Re Anthony

[2008] NSWLC 21

Local Court of New South Wales

CITATION:	Re Anthony [2008] NSWLC 21
JURISDICTION:	Children's Court
PARTIES:	Director General of Department of Community Services; Re Anthony
FILE NUMBER:
PLACE OF HEARING:	Parramatta
DATE OF DECISION:	10/03/2008
MAGISTRATE:	Senior Children's Magistrate S Mitchell
CATCHWORDS:
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998
CASES CITED:	Briginshaw v Briginshaw [1938] 60 CLR 336 M v M [1988] HCA 68 B v B [1988] HCA 66 A v A [1976] VR 289 The Marriage of M [1987] 11 Fam. LR 765 B v B (Access) [1986] FLC 91-758 Leveque v Leveque [1983] 54 CLR 164 re G (a minor) [1987] 1 WLR 1461
TEXTS CITED:
REPRESENTATION:
ORDERS:

1. These are care proceedings commenced on 11 December, 2007 by the Director- General of the Department of Community Services for whom Ms. Ward of Counsel instructed by the Crown Solicitor appeared. The proceedings relate to ‘Anthony’ who was born on [ ] 2007. Anthony, in whose interests Mr. Malos appeared, is the son of ‘Mr L’ and his wife Ms K’ for whom Mr. McLachlan appeared. Mr L has another child, ‘Lachlan’ who was born on [ ] 2001. Lachlan lives with his mother, ‘Ms M’ the father’s former wife, and visits his father and Ms. K from Friday after noon until Sunday afternoon each weekend. Anthony is Ms. K’s first child.

2. The Director-General seeks orders that, for a period of five years, Anthony be in the parental responsibility of his paternal grandparents Mr and Mrs WL but that such parental responsibility, in so far as it relates to major medical decisions, be shared with the Minister and, as to religion and education, with the parents. After the expiry of five years, the Director-General proposes that the Minister step away from parental responsibility but that, otherwise, the arrangements go forward until Anthony shall have attained the age of eighteen years. So far as contact is concerned, the Director-General seeks orders that Anthony have contact to his parents for not less than two hours per week together with such additional contact as may be agreed by the paternal grandparents and the parents and that, for a period of five years, the contact be supervised by one or other or both the paternal grandparents or such other person or persons as they nominate. It is understood by all concerned, including the Director-General, that Anthony’s contact with his parents is likely to be much, much more extensive than two hours per week and that the parents and the paternal grandparents are likely to agree on perhaps even daily contact. It is further understood that Anthony will have very liberal contact with his maternal grandmother in whose care he is presently residing. I was told that there is a very good relationship between the grandparents that they will be well able to arrange the child’s contact with his maternal grandmother which it is agreed is in his interests.

3. The Director-General seeks certain undertakings from the paternal grandparents designed to ensure that she is kept aware of any downturn in Anthony’s health or any intention to relocate from New South Wales and to ensure that Anthony not be allowed reside on a full time basis with his parents or either of them. Further, the Director-General proposes a section 82 report regarding Anthony’s progress within 12 months.

4. In support of her application, the Director-General relies on the affidavits of Jodie Baalbergen of 5 December, 2007 and 9 January, 2008, the affidavit of Jean Fitzpatrick of 10 December, 2007, the affidavit of Tess Bellamy of 3 September, 2008 and the report dated 10 December, 2007 by Dr. Kieran Moran, the Medical Director of the Child Protection Unit of the Sydney Children’s Hospital at Randwick and his affidavit of 4 August, 2008 annexing his updated report. The mother’s affidavits were sworn on 12 February, 15 April and 12 June and 4 September, 2008 and there is a report of Dr. Adrienne Epps the Head of Paediatric Rehabilitation at the Sydney Children’s Hospital and a document prepared by Ms. K as “a summary of events leading up to Anthony’s admission to hospital and some responses to matters that were contained in the primary affidavit sworn by Ms. Baalberger on 5 December, 2007.” The father’s affidavit was sworn on 12 June and affidavits of Dr. Paul Tait, the Head of the Child Protection Unit at the Sydney Children’s Hospital at Westmead, Dr Christopher J. Lennings, Clinical Psychologist and Dr. Archivides Kalokerinos were filed in the parents’ case. The Care Plan was received in the court on 25 March, 2008. Among the documents exhibited are a document downloaded from the Commonwealth Department of Health website entitled “Managing Serious Adverse Reactions to Vaccines,” a learned articles by Professor Alan B. Clemetson entitled “Is it ‘Shaken Baby’ or Barlow’s Disease Variant?” published in the Journal of American Physicians and Surgeons, Volume 9 Number 3, Fall 2004 and a paper by Harold E. Buttram and Alan R. Yurko entitled “SBS or Vaccine-Induced Encephalitis? 2004 Updates” which was downloaded from the web and, as far as I can make out, submitted to the Circuit Court of the Ninth Judicial Circuit of Orange County, Florida in the United States in proceedings for a new trial of persons convicted, wrongly as it was held, of offences relating to “Shaken Baby” syndrome. As to the letter document, no objection was taken to its tender but I am not sure what weight should be attached to it given its provenance. The mother, the father, Dr. Moran (by landline) and Dr. Lennings appeared and were cross-examined.

