Bell-Collins Children v Secretary, Department of Family and Community Services (No. 2)

[2016] NSWSC 853

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Bell-Collins Children v Secretary, Department of Family and Community Services (No. 2) [2016] NSWSC 853
Hearing dates:	19, 20, 21, 22 & 23 October 2015 and 11 November 2015
Date of orders:	23 June 2016
Decision date:	23 June 2016
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Appeal dismissed. Decision of Children’s Court to leave the children in the care of the Minister upheld.
Catchwords:	FAMILY LAW AND CHILD WELFARE – Care and Protection – plaintiffs are parents of two children – both children suffer physical injuries in mid-2013 - plaintiffs appeal against orders of a Presidential Children’s Court pursuant to Children and Young Persons (Care and Protection) Act 1998, s 91 removing the two young children from the plaintiffs’ parents’ home and placing them in the care of the Minister – cause of injuries unexplained – parents say injuries were an accident – medical evidence suggests injuries may have been the result of intentional acts whist the children were in the care of the parents - whether the injuries were caused intentionally or recklessly by one or both of the parents – whether restoration of the children to their parents would give rise to an unacceptable risk of harm to them – whether a reasonable possibility of restoration of the children to the plaintiffs exists – whether the children should remain in the care of the Minister or in the care of their great grandparents.
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 Children’s Court Act 1987, s 22A Children’s Court Regulation 2014, r 5 Civil Procedure Act 2005, s 86 Uniform Civil Procedure Rules, r 6.24
Cases Cited:	Bell-Collins Children v Secretary, Department of Family and Community Services [2015] NSWSC 701 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Department of Family and Community Services (NSW) and the Bell-Collins Children [2014] NSWChC 5 DFaCS (NSW) re Oscar [2013] NSWChC 1 Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 Gianoutsos v Glykis [2006] NSWCA 137 In the matter of Campbell [2011] NSWSC 761 M v M (1988) CLR 69; [1988] HCA 68 Re Tracey [2011] NSWCA 43 T v H & Ors [1985] NSWSC, Unreported 19 December 1985
Category:	Principal judgment
Parties:	First Plaintiffs: The Mother and the Father Second Plaintiffs: The Great Grandparents First Defendant: Secretary, Department of Family and Community Services Second Defendant: The Minister, Department of Family and Community Services Third Defendant: Independent Legal Representative for the Children
Representation:	Counsel: First and Second Defendant: Mr M.W. Anderson Third Defendant: Ms D.Ward, for the Children   Solicitors: First Plaintiff/children’s father: in person Second Plaintiff/children’s mother: in person First and Second Defendant: Lea Armstrong, Crown Solicitor Third Defendant: Daniel Kennard, Legal Aid Gosford
File Number(s):	2014/325110
Publication restriction:	No

Judgment

1. The plaintiffs bring this appeal pursuant to Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”), s 91 against orders of the Children’s Court made on 9 October 2014 allocating parental responsibility for their two children to the Minister of the Department of Family and Community Services (“the Minister”) until they reach the age of 18 years: see Department of Family and Community Services (NSW) and the Bell-Collins Children [2014] NSWChC (“the Children’s Court judgment”).

2. The primary judge, Johnstone DCJ, the President of the Children’s Court is a District Court judge. So the plaintiffs’ appeal is properly brought before this Court, rather than the District Court, in accordance with Children’s Court Act 1987, s 22A and Children’s Court Regulation, r 5: In the matter of Campbell [2011] NSWSC 761, at [4].

3. In the Children’s Court, the President made a final care order for parental responsibility for the two young children. The children had been assumed into care on 18 July 2013 pursuant to Care Act, s 44. On 23 July 2013 the Secretary commenced proceedings for a care order in the Children’s Court pursuant to Care Act, s 45 and on 24 July 2013 the Children’s Court made interim care orders allocating parental responsibility for the children to the Minister. The children have been living in foster care since late July 2013.

4. This appeal is a rehearing of the evidence before the primary judge, which allows for the admission of fresh evidence: Care Act, s 91(2). That will often involve, as it did in this appeal, the admission as evidence of the transcript of the proceedings before the Children’s Court: Care Act, s 91(3). The decision of this Court will be taken to be a decision of the Children’s Court and take effect accordingly: Care Act, s 91(6) and Gianoutsos v Glykis [2006] NSWCA 137.

5. The first plaintiffs are the children’s parents. On this appeal, they seek restoration of the children to their care. They and the other parties and witnesses will generally be described for the reader’s convenience throughout these reasons by reference to their relationships to the two children. But the title to these proceedings still uses the pseudonyms ordered by the Children’s Court. The first named first plaintiff will be referred to as “the mother”. The second named first plaintiff will be referred to as “the father”.

6. The second plaintiffs are the children’s maternal great grandparents. On this appeal, they seek restoration of the children to their care if the children cannot be restored to the parents. The first named second plaintiff will be called the “great grandfather” and the second named second plaintiff will be called the “great grandmother”. The children’s paternal great grandparents played no role in the proceedings, so the maternal great grandparents do not have to be distinguished in these reasons from the paternal great grandparents.

7. This Court granted the great grandparents leave to be joined as parties in June 2015 but upon terms limiting their role as parties: Bell-Collins Children v Secretary, Department of Family and Community Services [2015] NSWSC 701.

8. The current contact regime between the parents and the two children permits the parents to have supervised access visits with the children once every two months. During the pendency of both the Children’s Court proceedings and these proceedings the parents have taken up this opportunity for access to the children. The parents have an alternative claim for additional time to see the children, particularly on birthdays and at Christmas.

9. The first and second defendants in these proceedings respectively are the Secretary (“the Secretary”) of the Department of Family and Community Services (“Community Services”) and the Minister. The Secretary and the Minister submit that the Children’s Court decision was correct and should be confirmed by this Court pursuant to Care Act, s 91(5). The independent legal representative for the children (“the ILR”) supports the Secretary and Minister’s position that parental responsibility for the children should remain with the Minister until they are 18.

10. A primary issue to be determined on this appeal is, as it was before the Children’s Court, whether there is within Care Act, s 83 a “realistic possibility of the restoration” of the children to the parents. This in turn raises a factual question as to the provenance of various injuries that were undoubtedly sustained by the two children up to July 2013 before they were assumed into the Minister’s care. The younger son had a skull fracture, a rib fracture and a fracture to the right femur. The older son had bruising to his body and unusual skin lesions including three linear well circumscribed areas of damage to his mid-back area, but no fractures. The Secretary and the Minister contend that these injuries were caused to each child by intentional or reckless actions of one or other, or both, of the parents when the children were in the parents’ care. The parents respond that the injuries are best explained by causes other than misconduct on their part.

11. With limited exceptions these reasons generally use the names of the medical professionals who were involved in the medical care and the medical assessment of the two children. An exception arises in a limited number of cases where the identity of local medical practitioners and local hospitals may possibly indicate the identity of the children or their parents. In these few cases generic names are used for the medical professionals and institutions in question.

12. First, some procedural background is required.

The Children’s Court Proceedings

13. The children were assumed into care on 18 July 2013. The Secretary commenced a care application in the Woy Woy Children's Court on 23 July 2013 seeking that parental responsibility for each of the children be allocated to the Minister until the age of 18.

14. On 24 July 2013 the Children’s Court made interim orders allocating parental responsibility of the children to the Minister.

15. On 23 August 2013 the great grandparents sought to be joined as parties to the proceedings and to have the children placed in their full time care. The President did not join them as parties but allowed them to participate in the hearing by filing affidavits, giving evidence and advancing submissions.

16. An interim contested hearing first took place in the Children’s Court on 9 September 2013, concerning the short-term placement of the children. In that contest the Director-General sought a finding that the two children were in need of care and protection relying on grounds under Care Act, s 71(1)(c) and (d), namely that the children were likely to be physically abused or ill-treated or that their basic physical and psychological needs were likely not to be met by their parents. The Children’s Court magistrate found that the children were in need of care and protection due to their insufficiently explained injuries.

17. During the Children’s Court proceedings and on 12 September 2013, Assessments Australia, an independent assessment body engaged for the purpose, issued a report recommending that the great grandparents not be approved as short term, long term or respite carers for the children. The opinion of Assessments Australia was that the great grandparents were unable to demonstrate that in the long term they would be able to offer the children a safe, secure and nurturing environment.

18. On 15 November 2013 Community Services filed Care Plans, one for each child, under Care Act, s 78. The Care Plans assessed that the parents were capable of caring adequately for the two children for short periods of time but that due to the severity of the children’s injuries and the length of time it had taken the parents to get them medical aid, there was an unacceptable risk to each child of abuse. That in turn meant that there was no realistic possibility of restoration of the children to the care of their parents.

19. The Care Plans were filed in the Children’s Court proceedings without attaching a proposed contact regime. But Ms Templeton gave evidence in these proceedings that the proposed contact regime would allow for the parents to have supervised visits with the children for a minimum of two hours every second month, following final orders of the Children’s Court.

20. The Children’s Court proceedings were heard on 18 and 19 June 2014. Johnstone DCJ made final orders on 9 October 2014. The President found there was no realistic possibility of restoration of the children to the parents and that placement with the great grandparents would give rise to an unacceptable risk of harm. He considered that the permanency planning had been appropriately and adequately addressed. The President allocated parental responsibility for the children to the Minister until the age of 18 and ordered the Secretary to file, within 11 months, a report under Care Act, s 82 regarding the suitability of arrangements concerning parental responsibility. These reasons have drawn upon the comprehensive reasons for decision of the President, especially in recording the narrative of the principal events relevant to the issues for determination.

