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03 MAR 2015

XZ Council v DN and Others [2014] EWHC 4653 (Fam)

XZ Council v DN and Others [2014] EWHC 4653 (Fam)
(Family Division, Moor J, 9 October 2014)

Public law children – Care and placement orders – Allegations of inflicted bruising and tampering with medical equipment – Allegation of sexual abuse – Uncertainty as to paternity of younger child – Whether final care and placement orders could be made

The full judgment is available below.

A final care order was made in relation to the older child while the younger child would remain subject to an interim care order while DNA testing was carried out to establish paternity.

Care proceedings were ongoing in relation to two children aged 4 and 2. The younger child had complex medical needs including spina bifida, hydrocephalus, bilateral dysplasia of the hips and a neuropathic bladder. The children had different fathers and during proceedings DNA testing confirmed that the man believed to be the younger child’s father was in fact not so. The identity of his father remained unknown.

The mother had accepted a number of points made by the local authority in the threshold document and accepted that the children could not return to her care. A parenting assessment of the older child’s father had been positive and it was agreed that a care order should be made in relation to her on the basis of her placement with him. But much uncertainty surrounded the future of the younger child. It fell to be determined whether: bruises sustained by the younger child had been intentionally inflicted and if so, by whom; whether the mother had interfered with his shunt; and, whether the mother and/or the grandmother had digitally penetrated his anus. In addition the grandmother made an application for contact.

Expert evidence indicated that the mother suffered from a personality disorder of mixed type with traits of several sub-types including dependent, borderline and histrionic, associated with conversion, somatic and factitious disorders. Those conditions would have impacted on her parenting ability. She had made limited progress but her recovery would be outside of the children’s timescales.

The mother conceded in relation to the bruising that at the time it occurred she was having a particularly stressful time and might have handled the child roughly causing the bruising. A finding was made that the bruising was caused by the mother using unnecessary and unreasonable force. She did not do so deliberately but she was reckless as to whether or not that was the effect.

Contrary to the mother’s evidence the judge found that she had interfered with the shunt button implanted in the child’s skull in circumstances where she had been warned not to do so. This was likely to have been as a result of her fabricated illness disorder.

On the balance of probabilities the allegations of digital penetration of the child’s anus could be explained by his constipation and the grandmother’s efforts to assist him. Although it was clearly a dangerous thing to do and was another example of the inability of the mother and grandmother to cope with his medical needs.

The threshold was clearly crossed. It was in the older child’s best interests for a care order to be made with a care plan for her to live with her father. Contact with the mother would be reduced to six times per year on a supervised basis and an assessment would be conducted by the local authority in relation to contact with the grandmother.

Although it would mean the proceedings would not be concluded within 26 weeks the younger child was remain subject to an interim care order while DNA testing was carried out to ascertain the identity of his father. There would be triple tracking for consideration of an adoptive placement, long-term fostering and placement with the family of the putative father. The grandmother’s application was withdrawn.

Neutral Citation Number: [2014] EWHC 4653 (Fam)


Date: 9th October 2014

Before :

Mr Justice Moor

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Between :

XZ Council

- and -

First Respondent
Second Respondent
MEN and WAN (by their Guardian)
Third Respondents
First Intervenor
Second Intervenor

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Mr Michael Sellars for the Applicant
Mr Neil Owen-Casey for the First Respondent
Mr Daniel Dodd for the Second Respondent
Mr David Blythin for the First Intervenor
Ms Helen Brandon for the Second Intervenor
Mr Dylan Lloyd Jones for the Third Respondents

Hearing dates: 6th to 9th October 2014

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[1] I have been hearing applications by XZ Council for care orders in relation to two children, MEN (“M”) and WAN (“W”).

[2] M was born in 2010. She is therefore nearly four years of age. She is in good health. Her mother is the First Respondent, DN (“the Mother”). Her father is the Second Respondent, MH (“M’s Father”).

[3] W was born in 2012. He is therefore two years old. He has complicated health needs. In particular, he has spina bifida; hydrocephalus which is controlled by a shunt; bilateral dysplasia of the hips; and a neuropathic bladder. His mother is the First Respondent.

[4] It was thought that the First Intervenor, DJ was his father. Indeed, he had regular contact to W until these proceedings commenced. DNA tests were then undertaken and it was shown that he was not the father. Further tests ruled out DN and another man put forward by the Mother, namely EH. The Mother has recently suggested the father might be DN’s adopted half-brother, MF. DNA tests will have to be undertaken but, as at the date of this hearing, the identity of W’s father remains unascertained. This is clearly highly regrettable. The Mother bears full responsibility for that.

[5] The Second Intervenor, RC, is the maternal grandmother of both children (“the Grandmother”). She cared for both children during the time that the Mother was asserting substantial ill-health.

Issues resolution

[6] By the time of the final hearing, it is right to say that many issues had been resolved although some important ones remained outstanding. This goes to the credit of the parties and, in particular, the Mother and M’s Father.

