that, but my observation of A with his parents, together and separately, leads me to believe that if he is returned to their care he would not only be safe but he would have his global needs met to a good enough, or better, standard.”

He was asked about the proposal of the parents working the same shift. He agreed that it would be a protective factor if both parents worked the shift. He said that because both parents would be together he was, in that circumstance, very confident that there would be no risk.

He was asked about the issue of risk and at that point it became apparent to the court that when the actual order was made that it was a risk assessment that was directed. Mr Barr’s response was that inevitably there is future risk, but in doing this work he does not get caught up in the instant and the denial.

He was asked how he could advise concerning the way forward unless he had assessed the risk. He responded that that was why there were extended periods of contact. He said:

“I could never say there is no risk. Clearly there has been a risk. But I asked how there could be a way forward.”

He also said:

“Clearly I would not make the recommendation if I think that there was a risk to A of physical and emotional harm.”

He reiterated that if he considered that there was a risk to A of such harm he would not recommend reunification. He then said that there could be no absolutes, that he therefore could not reassure the court that there would be no risk of harm, but, he said, “I see changes in the parents in their response to these proceedings.”

When considering the fact finding, that there were two momentary losses of control he said that he had discussed with the parents generally what things caused them stress. It was pointed out that he had not included those enquiries in this report. He said that his discussion with the parents was in fact to address how each would observe that the other is under stress, that the father had said that he would know as a result of the mother’s tone of voice and look and body language, and that the mother had said that she would know as the father would go quiet and would want to be in a closed bubble.

When questions were asked on behalf of the guardian there was a repeat of the approach of the local authority on the lines that if one did not know what the triggers were, or are, how can one then put factors in place to make the situation safe. Mr Barr’s response to this was it comes back to being focussed on how to make it safe in the future.

He was pressed on the point that if there is to be a safety plan one has to assess the risk against which the plan is seeking to mitigate. His response was that there was no denial from anyone that A had been seriously injured. He said it was likely that no one would know how the ribs and brain injuries occurred, but he said it is possible to work with parents who deny risk and look at what needs to change. When pushed about risk he answered:

“It is my opinion that it is now extremely unlikely that either parent would harm A in the manner that led to proceedings.”

He said on top of the changes in the parents there would be support from the professionals and, of course, the family support plan. He said that the parents will know that if they are reunified, that they will be closely monitored.

There were questions asked on behalf of the guardian on the issue of how Mr Barr could say that it was extremely unlikely that either parent would injure A in the manner that led to these proceedings when Mr Barr was not aware of the trigger for such actions. He clarified that he was not instructed to consider the circumstances around the injuries in his letter of instruction, but he accepted the findings and then looked forward to see what needs to change so as to consider what it would be in A’s interests to reunify with the parents. He said, again, that there could be no absolutes, and therefore he could not reassure the court that there would be no risk, but that he saw changes in the parents in their response to these proceedings.

Concerning the family safety plan, he was asked as to how those people on a proposed family safety plan would protect A from suffering again. He said that the parents would make themselves available, that he envisaged that there would be a lot of informed contact, that the parents are very clear that there would be a group of people keeping an eye on A. He has hopes that these people would monitor A’s immediate physical welfare, but also would monitor the stress inducing factors, for instance, deterioration in the parents’ relationship, and that all are clear that it is part of their responsibility to look at what is happening in the family, such as stress factors, and to raise them with agencies, such as the health visitor or Social Services. He said that the people within the family safety plan are those who know the parents and therefore could identify if anything was amiss or not working. He said that A would be seen at least once a day. He accepted that this would be a snapshot.

Concerning the family safety plan he said that it was important that everyone has the same baseline of information. He said that he had spared no detail in informing those individuals, including the worst case scenario, concerning progress. He said that the point of the safety plan was to produce another layer of security and safety for A.

He was asked whether he had DBS checked any of the proposed members of the family safety plan. He responded he had not, that it was never anything that had arisen before. He said that the way that he envisaged the family safety plan working was that visits would be made around meal times and, ideally, as A gets up and at night. He said that ideally there would be visits across the day.

He was asked about the critical times when a child wakes up and he said that he could draw his own conclusions form his observations with the parents.

He said that together and separately they are able to work protectively and in making that statement he relied upon, firstly, his belief that the parents understood the level of professional anxiety. Secondly, that he believed that although there had been difficulties in the past that the parents were able to work honestly with the family and professionals, which he felt was a direct result of his work. Thirdly, he believed that he had assessed nine people who were fully appraised of the circumstances and were able to prioritise A’s needs.