The Supreme Court Proceedings

21. On 4 November 2014 the parents filed a Summons in this Court seeking to appeal against the decision of the Children’s Court under Care Act, s 91. Their Summons sought by relief the setting aside of Johnstone DCJ’s orders of 9 October 2014 on the grounds that: (1) there was no independent assessment of any risk posed by the parents to the children; (2) there was no independent assessment of the parents’ parenting capacity; (3) the Children’s Court erred in finding there was an unacceptable risk of harm to the children; (4) the Children’s Court erred in finding there was no realistic possibility of restoration of the children to the parents; and (5) the Children’s Court erred in finding that the unexplained injuries to the children were likely to have been caused by the parents. The Summons sought relief that the children be placed with the parents, or in the alternative, the great grandparents pending the final determination of the matter.

22. On 15 April 2015 the plaintiff parents filed a Notice of Motion seeking that the great grandparents be joined as parties to the proceedings under Uniform Civil Procedure Rules, r 6.24 and Care Act, s 98(3).

23. On 2 June 2015 this Court granted leave to the great grandparents to be joined as parties who could take part in the hearing: Bell-Collins Children v Secretary, Department of Family and Community Services [2015] NSWSC 701. But the Court approved their joinder on terms and restricted their capacity to take part in the proceedings. Their involvement was subject to limitations, that they: (1) file evidence; (2) make submissions in relation to the placement of the children, in the event that the Court were to find that there was no realistic possibility of restoration to the care of their parents; (3) sit in Court as support persons for the parents; (4) see all evidence filed; and (5) cross-examine only in relation to the question of their suitability as potential carers for the children, and such cross-examination would be limited to persons from Assessments Australia, or any other person who has conducted an assessment of the great grandparents’ fitness to care for the children, including the relevant case workers or case work manager. Through the great grandfather they took up the opportunity at the hearing to ask questions of the witnesses.

24. The proceedings before this Court were heard from 19 to 23 October 2015, and then on 11 November 2015 for final submissions. The parents and the great grandparents represented themselves on the appeal. Mr M Anderson of counsel appeared for the Secretary and the Minister. Ms D Ward of counsel appeared for the children.

Legal Principles and Credibility Issues

25. Care Act, s 8 sets out the objects of the Act. The Care Act is administered under the principle that the safety, welfare and wellbeing of the children concerned are paramount: Care Act, s 9(1). More particular principles are to be applied in the administration of the Care Act, as are set out in Care Act, s 9(2), 10, 11, 12 and 13.

26. It is well settled that in decisions under the Care Act involving the removal, restoration, contact, custody and placement of a child, the paramount concern for the safety, welfare and wellbeing of the child means that the proper test to be applied is that of “unacceptable risk to the child”: M v M (1988) CLR 69; [1988] HCA 68 at [25]. Whether there is an unacceptable risk of harm to the child may often have to be assessed from an accumulation of factors proved according to the relevant civil standard of proof.

27. The younger the child is, the greater the need for an early decision in relation to the child’s permanent placement if the child is to be placed in out-of-home care: Care Act, s 9(2)(e) and s 78A. The course to be followed in deciding what action is necessary to protect a child must be the “least intrusive intervention in the life of the child”: Care Act, s 9(2)(c). The Court must not allocate parental responsibility without giving particular consideration to this principle; and must be satisfied that any other order would be insufficient to meet the needs of the child: Care Act, s 79(3) and see Re Tracey [2011] NSWCA 43.

28. The Court must not make a final care order under Care Act, Chapter 5, Part 2 unless it expressly finds that permanency planning for the child or young person has been appropriately and adequately addressed and, that prior to approving a permanency plan involving restoration there is “a realistic possibility of restoration” having regard to the circumstances of the child and the evidence, if any, that the child’s parents are likely to be able to satisfactorily address the issues that led to the removal of the child from their care: Care Act, s 83(7) and In the matter of Campbell [2011] NSWSC 761.

29. Concept of “a realistic possibility of restoration” to the child’s parents is initially one for the Secretary to make: Care Act, s 83(1). But then it is for the Children’s Court to decide whether to accept that assessment: Care Act, s 83(5). If the Court does not accept the assessment then it may direct the Secretary to prepare a different permanency plan: Care Act, s 83(6).

30. I have discussed the meaning of this term “a realistic possibility of restoration” in In the matter of Campbell [2011] NSWSC 761. The President of the Children’s Court has also discussed the relevant principles in a number of judgments: see DFaCS (NSW) re Oscar [2013] NSWChC 1 at [29] – [34].

31. Once the Secretary makes an assessment as to the realistic possibility of restoring the child to the child’s parents and applies to the Children’s Court for orders, then the Secretary presents a Care Plan to the Children’s Court: Care Act, s 78. The Care Plan must address the issue of permanency planning for the child in the context of the allocation of parental responsibility between the Minister and the parents while the child is removed from the parents’ care: Care Act, s 78(2). The parents and great grandparents raised issues concerning the permanency planning for the children. These issues and the relevant law are addressed separately later in these reasons.

32. When injuries are occasioned to children in the care of their parents and the injuries are either unexplained or not satisfactorily explained, the assessment of the issue of unacceptable risk of harm to the child can be more complex than where the injuries are explained. Justice Hodgson examined this kind of situation in T v H & Ors [1985] NSWSC, Unreported 19 December 1985 at 18 (“T v H”), where he said:

“Accordingly, on the balance of probabilities, it seems to me that the Plaintiff would be in danger if he was at this time returned to the care of the Second Defendants. Had there been an explanation of his injuries, the result may have been different. If the cause of the injuries was known, and was acknowledged by the person responsible, one could assess the likelihood of that person acting again so as to cause the injuries. It would be possible to assess the risk involved to the Plaintiff, and to weigh that against the advantages of returning the Plaintiff to his parents. However, in the absence of any explanation, it is far more difficult to assess and weigh the relative advantages and disadvantages in this matter.”

33. The applicable procedural and evidentiary principles may be shortly stated. On an appeal under Care Act, s 91, the District Court, and this Court where applicable, have all the functions and discretions of the Children’s Court under Chapter 6 of the Care Act for the purposes of hearing and disposing of the appeal: Care Act, s 91(4).

34. Care and protection proceedings are not to be conducted in an adversarial manner and should be conducted with as little formality and legal technicality and form as the circumstances permit and the Court is not bound by the rules of evidence: Care Act, s 93. In these proceedings the parents and the great grandparents were not legally represented and this principle assumes special importance.

33. The relevant standard of proof is on the balance of probabilities: Care Act, s 93(4). The High Court’s decision in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 is relevant in determining whether the burden of proof on the balance of probabilities has been achieved: Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 (“Re Sophie”).

34. The Secretary will not fail to satisfy the burden of proof on the balance of probabilities simply because hypotheses cannot be excluded which although consistent with innocence are highly improbable: Re Sophie at [67] – [68], per Sackville AJA. There his Honour described the burden of proof the following way:

The reasoning process I have outlined involves an error of law. The primary Judge, although stating the principles governing the burden of proof correctly did not apply them correctly. It was appropriate to take into account the gravity of the allegation of sexual misconduct made against the father, as required by s 140(2) of the Evidence Act. It was not appropriate to find that the Director-General had failed to satisfy the burden of proof on the balance of probabilities simply because his Honour could not exclude a hypothesis that, although consistent with innocence, was “highly improbable”. To approach the fact-finding task in that way was to apply a standard of proof higher than the balance of probabilities, even taking into account the gravity of the allegation made against the father.

As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly. In the end, however, as Ipp JA observed in Dolman v Palmer at [47], the enquiry is simply whether the allegation has been proved on the balance of probabilities.

Credibility of Witnesses

37. This appeal was a new hearing in accordance with Care Act, s 91(2). The parents gave evidence and were cross-examined. A number of caseworkers and medical professionals who had been involved with the children gave evidence on the appeal for the first time. The Court makes the following observations about the credibility of the non-medical witnesses and the parties who gave evidence on the appeal. The medical witnesses and their evidence are dealt with later in these reasons.

38. The Mother. The mother conducted her own case including the cross-examination of the witnesses called for the Secretary and the Minister. She mostly did so with confidence and self-assurance. Her questions were generally relevant to the issues that her and the father’s appeal raised. Her evidence and submissions exhibited good familiarity with detail of the relevant facts. But throughout the evidence she maintained resolute refusal to accept the probable inferences from the facts. She never abandoned her opinion that the injuries to her two sons must be accidents that were best explained by some bone weakness. On such issues the Court ultimately had difficulty relying upon her account.

39. The Father. The father was a mostly reliable witness. He attended closely to the questions asked of him. He gave answers indicative of above average intelligence with quite sophisticated use of language. But on issues close to the injuries the children had suffered he could often refuse to accept the obvious. In this area he had a tendency to adhere, despite questioning, to improbable versions of events. And his various accounts of how the injuries occurred to the children changed sufficiently that he cannot be relied on on this issue. But he was not overawed by the process of cross examination and was well able, when he saw fit, to put his point of view across in answer. He could be quite strong and firmly reject propositions in cross-examination with which he disagreed. Like the mother he was unwilling to accept medical evidence as to how the injuries had occurred that was inconsistent with his own theories.

