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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Medway Council v R & Ors (Rev 1) [2016] EWFC B104 (16 December 2016)
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Cite as: [2016] EWFC B104

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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No. ME15C00839

IN THE FAMILY COURT
Sitting at Medway
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF R (dob xx.xx.14)

16th December 2016

B e f o r e :

Her Honour JudgeLazarus
____________________

MEDWAY COUNCIL
Applicant
and

M
and
F
and
LO
and
LY
and
R (by her Children's Guardian)

Respondents

____________________

Ms Jacqui Gilliatt for Medway Council instructed by Mr Stephen Tucker Mr Leslie Samuels QC and Mr Lee Arnot represented the Mother, instructed by Mr Andrew Pearson
Mr Paul Storey QC and Mr Stephen Chippeck represented the Father, instructed by Mr Andrew Humphries
Mr Frank Feehan QC and Mr John Swales represented LO, instructed by Ms Marion McNeil
Ms Sarah Morgan QC and Ms Alison Easton represented LY, instructed by Mr Philip Wilkins
Ms Gemma Farrington and Ms Kate Kochinari represented the Child, by her Children's Guardian, instructed by Mr Glen Fraser

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    JUDGMENT

  1. This case has ultimately ended, fortunately for R, with an agreed outcome of a plan for a swift transition of R from foster care into the care of her paternal aunt and uncle Mr and Mrs Z and for them to become her Special Guardians.
  2. Fortunately for the parents, this case has veered from one where they faced very serious allegations of physical maltreatment of their baby and her possible permanent placement outside her family, to the current agreed outcome which is based on their proper concessions as to their abilities to care for her that are rooted in their own difficulties. And fortunately for the interveners, who also faced distressing accusations of maltreatment of R, their role in relation to R's care has been clarified and they have been excluded from bearing that responsibility.
  3. However, the route to that outcome has been fraught with delay, non-compliance with court orders, mishaps, external difficulties and unusual challenges posed for the management of the case; and has thrown up challenging questions relating to the medical evidence and the limits of scientific knowledge in novel and complex areas of medicine.
  4. The case is brought by Medway Council in relation to R who was born on xx.xx.14 and is now just over 2 years old. Medway applied under s31 Children Act 1989 for a care order on 5.5.15.
  5. R has lived in foster care since mid-February 2015 when she was discharged from a hospital admission and her Mother signed section 20 agreements on 13 and 18.2.15.
  6. R's Mother is XX who is 22 and until shortly into the first stage of the final hearing in June-July lived with R's Father YY who is 26. Father was granted parental responsibility on 2.6.15.
  7. R is represented by her Children's Guardian Linda Clark.
  8. LO and LY, paternal aunts, were joined as interveners. A further intervener was GY, the paternal grandfather, who suffered from significant illnesses through the course of these proceedings and died in March 2016.
  9. Both parents and both interveners have very low cognitive function, such that all but Mother are said to suffer from a learning disability, and Father additionally suffers from severe agoraphobia and anxiety disorder. But all have capacity to litigate and have been represented by leading and junior counsel or solicitor advocate.
  10. LO was discharged as an intervener at the conclusion of the first part of this final hearing on 21.7.16, and LY was discharged at the conclusion of this case on 16.12.16.
  11. Mr and Mrs Z are neither parties nor interveners but have had independent advice funded by Medway and have occasionally attended court as their role has required.
  12. OUTLINE

  13. Initial referrals were made by R's Health Visitor when R was a few weeks old in November and December 2014 relating to R's care and the parents' mental health and abilities to cope. R was living with her parents and LO and GY in GY's home.
  14. In early December R was seen with a scratch to her face. The explanation that this was an accidental scratch was accepted.
  15. When just over six weeks old, in the early hours of 27.12.14, an ambulance was called and R was admitted to hospital following a limp and unresponsive presentation at home. She recovered swiftly and was discharged on 28.12.14, but was readmitted that evening again by ambulance, following her parents noticing her limbs jerking. She was discharged the next day following observation and treatment for reflux. No scans or retinal examinations were undertaken, and no neurological or head injury was suspected or investigated at the time.
  16. Professionals' grave concerns continued about home conditions, R's poor weight gain and the parents' ability to cope. A section 47 investigation was undertaken and R's case progressed to an ICPC.
  17. Another scratch to R's face was seen on 4.2.15. And on 13.2.15, now aged three months, R was again admitted to hospital due to facial bruising and a bloodshot eye. The bruising was thought to be non-accidentally inflicted. R's weight was of particular concern and she was said to have gained weight at a marked rate in hospital and subsequently in foster care. R was then discharged into foster care on 20.2.15.
  18. While in hospital R underwent a CT scan on 16.2.15 and as a result of that scan also underwent an MRI scan on 19.2.15. These show chronic symmetrical bi-frontal subdural haematomas. Analysis of the findings suggests these must have arisen on some date before about 5.2.15, but that it was not possible to define from those scans any particular date when they might have begun.
  19. Medway therefore originally sought findings of non-accidental head injury, inflicted facial bruising, failure to protect, failure to thrive, neglect of R's care needs and home environment, and the parents' respective inabilities to meet R's needs due to their own mental health and emotional problems.
  20. R has remained in foster care where she has thrived and on current observations has recovered and is developing generally well. However, during the course of the first stage of this final hearing in June-July it emerged that further investigations including genetic testing were being undertaken due to concerns relating to global developmental delay, hypermobility and possible dysmorphic features, particularly in the light of her family history of learning disability and mental health issues. A further head scan was also being sought in order to review the progress of her subdural bleeding.
  21. Further tests have since established that R shows some signs of emerging developmental delay, some unusual physical features including slight hypermobility, but that her chronic subdural haematomas have resolved without obvious negative impact upon her brain development.
  22. Most significantly, the tests most recently undertaken show that she has a mild to moderate platelet function disorder with implications for blood clotting. Additionally, that she has certain chromosomal abnormalities that relate to learning disability and developmental delay, but significantly also abnormalities that are associated with Ehlers-Danlos Syndrome, a connective tissue disorder, and thus possibly may also result in increased vascular fragility and a tendency to bruise.
  23. The parents deny harming R and have previously asserted that R's injuries were caused by LY on her visits to their home or when she had R to stay with her for a weekend in early February shortly before the bruising was seen. The accusations against LY were also made in reliance upon a purported confession that she had caused the bruising, allegedly made by LY on social media in July 2015.
  24. The parents largely presented a united front and their explanations, which have varied over time during these proceedings, generally mirrored each other in the lead up to the final hearing listed in June.
  25. This position was modified within a few days of the start of this hearing. The Mother separated from the Father shortly after the hearing began, and filed an updating statement and in which she was no longer pressing any positive case against LY. The Father, by a week into the first stage of the final hearing, confirmed he too was not in a position to assert a positive case against LY, and also filed an updating statement.
  26. The parents were assessed by a PAMS qualified Independent Social Worker, and have both undergone cognitive assessments. Additionally, Father has undergone psychiatric assessments and Mother a psychological assessment. Initially they wanted R to be returned to their joint care with proper support, however they then separated, and at the time of the first stage of the final hearing in June-July neither of them had been assessed as sole carers. Mother was then assessed further by Medway's Sunlight centre and both the main assessment and addendum assessment concluded that Mother was not capable of meeting R's needs.
  27. Paternal aunt LO was present in the home with R and her parents at the relevant times albeit that no party asserted a positive case against her, and thus she was initially in the pool of potential perpetrators, based on proximity and opportunity. The same position applied to GY.
  28. Paternal aunt also LY denies harming R. Her own children were removed from her care in 2012 due to her inability to meet their needs. She accepts she was a frequent visitor to the home and had R to stay with her for a weekend at the end of January. She denies sending Facebook messages purporting to be a confession that she caused the bruising, and she has raised the issue of having been conspired against by this means by Mother and/or Father in an attempt to frame her.
  29. Mr and Mrs Z were originally the subject of assessment both in 2015 and in early 2016; the latter at roughly the same time that they initially withdrew from the process, in particular as they were concerned about taking on the care of a child with possible brain damage flowing from her earlier experiences. However, this erroneous impression was clarified, and a subsequent thorough assessment by an Independent Social Worker undertaken between the first and second stages of the final hearing has led to a recommendation that they become R's Special Guardians.
  30. Contact between R and her parents has been problematic. This has been due initially to a combination of Father's agoraphobia preventing him from leaving home, non-attendance on occasions by Mother at contact, initial Social Worker objections to R having contact in a very poor home environment, the parents' subsequent homelessness following GY's death, and most recently the Mother's period of significant disengagement from the case.
  31. The final hearing was listed to take place in June-July, but in fact that initially became a fact-finding hearing before being adjourned for the further investigations mentioned above. The welfare element of the s31 application, and any placement application in the light of the then withdrawal of Mr and Mrs Z, were initially deferred from the originally listed final hearing in June-July to a later date. But due to the adjournment of the final hearing for the reasons set out below, all issues of fact and welfare were instead then listed to be heard together at the adjourned part-heard second stage of this hearing listed in December 2016-January 2017, and have ultimately been resolved by the parties' changed positions.
  32. EVIDENCE