He said that the reason that the parents went to RELATE was that he had identified aspects of the relationship which they needed to address. When asked about anger management he said he had not seen any signs in either of the parents that would benefit from anger management. What he had seen was frustration borne of difficulties in communication.

He said to questions from father’s counsel that at no point did he observe anything other than entirely appropriate behaviour by the parents to A.

He was referred to the answers that the parents had given the guardian when she spoke to them on 4^th October and he accepted that he would not have expected the parents to give those answers after the work that he done with them.

He was asked about the incident that the mother’s relative had reported and he said that if he had seen that that would have caused him some anxiety.

He was asked whether he had mentioned that incident to the father and he said that he had a memory that he had talked to the father, but he could not be more clear about that. He said that the biggest concern is the aspects of the parents’ relationship, in particular the difficulties communicating.

He discussed the fact that the parents feel disempowered in this process and if there was a care order the fact that the care order would be discharged over a period of time would empower them. He said that the scrutiny inherent in the family safety plan was even more long term and more effective for protection.

When asked about the proposals in his assessment as to how the couple might plan their work he said that pragmatically the couple need to earn a living and that he had said early on within the assessment that if the mother was back to work they might work opposite shifts but have the same days off. He said he was mindful as to how each might manage.

He gave evidence that at the end of July in three out of four weeks he had observed the parents caring for A for up to four hours, for the first week it being up to three hours. He said that he had discussed generally with the parents what caused them stress.

I have also had sight of the email between Mr Barr and the local authority when Mr Barr was asking the local authority to contribute or pay for the RELATE sessions. I note that Mr Barr’s email of 6^th August states as follows:

“My biggest concern currently is the nature of the parents’ relationship and particularly poor communication between them. I have discussed this with them and they acknowledge that the proceedings have placed a great strain on their relationship.”

He was asked about this, in other words, whereby A would be returned to the parents’ care but the maternal grandmother would also live with the couple for a year. He said that he would not have been confident in making his recommendation for reunification if it was contingent on someone else being present to monitor the situation.

In general he said that he had 36 years working as a social worker and had been working on resolution assessments for some 27 years. He confirmed he had seen the guardian’s report and later documents, such as position statements, and was clear that nothing he had seen changed his recommendation. His evidence was that even prior to his report he considered that reunification was not part of the local authority’s plan and referred to correspondence, particularly the email of 6^th August.

When asked about the guardian and local authority’s view that there was a failure in the assessment of risk he pointed out that he had not been specifically instructed to conduct a risk assessment. But he said: “Clearly, I would not be making this recommendation if there was a risk of physical and emotional harm.”

Explaining the resolutions approach he said very often in cases there is an element of stuckness between parents and child with family and protection services where people get stuck about denial. That dispute becomes a defining characteristic. He said that his role was clear. It was to get alongside the parents and gain their trust, that the assessment is to see what changes can be made. He referred the court to The Resolutions Approach document and he accepted that one of the bases of the resolution approach was that the parents need to understand the seriousness of the concerns of the local authority.

In this case he said that initially he was anxious that the parents did not understand the seriousness of those concerns. He said that he believed that his own involvement had helped them to understand the seriousness of the injuries. He also said that he included in his observation that there had been definite progress of A during the time that he had been in the parents’ care.

I then heard the evidence from the social worker. Jeanette Rawlinson filed a lengthy social work final statement of 21^st September. It is Re: B-S compliant and properly compared the pros and cons of the various options before the court.

The main attack on the local authority by the parents was that they had never really properly considered the option of A being returned to the parents’ care. There was reference in the social worker’s oral evidence to the email of 6^th August that her manager had sent to Mr Barr stating as follows:

“We will not be paying for RELATE when we have no plan to return the child to the parents’ care.”

The difficulty that Miss Rawlinson had in the context of that email was appearing as if the local authority had really looked at the option of a resolutions approach fairly, or indeed at all. Miss Rawlinson was adamant that she had not been paying merely lip service to considering the assessment of Mr Barr but had properly assessed it. At length I was impressed with her and accepted the logic of her reasoning as to why she did not accept the resolutions approach and this was the reason of it being too much of a risk. But I came to the conclusion that however independent and open minded a social worker is, it is far more difficult for that social worker to persuade the court that they properly considered all the realistic options when their manager writes such an email, and Mr Duffy needs to take note.

I also heard from friends of the mother and the father. I was impressed by both of them. They came across as decent people who agreed to be part of a family safety plan for the very best of motives. But if they are to follow Mr Barr’s suggestion they will, between them and the rest of the family safety plan, be making daily visits to A.