40. The Great Grandfather. The great grandfather presented his own case and gave frank evidence about bringing up the mother and her mother. In my view, he gave a good account of their past family life without exaggeration or embellishment. When it came to what caused injury to the children the great grandfather expressed deep reluctance to accept the medical evidence. He was prepared to rule out harm by the parents to the children and the inferences from the medical evidence that the children’s injuries were caused by intentional acts of the parents. He adhered without wavering to the improbable belief that the children must have some undiagnosed medical weakness that accounts for what happened to them. He explained his belief this way “what I’m saying is that there is so much doubt still within the whole situation. I don’t believe that just because a doctor says that a spiral fracture is most likely caused by child abuse that it necessarily is. So I just don’t take it because he said it was that it is. I know he is qualified to make that decision, but that decision and that recommendation is on the basis of probability”.

41. The Great Grandmother. The great grandmother also gave evidence and was cross-examined. She was content for the great grandfather to present her case for her in submissions. She firmly adhered to her view that “I do not believe that they [the parents] deliberately hurt their children. I haven’t changed that position and I’m still in that belief”. She made clear, as did the great grandfather, that her statement “deliberately hurt their children” embraces the possibility that the parents may have done something, which they did not necessarily intend to harm the children but which would still have had that result. She is firmly of the view that the children could not have been harmed by any deliberate actions of the parents even without the parents having an intention to hurt the children. Like her husband, the great grandfather, her views on this issue was unshaken.

42. Ms Janet Templeton. The local Community Services caseworker, Ms Templeton, was an excellent witness. She answered the mother’s questions well and engaged with her in a way designed to reduce the tension inherent in the proceedings. The Court has no reason to doubt any part of her evidence.

43. Mr Jeffrey Paterson. Mr Paterson is a social worker with Assessments Australia who prepared the report dated 12 September 2013 in relation to the ability of the great grandparents to be long term carers for the two children. He was an excellent witness who showed comprehensive knowledge of his subject and empathy for those he was interviewing. The Court accepts all of his evidence.

44. Ms Janelle Kachel. The caseworker with Challenge Children’s Services (“Challenge”) with current day-to-day casework responsibility for the children is Ms Janelle Kachel. Ms Kachel had only been with Challenge since January 2014. But she showed a high degree of professional judgment in answering questions and dealing with her brief in relation to the children. When cross-examined she drew important and thoughtful distinctions as to what was and what was not age-appropriate for the two boys. The Court assessed her as a witness of truth.

45. Ms Kachel was unable to say why the phrase “Duck’s Disease” had been entered under the “Health” section of the Challenge form in relation to the mother. She says, and I accept, that she was not responsible for this entry and did not know who was responsible for it.

Narrative of Findings – the Parents & the Great grandparents – 1994 to 2014

46. The Court will now set out a more detailed narrative of relevant findings concerning the assumption of the children into care. This narrative sets out the Court’s relevant findings on both controversial and non-controversial issues of fact, except for such issues as must be resolved through medical evidence. The medical issues are considered separately later in these reasons. For reasons of economy the narrative does not always set out versions of events which the Court considered but rejected, before reaching the findings made here.

The Mother’s early life and her relationship with the Father

47. The mother was born in 1994 and is now ages 22. She spent most of her early years living with the great grandparents, who played a major role in her upbringing. Even in Court during the hearing in these proceedings their continuing closeness to the mother was clear. The mother’s own mother also lived in the same household for periods of the mother’s early life.

48. At the age of 13, the mother was diagnosed with bi-polar disorder. She continues to control her bi-polar condition with prescribed medication. During her early to mid-teenage years she displayed a number of high risk and damaging behaviours said to be consistent with her bi-polar disorder that brought her to the attention of Community Services: she ran away from home; she lived for a period with an abusive older man with a criminal history and drug and alcohol problems; she became pregnant and suffered a miscarriage after this older man was violent towards her; she engaged in unprovoked acts of violence; and in 2009 she was admitted to hospital after overdosing on heroin.

49. Following this intensely troubled period, the mother returned to live with the great grandparents at their home. Their welcoming her into their home helped change her for the better: it is not in contest that she has not been involved with drugs or abused alcohol since then.

50. The father was born in 1992 and is now aged 24. His early life included one incident in which he was the victim of an assault which left him with heightened anxiety reactions. The father claims, and I accept, that his relationship with the mother assists him with managing his anxiety. His health and early life otherwise appear to be unremarkable. He says himself that he demonstrates some obsessive compulsive behaviours. But he does not have any diagnosed psychological disorder. In 2010, the father and the mother commenced a close personal relationship. When their relationship started he was approximately 18 years old and she was approximately 16 years old.

51. In December 2010 the father and mother commenced living together at the home of the great grandparents. Apart from the great grandparents, the parents shared this home with the mother’s own mother, two of the mother’s siblings and another of the great grandparents’ granddaughters. Later the great grandparents moved into a self-contained granny flat located above the garage, adjacent to the main house.

52. The father and mother were still together at the time of this appeal. It appears to this Court, as it did to the Children’s Court according to its findings, that their relationship remains a loving, supportive one that shows no evidence of domestic violence.

The Parents and their two sons

53. In January 2012 the couple gave birth to their first child, a son (called in these reasons “the older son”). At the time of this judgment he is aged 4. There were no concerns at the time of the older son’s birth as to his safety. Nor were any issues raised about the ability of the parents to care for the older son during most of 2012.

54. The mother became pregnant again later that year. During her pregnancy she ceased taking medication for her bi-polar disorder. She feared it might have adverse effects on her unborn child. Her decision was taken without medical advice. This decision led to her suffering severe mood disturbances. By early December, the mother had an episode in which she shaved off all her hair. She says that she did this as a coping mechanism.

55. On 4 December 2012 the mother visited her General Practitioner (“the GP). She told him that leading up to the head shaving incident she had been “feeling flat for several weeks” and “a little bit numb”. She also told him that she was concerned about having a “blackout” and becoming aggressive. The mother consulted the GP again the following day. On this second visit, she declined the GP’s offer of mental health service support. The mother said she was already receiving sufficient immediate support from her older sister who lived in the same house, and her own mother who visited the house on a regular basis. She also pointed to the daily support of her great grandmother who lived on the property.

56. The idea of the father becoming the mother’s full-time carer was also discussed with the GP. Shortly afterwards, he became approved with Centrelink as her full time carer and assumed this role. On 18 January 2013, Community Services allocated a caseworker to the family.

57. In February 2013 the mother gave birth to the couple’s second son (“the younger son”). At the time of this judgment he is aged 3. A month after his birth by elective c-section the younger son was referred to a specialist consultant paediatrician, Dr Buckmaster, following up concerns about his newborn screening test results, which showed slightly elevated TSH, the thyroid stimulating hormone. Dr Buckmaster gave evidence in the proceedings in the Children’s Court.

58. TSH is a hormone released from the pituitary gland, which in turn stimulates the thyroid gland to produce the thyroid hormone, thyroxine. Elevated TSH suggests a thyroxine deficiency. TSH becomes elevated when the pituitary gland attempts to make more TSH to stimulate the thyroid to generate enough extra thyroxine to overcome a thyroxine deficiency.

59. On 20 March 2013 Dr Buckmaster arranged tests which revealed that the younger son did not have a thyroid gland. Hypothyroidism, from the absence of a thyroid gland, can be treated on an ongoing basis with thyroxine replacement therapy. The younger son was immediately given this therapy under the supervision of Dr Buckmaster. He soon became clinically and biochemically euthyroid: he had normal thyroid function with an appropriate TSH level. But maintaining this euthyroid state requires the younger son to take daily medication. As these reasons will later show, some periodic fluctuations in his TSH and thyroxine levels were later detected.

60. The Community Services caseworker continued to monitor the progress of the young family. Following the birth of the younger son, the caseworker visited the home and undertook safety assessments. The caseworker did not then consider that the younger son was at risk of harm. The caseworker did note as a result of these assessments that the older son suffered from eczema.

61. Following the birth of the younger son, the mother resumed taking medication for her bi-polar disorder in May 2013.

Injuries to the children appear – May to June 2013

62. In early May 2013 the younger son suffered unexpected injuries. The father says these injuries were caused when he allegedly tripped over whilst he was carrying the younger son. But versions of just exactly how the injuries occurred have varied over time and are one of the credit issues with the father’s evidence. Whether there was such a fall is in strong contest on this appeal, as it was before the Children’s Court hearing.

63. These injuries came to Community Services attention when the caseworker visited the household on 7 May 2013. In the caseworker’s account the younger son had some minor facial injuries including cuts to the nose and a graze under his left eye. The caseworker says that the father told her that the previous day, 6 May he fell over some clothes whilst holding the younger son in an upright position on his right shoulder, whilst the baby had a dummy in his mouth. I accept this is what the father told the caseworker.

64. But the father later altered his version of events. He said later that he had tripped over the leg of the bassinette, whilst holding the younger son on his left shoulder, and that the baby had hit his head on the father’s shoulder during the fall. He also told the Court that he passed out for a few seconds during this fall, and could not remember what happened. The changes to the father’s version will be discussed later in these reasons.

65. The caseworker noted the details of this alleged incident during her visit on 7 May 2013. She noted minor facial injuries to the younger son. Her home visit notes were tendered before the Children’s Court (Exhibit D). They record the following:

“The younger son had an injury on his nose and under his left eye. The nose had two cuts approximately an inch long each on the right side of his nose and slightly left of centre. They were not deep and looked clean. There was a small graze under the younger son’s left eye. There was no bruising or swelling and the younger son’s breathing did not appear to be affected, he was breathing normally…

The father said he had fallen over some clothes that were at the end of the bed when he was returning the younger son to his cot yesterday morning. He was carrying the younger son in an upright position on his right shoulder. The younger son had a dummy in his mouth. As he felt himself fall he brought out his left hand to take the impact of the fall and lifted his elbow of his right arm to help keep the younger son in his arm… the younger son bumped against his arm a couple of times as the father rebounded on the bed from the fall. The younger son began to cry and there was blood on his nose.

