Re Nellie

[2004] NSWLC 8

Local Court of New South Wales

CITATION:	Re Nellie [2004] NSWLC 8
JURISDICTION:	Children's Court
PARTIES:	Director General of Department of Community Services; Re Nellie
FILE NUMBER:
PLACE OF HEARING:	St James
DATE OF DECISION:	04/30/2004
MAGISTRATE:	Magistrate A Marsden
CATCHWORDS:	Shaken Baby Syndrome - Assessment of risk of further injury - Restoration plan
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 T v H and Ors, (Supreme Court, 19 December 1985)
REPRESENTATION:
ORDERS:

These proceedings are brought under the Children and Young Persons (Care and Protection) Act 1998 (the Act). They are placement proceedings in respect of the child “Nellie” born [ ] October 2001. ….

The proceedings were commenced by the Director General of the Department of Community Services (the Department) on 14 April 2003 pursuant to section 44 of the Act.

On 17 June 2003 the case was established on the ground that Nellie had been or was likely to be abused or ill treated, section 71(1)(c) of the Act.

On 12 August 2003 the Department filed a care plan recommending restoration of Nellie to her parents. On 18 November 2003 the Department filed an amended care plan recommending the allocation of parental responsibility of Nellie to the Minister until the age of 18 years and that she not be restored to her parents care. The parents seek restoration of Nellie to their care.

Placement hearings took place before me on 26 and 29 March 2004 and 1st and 2nd April 2004.

Background

Nellie was born in China on 10 October 2001. Her parents are Mr L and Mrs L.

Mr L emigrated from China in 1990 and is an Australian citizen. In 1997 on a return visit to China he met his current wife. On 20 August 2000, in China, Mrs L gave birth to their first child W. In January 2001 Mrs L became pregnant with Nellie.

In January 2001 Mr L lodged an application to sponsor Mrs L and W to join him in Australia. Mr L anticipated that Nellie would be born in Australia. In August 2001 the application was granted and visas issued which expired on 27 January 2002. As at August 2001 Mrs L was eight months pregnant with Nellie and the airline advised Mr and Mrs L that it was not safe for her to fly at that stage of her pregnancy.

Nellie was therefore born in China on 10 October 2001. Despite the efforts of Mr and Mrs L, it appears that they could not obtain the necessary documents from the Chinese government allowing Nellie to leave China. As the 27 January 2002 approached Mrs L was faced with the dilemma of allowing the visas in respect of herself and W to lapse, and risk them not being renewed, or to exercise the visas and leave Nellie behind in the care of Mr L’s relatives.

After much angst, the Ls decided on the latter course acting on assurances that Nellie would be well cared for through arrangements to be made by Mr L’s family. The plan was that as soon as a visa could be obtained for Nellie, she would join the family in Australia. It was not anticipated that this process would take more than a few months. Mrs L and W arrived in Australia in late January 2002.

Mr and Mrs L’s expectation that Nellie would shortly join them in Australia was not met, in fact she did not arrive here until 10 March 2003.

During the period January 2002 to March 2003, Nellie was looked after by two different carers. For the first six months (i.e. when Nellie was between 3 and 9 months old) it appears that the carer was neglectful of Nellie and as a result she was undernourished and sickly. On this being discovered, arrangements were made for Nellie to live with another carer. When this change-over occurred, it was reported to the Ls that Nellie appeared to be considerably underweight.

According to Mr and Mrs L, all of this caused them considerable anxiety and unhappiness. During the whole of this period they had been paying the respective carers considerable amounts of money for Nellie’s upkeep. In addition, they had been sending baby formula to the carers for Nellie as they believed it was of better quality than that available in China.

Mrs L became pregnant with their third child, Ronald, who was born in Australia on Christmas Day 2003.

After Ronald was born and settled with his mother, Mr L decided that the situation could not be allowed to continue. With his wife’s agreement, he returned to China with the sole purpose of securing Nellie’s visa and bringing her to Australia.