5. On 23 November, 2007 Anthony, then aged about 10 weeks, presented at Sydney Children’s Hospital at Randwick. His mother had taken him that morning to see Dr. Tan to consult about a birthmark which appeared consistent with sebaceous naevus. Dr. Tan noticed retinal bleeding and recommended an ultrasound which, coincidentally, had already been booked and which was undertaken later that day. As soon as the results were known, the parents were directed to the Emergency Department and Anthony was admitted to a ward at 10.30pm that evening. A number of tests including a CT scan and MRI brain imaging, a skeletal survey and a bone scan were undertaken and, in the result, Anthony was found to have both old and new subdural haemorrhages bilaterally, widespread haemorrhages in both his eyes, fractures of multiple ribs and facial bruising. Those injuries are essentially unexplained and both Mr. L and Ms. K profess themselves as “bewildered.” Each denies causing any harm to Anthony and, while acknowledging the logical inconsistency of the position, each doubts that the other could have done so.

6. According to the report of Dr. Kieran Moran of 10 December, 2008, “subdural haemorrhages and retinal haemorrhages most usually occur secondary to trauma … …of the acceleration-deceleration type, typically caused by shaking or shaking with impact” and the experience in the Children’s Court is that these are commonly said to be associated with fractures to the ribs. In his report on Anthony, Dr. Moran opines that “the rib fractures, which involved the right 10th. and probably the right 7th. rib and possibly the 2nd. to 10th.ribs paraspinally, are caused by squeezing of the chest wall with front to back compression and require a degree of force which is not associated with normal handling.” Dr. Moran took a similar view with regard to Anthony’s facial bruising which, likewise, he thought required “a degree of force not associated with normal handling.”

7. As to the timing of the injuries, Anthony’s are symptoms which Dr Moran would associate with neurological injury and, on that basis, he believes that Anthony was subjected to significant force to his brain around 16 November, 2007. Repeated examination of his eyes on 29 November showed clearing of some elements of the “new” retinal bleeding seen on 23 November which suggested to Dr. Moran that these “new” eye haemorrhages were “relatively recent (within weeks)” and could coincide with the time frame ascribed to the brain injury.

8. Dr. Moran’s sees the chest x-rays of 27 November as indicating that rib injuries were less than 10 to 14 days old which would suggest they were sustained on or about 13 November. He was unable to offer an opinion as to the timing of the “old” retinal haemorrhages except to say that they are most unlikely to have been sustained at birth.

9. In a sense, Dr. Paul Tait is Dr. Moran’s “opposite number” at Westmead. He is a Consultant Paediatrician and is the head of the Child Protection Unit at the Sydney Children’s Hospital at Westmead. Like Dr. Moran, he is acknowledged as a leading authority in his field and his expertise, like that of Dr. Moran, is well known and highly respected in the Children’s Court. He had the benefit of reading the relevant material and his report of 29 February, 2008 was filed in the parents’ case. As one would expect there is a broad range of agreement between these two experts and Dr. Tait thought that it was very unlikely that subdural bleeding occurred as a result of birth trauma. Rather, on the basis of admittedly “limited clinical reports,” he thought that the “old” subdural bleeding may have occurred some 3 to 4 weeks prior to the MRI on 29 November. As to the more recent subdural bleeding, Dr. Tait noted “parental reports that reflect a subtle change in Anthony’s well-being” evident on or about 17 November. The parents thought that such may have been a consequence of the child’s vaccinations on 8 November but that is not an explanation which Dr. Tait accepts. Nevertheless, Dr. Tait thought that those subtle changes in well-being might provide a clue as to the timing of the acute subdural bleeding.

10. As to the retinal bleeding, Dr. Tait agreed with Dr. Moran that, at 12 months of age, retinal haemorrhages, particularly those involving different layers of the retina as was the case with Anthony, “…are rare and in this age group almost exclusively are the consequence of forceful acceleration/deceleration of the head in association with angular rotation.” He commented that retinal haemorrhages, relatively common as a result of delivery, all resolve by 6 weeks at the latest and he dismissed other possible causes as “rare and excluded by the time of (Anthony’s) admission.” As to the other explanation commonly offered for injuries such as Anthony’s, namely accidental injury, Dr. Tait explained the necessary and unusual mechanics of such injuries by saying that “infants have sustained bleeding into the retina as well as subdural haemorrhages as a result of accidents for example falling from an adult’s arms and being propelled forward with the child’s head coming into contact with the ground or some other hard object while at the same time rotating.” At least some of Anthony’s rib fractures are placed by Dr. Tait “within about a two week time frame,” perhaps in the last or second last week of November, and Dr. Moran suggests sometime after 13 November.