[7] The Mother filed a detailed response to the Local Authority’s threshold document. It made numerous admissions. She accepted that the children had suffered significant harm as a result of the care given to them by her. She accepted that neither child could return to her care. As I have already indicated, this goes to her considerable credit.

[8] A Parenting Assessment on M’s Father had concluded that he was in a position to provide M with a suitable home.

[9] It was therefore agreed that I should make a care order in relation to M on the basis of a care plan that would place her with her Father. The care order was necessary as it was clear that the Local Authority needed to have parental responsibility given the history of this case.

[10] There was, initially, a dispute as to the contact the Mother should have to M. Again, to her considerable credit, the Mother recognised the need for stability in the placement. She accepted that her contact should reduce from twice per week to once every two months. She further agreed it should be supervised.

[11] There was considerably more uncertainty in relation to W. The Mother accepted that he could not return to her care. The Local Authority’s initial care plan proposed that he remain in long-term foster care but this had been based on a misapprehension that there were no potential adopters available for W. Further enquiries found two possible matches. It was, however, not known if either would be suitable. Equally, no application had been made for a placement order. At this stage, I merely observe that the test for adoption is not a “best interests” determination. Such an order can only be made if “nothing else will do”.

[12] The second significant unknown in relation to W relates to the identity of his father. I have made it clear on a number of occasions that he is entitled to know the identity of his father and that it is of very considerable importance. All reasonable steps should be taken to discover the truth. If it emerged that MF was the father, I was informed that the H family would wish to put forward a potential carer for him, possibly RH, the paternal grandfather of M. Given that his son had been approved as a carer for M, it could hardly be said that there was no reasonable prospect of such an application being successful.

[13] It followed that I came to the clear conclusion that I was not able to deal finally with W at this hearing. I briefly considered making a final care order. This would still have enabled me to deal subsequently with an application for a placement order but I would not have been able to approve a final care plan. Moreover, I would not have been able to decide, in the event of a dispute, whether or not a member of the H family should care for W. It became clear that I would have to continue the interim care order in relation to W, whilst dealing finally with M’s case.

[14] It was also clear that, notwithstanding the very significant concessions made by the Mother to the threshold document, there remained three important issues in dispute. I came to the conclusion that I should determine them for a number of different reasons. The issues were:

(a) What was the cause of bruises found on W in December 2013? If I found that they were injuries inflicted by unnecessary and unreasonable force, who was the perpetrator? If I was unable to identify the perpetrator, was I able to eliminate any of the three potential perpetrators, namely the Mother, the Grandmother and DJ?

(b) Had the Mother deliberately interfered with W’s shunt?

(c) Had the Mother and/or the Grandmother digitally penetrated W’s anus?

[15] The importance of the three issues can be seen by their seriousness. If an allegation has been made falsely, the wrongly accused individual is entitled to a finding to that effect. Such matters are clearly of relevance both in relation to any future consideration of the welfare of W, in particular, but also M. They are also of great relevance in relation to any children that either the Mother or DJ may have in the future. Following the decision of McFarlane J in A County Council v DP, RS and BS [2005] 2 FLR 1031, I was clear that it was appropriate for me to investigate these matters, albeit in a proportionate way. In agreeing to do so, I recognised that it might not be possible to come to a definitive conclusion on all three issues, even on the balance of probabilities.

[16] Finally, the Grandmother applied for permission to make an application for orders pursuant to section 8 of the Children Act. By the time of the hearing, the Grandmother was not seeking residence of either child. She did, however, wish to pursue an application for limited direct contact, albeit supervised. It was, however, clear that the difficulties she faced were recognised by Ms Brandon.

The history

[17] Given the number of concessions made, it is not necessary for me to go in detail into the very troubling and long history of this family’s involvement with social services and the courts. I must, however, give some background to explain the context in which this application was brought.

[18] There are numerous extremely serious allegations levelled against the Grandmother. She disputes most of them. I have not carried out a fact-finding enquiry into those allegations. It would be entirely disproportionate to do so in relation to a non-parent. It follows that I will deal only with those matters that are not in dispute with two exceptions. First, a number of findings were made by Anthony Lincoln J in relation to the Grandmother, in Wardship proceedings in 1988. The Grandmother does not accept some of those findings. I consider, however, that they are res judicata. In other words, the issue has already been decided. I am satisfied that I should proceed on the basis of those findings, notwithstanding the Grandmother’s continuing denial.

[19] Second, one of the issues I have been asked to determine is whether or not the Grandmother penetrated W’s anus with the tip of her forefinger. I heard evidence on this issue and will have to return to it in due course.

