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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Re L (Psychologist - duty to the court) [2011] EWHC B29 (Fam) (20 December 2011) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2011/B29.html Cite as: [2011] EWHC B29 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
COVENTRY DISTRICT REGISTRY

		20th December 2011

1. This is a welfare hearing to determine the arrangements for the future care of L. L is now 23 months old. His parents are GT ('the mother') and BR ('the father').
2. On 3^rd March 2010, when he was six weeks old, L was admitted to hospital. He was found to have sustained a non-displaced spiral fracture of his left humerus, metaphyseal fractures of the right and left tibia, left fibula, left ulna and right femur together with a number of marks to his face, left arm and right hand. Coventry City Council ('the local authority') began care proceedings.
3. At a finding of fact hearing in April 2011 I found that the mother was responsible for the humeral fracture and the bruising to L's forehead and cheek. I was unable to identify which parent was responsible for the other injuries. I found that both are possible perpetrators of those injuries. Neither parent appealed against those findings.
4. The background history is set out fully in two earlier judgments: in the judgment of Mr Justice MacMenamin in the Irish High Court dated 27^th July 2010, reported as Coventry City Council v S [2010] IEHC 303 and in my judgment at the conclusion of the finding of fact hearing, reported as Re L (A Child: Media Reporting) [2011] EWHC B8 (Fam). It is unnecessary to burden this present judgment with repetition of that history.

L's care since March 2010

5. It was agreed with the local authority that upon his discharge from hospital L should be placed in the care of his maternal grandmother, NT. NT, a Head Teacher, was then living in Scotland. She took early retirement. She moved into the mother's home in Coventry. The mother moved out. L was discharged from hospital on 10^th March.
6. On 25^th March 2010 NT removed L to Ireland. She did so with the consent and at the behest of both of his parents.
7. The local authority began these proceedings on 26^th March. It was unaware that L was then in Ireland. Orders were made for L to be returned to England. Those orders were not complied with.
8. Some weeks later the local authority began proceedings in Ireland. The Irish High Court found that L had been wrongfully retained in Ireland and ordered his immediate return to England. L was returned to this country in August 2010. He was placed in foster care. Both parents and NT were allowed to have supervised contact.
9. Over time, confidence in NT's willingness to abide by court orders increased and fears about further removal from the jurisdiction diminished. This led to L's gradual return to her care. He returned to NT's full-time care on 31^st May 2011. At that point all parties agreed that he should be made a ward of court. In the interim, a residence order was made in favour of NT. This was supported by an interim supervision order.
10. Following L's return to NT's care the parents' contact with him continued to be supervised though here, too, there has been a gradual relaxation in the arrangements.
11. NT continues to live in the terraced property owned by the mother. The mother is living at a hotel. Her contact now takes place at her home and is supervised by NT.
12. The father continues to live with his parents. His contact with L takes place at their home and is supervised by them. Three weeks before this hearing began overnight contact was introduced. L now stays with his father and paternal grandparents on Friday evenings.

The issues

13. All parties are agreed that the only public law order required is a supervision order for a period of twelve months. The more problematic issues relate to residence and contact.
14. By the end of this hearing the mother's position was that L should remain in the care of NT. NT seeks a residence order. Both the mother and NT agree that the father should have regular contact. They do not accept that staying contact has been a positive experience for L and wish it to cease until he is older.
15. The father's position, supported by the local authority and the Children's Guardian, is that there should be a joint residence order in favour of himself and his parents and that the mother and NT should have regular contact, including staying contact. Although his parents are not parties to these proceedings they support this proposal.

Local Authority Parenting Assessments

16. In September 2010 an Assessment Agreement was entered into between the allocated social worker, Amrit Bilkhu, and the Coventry Community Based Assessment Service ('CBAS') for a parenting assessment of both parents. That work was undertaken by a senior social work practitioner, Beverley Barnett Jones.
17. Mrs Barnett Jones has undertaken two parenting assessments. The first was completed in March 2011, the month before the finding of fact hearing, at a time when the father was still the subject of criminal proceedings. The second was completed in October.

The mother

18. In her first assessment Mrs Barnett Jones records that at that stage both parents held

'129. …a powerful belief that the causation of L's range of injuries is the result of an underlying medical condition. Each parent has referenced dissatisfaction with the expert opinion and do not believe all enquiries have been undertaken…The issue of denial is a significant arc in the narrative of this case.'

In assessing risk, one of the key issues in this case is to examine how far each parent has been able to move on since I made my findings.

19. So far as concerns the mother, Mrs Barnett Jones' evidence suggests that she has not moved very far at all. The mother does not accept my findings. She does not accept that she was responsible for the humeral fracture. She does not accept even the possibility that she may have been responsible for any of the metaphyseal fractures. Mrs Barnett Jones says that in her discussions with the mother her position was 'I didn't harm my child, I didn't do it'; that she is the victim of a miscarriage of justice. In the context of the parenting assessments plainly this is an important factor.
20. Although the mother has consistently protested her own innocence her position concerning the father's culpability has changed significantly since the fact finding hearing. In her first report, Mrs Barnett Jones says that

'29. GT constantly, forcefully and readily defended BR in this assessment even though they are no longer a couple…she operates a high denial threshold in relation to her child's father…GT firmly stated to me that she believes BR to be innocent despite the witness statement he gave which suggested that even he at that time at least believed he may have behaved inappropriately in handling L's arm...'

21. In contrast, in her second report Mrs Barnett Jones records that

'51. GT appeared to accept that L's fractures and bruises were as a result of Non-Accidental Injury and that no medical cause had been found, however, she does not accept the findings made by the court as to her status as a perpetrator or possible perpetrator. Although she does not provide any new information as to the past behaviour or conduct of the father towards L, she puts forward the "logical" stance that as the parents were the only ones looking after L at the index points, and that as she did not cause the injuries, then it must be the father…

53. GT was able to accept that sometimes good people do bad things, however, this was in reference to her view that BR was a good parent but was now a risk to L as from her point of view he is responsible for the NAI.'

22. The fact that the mother rejects the findings made by the court creates a very real difficulty in terms of assessing risk. Although Mrs Barnett Jones accepts that this does not automatically lead to a conclusion that the mother remains a high risk she goes on to make the point that,

'57. The explanation GT provides is not cognisant (sic) with the facts found in relation to her behaviour towards L. It is a complete denial of her responsibility and culpability. Neither is her explanation cogent as it [is] a serious attempt to place culpability and responsibility onto the child's father. Indeed what is worrying to us as assessors is that her explanation and her plans for the future bring forth questions as to the potential for new forms of harm emerging in her relationship with her son.'

23. The reference to 'new forms of harm' is explained later in Mrs Barnett Jones report. She says that the mother's

'83. …notion that she is not a risk and that his father is…contribute to what would be a potential risk of emotional harm to him in the future. Rather than supporting him to overcome the possible effects of the changes which occurred in his early life, her approach risks undermining his developing identity, his sense of self and his basic sense of security in his relationships. L like all children will need a self-story, that is a biographical memory bank which provides for a coherent bringing together of his early life and how these shaped his future family relationships. It is through contacts with his family and a willingness to talk openly and honestly about his experiences that will help L understand the links to the past and what may be happening in his life as he grows up.'

24. The problem of risk is something which is a constant theme throughout this assessment. Beverley Barnett Jones says that in her opinion,

'112. …the operation of GT's denial and how it organises the way she frames all the parenting related issues makes it evident that there is no change in her capacity to think about the risks that the court has determined emanate from her parenting. As a consequence of how she thinks about the issues…there may be potentially other risks emerging in her future parenting if she were in a position to apply her thoughts and beliefs into action.'

25. Although the mother did not comply with orders made when L was in Ireland she makes the point that she has complied with every court order made since his return. She has complied with a series of working agreements. She has engaged with professionals even though she has not always found that easy. Her compliance could be seen as positive. However, Mrs Barnett Jones does not accept that it is. She says that

'115. GT cites her total compliance with court orders, rules and working agreements as evidence that she can be trusted to do whatever is asked of her. However, such compliance can acts (sic) as a disguised form of manipulation and deceit. Thus masking the reality that there is in fact little genuine engagement with professional concerns. Such disguised compliance [could] be just another form of parental resistance. The idea being that parents need to do everything above board, to the absolute letter so that they cannot be found to be at any fault, a form [of] 'playing social services at their own game' mentality emerges. Of course a parent has every right to be particular, even pedantic when being asked to respond to contracts set out by professionals. However, in reality no true confidence or faith is placed by the parent in professional judgement or effort to engage with the very difficult task of managing the complexity of risk and making good decisions. Parental compliance is then a surface level affair and in relation to any depth of acceptance of…what the problems are, the child grows up in a family culture where professionals (sic) views, beliefs and concerns are either potentially dismissed, derided or as seen as having malevolent undertones.'

26. The mother's complete rejection of the findings made by the court, her continuing belief that the investigations which took place following L's admission to hospital were inadequate and incomplete, her continuing belief that the fractures can be explained by an undiagnosed medical condition, her belief that the medical expert witnesses glossed over the deficiencies in the investigations of the treating clinicians, her belief even now that L may still be suffering from some underlying medical condition all suggest to Mrs Barnett Jones that the mother's apparent compliance should not be taken at face value. In her opinion there is good reason to believe that this is no more than disguised compliance.
27. Mrs Barnett Jones expresses a very positive view of the mother's parenting skills. She says that

'106. GT demonstrated positive parent to child interaction with L, warmth and affection were on full display. In…our first assessment we advised that:

'it is evident from her knowledge and observed practice that GT has a high range of skills and competency in applying the range of parenting tasks. She is very loving and affectionate and there is little to suggest by her observed parenting of him during contact at least, that she cannot meet his day-to-day care needs.'

107. Her bond and affection for her son is observable and his attachment to her is observable…'

28. However, notwithstanding that positive assessment, Mrs Barnett Jones also has some concerns. Empathy is an important component of parenting capacity. Mrs Barnett Jones raises concerns about what she perceives to be the mother's lack of empathy. She says that

'86. GT gave an appearance of a lack of empathy in her responses to our question as to how L may have felt upon being injured. Of concern was her earlier suggestion that he may not have experienced pain in the same way other baby's (sic) do. This type of attribution to the child is deeply concerning when one considers the findings that GT caused injuries to L…'

She also noted that the mother perceives her interests and L's interests to be the same.

29. Mrs Barnett Jones has concerns about the mother's support networks. In her first report, Mrs Barnett Jones says that

'69. There is little evidence that GT has support outside of that offered by her Mother and BR. She has referred to having friends but they, are mainly related to her friends at work. She does not name a best friend or someone who could help her practically.'

30. Mrs Barnett Jones arrives at some very clear conclusions. She says that

'117. Those working with GT do have a Mother who has many good skills and clearly loves her Son but who steadfastly refuses to accept the concerns of professionals and others in her son's life. These concerns being that her parenting of him was found not just to be problematic but harmful.

118. We found no evidence of potential to change or motivation to change her behaviour in relation to parenting in the areas of providing stability and ensuring safety from harm. She knows people are concerned but she believes they have no need to be.

