(Court of Appeal, Elias, Black and King LJJ, 30 July 2015)
Public law children – Care proceedings – Fact finding – Threshold crossed in respect of older child due to physical abuse – Whether threshold had also been crossed in respect of younger sibling
The local authority’s appeal was allowed in respect of findings that although the older child had been subjected to physical abuse by the parents the threshold had not been crossed in relation to the younger sibling who had not suffered harm so far.
Case No: B4/2015/1059
Neutral Citation Number:  EWCA Civ 830
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT LINCOLN
MR RECORDER READINGS LN14C00733
Royal Courts of Justice
LORD JUSTICE ELIAS
LADY JUSTICE BLACK
LADY JUSTICE KING
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Mr Christopher Bramwell (instructed by Lincolnshire County Counsel) for the Appellant
Mr Patrick J Bowe (instructed by Ringrose Law) for the 1st Respondent
Mr Brendan Roche (instructed by Bird & Co Solicitors) for the 2nd Respondent
Anita Guha (instructed by Langleys Solicitors) on behalf of the Children’s Guardian
Hearing dates : 21st July 2015
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BLACK LJ :
 This is the local authority’s appeal against the determination made by Mr Recorder Readings on 27 March 2015 in care proceedings in relation to two boys, R (who has just turned 6 years old) and M (who is 16 months old). The Recorder made various findings of fact in relation to the treatment of the children by their mother (the mother) and her partner, who is M’s father. He went on to find the section 31 threshold satisfied in relation to R but not in relation to M. The proceedings were discharged in relation to M.
 The local authority appealed on the basis that, even on the findings of fact that he had made, the Recorder was wrong not to have found the threshold satisfied in relation to M. They also argued that he wrongly failed to make findings of mistreatment that was, in fact, established on the evidence. Their appeal was supported by the children’s guardian but resisted by the mother and M’s father. R’s father has not been traced and has not therefore participated in the proceedings. In the circumstances, for ease of reference, I will refer to M’s father simply as “the father” in this judgment.
 The family is Polish. The father moved to this country in November 2013 and was followed in due course by the mother and R. In March 2014, M was born.
 The events that gave rise to the care proceedings occurred in October 2014. However, there were two earlier occasions on which there was concern about injuries to R. The first was in April 2014 when the police received an anonymous complaint that he had bruising on his face and scarring on his legs and looked hungry and anaemic. They investigated and thought the bruising was accidental, resulting from a lack of supervision. The second was in September 2014 when the school made a referral to social services because of concern about bruising on R’s cheek. R said at school that he had not been a good boy and “Daddy hit” (C48, and see also C34), acting out being slapped across the face and falling to the floor. He said to the social worker that he had done it playing (C28). There was a medical examination at whichn R told the doctor that he got the bruise when out playing. Dr Ahmed did not think it was suspicious and no further action was taken.
 On 9 October 2014, R attended school with further bruising. The school referred the matter to social services again. The social worker attended and interviewed R, who said that he had fallen down the stairs. A medical examination was carried out by a consultant paediatrician, Dr Rao. He found a number of significant bruises for which there was no appropriate history and he was concerned about non-accidental injury. Both R and M were placed in foster care and proceedings were issued.
 An opinion was obtained from a consultant paediatrician, Dr Fonfé, who was provided with Dr Rao’s record of the injuries observed on R and the medical photographs taken on the day of his examination. Her expert reports were before the Recorder and she gave oral evidence. From Dr Rao’s observations and the photographs, Dr Fonfé identified some 40 bruises or marks on R, in various places on his body.
 It emerged that the father’s father had died in Poland and he had returned there for the funeral. The mother said that when she came back with the children from taking him to the airport on 8 October, R fell down the stairs. This was advanced as a cause for some at least of the bruising found upon him.
 R is a disturbed child who is exceedingly active and can be very difficult to handle. One of the sources from which one can get an idea of his extreme behaviour is the report of the clinical psychologist, Dr Spooner, who collected information about him, for the purposes of his December 2014 report, from R’s teacher and his foster carer and also from his own observations of R at school. Dr Fonfé accordingly gave consideration to the possibility that bruises were caused by R rushing around and knocking into people and objects and/or by physical restraint applied when he was out of control at school. Other possible causes were also explored. For example, R has been seen to slide down the stairs in various ways and Dr Fonfé was asked about whether that could account for any of the marks. Consideration was given too to what R himself said had happened to him. He gave various accounts, not all of them consistent. He said that he had fallen down the stairs, that he had been hit by his mother with a torch or extinguisher and, as I have already said, at the time of the bruise in September, he said that he had been hit by the father. However, he also said that his mother did not hit him and his father did not hurt him. The Recorder’s findings
 The bruises were considered in groups. It is only necessary to refer here to those which are material to the appeal.