11. The evidence of Dr. Moran is that “fractured ribs in infants are a clear marker for abuse in the absence of an adequate explanation or bone disease” and Dr. Tait’s opinion is that “rib fractures in infants are almost always a direct result of trauma though they may occur in a rare form of Osteogenesis Imperfecta” not clinically evident in Anthony. Both Dr. Moran and Dr. Tait consider that it is most unlikely that Anthony’s rib fractures could have resulted from ordinary handling or, specifically, as Ms. K feared, from being retrieved through the hatch-back from the back seat of a motor car or, as Mr. L suggested, from too vigorous backpatting or from his practice of holding Anthony up in the air and moving him from hand to hand. According to Dr. Moran, “the only mechanism known to cause (rib fractures of the type seen in Anthony) is squeezing of the chest wall.”

12. Anthony’s parents told the court that they are bewildered as to how he could have sustained his injuries. Each has denied inflicting any non-accidental injury on the child and each finds it difficult to imagine the other as having been at fault despite acknowledging the illogicality of his and her position. As Mr. L told the court when referring to the possibility that Ms. K had deliberately inflicted the injuries, “… in my heart, I know it wasn’t her.”

13. The parents presented an affidavit of Dr. Archie Kalokerinos suggesting that some or perhaps all of Anthony’s injuries may have been a consequence of vitamin C deficiency as a consequence of either a maternal vitamin C deficiency or a disturbance of his own vitamin C transporters. They did this not because they assert that Anthony’s injuries are associated with vitamin C deficiency but as part of their own search for answers. Dr. Kalokerinos is a distinguished Australian humanitarian and offers vitamin C deficiency as an explanation of Anthony’s subdural haematoma, retinal haemorrhages and rib fractures. His thesis suggests that some or perhaps all of Anthony’s injuries may have been a consequence of vitamin C deficiency as a consequence of either a maternal vitamin C deficiency for which there is no evidence, malnourishment or a disturbance of his own vitamin C transporters. Dr. Kalokeninos speculates that Anthony’s Infrax Hexa 221CA1425, Prevanal B23266 and Rotarix A41CA353A vaccinations which were administered on 8 November 2007 or any of them may have been responsible for such a disturbance although the mother’s evidence is that Anthony exhibited no significant signs of adverse reaction to the vaccinations. On 17 March and again on 23 April, 2008, Anthony had further vaccinations without adverse reaction although for a while he seemed a bit cranky and off his food and Mr. L’s evidence is that his sister had heard Anthony make a high- pitched cry rather like that which was heard during a visit to the paternal grandparents’ home on 17 November, 2007.

14. Dr. Kalokerinos’ thesis is not a new one and has failed to attract support in the medical profession as it has failed to attract the support of Dr. Moran and Dr. Tait. Nor is it endorsed, as far as I can tell, by consistent rigorous study and research. In his report, Dr. Tait dealt with the thesis thus:-

“The possibility of vitamin C deficiency as a cause of bone fragility and subdural bleeding is raised from time to time. This explanation was given credibility after a series of publications by an Australian doctor who was working with Aboriginal children in the 1960’s. His argument is that the vitamin C is known to be important in the integrity of the small blood vessels, the capillaries, and that in poorly nourished infants and young children serious bleeding could arise as a complication of this vitamin deficiency. He also suggested that the added stress of an intercurrent illness such as a viral respiratory tract infection would add to this risk. Later commentators, not all with a medical background and some who were outspoken critics of mass immunisation programs, raised the possibility that immunisation itself would be another risk factor. These explanations have never gained mainstream acceptance as a way of making sense of the clinical picture of subdural haemorrhage, retinal haemorrhages and fractures with or without bruising.”

“Clearly, there is no way to clarify these speculations experimentally. Anthony did not have a vitamin C level performed. Ms K could have had low vitamin C levels as a result of her hypermesis but this was never checked. Nor would one consider this as part of routine practice. S26Gold (food formula) does have vitamin C added at a dose of 9 mg per 100 ml and Anthony was being fed this product from about 16 September. This should have been sufficient for his needs. It is my opinion that there is very limited ground to speculate that Anthony was vitamin C deficient let alone be implicated as the cause of any of his injuries.”

15. There is no reason to think that, while in the care of his parents, Anthony was malnourished and his father said that he “fed well” and it is noteworthy that, since being in care, although he has received no vitamin C boost, he has suffered no further injury and gives no sign of vitamin C deficiency.

16. At hospital, Anthony presented with facial bruising. There were two bruises on his face first noticed by his mother at the 3am feed on 21 November and visible at the time of his examination at hospital on 23 November. As to the father’s concerns about having used excessive force in holding the child’s face and head while burping him, Dr Tait notes that “Mr L does not recall using excessive force to do this but considerable force would have been needed to cause a bruise. As he is quite strong he may not have realised the force he was applying.”