The father and the mother said they put gauze on his nose and settled him down again… They decided not to take the younger son to the GP as the cuts were not deep, his breathing was fine and there was no bruising or swelling. The younger son is seeing specialist [Dr Buckmaster] tomorrow and the GP, as the mother is requesting to be medicated as her sleep patterns are getting worse.

The younger son’s injuries were consistent with the father’s explanation of how the injury occurred.”

66. The mother told the caseworker that she was in the shower at the time of the early May 2013 incident. The record of the mother’s account to the caseworker is as follows: the father had come into the bathroom carrying the younger son, who had blood coming from his nose and a cut under his eye; the father claimed he had tripped over the bassinette whilst holding the baby; the mother recalled seeing fresh blood on the younger son’s pacifier; the mother gave the baby some Panadol following the incident.

67. This incident did not indicate that the younger son had incurred more serious injuries, than the superficial cuts and the graze to his face. The caseworker saw no bruising or tenderness to other parts of the baby’s body. The history did not raise immediate suspicion for the caseworker, who told the parents at the time that the injuries looked like they had been an accident.

68. The following day, 8 May 2013 the parents took the younger son to see Dr Buckmaster for a routine follow-up in relation to his thyroid condition. The doctor examined the baby and noted that he had suffered superficial skin loss over the bridge of the nose and a small sub-conjunctival haemorrhage, but no bruising elsewhere. The father told Dr Buckmaster that he had been holding the baby in his arms, walked forward, and tripped over the bassinette in the bedroom.

69. During the consultation, the father also told Dr Buckmaster that the baby’s right leg movement appeared to be limited. On clinical examination the doctor found that the younger son had a full range of movement of the right leg with no tenderness or bruising. But the doctor scheduled a precautionary x-ray of the baby’s leg, because there appeared to be reduced movement on that side. The x-ray was taken on 15 May 2013 and revealed no fractures or injuries to the leg at that time. Nothing in Dr Buckmaster’s clinical examination indicated on 15 May a need for any other tests or x-rays in the region of the younger son’s rib or skull.

70. On 26 June 2013 Dr Buckmaster had a further consultation and examined the younger son. He found him to be a healthy and happy boy, growing well and developing nicely with no injuries on examination. Dr Buckmaster assessed him at that time to be euthyroid, both clinically and biochemically.

66. Towards the end of June 2013, the older son sustained a black eye. The mother says she did not witness the incident that caused this injury but noticed it one morning. The mother says the older son is a "climber". She speculated that he may have been injured whilst trying to climb out of his cot at night. The mother reported to Dr Buckmaster that the older son’s eczema was causing him trouble. She attributed various grazes that were also then observed on his cheek and chin to his eczema.

More Serious Injuries Appear – July 2013

72. On 5 July 2013 the parents took the younger son to the local Medical Centre to have his routine vaccination. When the local Medical Centre doctor administered the vaccination injection into the upper part of the baby’s right leg he started to cry. The area was tender to the touch. The local Medical Centre doctor did not undertake further investigation of this tenderness that day.

73. On 12 July 2013 the parents took the younger son to see a second general practitioner, Dr George at the local Medical Centre stating that he had been crying every time his right leg was touched over the past 5 to 7 days. Dr George examined the younger son. In issue in the Children’s Court proceedings and on appeal was whether Dr George moved the baby’s leg into different positions to undertake this examination. But it is not in issue that Dr George made clinical findings on examination of swelling and tenderness in the baby’s right hip and knee.

74. Dr George immediately referred the baby and the older son to the Emergency Department at the local District Hospital for “urgent assessment and screening for non-accidental injuries”. To reinforce his referral he telephoned the Emergency Department at the hospital to convey his concerns about the injuries he had just observed to the younger son. On the arrival of the parents and the younger son at the Emergency Department the paediatrician on call in Emergency, Dr Shorter, examined both the children. First, he noted that the younger son had swelling and a lack of spontaneous movement in his right leg. He was also observed to have old bruises to his left thigh, hip, knee, elbow and shoulder.

75. Dr Shorter also noticed that the older son had a black eye, and some grazes to his cheek and chin. Dr Shorter continued to manage the treatment of both boys.

76. Dr Shorter ordered an x-ray of the younger son’s leg. The x-ray revealed a "spiral" fracture of the mid-shaft of the femur. Expert evidence as to the probable cause of spiral fractures of their type was given and tested in the Children’s Court proceedings and on this appeal. But it is sufficient to say for present purposes that such an injury is said to be associated with a high energy twisting force being applied to the leg. Dr Shorter formed the opinion that this was a particularly unusual fracture in a 5 month old boy. The medical evidence implies that for a spiral fracture to occur some part of the limb or body must be held whilst the limb is rotated.

77. The unusual nature of this fracture, concerns about the younger son’s delayed presentation to the hospital, and inconsistencies in the history provided by the parents prompted Dr Shorter to commence a more thorough investigation into both children’s injuries.

78. First Dr Shorter undertook a full skeletal survey on the younger son. He discovered that the younger son had suffered two further unusual fractures: the first was a skull fracture involving the right parietal bone of uncertain date; and the second was what appeared to be an older fracture to one of the younger son’s left posterior ribs, showing callus formation. Dr Shorter’s clinical examination of the younger son confirmed bruising on his left thigh, hip, knee, elbow and shoulder.

79. The father told Dr Shorter that there had been two accidents in early July 2013 that may have given rise to the younger son’s leg injury. Dr Shorter did not take a detailed history about these two incidents. The father’s and mother’s accounts of the incidents will be considered later in these reasons.

80. Dr Shorter considered all possibilities. In accordance with what he described, and I accept, when unusual fractures are found in children he initiates in conformity with usual clinical practice investigations to look for possible evidence of unusual bone conditions associated with bone weakness or brittleness. He caused such investigations to be made but found that in the younger son’s case all the relevant markers in relation to bone weakness or brittleness were within the normal range. His thyroid hormone levels were above the normal range.

81. The parents gave accounts of how these injuries occurred. But the following can be said at this stage. The dates of two alleged incidents leading to the injuries are controversial, as are their circumstances. The father first swore an affidavit stating that the date of these incidents was 5 July 2013. He later revised his affidavit to state that it occurred on 7 July 2013. The first incident is said to have occurred in the kitchen when according to the father the older son fell backwards onto the younger son’s lower torso, an event that the father did not witness. A second incident occurred, according to the father, later that same day when the father saw the older son fall face first onto the younger son’s lower waist/upper leg area. The father stated that both incidents caused the younger son to cry. The mother also noted that on this date she observed the younger son favouring his right leg. She says she was away at the gym when the incidents occurred. She says that upon her return the father told her that the older son had fallen onto the younger son.

82. Dr Shorter also examined the older son at the local District Hospital. He found numerous bruises on the older son’s body and some unusual skin lesions. These included 3 linear and well-circumscribed areas of damage to his mid-back area. His skeletal survey was normal.

83. The parents claimed that the lesions on the older son’s back were caused by scratching due to the older son’s eczema. Dr Shorter found this explanation to be unsatisfactory. In his assessment the older son was not able to reach the region between his shoulder blades where the lesions were located. Dr Shorter was unable to find any pre-existing condition that was likely to explain the older son’s bruising. The mother stated to Dr Shorter that the older son’s black eye may have been caused by him walking into the mobile in his cot during the night.

84. Dr Shorter was concerned that, taken together, the injuries to the two children were inconsistent with the parents’ explanations. He suspected that the injuries were non-accidental.

85. In response to Dr Shorter’s findings the same day, Community Services Crisis Response Team caseworkers attended the hospital following concerns as to the immediate safety of the two children. A Joint Investigation Response Team (“JIRT”) conducted separate Electronic Recorded Interview of Suspect Person (“ERISP”) with each of the parents. After the ERISP had been taken, the JIRT Police recommended that the children be kept at the District Hospital over the weekend, pending a decision about their future care.

86. After the weekend, on 16 July 2013 two departmental caseworkers attended the District Hospital to interview the parents in relation to the children’s injuries. The senior of these caseworkers, Ms Templeton gave evidence in this appeal. On 16 July 2013, Dr Shorter informed the caseworkers of the skeletal survey results, and advised them that the results identified no concerns in relation to either of the children’s bone density such as might pre-dispose them to fractures and were normal for their age.

87. On 18 July 2013 the children were removed from their parents and assumed into the care of the Secretary, who placed them with a foster family (“the carers”). They remain in the care of this foster family at the time of the Children’s Court proceedings and this appeal.

The Medical and General Care of the Children following their assumption into foster care

88. The parents and great grandparents have raised issues on this appeal as to medical and general care of the children after their assumption in care. They used these issues to aid their case that the children should be restored to their care. So a brief outline of the chronology of this period is set out in this section.

89. From 5 December 2012 to 16 May 2014, the departmental caseworker, Ms Templeton has held day-to-day responsibility for case-work in relation the children on behalf of the Department of Family and Community Services (“the Department” or “Community Services”). Since the transfer of the casework responsibility to Challenge on 16 May 2014, Ms Templeton has continued to conduct overall monitoring of the placement.

90. On 16 May 2014 the Secretary and the Minister allocated casework management for the children to Challenge, an organisation specialising in providing social services, including foster care services in NSW. The Challenge caseworker with day-to-day casework responsibility of the children was Ms Janelle Kachel, who worked under the supervision of her manager Ms Vanessa Ellis. Ms Kachel had first worked with the children in about February 2014.