 The Recorder found that two sets of bruising had been inflicted by the parents, although he was unable to say which of them was responsible. They were as follows: i)There were parallel lines of bruising on R’s buttocks which the Recorder found were caused by someone striking him across the buttocks with a linear object (§20 of the Recorder’s first judgment). The Recorder thought it likely that the object used was a ruler or a belt, in which case there were at least two blows, but it may have been a stick or flexible cable, in which case there were at least four blows. ii)There were three bruises on the inner part of R’s right thigh, immediately below his buttocks, which were described as “loop pattern or crescent shaped injuries” and a further “sigma shaped pattern bruise” to the right of the lower buttock crease (§21). The Recorder found that these marks were caused by at least two deliberate slaps (§24).
 The Recorder found that both the instances of inflicted injury had the character of corporal punishment (§29). The parents had denied that they were responsible for the injuries but the Recorder found that they both knew who did it and had agreed to stick together and protect each other (§33), trying to mislead the social workers and lying in court. He said that it was “difficult to blame them in the circumstances” (§35) (referring, I think, to their lies and collusion, although he may have been referring to their treatment of R) as they were in a foreign country and had a difficult child to look after.
 It is not entirely clear how the Recorder viewed the corporal punishment inflicted on R. At §36, he said it “may well be regarded as going well beyond reasonable chastisement”. At §37, he said that he could envisage that if the parents had admitted it, they would have argued that it was no more than reasonable chastisement and said, “I cannot judge that question”. Later in the same paragraph, however, he went on to say that it certainly seemed excessive to him to hit a five year old at all, especially with an implement. What is clear is that he was unwilling to find it established that what happened to R was “abuse”. He seems to have taken into account in reaching this conclusion the possibility that it was “an over exercise of parental authority in a disciplinary capacity”, the evidence that the parents are loving parents and that R loves them and is not afraid of them, and the fact that he could not know how much R had suffered in the process (§37 of the main judgment and §5 of the Recorder’s supplemental judgment).
 The parents did admit one of the local authority’s allegations, that is that they had, each independently of the other, made R stand in a corner for more than two hours when he was naughty. The Recorder described the father’s conduct in so doing as “treating R cruelly” (§31). However, he accepted the parents’ evidence that this was something that happened when the family was under great stress and was not a regular occurrence (§34).
 The Recorder did not appreciate that he was being asked to determine not only the facts but also whether the threshold criteria were satisfied and his first judgment was therefore confined to the factual issues. He was accordingly asked to deal with the threshold thereafter, and did so, after further argument and consideration, in a short ex tempore judgment. In it, he found the threshold crossed in relation to R on the basis that R would have suffered significant harm because
a) hitting a child of five who suffers from psychological problems with an implement will cause significant harm
b) standing such a child in a corner for two to three hours must also cause significant harm and
c) there must be a significant risk of repetition as the parents had closed ranks and said nothing about it to social services and the courts (supplementary judgment §5).
As to M, in that judgment the Recorder stated baldly that he did not think the threshold was crossed.
 He returned to the threshold in relation to M in his judgment refusing permission to appeal and in his final short judgment. He determined that M was not at risk in his parents’ care, essentially on the basis that he was a very different child and had not suffered any harm so far. In the permission judgment, he referred to the findings he had made about R, and the evidence as to how very difficult R was to look after, contrasting that with M, in relation to whom there was neither evidence of psychological difficulty nor evidence of any problem with him in foster care. He said:
“6. The difference between these two children is such that I cannot conceive that anybody could imagine that the findings I have made in respect of the older brother should lead to a finding that the younger brother is at risk.”
The balance of the local authority’s allegations
 In addition to the bruises that the Recorder found had been caused by the parents, there were other marks on R’s face, his neck and chest, and his right outer thigh which the local authority also alleged were caused non-accidentally. It was their contention on appeal that he should have made findings that these too were inflicted injuries.