17. Mr. L told Police about an occasion when, while holding the child, he turned around suddenly, accidentally bumping Anthony’s head on a door frame. Ms. K was in the adjoining room at the time and heard but did not see the bump but a family friend saw it. Mr.L put that mishap forward as a possible explanation for at least some of the child’s injuries although it fails entirely to account for the fractured ribs which accompanied the child’s injuries as presented and which are part of the constellation one expects to see in cases of “shaken baby.” The parents agree that, on that occasion, there was no bruising and that Anthony did not register any particular distress and subsequently settled. It seemed an insignificant incident and, indeed, Ms. K did not think to make reference to it in the document (annexure A to her affidavit of 12 February) which she prepared outlining events leading up to Anthony’s admission to hospital. Further, although Ms. K’s recollection is that the incident occurred on or about 11 November, Mr. L told Police on 30 November that it had happened some three or four weeks earlier which the medical witnesses see as probably outside the relevant range. The medical opinion which I accept is that it is unlikely that the incident had anything to do with Anthony’s injuries.

18. There is evidence that, on an occasion on 17 November, while Anthony and his parents were seated with the paternal family around their dinner table at Umina, Anthony, who had been asleep on his mother’s lap, suddenly “let out a loud high-pitched cry not heard before, for no apparent reason.” Ms. K cuddled him and got him back to sleep but for the next day or two he appeared unsettled and fretful and off his food which his parents thought may have been connected with the heat of the day and the fact that, at his grandparents’ home, he had been put down in somebody else’s pram rather than his own bassinet. Later the parents were told by Anthony’s paternal aunt of another occasion on which he uttered such a scream. Neither Dr. Moran nor Dr. Tait has an explanation for these “loud high-pitched cries” but to see them as connected with the injuries with which Anthony presented at hospital seems to be drawing a very long bow given the constellation of injuries present.

19. Exhibit “3” is a download from the internet presented by Mr. L entitled “Managing Serious Adverse Reactions to Vaccines” where reference is made to “an unusual distinctive high-pitched cry.” Dr. Moran was asked his opinions on the topic and, in particular, on Anthony’s loud high-pitched cries. His opinion is that “it is unlikely that this was an adverse reaction to vaccination” and he cited the Red Book 27th. edition (2006) of the Committee on Infectious Diseases of the American Institute of Paediatrics. It appears that none of the available adverse reactions catalogued in that publication is evident in Anthony’s case and, in particular, Dr. Moran’s evidence is that “a single isolated scream does not fall within the definitions given in the Red Book.” As to the “unusual distinctive high-pitched cry” mentioned in Exhibit “3,” Dr Moran’s evidence is that “such a reaction (to vaccination) would not be expected outside the first 48 hours.” The cause of the loud high-pitched screams and its impact, if any, on Anthony’s well-being remain a mystery.

20. Spontaneous subdural bleeding and subdural bleeding consequent upon trivial head trauma, though very rare, are not entirely unknown. In the former case, this is likely to be seen only where there has already been a subdural bleed prompted by trauma which, in Anthony’s case, begs the question of how that earlier trauma may have been occasioned. And in the latter case, Dr. Tait knew of only one study of 3 children with bleeding into subdural spaces after trivial head trauma and none of those had any retinal haemorrhages or other injury. Tests conducted by Professor Glen Marshall, Paediatric Haematologist of the Children’s Hospital at Randwick demonstrated that there was no clotting abnormality to account for any of the Anthony’s injuries.

21. While I accept Dr. Moran’s opinion that the facial bruising “is, of itself, a significant injury in an infant of this age,” it is not an injury usually seen as part of the constellation of injuries associated with what is often called “shaken baby syndrome” and it appears, in Dr. Moran’s opinion, to be unconnected with Anthony’s other injuries as to its timing.

22. When Ms. K and Anthony first came out of hospital, they stayed at the home of the maternal grandmother because Mr. L was in the course of completing renovations to their home. He used to visit them and they went to the home during weekends and on one or two evenings during the week. This continued for about four weeks and then mother and child joined the father in their home at West Ryde. Ms. K was the child’s primary carer and Mr.L was away at work from about 6am to 6 or 6.30pm on five days per week but he was engaged with Anthony in the evenings and, apart from some occasional work and summer football, during weekends. Mr L sees himself as a bit clumsy with little children but I think he played a large part in Anthony’s care. Because of the routines then prevailing in the home, Ms. K was almost always on the scene but there were plenty of times when Mr.L was alone with Anthony. On the other hand, it is common ground that there were no times when Anthony was left with strangers or was left without at least one or other of his parents being present.

23. Since Anthony’s discharge from hospital on 19 December, 2007 he has resided, while in the parental responsibility of the Minister, with his maternal grandmother, Mrs JK during the week and with his paternal grandparents at weekends. His medical condition is good and there is reason to hope that he will escape without any continuing disability. As a result of the Director-General’s early decision to limit the duration of contact, Ms. K and Mr.L used to visit him for not less than two hours a day and participate in changing him, bathing him and feeding him and, of course, playing with him. In more recent times, restrictions on the duration of contact have very usefully been relaxed and the parents have been able to extend the periods of time they spend with their son. Ms. K says that Anthony knows them and is forming at least a secondary attachment with them.