I felt that there was much goodwill and good intent behind both of them. The mother’s friend said that she would love to play with A and is interested to see how he progresses and that, through play, she would be able to see if he is responding in the right way, or if he is not himself, or if he is in discomfort and hurt.

I also heard evidence from the two grandmothers. I note in the guardian’s analysis her note of her interview with regard to both. On this occasion, via video link, the maternal grandmother, who gave evidence from her home abroad. She gave evidence of how close she was with the mother and A and that she was willing to come to the UK. She said that when she spoke to the mother she spoke in her native language and often F was not asked to understand.

When she was asked whether she was finding it difficult to accept that the behaviour of the parents intentionally caused injuries to A she said:

“It is hard, but it is my opinion. I could only tell you that when we were in England they were looking after him well.”

She said that the mother had not discussed with her whether she, the mother, had accepted the findings or not.

I am not satisfied that even if this maternal grandmother were living with the parents that she would be in any way protective in view of her lack of acceptance that either parent has injured A.

The court then heard from the paternal grandmother, who had sat throughout this case, save when the matter was adjourned in order to hear the guardian’s evidence. She, in my view, conducted herself with huge dignity. It must have been so hard to hear the concerns raised about her own son, but in the assessment of herself and her evidence there is reason to believe that she realises the concerns of this court and is willing absolutely to prioritise A’s needs above those of her son.

She was in a very tricky situation and was being asked as to whether she would agree various proposals of contact if A was with her. Both the mother and the father support A living with the paternal grandmother if he cannot return to their care and I saw nothing in her evidence or presentation to question her commitment to him.

I now deal with the parents. As in the fact finding, they have been assisted by interpreters from their first languages into English. Their evidence had to be delayed by a day as a result of receiving news that A was suddenly taken unwell. Happily, he was soon fit enough to be discharged from hospital.

Before the parents gave evidence both were warned against self-incrimination. I had given both the opportunity to come forward if they had a further account to give with regard to any of the injuries.

The mother, first of all. Her statement for this hearing was short. Like the father, she felt that A should be returned to her care. She wants to care for A with the father, but her statement states that if Mr Barr’s recommendation concluded that only one of them could care for him, then she was fully prepared to separate from the father.

She stated in her statement that when Mr Barr asked them how they would manage A’s care, that she and the father proposed that they work opposite shifts so that one would always be available to care for him. I find that comment quite revealing. It has been the mother’s case that she did not cause either of the injuries, that is, the broken ribs or the brain injuries to A. How could she therefore even contemplate a routine whereby the father would regularly care for A on his own? This mismatch with her case and her response to the situation has been apparent throughout this hearing and it is within her responses to the guardian and in her oral evidence.

In answer to the questions by the local authority counsel when asked who caused the injuries to A she said that it was just herself and F that were present, so it was F. She accepted that she was blaming the father for both sets of injuries. She agreed that she was effectively, therefore, telling everyone that the father had caused bleeding on the brain, that he had caused A to collapse, that he had caused A to be in hospital, that he was the reason that A was not living with her and that it was because of the father that everyone was pointing a finger at her.

She was asked again: “That is what you think? That all the consequences were caused by F?” and she agreed. Then she was asked ,but if that is what she agreed then why was she with him? Her answer was:

“The case was very long in the beginning. I could not believe that someone would hurt him. I thought it was a health problem.”

She says that when she knew of the result of the fact finding her result was that: “I know that F was hurt and I know that he regrets what happened.” But when asked, she said that the father had not actually said that he regretted it. She was asked again, why was she still living with him and she repeated: “I know how hurt he is. I know he will not do it again.”

She was asked whether she had been cross with the father with all that he had put her through and she said: “I’m very sad and upset with the situation. I don’t argue with him. I concentrate on A to come back.” She continued that she did not think it would be good for A to see his parents arguing. She was asked again as to how she could live with the father and she said: “I don’t think he would be a risk again.”

She was asked about the proposal that she and the father could work alternate shifts. She was asked: “If you were at work and F is looking after A then that is presumably because you do not think that he would be a risk to A?” Her response was: “In my opinion, we both learned a lot. I don’t think he will be.” She went on to say: “From my view there is not a risk.”

She repeated that she felt that he, that is, the father, had learned a lesson. She was then asked whether he, the father, had said anything which would lead her to feel that the father had learned his lesson and she replied that he had not said anything to that effect, that she had not asked him but that she took it from his behaviour.