91. From around August 2014 to November 2014 the Challenge caseworker with day-to-day casework responsibility for the children was Mr Rhys Tranter.

92. On 1 August 2014 the father received a letter from Medicare stating that the younger son had not received his 12 month immunisations. On 15 September 2014 the father brought this to the attention of Ms Templeton. As a result, Ms Templeton and Mr Tranter organised with the carers for the younger son to be given his 12 month immunisation. This was carried out on 18 September 2014. His 18 month immunisation was then completed on 25 November 2014.

93. The younger son’s hypothyroidism continued to be managed through the daily administration of thyroxine. He was prescribed doses of 50mcg from Monday to Thursday and 100mcg from Friday to Sunday. But between July and October 2014, the younger son’s TSH levels became elevated. By then both children had been referred to Dr Vicki Burneikis, the children’s current paediatrician, who gave evidence on the appeal. By 16 October 2016 Dr Burneikis was concerned that the younger son was not being administered sufficient levels of thyroxine. She was also concerned that there may have been insufficient paediatric follow up.

94. Dr Burneikis also became concerned about the growth rate of the younger son on 16 October 2014 Dr Burneikis wrote to Dr Viday Kudumula stating that she was “concerned about the effects of this under-treatment, which are likely to be long-lasting and about why he was not followed by a paediatrician or paediatric endocrinologist, particularly once his growth started to falter. These concerns have been raised by the fostering agency also”.

95. On 15 January 2015 the younger son was clinically examined by Dr Katrina Zaballa, Dr Burneikis’ Paediatric SRMO. On examination, Dr Zaballa noted that the younger son’s TSH levels were within the normal range and that his congenital hypothyroidism was being “well controlled”.

96. Meanwhile other issues had emerged with the older son. On 18 September 2014 the older son was referred to the Paediatric Clinic at Wyong Hospital with expressive dysphasia. The expert evidence, discussed later in these reasons dealt with the symptoms and causes of expressive dysphasia. But for the present purposes it is sufficient to describe the condition as one in which a person has difficulty forming words and phrases together to convey meaning.

97. And on 16 October 2014 Dr Burneikis found that it was difficult to get the older son’s attention and that he was exhibiting an unusual tendency to seek out male affection. She diagnosed him with Reactive Detachment Disorder. She later revised her diagnosis to disinhibited social engagement disorder. She also noted that he still suffered from some eczema, which was evident on his right cheek.

98. On 12 November 2014 Ms Kachel, Ms Templeton, and Mr Tranter conducted a case conference with the carers, who indicated that they were willing to provide long term care to the children. On 19 November 2014 Ms Kachel conducted a case conference with the parents, during which the children’s development and the parents’ concerns regarding the children were discussed.

99. Since 23 April 2015 Ms Kachel has conducted frequent visits to the children’s foster home. Ms Kachel reported from the visits that the children appear to be well cared for and developing normally. I accept that her evidence on this subject is accurate. Nothing in her cross-examination disturbed it.

100. The parents have had regular supervised visits with the children. Ms Templeton gave evidence that she was satisfied that the contact visits between the two boys and their parents were a positive experience for the children. She also noted that the maternal great grandparents were approved persons to contact the children and would occasionally attend visits with the parents.

The issues on appeal

The Parties’ Cases

101. The Parents. The parents addressed the main issue in contention by submitting that the injuries to the two boys did not result from deliberate acts of abuse or neglect on their part.

102. The parents offered a number of possible causes for the injury to the younger son’s leg. Principal among these were that: (1) the older son fell onto the younger son when they were in the kitchen; and (2) the older son fell face first onto the younger son when reaching for one of his toys. Yet a third suggested cause of the injury was that Dr George had aggravated a pre-existing weakness leading to the occurrence of the injury. The second GP did not give evidence and was not cross examined about this hypothesis. But it is dealt with below nevertheless

103. The father advanced a number of theoretical explanations for the younger son’s fractures. He submitted that the younger son’s skull fracture could have been caused by the older son head-butting the younger son when trying to give the younger son a spontaneous kiss. The father also advanced the theory that the younger son’s rib fracture could have been caused by his hyperthyroidism, or in the alternative, during his birth by c-section. The mother supported these possible hypotheses in her case.

104. In relation to the older son’s injuries, the parents suggested that his black eye may have been caused when he was playing in his cot at night. They also stated that the sores on the older son’s face and body were caused by his eczema.

105. The parents also put submissions about the Department’s decision to remove the children and their medical treatment of the children following their assumption into foster care.

106. The parents submit that the Department has failed to provide adequate care for their children, citing by way of example the Department’s “substantial oversight” in failing to follow up the younger son’s 12 month immunisation and failure to take him to the GP regularly, which they contend delayed the finding of his iron deficiency. The parents also submit that the Department through its officers was biased in their decisions. The parents point to notations in the minutes of the 12 November 2014 meeting with Challenge caseworkers. These notes state that the mother has “Duck’s Disease”. This is said to be a medical condition which the parents feel was both derogatory and wholly irrelevant to any issue of their care of the two boys.

107. The Great Grandparents. The great grandparents are both in their late 60s to early 70s. They are retired and live on the aged pension. They have limited superannuation funds. But they own their own home, in which their 17 year old granddaughter lives with them. The great grandparents contend they would be very capable carers for the children. Each of the three children of the great grandparents, including the mother’s own mother, depose to their sound parenting skills.

108. The Secretary and the Minister. The Secretary and the Minister submit that the children would be at risk of further harm were they to be returned to their parents; or to their maternal great grandparents. Their central contention is that neither the parents nor the maternal grandparents are prepared to accept that the children’s injuries were not accidental, when the evidence overwhelmingly suggests that they were deliberately inflicted. The Secretary and the Minister submit that if the parents and maternal grandparents do not accept this basic fact then the two children will remain at risk of further harm if left in their care.

109. In response to the parent’s contention that the Department has failed to provide adequate care for the two boys, the Secretary and the Minister argue that the delay in immunising the children has been remedied without adverse consequences, and they have been taken to the GP regularly.

110. The ILR. The submissions of the ILR largely mirror those of the Secretary and the Minister. But the ILR adds a concern about the risk to the children’s psychological and emotional welfare, if their existing attachments to their carers were to be disrupted.

The Medical Evidence and the Medical Issues

111. Much of the medical evidence was called in the Children’s Court and tendered again in transcript on this appeal. Dr Moran, Dr Buckmaster and Dr George were all seen and assessed favourably by the President of the Children’s Court. I was not asked to disbelieve their evidence.

112. Dr Burneikis and Professor Munns were called on the appeal and were cross examined. They were excellent witnesses. They both expressed medical opinions with strong focus on any potential omissions in the boys’ care. Both were very engaged with and fully answered the questioning from the mother and the great grandfather on the medical issues.

113. It is convenient to analyse the medical evidence in two groups: the medical witnesses before the Children’s Court; and then the medical witnesses at the appeal.

114. The Children’s Court Witnesses. Dr George examined the younger son’s leg when he was first brought to the Local Medical Centre on 12 July 2013. He found that there was swelling and limited movement in the baby’s right leg.

115. Dr Shorter examined both children following their admission to the District Hospital. The parents explained to him that the younger son’s spiral fracture may have been caused when the older son fell on him. Dr Shorter told the Children’s Court, and I accept, that he could not definitively exclude this as a possible cause of the injury but it was very unusual for a fracture of this type to occur through such a mechanism. Spiral fractures are usually associated with the application of a high energy, twisting force. For this reason, his opinion was, and I accept, that it was unlikely such injury would have been caused by a child undergoing a routine medical procedure.

116. Dr Ed Bateman, an orthopaedic surgeon, confirmed Dr Shorter’s opinion about the spiral fracture to the younger son’s leg. He provided evidence to assist the JIRT interview, which I accept. He stated in a letter on 19 July 2013 that the spiral fracture sustained by the younger son was “an unusual fracture pattern in a patient who is not yet walking. Generally spiral fractures occur with a pivot point. The implication would be that some part of the body was held while either the upper or the lower limb was rotated. This is in keeping with the fracture pattern seen at the time of admission”.

117. As indicated in the narrative, Dr Shorter ordered a skeletal survey for the younger son, which indicated two further fractures: a right sided parietal fracture of the skull that could not be accurately dated, and a healing postero-lateral fracture of the left 10th rib. Dr Shorter stated that: (1) there was no evidence that the younger son suffered from any metabolic bone disease or a blood disease that would have made him more prone to breakages, and (2) there was no evidence that hypothyroidism would have increased his risk of pathological breakages. Both these opinions of Dr Shorter, which I accept, are confirmed by the later medical evidence.

111. The paediatrician, Dr Buckmaster also gave evidence in the Children’s Court hearing. He had diagnosed the younger son with congenital hypothyroidism shortly after his birth. He stated that on 8 May 2013 the younger son presented as a normal 5 month old child with hypothyroidism. Dr Buckmaster gave evidence, which I accept, that the thyroid hormone, thyroxine is required to ensure brain development and ensure bone growth. But he indicated that he was not aware in his professional practice of a thyroxine deficiency being associated with a lack of bone density or strength in children.

112. The central medical issue was whether or not the injuries were consistent with having occurred in accidents. The Children’s Court heard oral evidence on this issue from expert witnesses, who were cross-examined, Dr Buckmaster and Mr Moran.