130. GT is intelligent, articulate and has appealing qualities yet fundamentally she requires those working with her to suspend their disbelief and work from her standpoint. She refers to the truth of her innocence as the 'fact' but these facts are only accessible to her and by her as they do not reflect the facts that we have been tasked to directly address and make sense of in terms of this particular parent and the essential paradox of her parenting. She is in many ways a good parent but at the same time she remains a parent who in our opinion presents continued risk of significant harm to her child. As his Honour Judge Bellamy advised, sometimes good people do bad things. As with anyone else in such circumstances, the opportunity to learn from these experiences and genuinely engage in a helping process to bring about change is out there for GT. However, her stance takes her away from that process and reinforces a perception we gained of her that she is the victim and this is what drives her dealings with matters related to L. There is and will remain a problem of circularity when working with GT.'

The father

31. Mrs Barnett Jones' assessment of the father is more positive. She found that the father has moved on since the finding of fact hearing. In her second assessment Mrs Barnett Jones reports that,

'24. Although it was palpable that BR had found it very hard and was in a state of shock as to the findings he was over the three session (sic) able to process this shock and form some very pertinent insights into what the findings meant in relation to risk from GT and himself. BR was able to recognise that GT's continued denial affected his ability to form a trusting relationship with her in the future…

25. BR's stance is one of acceptance and recognition of the harm that L has experienced…In regards to his possible perpetrator status, BR has a realistic recognition that from a professional perspective this places a question mark over his future ability to safely care for L than if he had not such a status. In this BR's (sic) offers up from his point of view a plausible and reasonable stance. He points to the past care of his children and the fact that he now has unsupervised contact with his children from his marriage. He points out that no past and current evidence has been produced that would suggest that his children have suffered any harm in his care particularly physical harm. He advises however, that he will work with the Local Authority and other professionals to establish that any possible risk is minimised in the day to day…care of L. He is prepared to accept for a period that within the context of the care of L in his family, his parents can play a supervisory to monitoring role…

43. BR put forward a case as to why he should be seen as a low risk to L by professionals. He did not attempt to persuade me that the findings against him should be discarded. He acknowledged that some suspicion of him remained. However, his openness to accepting this professional concern is an important statement in assessing what is the likely future risk from BR in regards to his sons experiencing physical injury.'

32. In her first assessment report Mrs Barnett Jones raised some concerns about the father, in particular with respect to his past relationship with his former wife, PC. She records that,

'95. …BR advised that there was no domestic violence in the relationship but I note that he told the police in March 2010 that his wife had scratched his face and he had his wife in a headlock. When I spoke with his ex wife she reported that there was no serious violence but that BR had grabbed her on one occasion following a loss of temper. She said she was 7 months pregnant at the time…'

33. Later in the assessment Mrs Barnett Jones goes on to report that

'101. BR presented anger and frustration as to his situation. We have become increasingly concerned as to his presentation during the assessment, although he is a sociable and an engaging person we observed an increasing sense of stress and unhappiness in his body language and even his physical appearance. He seemed quite worn out.

'102. It was apparent to assessors that BR strived at all times to present the best picture of himself and in the assessment process this is to be expected. The concern we have is whether in doing this we really have a (sic) accurate picture of this individual. There was a definite feeling that he was careful in what he said and that if he made a statement he quickly tried to retrieve it if it raised a doubt…'

34. By the time of her second report Mrs Barnett Jones' concerns had largely evaporated. Although the father is a possible perpetrator of the metaphyseal fractures, Mrs Barnett Jones says that,

'43. It is apparent that in weighing up the risk that he may have been a possible perpetrator uncertainty remains. We do not know whether he did…or not harm his child. The risk factor itself remains however I would argue that it is static, it is a fact that remains but there is no evidence from the past or current behaviour of BR towards his children that it is a dynamic active risk in the environment around L. In making a judgement one needs to look to the real world evidence as to BR's behaviour as a parent. He has raised children in the past and despite an allegation made by his ex wife in regards to his treatment of C, there is no evidence that he has physically harmed any of his children.

44. BR has managed to continue parenting his children under a degree of extreme stress in relation to his parents supervision of C's day to day care and demonstrate that he was able to place his sons needs for stability first. He could have easily moved out of the family home but would not walk away from C…

63. BR accepts the meaning of his possible perpetrator status and that professionals are therefore still concerned as to possible risk. However, BR's responsiveness to this professional concern provides an opportunity for risk management. BR states that he is open to being monitored by professionals for a period of time, he identifies that his family can provide the current safe care arrangements in the environment around the child and can monitor BR's interactions with L for an agreed period. He cites his current care of his other children as evidence that he presents no real risk.'

35. Mrs Barnett Jones accepted that she has not undertaken a formal risk assessment of the father. It was suggested to her that she had not assessed the father with the same degree of care with which she has assessed the mother. She did not accept that to be the case. Unlike the mother, the father is not operating on the same level of denial as that displayed before the finding of fact hearing. In between her two assessments of him the father had changed his position significantly whereas the mother had not. This had affected the way she had approached her assessment of each parent. In short, the father has moved on; the mother has not.
36. At the time of the first assessment, concerns were raised about the father's ability adequately to meet L's needs. Mrs Barnett Jones reported that his

'120. …interaction with L and observable caring of him shows affection and love. However, his responsive (sic) to his needs and adaptability to him is questionable in the contact I observed. I suggest that this is because BR does not know as much about parenting as one may think he should, due to the fact that he experienced for many years a traditional household when he married and his ex-wife and Mother did most of the upbringing of the children.'

37. Once again the picture presented in the most recent assessment is very different. Mrs Barnett Jones now says that she,

'60. …would state that there has been a significant positive change in BR's parenting capacity from the first assessment. It is probable that some of this was latent and was not revealed during the initial assessment due to the circumstances of the case…'

38. As I noted earlier, empathy is an important aspect of parenting. On this issue, too, Mrs Barnett Jones' assessment of the father is very positive. She says that she

'59. …found that BR presented a clarity of thought and appropriate emotional responsiveness as to his sons (sic) future needs for protection and stability . His ability to empathise with his sons (sic) experiences was palpable. His hurt and shock at what has occurred was obviously observable but he was able to place L's experiences first. He recognised his possible perpetrator status but was not overly preoccupied with it. He struck me as a Father who had grasped the core concepts of what would be needed to directly deliver the care L would need in the context of BR's family's supportive care. Employment and being able to provide for his children and himself is very important to BR however, I found that he was prepared to set aside his search for work for a considerable period in order to be available to care for L should a transition occur in his future living arrangements.'

39. Mrs Barnett Jones' ultimate conclusions concerning the father are positive. She says that,

'69. in relation to the issue of parenting capacity, BR has demonstrated his ability to positively promote in the future L's needs for safety and stability .I am confident that L would have the ability to maintain stability in his family relationships [with] both maternal and paternal family under his fathers care with the close involvement of his parents, under whatever legal arrangement that turns out be.'

Independent social work assessment

40. In October 2010 the parents sought permission to obtain an independent social work assessment. It has been apparent throughout this case that the mother has a deep suspicion and mistrust of the local authority. I accepted that it was appropriate that she should have the opportunity to undergo a completely independent assessment.
41. One of the experts proposed by the parents was Melinda Enock. Ms Enock has over twenty years experience as a local authority social worker. From 1994 until 2010 she worked as a Children's Guardian. Since 2001 she has also worked as an Independent Social Worker. She is well qualified to assist the court in this case.
42. Ms Enock has prepared one written report and has also given oral evidence. There is a considerable amount of common ground between Ms Enock and Mrs Barnett Jones.

The mother

43. Notwithstanding that this was an independent assessment by an expert nominated by the parents, it is clear that the mother very quickly became unhappy with Ms Enock's approach to the assessment. The mother said that she experienced this assessment more as interrogation than assessment. Ms Enock herself reports that by early September her relationship with the mother appeared to have broken down. She sought further guidance from the mother's solicitor. She offered the mother appointments which the mother cancelled. When the mother did re-engage with the assessment it was only on the understanding that her solicitor would provide a paralegal to attend all future meetings between herself and Ms Enock in order to take notes.
44. In her meetings with Ms Enock the mother did not hide her dissatisfaction with the whole range of professionals who have been involved in this case. Ms Enock notes that the mother 'is extremely critical of the Local Authority…She has considerable concerns about the actions of Dr McLachlan…Most recently she has told me that she does not feel that she [has] been properly advised by her barrister…'.
45. At the start of this assessment the mother set out her position to Ms Enock with great clarity. Ms Enock reports that the mother

'2.5 …considers that she is a victim of a miscarriage of justice. She has repeatedly told me that she is innocent. She has become frustrated with me when I returned to the findings and whilst she says that she agreed to put her trust in the justice system in this country she feels let down. She says she accepts that L suffered non-accidental injuries and at times seeks to blame her ex partner, BR. However she remains fiercely critical of the lack of investigation, as she perceives it into L's medical needs. She believes that had matters been investigated thoroughly when he was first admitted to hospital this would have revealed some underlying medical cause for his injuries.

2.6 GT is highly critical and upset that I have discussed the findings during the course of my assessment. She feels that it has little to do with her capacity to parent L and that I should [have] focussed on her parenting skills. She tells me that she was assured everybody wanted to 'move on' from the Judgement of His Honour Judge Bellamy. She appeared unwilling to consider my view that the findings are a key factor in any case, especially in a case such as this where a very young child was so seriously injured. GT seems to view my concern as an attempt on my part to upset or punish her. In reality GT spends a considerable amount of time telling me she is innocent and that it is not her fault the Judgement in incorrect. I have explained that I cannot go behind the findings and I attempt to explain why. However GT has a clear expectation that I should recognise that she has been victimised and believe her when she claims that she has not hurt her baby. She considers it unfair on the basis of advice she has received that she would stand a better chance of having her son returned to her if she did not appeal.'

She goes on to say that it is her assessment that

'4.14 GT presents as having an almost overwhelming belief that she is beyond criticism or blame. She has a tendency to adopt a defensive stance in respect of any criticism or observation made which does [not] appear entirely positive.'

46. Ms Enock goes on to express concern about the mother's willingness to work with the local authority and other professional agencies in the future. She is concerned that the mother is paying only lip service to professional concerns. She is

'2.13 …worried about GT's lack of willingness to accept the findings. It is evident that she vehemently believes that she does not pose any risk to her son. Consequently she sees no need for there to be any monitoring or oversight by professionals, other than to appease the Local Authority and/or the Court. In fact I understand that she would consider any ongoing monitoring as being intrusive and not in L's overall best interests, as it would deprive him of a normal family life.

47. However, it is right to note that at various points throughout her report Ms Enock acknowledges that there have been some signs of movement on the mother's part. She says that she has 'noticed some shift in her attitudes during the last few assessment sessions'. Although the mother continues to maintain her innocence Ms Enock detects that,

'2.13 …it is beginning to dawn on GT that some professional scrutiny will be necessary in the future, if L is to be placed in the family. Again I have noticed some recent shift in her resistance to this.'