She was asked whether it was in fact just wishful thinking and she said: “It is what I like to think, but also true.” She said she believed in her heart that neither of them would hurt A again. She said that the father had asked her, but that she did not think that the father had ever said to her that he forgave her. She said: “I know it’s F.”

She accepted that he was still lying to her and said: “In my head I know there are findings and with what the doctor said I would’ve done the same.” By this I understood her meaning that she would have understood why the findings of the court were made, but she went on to say that somehow in her heart she considered whether it was possible that A was hurt by either, not realising that they had done it.

After this section of evidence it was put to her that her answers indicated muddled thinking and that they suggested that she would not be protective. She disputed that and said that she would take anything, by which she meant she would take any help to protect her child.

This evidence of the mother underlines the position. She will do anything to have her child back, but will she feel that she needs to be protective about A being in the father’s care? No. She will do what is required, but in the hours when the parents would be on their own with A will she be extra vigilant of A being with the father? The answer is, no. Why? This is because she has still not come to terms with the findings. She is still thinking perhaps it might have been some accident, that the parents in some way injured A without realising that they had done so.

Dealing with the issue of RELATE. She accepted that she was the one who had contacted RELATE. I have read the notes of their attendance at RELATE. They start in August and they are very short notes, the parents reporting that there has been some improvement in their communication.

Later in her evidence she was asked whether she felt that there was a need for anger management. She said she felt that the father needed it, but then qualified it by saying that she had never seen him aggressive to another person, but she thinks that he could learn something. She then accepted that she did not feel that he needed it. In re-examination she agreed that if required to do so she would ask the father to leave the home.

Concerning the father, in his statement he echoes the position of the mother, that he feels that it would be best for A to come home to be looked after by himself and them other. He referred to the fact that they now attend RELATE and he stated that it has been helpful and said:

“I have realised that there are some little things that could change in the way we communicate with each other.”

His statement states that he is aware that the mother has said to Mr Barr and the social worker that she has not caused the injuries and therefore he must have done so. He states:

“I’m quite surprised that M has said that. I still say that I didn’t cause the injuries and I can’t believe that she caused the injuries.”

He takes issue with the accuracy of what the mother’s relative says about his temper and the incident where she reported him kicking a wall. He disputes that it was a wall. He does not accept that he is an angry person and with regard to the reunification plan and he states that he and the mother can be flexible about their work pattern. He confirms that if A cannot come home to him and the mother then A should go to the paternal grandmother.

In his oral evidence in chief he clarified that he had approached the mother’s relative about her allegation of his temper and that she had accepted that she had not been present at the incident that she claimed to report. He gave an explanation as to why she would wish to say such a thing and said that it was part of the relative’s personality that she likes to put people down.

When asked about his relationship with the mother he said: “Our relationship is not the best. We are different people” and at one point he accepted that it was best for them to attend RELATE. When the local authority asked as to who had organised the sessions with RELATE he said it was the mother and that he did not think there had been a big discussion about it.

The local authority counsel then put the same series of questions to the father as he had done to the mother. The father said he accepted the findings in that A’s injuries were caused by himself or the mother. He accepted that the rib injuries were as the result of someone having had a momentary loss of control.

He was asked whether he now persisted in the thoughts that CPR may have caused the rib injuries and he said that he had wanted to hold on to that as it was so hard to believe.

He was asked if he accepted that someone held A so hard that it fractured two of his ribs and he said that it was not him, but he believed that the only people were just him and M and then he said: “It is hard to believe.” He said he wanted to say that he was certain he did not hurt him. He said: “It is very complicated. Very difficult for me to accept that she had done it.” He said that: “It has come to my mind that someone has grabbed him and squeezed him, but not in a way to hurt him. But I don’t know.” At length he said that he accepted the findings and when asked whether he thought it was something the mother had done his response was: “Well, yes.”

He was then asked whether if A were to come home whether he felt there would be any risk. The father’s response was: “This may sound stupid, that it was a risk, but everything is a risk.” He was asked whether there was a risk of someone having a momentary loss of control. His response was: “After all this I don’t think so.”

He was asked whether it concerns him that it was the mother who had caused the injuries and put him through this. He said he understood the question but answered: “I don’t believe she will hurt him. I am there every day. You should see them together.” He was asked whether there had been any discussion after the judgment. He could not remember if there had. He said that he strongly believed that part of A’s delay was because he was not with his parents.

He was asked whether he had told the mother that he had forgiven her and he said he did not need to tell the other person to forgive them. When asked why he had not asked the mother to move out he said A needs his mother and father. When asked about the mother’s relative he told the court that she has a need to feel better than other people and that is why she had said he had anger issues.