  33. I have read the documents filed in the core bundles before me, now amounting to 14 lever arch files. I have additionally been assisted by position statements, Medway's opening statement, the agreed advocates' chronology, Scott schedules, and various additional documents prepared during the course of the hearing.
  34. I have listened to the Mother's police interview on 16.4.15, and to the recordings of the two calls to the 999 emergency service made by Mother on 27.12.14 and 28.12.1.4.
  35. During the first stage of this hearing I heard from the following witnesses: Dr Ramadan treating consultant paediatrician; Ms Iwuji health visitor; Ms Featherstone duty allocated Social Worker Dec 2014 to Feb 2015; Ms Shield student Social Worker; Ms Low computer forensic investigator at Diligence; Ms Potter family support service keyworker.; Dr Robinson consultant paediatrician; Dr Stivaros consultant paediatric neuroradiologist; Mr Richards consultant paediatric neurologist; LO; LY's friend Mr BN; and the Father in part.
  36. Due to the adjournment of the June-July hearing, I did not hear from the following witnesses that were due to give evidence: the Mother and LY.
  37. The following witnesses were originally timetabled to give evidence in June, but the parties agreed during the course of the hearing that it was not necessary to challenge their evidence by oral cross-examination: Ms Mirt previously allocated SW; DS Preece; DC Barlow; Ms Hewlett child health nurse; Dr Ahmed treating clinician; Dr Munteanu treating clinician; Dr Morrison consultant ophthalmologist; LY's daughter SY; LY's friends SD and LH witnesses in support of LY.
  38. The following witnesses were due to give evidence in December and January, but due to the agreed outcome were no longer required: Dr Saggar consultant geneticist; Dr Keenan consultant haematologist; Dr Robinson and Mr Richards to be recalled; the Social Worker Ms Bell; Ms Flower Sunlight parenting assessor; Ms Barton PAMS assessor; the Mother; the Father; LY and the Children's Guardian.
  39. A NOTE ON THE MEDICAL EVIDENCE

  40. As is evident from the above, this court only heard part of the medical and lay evidence and heard no submissions, and finally was not asked to make any findings as to the symptoms shown by R.
  41. Due to the incomplete nature of the hearing before me and only partial exploration of the evidence it would therefore not be appropriate for me to set out that partially elucidated picture in this judgment, nor make observations on it. It is important to note however, the significance of the following in this particular case.
  42. Firstly, that no head scans, no scan of the upper cervical spine, no skeletal survey and no eye examinations were carried out following R's collapse in December. The absence of those observations at that point has been of central importance in this case.
  43. Secondly, it was only as a result of late and inadequately disclosed information from the health services currently treating R, which information only came to light towards the end of the June-July hearing, that the parties and the court were alerted to further issues of potential relevance to the medical picture and which led directly to the need for further investigations.
  44. Thirdly, those further investigations in particular the genetic and chromosomal testing and analysis have explored and demonstrated the current limits of medical research and understanding. These abnormalities, while therefore of uncertain significance due to the limits of that knowledge, as is the interplay between her disorders, have played an important role in the consideration of the appropriate course this case should take.
  45. PROCEDURAL ISSUES & COURSE OF THE CASE