48. I noted earlier that Mrs Barnett Jones expressed concern about the mother's lack of empathy. Ms Enock makes a similar point. She said that she found the mother to be

'4.15 …something of an enigma in respect of her differing emotional reactions to different aspects of her life…It is of note that when discussing L's injuries…she displayed little empathy or emotion and talked in a matter of fact way about what happened to him…'

That same point was reinforced later in her report where she notes that

'11.25 …The one occasion where she showed no emotion was when I asked her about L's experience of the injuries he suffered. It would appear that her empathy for her son's position is limited and she presents as being primarily concerned with her own feelings and the effect it has on her.'

49. Ms Enock expressed both concern and surprise at the mother's reaction to her suggestion that it would be helpful for L if he were to attend nursery. Ms Enock said that the mother burst into tears when she mentioned nursery because she said she didn't want to be separated from her son.
50. During the assessment the mother raised her continuing concerns about L's health. Ms Enock was left with the impression that the mother continues to believe that there are unanswered medical questions in respect of the injuries L suffered. At paragraph 11.2 of her report Ms Enock lists eleven specific health concerns which the mother had raised with her.
51. Though instructed to undertake a parenting assessment Ms Enock said that she had considered the issue of risk as part of her assessment. She said that the risk of flight, of the mother removing L from the jurisdiction, was a concern for her at the beginning of her assessment and still remains a concern.
52. Ms Enock's assessment of the mother is not wholly negative. So far as concerns the mother's basic care of L Ms Enock agrees with Mrs Barnett Jones that this is of a high standard. She says that she has observed the mother 'responding to her son with warmth and affection'. She says that the mother 'offers spontaneous affection giving him kisses and cuddles…she offers him appropriate praise and reassurance.'

The father

53. Ms Enock found the father to be much more straightforward. He presented as being open and honest. He said that he accepts the fact finding judgment. He appreciates that because he was found to be a possible perpetrator of the metaphyseal fractures he must still be considered a risk. He recognises the need to work closely and co-operatively with professionals. Miss Enoch noted 'a marked willingness to accept advice'.
54. Ms Enock gives a positive assessment of the father's ability to meet L's basic care needs. She says that she is

'10.51 …confident that BR can meet L's basic needs, from my observations of contact and from the information provided in the contact records. He is an experienced parent having cared for his older three children, albeit jointly with his wife and with the assistance of his parents…

10.52 BR understand (sic) the issues of risk…[He] has demonstrated that he can keep his children safe, as he has done so with his older children…

10.54 BR has demonstrated to me that he is somebody who recognises his children's changing needs. It was useful to observe BR not only with L but with his other children as well. They present as being extremely polite, caring and well brought up children.

10.55 I was impressed with the quality of the relationship between L and his father. L clearly has an attachment to him and to other members of his paternal extended family…'

55. In Ms Enock's opinion the major distinction between the parents concerns manageability of risk. In short, she considers that the father is a manageable risk but that the mother is not.

Psychological evidence

56. At the end of her first assessment report Mrs Barnett Jones advised that it may be of benefit to the court to have psychological assessments of the parents. I gave permission to the parties to instruct Dr Olivia Craig to undertake that assessment.
57. Dr Craig describes herself as an Independent Consultant Forensic Psychologist. She was employed by Birmingham City Council from 1975 until her retirement in 2003. Initially she worked in the field of special education. In 1988 she qualified as a psychologist. From 1991 until her retirement she was the principal psychologist for Birmingham City Council's social services department. Since her retirement she has worked as an independent consultant. She is well-used to providing expert evidence for court proceedings.
58. Both parents cooperated with Dr Craig's assessment. She says that in interview the mother was 'polite and totally cooperative'. She notes that the mother

'3.3.5 …stands firm in her insistence that L is "the light of my life", that she has never knowingly, nor would ever, cause him any injury or upset'; and continues to believe that there is a medical explanation for his fractures that could still, ultimately, clear both his parents of the suspicions surrounding them.'

59. Dr Craig undertook a range of different psychometric tests with each parent. She says that she was unable to diagnose any identifiable psychological difficulty or serious personality disorder in either parent.
60. Dr Craig spoke very positively about both parents and in particular the mother. She was extremely impressed by the way the mother responded to L which she described as 'extremely sensitive'. She did not agree with Mrs Barnett Jones and Ms Enock that the mother lacked empathy.
61. It is clear that Dr Craig was deeply sympathetic towards these parents. I have no doubt that it was her sympathy for them which led her to trespass into areas completely outside her field of expertise. Section 6 of her report is headed 'Health Issues'. This section concentrates exclusively on the medical issues considered by the court at the finding of fact hearing, ending with an invitation to the court that 'Perhaps it is, after all, time to revisit the N.A.I. question?' I have attached the relevant parts of Dr Craig's report as an appendix to this judgment.
62. The procedural rules governing the use of expert witnesses are set out in Part 25 Family Procedure Rules 2010.
63. So far as is relevant, the rules provides that,

Rule 25.3

(1) It is the duty of experts to help the court on matters within their expertise.

(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

Rule 25.10

(1) An expert's report must comply with the requirements set out in the Practice Direction 25A

(2) At the end of an expert's report there must be a statement that the expert understands and has complied with their duty to the court.

64. Practice Direction 25 is headed Experts and Assessors in Family Proceedings. So far as is relevant, the Practice Direction provides that

3.2 An expert shall have regard to the following, among other duties –

(a) to assist the court in accordance with the overriding duty;

(b) to provide advice to the court that conforms to the best practice of the expert's profession;

(c) to provide an opinion that is independent of the party or parties instructing the expert;

(d) to confine the opinion to matters material to the issues between the parties and in relation only to questions that are within the expert's expertise (skill and experience);

(e) where a question has been put which falls outside the expert's expertise, to state this at the earliest opportunity and to volunteer an opinion as to whether another expert is required to bring expertise not possessed by those already involved or, in the rare case, as to whether a second opinion is required on a key issue and, if possible, what questions should be asked of the second expert;

(f) in expressing an opinion, to take into consideration all of the material facts including any relevant factors arising from ethnic, cultural, religious or linguistic contexts at the time the opinion is expressed;

(g) to inform those instructing the expert without delay of any change in the opinion and of the reason for the change.

65. The letter of instructions to Dr Craig attached a copy of Practice Direction 25A. I asked Dr Craig whether she had read it. She told me she had. If that is so then I cannot begin to understand how she considered it appropriate to include in her report the passages I have appended to this judgment.
66. It was clear from Dr Craig's oral evidence that she was completely unrepentant about the fact that she had strayed into areas that are beyond her field of expertise. She said that she did not believe she had gone behind the factual investigation undertaken by the court. She did not think it had been unwise for her to comment on medical issues notwithstanding the fact that she has no medical training. She said that in her opinion the mother 'should not for life be landed with something she did not do'.
67. After Dr Craig had completed her evidence I was asked to make an order for the production of her original notes. I was concerned to be told that these had been destroyed.
68. The local authority, the Children's Guardian and the father all submit that the court should attach no weight to the evidence of Dr Craig. They submit that in trespassing so far beyond her field of expertise Dr Craig has shown not only her sympathy for but bias towards the mother.
69. It is plain that her opinions about medical issues fall outside Dr Craig's area of expertise, and by a very wide margin. Dr Craig told me that over the years she has written hundreds of reports for the court, including reports prepared in the capacity of expert witness. Her years of experience of writing expert reports make it the more surprising that she should, in this case, have trespassed so far beyond her remit.
70. Even leaving aside those parts of Dr Craig's report that are outside her field of expertise, the remainder of her report is less robust that I would expect of a psychological assessment. All of the other professionals in the case have felt let down by the inadequacy of Dr Craig's assessment. Ms Enock was very clear that if the court were to consider placing L back into his mother's care it would be imperative that a further psychological assessment be undertaken first.
71. I am satisfied that Dr Craig's sympathy for the mother, in particular, has led her to take her eyes off the task she had been given. I do not consider her assessment to be reliable. I have come to the conclusion that it would be unsafe for me to place any reliance upon it.

Dr Beaumont

72. Although Dr Craig's comments on L's health are outside her field of expertise, they were immediately seized upon by the mother and NT as support for their belief that the original medical investigation was inadequate, the expert medical evidence unreliable and the findings of the court flawed. On 14^th September, within days of reading Dr Craig's report, the mother issued an application for a 'direction for further investigation'. In her notice of application the mother says that,

'This matter returns before HHJ Bellamy on the 26^th September 2011. On this occasion the mother seeks directions for further investigation further to the report of Dr Olivia Craig and the issues raised therein. The mother will be seeking directions for a Vitamin D test, Calcium test and possible x-ray of L's wrists. Further investigation may also be sought…'

73. On 26^th September I agreed that NT could consult L's GP and that if he were of the opinion that there were clinical grounds for a consultant referral then such a referral could be made.
74. L was examined by his GP, Dr Beaumont, on 3^rd October. Following the consultation Dr Beaumont referred L to Dr Justin Huw Davies, a consultant in paediatric endocrinology in the University of Southampton. Dr Davies was unable to accept the referral. A referral was instead made to Dr Jeremy Allgrove at the Royal London Hospital, Whitechapel. There is disagreement between NT and Dr Beaumont about the reasons for this referral.
75. Having been informed of the consultant referral L's solicitor, Mr Tim Lewis, wrote to Dr Beaumont to ascertain whether the referral had been made on clinical grounds. On 4^th November 2011 Dr Beaumont replied saying

'…I can confirm that L was referred for a second opinion at the request of his guardian and mother. This was initiated on the basis of further investigation of possible parental concerns of pre existing bone fragility and it was not as a result of any new health concerns. The consultant chosen was recommended by a national expert in this field on the basis of his research and clinical background, and also for his medicolegal expertise.'

The reference to L's 'guardian' is a reference to NT.

76. Mr Lewis sought further clarification. This led to a second letter from Dr Beaumont in which he said,

'I can confirm that NT initially attended and requested a referral. There was then immediately informally a contact with L's mother and NT in the corridor regarding the wording of the referral that I declined to change (specifically with regard to requesting calcium blood tests). I suggested that the specialist would decide on tests based on the merits of the case as he saw it at the time.'