The facial bruises
 There were two small circular marks on R’s face, one on each cheek, identified as Injury 18 and Injury B, of which Dr Fonfé said this in her main report: “Opinion of Injury (18): Injuries in the soft part of the cheek are unusual and suspicious of abuse. This may be from blunt trauma or may be a grip mark. In my opinion it is most likely to be one of a pair of grip marks, the other half of the pair being mark B.” (E32) “Opinion of Injury (B): This is another injury in the soft part of the cheek and as such is more suspicious of an inflicted injury in the absence of a clear history of falling onto a corner of furniture, for example. It is most likely the other half of a pair of grip marks, the other part being mark 18 on the other side of the face.” (E33)
 The Recorder dealt with these marks at §§14 to 17 of his judgment. He acknowledged that Dr Fonfé was always careful to consider what other causes there might be for the injuries observed. However, he said that it would be fallacious for the court to treat the explanations that she considered as a closed class. He took the cheek bruises as an example of what he meant saying:
“16. The small bruises on the side of R’s face are a good example of what I mean. Because they are in a place which is normally protected from accidental injury Dr Fonfé dismisses the possibility that they might be caused by rough play or falling downstairs. They are obviously not likely to have been caused by being struck with a torch or fire extinguisher or belt. Does this mean they are likely to be caused by violent abuse? It does not take much imagination to see that small bruises in the face could be caused by the blunt end of a crayon, if R leaned his head on it, or waved it about and hit himself with it. R has a history of hurting himself, not by way of deliberate self-harm, but by vigorous activity. Because there is no record of R sustaining any facial injury in this way, Dr Fonfé has not considered a crayon, which I take as an example. That does not mean that the court can exclude it as a possibility, and find physical abuse proved by process of elimination.”
 The Recorder therefore looked “to see if there is any corroboration of Dr Fonfé’s suspicions in respect of the facial injuries” and found none. Accordingly, he did not find that the facial marks were inflicted injuries.
Neck and chest injuries
 There were petechiae towards the midline close to the middle end of the left collar bone (Injury 4). Dr Fonfé said of this: “Opinion of Injury (4): Petechial bruising is more commonly seen in abusive injuries relative to accidental injuries. These could be from blunt trauma. This is an unusual area to bruise accidentally.” (E34)
 There was a bruise below the approximate midline of the left collar bone (Injury 5). Dr Fonfé’s opinion of it was: “Opinion of Injury (5): This is an unusual site for accidental injury. It lies close to Injury (4). It may have the same or a different cause from Injury (4). It is caused by blunt impact.” (E34)
 The Recorder treated these marks in the same way as the facial marks (§18). He said that he could not think of any likely cause but that that was not the test. He looked in the evidence for any support for what he called Dr Fonfé’s “suspicion” and found none, so was not satisfied on the balance of probabilities that the marks were inflicted.
Outer right thigh
 Dr Fonfé identified a collection of bruises on the outer aspect of R’s right thigh (Injury 15 or, individually, Injuries U, V, W and X). She said this about this feature: “Opinion of Group 15 also identified as Injuries U, V, W and X: These are the result of significant impact trauma. I think these are most likely to be defensive bruises. The Royal College of Paediatrics Child Protection Companion states: “Abusive bruises are often multiple and occur in clusters which may be ‘defensive bruises’ These occur on the upper arm, to the outside of thigh or on the trunk and adjacent extremity.” These injuries in R’s photographs are typical of that description.” (E37)
 She also said that she thought this “represents impact upon impact layering the bruising” (E37) and that these bruises were consistent with R’s assertion that he had been hit with a torch or extinguisher multiple times after he fell down the stairs (E17 §8.3).
 The Recorder recognised that these injuries were consistent with defensive injuries but said that that did not mean they were the result of an attack. He said: “I have no evidence as to how they occurred. I could speculate that R might have been hit with a flat object, or kicked, while he lay on the floor, curled up to protect himself, and that is a disturbing mental picture. But I could equally speculate that he slid downstairs and suffered these injuries, which might appear bigger and more dramatic because he bruises easily. I look again for support for Dr Fonfé’s suspicion in the other evidence, and I find none.” He therefore did not find that the injuries were inflicted (§25).