24. Mr. L and Ms. K appear to be modern, achieving Australian parents. He is forty years of age……. He is self-employed as a [ ], working long hours and renovating his own home. Mr. L is a tall, athletic man, with an interest in football. He wishes to be closely involved with both his sons but appears to see their practical, day to day care as primarily a matter for their mothers. Because Anthony seemed so small and because he feels undexterous and clumsy in dealing with him, Mr. L has been prepared to accept advice and encouragement from Ms. K and others more accustomed to dealing with infants than he and, up until the child was assumed into care, to take something of a back seat in the physical care of his son.

25. Mr. L is a well-educated man with significant computer skills who, when confronted with a catastrophe such as the one in which he now finds himself, reacts with intelligence and vigour. He has researched and studied the problem and contributed intelligently to the gathering of material to be put before the investigating authorities and the court with whom he has been practical, polite and apparently forthcoming. He understands the inferences to be drawn from the medical and other evidence regarding Anthony’s injuries, his own assurance that he has done no harm to his son and his sincere belief that neither has his wife. Mr. L has maintained his love for and vital interest in Anthony and, while exercising contact, has contained his disappointment in having missed a great deal of Anthony’s infancy and it is clear that he has a great deal to offer Anthony in the future.

26. Ms. K is thirty-nine years of age and Anthony is her only child. Until her pregnancy, she was employed as an [ ]. She seems very intelligent, practical and sensitive and she has been cooperative and helpful in her dealings with the medical profession, Police, the Department of Community Services and the court. Until Anthony’s injuries came to light, there was no criticism of the loving attention she provided her son. Mr. L described her as “super Mum.” Like her husband, she too is not blind to the inferences necessarily to be drawn from the fact of Anthony’s injuries, the position which she takes in regard to them and her belief in the innocence of her husband. Ms. K has battled to maintain her presence in Anthony’s life and her enforced separation from him has been and remains a tragedy for her. She is determined to be as large and important a presence in his life as she is able.

27. In their paper, “Attachment and Risk of Future Harm: A Case of Non-Accidental Brain Injury” published in Volume 27 Number 2 of 2002 of the Australian and New Zealand Journal of Family Therapy, Kasia Kozlowska and Sue Foley look at the assessment of future risk in instances of “non-accidental brain injury.” They allow for the significance of “…lack of empathy and the presence of negative affectivity” and note that “shaking may be the result of one of a number of scenarios: a lack of empathy for the child’s needs or distress; parental difficulty in managing the child’s negative emotions; parental difficulty in managing their own emotions; or parental anger at the impact of the child on their ability to meet their own physical or emotional needs.” Kozlowska and Foley argue that an exploration of perpetrator intentionality is an important tool for the assessment of future risk but acknowledge that in many cases “understanding the circumstances surrounding the shaking event in order to understand risk is not possible in day to day practice.” It is not possible where the identity of the perpetrator is unknown or where the perpetrator is unwilling to speak about the matter and it is not possible in Anthony’s case.

28. In such circumstances, the learned authors acknowledge that “the assumption remains that, after an alleged incident, there is always ongoing potential for harm, even though the circumstances of the injury may remain unclear” and, for that reason, they argue that the “broader indicators of risk” including “parental substance abuse,” “parental or older sibling mental health examination and history,” history of poor impulse control/frustration tolerance,” “violence between family members,” “other instances of physical harm or neglect of children,” “safe physical handling of children,” “physical discipline practices,” “parental ability to empathise with children,” and “parental ability to recognise and meet their children’s needs” must be carefully considered.

Such of these “broader indicators of risk” as appear to be present in Anthony’s case are among the matters which Dr. Christopher Lennings considered.

29. As Dr. Lennings maintained, the “psycho-social” factors often pointing to risk in cases of non-accidental injury to children appear absent in this case. He says that “the current case is atypical in that the usual risk factors for assessing risk are absent.” Neither parent appears prone to impulsivity of behaviour. There is no suggestion of personality disorder in either parent. There is no history of criminal behaviour in either of them – which Dr. Lennings sees as far and away the most important correlate. They barely drink and there is no sign of substance abuse. There appears to be a total absence of aggression and violence. There is no suggestion of a characteristic inability to budget or of transience and instability of accommodation and this is certainly not a family which could be described as falling within the “lower socio-economic range” and, thus, likely to encounter the various environmental risk factors which studies cited by Dr. Lennings suggest are important correlates. To Dr. Lennings, the absence of any of those psycho-social factors is a peculiar circumstance but, as he explained, “human behaviour is unpredictable.”

30. In cross-examination, Ms. K was asked about the presence of stressors during 2007 and, clearly, there have been some including the aftermath of the death of her father and a difficult pregnancy. But none have fitted the description of the psycho-social factors which are a marker for non-accidental injury to children and neither are they the stressors described in paragraph 22 of Dr. Lenning’s report as “dreadful.” Those were the stressors arising after Anthony’s assumption into care including his injuries, the investigation, his removal and their enforced separation. They have no place in pointing to future risk of harm.