[20] The Grandmother was born in Glasgow but moved to London and married EP. He was a paedophile. They had five children. Eventually, all were removed from their care and adopted. On 27th June 1988, Anthony Lincoln J heard a dispute as to the youngest, A. He made various findings of fact. He found that he could place very little reliance on what either parent told him. The Grandmother was “prone to deceive to the point of criminality”. He found proved an allegation against EP of sexual abuse by anal penetration of one of the boys, then aged three and a half, during a contact visit whilst the boy was in care. He went on to say that “by her own admission, the (Grandmother) insists she was present at all times on the access visit”. The Grandmother accepts that her son was abused. She denies that she was present, saying it did not happen on the date when she was there throughout.

[21] The Grandmother subsequently divorced EP and moved to North Wales. She commenced a relationship with RP. They had two children together before the relationship broke down. The younger was the Mother who was born in 1991. She is therefore now aged 23.

[22] Numerous allegations are made as to the care given to the Mother whilst she was a child. I have already indicated that I have not investigated them and therefore make no findings. There is, however, by her own admission, no doubt that she has had a troubled life to date. In 2002, a subsequent partner of the Grandmother, RM died in tragic circumstances. It appears that the Mother was close to RM and this had a traumatic impact upon her. The Mother has also alleged that, as a young child, she suffered serious sexual abuse. This is denied by the alleged abuser, so I cannot make findings. All I can say is that, if the allegations are true, the court has nothing but the deepest sympathy for her. In any event, it is abundantly clear that she has had a chaotic and unstable personal life as an adult.

[23] M’s Father is older than the Mother. He was born in 1977 and is therefore thirty-seven years of age. He lives with his mother. For the first six months of M’s life, he was unaware that he was her father. When he was told, he, unsurprisingly, asked for a paternity test. The test made it clear that he was the father. The birth certificate was subsequently amended to include his details, such that he gained parental responsibility. Until these proceedings were launched, he had regular staying contact to M at weekends. She stayed with him and his mother at the house in which they lived together.

[24] I have already noted that W was born with serious physical disabilities. This undoubtedly increased the pressure dramatically on the Mother. It is clear from the admissions she now makes that she was unable to cope, even with the help of the Grandmother. The Mother herself began to complain of serious ill health. She claimed to have lost the use of her lower limbs and bladder control in June 2013. She was admitted to hospital. In January 2014, she was admitted again with abdominal pain. She claimed to be unable to eat and was placed on a drip. It now appears clear that the problems were psychological rather than physical.

[25] During 2013, professionals began to have serious concerns about the care of W. They were concerned that he had been subject to fabricated and/or induced illness (“FII”). In December 2013, bruising was noted to his legs. Although some of it might have been accidental, the view was taken that some of the bruises were non-accidental.

[26] In February 2014, the Mother requested that W be placed with DJ. I remind myself that she said in this case, in her statement in response to the draft threshold dated 28th April 2014, that “from the outset, I would like to confirm that DJ is W’s father and that there is no possibility of it being anybody else”. This was, of course, completely untrue. She might have thought he was the father but she could not say that there was no possibility of it being anybody else.

[27] The Local Authority stepped in and placed W with foster carers. Although M briefly went to stay with her Father, she was also placed with different foster carers in March 2014. By this time, the Mother was making very serious allegations against the Grandmother. She moved to a Women’s Refuge in March 2014 before subsequently moving temporarily to stay with CL, who is her half-sister by birth but was adopted as set out above. The Mother subsequently returned to her original area but there has been absolutely no reconciliation with the Grandmother.

[28] On 21st March 2014, the Local Authority instituted care proceedings. I subsequently directed reports from three experts. The first was from Dr Kathryn Ward, a consultant paediatrician. Her report is dated 25th August 2014. The second was from Dr Mair Edwards, a consultant child psychologist. Her report is dated 29th July 2014. The third was from Professor Ann Mortimer, an adult psychiatrist. Her second report (after she had finally got the Mother’s medical records) is dated 9th September 2014. The Mother does not actively challenge any of these three reports.

[29] Parenting assessments and viability assessments have been undertaken in relation to M’s Father, the Mother and the Grandmother, as well as others. I have had the benefit of detailed Care Plans and statements from the allocated Social Worker, NS. I have had two helpful reports from the Cafcass Guardian, RA.

[30] I have heard oral evidence from the Mother, M’s Father, the Grandmother, DJ, the Social Worker and the Guardian. I have had detailed and comprehensive submissions from the advocates, both oral and written.

The applicable law

[31] Before I can make a care order, I need to be satisfied as to the threshold criteria, namely that each child is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to the child, or likely to be given if the order is not made, not being what it would be reasonable to expect a parent to give [Children Act 1989, section 31(2)]. If I am so satisfied, I must then consider the individual child’s welfare in deciding what order to make.

[32] The burden of proof is on he who seeks to assert a positive case as to disputed facts. In this case, that is the Local Authority. The standard of proof is the ordinary civil standard, namely the balance of probabilities (see Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR 141, regardless of the seriousness of the allegation or the seriousness of the consequences. Nevertheless, when evaluating the evidence, allowance should be made for the ages, inexperience and limitations, both emotional and intellectual of the witnesses themselves.