77. Dr Beaumont gave oral evidence. He said that he had seen NT and L on 12^th October. NT had asked for a consultant referral. She asked for a referral out of the Coventry area because the parents had lost faith in Coventry hospitals. In particular, she had wanted L's calcium and Vitamin D levels checking. She felt that an abnormality in L's calcium level may have affected the interpretation of his injuries.
78. Dr Beaumont was very clear that the referrals to Dr Huw Davies and Dr Allgrove were not made on clinical grounds but at the request of NT. He had gone along with what she asked him to do. The consultant referral was a private referral. He well-remembered that fact because the nature of the patient list at his practice is such that private referrals are rare. Had the request been for an NHS referral for investigation he would probably have declined the request. Had he been told that L was being given Vitamin D supplements he would have told NT that further tests would be pointless.
79. Whilst dealing with maternal family's ongoing concerns about L's health it is appropriate to note that shortly before the finding of fact hearing concerns arose about L's gait. He was referred to Mr C E Bache, a consultant orthopaedic surgeon at Birmingham Children's Hospital. In a letter to the local authority dated 6^th July, Mr Bache said

'Thank you for your letter regarding this young man. I understand that he was a case of non-accidental injury and had a number of fractures, although these were not treated at our institution. He was referred to me because he was toe walking. I could not find any evidence of abnormality when I examined him. His limb lengths were equal and his legs were straight. I did perform an X-ray of his pelvis to make sure that there were no malunited proximal femoral fractures or signs of hip dislocation and I am pleased to say that the X-ray of his pelvis, hips and lower lumbar spine are normal…'

The Resolutions Child Protection Consultancy

80. The fact that the mother does not accept the findings made by the court makes risk assessment problematic and rehabilitation difficult. Work undertaken by the Resolutions Child Protection Consultancy ('Resolutions') addresses this issue squarely. Resolutions has developed a therapeutic approach to working in child protection cases where a child has been injured and parental denial is an issue. During the course of this hearing counsel for the mother, Miss Elizabeth Isaacs, sought permission to obtain an indication from Resolutions about whether there are sufficient grounds to justify a viability assessment to determine whether, in this case, the use of the Resolutions approach may be appropriate. I gave permission.
81. That piece of work was undertaken by Mr Colin Luger. Mr Luger is an independent systemic psychotherapist specialising in complex child protection matters within the court system where parental denial is a principal concern. The parties agreed and I approved a number of questions to be put to Mr Luger. I have his written response to those questions. Mr Luger has also given oral evidence.
82. Mr Luger explained that the major factor in Resolutions work is

'…the presence or absence of what I call "helpful adults", these being safe trusted members of a parent's network be they family, friends or members from a church. These are people who would not only participate in a Resolutions viability assessment but who would commit themselves to being available for any work that followed, and most importantly being part of the support network around the parent and child if the child were to be cared for by that parent. I appreciate that in this matter the most significant helpful adult from GT's point of view is her mother, NT, who has figured very significantly in this matter (when in the UK and when in Ireland), and who currently cares for L. Whilst I acknowledge NT's major role in GT's and in L's life, in my work I seek to broaden the network so that there are more people who can play a supportive role (to spread the load) and more importantly to bring their own ideas into the assessment and into the work. As a systemic psychotherapist I am interested in how material and emotional support may be provided to a family in this situation. Ideally I like there to be at least three but ideally more "helpful adults" of both genders, different generations and relationship - a mix provides a breadth of ideas and narratives.'

83. The mother and L would need to be seen by one member of this group at least once a day. It follows, therefore, that the smaller the support group the more difficult it would be to pursue the Resolutions model. It was clear that Mr Luger is concerned about the mother's ability to put together a suitable group of people. I noted earlier the concerns expressed in the parenting assessments about the mother's limited support network. Although the mother does not accept that to be the case, it is clear that she will struggle to find more than three people locally who are able to offer the kind of challenging and intense support envisaged by the Resolutions approach.
84. That is not the only problem. All counsel accept that the psychological assessment undertaken by Dr Craig is simply not good enough as a basis for the Resolutions work. There would need to be a more rigorous psychological assessment by a different psychologist. That assessment would need to include NT so that Mr Luger can better understand the dynamics of the relationship between mother and grandmother. Enquiries by mother's legal team suggest that a minimum of six weeks would be required for such a report. Mr Luger would not be able to complete his viability assessment until at least two weeks after the psychological assessments are available.
85. The earliest date by which Mr Luger's viability assessment could be completed is mid February. The cost would be around £2,500. As that piece of work would be assessment and not therapy the cost could be a charge on the mother's public funding certificate. If positive, the viability assessment would move on to the next phase. The next phase could take twenty weeks to complete. The work involved would predominantly be therapy and not assessment and would not, therefore, be covered by the mother's public funding certificate. That piece of work would cost around £8,400. The local authority is unwilling to fund it. It is unclear how it could be funded. Even if it could be funded there is no guarantee that the outcome would be a positive outcome from the mother's perspective. The only thing that can be said with confidence is that if the viability assessment proceeds to the second stage then the outcome will not be known before, at best, August at which point, whatever the outcome, a further hearing would be required.

The local authority's final care plan

86. The local authority accepts the concerns raised about the mother in the assessments of Mrs Barnett Jones and Ms Enock. It is particularly concerned about the risk of future emotional harm. Miss Bilkhu made the point that whereas the risk of physical harm can be managed, managing the risk of emotional harm is more difficult.
87. The local authority also has concerns about NT. Although NT says that she accepts the findings made by the court, there is concern about whether she does genuinely accept them. Her recent consultations with Dr Beaumont and her request for further investigations lead the local authority to be concerned not only about her acceptance of the court's findings but also about the level of trust it thought it had built up with her.
88. Although Ms Bilkhu has been the allocated social worker since June 2010 she said that she doesn't feel she knows the mother and NT any better now than she did at the beginning. In contrast, the father is now 'more open, chatty and relaxed' with her. Whereas the local authority has concerns about the mother and NT, it has no concerns about the paternal grandparents.
89. The final care plan recommends that L should move into the primary care of his father and paternal grandparents under a joint residence order, spending five nights a week with the father and two nights a week with NT and the mother. It is proposed that this be achieved on a phased basis over a period of six weeks. In the local authority's judgment although there is no longer a need for the father's contact to be supervised there is and will remain for the foreseeable future a continuing need for the mother's contact to be supervised. The local authority proposes that contact should now be what it describes as 'loosely supervised' by which it means that NT must be in the house when the mother has contact though not necessarily in the same room. The local authority will provide ongoing support and advice in respect of the supervision of contact.
90. This plan represents a radical departure from the present arrangements for L's care. It is common ground that L is securely attached to NT. She has been his primary carer for more than half of his short life. In her final written statement and in her oral evidence, Ms Bilkhu outlined the local authority's reasons for proposing such a radical change. She is concerned that the mother is in denial. She is concerned about the mother's ability to work openly and honestly with the local authority. She is concerned that the mother will involve L in unnecessary medical investigation and treatment. She is concerned about the mother's ability to promote contact between L and his paternal family. She is concerned about the narrative the mother will give to L as he grows older.
91. As for NT, Ms Bilkhu says that,

'12.6.6 The Local Authority are clear that NT has provided very good care to L, and has not caused the Local Authority to be concerned in respect of this. She has been trusted by the Local Authority to supervise GT's contact, and there has been no reason to believe she has breached any further Working Agreements. It is recognised by the Local Authority that NT has changed her life to be here and support her daughter and Grandson, and there is no doubt that she would ever cause any harm to him…

12.6.8 However, although NT is deemed to be able to meet L's needs there are ongoing concerns more recently about whether she really believes or accepts the findings of the Judgement of April 2011, whether she would flee to Ireland with L, whether she would support her daughter in seeking further medical tests on L and whether she would place L's needs above that (sic) of her daughters long-term…'

The mother

92. The mother is 33 years old. She is single. She was born in Dublin. When she was one year old her parents moved to live and work in Scotland. Her parents separated when she was 15. She moved to live in Coventry when she was 24. She studied for a degree in English Literature. She graduated in 2007 with a 2:1 degree. She supported herself through university, obtaining part-time employment. It was there that she met the father.
93. L is the mother's only child. All the assessments that have been undertaken over the last eighteen months acknowledge that her basic care of L is of a high standard. He is securely attached to her. There is a strong mutual bond of love and affection.
94. The local authority became involved with this family in March 2010 following L's admission to hospital. At the insistence of the local authority it was agreed that when L was ready to be discharged from hospital he should be cared for by NT in the mother's small terraced property and that the mother would move out. The mother is aggrieved by that decision. She feels that she should have been allowed to continue caring for L under her mother's watchful eye.
95. The mother strongly disagrees with the local authority's final care plan. She accepts that NT should continue to be a primary carer for L. She seeks a joint residence order in favour of herself and her mother. She accepts that professionals consider her to be a risk and that, as a consequence, her involvement in L's care must continue to be supervised. However, she does not accept the findings made by the court in April 2011. She believes that there has been a miscarriage of justice. She denies responsibility for causing any of L's injuries. If L's injuries were non-accidental injuries, as the court has found, then the father must have been the perpetrator.
96. The mother is very open about the fact that she continues to hold significant doubt about whether the fractures were non-accidental in origin. She continues to believe they were the result of an undiagnosed medical condition. She remains critical of the investigations that were undertaken whilst L was in hospital. She regards the conclusions of the medical experts as unreliable.
97. I have already noted that upon receipt of Dr Craig's report the mother issued an application for permission for further tests to be carried out. She explains that decision in her final written statement. She says that,

'24. …it is correct that on 26 September 2011 I made an application for tests to be carried out on L…This application was made on the back of Dr Olivia Craig's report that she raised further concerns about L's health. I am aware that professionals consider that Dr Craig has talked completely outside her remit. However, the fact that these issues have been raised by a professional who has observed L is concerning to me. I am L's mother and of course if somebody raises a concern with regards to him, medical or otherwise I would of course want this to be looked into to ensure that L is okay…

'26. A Vitamin D test has never been done. Also, there is an indication that the last time a Calcium result was available for L, it was shown to be low. Due to the concerns raised by Olivia Craig about L's wrists, I considered x-rays for his wrists also. The tests all relate to the condition of Rickets, which is something that has been mentioned at various times throughout these proceedings. I did not apply for any tests relating to any other condition. I wanted to know exactly what L's health needs are now which is the reason why I made the application. If my son does have low Vitamin D and/or Calcium then I consider it important to know about it so that this can be treated…However, I would never expose my son to any medical treatment or investigations that were considered unnecessary…'

The mother gave the same message in her oral evidence. She remains concerned about L's health.

98. The mother is critical of the parenting assessments. She does not believe that either of the assessors has been even-handed in their approach. She believes they have treated the father more favourably. She had wanted an independent parenting assessment because she had expected the local authority's assessment to be one-sided and unfair. However, she is now equally concerned about the independent assessment undertaken by Melinda Enock. That assessment, too, is one-sided and unfair.
99. One of the issues of concern raised by the assessments is the mother's lack of empathy, in particular with respect to the pain L must have experienced at the time of the fractures. In her oral evidence the mother repeatedly made the point that although the medical evidence is that L would have suffered considerable pain at the time the fractures occurred, she had not seen him in pain. She said 'I didn't see evidence that L was in pain. I am not saying that he wasn't in pain but I didn't see it'.
100. The mother was challenged about her attitude towards L's removal to Ireland in March 2010. In an earlier judgment I found that she was the prime mover in his removal. At the time of his removal L was only two months old. The mother was still breast-feeding him. She was asked whether she now thought it wrong to have agreed to L being separated from her. She said she found it difficult to say. She said that she had believed she was doing all that she could to help her baby: 'I did what I felt was right. I felt L should have had a better medical examination…I felt he should have tests. What I did was morally right.'
101. The mother believes that L feels closer to her than he does to his father. Although she acknowledges that he enjoys his contact with the paternal family she does not accept that overnight contact has gone well. She thinks L is too young for overnight contact. Overnight contact should stop for the moment, and restart when L is older. If overnight contact must take place then the mother asks 'Is there a possibility of my Mum going to BR's house to put L to bed?'
102. The central theme of the mother's oral evidence was of her plea for fairness. She said 'What I want is fairness…I am willing to do whatever it takes. All that I ask is for fairness'.