Mr L left Australia for China on 20 February 2002. On 22 February he collected Nellie from the carer. Mr L observed that Nellie appeared ‘little and weak”. He also noticed that she had a bruise on her face. Nellie and Mr L stayed with his family whilst he went about securing her visa from the Chinese government. After 18 days he was successful and returned to Australia with Nellie on 10 March 2003.

Initially, Mrs L was distressed at Nellie’s physical condition but happy to have the family reunited. According to Mr and Mrs L’s accounts, Nellie was slow to mix and play with her sister W. They reasoned that this was not surprising as she had been separated from her family for a period of 14 months since the age of 3 months. She also appeared to be experiencing ‘jet lag’, as was Mr L.

On 15 March 2003, Mr and Mrs L noticed that Nellie appeared tired. The next day she is said to have had a fever and was given some Panadol after which she appeared fine.

When Nellie awoke on 17 March her parents observed that she appeared unwell. Later in the day she managed some food and appeared a little better. At about 6.00 p.m. Mr L observed Nellie to have a fit and a fever. He took her to Westmead Children’s Hospital Emergency Department where she was eventually diagnosed with a serious head injury.

All of the above information was provided by Mr and Mrs L in affidavits and confirmed by them in oral evidence before me. The extent to which any of the above information was checked by the authorities was not apparent, although given the circumstances, I anticipate that it would have been extremely difficult to obtain any corroboration of the events said to have taken place in China. Accordingly, very little of the above factual account was the subject of serious challenge in the proceedings.

Nellie’s Injuries

Dr Lila Stephens and Ms Sue Foley, Social Worker, both of the Children’s Hospital, Westmead, prepared a joint report dated 14 April 2003 which, amongst other things, set out the ‘Medical Investigation Results” in respect of Nellie’s admission. The relevant parts are as follows:

“Bone Scan: 20/3/03. Increased activity in left ulna, left first and 4 metatarsal bone and right 5th metatarsal bone: could be a stress remodelling change”.

This was not the subject of further evidence or to be more accurate, stress remodelling was not ruled out. Accordingly, it was not suggested that this was a non-accidental injury.

“Head CT: 18/3/03. Acute subdural haematoma. Loss of grey/white matter differentiation raised the possibility of ischaemia/infarction with abnormal enhancement.

MRI Brain/Angiogram 18/3/03. Subdural haematomas bilaterally in the parieto-occipital regions and infratentorially. Callosal Shear/Diffuse axonal injury. Oedema with possible ischaemia of the right frontal, temporal and occipital lobes as well as left frontal lobe changes”.

MRI Brain 10/4/03 this revealed, amongst other things, “diffuse cerebral atrophy more involving the right cerebral hemisphere” and “features of neuronal loss”.

“Eye Review: Retinal and pre-retinal haemorrhages consistent with NAI. The retinal haemorrhages cannot be dated.”

Under the heading ‘Assessment” the report stated:

“The advice that we have received from the Radiologists is that there is one event to account for the cerebral injury. Given that the sub dural is acute the dating is most likely to be within 4 days of the CT scan. This means that the injury must have occurred in Australia. The MRI suggests that there has been a diffuse injury and there is evidence of a shearing effect which is suggestive of a shaking mechanism. To date there has been no explanation for the injury, both parents deny shaking Nellie”

The report went on to state the injury was a serious head injury resulting in permanent scarring to parts of the brain. One of the consequences had been an acute seizure disorder. There remained the possibility of further seizures and Nellie was placed on anti-epileptic medication.

At the time of the report, Nellie was walking, responding to family and hospital staff and to rehabilitation therapies. She was considered to have made “a relatively full physical recovery, with perhaps some weakness and subtle difficulties with co-ordination on the left side of her body. However, from a cognitive and behavioural point of view a full recovery is less likely and she will need close follow-up in the long term” (emphasis added).

The report continued, “The injury needs investigation and a decision as to whether it is safe for Nellie to return to the family home. The language difficulties and cultural difficulties make this family difficult to assess. A trans-cultural assessment would be the ideal”.