[33] The expert evidence in this case is not contested. It is, however, for me to weigh the expert evidence alongside the lay and other observational evidence. It does not sit in a vacuum nor is it to be interpreted in isolation from the other evidence. Even if an expert says that that there are a number of possible explanations for some occurrence, it is still open to the court to find on the evidence as a whole, which is the probable explanation.

[34] There are issues in this case as to the extent to which the Mother in particular has lied to this court and/or to professionals. Unlike many cases, this is relevant not just to the case against her as to the shunt but also in relation to the case against the Grandmother as to anal penetration and how I should treat her evidence in that regard. The Mother accepts that she has lied in certain respects although she contends that she has not lied in her oral evidence to me.

[35] First, I must decide to what extent she has lied deliberately as opposed to being mistaken. I must consider the factors outlined in R v Lucas [1981] QB 70. I have to ask myself why she lied. The mere fact that a witness tells a lie in relation to one aspect is not in itself evidence of “guilt” or, as here, that the Local Authority’s allegations are true. A witness may lie for many reasons. They may be “innocent” ones in the sense that they do not denote responsibility for tampering with W’s shunt. For example, they may be lies to bolster a true case; or to protect someone else; or to conceal some other conduct unrelated to the matters in dispute before me; or out of panic, distress or confusion. The fact that a person lies about one aspect does not mean that he or she is lying about another aspect.

[36] It follows that, if I find that she has lied, I must assess whether or not there is an “innocent” explanation for those lies that does not implicate her in relation to the shunt. However, if I am satisfied that there is no such explanation, I can take the lies into account in my assessment as to this issue. Equally, I must perform the same assessment in reverse when determining the allegation against the Grandmother. In other words, to what extent do her lies cast doubt on her allegations against the Grandmother?

The expert evidence

[37] Before turning to the threshold criteria, I should briefly deal with the three expert reports.

[38] Dr Edwards was asked to deal with allegations that M had been sexually abused. Her report does not support such a finding. She says that she is unable to conclude that M has been sexually abused or been subjected to sexually inappropriate behaviours. The Local Authority therefore did not pursue any such findings. I make no such findings.

[39] Professor Mortimer identified the Mother as suffering from a personality disorder of mixed type with traits of several sub-types including dependent, borderline and histrionic, associated with conversion, somatic and factitious disorders. The factitious disorders are likely to have extended to W. She concludes that such conditions would have had an adverse effect upon the mother’s parenting capacity. Her prognosis for the Mother’s recovery is “guarded” although she acknowledged that the Mother had made some limited progress. In any event, it would be outside the children’s timescales.

[40] Dr Ward acknowledged that any discussion about W must take into account the impact of his diagnosis of spina bifida and hydrocephalus, which have a significant impact on his overall health and development as well as the care he requires. She considered that the bruising identified in December 2013, consisting of clusters of small circular bruises are likely to be the result of forceful gripping/grasping of W’s legs by an adult but it was not possible to determine whether the bruising was inflicted deliberately or as a result of frustration or unawareness. The second set of bruising, identified later in December 2013, came into a different category. It was possible that some of these bruises were caused accidentally. The quality of the photographs did not permit Dr Ward to identify specific mechanisms. The quantity of the bruising was concerning given W’s requirement for very careful supervision and protection.

The threshold and the Mother’s concessions

[41] On 1st October 2014, the Mother’s counsel, Mr Owen-Casey filed a comprehensive response to the Local Authority’s threshold document. It makes very significant concessions, which go to the Mother’s credit. In short, she accepted that the Local Authority had proved their case and that the threshold was crossed. This was realistic but it was also a brave and very responsible course of action to take.

[42] It is right to note that the threshold document made a number of very serious allegations against the Grandmother. I took the clear view that it was not either proportionate or necessary to investigate those allegations. This was reinforced by the fact that the Grandmother, also realistically and responsibly, recognised that she could not care for either child and only sought identity contact with them. It followed that, with two exceptions, the allegations against her were not proved and had to be removed from the document.

[43] The two exceptions relate to the findings of Anthony Lincoln J and the allegations of anal penetration. Ms Brandon for the Grandmother asked me to remove the reference to the findings of Anthony Lincoln J on the basis that it was unnecessary. I disagree. Extremely serious findings were made. At times, the Grandmother had the sole care of both children, particularly when the Mother was hospitalised or ill in the summer of 2013.

[44] Ms Brandon then asked me to replace the words “The maternal grandmother colluded in the sexual abuse of her son John by her then husband, EP: findings made by Mr Justice Anthony Lincoln within Wardship proceedings which concluded in 1988”. I was asked to insert instead the exact findings of the Judge, which I have recorded earlier in this judgment. I decline to do so. The wording used is the only possible interpretation of the findings made by the Judge. It is therefore accurate.

[45] I will summarise as briefly as I can the main concessions made by the Mother. They were:

(a) That the Mother suffers from significant mental health difficulties as set out in the report of Professor Mortimer including the fact that her problems had led to unnecessary medical invasive investigations and procedures.