He said that his heart had broken when A had been taken away from him. He said that his own culture is different, that it would not have happened there, that is, A being taken away.

He was asked about his conversation that he had with the guardian on 4^th October. He said he did remember the episode and that when he left he had had a need to say something. When asked about the use of the word “he” rather than “they” he said he was talking about an example. He said he felt he left because he was just not only wasting the guardian’s time but also his own.

No one could fail to be moved by the desperation and distress of these parents within this hearing. I have no doubt that they love A very much. However, their behaviour is as though they can just brush under the carpet the fact that A was injured by one of them. The first tenet of the resolutions approach is an acceptance of the court’s concerns.

I am not satisfied that either has any real acceptance of what these findings mean, the unforgettable fact, that A was seriously injured by one of them in March, so seriously that his development has been compromised.

The case had to be adjourned for the guardian’s evidence to be heard and during that time the parents both wrote letters to the court. Both were pleas for the court to consider returning A to their care and both reassuring the court that they believed that there would be no risk to A.

The guardian’s analysis is a very comprehensive document. At the start of Mr Barr’s assessment he claimed that the fact that the local authority did not seem to be onboard with the ethos behind resolutions meant that much time was spent trying to explain it. There has been overt criticism of the local authority by the parents and that as a result of the emails that were sent to Mr Barr there has been suggestion that the local authority had already discounted the parents as possible future carers before Mr Barr’s assessment was finished. Mr Barr, however, has been very careful to recognise that the difference in his views and his opinion and that of the guardian is a difference in their professional views.

The guardian recognises that this is the first case that she has been involved in where there has been a recommendation following a resolutions assessment. The case of the parents is that in a way she is stuck in her thinking and unable to accept the whole ethos behind the resolutions approach and that is why she has not felt able to support the recommendation. The guardian denies that this is her approach. In her oral evidence she maintained that it was not her view that a resolutions approach could never work, but that it would not be safe in this case.

This point of view of the guardian is supported by paragraphs 10 to 23 of her report where she analyses the resolutions assessment. In paragraph 13 she goes through the basic principles of the resolution approach as set out in the Hiles and Luger document and those are the three tenets that I have already mentioned, the first being that there must be total acceptance by the parents of the concerns.

She states that in his report Mr Barr noticed a shift in the parents’ presentation and understanding. In paragraph 13 she raises a number of concerns about the parents’ presentation. She states that she interviewed the parents on three occasions, when she was newly appointed, after the findings were made and after Mr Barr had noted his assessment and encouraged the parents’ perspective to change. She stated that during all three interviews the father often used the words “that the judgment says” or “according to the findings”.

Further, as recently as July the father had said that he considered the injuries to be an accident, suggesting the rib fractures might have been the result of CPR, although the judgment discounted that possibility, the court also noting that in any event such CPR took place after the medical evidence and the timing of when the fractures would have occurred.

The analysis also refers to her observation of the last interview she had with the parents, that their language that they used to refer to a perpetrator had changed from “they” to “he”. In her analysis she refers to that last time, 4^th October, and her concern when the mother gave an answer that, in her view, A was fine. Mother, in her evidence, claimed that this was a misunderstanding.

The guardian also set out her concerns with regard to the three tenets of the resolutions approach. Concerning the need for the parents to have an understanding of the professional anxiety, her view was that the parents accept the involvement of professionals but do not consider that it is necessary.

Concerning the expectation that the parents would work openly and honestly with a range of professionals and their safety network, her concern was that there is evidence that the parents had withheld essential information from professionals, specifically with regard to A’s welfare prior to the fact find.

The guardian was also referring to the fact that some of the family safety plan members needed to be informed by Mr Barr as to what had happened to A and the findings made. Similarly, that the father had not informed the paternal grandmother fully as to what had happened.

Concerning the importance of the family safety network she said that she accepted that Mr Barr has positively assessed nine people, but as at the time of her report she remained unclear as to how those people were to protect A when, as she puts it in her report, there is not an understanding or evidence exploring of what triggers were there that led to the momentary losses of control resulting in A’s injuries.

As I have said, the guardian’s analysis is a comprehensive document. She assesses each of the realistic options and was clear that although the paternal grandmother was initially reluctant to accept the father could have caused injuries to A, that the paternal grandmother was constant in stating that she will respect the decision of the court and that A will remain her priority.