The father

103. The father is 36 years old. He is divorced. He and his former wife, PC, have three sons, C (aged 10), R (aged 9) and D (aged 5). The father has a residence order in respect of C. PC has residence orders in respect of R and D. The children spend weekends together with each parent alternately.
104. The father is part of a Sikh family. He is one of six children. He and C live with his parents. TR, one of his five sisters, also lives there.
105. The father took two weeks paternity leave when L was born and also two weeks annual leave. Though still living with his parents and C, he slept at the mother's home several nights a week. He had tried to juggle his responsibilities as father of L, resident parent for his oldest son, C, and full-time work.
106. The father is no longer working. He says that since becoming unemployed he has had the chance of work but that he wants to put L's needs first. Until the outcome of this hearing is known he does not consider it appropriate to take up employment.
107. During the course of these proceedings the father's relationship with the mother has ended. Although they remain on reasonable terms with each other the relationship has been more difficult since the father indicated that he intended to seek a residence order in respect of L.
108. The father accepts that he was party to and gave his consent to the plan that NT should take L to Ireland. He now says that he was manipulated by the mother into giving his consent. Whilst I do not accept that he was manipulated I do accept that it was the mother's plan, to which the father gave his agreement. The mother was the more dominant partner in their relationship.
109. The father has had regular contact with L since his return to England in August 2010. Initially that contact was supervised by the local authority. Since July 2011 his contact with L has been supervised by his parents. He has had contact every afternoon. For the last four weekends he has also had overnight contact from 2.30pm Friday until 5.30pm Saturday. The overnight contact has gone well. L has gone to sleep without difficulty and has woken up happy in the mornings.
110. The father supports the local authority's final care plan. He is concerned that the mother does not accept the court's findings. He is concerned about NT's ability to prioritise L's needs over her daughter's needs. He is also concerned about the risk of L being removed from the jurisdiction. He believes that he is able to offer L a safe and stable upbringing surrounded by close family and his half-siblings. He has a lot of support from his family. He says that he can

'rely on them all to help me out whenever I may need it. With assistance from my parents, I can ensure that L is not at risk of any harm and is allowed to grow up as a normal, healthy boy. There have been no significant concerns raised about my ability to care for L from any of the assessments. I have successfully parented three other children without concern and proved that I can meet L's needs both physically and emotionally.'

Maternal grandmother

111. After L's return to England the local authority undertook a risk assessment of NT. The primary focus of that assessment was whether NT could be trusted not to remove L from the jurisdiction. That assessment informed my decision in December 2010 that it was safe for NT to begin to have unsupervised contact with L. L was returned to NT's full-time care on 31^st May. Since that rehabilitation began last December, NT has repaid the trust the court has placed in her. She has complied rigorously with working agreements. She has supervised the parents' contact with L diligently. She has met L's basic care needs to a high standard. She has been L's primary carer for more than half his life. Although L has good attachment to both parents and to all three grandparents, NT is his primary attachment figure. None of this is in dispute.
112. NT's position is that L looks on her as the constant person in his life. She believes that she should remain L's primary carer and that there should be either a residence order in her favour. Her secondary position is that there should be a shared care arrangement between the two families with L dividing his time equally between them. This is very much a last resort. She does not believe that a shared care arrangement would be in L's best interests.
113. NT does not agree with the local authority's assessment that overnight contact has gone well. In her opinion it has made L anxious, clingy and unsettled. She believes that overnight contact has been introduced too soon and that, for the moment, it should be stopped. However, she also accepts that if she is to remain L's primary carer then the paternal family should have generous contact. She said that contact 'should be as close as possible to 50:50'. It was not clear how that would work if there is to be no overnight contact.
114. The current arrangement whereby NT lives in GT's home whilst GT stays at a hotel is plainly an arrangement that is not sustainable in the longer term. NT believes that it is now time to consider allowing GT to move back into her own home. This should be done gradually.
115. The local authority has raised concern about the risk of NT taking L back to Ireland. NT assures me that she has no intention of doing so and is surprised that others still consider this to be an issue. I am satisfied that the risk of flight by NT is low. However, this issue does raise some interesting insights into NT's perspective on her removal of L to Ireland in March 2010.
116. In her assessment report, Ms Enock says that,

'11.27 One of the aspects of this case that I have really struggled with, are some of the decisions made by GT and her mother. They are two highly intelligent women yet by taking L off to Ireland, disobeying the order of the Supreme Court in Ireland to return L, which effectively resulted in a siege situation…they have made a difficult situation worse. I am not sure that GT, or indeed her mother fully understands the detrimental effects of their actions.'

NT says that she now regrets going to Ireland. However, it was clear that she did not accept that the family should be held wholly responsible for that decision. As between the family and the local authority she said that 'perhaps there were wrongs on both sides'. She was asked if she had tried to dissuade the parents from their plan that she should take L to Ireland. She could not remember whether or not she had. She was, though, clear that 'they made the decision'.

117. Like GT, NT is concerned by the issues raised in Dr Craig's report. She is in no doubt that they called for a response. She says,

'I have tried hard to keep an open mind throughout these proceedings and faced and accepted some difficult times and decisions, especially the Court Judgement at the Finding of Fact hearing. Olivia Craig's comments raised some questions about the current state of L's health. As his main carer and supported by BR and GT I felt duty bound to have L's health checked. At the appointments with Dr Beaumont I was not thinking 'clinical' or 'forensic'. I was a grandmother looking after my grandson. After all I had been giving him Vitamin supplements since he had come into my full-time care. I made sure that L spent time out in the sun. I was keen to know the current state of L's health.'

118. NT is perplexed by the reaction to her recent visits to see Dr Beaumont. She says she had not understood that I had said that any consultant referral must be on clinical grounds alone. She was surprised to hear Dr Beaumont say in evidence that had her request been for an NHS referral he would not have made it. NT says that 'at no time did Dr Beaumont say that he did not see the need for having L tested or referred. Had he done so the matter would have ended there'.
119. I accept that NT may not have understood the limitations I imposed upon her consultation with Dr Beaumont. I accept that she was not attempting deliberately to flout the directions of the court. Indeed, I accept that she has acted with complete integrity since she came back to England in August 2010. However, the referral to Dr Beaumont does nonetheless highlight some relevant issues so far as concerns NT's perspective on L's health.
120. NT had intended to persuade Dr Beaumont to make a consultant referral on a private patient basis. She accepts that she told Dr Beaumont that the parents had no confidence in the Walsgrave Hospital (where L had been treated in March 2010) and would not want L to be referred there. She remembers talking to Dr Beaumont about the findings made by the court and telling him that GT believed that L's injuries had a medical cause. She says,

'I remember saying that no-one involved would want L going on in his life with anything wrong with him and that I wished to know what the state of his health was now. I told Dr Beaumont the things I notice about L – his clicking joints and the shape of his legs. I showed him the photographs of his legs.'

121. NT was asked whether she had tried to dissuade the mother from making an application for permission to undertake further tests and x-rays. She said she didn't think she had.
122. There are lingering concerns about whether NT genuinely accepts the findings made in respect of her daughter. Ms Enock, for example says,

'11.26 I am not convinced that NT accepts the Judgement. I am not totally convinced that she would necessarily prioritise L's needs over her daughters' given her views.

NT is insistent that she does accept the court's findings, including the finding that the mother alone was responsible for causing the humeral fracture. She said that she was 'beginning to come to that view before the end of the finding of fact hearing'. She understands the link between accepting the findings and her ability to protect L against the risk of further harm. Her position is that the proof of her acceptance of the findings and the risks lies in the fact that she has complied diligently with the Working Agreements and has worked co-operatively with the local authority.

123. Both assessors noted the strength of the relationship between NT and her daughter. Mrs Barnett Jones says that,

'47. There is no doubt and it is palpable that GT and NT have a very strong and close relationship. NT is very protective of GT and so is GT of her mother.'

She says that she has

'123. …little doubt that NT would be wise to any risk of physical harm to L. She advised that she knows there is a risk and that she keeps one eye on the past as she also looks to the future…

124. …we are impressed by the sincerity of her commitment to keeping L safe…'

124. However, the strength of their relationship also causes the local authority some concern; in particular a concern that NT will find it difficult to prioritise L's needs above her daughter's needs. Mrs Barnett Jones deals with this issue in her assessments. She says that

'123. …NT advised us that it was not her role to judge and condemn GT but to assist GT to become the parent she wants to be with L and she will play whatever role is required.'

She goes on to say that she is

'124. …concerned as to [NT's] continued determination to ensure that GT's needs and wants are also fulfilled.'

NT was asked whether she had ever challenged her daughter about the findings made by the court. She said that they had had 'some limited discussion about the judgment'. However, she said that there is a limit to the number of times she could challenge her daughter. She said, 'I am in a very difficult position as a mother'.

The paternal grandparents

125. PGM and PGF are L's paternal grandparents. PGF came to England from the Punjab region of India in 1965 and PGM in 1967. They were married in 1971. They have lived in their present home since 1975. They have six children and eight grandchildren, of whom L is the youngest.
126. As soon as L was returned to England, PGM and PGF put themselves forward as possible carers for L. The local authority undertook a viability assessment. That assessment was positive. A Friends and Family Foster Carers assessment was then undertaken. That, too, was positive.
127. After the finding of fact hearing the local authority undertook a risk assessment of the paternal grandparents. The primary focus of this assessment was to consider whether it would be safe to permit them to supervise the father's contact with L. The assessment concluded that they had a good understanding of the facts found by the court and of the need to protect L from the risk of further harm. They understood that because of this it was necessary for them to supervise the father's contact.
128. Since that last assessment the paternal grandparents have supervised the father's contact with L. No concerns have been expressed either by them or by the local authority. They told me that from their perspective the recent overnight contact has gone well. L has settled off to sleep without difficulty. He has had undisturbed nights. He has woken happy and cheerful in the morning.
129. PGF and PGM gave oral evidence. Both came across as warm, caring and gentle people. They support the local authority's plan that L's primary home should be with them. They want to care for him. They assured me that they understand the need to protect him and keep him safe. They assured me of their willingness to work openly and co-operatively with the local authority. They were uncomplicated and impressive witnesses.

The Children's Guardian

130. The Children's Guardian ('the guardian') is Mrs Karen Hughes. Mrs Hughes was appointed shortly after the proceedings had been issued. By then L had been removed to Ireland. He was returned to England in August. It was more than a year after his return before the guardian first met him.
131. The guardian has only visited NT's home twice, once in 2010 and once in 2011. The second of those visits was shortly before this final hearing. She has met the mother and NT at court on many occasions though whereas NT has acknowledged her, GT has ignored her. Given that evidence I found it curious to hear the guardian say that her meetings with the family 'have centred around court'.
132. The lack of visits from the guardian was an issue that concerned both the mother and NT. It was also an issue that has been of concern to the court. I commented upon this in my judgment of 6^th December 2010. NT asked the guardian whether her views may have been different if she had made more visits. The guardian accepted that the more visits that are made the more information is gleaned and that in this case that 'may have been helpful'.
133. The guardian has come to the conclusion that it would not be safe for L to reside with his mother. She is concerned about the mother's lack of empathy. She says that the mother 'lacks any ability to view things from L's perspective'. She is concerned that if returned to his mother's care 'L would be at risk of exposure to unnecessary medical intervention, perhaps throughout the rest of his childhood'.
134. The guardian is also concerned about the future relationship between L and his paternal family if he remains in the care of his mother and grandmother. She says that

'39. Neither maternal grandmother nor mother appears to recognise L's positive relationship with his father and paternal family. Since father has stated a wish to care for L they have treated him and his family in a negative way for example I observed mother and maternal grandmother corner father in a stance that was aggressive, after a recent Court Hearing…The two women, a number of times stated that L needs his mother and maternal grandmother. There was no acknowledgement of him also needing his paternal family.'