31. One peculiarity arising from the test which Dr. Lennings administered to the parents is the exceptionally high reading for defensiveness obtained for Ms. K. The test is the Personality Assessment Inventory which Dr. Lennings described as “a self-administered objective inventory of adult personality. It contains 344 questions which assess clinical response to treatment and personality dimensions as well as having 4 scales that assess for the validity of the test taking behaviour of the person. Normative data to interpret the significance of the test was collected on 1000 adults stratified according to race, gender and age from the United States population. The test has a wide applicability in Australia and is regarded as a powerful test of adult personality.”

32. Dr. Lennings noticed a significant degree of defensiveness in Mr.L but Ms. K’s was so high as to be above the clinical cut-off point so that no reliance could be placed on the results of the assessment. Dr. Lennings would counsel against too great significance being placed on the defensiveness of either parent demonstrated by the PAI. In the first place, the PAI is administered as a form of quality control to check on the veracity of the history given by the subjects and Dr. Lennings’ clinical interview, together with the material made available to him, allowed him “to assume for the most part that the parents’ self report was frank and not marred by the same degree of defensiveness.” Secondly, Dr. Lennings maintained that a degree of defensiveness in a person being assessed is to be expected. Thirdly, he was quick to say that her defensiveness is not an indicator that Ms. K had inflicted injuries on Anthony or knows who had done so and he was reinforced in that view by his perception that, in the clinical interview which took place on the same day as the PAI, Ms. K’s high degree of defensiveness did not colour the interview and the resulting psychometric assessment.

33. It was put to Dr. Lennings that Anthony’s injuries can be grouped into three distinct categories. There is the chronic subdural haemorrhage the origin of which is undated but which may have been sustained some 3 or 4 weeks prior to the admission to hospital on 23 November. Secondly there are the retinal haemorrhages and the acute subdural bleeds together with the rib fractures which may have occurred some time after 13 November. And finally, there are the facial bruises first observed on 21 November. Dr. Lennings considered that, even allowing for the possibility of three separate incidents of abuse, the risk posed to Anthony by one or other of his parents can be assessed actuarially as a medium one. Appendix 1 to his report of 7 April, 2008 is the actuarial calculation upon which he relied in forming that opinion.

34. I am not sure that the court is much assisted by reference to these actuarial calculations. In the first place, the actuarial risk assessment makes no distinction between accidental trauma and deliberately imposed trauma. Secondly, insofar as the actuarial tables refer to non- accidental injury, they are not specific for abuse of the “shaken baby” type although I would have thought that some of the factors leading to the latter are specific to that type of abuse. Thirdly, Dr. Lennings admitted that, had one undertaken the actuarial assessment of risk in October, 2007, the result would have been an assessment of “no risk” because, as he explained, one needs an initial event in order to commence the exercise.

35. Further, Dr. Lennings told the court that, although the severity of Anthony’s life threatening injuries may be at the upper end of the scale, severity has no impact on the assessment of probability of risk of abuse. In Anthony’s case the actuarial assessment of risk, perhaps as distinct from the judicial assessment of unacceptable risk, remains “medium” no matter how severe the injuries. Again, Dr. Lennings told the court that if there were to be a finding that the parents or either of them had deliberately inflicted injury upon Anthony, the failure of a parent to admit his or her culpability would be seen as a further risk factor in itself and so the level of risk would automatically increase.

36. As to Dr. Lennings’ professional insights, as opposed to the actuarial assessment, he says that “there is no reason, other than the alleged abuse itself to indicate concern about poor parenting abilities in Mr. L and Ms. K.” There are no concerns expressed about Mr. L’s care of Lachlan and he goes on to report that “the parents describe positive parenting practices, assiduous medical care, maintaining extended family links and seeking appropriate advice” and that “neither parent presents as having significant psychological problems and both appear resourceful and resilient.”

37. He has taken in account the “psycho-social” factors to which I have already referred and the actuarial assessment that the parents pose only medium risk to Anthony. He notes some positive factors including “willingness to cooperate with the Department of Community Services and good extended family support.” One might add that, as Anthony grows older and his self-protective capacity increases, his vulnerability is likely to reduce. Dr Lennings concludes that “… there is insufficient evidence to suggest that the parents cannot look after Anthony safely” and summarises his opinion by saying that “there are no features in the parents in relation to specific concerns regarding risk other than the abuse itself and Anthony is so far progressing well. Risk is medium at worst and the parents present as having strong attachments and good attitudes towards their son. Given the presence of strong extended family support I believe that a restoration programme is feasible and could be organised with a view to restoration over a 12 month period.”

38. It is clear from the decision of the High Court of Australia in Briginshaw v. Briginshaw [1938] 60 CLR 336 that in considering an allegation raised in civil proceedings such as Family Law proceedings or Care proceedings, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors enumerated by Dixon CJ at page 362. There his Honour said:-

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect references.”