  46. Given the unfortunate length of time taken, 19 months from issue to conclusion, and the need for over a dozen case management hearings, it is necessary to consider the problems and challenges posed in this case.
  47. For reasons not fully understood, Medway only issued its application on 5.5.15, some three months after R moved into foster care from hospital.
  48. Practically from the outset this case has been beset by delay and non-compliance with directions. Initially this was primarily due to a failure by Medway to properly identify the findings it sought which led to a consequent failure by the parents and interveners to provide clear and proper responses to the issues. However, non-compliance has continued to date, with difficulties ranging from delayed medical testing results to an ongoing failure to date by Medway to provide the foster carer's notes despite directions spanning many months.
  49. Medway has improved somewhat in its performance since previously reported examples of failures to manage cases appropriately and comply with directions. Some improvement has been seen during the course of this case, and I do not underestimate the amount of work involved, the effort put in by all involved (for which the court is always grateful), and the increased burden on local authorities in a time of reduced resources. But it is clear that efforts still require to be made in order to avoid situations such as these where repeated case management hearings are required, and in autumn 2016 weekly (and for a short period even daily) updates were required by the court in order to ensure compliance and avoid injustice and delay.
  50. Additionally, grave difficulties arose as to the involvement of the interveners. As mentioned, all suffer to some extent from learning difficulty.
  51. GY never obtained representation and no statement from him was ever filed, although he had been spoken to by the police in early 2015. He was profoundly deaf which caused difficulties at the few earlier hearings he attended. He was also suffering from a number of ailments. He never underwent any cognitive assessment, but it is perhaps fair to assume that his understanding of the issues was limited.
  52. LO was joined as an intervener on 14.7.15 and initially engaged with the proceedings but then disengaged soon thereafter until she was tracked down shortly before the start of the June-July hearing after several months of painstaking efforts by her solicitor and advocate with help from Medway. She explained this disengagement as being due to her fear and misunderstanding of the process and of her involvement, and she believed that she would be in trouble if she spoke to her solicitor as she had been told she should not divulge the whereabouts of her new supported accommodation that she had moved to in late 2015. She explained in her oral evidence that she had left home in late 2015 as she felt burdened by her father GY's needs. Neither I nor any party interpret this disengagement as a sign of anything sinister, but simply a manifestation of her various difficulties flowing from her considerable learning disability. However, as a result, she only returned to active involvement in the proceedings shortly before the June-July hearing, and at its start a statement from her was still to be filed but was provided on 27.6.16. Her assessment for intermediary support could also only take place on the first day of the hearing.
  53. Again largely due to her own learning disability, difficulties also initially arose in relation to LY participating and achieving representation. It took some time and several hearings for her to obtain representation and assessment of her participation needs. As a result she was not always present nor represented at several of the earlier hearings.
  54. A further problem arose when the original jointly instructed consultant paediatrician Dr Michie failed to respond throughout late 2015 to any communication or directions in relation to the report he had prepared dated 2.11.15. This left no option but to instruct an alternative expert with added significant further cost and delay. I understand that no explanation was forthcoming from Dr Michie to explain this gross dereliction of a jointly instructed expert's duties until just prior to the finalisation of this judgment in January 2017. In accordance with Re W (A Child)[2016] EWCA Civ 1140 Dr Michie was contacted to be given an opportunity to respond to the criticism of him set out above in my draft judgment. In response he cited that he had been responsible for closing an acute paediatric unit from January to June 2016 which had consumed his attention and also led to losing access to a computer, plus certain emails and communications. I fail to see how this could explain a complete failure to respond in November and December 2015 to urgent numerous requests to do so. Additionally, and in the circumstances highly surprisingly, he ventured to request whether it was too late to submit his invoice for the work done in November 2015. He has, since then, apologised for the difficulties caused. I have invited R's solicitor, who has had the unenviable task of attempting to communicate with Dr Michie, to complain formally to the relevant professional and regulatory bodies.
  55. At this time in late 2015 to early 2016 judicial continuity was lost due to listing pressures and three CMOs took place, including before a Recorder, with little achieved and significant non-compliance with directions. Clearly it was inappropriate for a case with this level of complexity and compliance problems to be listed before a Recorder and to lose continuity.
  56. When the case came back before me on 9.3.16 I was appalled at the lack of progress and the degree of non-compliance, and this preamble was inserted into the order:
  57. "Upon the court expressing its profound concern at the delay in this case; the absence of a clear concise threshold document covering (i) physical injuries (ii) neglect (iii) risky/harmful parental care/behaviour; the absence of statements from the parents and interveners containing details of their care of R at the relevant time; the failure by all parties save the Guardian to comply with previous directions; the absence of two interveners at today's hearing; that all adult parties are likely to be operating under a degree of disability; that Father's agoraphobia has prevented him attending all court hearings and a Communicourt assessment, and so his involvement in future hearings is yet to be clarified; and the likelihood of having to list a lengthy hearing and potential re-allocation to a High Court Judge."
  58. I then listed the next hearing on 18.4.16 as an IRH before the Family Division Liaison Judge Mrs Justice Theis. She identified significant non-compliance by Medway as the root cause of the case's difficulties and approved the listing of this case as a 4 week final hearing before me in June-July, with scope for additional and frequent case management hearings beforehand in order to address and prevent any further problems.
  59. At that and the subsequent case management and urgent directions hearings that have had to be listed, efforts were largely successfully made to pull together missing evidence, obtain further expert reports, timetable an experts' meeting and updating reports, and in particular manage the participation of the vulnerable parties.
  60. I deal with participation issues separately below as it has been of particular significance and challenge in this case. In summary here: LO and LY each have had an intermediary to support them while at court and if giving evidence, and attempts were made to ensure Father participated by way of a video link to his accommodation, plus support from a mental health advocate, and more recently from an intermediary.
  61. Also during the period very shortly before the June-July hearing, permission was granted to each of the parents and interveners to instruct leading counsel. This led to delays in compliance with directions and extensions being granted in order to obtain their proper input and in particular their clarification of witnesses and time estimates. As a result, it became clear at one of the subsequent interim hearings that more time would be required to complete the trial and further days were added.
  62. Notwithstanding these efforts, only at the end of the first day of the hearing, listed as a reading day and for LO's intermediary assessment, was a comprehensive witness template finally available despite directions that it should be provided at various earlier points; and albeit that it was provided with the serious caveat that further witnesses were yet to be fitted into the timetable. Additionally incorporating the need to stop at intervals to facilitate intermediary support and permit Father's legal team to take instructions by the video link to Father, it was by then clear that oral evidence would take up the whole of the time then listed for the hearing and the case risked going part-heard or having to relist completely with several months' further delay.
  63. This was further complicated by Mother having suffered a very serious assault on the morning of that first day, and her legal team therefore having to abandon their attempt to have a conference with her in order that she attend hospital and report the assault to the police. The medical guidance received was that she should rest for 48 hours due to having suffered concussion. Accordingly, starting the evidence had to be abandoned for those two days.
  64. Bearing in mind the overriding objective, and in order, therefore, to use the then listing effectively and in an attempt to avoid the case going part-heard or being completely relisted many months later as a composite hearing, I concluded that the only option was to confine the scope of the June-July listing to a fact finding hearing and remove witnesses dealing with welfare issues and relist that aspect of the case before me in early September. No party opposed the necessary pragmatism of this approach, and its minimisation of risks of further delay and disruption.
  65. On day 3, following visits to her by her legal team due to concerns she was still too unwell to attend court, Mother decided to separate from Father and leave their accommodation. She then attended court, where her injuries were evident. Father suffered a serious anxiety attack and could not attend nor give instructions via the video link. This combination of events meant that again no evidence could be heard that day.
  66. Over the following weekend emergency accommodation was found for M. Accommodation has continued to be problematic. Fortunately, Medway was able to secure funding to assist in Mother remaining at her emergency accommodation temporarily. Mother then filed an updating statement on 27.6.16 modifying her position as summarised above, and has attended court throughout since then save for occasional housing and contact appointments.
  67. Father moved from the B&B accommodation he had been sharing with the Mother which had been ingeniously sourced by Medway to facilitate the video link that I discuss further below. He claimed to be too scared and anxious to remain there on his own, Mother having been assaulted on the street nearby. Since then, and until he moved temporarily to stay with his aunt and uncle Mr and Mrs Z at the start of the third week of the June-July hearing, he was homeless and living largely in his father's old car or sofa-surfing with a cousin. Both parents' accommodation has been irregular and precarious since.
  68. Sterling efforts were made by his legal representatives to meet with him at various venues outside court where he felt comfortable enough to be able to meet with them. As a result it was confirmed as summarised above that no positive case was any longer to be mounted against LY. During those first two weeks of the hearing it was confirmed on his behalf that although he would like to participate by video he was finding it too hard and additionally his accommodation was too uncertain and unsuitable for the use of the video link, but that nonetheless he was content to be involved by way of his representatives acting on his instructions in his absence. Additionally, time has inevitably had to be taken in order that his representatives have had sufficient opportunity to meet with the Father for these purposes.
  69. During the course of Father's oral evidence in July a number of significant issues came to light. Firstly, growing concerns were expressed by his mental health advocate as to fluctuating capacity due to heightened anxiety states. Secondly, queries were raised as to the failure by consultant paediatrician Dr Robinson to address or be questioned about recordings of R suffering from slight bleeding from her nose. This, thirdly, in turn led to new information coming to light that R had been recently referred by her current treating clinicians for blood and genetic testing, with the referral noting global developmental delay, joint hypermobility and dysmorphic appearance.
  70. Father's evidence, then incomplete, had to be drawn to a close and urgent efforts were made to assess his capacity and re-address the possibility of support by an intermediary. This in itself had grave implications for the onward progress of the case at this stage, and I deal with this further below.
  71. Further, as a result of the information about R's testing referral, I was presented with applications to adjourn and to approve further assessment by two further experts in haematology and genetics, Dr Keenan and Dr Saggar: looking respectively into any clotting disorder, and into connective tissue disorders that may involve vascular fragility and Ehlers-Danlos Types III and IV in particular.
  72. In granting these applications, I took into account similar cases referred to me (in particular: Re M [2012] EWCA Civ 1905; Devon CC v EB [2013] EWHC 968; Re A [2013] EWHC 3502; Re B [2014] EWHC B1; Re A [2014] unreported decision of HHJ Heaton QC; and Re F & J [2015] EWFC B231).
  73. The particular features relevant to these applications were: the unclear aetiology of R's chronic subdural haematomas; possible unusual bruising on her abdomen from the use of large ECG pads; possible slight bleeding from the nose when regurgitating her feeds for a period before and during the early stages of foster care; the background history of heart murmur; a possible family history of easy bruising; and the recent observation that she was showing signs of hypermobility. Accordingly, it was clearly necessary in the interests of justice to ensure that this further expertise was before the court.
  74. As with several of the cited authorities, this issue inevitably caused significant delay for R and for the resolution of this case, but given the potential significance of the evidence to the very serious findings sought the balance clearly lay in pursuing this course. As it turns out, this evidence has indeed crucially affected the approach taken to the most serious findings sought by Medway.
  75. Of note, it has become increasingly difficult to identify appropriately qualified experts to deal with the required testing and controversial issues in a case such as this. This materially added to the time required to resolve the issues that arose in July and only a single expert in each new area of expertise could be found. One of them, due to pressures of work and availability, required a minimum of 9 weeks to report and could only begin to do so following a further battery of necessary testing. This is a telling example of some of the exigencies that affect these complex cases.
  76. This necessitated adjournment of the hearing part-heard to December 2016 and into January 2017 in order to accommodate the necessary medical testing and expertise and additional difficulties with leading counsel's availability. However, it did enable the adjourned element of this hearing to accommodate the welfare issues that had initially been separated.
  77. So, as a result of the adjournment and directions, between July and December a number of significant reports were received. Several further case management hearings were held, again in order to deal with repeated difficulties with timetable compliance, inexplicable failures to obtain sample test results that appear to have largely been beyond the parties' control due to the unhelpful attitudes taken by various health agencies, further queries and testing being raised by the new experts' reports, and knock-on effects of all the above in delaying updating reports. The upshot was, despite the best efforts of the parties, that necessary test results and updating reports from the experts were still being received and chased at the beginning of the adjourned hearing in December.
  78. In terms of medical issues the new material encompassed the further testing results that I have already referred to above, and the significant conclusions by the experts of mild disorders relevant to bruising and bleeding, with unclear but potential significance in terms of the genetic variants identified.
  79. In terms of welfare issues the new material encompassed further assessments of the parents' functioning, Mother's negative parenting assessments, and Mr and Mrs Z's positive Special Guardian assessment. In the light of these assessments the Father decided not to request that R should be returned to his care and supported her placement with Mr and Mrs Z. Medway and R's Children's Guardian also concluded that this would be the best outcome for R.
  80. However, for a number of complex reasons, Mother disengaged from the proceedings entirely from late October/early November until only a few days before the adjourned hearing began again in December. During this time she was not in touch with the Social Worker nor her solicitor, she was not attending contact and had effectively dropped out of sight despite attempts to contact her. Concerns as to her welfare understandably arose given that she was badly assaulted in June. A combined effort by Medway, the police and her solicitor, following Medway receiving a referral in late November that she had been seen, eventually resulted in her being found and re-engaging in the proceedings. Therefore it was on the last working day before the adjourned hearing in December that the parties and the court were informed that she had successfully met with her legal team and was also in agreement that R should move to Mr and Mrs Z.
  81. This immediately threw up the issue of the proportionality of continuing with the outstanding medical evidence in pursuit of the remaining findings relating to the alleged inflicted head injury and facial bruising, and failure to thrive, with the consequent ancillary findings sought of failure to protect, dishonesty and findings relating to the accusation of LY by the parents and the allegedly fabricated social media confession. These issues involved significant complexity and remained fully contested. The hearing would take a further 3-4 weeks, particularly in the light of the respondents' respective cognitive and participation difficulties which would involve slow progress through the evidence as breaks were taken and intermediary support provided.
  82. Medway Council decided, after careful consideration, and with some understandable degree of concern and reluctance, that it was disproportionate to pursue the case further and no longer sought the outstanding findings.
  83. Bearing in mind the helpful guidance of McFarlane J (as he then was) in A County Council v DP, RS, BS [2005] 2 FLR 1031 and Hedley J in Re K [2011] 2 FLR 199, this was entirely appropriate in my judgment, particularly in the light of the complex and uncertain medical picture, and with an uncertain evidential outcome where any findings would now make little or no difference to the plans for R.
  84. Both parents clarified further at the outset of the adjourned hearing that they would be making appropriate concessions as to neglect and ability to care. A factual background document, agreed between all the parties, is attached as Appendix 1, and I am very grateful to the hard work of counsel in working with each other and the court to that end.
  85. A NOTE ON THE AGREED FACTUAL BACKGROUND DOCUMENT