135. The guardian says that she has found the father and his parents to be more open with her. She has no concerns about their capacity to care for L. They do not hold the medical concerns held by GT and NT.
136. In both her written report and at the end of her oral evidence the guardian expressed the view that L should have a clear primary residence and that that should be with his father and paternal grandparents. She believes that L's transition to his paternal grandparents' home 'would be extremely easy'. She recommends a joint residence order in favour of father and paternal grandparents, supported by a supervision order for one year.
137. What is not fleshed out in the guardian's final report is her view about the nature and extent of L's future contact with his mother and grandmother. In her oral evidence she said that this should be 'substantial'. When this was teased out it appeared that the guardian is perhaps more open to a shared care arrangement than may at first appear. She said that the 'ideal' would be for L to spend four nights a week with his paternal family and three nights with his maternal family. However, it appears that a shared care arrangement is more a future aspiration than something that would be in L's best interests at this point in time.

Health Visitor

138. This welfare hearing was listed for four days from 28^th to 30^th November and on 7^th December. The parties subsequently sent in their closing submissions in writing. I agreed to hand down judgment on 19^th December. On 12^th December the local authority issued an application for permission to re-open its case in order that the court might hear evidence from L's health visitor, HM. I agreed to hear that application on 19^th December. Although early indications were that the application would be opposed, in the event it was unopposed. I heard evidence from the health visitor yesterday.
139. On 2^nd June the Health Visiting Service was made aware of L's placement in NT's full-time care. HM was allocated as his health visitor. She made a transfer-in home visit on 29^th June. She had no further contact with the family until 6^th December. Given the safeguarding concerns in this case, I find that surprising. The health visitor knew that L had spent some time in foster care. However, she said that she knew almost nothing of the background detail. She had not seen (and still has not seen) the judgment I handed down at the conclusion of the finding of fact hearing. She does not even know what findings I made. She is unaware of the expert medical evidence in the case. Working Together to Safeguard Children – A guide to inter-agency working to safeguard and promote the welfare of children (March 2010) makes the point that:

'2.12 Effective information sharing underpins integrated working and is a vital element of both early intervention and safeguarding.'

I find it troubling that in a case such as this, where safeguarding is a real concern, that the local authority appears to have given only the barest detail to the Health Visiting Service and that the Health Visiting Service appears not to have sought out further information.

140. The guardian has recently become concerned that L's speech may be delayed. She advised the mother and NT to consult their health visitor. This she did. Concerns have also been expressed about the fact that L is not up to date with his immunisations. It was known that there was disagreement between the parents about L having further immunisations. That, too, was a matter upon which it was appropriate for the parents to take advice from their health visitor.
141. The health visitor met with the mother and grandmother on 6^th December to discuss L's speech delay and then later that day she met with both parents to discuss L's immunisations. She wrote up her notes later that day. Although the original notes have not been produced I was told that they form the basis of her written statement dated 13^th December.
142. Although I am critical of the lack of appropriate information sharing, in terms of the health visitor's meeting with the mother and grandmother on 6^th December the fact that so little background information had been provided to her has one positive advantage. It cannot be said that the health visitor was looking for, misinterpreting or putting a spin on comments made by the mother and NT in order to support the local authority's case because she had no knowledge of the local authority's current concerns.
143. So far as is relevant, the health visitor's note of her meeting with the mother and NT states:

'06/12/2011 (11.44) Home visit by Health Visitor. Mother, Maternal Grandmother and L present. L happy sociable little boy happy to approach Health Visitor during visit. Observed running around and climbing on sofa. Now aged 23 months. Babbling and making appropriate animal sounds to pictures in book and engaging when spoken to. No parental concerns regarding hearing. Speech a little delayed as not saying any clear words. Discussed encouraging speech at home and not responding to gestures. Also encouraged to consider play and stay sessions at local children's centre for more social interaction. Mother not happy about leaving L in nursery. Health Visitor clarified that at play and stay session parents stay with child…Maternal Grandmother raised issues of past events and reason for current court hearing. Maternal Grandmother stated she probably shouldn't be discussing it with the Health Visitor but both her and the Mother feel further investigations could be done regarding possible problems with L's bone. Mother reports she sometimes feels L's wrists clicking when holding his hands and audible clicks heard from his hips. L has had a hip scan in the past, the findings of which were normal. Maternal Grandmother reports she has seen the GP who was willing to make a private referral but then this has not been taken any further due to legal proceedings. They have issues with the Paediatrician who cared for L whilst at UHCW and do not wish to go to that hospital again. Advised not appropriate for Health Visitor intervention as L is already under consultant care therefore Health Visitor suggested they discuss their concerns with social worker and legal representation if they feel investigations have been missed…'

144. Given her lack of knowledge of the history and the current concerns about medical investigations and tests, her note of what was said would be quite extraordinary if these points had not in fact made to her at that meeting. NT makes the point that since she was due to give evidence the very next day she would not have been so unwise as to make such points to the health visitor. Whilst I see the force of that point, that raises an issue about who made the comments noted down by the health visitor not whether the comments were made at all. I am satisfied that those comments were made. The health visitor accepted that she did not record the precise words said and who said them. It is possible that comments she attributed to the grandmother were in fact made by the mother though I note that the health visitor was very confident that some of the comments attributed to the grandmother, for example the comment 'I probably shouldn't be discussing this with you', had been made by the grandmother.
145. The essential gist of what was said at that meeting is entirely in keeping with the concerns raised by the mother in the wake of Dr Craig's report and by the grandmother in her discussions with Dr Beaumont. The belated evidence from the health visitor adds nothing new to the picture which emerges other evidence. It does, though, give added colour to that picture.

The law

146. The approach to the welfare aspect of this case is set out in s.1 Children Act 1989. In determining the arrangements for L's future care his welfare must be the court's paramount consideration (s.1(1)). In determining what is in the best interests of his welfare the court must, in particular, have regard to the factors set out in s.1(3), the 'welfare checklist'. The court must at all times have in mind the general principle that any delay in determining L's future is likely to prejudice his welfare (s.1(2)). The court must also have regard to Article 8 rights. In this case I am satisfied that that means not only the Article 8 rights of L and his parents but also those of NT who has been L's primary carer for most of his life. The court must endeavour to arrive at an outcome that is both proportionate and in L's best interests.
147. For the local authority, Miss Gibbons relies upon a recent decision of the Supreme Court in Re B (A Child) [2009] UKSC 5. In giving the judgment of the Court, Lord Kerr gave a reminder of the approach to be adopted by the court when dealing with private law disputes. He said that

'36. …The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained in J v C [1970] AC 668, 711, this means that it "rules upon or determines the course to be followed". There is no question of a parental right.'

37. …All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child's best interests. This is the paramount consideration.'

148. In this case much is made by the mother and NT of the fact that L has spent more than half his life with NT and of the need to maintain the status quo. In Re B, though maintaining the status quo by leaving the child in the primary care of his grandmother, Lord Kerr expressly made the point that the status quo 'will not always command the importance that must be attached to it in the present case…' It is clear that the weight to be attached to the status quo depends upon the circumstances of the case. It is simply one of the factors to be borne in mind when discharging the statutory obligation to ensure that the child's welfare is the paramount consideration.