(b) That the Mother’s serious mental health and related problems have seriously impaired her ability to provide a reasonable standard of parental care for her children by reason of her repeated periods of hospitalisation; her emotional unavailability due to her preoccupation with her own health needs; her inability to provide for the children’s day to day care by reason of her own perceived ill-health; her excessive use of medication which made her drowsy and interfered with her ability to care adequately for the children; the Mother’s FII in relation to W, which exposed him to a significant risk of harm, including exposing him to unnecessary medical investigations and treatment as well as the impairment of his own health, emotional well-being and development. She also conceded that there was a real possibility that she might subject M to FII, although she asserted that she had not actually done so.

(c) The Mother has fabricated/exaggerated her medical symptoms, resulting in her undergoing unnecessary medical tests and hospitalisation. A number of examples are accepted. These include falsely claiming she suffered from seizure like events on 2-3 occasions per day; claiming to be unable to eat or drink such that she was on a drip; and falsely claiming to have lost lower limb and bladder control, when in fact the problem was psychological not physical. In relation to the last point, she did clarify her concession by saying that she did not make up her symptoms in that they seemed very real to her at the time.

(d) In part, accepting that she improperly interfered with medical equipment in respect of W. She tampered with his Baxter fluid pump in Alder Hey Children’s Hospital in January 2013 by silencing the alarms on the same. This could, of course, have been very dangerous. She contends that she did so when W was awake as movement triggered the alarm but she should not have done so without medical agreement, whatever her motives. Second, she inappropriately disconnected his intravenous drip in order to remove him from his cot, thereby triggering an alarm. She accepts she did this but denies it was with any deliberate intent towards W. On any view, it was an irresponsible thing to do. Finally, she accepted that W was unnecessarily admitted to Alder Hey in December 2013, asserting that this was due to over-anxiety.

(e) W had suffered significant harm by failing with his overall care. Given his complex needs, he requires a consistently high level of care. He did not receive a reasonable standard of care from the Mother and she was unable to meet his complex needs properly, as evidenced by the significant improvements in his condition since his placement with foster carers.

[46] There remained three important areas of the threshold document that the Mother did not accept at the commencement of these proceedings. They were:

(a) She had inflicted excessive force on more than one occasion to the point that W has sustained bruising on the outer aspects of both legs, such injuries being compatible with grip/grasp marks. I will describe this as “the bruising allegation”.

(b) She improperly depressed the button on W’s shunt. I will describe this as “the shunt allegation”.

(c) She and/or the Grandmother inappropriately inserted their fingers into W’s anus. I will describe this as “the anal penetration” allegation.

My findings on the bruising allegation

[47] The Mother’s response to threshold as to the bruising allegation denied that she was responsible. She asserted that he had not sustained excessive force whilst in her care that would result in bruising. She said he was an active child who sustains bangs to his legs regularly and has continued to sustain bruising to his legs since he was in care. She blamed DJ.

[48] On the first day of the trial, Mr Owen-Casey asked for permission to file a further statement overnight. He indicated that his instructions had changed.

[49] The statement was duly filed the next morning, namely 7th October 2014. It says that the week commencing 9th December 2013 was a difficult week for the Mother. The anniversary of the birth of RM was approaching. This brought back traumatic memories for her and upset her. W had been sick and distressed. At times, he would shout and kick out a lot. It could be difficult to change his nappy as he would wrestle with her. She had not been sleeping well and was very tired and unwell. She was of “low mood”. She then makes the following admissions:

(a) “It may be that on occasions during this week when I was changing his nappy that I was grabbing W too much. This was not out of malice or deliberate”.

(b) “It may be that around the 12th December I used excessive force to hold him down whilst changing his nappy. I invite the Court to consider that it was not intentional or out of malice.”

(c) “I ask the Court to accept that it is more probable that I caused the bruising to W’s lower legs before the 12th December 2013. As to the bruises found later in December 2013, I am of the view that they were accidental and it may be that I lacked the adequate supervision for W on occasions when he injured himself whilst playing”.

[50] I take the clear view that this was an admission that she had caused the “grip marks” bruising on the 12th December. I formed the view that it was not therefore necessary to examine the matter further. It follows that both DJ and the Grandmother are cleared of any involvement in the bruising. They are both entitled to a finding that they have not caused any non-accidental injuries to W. It was very regrettable that the Mother ever sought to blame DJ, given that she knew all along that he was innocent. It is particularly regrettable in circumstances where she further alleged that he was the father of W when she knew at the very least that there was a doubt about it. He was misled over a long period in relation to something very personal and very important. He is entitled to an apology in relation to both matters.

[51] So far as my findings are concerned, I am prepared to accept that the 23rd December bruising was accidental but it does lead to a finding of insufficient supervision and care of W. So far as the 12th December grip mark bruising is concerned, I find that it was inflicted by the Mother using unnecessary and unreasonable force. I do not believe that she deliberately sought to hurt W but she was reckless as to whether or not that was the effect. Frustration would have played a part. She knew it was excessive but was unable to admit it at the time. It is, however, to her credit that she has now been able to do so, even at the eleventh hour.