  86. As no section 31 Children Act order was ultimately sought, I clarified that that this was not strictly a threshold document, albeit that Medway considered it should set out concessions relevant to the threshold issues in that the document should in relevant ways make the connection with the significant harm suffered by R or that she was at risk of suffering. The parents concede this in relation to their neglectful care and the poor home environment, and I confirm my satisfaction pursuant to section 31(2) that those matters do meet the requisite standard for the threshold to have been met in this case.
  87. Additionally, I required that it should be a more comprehensive factual background document in order to underpin a kinship placement with Mr and Mrs Z with the security of a clear and acknowledged agreed background, particularly where the court in a complex case was no longer being asked to consider the evidence and make findings.
  88. As already mentioned, it is not appropriate here to review the partial medical evidence before the court beyond the brief summaries I have given above, nor to make any observations that might set up any unnecessary tension between this judgment and that document.
  89. However, it is important to note that the factual background document is inevitably limited to those items that were capable of agreement between the parties (with the additional encouragement of the court as to the inclusion of certain points), and is therefore limited to those agreed points.
  90. It cannot and should not be treated as a full description or authoritative analysis of all the issues raised in the full medical reports or the varied answers given to numerous complex issues raised in the experts' oral evidence. Nor is it, of course, the review of the totality of the evidence that the court would carry out in considering the complex interplay of expert medical opinion with the rest of the evidential picture.
  91. PARTICIPATION OF VULNERABLE PARTIES