Discussion

149. Having outlined the approach the law requires me to take, I begin my assessment by considering each of the factors set out in the welfare checklist in s.1(3).
150. Section 1(3)(a) requires the court to take account of L's wishes and feelings, considered in the light of his age and understanding. L is too young to be able to express his wishes and feelings. NT has been his primary carer for more than half of his life. It is reasonable to suppose that if he were able to express his wishes and feelings it is likely that he would say that he wants to remain in her care.
151. Section 1(3)(b) requires the court to take account of L's physical, emotional and educational needs. Notwithstanding the mother's conviction that L may be suffering from rickets or some other as yet undiagnosed medical condition, I am satisfied that L's physical needs are the same as those of any other child of his age. Though not yet of school age there is no reason to believe that L is likely to have any special educational needs.
152. There is, though, good reason to believe that L is likely to have particular emotional needs. His life story so far has been very different from that of most children of his age. At some stage he will need to make sense of his experiences. Responsibility for helping him to do this should not be left to his parents. He will need professionally delivered life story work. The local authority has agreed to provide this. He also needs to understand that he is a normal, healthy little boy and to be protected from the concerns of some of the adults in his life that he is a sick child.
153. Section 1(3)(c) requires the court to take account of the likely effect on L of any change in his circumstances. In light of the local authority's final care plan for L, this is a significant issue in this case. Although L has had regular contact with his father and paternal grandparents, that has only recently included overnight contact and even then for only one night a week. GT and NT both say that L has been unsettled by overnight contact, that it has not been in his best interests and that, for the moment at least, it should stop. The father and his parents say that overnight contact has worked well; that L has quickly settled and made himself at home.
154. For a child of L's age, the introduction of overnight contact can upset a child's established routine and, at least initially, can be unsettling. The child and the adults need time to adjust to this change. All of this is quite normal. I am satisfied that the overnight contact that has taken place thus far has gone well and that there is no reason to stop it. However, the local authority's final care plan is much more radical. It proposes that father and paternal grandparents should be L's primary carers and that the present care arrangements should be reversed so that L spends two nights a week with NT and five nights a week with his father and paternal grandparents. The professional evidence suggests that such an arrangement would be in L's best interests and that he is unlikely to have difficulty coping with the transition. In the guardian's opinion the transition 'would be extremely easy'. The mother and NT strongly disagree.
155. The paternal grandparents' home is a busy home. The father, one of his sisters and his oldest son, C all live there. C's brothers spend alternate weekends there. The extended family – the father's other sisters and their children – are regular visitors. The evidence suggests that L is a very sociable little boy who enjoys all of this company. I am satisfied that it is likely that L would cope with the transition without significant difficulty, particularly if the adults were focussed on helping him to adjust. However, the fact that it is likely that he would make the transition without undue difficulty does not mean that the local authority's care plan is necessarily in L's best interests.
156. Section 1(3)(d) requires the court to take account of L's age, sex, background and any characteristics of his which the court considers relevant. Of particular importance under this heading is the fact that L is of dual heritage. He needs to be given the opportunity to experience and engage with both sides of his cultural and religious heritage.
157. The local authority has expressed concern that if L remains in the care of NT and his mother there is a risk that they will not promote his relationship with his paternal family. Questions have been raised about whether they do genuinely appreciate the significance, for L, of the fact that he is a child of dual heritage.
158. In my judgment the local authority's concerns are overstated. These proceedings – and in particular the findings made in April, the local authority's final care plan and the father's recent indication that he puts himself forward as L's primary carer – have created some understandable tension between the two families. However, to read into that tension some underlying lack of understanding on the part of the mother and NT of the importance of L knowing, understanding and experiencing his dual heritage is to press the evidence too far.
159. Section 1(3)(e) requires the court to take account of any harm which L has suffered or is at risk of suffering. Although the issues for determination are predominantly private law issues, it is important not to lose sight of the context in which those issues are being determined. The context is that of public law proceedings begun by the local authority as a result of L's presentation at hospital on 3^rd March 2010 with multiple fractures. I have found those fractures to be non-accidental injuries. The issue of risk is central to determining the arrangements for L's future care.
160. I have found the mother to have been responsible for the humeral fracture. She does not accept that finding. Faced with that denial the assessment of risk is difficult. The local authority's case, supported by the guardian, is that mother presents an ongoing risk. I am satisfied that she does.
161. I was unable to identify the perpetrator of the metaphyseal fractures. I found that either parent could have caused them. The father, too, must therefore be viewed as presenting an ongoing risk.
162. L is also at risk of suffering emotional harm. I have already made the point that L will need professional life story work in order to understand his early life experiences. I am in no doubt that he is at risk of suffering emotional harm if the adults in his life feed him significantly different accounts of those early life experiences. He is also at risk of suffering emotional harm if he is subjected to unnecessary medical tests and investigations or if he is led to believe that there is something medically wrong with him and that he is not a 'normal' child. In my judgment, in this case the risk of emotional harm is not theoretical or fanciful; it is real and actual, a risk that cannot safely be ignored. Although I find that the mother is the primary source of this risk I am unable to exclude NT as a possible source of risk so far as concerns the problem of 'medicalising' this child.
163. Section 1(3)(f) requires the court to consider how capable each of L's parents, 'and any other person in relation to whom the court considers the question to be relevant', is of meeting his needs. In this case it is appropriate for the court to consider the capability of the maternal grandmother and the paternal grandparents as well as the capability of the parents.
164. The mother believes that she is the victim of a gross miscarriage of justice. From the moment L was admitted to hospital she has been absolutely convinced that his injuries are the result of an underlying and as yet undiagnosed medical condition. She is as convinced of that today as she was at the time of his admission to hospital. She has undertaken many hours of research both on the internet and in university libraries. She believes that further medical investigations should be undertaken. She is reinforced in that view by the comments made by Dr Olivia Craig. Those comments prompted the mother to make an immediate application to the court for permission to subject L to further tests and investigations.
165. I am satisfied that unless such investigations are undertaken the mother's position will not change. I am equally satisfied that if such investigations were undertaken the mother would not accept the results unless they supported her conviction. This is an all-consuming issue for her. It has become her obsession. Her position is rigid, entrenched and, in my judgment, unlikely to change in the foreseeable future.
166. That is the background against which two parenting assessments have been undertaken, one an in-house assessment by the local authority's Community Based Assessment Service and the other an assessment by an independent social worker chosen by the parents. The mother seeks to persuade me that the assessors have not been even-handed, that they have taken points with her that they did not take with the father, and that as a result their assessments have been unfair.
167. I do not accept that there has been anything unfair or unprofessional in either of these assessments. The assessors approached the case, correctly, on the basis that whereas the father is a possible perpetrator of serious physical injury to this child, the mother has been found by the court actually to have caused him serious physical injury; that whereas the father accepts the findings, the mother does not; that whereas the father accepts that he must be considered a risk, the mother does not. I am satisfied that the problem with the assessments relates to the mother and not to any flawed approach on the part of the assessors. The real problem is that this mother simply cannot tolerate being challenged. Unless she is in control of the agenda her engagement with professionals is perfunctory. Although the mother says that she has co-operated with professionals and complied with working agreements, I am satisfied this has been no more than 'disguised compliance'.
168. Although there is common agreement that the mother is able to meet L's basic care needs to a high standard, there are very real concerns about her ability to meet the full range of his needs.
169. On behalf of the mother it is proposed that I should adjourn this hearing and give permission for Resolutions to undertake a viability assessment, to be informed by a further psychological assessment by an alternative expert. If the viability assessment is successful then it is proposed that there be a further adjournment whilst the Resolutions approach is followed. The mother's hope is that by following the Resolutions approach she may arrive in a position in which the court would be persuaded that it is in L's best interests for her to be his primary carer.
170. I do not consider it appropriate to give permission for a viability assessment. I am not persuaded that the inevitable delay in going down that route would be constructive delay so far as L is concerned. I am not satisfied that the mother is able to put together a large enough group of 'helpful adults' as required as the foundation for the Resolutions approach. The second stage of the Resolutions approach is predominantly therapy and not assessment. I am not satisfied that there is funding available to meet the cost of that therapy. Whilst the Resolutions approach has obvious benefits in those cases where the ultimate choice is between a child remaining in the care of his birth family or him being placed in the care of strangers (either long-term foster care or adoption) the benefits are less obvious where the choice facing the court is placement of the child with one or other member of his birth family, particularly when all those who put themselves forward as carers are close family members such as parents and grandparents.
171. NT is also capable of meeting L's basic care needs to a high standard. Her commitment to L is impressive. She has made huge sacrifices. She has taken early retirement. She has moved to live in a part of the country where she has neither family nor friends. She invested much of her retirement lump sum in defending the proceedings in Ireland, believing that she was doing so in L's best interests. Although at the time she first played an active part in these proceedings there were concerns about the risk of her removing L to Ireland and real issues of trust, over the last eighteen months she has demonstrated that she can be trusted. She has co-operated with the local authority. She has complied fully with the various working agreements that have been in place from time to time. She has been utterly reliable in her supervision of the mother's care of L. She has done all of this in the most difficult of circumstances, stepping into her daughter's shoes in the care she has provided for L and even occupying her daughter's home whilst she has stayed in a hotel. Notwithstanding the very close bond which undoubtedly exists between mother and daughter, I do not underestimate the pressure that all of this must have put upon their relationship. In NT's case there is, in my judgment, no basis for finding that her compliance has been 'disguised compliance'. It has been genuine compliance borne out of her desire do her best for L. She is a devoted, loving and competent grandmother who over the last eighteen months has earned not only my trust but also my respect.
172. And yet, having made those very positive points, there remains an area of real doubt. I have found that the mother was the prime mover in the decision that L should be taken to Ireland. Given her professional background one would have thought that NT would immediately have recognised how unwise and inappropriate it was to take her nine week old grandson to Ireland, exchanging the warmth and closeness of his relationship to his mother, who was still breastfeeding him, for a remote relationship by telephone and Skype; how inappropriate it was to allow that separation to continue for four months. Yet she went along with her daughter's wishes. In his first instance decision, Mr Justice McManamin said,

'I conclude by stating that the steps which were taken by the parents, and [the grandmother] to an extent, may have been driven by misunderstanding, misapprehension and misconception. Those steps were profoundly misguided.'

I respectfully agree.

173. Having lost her appeal against the return order made by Mr Justice McManamin, she and the mother took L into hiding in the West of Ireland. NT is a very intelligent lady. How she could possibly have considered it to be appropriate to defy the rule of law in that way I find it difficult to understand. In so doing she was as responsible as her daughter for creating the siege situation which ended by the Garda brutally snatching L from his mother's arms.
174. All of this is not simply water under the bridge. It is the background against which I consider NT's more recent conduct, in particular with respect to the issue of further medical tests and investigations. I accept that NT may not have understood the limit I imposed on her consultation with Dr Beaumont. I accept that there may have been a misunderstanding between herself and Dr Beaumont. I accept that the jointly agreed letter sent to Dr Beaumont was not as clear as it ought to have been about the authorised scope of the grandmother's proposed consultation with him. However, that consultation highlights three issues of real concern. The first is that the grandmother shares the mother's concerns that the investigations undertaken following L's admission to hospital were inadequate and incomplete, and that his injuries were the result of an undiagnosed medical condition. The second is that, like the mother, she, too, is willing to expose L to further investigations and tests in order to get to 'the truth'. The third is that in the way in which she reacted to Dr Craig's report, not dissuading her daughter from rushing headlong into an application to the court but sharing her view that those ill-judged and unprofessional comments supported their long-held view that something is 'wrong' with L, the grandmother demonstrates that she cannot always be relied upon to prioritise L's needs over her daughter's needs. All of this raises serious questions about NT's capacity to meet the full range of L's needs.
175. It is appropriate at this point that I should deal with an issue raised by mother's counsel, Miss Isaacs, on behalf of the grandmother. Miss Isaacs submits that there has been a breach of the grandmother's Article 6 right to a fair trial. The basis of her submission is that the local authority has failed to notify the grandmother of the deficits in her care now being relied upon and that the professionals in the case – Mrs Barnett Jones, Ms Enock and the guardian – have all failed (and accepted in cross-examination that they had failed) to discuss their concerns with her.
176. None of the concerns expressed by the professionals are new concerns. I do not accept that NT has been unaware of those concerns. There have been a great many hearings in this case. Since her return from Ireland in August 2010 NT has attended all of them. In the course of those hearings, in the letters of instruction to experts and in the many witness statements and position statements that have been prepared, all of these concerns have been made clear. It follows that I do not accept that there has been any breach of NT's Article 6 rights.
177. In contrast to the mother and NT, the assessments of the father are all positive. The guardian's assessment is very clear. She says,

'40. I have no concerns about the capacity of father and paternal grandparents to care for L and meet his needs. Father does not advocate further medical testing, he readily accepts that L should attend nursery and is clear that he would liaise with the Health Visitor in respect of L's development. He does not share the mother and grandmother's concerns about immunisations and has demonstrated through his parenting of C that he is able to safely meet the needs of a child and it is on this basis that I support L moving to the full time care of his father and paternal grandparents.'

178. The father accepts the findings made by the court. He accepts that he must be considered a risk. He accepts the ongoing need for local authority supervision. He has been co-operative with professionals. He has complied with working agreements. I am satisfied that in his case compliance has been genuine and not 'disguised compliance'. I am satisfied that the father, supported by his parents, would be able to meet the full range of L's needs.
179. As for the paternal grandparents, although they, too, were not included in the assessments undertaken by Mrs Barnett Jones and Ms Enock, they have been the subject of other assessments undertaken during these proceedings. In September 2010 they were being considered as possible interim carers for L. A positive viability assessment led, in November 2010, to a positive assessment of them as Friends and Family Foster Carers. In July 2011 a risk assessment was undertaken to establish whether it would be safe to allow them to supervise the father's contact with L in their own home. Again the outcome was positive.
180. The paternal grandparents have successfully brought up six children of their own. They assist in caring for C on a full-time basis and for his two brothers during alternate weekend staying contact. They are actively involved in the lives of all eight of their grandchildren. They have complied faithfully with the requirement to supervise the father's contact with L. The guardian has no concerns about their capacity to meet L's needs. Having heard both of them give evidence in the course of this hearing I, too, have no concerns.