With regard to the oral evidence, by the time the guardian gave oral evidence A was poorly with hand, foot and mouth disease, but was being treated. She described him as a happy, bubbly, content, engaging child, who loves books, that he had started to move, but was dragging his left foot, but for the past two weeks he was able to sit up by himself, which was progress, but showed a delay in a 22 month child.

The local authority asked whether the parents had given any indication that they would move to Europe if A was there and the guardian had said that they had indicated that such a move was not viable financially.

In answer to questions on behalf of the mother she accepted that she, the guardian, had worked alongside Mr Barr on a number of cases, and also that there was evidence within research that those who deny abuse can be reunited with their children.

She was asked whether she had considered that in this case the risk was too bad. She said that here the parents have insufficient understanding of risk and were not able to work openly. It was put to her that Mr Barr felt that they could parent and she reminded the court that Mr Barr’s evidence had been that there would be no risk if these parents were together.

She did not accept when considering the number of contacts that the local authority had supervised that Mr Barr’s involvement exceeded the input of both herself and the local authority. When asked about whether she accepted that the parents’ parenting was better than good enough she explained that because of the risks to A if he was within their care she could not accept that their care was better than good enough.

The suggestion of the questions for the guardian was that she was particularly negative on the parents. She explained that her view was that she would ask them far more challenging questions than Mr Barr. She said that after her interview with the parents on 4^th October and her concerns about them as carers that she felt she needed to speak to Mr Barr to try and understand how she and Mr Barr came to such different views. Her evidence was that she had repeated the parents’ responses to her to Mr Barr and he had expressed concern that they were still expressing such views. She said that she failed to see how anyone visiting every day, professional or otherwise, can manage the risk of two momentary losses of control.

Concerning the maternal grandmother, she said that in her interview with her the maternal grandmother had said that the findings were one big mistake. She accepted the local authority care plan was not without risks, but that the paternal grandmother filled her with confidence about her ability to cope and to parent. She accepts that whereas a care plan with the paternal grandmother might mean that A was physically safe there are risks for him emotionally because of his separation from his parents.

On behalf of the father it was suggested that it was she who was stuck, as per the definition within The Resolutions Approach. This she vehemently disagreed with. She said she had properly considered how matters might look in the future and looked at this case with an open mind.

Concerning Mr Barr she said that she did not dispute his intentions with regard to his recommendation were honourable, but she did not think that it was sufficient to keep A safe.

She was asked about the meeting with the father which resulted in an email to the father’s solicitors and she reiterated that the father had said: “I know it would not happen again. He won’t do it. It won’t happen.”

It was put to her that the reason the father had left the meeting was that he had got the impression that whatever he said she would not support him. She was quite clear with the impression that she had had of the father.

When asked questions by the court she underlined that it was not her position that she was against the resolutions approach again and she recognised that deniers can parent. She confirmed that the reason she was against it in this case was because of the specific facts. She repeated that her recommendation was because the parents were still oscillating in their view of the concerns and that they had not been honest with professionals and friends. She pointed to the fact that there had not been complete honesty by the parents prior to the fact find with regard to professionals and that the members of the family safety plan had heard in court about the rib fracture. She felt that the triggers were completely unassessed, so how could Mr Barr say there was no risk?

She was asked of her views on Mr Barr’s response, that the fact that the parents were now under scrutiny would keep A safe. She said she did not think that scrutiny was a deterrent. She felt that the case was not past the starting block with regard to a resolutions approach as there was no acceptance by the parents of the findings. She referred again to the letter sent in to the court.

I have now referred to much of the evidence. What are my observations? Mr Barr spent a long time with these parents. He was impressed with their interaction with A. He commented that it was likely that A’s progress was down in part to the input of the parents and I have no problem in accepting that.

My concern with regard to his recommendation arises when I reflect on my judgment with regard to the fact find. This was not a case where either of the parents claimed to be under stress. This was not a case where they accepted that there were anger management issues and, although the mother’s relative referred to the father having a temper, this is an isolated reference and no one has been able to test that.

In considering the resolutions assessment I go back to the original tenets, the three issues that Mr Barr accepted were essential when approving a resolutions outcome. Firstly, the parents need to have a total acceptance of the concerns. That is not the case here. The evidence of the father has been even more reluctant than that of the mother in accepting the findings. But this court requires more than the parents merely saying, yes, we accept the findings. They must process and be seen to properly consider the consequences of the judgment.

Have either of them any concerns about the other parenting A? The answer is patently, no. Why? The mother says that the father has learned his lesson. Why does she say? Has she asked him? No. Has he said that to her? No. What she says is when pushed for her answer is that she saw it in the way that he behaved. Similarly, the father has no concerns about the mother’s care. Why? He refers to the hours that he has seen the mother with A.