  92. This case is notable for every respondent operating to some extent under a degree of disability, and for the unusual degree of special measures it has been necessary to extend to enable the Father's participation in particular.
  93. Pursuant to Article 6 of the European Convention of Human Rights and their right of access to justice, it is required that the court facilitates as full and proper participation in proceedings for vulnerable parties as is reasonable and practicable in accordance with the relevant guidance and case law.
  94. In Re C (A Child) [2014] EWCA Civ 128 #25 McFarlane LJ stated: "The court as an organ of the state, the local authority and CAFCASS must all function now within the terms of the Equality Act 2010. It is simply not an option to fail to afford the right level of regard to an individual who has these unfortunate disabilities".
  95. Baker J provides helpful guidance in Re A (Care Proceedings: Learning Disabled Parent) [2013] EWHC 3502 (Fam) at #76-79 in addressing the need for intermediary support.
  96. I have also been assisted in considering the challenges for the Family Court in relation to the needs of vulnerable participants and employing special measures to meet their Article 6 rights by the reports of the Vulnerable Witnesses and Children Working Group prepared in 2014 and 2015 (https://www.judiciary.gov.uk/wp-content/uploads/2015/03/vwcwg-report-march-2015.pdf).
  97. And in accordance with the clear guidance of the President in Re D (A child) (No.2) [2015] EWFC 2, and the Master of the Rolls in Re K & H (Children) [2015] EWCA Civ 543, the costs of intermediaries required at court falls to be met by HMCTS.
  98. Mother in the cognitive assessment of 23.3.15 by Mr Crimes, she was assessed as having a FSIQ of 79, with her functioning varying at levels between the 4th and 23rd percentile of the general population, and is said to be able to function at 'above the threshold for normal independent functioning' although may need help with memory strategies. Mother was further assessed over the summer by Mr Robins in his report dated 15.8.16 due to concerns raised by her legal team about her functioning during the course of the first stage of the final hearing. Although he concurred as to her FSIQ, found she had good verbal comprehension and no overt social or communication disorders, he concluded that some of her functioning was particularly low: in particular that her ability to maintain concentration and attention and exert mental control and her overall reasoning and thinking abilities, would only exceed about the 8th or 9th percentile of the general population.
  99. As such, she has no formal learning disability and no intermediary assistance has been sought or considered necessary, albeit it was advised that care still had to be taken to ensure that she and her team had sufficient time to obtain instructions, give advice and ensure understanding particularly in the light of the assault at the outset of this hearing and the subsequent separation of the parents.
  100. Other than leaving court to attend contact or housing appointments from time to time, the Mother has attended court throughout this hearing. Her representatives have confirmed that at all times she has been absent this has been with her consent and full instructions to proceed and represent her in her absence.
  101. LO in her cognitive assessment of 14.10.15 by Dr Conning, she was assessed as having a FSIQ of only 64, with her functioning assessed at levels between the 1st and 4th percentile of the general population. Dr Conning diagnosed a mild learning disability with difficulties of recall and working memory and advised on the need for expert intermediary support to assist with understanding the proceedings and ensuring correct understanding and intended responses to any questions when giving oral evidence. An intermediary assessment was undertaken by Triangle just at the outset of this hearing, due to LO's earlier disengagement from the proceedings for a significant period, and their report dated 28.6.16 confirmed the parameters of her difficulties and intermediary requirement: poor working memory, confusion when faced with multiple instructions, poor recall, and particularly of dates and times, easy suggestibility, and inability to understand non-literal or complex language.
  102. Intermediary support was approved for the few days that LO and her representatives considered it necessary for her to attend court in person. 'Ground rules' were addressed at relevant and necessary points during the course of the hearing. Topics were identified in advance of her oral evidence. Approaches to questioning LO were set out in the Triangle report and reviewed, and she gave her oral evidence supported by an intermediary and with breaks where necessary to assist her comprehension and concentration.
  103. She has taken breaks from sitting in court from time to time while the proceedings have continued. Her representatives have confirmed that at all times she has been absent this has been with her consent and full instructions to proceed and represent her in her absence.
  104. LY in her cognitive assessment by Mr Maggs of 28.11.15, she was assessed as having a FSIQ of 70 and falling at the top end of the mild learning disability range, with functioning varying at the 1st to 2nd percentile of the general population. Communicourt's intermediary report dated 3.3.16 clearly identified a range of significant deficits: comprehension difficulties covering struggling to process and retain verbal information, extremely limited working memory, difficulty understanding meanings and common question types, poor time and date recall, and very poor literacy and comprehension of written information; expressive difficulties covering poor verbal narrative skills, including insufficient and unelaborated answers; compounded by a difficulty in being able to indicate when she has failed to understand something.
  105. Intermediary support has been provided to LY for each of the days she has attended court. She has not attended on a few days where it was not felt necessary for her to hear that evidence. 'Ground rules' were addressed at relevant and necessary points in the hearing, and advice given directly to the court by her intermediary. Breaks in the evidence of other witnesses central to her case have been taken in order that she can attend adequately to their testimony. As for her sister LO, general topics were to be identified in advance of her oral evidence, approaches to questioning LY were set out in the Communicourt report and intermediary's advice, and she would have given her oral evidence supported by an intermediary and with breaks where necessary to assist her comprehension and concentration.
  106. She has additionally left court from time to time for necessary short breaks and the proceedings have continued where her attendance for those parts of the evidence has not been thought crucial. Her representatives have confirmed that at all times she has been absent this has been with her consent and full instructions to proceed and represent her in her absence.
  107. Father in his cognitive assessment by Mr Crimes dated 24.7.15, he was assessed as having a FSIQ of 65, with his functioning assessed at between the 1st and 8th percentile of the general population. Mr Crimes identified numerous areas of weakness, including poor working memory and processing speed, minimal capability in relation to communication skills and attention to detail, memory problems, requirement for repetition of questions or instructions, poor comprehension of language particularly long or complex sentences, difficulty finding words or staying on topics, irrelevant reasoning, and difficulty maintaining attention.
  108. Dr Mayer, consultant psychiatrist, provided two reports prior to these proceedings, dated 14.8.15 and 6.4.16. Those reports set out a diagnosis of severe agoraphobia with a degree of generalised anxiety, and mild learning disability. These were based upon interviews with Father in his home and examination of his medical records. Dr Mayer described the significantly disabling impact of his difficulties on Father over many years since his mid-teens. When living in their previous accommodation with his father GY, Father had been able to occasionally go out in the car or walk to nearby shops. This had deteriorated following his father's death and at that point in April 2016 he reported to Dr Mayer that he felt unable to go beyond the window of the front room of the accommodation to which the family had been obliged to move in late 2015. Due to this disability, Father had not been able to attend at hospital or other appointments with R, or meetings outside the home with social workers or to attend any appointments on his own behalf. These had been repeatedly recommended with his GP in order to review his illness and treatment, and to certificate it for the purposes of his state benefits. As a result, his case was closed by the relevant mental health service, and his benefits were cut and the family existed on inadequate funds. Additionally, it meant that Mother was undertaking all such meetings outside the home, and Father missed contacts until Medway agreed to arrange them in the family home.
  109. Dr Mayer recommended further referral to mental health services and assertive treatment of Father's agoraphobia, such treatment usually providing improvement in symptoms. However, the nature of Father's disorder has meant that he has a history of repeated disengagement or failure to take up such services, and has not been taking any medication for a significant period. Dr Mayer confirmed that he could not envisage the Father being able to attend court to participate in this case, and indeed the Father confirmed that although efforts had been made to bring him to court while his father was still alive, these efforts had failed. As a result he had not even benefited from an intermediary assessment at court as intermediary organisations such as Communicourt declined to attend to do so at a private home.
  110. Taking into account the expert's analysis of Father's disability and its obvious practical implications for Father, efforts were undertaken to try and identify how Father might participate meaningfully in the proceedings.
  111. Video link venues outside his home were unlikely to be accessible given his agoraphobia, and his solicitors looked into the various options of setting up a link securely from his accommodation. Ultimately, after much research, a very few resources were identified: ranging from a formal build of a full ISDN (secure court service compatible) video link at a cost of over 40k for the duration of the hearing, to an encrypted skype link via Eyenetwork with a minimal hardware outlay of laptop, dongle and the encryption software and connection at a cost of c6k.
  112. This latter represented an extension to a whole hearing of the means approved by Mr Justice Peter Jackson in Re ML (Use of Skype Technology) [2013] EWHC 2091 (Fam). In that case it was used to hear the oral evidence of a witness at a remote location in Colombia. There appears to be no further authority for the wider use of this technology.
  113. I note that there is statutory provision in criminal trials for a variety of special measures including 'live link' resources via video link for vulnerable witnesses pursuant to section23-30 Youth Justice and Criminal Evidence Act 1999 and for vulnerable defendants pursuant to section33A. The somewhat (and perhaps puzzlingly) different tests for access to those resources that apply to witnesses and defendants is noted, but in this different investigatory forum is not a matter for further analysis here. There is no such similar statutory provision to assist in the Family Court.
  114. Accordingly, bearing in mind the exigencies of this case and the need to take a practical, creative and adaptable approach to the Father's right to participate in this hearing, the interests of justice to all parties, the central importance of the Father's evidence, and its potential impact on the court's decision-making process, the disproportionality of the costs involved in trying to establish a formal built-in video link, and the availability of an encrypted skype link that had been successfully used in the above cited case, I therefore approached my Family Division Liaison Judge in order to sanction the approval of the extension of this approach to the Father's evidence in this case with consequent cost to HMCTS.
  115. I accordingly, and with that approval, directed the use of a home-based Eyenetwork encrypted skype link for Father to participate throughout the June-July hearing. I additionally directed that relevant undertakings would have to be given by the Father, any legal assistant attending from his solicitor's office and any mental health advocate attending to support him to ensure that the proceedings were not being recorded, nor over-heard or overseen by others at the remote location.
  116. Additionally, and most helpfully, Medway agreed to fund the provision of a mental health advocate to support the Father in his participation by these means. This was because Father could not benefit from an intermediary as he had been unable to be assessed and its provision had therefore not been reported upon, and so could not be considered whether by way of funding from either the Legal Aid Agency or HMCTS in such circumstances. This mental health advocate proved to be outstandingly helpful in assisting the Father, the Father's team and the court with the difficulties posed in attempting to afford Father the opportunity of engaging with his lawyers and these proceedings, and I thank her (and Medway) for the outstanding efforts she has provided in those respects. She is not, however, a trained intermediary, and so the Father did not have the benefit of intermediary support throughout these proceedings, up to and including the first stage of this hearing before me in June-July and July before it was adjourned.
  117. Unfortunately, to add to the difficulties posed in facilitating Father's participation, shortly before the June-July hearing the parents were made homeless due to GY's death in March having ended the tenancy at which they had resided with him. This led to a period of significant further uncertainty for the parents, who used the late GY's car to sleep in while Mother attempted to identify accommodation. Inevitably, this became a central issue in achieving Father's participation, as it had been anticipated that the Father would be able to remain in the comparatively familiar surroundings of this tenancy which would have been the base for his end of the video link.
  118. Eventually, after requesting all possible assistance from Medway, including inviting members of the housing team to attend court, Medway again responded in a significantly helpful and creative way to this issue. Having initially found emergency B&B accommodation for the parents, this was found to be wholly inadequate and insecure in terms of providing a venue for the remote link. The walls were so thin that the proceedings or Father's comments could have been overheard from adjoining rooms or corridors, and fellow tenants demonstrated significantly disruptive and challenging behaviour such that Father's anxiety levels were so worsened that he did not feel able to stay there. Medway's housing team were able, exceptionally, to provide access to two rooms of an otherwise empty multi-occupancy accommodation. It was empty as Medway are, unsurprisingly, attempting to move away from the provision of this type of emergency accommodation, and therefore it was currently empty of tenants. Shortly before the June-July hearing began, therefore, the parents were able to move into this accommodation and the link proved to work successfully from one of their two rooms during the first two days of the June-July hearing, with no risk of being overheard or disrupted.
  119. As I have indicated already, this broke down following Mother's assault nearby and her ending their relationship soon after this hearing began. This resulted in Father suffering an anxiety attack, feeling unable to remain in that accommodation and effectively becoming homeless again and returning to sleeping in his father's car and sofa-surfing with a cousin. This in turn led to his returning the laptop and dongle as it was inappropriate to try and use it in such circumstances, and therefore for the first two weeks of the hearing the Father did not participate by the planned video link means.
  120. As a result of this turn of events, I directed a number of steps be undertaken. Firstly, I directed that the hardware and the availability of the encrypted link be retained in order to put it into place as soon as suitable arrangements could be made. Secondly, due to a growing concern about Father's well-being and his ability to participate, coupled with some parties' potential scepticism about the nature of Father's disorder given his apparent ability to move from place to place and to meet with Ms Bell following the parents' separation without apparent signs of anxiety, I directed that Dr Mayer provide a further update to his reports.
  121. Dr Mayer confirmed in his updating report dated 1.7.16 that Father continues to suffer from agoraphobia and generalised anxiety disorder, although the former is 'not entirely typical'. He confirmed that his anxiety levels are generally raised and his overall review was that he continues to be disabled by his anxiety and cannot cope with novel situations and becomes very anxious when interacting with people he does not know. He can spend time at specific familiar locations and travel between them in his father's car and can manage short distances outside his "comfort zone" with someone he trusts. Attendance at court was still considered to be likely to be beyond the Father's capabilities.
  122. Fortunately, accommodation was found to base the remote link in a room at a cousin's home for one day, and subsequently at his aunt and uncle's home. Its success was mixed. The signal itself was occasionally poor, requiring resetting from time to time, and there were additional minor technological hitches with the court equipment. If this method had not been disrupted by the Father's homelessness and had been operated from a stable remote location, it is likely that the occasional technological issues would have been resolved at an early point. Overall, despite Father's inability to use it at certain periods due to his anxiety and circumstances, I consider that it was a necessary, worthwhile and proportionate exercise in the circumstances of this case.
  123. The Father was able to give evidence for the best part of two hours on the first day he did so, with regular breaks as suggested by the advocate supporting him, and for the best part of three hours on the second day. This would simply not have been possible without the use of the home-based remote link.
  124. On each day, hearing evidence from him had to be stopped in the early afternoon due to significant fatigue and increasing levels of anxiety that were preventing him from participating effectively and being able to answer the questions necessarily put to him in this complex case. Even the intermediary present in court to assist LO drew the court's attention to signs missed by the court and the lawyers that he was increasingly fatigued and distressed due to his learning disability and anxiety disorder. On the day following the two days on which he had given evidence, his mental health advocate expressed the concerns I have already referred to relating to his fluctuating capacity. His representatives properly raised the necessity of further assessment of Father and of the need to halt his evidence at this point given the nature and degree of the concerns.
  125. Up until this point Father's counsel and solicitor had considered that he had sufficient capacity, and that they were content that his case and his interests could be properly represented using the arrangements that I have described above. And until this point, at all stages when Father was absent from court due to there being no use of the video link, his counsel confirmed that they were content to continue in his absence, that they had sufficient instructions to continue and that his firm instructions were to continue to represent him in his absence.
  126. Father therefore underwent the further capacity assessment by Dr Conning dated 2.8.16 confirmed his capacity to litigate may fluctuate due to his anxiety, but that he would be able to retain capacity if adequately supported by intermediary/advocate.
  127. The further updating assessment by Dr Mayer dated 25.8.16, and an intermediary assessment by Communicourt was achieved by their eventual agreement to attend at his aunt and uncle's home and their agreement to support him from there so long as a mental health worker/advocate was also present.
  128. The intermediary assessment unsurprisingly confirmed that Father needed an intermediary to support his participation in the proceedings. Their report dated 22.7.16 clarified via a comprehensive battery of assessments that Father needed an intermediary to support his understanding, engagement and meaningful participation.
  129. This raised the question of the cost of the intermediary's provision. Although the intermediary's attendance to support the Father was not taking place in a courtroom as such, but was to be at his aunt and uncle's home, I considered that the extension to that home of the proceedings via the video link was in effect an extension of the court process to that venue by those means in terms analogous to the live link provided for under the Youth Justice and Criminal Evidence Act. This justified the necessary undertakings that I have already referred to, and also justified the costs falling to the HMCTS as per the analysis in the cases I have referred to in paragraph 90 above.
  130. As it turned out, this further use of the Eyenetwork link to the paternal aunt and uncle's home was not required for the adjourned hearing in December and its use was cancelled. Due to some limited improvements made by the Father, and notable efforts made by his legal team and members of the court staff with whom the Father had become familiar during previous attempts to attend court, the Father planned to attempt to attend court for the adjourned hearing. He had managed to visit court for two trial runs and for the first day of the adjourned December hearing when he met with his legal representatives. Thereafter, however, he has not felt able to attend, but has been in contact with his legal representatives and visited by his solicitor during this final week in relation to the development of the agreed position.
  131. In effect, his only positive appearance in court and active participation at a hearing was achieved via the encrypted home-based video link.
  132. I thank all those involved for their hard work and co-operation in the process of resolving these novel and difficult arrangements to facilitate the Father's participation in this case.
  133. REMAINING ISSUES