113. Dr Buckmaster said, and I accept, that it was very unlikely that the younger son’s skull fracture would have been caused by contact with the father’ shoulder; and that it was unlikely that the younger son would have had a skull fracture without at the time showing evidence of the injury, such as suffering a loss of consciousness or having visible swelling and bruising around the area. His evidence raises the issue of why the skull fracture was not noticed by the parents and brought to medical attention.

114. Dr Buckmaster’s opinion was that it is quite hard to break a baby’s ribs because at that age the bones are very malleable. He agreed that it takes extreme force to break or even crack a baby’s ribs. He would not accept that a rib fracture could have been caused by the baby rolling over on a foam mat or any of the other hypotheses advanced by the parents.

115. Dr Buckmaster placed some important time limitations on the occurrence of the injuries to the younger son. He made clear that the younger son did not have the spiral fracture of the femur at the time of his consultation on 8 May 2013. He also stated that the younger son did not at that time show symptoms of a skull fracture. But he was uncertain whether the younger son had a fractured rib at the time.

116. Dr Kieran Moran, consultant paediatrician at the Sydney Children’s Hospital was asked to provide a report on 11 April 2014 regarding the injuries sustained by the children. He was originally engaged on behalf of the parents. I accept his evidence.

117. Dr Moran noted that the skeletal survey performed on the younger son in July 2013 detected a fracture of the skull, a right sided parietal fracture that could not be accurately dated, and a healing postero-lateral fracture of the left 10th rib. He also noted that a spiral fracture in the younger son’s mid-femur was identified on this same date, and that he bore a number of unexplained bruises.

118. Dr Moran noted some inconsistencies in the history given to him. He noted that the father first stated that he had been carrying the younger son in his right arm during the fall on in early May 2013. Dr Moran noted the father then changed his history to say that the baby had been in his left arm. Dr Moran further noted that the father stated that he was holding the child tightly around his chest area at the time. Dr Moran found that the fracture to the right side of the younger son’s skull would have been an unlikely, but not impossible, outcome had the father been holding the younger son in his left arm, as his second version of events indicates. Dr Moran stated that usually a linear parietal skull fracture occurs after impact with a broad, flat surface. But said that he could not rule out that such an impact against the father’ bony shoulder, padded with muscle, might have caused enough force to result in the fracture.

119. Dr Moran found it more difficult to account for the rib fracture. He said, and I accept, that this fracture was more likely to be due to direct impact from an external force, such as when a child hits an object, or is hit by an object, with force. Dr Moran stated that from the father’s description of the fall, he could not see how the younger son’s chest could have come into contact with any object. And Dr Moran discounted the parents’ theory that the rib fracture may have occurred during the c-section.

120. Dr Moran noted the parents’ view that the spiral fracture in the younger son’s leg may possibly have resulted from the older son falling on him twice, or during the second GP’s examination. The parents stated that they did not seek immediate medical aid for the younger son because they believed that his pain had been caused by recently being inoculated in that area. But it is difficult to accept that this explanation would account in a delay reporting a fracture of 5 to 7 days in vigilant parents.

121. Dr Moran discounted the contention that the younger son’s thyroid condition may have contributed to his fractures. Dr Moran’s view was confirmed after he consulted with endocrinologist colleagues. This source of expertise told him that the thyroid condition had nothing to do with propensity to suffer fractures. Dr Moran noted that the younger son had no genetic or metabolic abnormality.

122. Dr Moran was cross-examined at the Children’s Court hearing about the rib fractures and the skull fractures. Nothing confirmed his views that the mechanisms postulated by the parents for those injuries while not impossible were unlikely to have caused them. The credibility of these answer was not sought to be challenged by fresh cross-examination on the appeal.

123. As to the older son’s injuries, Dr Moran’s evidence was that bruising in non-mobile infants is rare. When it does occur accidentally Dr Moran said that it is usually described as consisting of small, single bruises over bony prominences.

124. Dr Moran noted that the older son bore a number of injuries when he presented to the hospital on 12 July 2013, including: (1) a bruise under his left eye and a bruise over his cheekbone, both measuring around 2cms in length; (2) a left anterior shoulder bruise; (3) three distinct bruises in the mid-axillary line over the lower left chest wall; (4) a right flank bruise and a left lateral knee bruise; and (5) three, well circumscribed lesions in the right mid scapula area.

125. Dr Moran dealt with the parents’ theories that the older son may have injured himself either on the edge of the cot or on the mobile in the cot or that he had a tendency to collide with objects. They had also explained the lesions on the older son’s back as self-inflicted scratch marks, as he is said to have a propensity to scratch at his eczema.

126. Dr Moran noted that tests were performed on the older son that made it unlikely that he had a disease that might cause the bruising. His view was that independently mobile children usually got bruises over bony prominences, particularly on the forehead, nose and chin from falls. But he said that bruising of the chest wall was unusual in toddlers, and that the bruising patterns he observed looked like fingertip bruisings. But he could not definitively state that they were. Dr Moran stated that the bruise on the older son’s shoulder looked like a fingertip bruise. Dr Moran was unsure what to make of the linear lesions on the older son’s back. Although the colour photograph of the older son’s bruises tendered on appeal is slightly out of focus, it shows bruising consistent with Dr Moran’s opinion, that is, bruising that appears more extensive and more severe than might be expected from accidents.

127. Dr Moran came to the view, and I accept, that the injuries suffered by both children were not explicable either by the mechanisms the parents proposed or in the manner described.

128. The Medical Witnesses on Appeal. Dr Buckmaster’s opinion about the effect of hypothyroidism was supported by the evidence on appeal of Associate Professor Munns, consultant paediatric endocrinologist. A series of specific questions were posed to Professor Munns, who was asked to provide in response a report as to whether the younger son’s hypothyroidism would have made him more susceptible to fractures. I accept all of Professor Munns’ evidence. Professor Munns examined the younger son on 12 October 2015. On 13 October 2015, he provided the following answers to the questions posed to him:

1   Is the younger son's bone growth and bone development less advanced than would be expected for a child his age?

The bone age standard deviation for a boy aged 20 months is 2.7 months. As such a bone age reading of 15 months for a 20 month old boy is within two standard deviations and therefore within normal limits. As "such the younger son's bone age is within keeping for his chronological age.

2   If the younger son's bone growth and development is delayed, does this delay make him more susceptible to bone fractures and breaks, if so why?

I do not believe that the younger son's bone and development is delayed. From examination I do not believe he is more susceptive to fracture.

3    What would be the best treatment for a 20 month old child being 6 months behind in growth and bone density?

The younger son is growing normally and there is no evidence that he has a reduced bone density. If there were issues with bone fragility then the optimal treatment" for "such a child would depend on the underlying cause and it is not possible to make a generalised answer to this question.

4   Does the younger son's hypothyroidism cause him to be more susceptible to bone fractures and breaks than would be expected of a child of his age and development?

Congenital hypothyroidism does not lead to an increased risk of fracture. There is no evidence that children with well treated hypothyroidism have increased risk of fracture compared to euthyroid peers.

136. Professor Munns gave further evidence, that I accept, that even in the completely untreated hypothyroid state of a baby, increased fracture risk is not reported as one of the historical features of such hypothyroidism.

137. In his oral evidence, Professor Munns gave further evidence about the younger son’s propensity to fracture and his thyroid levels that fully exclude any thyroid related explanation for his fractures. I accept Professor Munns’ evidence on these issues. He said after examining the younger son he did not believe that he had brittle bone disease, osteogenesis imperfecta, a condition which he has treated and which was not evident in the younger son. His good clinical analysis did not cause him to believe that genetic testing was warranted to assess the younger son for a genetic reason for bone fragility. He confirmed Dr Moran’s evidence that skull fractures are usually associated with significant haematoma and swelling.

138. Dr Munns specifically addressed the question, not just at the time of his examination in 2015 but in the first half of 2013, and did not indicate at that time that abnormal thyroxine levels might have been involved in making the younger son susceptible to fractures. Firstly, the younger son’s thyroxine and TSH levels were close to normal and secondly there is simply no evidence that hypothyroidism increases ones risk of fracture or a persons’ risk of fracture.

Medical Evidence about the Children’s current health

139. Dr Vicki Burneikis, the children’s current treating paediatrician, gave evidence as to their current health. I accept all her evidence. She indicated that the younger son’s TSH was being measured relatively infrequently, only at 6 month intervals. She offered the view that it would be better if his TSH testing were done every 3 months. The increase in testing frequency is required in her view, as currently it appears that when the younger son’s TSH starts to rise, no action is taken. But despite that she noted that the younger son’s thyroxine levels did not appear to have fallen below the normal range.

140. Dr Burneikis also noted that the younger son’s height was previously in the tenth percentile of children his age but has since dropped to the first percentile. She stated that in the past this outcome may possibly be due to earlier inadequate thyroxine replacement. Professor Munns gave evidence that during the period of time when the younger son was not getting adequate thyroxine his growth may have been affected. But he said that normally when children are put back on thyroxine after a period of deficiency they go through a period of “catch up” when their growth resumes the correct course and in his opinion what he sees with the younger son seems to be consistent with this occurring.

141. Dr Burneikis also accepted that the younger son suffered from an iron deficiency, which was first diagnosed by Dr Sousa only in April 2015 after the Children’s Court hearing and only a few months before the hearing in this Court. But Dr Burneikis stated that an iron deficiency was not at all uncommon in toddlers, could be monitored and that in her opinion it did not appear to have detrimentally affected his development.

142. Dr Burneikis was satisfied that the younger son was attending his appointments with her regularly and appropriately, and felt that the carers were alive to the younger son’s need for regular medical care to manage his thyroid condition.