The court has no doubt that the father and mother have seen the other being tender with A. This court has had the unusual advantage in the fact finding of observing them both being tender with A. In that footage, of course, the father did most of the caring for A. Anyone without knowledge of the findings, seeing that footage, would have no concerns about either of those parents. But what is known is that less than two hours later A was seriously and non-accidentally injured by one of his parents.

The father told the guardian that the mother must have done it, yet he forgave her. So how can he not worry about how she will be with A? Mother’s approach is similar. It is as though they are brushing everything under the carpet.

I wish to stress at this stage that, like the guardian, I too have approached this case with an open mind. I read the schedule of cases that Mr Barr has prepared where a resolutions approach has been approved by the court. I have read the bundle of cases that mother’s counsel compiled and filed, which refer to the resolutions approach. I recognise that in some cases it is possible to set up a protective, supportive package around deniers so that they can care. I refer, however, to the passage of Lord Justice Wall’s judgment in the case of the matter of B [2006] EWCA Civ 486:

“It by no means follows that because a parent is unable to recognise that he or she has injured a child that he or she is disbarred for all time from caring for that child. That the experts are in fact united in their view that the inability to recognise that a child has been injured by one or both the parents is an important factor in the safety equation and until one can be satisfied that a child is going to be safe in a household the child cannot simply be returned.”

I have heard the evidence of Mr Barr. My concern was that he showed a naivety with regard to the facts. He felt that he himself had influenced the parents into recognising the seriousness of what had happened. He referred to the conversation that he had had with the father when the father then became very upset, realising what the consequences were for A. What, however, Mr Barr did not do was focus on the need for these parents to recognise that the injury, with its consequences, was caused by one or both of them.

Mr Barr places much weight on the family safety plan. If this was a case where one or other had anger issues or becomes stressed over responsibilities, specific or general or just life, I can see that there would be some reason for having a team of dedicated people to support and monitor them and that would provide some sort of protection for A. But here there were no known triggers for the assault on A. So what help can the proposed family safety plan be for keeping A safe? Miss Jewel looked forward to playing with A and noting whether he was in discomfort, or not quite himself. If Miss Jewel had looked at the snapshot of that CCTV of these parents in the swimming pool no one would have blamed her for going home and remarking how loving and tender these parents were. Everyone would have joined her in shock that within two hours later he was so abused that he nearly died.

I asked Mr Barr as to what is the difference now compared to when A was living with the parents before the fact find. His response was that the process and the proceedings themselves have had an impact and that they will feel under scrutiny. It is the mother that submitted that it is relevant as to whether there was just one perpetrator. But even if there was one perpetrator here, either mother or father, neither of them thinks that the other is a risk, so how can that help? Mr Barr has occasionally said in his evidence that if the parents care for this child together he would be confident that there was no risk. How can that be?

In assessing the assessment of Mr Barr I am aware that he is a single joint expert. I am aware of his expertise and I am aware of the length and the time he has put into his report. But for the concerns that I have raised I feel I cannot rely on his recommendation.

I consider the realistic options before the court.

Firstly, continuing in foster care here in the UK. This is not put forward by any party, but I consider it in any event. If he was in the United Kingdom he would be able to see more of his parents. He would be safe physically. There would be a reduction of contact with the parents probably and that would lead to a definite sense of loss and he would be looked after by a different family. But the negative is that A would not belong. He would not have a sense of belonging to his carer’s family, and that is what he needs. He needs stability and I do not consider that that would be in his best interests.

I do not consider, likewise, that I need to look at adoption. That has not been put forward, but a family placement is available.

So I look at the placement of returning to the parents, the option of living with the parents under a care order with a family safety plan either with or without the maternal grandmother living with them.

Upon considering the welfare checklist, although A is 23 months I am sure that A knows who his mother and father are. I have no doubt if he was able to articulate it he would wish to see as much of them and to live with them.

Considering his physical, emotional and educational needs, he needs to be safe. Can I be satisfied that he would be safe with his parents? The very sad answer is, no, and why? Because I cannot see how the resolutions package would keep him safe. He has been injured twice within this household and no one knew within this household how that happened. Neither parent would police the other. The consequence of the brain injury was significant for A. Although he has made progress he has global developmental delay and this is not because of the separation from his parents, but because of what one of his parents did to him.