Nellie was discharged from hospital on 18 April 2003. Since that time she has been seen by a number of medical practitioners. In general terms she continues to make good progress in terms of her physical recovery, she is able to run and play with her siblings. There is some residual weakness to the left side of her body.

Her cognitive development and progress is less clear. The full extent of the brain injury and possible ramifications will only become clear with the passage of time. At the present time she receives speech therapy.

The Department’s case

It is the Department’s case that the injury to Nellie was non-accidental and was caused by one of the parents alone, or by one parent with the knowledge of the other or by both parents. The Department was not able to say which was the case. In the circumstances the Department considered, having regard to the serious nature of the injury already suffered by Nellie, it was not safe for her to be returned to her parents.

That position was supported by Nellie’s separate legal representative, Mr McCaffrey.

The Department’s amended care plan filed on 18 November 2003 recommended that all aspects of parental responsibility be allocated to the Minister until Nellie attained the age of eighteen years of age and that she have supervised fortnightly access to her family for five hours.

When Nellie was discharged from hospital on 18 April 2003, the Department placed her in the care of Mr and Mrs F who were close friends of Mr and Mrs L. This meant that Mr and Mrs L had been able to have daily unfettered contact with their daughter, albeit in the company of either Mr or Mrs F. Mr and Mrs L fed, bathed and generally cared for Nellie for a substantial part of most days, apparently all without incident.

The amended care plan stated that on 23 September 2003 the Department had to place Nellie with an agency carer (as the Fs were unable to continue caring for Nellie) and a new contact order was obtained from the court. Thereafter, the parents’ contact with Nellie was to be three times a week for a period of two hours, supervised and at the Departments offices.

The amended plan went on to state that supervised contact visits were exercised once only by Mr and Mrs L on 27 September 2003 and subsequently they failed to attend for contact visits.

The amended care plan further stated that Mr and Mrs L had failed to attend the Transcultural Mental Health Service, said to be a pre-condition in the earlier care plan. It also stated that Mr and Mrs L had in effect severed contact with the Department and other support workers after 27 September 2003.

The amended care plan concluded:

“It is considered that Nellie’s safety could be compromised if she is to return home as there is still no sufficient explanations to her brain injury which would require ongoing medical monitoring. In addition, it is not clear that Mr and Mrs L have an understanding of the long-term care of Nellie, whether they have a capacity to provide a safe environment for her and an ability to demonstrate their willingness and commitment. The cause of Nellie’s injury and her future care remains extremely concerning”.

I note that in so far as the first sentence of the paragraph is concerned, nothing had changed since the first care plan had been prepared, that is the perpetrator of the injury was unknown then and remained so as at 18 November 2003. The fact that Nellie would require ongoing medical monitoring was also not a new factor.

What appears to have changed is that the Department was suggesting that Mr and Mrs L did not have an understanding of Nellie’s long term care needs, doubts as to their capacity to provide a safe environment for her and a failure to demonstrate their ongoing willingness and commitment to her wellbeing.

These concerns seem to have developed from Mr and Mrs L’s sudden change in attitude toward the Department and their unwillingness to accept other support services.

What the amended care plan and affidavits of the Department’s officers did not reveal was the change in the Department’s attitude which precipitated Mr and Mrs L’s sudden about face.

Ms Su is the Department caseworker with the carriage of the matter. Ms Su prepared and filed a case plan on12 August 2003 in which she recommended allocation of parental responsibility of Nellie to the Minister for 12 months with a recommendation:

· that Mr and Mrs L undergo the Triple P Program (Positive Parenting Program), that they work with a support worker regarding daily care and support of their children,

· that they receive support from Transcultural Mental Health Service for ongoing counselling.

Subject to this then Nellie was to be returned home over a transitional 2 month period and the Department would monitor and review the ongoing situation and issues pertaining to Nellie’s safety, welfare and wellbeing.

Ms Su gave evidence before me and was cross-examined. During cross-examination she conceded that the Department did not change its mind about restoration of Nellie to her parents until 20 August 2003. On that date the matter came back before the Children’s Court and the presiding Magistrate indicated that he did not agree with the recommendation, having reservations about the return of Nellie when the perpetrator of the injury was not known.