  134. Notwithstanding the concluded position, there remained certain issues to be decided or where it was right for the court to express itself formally, namely: the position of the interveners; the consideration of the proposed Special Guardianship orders; and the conclusion of the section 31 proceedings brought by Medway with any ancillary directions.
  135. INTERVENERS

  136. This has inevitably been a distressing and confusing experience for both paternal aunts, particularly in the light of their cognitive difficulties. The strain on LY of having to remain involved since June-July has been evident. She has faced positive accusations by and estrangement from her own brother, and involvement in this case will have been additionally difficult having already lost her own children through separate care proceedings.
  137. I do not doubt that, to the extent that he understood his involvement, GY also suffered distress and confusion. It is a matter of great regret that the delays and difficulties in this case meant that GY died ten months after the start of the proceedings and before their resolution.
  138. LO At the conclusion of the first part of this hearing in July, it became necessary to review whether LO should remain as an intervener, and whether she remained a person who might fall into the group of perpetrators if this court were to find that R had suffered inflicted injuries. She had given oral evidence before me, and the nature of that evidence and the scope of the parties' challenge to it was plain.
  139. I was therefore invited to discharge her as an intervener at this opportune break in the case and to give a formal judgment setting out the position with the clarity that her involvement in the case required.
  140. I received position statements and heard submissions from all parties. All of which confirmed that following her oral evidence: Medway no longer sought to include her as a person against whom they sought findings and considered that the evidence could not amount to a finding that she injured R despite the theoretical opportunity; the other respondents confirmed that they raised no positive case against LO; and it was noted that none had sought to question her upon her description of her very limited involvement with R in a small shared home where she had no sole care of R and nothing untoward in her behaviour towards R was ever observed.
  141. Accordingly, in an extempore judgment given orally on 21.7.16, I discharged her as an intervener at the end of the first stage of this hearing in July. In summary, it covered the following matters.
  142. In considering whether, in the event that the court were to have gone on to make any findings that R had been deliberately hurt, LO would fall within any potential pool of perpetrators, I reminded myself of the relevant guidance found in N Yorkshire CC v SA [2003] EWCA Civ 839, namely whether there was 'a likelihood or real possibility'. I additionally bore in mind the helpful principles set out in Baker J's decision in Re JS [2012] EWHC 3170. I noted the applicable burden and standard of proof and that Medway were not seeking any finding against LO.
  143. I noted her statement dated 27.6.16 in which she very largely denies the accounts given by others of the very poor state of the home and confirms her belief that nothing was amiss. In her oral evidence LO's recollections were very limited, as expected from her cognitive profile, and she could give no detailed account of any of the key events. She occasionally appeared puzzled. I consider she was at all times trying to be genuinely helpful to the court and lacked guile. She was straightforward about admitting to what she could not remember, and equally clear about what she could. She was emphatic that she did not help with R a great deal, but that Mother and Father shared R's care, and she had changed an occasional nappy when supervised, or helped with making a bottle, but never cared for R alone or at night. She emphatically and touchingly denied hurting R and I was impressed at her evident genuine affectionate recollections of R as a small baby.
  144. This picture was not challenged by any party. I therefore found that on the balance of probabilities that it would not be possible to find there would either be a likelihood or a real possibility of LO being in any potential pool of perpetrators.
  145. LY Although the question of LY's role as an intervener has also been kept under careful review, the implications of her being blamed by the parents and of her assertion that the social media confession had probably been fabricated by one of the parents remained significant live issues before the court so long as either of the parents were seeking R's return to their care and/or Medway was seeking serious findings against the parents. LY therefore has remained an intervener until the conclusion of this case.
  146. I am also now invited to formally clarify her position and have received submissions on her behalf to that effect. I have read her statements and those of her neighbours and friends and her adult daughter SY. I bear in mind that I have not heard oral evidence from LY nor from the Mother, and only partial evidence from the F. However, I note that neither the Mother nor the Father now consider that their previous accusations of LY are correct.
  147. LY was accused by the parents of having been in their home and of behaving suspiciously around R shortly before her collapse in December. However, it became clear during the initial stages of the June-July hearing that LY could not have been there then. A note in the Social Worker records of a conversation with LY's therapist which appeared to suggest she had visited the home at this time is clearly an inaccurate summary of what LY said, which was that she had spoken to her brother by telephone at that time, and has not been borne out in the light of further evidence. Firstly, I have seen police records relating to an incident involving LY's daughter SY which clearly show that she was in London at her own home during the afternoon and evening of Boxing Day, the day in question. Secondly, there were no trains running from her station to the station she would travel to if visiting the parents on Christmas or Boxing Day. Thirdly, the parents now accept that LY was never in fact there at that time.
  148. LY was also accused of having probably injured R when she cared for her and had her to stay over a weekend in late January or early February 2015. The parents originally asserted that this was the early February weekend and that they saw some marks on R who was returned to them in a poor state. It was in the week following that the bruises to R's face were seen on Friday 13.2.15. I am entirely satisfied that R did stay with LY but over the weekend of 30-31.1.15. Photographs that show those dates confirm R was there then and have been analysed by Ms Low, a forensic computer analyst at Diligence. I have read her report and heard her evidence. This is further borne out by the unchallenged accounts of LY's neighbours, friends and her daughter SY who visited R at LY's home over that weekend.
  149. I am also entirely satisfied with LY's account which accords with the unchallenged account of her neighbours, friends and her daughter SY that R was properly cared for over that weekend, was seen by numerous visitors, that nothing amiss was noted in LY's care of R, and that the Mother attended LY's home at the end of that weekend to collect R and made positive comments about R's appearance and care at that time.
  150. I have considered the letter provided by LY's estranged teenage daughter ZY. In it she accuses her mother LY of being at the parents' home at the relevant time and of making various comments that would imply some responsibility for injuring R. It is not a sworn statement. I note that ZY is a vulnerable young person and has had a difficult relationship with her mother LY. Her letter is clearly fundamentally undermined by the contrasting evidence to which I have just referred, and for all those reasons I give it no weight. It is an unfortunate example of accusations that have arisen in this case.
  151. Accordingly, applying the same tests as I have referred to in relation to LO, I am again satisfied that LY should be exonerated of any involvement in the neglectful care of R now conceded by the parents, or of any theoretical responsibility for any of R's symptoms. This finding can properly be made on the background evidence to which I have just referred, and is not dependent upon nor affected by the position now taken by Medway not to pursue the findings of inflicted injury nor the developments in the expert medical evidence.
  152. Finally, I turn to the alleged confession on social media. It was made in the form of messages to the Father's facebook account, apparently from a facebook account belonging to LY under her previous name of LL. Firstly by a direct message to the Father from LL, and secondly what appears to be a conversation between LL and her friend Mr BN which is copied to the Father by LL.
  153. Ms Low explained that the content of the messages is just 'text'. There is no way of telling whether it was a genuine conversation between the person operating the LL Facebook account and Mr BN and was cut and pasted from a genuine conversation into the message box and sent to Father's account, or whether it was straightforwardly typed in and created from scratch as a fictitious 'chat' in the message box and there never was in fact such a chat conversation between those two Facebook users.
  154. LY has been clear throughout that she no longer had any access to any facebook account in the name of LL, and that she has very significant difficulties with remembering passwords and accessing her social media accounts. This was borne out in part by the evidence from her friend Mr BN. She has consistently asserted that she had never written those confession messages and knew nothing of these conversations until they were brought to her attention through these proceedings. A basic question inevitably arises: why would LY anyway have incriminated herself in this way? It would make no sense to do so.
  155. Having heard from Ms Low and read her reports and considered the social media entries in question, and bearing in mind the position to which the parents moved in not seeking to establish any positive case against LY, I consider that there is no evidence on which the court could safely rely to the necessary standard of proof to establish that LY had any responsibility for these confession messages.
  156. I also welcome as appropriate the position taken on behalf of LY that it would be disproportionate to pursue any finding that would place the blame for these messages elsewhere, that is to say upon either or both of the parents. This has been an important and painful issue for LY, but given the current progress of the case it is clear that disproportionate issues would have arisen in pursuing such findings.
  157. I therefore formally discharge her as an intervener in this case.
  158. SPECIAL GUARDIANSHIP