My findings on the shunt allegation

[52] W has a shunt implanted into his head to drain excess fluid associated with his hydrocephalus down into his stomach. A button is attached to the shunt. It is embedded into the skull but is slightly raised from the scalp. It is difficult to see save under close examination. It is quite clear that only medical professionals should ever depress the button. The Local Authority’s allegation is that the Mother has, on a number of occasions, done so. The Mother denies having done so.

[53] The first concern that she was interfering with the shunt occurred in March 2013 when it was said that she had told health professionals that the shunt was depressing and refilling slower than usual. It should not depress itself so it was thought that the Mother might have been doing it. The Mother accepts that she pressed the button but says she was asked to do so by a doctor at the hospital on the basis that he was not an expert in that field. She denied in oral evidence that she had received training in how to manage the shunt and denied being told not to press the button.

[54] On 12th May 2013, the Mother told professionals that she had noticed that the button was staying depressed. The health records say that she said she did not press the button herself but it got pushed in when she was nursing W. I assume she means by it coming into contact with her arms or body. The record goes on to say that she noticed it would not fill up for minutes and was getting worse each night. In the evening, she said it was depressed. She told me in evidence that she could not remember this incident but that she had not deliberately pressed the button whilst nursing W. Dr Ward’s conclusion was that it was “highly unlikely that a shunt would get pushed in in this way.”

[55] On 17th May 2013, Mr R, a consultant neurosurgeon, examined the shunt and could see no obvious problem with it. The notes say that the Mother was advised against any pressing or feeling of the shunt tube. The doctor felt that the Mother had some trouble coping with the fact that W had a VP shunt.

[56] In December 2013, the records say that W was admitted to hospital with the shunt depressed. The Mother said that she noticed it was depressed whilst stroking W’s hair. She denied pushing the button in. Dr Ward’s conclusion was that it was “highly unlikely that stroking his hair would result in the shunt button being pressed in”. In oral evidence, the Mother wondered whether he had hit his head on one of the metal bars on the cot beds in the hospital. She told me that the shunt was not fully depressed but was halfway in.

[57] Finally, on 22nd January 2014, Alder Hey Hospital received a phone call from a Diana Nurse asking for information as to the valve as “Mum has been pressing this and wants more information”. The Mother said she only asked for information so she could explain to people what the shunt did.

[58] I have come to very clear conclusions in regard to this aspect. Contrary to her evidence, I find that the Mother was indeed interfering with the shunt button and she did so on more than one occasion. I am sure she would have been told from the very outset not to touch the button. I reject her suggestion to the contrary. I do not believe a doctor would have asked her to depress the button in March 2013. I accept the medical notes. I reject her case that the button was accidentally pushed in when she was nursing W. I do not accept that she could remember what happened in March but not in May. I reject the suggestion that it was further pushed in by contact with one of the metal bars on the hospital bed. I also reject her evidence that she had not been told not to depress the button at the outset.

[59] I find that the Mother was deliberately depressing the shunt and that she knew she not do so. This was part of the FII, which she accepts occurred. I accept the evidence of Dr Ward at E-324 of the bundle as to five examples of the reasons for FII. I find that examples 1 – 4 applied in this case, namely:

(a) Simple anxiety or over interpretation of trivial symptoms;

(b) Child symptoms are misperceived, perpetuated or reinforced;

(c) Carer actively promotes sick role by exaggeration, fabrication or falsification;

and (d) Carer suffers from psychiatric illness.

[60] I consider that the Mother was finding it very difficult to cope with W. It was, at times, overwhelming her. She sought solace in her own FII, so that the burden of caring for W and M had to be taken over by someone else, in this case the Grandmother. When she was in charge, she felt the need to secure more help and assistance. One way was to exaggerate or fabricate symptoms with W. Fiddling with his shunt was one such mechanism that enabled her to seek more assistance from medical professionals. The consequences for him could have been extremely serious.

My findings on anal penetration

[61] The Local Authority threshold document stated that “the Mother and the Grandmother inappropriately inserted their fingers into W’s anus”. It is quite clear that W did have great trouble with constipation, although he has improved since he has been in foster care. There were three methods to assist with this, namely suppositories, bowel washes and enemas. I am quite sure that none of these methods required anyone to put their finger in W’s anus.

[62] So far as the Mother is concerned, this allegation cannot stand. It was based solely on the evidence of DJ who said in his statement that he saw both the Mother and the Grandmother sticking their fingers into W’s bottom. He was told this was to administer a suppository. In his evidence in chief, he repeated this but said he only saw it once. In cross-examination by Mr Owen-Casey for the Mother, he said he had not seen the Mother do it. It was clear from his other evidence that he turned away at the relevant time but that, in any event, whatever was happening was being done by the Grandmother. There is therefore no evidence that the Mother did this and I dismiss that allegation against her.