Injuries as a whole
 Dr Fonfé dealt with the overall picture of R’s injuries as well as with the individual injuries. She said, in her 18 March 2015 addendum to her report, that the child’s injuries needed to be considered as a whole and not just individually (E132).
 She accepted that there were probably some accidental injuries in the mix (E22 §9.5) but her opinion was that “the majority of the bruises recorded….are most likely the consequence of physical abuse” (E17§8.1), or, as she put it at §8.24 on E20, “[o]n the balance of probability, the majority of this child’s bruising is abusive in nature”. The 18 March addendum summarised the position as follows: “The majority of this child’s bruising is non-accidental or inflicted in nature in my opinion. My opinion is based on the evidence base in the literature, the excessive number, the large size and clustering of bruises and their notable location in normally protected areas such as the buttocks, backs of legs, not to mention the obvious patterning.” (E132)
 She said that there had been multiple episodes of impact trauma of a force that any witness would have considered excessive and for which medical attention should have been sought (E19 §8.14). She said that the number of injuries indicated either a prolonged single attack with multiple impacts of abusive force or a series of individual episodes of attack (E19 §8.16). She acknowledged that children with concentration issues tended to rush around and may get more bruises than other children but they tended to be over bony protruberances and were not generally to the usually protected soft areas of the body and face (E22 §9.4) and it was her opinion that these injuries were not sustained from this (E132).
 Dr Fonfé was asked in oral evidence to consider the reports (from lay people) that R bruises easily but observed that it was difficult to know what is meant by that (B99) as you would expect a child who is crashing around and is clumsy to bruise easily, whether or not they have an underlying blood disorder. She expressly considered the injuries that R had received in care (see Dr Fonfé’s 11 February 2015 addendum at E126, §12 et seq) and, at E132, concluded that they differed from the previous injuries in that there were clear explanations and they appeared reasonable in site and size.
 She considered the possibility that R had an organic reason to bruise easily. At the time of her main report, she was lacking some information about this so made clear that she would review her opinion if anything came to light. By the time of her March addendum, it appears that she had had the latest blood results (E139 §4) and she stated that R did not have a bleeding disorder (E137 §3.9) and that she had not changed her earlier opinions (E139 §4). Any doubt that might have remained was removed when, in oral evidence, she was taken to the full blood count and confirmed that it was normal. There was therefore no evidence that R had a blood disorder that would dispose him to bruising easily (B100).
 Dr Fonfé was asked in cross-examination to consider the possibility that R has Ehlers-Danlos Syndrome which might affect his disposition to bruise. There was no evidence that this had been looked for specifically by the doctors who had examined R but equally no record of any features which would suggest it (E98).
 Like Dr Fonfé, the Recorder did look at the overall picture of the injuries, but, unlike her, only after he had made his findings about each of the injuries individually. He did so in order to address a particular finding that the local authority sought. He said:
“26. I have so far considered the injuries individually, and not had regard to the overall picture. Paragraph 2 of the Schedule alleges: “The number of injuries indicates that R was subjected to either a prolonged single attack with multiple impacts of abusive force or a series of individual episodes of attack.” It is extremely worrying that a five year old boy should be found to have 40 different injuries, some of them in places where accidental injury is unusual, and physical abuse is common. But there is no doubt that R regularly acquires bruises today, in foster care, as he did when in the care of mother and father. I cannot, on the balance of probabilities make a finding that, because of the number, description or position of his injuries, R has been subjected to an attack or attacks going beyond the injuries which I have found to have been inflicted when considering the injuries individually.”
 It can be seen from this that the Recorder was influenced by his impression that R regularly acquires bruises in foster care as he did when with the parents, although this may not be an accurate reflection of the evidence. Earlier, he had referred to there being “a good deal of evidence that R bruises easily” and said that “the possibility of Ehlers-Danlos Syndrome has not been excluded, which might also contribute to bruising” (§20) so these considerations may also have weighed with him, although, as may be clear from what I have said so far about these two matters, the evidence about them actually needed quite sophisticated handling.
Grounds of appeal
Threshold criteria in relation to M
 The local authority argued that, contrary to the Recorder’s finding, the threshold criteria were established in relation to M.