143. Dr Burneikis stated, and I accept, that the older son was in good health. But she observed that on 15 July 2015 he appeared to have issues with his speech development. She stated that he was booked in to see a speech therapist, Dr Melissa McCall. Some appointments with Dr McCall had taken place before the hearing. By the time of the hearing Dr Burneikis could report that Dr McCall had found that the older son had made “great progress in a short period of time”.

144. Dr Burneikis initially diagnosed the older son with reactive attachment disorder. But by the time of the hearing she had revised her diagnosis to disinhibited social engagement disorder (“DSED”), describing children who are overly familiar and do not show reticence about engaging with strangers. She explained that DSED can arise in children who have inconsistent or inadequate care early in life, and can result in them having difficulty forming attachments to those around them.

145. Dr Burneikis gave evidence that abuse at an early age could result in a child having DSED, but so could a change of carers. The carers have since given an account to Dr Burneikis that the older son had become more discriminating with strangers.

146. Finally, Dr Burneikis also noted that neither of the children had sustained fractures or suspicious bruises in the time that she had been their treating paediatrician. I accept her evidence about her medical care for the children.

147. In my view, a combination of Dr Burneikis’ evidence and the evidence of Ms Kachel is an answer to the parents’ criticisms of the care of the children since July 2013. The parents complain during the hearing and in final submissions of many matters. They complain of seeing bruising on the younger son at contact visits. They express concern about ensuring that the younger son’s thyroid medication is kept up-to-date and in the right dosage. They express concern about the fact that it was a phone call from the father to the Department that led to a checking up of the children’s immunisations and the rectification of the lateness in those immunisations. They point to the comments Dr Burneikis made about the younger son’s hypothyroidism being undertreated. They also point out that the evidence of Dr Burneikis only goes back to her involvement in about October 2014.

148. On the immunisation issue, Dr Burneikis’ evidence suggests that there are no long-term adverse effects of late immunisation. Ms Kachel, the carers and Dr Burneikis are very alert to the immunisation schedules for the children now. Neither Ms Kachel nor Dr Burneikis observed any unusual bruising on the children, especially the younger son. Dr Burneikis is clear that the younger son’s thyroxine levels are now being kept at appropriate levels and he is being brought in for regular medical care.

149. To the extent that the parents say there has been a gap in evidence about the boys, Ms Kachel was involved with them from February 2014, and apart from the short period between August and November 2014 has continued to be involved with them. Her evidence shows very close engagement with the children, the parents and the carers. In summary, her evidence, that I accept, was that the children were thriving in their present placement.

Consideration

150. The father’s explanations for the younger son’s bruises and fractures were dealt with in Children’s Court judgment at [88] to [93]. Those explanations were substantially the same on the appeal.

151. Like the learned President, I am satisfied that neither Dr Buckmaster nor Dr George caused or contributed to the younger son’s injuries. The uncontradicted medical evidence is that his injuries are not the result of his thyroid condition or any other genetic bone disease or other mineral deficiency.

152. But many things point to parental involvement in the injuries to these children which was probably the result of deliberate conduct. The medical evidence is that the fractures sustained by the younger son required the application of strong external force. Importantly each was to a different part of the body, and appears to have been inflicted at different times. Moreover, the medical evidence is that the injuries were unusual for a baby of that age. Importantly though, the Court now has the benefit of the younger son’s medical history since the Children’s Court hearing. There has been no repetition of any fractures since then, adding to the probability that an aspect of the parents’ care was responsible for these fractures.

153. The younger son’s fractured skull probably did not occur on 6 or 7 May 2013 because it would have been observed by the caseworker on the following day or by Dr Buckmaster on 8 May. Moreover, I accept Dr Moran’s evidence that fracture was unlikely to have been caused the various ways the father has described. I am comfortably satisfied that the skull fracture was probably caused by some mechanism to which the parents are responsible but which is currently unexplained.

154. The spiral fracture to the younger son’s leg must have been caused by part of the leg being held and is inconsistent with the older son falling on the younger son. On the parents’ version, this injury is also unexplained.

155. Due to the callus formation around the rib fracture it can be inferred that it was older than the other fractures. But importantly, I accept the medical evidence that considerable force would have been required for such an injury, which may have involved squeezing. In my view, the father’s fall on 6 or 7 May does not assist in explaining this injury and it remains unexplained.

156. So far as the bruising to the older child is concerned, it was observed on five different locations on the body. The photographic evidence of it is disturbing. I accept the medical evidence that it was not likely to have been caused by eczema. Importantly, it is observed in the context of the fractures to the other child. And no such bruising has been observed since the older son has gone into care. While a single bruise or two may be explicable by accidents, this number of bruises, in my view is not. I do not accept the parents’ explanations of them being inflicted by accident. Their origin remains unexplained.

157. The Court does not have to identify who caused the injuries or the precise mechanisms that led to them. But I am comfortably satisfied that the parents were responsible for the occurrence of the injuries and that they were the product of the intentional action of one or other of the parents, and possibly both.

Is there a realistic possibility of restoration?

158. It follows from the Court’s findings and conclusions on the lay and medical evidence that a restoration of the two children to the parents would give rise to an unacceptable risk of harm to the children. I therefore reach the same conclusion on this issue as the learned President of the Children’s Court.

159. Despite the additional evidence of and submissions on this further hearing, the various strategies that the parents have identified cannot mitigate that unacceptable risk of harm to the children. The Court cannot accept the parents’ explanations for the injuries. In those circumstances, the submissions of the Secretary and the Minister and the ILR are persuasive: if the injuries cannot be explained then any children in the care of the parents will remain at risk because without knowing the cause of the injuries there is no way to mitigate the risk.

158. The Court has found that the injuries found on the older son and the younger son are not consistent with the injuries having occurred accidentally. But all the explanations for the injuries that the parents advance seek to attribute accidental causes to the injuries. I agree with the observations of the learned President in these proceedings that whilst so ever this contradiction remains at the heart of the parents’ case, they are “not likely to be able to satisfactorily address the issues that led to the removal of the children from their care”: the Children’s Court judgment, at [135].

159. Two hearings have now taken place, one in the Children’s Court and one in the Supreme Court, in which the parents have now twice been confronted with the need to explain the children’s injuries in a manner which is consistent with the medical evidence and they have failed to do so. The parents were asked by both Counsel and the Court in the clearest possible terms in these proceedings whether they were prepared to acknowledge that the children’s injuries may have been caused by their own deliberate conduct, rather than by accident, and neither parent was prepared to provide an answer consistent with the overwhelming effect of the medical evidence. This entrenchment of the parents’ attitude assists in the Court in comfortably inferring for the purposes of Care Act, s 83(7) that the parents are unlikely to be able to satisfactorily address the issues that have led to the removal of children and that within care Act, s 83(7) there is not a “realistic possibility” of restoration of the children to the parents.

160. I do not accept the parents’ explanations for how the injuries occurred. That much has been made clear by the Court’s earlier analysis. Unless and until the parents can explain how the injuries did occur in a way that conforms with the medical evidence, including by explaining what conduct of theirs probably contributed to the injuries, then should the children be returned to the parents’ care, there will always remain an unacceptable risk of harm to them.

161. I am comfortably satisfied in accordance with the requisite onus that in the present circumstances there is no realistic possibility of restoration of these two children to their parents, or to either parent. I agree in this with assessment of the President of the Children’s Court: the Children’s Court judgment, at [138].

Placement

164. The Court’s conclusion that there is no realistic possibility of restoration of the children to the parents leads to the next issue: whether the children should be placed with the great grandparents in preference to a permanent long-term out-of-home care placement with the current carers. The Secretary and the Minister propose that the children remain in permanent long-term out-of-home care placement with their present carers.

165. The ILR submits that moving the boys to live with the great grandparents, though well motivated, would be another significant disruption to the attachments that each boy now has to his primary caregiver. The ILR submits that the evidence suggests that the boys have “blossomed” with the carers and that the oldest son is now “an engaging cooperative boy who seems eager to learn”, as his speech pathologist described him in August 2015. The ILR submits in the circumstances that further disruption should be avoided and the boys should remain placed with carers.

166. On the issue of placement, the Court agrees with the submissions of the Minister, the Secretary and the ILR. This is so for a number of reasons.

167. Firstly, given their ages at the time of removal the children have now spent the majority of their lives in the stable environment with the carers, to whom they are securely attached and to whom they primarily look for comfort and security. The older child has suffered a reactive attachment disorder in the past. Orders now placing the children with the great grandparents would be a further disruption to their security and present attachments that, in my view, should be avoided.

168. Secondly, assessed by objective medical evidence the older boy is medically stable and is passing all relevant health hurdles with his carers. His latest speech pathology assessment report from Dr Melinda McCall shows that he is now making encouraging progress with his speech and language skills despite earlier problems in this area. Early concerns existed that the older son might have a reactive attachment disorder. According to Dr Burneikis, these concerns have now abated.

169. Thirdly, the younger son’s hypothyroidism now seems well controlled. All the recent specialist evidence is that the younger son looks clinically euthyroid, does not appear to be suffering the effects of congenital hypothyroidism, and investigations show that he has normal levels of thyroxine. Although he remains short for his age, he is now exhibiting some “catch up” from his earlier growth deficiency and I accept is growing consistently and proportionately as Dr Burneikis says.

170. Fourthly, I do not accept the parents’ evidence that any bruising that has been observed on either of the boys at or during contact visits is the product of any mistreatment by the carers. Rather I prefer the evidence of Ms Kachel and Ms Templeton that the boys are being well looked after in the current foster arrangements with the carers. And I do not accept that any failure to have the boys immunised on time is the fault of the carers or that it has done them any long term harm.