39. In M. v M. [1988] HCA 68 and in B. v B. [1988] HCA 66, the High Court pointed out that in civil cases such as Family Law cases and, obviously, Care cases, where, ultimately, the interests of the child are the paramount consideration, the difficulty faced by courts in applying the Briginshaw principle is more apparent than real and lies in a misconception as to what really is the issue to be determined in the case. Those two cases involved father/daughter contact where it had been submitted by the appellants that the essential issue in each case was whether the father had tampered sexually with his daughter. The High Court of Australia observed that:-

“The basic flaw in the appellants’ argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court. In proceedings under Part VII of the (Family Law) Act in relation to a child, the court is enjoined to regard the welfare of the child as the paramount consideration… …The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of or access to a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the ultimate and paramount issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody and access are not disputes inter partes in the ordinary sense of the expression. In proceedings of that kind, the court is not enforcing a parental right of custody or right of access. The court is concerned to make such an order for custody or access which in the opinion of the court best promotes and protects the interests of the child…

…Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.”

40. The question which the Children’s Court must resolve in the present case, then, is not whether a parent and, if so, which parent is responsible for inflicting non-accidental injury upon Anthony but, rather, whether, on the balance of probabilities, the proposals of the parents are in the best interests of his safety, welfare and well-being. In order to do so, the court must make an assessment of the risk and the magnitude of the risk to Anthony in the arrangements proposed by the parents and must assess whether that risk is acceptable or unacceptable in the circumstances. If the risk posed by the parents is not an unacceptable one, they are entitled to have their son restored to them as expeditiously as practical.

41. In Re Maree [2007] CLN 6, the Children’s Court took the view that the decisions of the High Court of Australia in M. v M. and B. v. B. apply in care proceedings where “the safety, welfare and well-being of the child must be the paramount consideration” as they do in Family Law proceedings where the “best interests” principle applies. Nor is the position altered by reason of the fact that the High Court was dealing with allegations of sexual harm whereas the present case deals with physical harm.

42. Speaking in M. v M, in the context of Family Law parenting proceedings, the High Court went on to discuss the topic of “unacceptable risk.”

“Efforts to define with greater precision the magnitude of risk which will justify a court denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as ‘risk of serious harm,’…‘an element of risk,’… ‘an appreciable risk,’ … ‘a real possibility,’… ‘ real risk’ … ‘an unacceptable risk’ (see A. v A. [1976] VR 289 at 300, The Marriage of M. ‘[1987] 11 Fam. LR 765 at 770 and 771, B. v B. (Access) [1986] FLC 91-758, Leveque v Leveque [1983] 54 CLR 164 at 167, In re G (a minor) [1987] 1 WLR 1461 at 1469.) This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests, the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent is that custody or access would exp0ose the child to an unacceptable risk of sexual abuse.”

43. Kozlowska and Foley acknowledge that in cases, such as Anthony’s case, where what Dr. Lennings calls “psycho-social” factors are apparently missing, “it is more difficult to evaluate the likelihood that the child will be abused again” but they emphasise the need, even in those particularly difficult cases of non-accidental injury, to take into account the risk involved in alternate care options. They warn that “systemic and contextual issues beyond the child’s nuclear family: the capacity of external systems to meet the needs of the child, the capacity for health, child protection and legal systems to provide the child’s biological family with adequate support and/or the family’s to accept support and monitoring” are matters to be considered when assessing risk. Kozlowska and Foley complain that “risks arising from alternate care placements, which do not allow for adequate emotional development in young children due to the unavailability of long term attachment relationships, are not sufficiently well recognised… ...ongoing repeated disruptions in emotional development through multiple placements can have long-term consequences for the functioning of the child and it is essential to weigh these risks against the risk of further physical abuse” should the child be restored to the parents.

44. It follows then that, in assessing whether the risk posed to a child by a parental proposal is acceptable or unacceptable, one of the factors which will be considered is the risk of disadvantage posed by alternate proposals for the care of the child advanced by the Director-General or any other party. There will be cases where the risks posed by parents are so egregious that they quite overwhelm the disadvantages posed by a proposal of long term out-of-home care but, in other cases, such as Re Nellie [2004] CLN 4, where there had been serious injury to the child caused by an unexplained shaking incident, the risks posed by a restoration to the parents and the disadvantages involved in the Director-General’s proposals were much more evenly balanced.

45. Anthony is lucky in that there is no question of a placement with strangers. Rather, the Director-General looks to his paternal grandparents as carers and, with the participation of his maternal grandmother, Anthony will be cared for within the family and will enjoy close and continuing involvement with his mother and father. Nevertheless, the court should not be blind to the disadvantage that even so benign an arrangement may present. He will be prone to some confusion and, perhaps, even some conflict as to who is his primary carer and what is his relationship to his mother and father and any siblings. To some extent, he will inevitably miss out on the intimate relationship with his mother and father that is the birthright of a child. And his dealings with them will be complicated by reason of his parents having lost parental responsibility for him so that, no matter how sensitively parental responsibility and supervision of contact may be exercised, Mr. L and Ms. K will be beholden to others in their dealings with their son. There will be some potential for confusion in his mind as to who is his principal caring figure. No doubt, Kozlowska and Foley had more extreme cases in mind but the warning their paper sounded should be heeded.