 They submitted that there had been a procedural irregularity arising from the Recorder not having understood that he was being requested to determine the threshold question. I am not persuaded that this really takes the appeal anywhere, however. It is perfectly possible to consider matters in sequence, first making factual findings and then considering whether or not, in the light of them, the threshold is satisfied. The Recorder asked for submissions before making his decision and retired to think about it before giving a further judgment on the issue. Had his decision been one that was open to him, no valid complaint could have been made about this process.
 The force of the appeal lies, in my view, in the local authority’s criticism of the decision that the Recorder took, not in the process by which he arrived at it. The local authority argued that, in the light of the findings that R had been beaten with an implement and slapped sufficiently hard to leave bruising and had been excessively punished by being made to stand in a corner for a prolonged period, it was wrong to conclude that there was no risk of significant harm to M. What those facts indicated, in their submission, was that at times of stress or challenging behaviour from one of the children, the parents may harm their child whether by way of discipline or simple loss of control. They argued that the Recorder placed too great a weight on the difference between the two boys as a protective factor for M and failed also to take account of the fact that M is more vulnerable because of his young age and may also become more challenging as he grows older.
 I would accept this submission. Rightly or wrongly, the Recorder did not make any findings on the issue of whether M was present during the punishments of R and whether he was emotionally harmed by what he saw and there was no evidence that M himself suffered any physical harm. The threshold in relation to M therefore depended on whether he was “likely to suffer significant harm”. “Likely to suffer” in this context means that there is “a real possibility, a possibility that cannot sensibly be ignored having regard to the gravity of the feared harm in the particular case”, see Re H and R (Minors)(Child Sexual Abuse: Standard of Proof)  1 FLR 80. The threshold is therefore “comparatively low”. It was, in my view, plainly satisfied on the facts that the Recorder had found. Every case depends upon its own facts, but in this particular case it was not at the threshold stage but at the welfare stage that matters such as the parents’ circumstances at the time R was injured and the differing personalities of the children were relevant. Given the nature of the Recorder’s findings in respect of R, and the parents’ failure to acknowledge or explain what had happened and why, I do not think that the factors that the Recorder relied upon in differentiating between the two boys in fact provided any reassurance in relation to the risk to M for threshold purposes. I would therefore substitute for the Recorder’s dismissal of the proceedings in relation to M, a finding that the threshold criteria were satisfied in his case on the basis of likely harm.
Factual findings not made in relation to R
 The local authority argued that the Recorder was wrong to decline to make findings in relation to the injuries to R’s face, neck/chest, and thigh, and a finding that he was “abused”. They submitted that he had gone wrong because he failed to look at the totality of the picture, instead considering the injuries only individually. It was argued that the findings that he did make, whilst not probative of the other injuries, were capable of being corroborative and supportive evidence in respect of them. Also relevant to the overall evaluation, it was submitted, was the parents’ dishonesty.
 I agree with these submissions. It is always necessary for a judge who is considering possible non-accidental injuries to look at the whole picture before determining causation. So, for example, what might be accepted as an accidental injury if it stood alone, might take on a wholly different aspect if it is only one of a number of injuries. Similarly, the fact that it is firmly established that one of a number of injuries has been inflicted by a parent must be taken into account when evaluating the cause of other injuries.
 In this case, I have no doubt that when it came to considering the possible causes of the other marks found on R, attention had to be paid to the fact that the parents had a) beaten R with an implement causing bruising, b) smacked him to the extent that bruising was caused, and c) lied in an attempt to conceal what they had done. Regard should also have been had to the excessive punishment which the parents conceded had been imposed on R in the form of having to stand in a corner for a prolonged period. As the local authority acknowledged, the fact that one injury is inflicted does not prove that others are non-accidental, but it changes the context in which the child came by the other injuries from a home which may be beyond reproach to one in which it is known that there has been, at the least, excessive physical punishment. As Mr Roche for the father observed during submissions, it was also the case that R had injuries which were accepted to be accidental. That fact was relevant too, but it did not remove the potential significance of the findings of non-accidental injury. The fact that the parents had lied about what they had done was also relevant to their credibility in relation to other matters. The Recorder’s approach did not pay proper regard to these factors as part of the overall picture he was surveying.