[63] Ms Brandon for the Grandmother has tried to convince me that it is unnecessary to determine whether or not the Grandmother did so. I had previously accepted that, in general, it was not proportionate to investigate the allegations against the Grandmother but, as I heard the evidence in this regard, I have decided to determine this allegation if I am able to do so.

[64] Ms Brandon’s second submission is that I should dismiss the allegation. She contends that I should accept the Grandmother’s denial and argues that there is no credible evidence to the contrary.

[65] I do accept that I cannot now rely on the evidence of DJ. By the time he had completed his evidence, he was saying that he had turned away and so did not actually see the suppository being placed inside W. He also saw the Grandmother perform a number of bowel washes but said that there was, in his view, nothing sinister in what he saw. I do not understand why his written evidence was to the effect that he had seen it done. Indeed, his evidence in chief had initially confirmed that. Whilst it might be said that he was now minimising what happened, he has no reason to help the Mother and the Grandmother given what has happened. I therefore accept his oral evidence that he saw nothing suspicious.

[66] The evidence against the Grandmother comes from the Mother and from CL, one of the Grandmother’s children who had been adopted but is now back in contact with her birth family. CL said that the Grandmother told her that she had been informed by health professionals to insert her finger into W’s bottom to help him if constipated. The Grandmother denies this and says it is inherently unlikely that she would do so at a family get together. I have not heard oral evidence from CL. Given the collapse of DJ’s evidence under cross-examination, I cannot rely on this untested hearsay.

[67] The Mother told me in oral evidence that the Grandmother put the tip of her forefinger into W’s bottom on more than one or two occasions when stools were completely stuck to help extract them. She repeated this under cross-examination by Ms Brandon.

[68] Ms Brandon rightly reminds me that the Mother has lied on a number of occasions in this case. I have found that she lied to me about the shunt. I must therefore treat everything she says with great caution. In this case, however, I am not entirely clear what motivation she would have for lying. It does not improve her case, as she must have known this was wrong and should have stopped the Grandmother from doing it.

[69] The Grandmother denied inserting her finger to assist with extraction. She did, however tell me that the poo did on a couple of occasions get stuck. She said that “you couldn’t just leave it” so she massaged “the top end and the bottom end of the anus to get it to come out”. When cross-examined by Mr Sellars for the Local Authority, she said she used a tissue as it was half way out but that she couldn’t just sit there for an hour and a half waiting. I find that this gets half way to the truth of what happened. In coming to this conclusion, I make it clear that I considered that the evidence of the Mother did have the ring of truth notwithstanding her other lies.

[70] On the balance of probabilities, I find that the poo did occasionally get stuck and the Grandmother did use her finger to manipulate it out as the Mother says. This did involve putting the tip of her finger inside the anus. I accept entirely that this did not have any sexual motive. It was done to get the poo out. It was, however, quite wrong to do so. It could have done serious damage to W, particularly given the Grandmother’s nails which she told me were quite long. The Grandmother should have been aware of this. It is, in my view, another example of an inability of Mother and Grandmother to cope with W’s problems.

M’s Father

[71] I have already indicated that the Parenting assessment of M’s Father was positive. It concludes by saying that:

(a) (He) has demonstrated a good range of parenting skills that indicate a high level of parenting ability. Furthermore, he has demonstrated an ability and willingness to sustain these skills over a longer period of time, and to sustain them through periods of adversity.

(b) (He) has accepted that he has some weaknesses in his parenting, specifically around protective parenting, accessing medical care for Elle if he was incapacitated, knowledge of female adolescence, more advanced educational skills, and limited experience of having full time care of a child. During this assessment, MH has engaged with support to address these weaknesses and has shown a willingness to improve his parenting.

(c) (He) has demonstrated an insight into M’s needs, and into his own needs and parenting capacity. He is able to provide a stable environment for M where her needs for a permanent, stable family can be met. His family are already familiar to M so her placement with MH would be an easier transition than if she was placed with strangers.

[72] I was told that he has a good loving relationship with M. M is delighted to see him and can be distressed on parting. I accept all this.

[73] He gave oral evidence before me. Like counsel for the Local Authority and the advocate for the Guardian, I was impressed with him. I agree with Mr Sellars that he was measured, open-minded and had a genuine appreciation of M’s needs. I too am sure he would act in M’s best interest. He told me the he will be positive to M about her maternal family. I consider this to be important. I am quite satisfied that it is in M’s best interests to approve the care plan that provides for M to live with him permanently.

[74] He does want to be permitted to change M’s name to his surname. All parties agree that his surname should now feature in her name. His first choice would be just to use the surname but I agree with the Guardian that it would not be right to remove the Mother’s surname entirely from M’s name. His second choice is to use both surnames without a hyphen. This was favoured by the Local Authority. His third choice was to use both with a hyphen. This was the Mother’s choice.