The consequence therefore of taking such a risk of returning A to their care is very relevant. It is too great to consider. The consequence for A as a result of his injuries were huge. It is the concern of this court that he cannot be put at risk again because of the potential consequences. It is not enough for it to be argued that he has been safe seeing a lot of his parents for the last 20 months. He has been supervised whilst with them.

Would, however, living with his parents address his emotional and educational needs? Yes, I believe it would. All the evidence suggests that these parents adore him and he would benefit from the self-esteem that I have no doubt that they would give him and also his sense of belonging.

The likely effect of change in circumstances. I have no doubt that if A went to live with his parents, considering the amount of contact that he has with them, that he would enjoy that. I do not believe that the change to their care would be traumatic. He has had a change of social worker, guardian and foster carers, but his parents have remained constant.

He is a little boy now of 23 months who, sadly, has some developmental delay as a result of his injuries. Currently that delay is evidenced in his mobility, but there is potential for delay in social skills. In any view, he is a vulnerable child. He will be completely dependent on his carers and whilst in his parents’ care if they did not have any urge or momentary lapses that led to a further assault he would, of course, be well looked after. He is not of an age to run away, however, or report if such an incident happened.

With regard to any harm he is suffering, the harm he suffered was as a result of the momentary assaults at the hands of one of his parents. He does not continue to suffer from the rib fracture.

How capable each of his parents are of meeting his needs. They have been referred to as being able to give better than good enough parenting. I agree with the guardian. That phrase has to include a holistic assessment and neither parent was able to keep him safe in March last year.

I now deal with the third realistic option and that is of A being placed with his paternal grandmother, and her partner.

I have dealt with A’s ascertainable wishes. I have no doubt, as I have said, if he could articulate it he would want to live with his parents, but that if he was aware that there was a choice of living with family I anticipate he would prefer that. If he was told now and expressed to him that he would be now not living with parents but living with his grandmother, I anticipate the answer would be, no. The prime reason is that he would be losing the regular visits of his parents, whom I have no doubt he loves.

With regard to his physical needs I do not think anyone disputes that A would be safe if he was living with the paternal grandmother, but he has medical needs and assessments. The only information about what would be available in medical terms is the comment of his only paediatrician that he sees no reason to doubt that the paternal grandmother’s home in Europe would be up to speed with regard to providing similar medical support. It is reassuring for this court that the paternal grandmother was not worried about being able to access that requisite medical support.

Educationally the court has heard that A would be required in that country to attend school at the age of 3. This will be a challenge for him, but again I am impressed by the attitude of the paternal grandmother and I am sure she will help him and support him with the challenges that that presents.

His emotional needs. I have no doubt that the paternal grandmother will love him and grow to love him move and he her. But he will suffer significant loss, and I do not underrate that, by not seeing so much of his parents. As I have said, they have been a constant presence for him.

I have already dealt with his age, sex and background and, as I have already said, he is a very vulnerable child and will be completely dependent on his carer. Both parents know that the paternal grandmother will do her best for him.

The harm that he is suffering, I have dealt with that already in the above assessment.

The capability of the paternal grandmother. The parents have no doubt about her capability. Of course, they would prefer A to be with them, but if that cannot happen then they are grateful to the paternal grandmother.

There was a line of questioning querying whether there would be a challenge for the paternal grandmother to parent A in the context that historically at times she has not lived with her partner in the same house. This was not proceeded with. This court is pleased for A that there is a family placement available. The paternal grandmother will have to make a number of changes to her life. I do not question her ability to provide a safe and emotionally warm home for A.

So therefore I have gone through the comparison of the realistic options. There are a number of positives about the placement with parents, I entirely accept that. But the overwhelming concern of this court is the safety of A and however much I have looked at the positives about the parents it is his safety that I come back to again and again. This court is not reassured by the possibility of the maternal grandmother living with the parents. Her view of the risks that these parents present to A is similar to the view that each parent has of the other, in other words, that there is no risk.

This court considers therefore that the risk is such that, sadly, I cannot approve the recommendation for resolutions.

I therefore approve the care plan. I make the special guardianship order to the paternal grandmother, considering it in A’s best interests.

I have been asked to consider the issue of contact on behalf of the mother in order to ensure that the paternal grandmother will allow a minimum of two periods of contact per year between A and mother.

In view of the fact that this little boy will now be going to live abroad and the fact that distance and a different language may complicate communications, and in view of the fact that I recognise that it will be in A’s interests to have contact with both his parents, I consider that this court should support that and I therefore make an order in the terms that were drafted and provided to the paternal grandmother, that she will allow the parents to have a minimum of two periods of contact per year.

That is the end of this judgment.