 In my view, the Recorder also failed to pay proper attention to the evidence of Dr Fonfé in determining what had happened. It was, of course, for him to decide, on the basis of all of the evidence, whether it was established that particular injuries were non-accidental, and not for Dr Fonfé. However, he needed to take her expert views into account in his determination. In referring to what she said about each of the injuries as her “suspicion”, he seems to me to have understated the force of her opinion. He also failed to take account of her more general advice as to causation, perhaps because he concentrated on the injuries individually. As can be seen from the passages from her reports which I have quoted above, Dr Fonfé’s approach was entirely conventional in that she looked at R’s situation overall as well as considering the various injuries individually. The Recorder was not bound to accept her general observations but he did, at least, need to show that he had considered them. Had he done so, he may have structured his judgment differently and avoided falling into error. As it was, he appears to have made his determination about each of the individual injuries before, at §26 (see above), turning to look at the picture collectively, and when he did look at the whole canvas at this point, it was not with a view to considering what the overall picture might tell him about the individual injuries, but in order to address the local authority’s allegation that R had been subjected to a prolonged single attack or a series of individual episodes of attack.
 In short, the Recorder was wrong to conclude that there was nothing but Dr Fonfe’s suspicions in relation to the other injuries. His own positive findings and Dr Fonfé’s expert evidence about what, in her view, the overall picture revealed were important too. It is not a foregone conclusion that they would have led to a different conclusion as to the other injuries but they needed to be put into the equation and considered with the rest of the evidence.
 In my judgment, this deficiency in the Recorder’s approach is sufficient to render his decision in relation to the balance of the local authority’s allegations unsafe. It would follow that, in so far as it is necessary in order to make decisions about the children’s futures for there to be findings in relation to those allegations, there would have to be a further hearing for that purpose. I need not therefore say much more about the other flaws that there may have been in the Recorder’s approach. I would, however, mention a number of matters.
 The first is the Recorder’s crayon explanation (see §16 of the judgment). It seems that this came entirely from him. Dr Fonfé’s view as to the feasibility of the hypothesis was not sought. If a particular explanation such as this is to carry weight in the court’s decision, it is important, in my view, for it to be offered for comment by the relevant expert and in submissions. Had that been done, the response may well have been that the crayon explanation ignored the existence of what Dr Fonfé saw as a pair of marks which looked like grip marks.
 I wonder also whether this passage in the Recorder’s judgment indicates that he was veering towards requiring that all other possible causes must be excluded before a finding of non-accidental injury could be made (see also §14, for example) and/or proceeding on the basis that no finding could be made without corroboration. Depending on the particular facts of the case, it may not be necessary for the evidence to go that far. What is required is simply that it should be established on the balance of probability that the injury was non-accidental.
 As to the Recorder’s conclusion that the findings he had made were not established to be abuse, I am not inclined to spend time on that issue for two reasons. First, there is little point in debating whether what the Recorder found to have been established should or should not be classed as “abuse” when his findings may not be the last word on what happened to R. Secondly, what actually happened is much more important than how it is classified and it may well be that evidence which is relevant to this may continue to emerge, for example from Poland, from the parents themselves in response to the findings made so far, and in the course of any further fact finding hearing in relation to the balance of the allegations.
 I would not interfere with the positive findings made already by the Recorder, against which the parents have not appealed. I would set aside his determination in relation to the other matters alleged by the local authority and remit the case for an urgent directions hearing, preferably before the Designated Family Judge for the relevant area but certainly not before the Recorder. At that directions hearing, I would expect that consideration would be given to which further findings are required and what evidence should be called. I am not aware of what information is now available about the family so I will say very little about this. I would observe, however, that the Recorder set no store by the bruise that R sustained in September, simply recording the circumstances in relation to it, but I would expect that it might be thought appropriate for it to be considered further, to see whether it sheds any light on R’s overall circumstances. Similarly, there may be material in the psychological report of Dr Spooner to which it might be appropriate to have regard in making findings.
Conclusion in summary
 For the reasons I have already given, I would allow this appeal. In relation to the threshold in respect of to M, I would substitute a finding that it is satisfied on the basis of likelihood of harm. As far as the Recorder’s findings of fact are concerned, I would not interfere with the facts which he found proved but I would set aside his determination in relation to the balance of the local authority’s allegations and remit the case to the Family Court for an urgent directions hearing at which the future conduct of it will be decided.
 I agree.
 I also agree.