My conclusions

[75] Given all that I have said, it follows that the threshold is very clearly established in this case by a combination of concessions and my findings. This is not a borderline case. It is a serious case. The allegations are, as Mr Sellars submitted, at the top end of the range. There would be a high likelihood of repetition if either child was placed back with the Mother. That cannot happen. I of course accept entirely that the Mother loves M and W very much. It is a tragedy that she has been unable to cope but the court cannot permit the children to suffer further harm as a result. It is to her huge credit that she accepts this.

[76] I therefore approve the Local Authority Care Plan for M. There will be a care order in favour of XZ on the basis that M will reside with her Father, MH. Her contact to her Mother will be reduced to six times per annum on a supervised basis to ensure stability in her placement with her Father. There will be a risk assessment conducted by the Local Authority in relation to contact with the Grandmother. Even if the assessment is positive, this will just be for identity contact. At best, it will be once per annum on a supervised basis with indirect contact (cards and small presents) twice per annum for birthdays and Christmas. I do consider that it would be appropriate for the Grandmother to have a photograph of M (and W) once per annum. This would obviously end if the photograph was placed on the internet or otherwise misused and might end if W is placed for adoption.

[77] In relation to M’s name, I must apply the welfare test, considering all the circumstances. I have already indicated that I consider the Mother’s surname should feature in her surname. It would be wrong to remove it as it is an integral part of her identity just as it would be wrong not to reflect the paternal side of the family in her surname. In this day and age, I do not accept that it is embarrassing if she has a different surname from her Father. Regrettably, that is now all too common. I have come to the clear conclusion that she should have the double-barrelled surname with a hyphen. I worry that it would be too easy to drop the Mother’s surname if the hyphen was not included. After all, she does not use her other middle name in every day life.

[78] Finally, I have already recognised the very mature and considered approach that the Mother has adopted in relation to M. However, I have detected a hint that she still sees a time when she will be able to make an application to resume care of M and/or W. I make it clear that she should not harbour such thoughts. The order I am making is a final one not a temporary one. Whilst circumstances can change, there would have to be an absolutely fundamental change for any application by the Mother to be successful. She should be in no doubt as to that and as to the fact that I cannot envisage such circumstances as I sit here today.

[79] I have considered very carefully what is best for W. I entirely acknowledge that Parliament has decreed that all cases should be dealt with in twenty-six weeks. There is, however, an escape clause that enables the court exceptionally to extend the period. If any case is suitable for doing so, it will be the difficult ones in the High Court.

[80] When the President considered this in April, he was clear that a late application by a relative to care for a child could be a good reason for doing so. In general, it is not good enough for a relative to come forward so late that the twenty-six weeks cannot be complied with. In this case, however, no criticism can be levelled at the H family given that they are still in the dark as to whether or not W is a relative of theirs.

[81] I could make a final care order on the basis that any application for a placement order would have to come back before me. I consider this is unsatisfactory. If placement for adoption is rejected, there may still be a dispute as to whether or not it should be long term fostering or placement with a member of the H family. Given that MH has been successful in his application in relation to M, it cannot be said that placement of W with another member of the family is so unlikely that it can be discounted now. If there was a dispute, the only way forward would be for someone to apply to discharge the care order. The Mother might not wish to do so. It is difficult to see what status MH has in relation to W. The Guardian would no longer be a party. It could give rise to all sorts of difficulties.

[82] Reluctantly, I have therefore come to the conclusion that I must maintain control over W’s case. He will remain subject to an interim care order. I am, however, clear that the matter must be finalised within six months. I intend to list the case now for final disposal. I will order a DNA test immediately of MF. If there is an issue as to his capacity to consent, I will deal with it as a Judge of the Court of Protection. I will not tolerate any delays for the Official Solicitor to consider the matter. Any such application must be dealt with to conclusion within three weeks.

[83] There must be triple tracking, namely consideration of an adoptive placement, long term fostering and a placement with the H family, if MF is established as the Father.

[84] I have been told clearly that MF will not be seeking to care for W if he is found to be the Father. Assuming that remains the case, I cannot envisage any circumstances in which it would be appropriate for me to investigate the circumstances of W’s conception at the adjourned hearing.

[85] The Mother has invited me to consider retaining her contact to W at a higher level than six times per annum. I decline to do so. There is no doubt that W will not be returning to her care, whichever of the three outcomes applies. He should not be treated differently to M now in relation to maternal contact.

[86] Turning finally to the Grandmother’s application, I was clear that it should be dismissed. I have concluded M’s case by making a final care order. It is now for the Local Authority to decide on matters such as grandparental contact, not the Court. I cannot see any distinction so far as W is concerned. Ms Brandon indicated that, if that was my conclusion, she would wish to have permission to withdraw the application. I am quite happy to accede to that course of action so the application will be withdrawn rather than dismissed.

[87] I am very grateful to all professionals involved in this case for the very helpful and constructive way in which they have conducted the exercise. It has been entirely child focussed and appropriate.
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