Conclusions

181. Given the background history of this case it is in my judgment appropriate that L should remain a ward of court for the moment. Out of an abundance of caution it is also appropriate that I should make a declaration that L is habitually resident in England
182. Who, then, should be L's primary carer? I acknowledge the strength of the status quo argument in this case. NT has been L's primary carer for more than half his life. He is settled and happy in her care. She has met his basic care needs to a high standard. She is alive to the risks that arise from my earlier findings. So far as concerns the risk of physical harm she has been meticulous in keeping him safe. In some cases, as in Re B, the status quo argument will carry significant weight. In other cases a child's best interests will require the status quo argument to be displaced. I am satisfied that this is such a case. Whilst there is a great deal to affirm about NT's parenting of L the risks I have identified are real and actual and in my judgment of sufficient weight to tip the scales firmly in favour of a transfer of primary care to the father and paternal grandparents. I shall make a joint residence order in their favour.
183. The local authority proposes that L spend five nights a week with his father and paternal family and two nights a week with NT. I accept that that proposal is realistic and in L's best interests.
184. The local authority has produced some elaborate plans for the transition of L's primary care from NT to the paternal family over the course of the next six weeks. In my judgment the transitional arrangements are too protracted. I am also concerned about the extent of the mother's and grandmother's proposed contact with L. The local authority's proposals for contact are, in my judgment, inadequate.
185. In determining the sharing of L's time between his paternal and maternal families his welfare is my paramount consideration. In addition to all the welfare issues to which I have already referred, there are two particular issues to be borne in mind in making the day to day care arrangements. The first is that I am concerned that L should be able to spend time with R and D as well as with C. That means that L needs to be with his father for at least part of those weekends when his three half-brothers are there. The second is that L should be able to continue going to Church with his mother and grandmother on Sundays.
186. Unless the parties choose to agree some alternative arrangements I shall order that

(a) in the week beginning 19^th December L shall stay with his father from 9.00am on Thursday 22^nd December until 9.00am on Saturday 24^th December;

(b) in the week beginning 26^th December L shall stay with his father from 9.00am on Wednesday 28^th December until 9.00am on Saturday 31^st December;

(c) in the week beginning 2^nd January 2012 L shall stay with his father from 9.00am on Wednesday 4^th January until 9.00am on Sunday 7^th January;

(d) in the week beginning 9^th January and thereafter until further order, L shall stay with his father from 9.00am on Tuesday until 9.00am on Sunday;

(e) the present arrangements for weekday contact are that the mother has contact from 8.30am until 11.30am and then from 1.30 pm until 2.15pm and the father has contact from 2.30pm until 6.30pm. Subject to the special arrangements for the mother's contact at Christmas and New Year set out at paragraph 189 below, in the weeks beginning 19^th December, 26^th December and 2^nd January the present arrangements for weekday contact shall remain in force save that they shall only apply on those days when L is in NT's care; on any day when L is in the 24 hour care of his father there shall be no maternal contact; and

(f) from the week beginning 16^th January the mother and NT shall, in addition to the two nights staying contact, have contact with L on Thursdays from 9.00am until 5.00pm.

187. The arrangements for contact are not intended as a straightjacket. There needs to be flexibility, though how easily that happens in practice will depend upon the ability of the adults to work co-operatively with each other in L's best interests. At the very least it is clear that these arrangements may need to be changed when L starts at nursery and will need further adjustment when he begins school.
188. I agree with the local authority that supervision of the mother's contact with L may be relaxed somewhat. The local authority's proposal that NT must be in the house with the mother though not necessarily in the same room is a sensible first step. I see no reason why that cannot begin immediately. Any contact the mother has outside the home must also be supervised by NT.
189. I cannot see that L is at any greater risk from his mother during the night time than he is during the day time. I therefore agree with NT that the time has come when the mother should be allowed gradually to move back to live in her own home. There is no reason why she should not stay in her own home on those nights when L is staying with his father. In addition she may stay with her mother and L overnight on the 24^th, 25^th and 31^st December. From Sunday 8^th January she may return to live full time in her own home.
190. I accept that there remains a risk of further abduction. In my judgment the risk of the mother abducting L is significantly greater than the risk of NT abducting him. I am nonetheless satisfied that prohibited steps orders should be made restraining both the mother and NT from removing or permitting, facilitating or assisting in the removal of L from the jurisdiction without the prior permission of the court.
191. As the father and paternal grandparents are to be L's primary carers it seems to me that the responsibility for seeking routine medical treatment for L for normal childhood ailments should rest with them. Save in an emergency situation I can see no reason why the mother or NT should seek medical treatment for L. I shall make a prohibited steps order to that effect.
192. The final care plan recommends that L's developmental needs will be met through attendance at a nursery. The local authority proposes that he attends two sessions per week, morning or afternoon. That recommendation is fully justified on the evidence before the court. The parents should take immediate steps to secure an appropriate placement for him. Ideally choice of nursery should be agreed between the parents.
193. I agree that there should be a supervision order in favour of the local authority for a period of twelve months.
194. There should also be liberty to apply to all parties to enable them to bring the matter back before the court in the event of any difficulty in implementation of any part of this order.
APPENDIX

Extract from the psychological assessment of Dr Olivia Craig dated 24^th August 2011

6. HEALTH ISSUES

6.1 GT discussed with me the 'spinal fusion' operation which she underwent at sixteen to correct and stabilize the Scoliosis in her back. She also made clear that she felt this might well have some relation to the problem suffered by NT regarding "the disc in her neck" – (C.112).

She described in detail the worries of her pregnancy leading up to a diagnosis of obstetric cholestasis and a traumatic Caesarian (sic) delivery. As a Diabetic myself, I was duly shocked to hear of L's hypoglycaemia on day two of his young life.

C.116 talks of "blue on his eyeballs" and low weight at 5.1kg. While I accept His Lordship has gone to immense trouble to seek the opinion of well-respected medical experts, which leads to an apparently solid conclusion of 'non-accidental injury' to explain L's fractures; given the moral upbringing of both these parents, their obvious love for their child, and their mutual belief in the "gentleness" of each other, I feel called to undertake some basic investigation on my own behalf.

6.2 My careful perusal of all the medical notes provided does not indicate that in the midst of all the initial tests scans, and x-rays conducted on L, nowhere is it stated that a test of his Vitamin D level took place. – in (C.117) his mother, herself, now admits "I appreciate…that it is now about seven plus weeks since L suffered these injuries and it may be too late to find a medical cause as he has since grown and developed". This is very true. Also, since breast feeding was forcibly terminated and L transferred to baby formula containing Vitamin D supplement, as well and now normal baby diet".

But, the BUPA Medical Report of 21^st July 2010 regarding GT informs us that: "The blood tests we performed on the 2^nd July 2010 have revealed sings of severe Vitamin D deficiency. It is, therefore, very important for you to start taking a Vitamin D supplement and continue with this treatment for the next three months, when your Vitamin D level can be re-checked".

As a non-medic, my first search for information took me to Google Wikipedia, the free encyclopaedia, re 'Rickets' which my Chiropractor has recently assured me is a rising cause for concern among the British population, especially children of Asian inheritance. I attach a copy of the above 'Rickets' article.

Armed with this information of "floppy baby syndrome", and "increased tendency for fractures (easily broken bones and "skeletal deformity" (GT's scoliosis?): also "breastfed infants whose mothers are not exposed to sunlight (?Let alone clinically low Vitamin D?)" and – "Individuals not consuming milk…(like GT)".

I returned to the bundle and whatever pieces of research I could put my hands on e.g. (C.154) "Adult with sub-optimal levels should consider Vitamin D treatment to prevent Osteomalacia…C.154).

As well as Osteoporosis, low levels of Vitamin D have been linked to a range of serious conditions from heart disease to diabetes. When Vitamin D supplements were given to babies in Finland their risk of Type 1 diabetes was reduced by 80%. Other research has found low Vitamin D in children newly diagnosed with diabetes (so what of L's explained blood level of 0.15?)

6.3 A study last year, founded by the Medical Research Council, found Vitamin D has a direct influence on 229 genes involved in disease particularly those associated with Multiple Sclerosis, Chrohn's Disease and Type 1 Diabetes, so it seems unfortunate, given that Mr Lopez and Mr Messling both submitted that the Court should direct that DNA sequencing should be undertaken. Sadly that application was not renewed prior to closing submissions. But now, in the light of a necessary delay of the Final Hearing until November, perhaps time remains to make it possible?

The Government already recommends supplements for pregnant and breastfeeding mothers, people over 64 and those with darker skin or whose skin is not exposed to the sun very much. People of African or Asian origin, for example, are particularly vulnerable, as they need more sun to make the same amount of Vitamin D.

6.4 Informed of all the above findings, I went off to my observation of L on 14^th July. I had already noted, too, that the Judge had noted in his 'Finding of Fact' para.58 "that a few days before this hearing began his (L's) GP. 'referred him to Birmingham Children's Hospital' for assessment of the cause of problems with his gait". I also remembered that his Local Authority foster mum had commented on L's gait – at (c.272(e) "…he is still very pigeon-toed".

6.5 And, while on the subject of 'Foster Carer Reports '…especially at (c.272(s)) re "sporadic" marks which "disappear as sporadically as they appear and leave no trace". Also at (c.414) see comment re "Mark on right side of L's forehead" …para.4: "The mark in question is a small shadowed indent on the right side of L's forehead. Since the mention of the said mark on 4^th November 2010, I have noticed that this 'shadowing' is more apparent on some days than others".

And, para.5; "As L had not had a bump or fall, I queried the mark with L's Health Visitor when she saw him for his 9-12 month Review on the 4^th November 2010. The health Visitor said that the shadow is caused by the shape of his head and his complexion which is darker in some areas and lighter in others". (NOT a 'bruise' then?). There is also reference to a range of photos covering the period 3^rd August to 19^th December 2010: "These photos span the duration of L's placement and demonstrate that the mark on his forehead has been present throughout".

6.6 Of my own careful observation, I can only comment that, in holding L's wrists, I felt that they seemed thicker than other infants of his age. I also observed the blue scelera of L's) eyes – as also observed by Professor Pope in both L and his mother. Regarding his gait: in L's frequent trips from one end of the house to the other, I certainly felt that I observed a degree of bowing in his little legs. Perhaps it is, after all, time to revisit the N.A.I. question?

7.3 x(24) Finally

I must sincerely apologise to Judge Bellamy, if anything of my admittedly non-medic, comments in this report appear to show disrespect for his careful Findings in this case. However, I must reiterate my unease of the absence of Vitamin D testing for L, and loss of appropriate early opportunity to take up the expertly recommended DNA sequencing.

Therefore, my first recommendation must be for

a) Regular medical checks for L throughout his early life.

b) Respect for L's right to a 'proper family life' and his dual ethnic inheritance, via a sensible plan for continued Contact arrangements for both parents and grandparents.

c) A genuine, long-term, effort to pursue a satisfactory plan of assessment/observation of GT, to a point at which she can confidently be cleared of suspicion of any predisposition for abuse.'