  159. In considering R's proposed placement with Mr and Mrs Z I have applied and considered the factors set out in the welfare checklist under section1 Children Act 1989. R's welfare interests are my paramount concern. I must only make an order if it is proportionate, necessary and in her interests to do so. I have borne in mind the engaged rights arising under Article 8 of the ECHR to respect for family life, and note that any order I make will interfere with those rights held here by R and her parents. In particular, with this last principle in mind, I note that both her parents support this placement.
  160. I have carefully considered the Independent Social Worker's report upon Mr and Mrs Z, the Social Worker's statement and plan recommending that they become R's Special Guardians, and the Children's Guardian's endorsement of that outcome in her final report. I have also seen the finalised SG support and transition plans which have resolved minor differences between Medway and Mr and Mrs Z, and which set out a child-centred approach to a move by R into their care before Christmas.
  161. I have noted the updating information given to me at court that Mr and Mrs Z have proved to be keen, consistent and anxious to meet their commitment to R as soon as possible and in ways that reflect their child-centred approach and their feelings of love and connection with her.
  162. They have been assessed in various ways by a number of professionals and in considerable depth most recently by Ms Hume the Independent Social Worker. They were the subject of two positive assessments in late 2015 by SWs Ms Murphy and Ms Bell. The negative assessment in Ms Murphy's updating assessment in May 2016 was as a result of various misunderstandings which I have mentioned earlier in this judgment. Ms Hume has addressed in detail with them a number of key issues.
  163. I am satisfied that they better understand the nature of R's difficulties and disorders. She is not the 'brain damaged' little girl that they had misunderstood her to be earlier in these proceedings. She is, however a little girl with some signs of developmental delay and with the additional mild physical abnormalities that I have already referred to. Mr and Mrs Z have met with her current treating paediatrician and have seen and will see relevant medical documents that are in her records or will be disclosed to them further from these proceedings. I am confident from what I have read that they are properly committed to learning about and meeting her various needs.
  164. While Mr and Mrs Z had expressed their own concern about their ages, and I note that they have both been long term smokers, I accept the professionals' opinions that these are not difficulties that should stand in the way of R's placement and that they intend to give up smoking again as they did last year when first putting themselves forward to care for R.
  165. I have been impressed by the open and thoughtful way in which the very difficult circumstances relating to Mrs Z's previous partner's death and the domestic abuse from which she suffered in that relationship have been addressed by all concerned. While this history is naturally of concern, in particular the estrangement from her adult son which has flowed from those events, I am satisfied that these issues are not any impediment to the care that Mr and Mrs Z would offer R. Their relationship is supportive and not abusive. They both have good relationships with their other children from their respective earlier relationships, and a network of positive supportive friends. Mrs Z is willing to seek counselling to deal with her feelings of loss and her experiences of abuse.
  166. Although too young to express her wishes and feelings, and although R is well settled with her loving foster carers, I am quite certain that she would want to be cared for within her own extended family by close family members who have over a long period and numerous assessments clearly shown love and commitment to her.
  167. I have at various points referred to R's characteristics, needs and relevant background. As mentioned above I am confident that Mr and Mrs Z are prepared for and committed to meeting R's typical needs as a toddler and as she grows older as well as her more complex and challenging developmental issues. Her identity needs are of course best met by a family placement.
  168. The harm she has suffered from neglectful care from her parents will not be replicated with Mr and Mrs Z, and the professionals are united in considering that they have the capacity to care well for her.
  169. Mr and Mrs Z are committed to ensuring contact with her parents is properly managed and supervised by them, which is currently planned to be at a minimum of twice per year. Ultimately, this will be a matter about which they, as her Special Guardians, will become the proper arbiters. Again the professionals have confidence in their future performance in their role as Special Guardians. I note no Supervision Order is sought to oversee this process.
  170. R will experience a disruptive change of placement in the short term, but into a family placement that has excellent prospects of giving her love, stability and a sense of belonging. Her last name will change, but this will help to bind her more closely into the care of Mr and Mrs Z.
  171. No alternative orders are sought by any party. Having considered the alternatives it is clear that Special Guardianship orders most appropriately reflect the role, that in the circumstances of this case, Mr and Mrs Z will be playing in R's life and the need for the enhanced parental responsibility it gives them over that of the parents.
  172. In conclusion, it is clearly overwhelmingly in R's best interests, proportionate and necessary in meeting those interests, for Mr and Mrs Z to be granted the Special Guardianship orders sought. I also grant the permission sought for R to be known by Mr and Mrs Z's surname.
  173. SECTION 31 APPLICATION AND DIRECTIONS

  174. No order is sought by Medway on their section31 application.
  175. I have seen a draft order setting out ancillary directions seeking certain further disclosure to Mr and Mrs Z.
  176. I make those orders and directions.
  177. HHJ Lazarus

  178. 1.17

  179.  