46. The task then is to assess the various risks involved in the competing proposals of the parties. Notwithstanding the evidence of Dr. Kalokerinos and others regarding vitamin C deficiency and vaccinations, the difficulty in determining a precise time or times when Anthony sustained his injuries, the possibility that one of his subdural bleeds was spontaneous and the favourable impression which Ms. K and Mr. L appear to have made on all who have dealt with them, there is a high likelihood that Anthony’s injuries were non-accidental and inflicted by the parents or one or other of them. I take into account Dr. Lennings’ assessment that the parents pose “medium” risk to their son and that, despite the optimistic prognosis, Anthony’s injuries were extremely serious and could have killed him or left him permanently incapacitated. I take into account the possibility that there has been more than one attack on Anthony. As an infant, he remains particularly vulnerable to harm although, as time goes on and he grows up, his vulnerability to physical injury will recede and his capacity for self-protection will increase.

47. I take into account that Mr. L and Ms. K love their son and have a great deal to offer him in his upbringing and development and that, even in the care of loving and competent grandparents, out-of-home care involves significant disadvantage for Anthony but, on the other hand, what is in contemplation is not a placement with strangers but, rather, one where he will have the benefit of being cared for by loving and competent paternal grandparents with the participation of a loving and competent maternal grandmother each of whom will assist in the parents’ efforts to remain significant figures in Anthony’s life.

48. My assessment is that to restore Anthony to his parents in the circumstances which have been outlined in these reasons is to take an unacceptable risk with regard to his safety, welfare and well-being and that, accordingly, he should be placed in the parental responsibility of his paternal grandparents. The Director-General seeks orders until Anthony shall have attained the age of 18 years but I am not certain that out-of-home care for such a long period is called for and the idea of a five year order might be attractive but for two considerations. The first is that, in a context where serious injuries have been inflicted, perhaps on more than one occasion, and remain unexplained, I cannot foresee what will be the circumstances of the parents in five years time. There may be a significant change in their circumstances but I can’t tell what might be the degree of risk, if any, which they may pose in five years time. I think that Anthony’s safety will best be assured and the degree of risk which may be posed in five years time will best be assessed if a decision regarding restoration, if there is to be a restoration at all, is taken at the time of the proposed restoration and in the circumstances which will then apply rather than now.

49. Secondly, I am unable to say what will be Anthony’s attachments five years from now. He will be a six year old boy who will have lived with his paternal grandparents for five years and with his parents for only the first two months of his life. I am confident that Mr. L and Ms. K will continue their vital involvement with him and will be hugely important figures in his life but whether it will be constructive or destructive to break the attachments he will have formed is a matter for the future. Those matters and the matters referred to in section 90(2A) should be considered then rather than now.

50. I can see little utility in allocating any share of parental responsibility to the Minister except with regard to contact. It would have been helpful had the court been offered a clearer picture of the strengths of the paternal grandparents but, in making her proposals, the Director-General demonstrates confidence in their love for their grandson and their competence. Accordingly, I infer that they will not need the Minister’s assistance or advice with regard to Anthony’s medical treatment. On the other hand, it is important that Anthony’s contact to his parents be handled with sensitivity and flexibility. I can see no point in limiting the number or frequency of contact events. That should be a matter for those with the responsibility for his upbringing who will be in the best position to balance the needs of their household and the various commitments of the child with his need for contact with his parents. But, because of the unexplained injuries which have been inflicted on Anthony, there will be a need to ensure a proper degree of supervision. This is not a case where, even as an infant, Anthony needs to be closely and minutely supervised whenever he is in the company of a parents but, until he is old enough and confident enough to verbalise his concerns, his exposure to his parents needs to be monitored and he should not be alone with them and out of the effective primary care of his grandparents. Nor should he be left alone with his parents in situations where they might be faced with the stresses and strains of parenting. For those reasons, I propose that, for a period of five years, the paternal grandparents share with the Minister parental responsibility regarding Anthony’s contact with his parents. I have in mind that the paternal grandparents and the Director-General’s officers will be in a position from time to time to discuss suitable arrangements for contact and, in the event of disagreement, the court will be available to decide the matter.

51. I agree with the Director-General’s proposal that the paternal grandparents share parental responsibility for religion and education not so much because I think the paternal grandparents will need assistance in that regard but because it may be important that the Children’s Court signify the continuing importance of the parents in Anthony’s life.

52. I take into account that this is a family placement which has the approval of the parents and that Anthony is a very young boy and, in the circumstances, I am able to expressly find that permanency planning has been adequately and appropriately addressed.

53. For all those reasons, the orders of the Children’s Court will be as follows:-

[1.] ORDER THAT parental responsibility for the child ANTHONY [ ], born [ ], 2007 be allocated to his paternal grandparents, [ ] until the said child shall have attained the age of 18 years AND THAT parental responsibility for religion and education be shared between the said paternal grandparents and the parents AND THAT, for a period of 5 years from the date of these orders, parental responsibility for the said child’s contact with his parents be shared between the said paternal grandparents and Minister;

[2.] ORDER THAT the said child have liberal contact with his parents and each of them at such times and upon such conditions and subject to such arrangements as to supervision as the said paternal grandparents and, for the next five years, the Minister shall determine.