171. Fifthly, in my view, the great grandfather and great grandmother are still not willing to accept that either parent may have harmed the children by their intentional conduct. Their failure to do this means that the Court cannot be confident that either great grandparent would not leave the parents unsupervised with the children should they be placed with the great grandparents. This finding requires further explanation.

172. For about two years, but with some variations, the great grandparents have mostly maintained a position that the mother or father could not have deliberately injured either of the children. The President of the Children’s Court sets out this history in the Children’s Court judgment, at [150]. But at the time of his judgment the President concluded, accepting a submission of the Secretary, that the great grandparents did not have a “genuine acceptance of acknowledgement of the risk posed by the parents”: the Children’s Court judgment, at [151].

173. The same issues were put to the great grandparents on this appeal. In my view, they still fail to accept that the parents could be responsible for the injuries of the children through their own deliberate conduct and they do not accept the risk of harm to the children posed by the mother and father. During his cross-examination the great grandfather was pressed with whether or not he accepted that the injuries to the children, in light of the medical evidence, may have been caused by the deliberate conduct of the parents. In my view, his answers to these questions were unsatisfactory, and do not show acceptance of what the Court has found to be the likely explanation of the injuries.

174. Some examples of what the great grandfather said in evidence demonstrate this lack of acceptance. The great grandfather said “I do not believe that they were living in an unsafe household, but I do believe there is some sort of medical underlying problem that’s contributed at that stage to cause [the younger son] to have these injuries”. On the medical opinions about the spiral fracture in the older son’s femur he said “what I’m saying is there is so much doubt still within the whole situation. I don’t believe just because a doctor says that a spiral fracture is most likely caused by child abuse that it necessarily is.” When asked about what he thought the most likely explanation for the injuries that the older child had suffered in the past were he said “I do think it was because of the fall [the father] had and the possibility of [the older son] falling over him because I have seen no evidence of any likelihood of violence or aggression within the household. Now, I realise that contradicts what the medical evidence says but I’m basing that on what I’ve seen and what I’ve experienced.”

175. The great grandfather was asked to assume that the older son caused the spiral fracture of the femur of the younger son by some accidental means on or about 5 July. He was then asked what he thought of the failure to take the younger son to the doctor for six or seven days. He replied as follows: “If they'd known that he had a spiral fracture I would've ensured that they were taken to the doctor, the hospital or whatever.  One of the doctors stated that and I don't know which one it is from memory that a baby with a fractured leg will tend to keep the leg immobilised to keep the pain and condition at a minimum for itself.  Now I can assume that the baby was doing that so until the baby was moved by the parents with nappy the baby wouldn't have been crying and because of the gentleness of the treatment when they changed him I don't believe he would've been screaming either.”

176. The medical evidence, which I accept, is that the younger son’s spiral fracture would have been very uncomfortable and distressing. Even the parents’ own evidence was that the younger son had been uncomfortable during approximately this period before he was taken to hospital. The great grandfather’s evidence on this issue showed an incapacity to accept that the parents were likely to have failed to address the younger son’s acute distress due to a bone fracture for a period of many days.

177. The great grandmother was also cross-examined about the possibility of the children suffering harm as a result of deliberate actions by the parents. Her answers indicated her position quite clearly:

HIS HONOUR

Q.  Mrs Brown, the words "deliberately harm the children" can cover two situations.  One is do something with a child intending to harm the child.  It can also mean do something deliberately to the child, not necessarily intending to harm them but which still has the result of harming the child?

A.  I did understand when you said that the other day, yes.

Q.  As I'm understanding your evidence you don't think they could have done either of those things?

A.  Yes, obviously the children have been harmed and they have been ‑ but not deliberately harmed.  I do not believe that—

Q.  Not by deliberate conduct?

A.  Not by deliberate actions.

Q.  Whether intending harm or not?

A.  I don't believe that they intended any harm to their children.

Q.  No, but are you saying you don't believe they could have engaged in deliberate conduct which without intending to harm their children could still have caused harm?

A.  I don't quite understand that question.  All I know is that I do not believe that they would have done something deliberate to hurt their children, knowingly deliberate to hurt their children.

ANDERSON

Q.  If one of them lost their temper, for instance, got angry and uncontrollably lashed out and hurt their children do you think that's possible?

A.  No, I saw nothing with them.  They were incredibly gentle.  They didn't raise their voices or get cross or anything like that.  They were really good parents.

HIS HONOUR

Q.  Mr Anderson, has given quite a good example of a situation where someone does something deliberately, they lose their temper, they then hit someone deliberately but often later on they'll say they didn't mean to hurt them.

A.  No.

Q.  That's the second category of conduct I'm talking about, that is that something is done deliberately but without an intention at the time to actually hurt them?

A.  No, I don't believe they did that.

178. She could not accept that the parents could have caused the harm to the children by their deliberate actions even if they did not intend to hurt the children. The great grandmother went on to say that having heard all the medical evidence she took the same position as the great grandfather, as outlined above in these reasons.

179. The great grandparents’ written submission at the conclusion of the hearing did not really change the position. They refer in those submissions to the fact that they have been asked on numerous occasions whether they would like to change their statement as to the parents having deliberately harmed the children. They said about that subject “we are not able to do this as we have not witnessed anything to suggest this is what happened”. But they were prepared to go so far as to say “[the great grandparents] would both concede that it is possible that the parents could have deliberately harmed their children [but] this possibility is not supported by any evidence going over a long period of time.”

180. Finally, the great grandparents put a number of other submissions favouring a placement of the children with them: the family residence they have available; the availability of their extended family to assist in the care of the children; their experience in providing care to grandchildren and great grandchildren over the years for whatever is needed; and the fact that they would be more attentive to the children’s medical care that the Department has shown itself to be in the past. But their physical capacity and willingness to care for the children is not really the issue.

181. The great grandparents also refer to the fact that there is a history of mental illness in the children’s family. They refer to the acknowledged history of the mother’s mental illness. They argue that they have experienced this issue in her life, fought against the problem and overcome it and therefore they are especially well-qualified to deal with such an issue should it emerge again with either of the children.

182. The underlying facts in their argument are undoubtedly correct. The great grandparents have been very successful with the mother’s upbringing. But this argument does not outweigh the Court’s other concerns. It is unclear whether any mental illness will ever emerge with the two boys. In the meantime, they will be at risk of harm because of the great grandparents’ failure to recognise the risk that the parents may pose to them whilst they are placed with the great grandparents.

183. There is no doubt that where restoration to the parents cannot be achieved that a family placement for the children is always preferable to foster care, particularly when it will give rise to potential for greater contact and ongoing involvement in the lives of the children on the part of the parents. So permanency planning that proposes foster care in preference to a family placement needs to be carefully scrutinised.

184. But the conclusion the Court reaches here on this appeal is in substance the same as that the Children’s Court reached in October 2014: the Children’s Court judgment, at [154]. The great grandparents persistently refused to see that it is probable that one of the parents inflicted the injuries that the children suffered and did so by deliberate action.

185. I do not think it is now realistic to believe that the great grandparents might over the course of future months or years develop acceptance of the risk posed to the children by their parents. Enough time has already passed for that acceptance to have been demonstrated, if it was ever going to occur. Moreover, the great grandparents did somewhat change position, with the assistance of legal advice, in the Children’s Court and demonstrate for a period of time some acceptance of the possibility that the parents may have deliberately caused injury to the children. But by the time they gave evidence on the appeal, no such acceptance remained evident.

186. In my view, a placement of the children with the great grandparents would pose an unacceptable risk of harm to the children. The children should remain with the carers.

Contact

187. In my view, the existing contact arrangements for the children are quite satisfactory. Those arrangements are that there should be contact for a minimum of six times per year supervised by a delegate of the Minister. Supervision is not undertaken by the great grandparents.

188. The Court is able to take into account the Children’s Court’s 2011 Contact Guidelines which are designed to assist judicial officers, practitioners and parties in this field. But as the learned President observed below the issue of appropriate contact for children who have been permanently removed from the care of their parents, particularly young children, remains a “vexed one”: the Children’s Court judgment, at [161].

189. In my view, the current form of contact order is appropriate because it allows for flexibility to increase the level of contact as circumstances permit. The current order simply provides a minimum number of contacts. The evidence from the Department did not exclude the possibility that the number of contact occasions would be increased above six over time.

190. In my view, it is better that the level of contact be handled on an ongoing basis by the delegates of the Secretary, the Community Services officers in light of the boys’ progress so far and bearing in mind their need for continuing attachments to their carers, whilst maintaining their identity and relationship with their biological parents. The advantage of the current form of orders is that once it is clear that the children’s relationships with the carers are secure, it will be possible to flexibly increase contact with the parents over time. This is a situation, in my view, where right now judicial intervention to order a different contact regime is likely to risk doing more harm than good.

Conclusions and orders

191. For the reasons given, the Court concludes that there is no realistic possibility restoration of the two children to the parents and that placement with the great grandparents would give rise to an unacceptable risk of harm. The permanency planning for the children leaving them with the carers has been appropriately and adequately addressed. On appeal, I agree with the decision of the President of the Children’s Court allocating parental responsibility of the children to the Minister until the age of 18. Cost orders are not made in this jurisdiction.

192. The orders of the Court therefore will be:

1. to dismiss the appeal; and

2. to direct that the exhibits be returned.

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Amendments

16 August 2016 - corrected decision date in coversheet

Decision last updated: 16 August 2016