    APPENDIX 1

    ME15C00839

    Factual Background document

  180. R was born on xx xx 2014. She lived in a household comprising her parents, her paternal grandfather GY and her paternal aunt LO. From an early stage there was involvement with social services as a result of concerns raised by the Health Visitor and this involvement was ongoing at the time of her placement in foster care. A Child Protection Conference was convened on 29.1.15 and R was placed on a child protection plan under the category of neglect.
  181. On 26/7 December 2014, R suffered a collapse whilst in the care of her parents and they called an ambulance and she was taken to hospital. The ambulance crew report that R was limp, cyanosed around the lips and had rapid breathing. She was minimally responsive but quickly improved with oxygen. On examination at hospital she was seen to be very snuffly and the impression of the treating doctors was that she had an upper respiratory tract infection or gastro oesophageal reflux. She was discharged on 28 December 2014 but readmitted the same day. Again, she was in the care of her parents who called an ambulance. R was noted to be lethargic. The treating doctors again believed that she had an upper respiratory tract infection or gastro oesophageal reflux. She was seen to be clinically well and discharged. There was no suggestion at the time of either hospital admission of the need for any neurological examination and no scans were undertaken.
  182. On 13 February 2015 R was observed by a Family Support Worker to have bruising to the left side of her forehead and her left cheek and a left subconjunctival haemorrhage. The parents gave different accounts of when they first observed the bruising. She was admitted to hospital. A CT scan undertaken on 16 February 2015 and an MRI scan undertaken on 19 February 2015 revealed that R had chronic bilateral subdural haematomas. R was not tested at hospital for any connective tissue disorder and no platelet function tests were conducted. Only basic haematological testing was undertaken which excluded the possibility of R having a metabolic disorder. No retinal haemorrhages were found. A section 20 agreement was obtained from the mother but not from the father and R was placed in foster care on discharge from hospital.
  183. The local authority did not issue proceedings until 5 May 2015, 12 weeks after the admission to hospital on 13 February 2015. The proceedings have concluded on 16 December 2016. The main cause of the unacceptable delays in this case prior to June-July 2016 has been the repeated failure by the local authority to comply with court orders. The cause of the delay after June-July 2016 was the need to undertake tests on R that had not been undertaken at hospital and not recommended by the experts in the case previously instructed.
  184. The onset of the chronic subdural haematomas cannot be precisely timed but the experts agree that because of the presence of membranes they are likely to date back to before 5 February 2015. The haematomas could have occurred during birth or at some other time. Mr Richards, Consultant Paediatric Neurosurgeon, said that to attempt to date the onset of the haematomas would be "nothing more than speculative suspicion because the appropriate investigations and the diagnosis of an injury wasn't considered at the time". The evidence given at court was that research shows that at least 46% of children develop subdural haematomas at birth. There are a range of possible explanations for the presence of this symptom but it is not possible to identify which is the most likely with a sufficient degree of confidence. Mr Richards said there was a "very significant likelihood that she was born with subdural blood". He could not exclude the possibility that a birth-related bleed could have developed into a chronic haematoma. Dr Stivaros, Consultant Paediatric Neurosurgeon did not think that birth-related bleeding was a likely explanation. He did not identify any radiological evidence of underlying congenital or developmental brain abnormality. The experts then instructed (Mr Richards, Dr Stivaros and Dr Robinson (Consultant Paediatrician) and Dr Morrison, Consultant Opthalmologist)) had previously agreed at the experts' meeting in June-July 2016 that the most likely cause of the subdural bleeding was non-accidental head injury. However, all acknowledged that there were no other signs or symptoms to support this conclusion save that if the court were to find that the collapse R suffered in December 2014 was an encephalopathic event that might be such a sign or symptom. At this meeting and at the outset of the care proceedings the matters set out in paragraph 7 below were not known.
  185. R has not been reported to have had any subsequent significant episodes of illness or collapses. She has been identified as being developmentally delayed, being somewhat clumsy and flat-footed. As a result of these observations and possibly relevant aspects of family medical history chromosomal testing was arranged.
  186. In July 2016 the court directed reports from Dr Saggar, Consultant Geneticist, and Dr Keenan, Consultant Haematologist. Those reports revealed the following:
  187. a. R possibly has a minor connective tissue disorder and possibly Ehlers-Danlos Syndrome ('EDS') type 3. There is clinical evidence to support this: mild facial asymmetry, slight micrognathia, the pronation of the feet, late walking with clumsiness and unsteady gait and the 'thin' appearance to the skin, with visible veins. Easy bruising following minor or unnoticed injury is a feature of many connective tissue disorders.
    b. On genetic testing, two variants of unknown significance were identified in a gene called TNXB. This is associated with EDS due to tenascin-X deficiency. This is a form of EDS associated with a number of clinical features including very easy bruising. R has one normal functioning copy of the gene. A mutation in one copy could account for easy bruising.
    c. R has a duplication in the long arm of chromosome 17. This is extremely rare and has been reported in patients with developmental delay.
    d. The significance of the above results for R's particular presentation are unclear due to the current limitations in medical understanding and research
    e. Haematological testing suggests that R has a mild platelet function defect which could be an explanation for an increased tendency to bruise.
    f. The interplay of all the above factors are also of unclear significance for R's presentation.
  188. In light of R's unusual and complex constellation of clinical features the local authority did not invite the court to make and the court has not made any findings in relation to non-accidental injury both in respect of the chronic subdural hemorrhage or the bruising. The binary principle applies. Any future assessment of these parents must proceed on the basis that no findings have been made against them.
  189. The parents have been inconsistent in their accounts, about each other, the timing of events and particularly in connection with the possibility that her paternal aunt LY may have inflicted an injury on R, who at one time they directly accused of having been responsible both for bruising and head injury and for a number of other actions such as sending text messages and messages on social media and of inciting assault. They said she was present in the family home just before R's first collapse. The evidence indicates that she was not present at this time and there is no evidence to substantiate the parents' other suggestions or that LY did send text messages or messages on social media. Unchallenged evidence indicates that there was no reason to be concerned about R during the short period of time she was cared for by LY and the mother herself did not notice anything untoward when she collected her at the end of this period of care. Both parents withdrew the allegation that LY bore any responsibility for injury to R in the early part of the final hearing. It is acknowledged that both parents have cognitive limitations, these proceedings have run for a considerable time and the court did not, at the conclusion of the process, make findings that any person inflicted any injury.
  190. R was subject to a poor home environment and inadequate basic physical care. Examples include:
  191. a. The home was dirty and cluttered and on occasions unhygenic;
    b. The home, including R's bedroom, smelt heavily of smoke;
    c. The home smelt, including of cat urine;
    d. The parents, GY and LO had financial difficulties which led, on occasion, to insufficient food for the adults and a lack of appropriate or clean bedding;
    e. The mother found herself pulled in a number of different directions including caring for GY, trying to sort out the financial and housing difficulties and undertaking most of the household tasks. She regrets that she did not spend as much time playing with and stimulating R as she should have done.
  192. Within the home environment, good enough care was not provided for R. Examples include:
  193. a. R's bottom was not cleaned properly on occasions during a nappy change;
    b. R was, on occasions, dirty, stained and wet around her neck from vomit left on her baby grow;
    c. Bottles were not always washed or sterilised;
    d. Clothing and bedding for R was on occasions dirty and damp;
    e. R was brought down to be weighed by the health visitor on occasions wearing insufficient clothing and cold;
    f. On occasion, R's nappies were too big.

  194. The parents accept that the matters set out in paragraphs 10 & 11 above cross the section31 threshold.
  195. The mother also accepts the negative conclusions of the Sunlight assessment with regards to her capacity to parent and that she cannot provide adequate care for R.
  196. Dr Mayer, Consultant Psychiatrist, concluded that the father would not be able to care for R on his own in light of his difficulties and he accepts this.
  197. There were concerns raised about R's weight gain in the early part of 2015 due to her weight dipping below the 0.4th centile from time to time. In the view of Dr Robinson, Consultant Paediatrician, her weight chart did not reflect a serious failure to thrive and was not very concerning. Her failure to gain weight did not necessarily imply neglect. He said that she had regularly and properly been presented to medical professionals by the parents. From the time R went into foster care she has made good, steady weight gain and has been steady at around the 25th centile.
  198. The mother struggled prior to R's removal to cope with all the tasks she faced dealing with financial and housing issues and running the home and looking after the paternal grandfather without much help from others. As a result, she felt low and was unable to meet all R's emotional needs. She sustained a serious assault in June-July 2016 when she was hit from behind by unknown assailant(s) resulting in multiple bruising, a split lip and black eyes. She has had a number of periods of homelessness during the proceedings. More recently the mother has felt depressed and increasingly overwhelmed by issues of housing and finances and the length and complexity of the proceedings and "has not been thinking right". She realises that she has made bad decisions such as not attending contact or making herself available to meet with professionals. Since August 2016, she has not attended on a large number of occasions for contact with R. The mother has made a number of apparently contradictory statements to professionals which has caused them concern when working with her. At times, she did not want to talk about these proceedings because she felt sad about the loss of R from her care.
  199. The father suffers from health issues which impact upon his ability to provide for R's needs. He suffers from anxiety, depression and agoraphobia and can rarely leave his home. He stopped taking medication prescribed for anxiety and depression. Although the expert evidence recommended engagement with professional psychiatric services and a review of his medication, he has failed to engage in either respect. He accepts that he needs professional assistance in managing his anxiety. He struggled to deal with R who he said made him more anxious and left most of the care tasks to the mother. He has also had periods of homelessness during the proceedings and has had to deal with the loss of his father. He has not been able to manage to attend contact regularly.
  200. The parents have been enormously impressed with the response of Mr and Mrs Z to R's situation and are very grateful to them for putting themselves forward to care for her. They both agree that it is in R's best interests to live with them under a Special Guardianship Order and are fully supportive of that arrangement. They both agree that R's surname should be changed from 'B' to 'Z'. They both agree the contact proposals of twice a year with the addition of the words 'as a minimum'.


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