It seems that after this mention date, the Department reconsidered the matter. Ms Su consulted with her manager and he with his superiors. Consequently, Ms Su was directed to prepare the amended care plan. Mr and Mrs L were advised of the Department’s change of mind. It was only after being notified that the Department was recommending that Nellie not be returned to them that Mr and Mrs L changed their attitude toward the Department and its recommendations.

The evidence of Mr and Mrs L was to the effect that once the Department changed its mind they no longer had any faith in the Department. They were devastated by the Department’s change in attitude.

Mr L in his affidavit and in evidence explained that on being told by the Department of the change of plan he was distressed and confused. He could not understand why after five months of daily contact with his daughter with the expectation that she would be returned to them that the Department suddenly decided to permanently remove her from them with limited supervised contact in the Department’s premises. He went on to state that he and his wife decided that if they could only see Nellie on those terms then it was better not to see her at all.

In view of the Department’s changed recommendation, there was no point or incentive for them to participate in counselling with the Transcultural Mental Health Service or participating in other support programs.

It should be said that up until this point the Department conceded that Mr and Mrs L had done everything asked of them in respect of Nellie.

I am inclined to the view that the real reason why the Department changed the recommendation in the amended care plan was because after the Magistrate’s comments on 20 August 2003 the Department had reassessed the risk in returning Nellie and come to a different conclusion. The reasons set out in the amended care plan were convenient ex post facto justifications which only arose because of the change being communicated to Mr and Mrs L.

Expert Reports

Prior to the preparation of the amended care plan the Department had received reports from the following experts:

· Mr David Harding, Court Clinician, report dated 16 June 2003

· Dr Louise Newman, report dated 24 July 2003

· Dr Kasia Kozlowska, report dated 24 October 2003

· Ms Sue Foley, Social Worker report dated 31October 2003.

Mr Harding is a psychologist and an authorised court clinician. He assessed Mr and Mrs L on 4 June 2003. Also present during the assessment were Nellie, Ronald and the temporary carer.

Mr Harding concluded that Mr and Mrs L did not appear to appreciate the effects of the neglect and deprivation that Nellie suffered in China. Nor did they appear to fully appreciate the effect upon her of the lengthy separation from her parents. He observed that “There also appears to be evidence of a poor understanding of parenting practices and of the long term effects of such a significant brain injury...” and “these factors do not indicate a high level of normal parenting skills or particular skills that may be required when dealing with children who have specific special needs”.

Mr Harding also observed that Nellie appeared to suffer from a significant attachment disorder. He went on to state that “within the context of this disorder normal parent-child interactions are likely to be compromised, and Nellie’s physical, emotional and social needs may not be met. In extreme cases there exists the potential for abuse”.

Mr Harding observed Mrs L to be detached and withdrawn and exhibited symptoms of disturbed bonding with Nellie and by Nellie to Mrs L.

At that time Mr Harding did not consider that restoration of Nellie to her parents could be recommended. Prior to consideration of restoration he recommended the following:

· A mental health assessment to more thoroughly document the emotional status of Mr and Mrs L and Nellie.

· Parents undergo parenting classes.

· Parents to continue to have daily contact with Nellie until a more detailed restoration plan be developed after the parents had completed the above two matters.

· A developmental assessment of Nellie.

· The Department to provide appropriate monitoring.

Report of Dr Louise Newman

Dr Newman is a psychiatrist specialising in child psychiatry. She prepared her report in response to Mr Harding’s recommendation that a mental health assessment be conducted to more thoroughly document the emotional status of Mr and Mrs L.

She conducted the assessment on 15 July 2003 with the assistance of a Mandarin interpreter.

Dr Newman found that Mr L did not show any features of psychosis or mental illness. She did however consider that he was suffering from a reactive-type depression. She considered that Mr L was aware of Nellie’s need of ongoing review and possible rehabilitation but appeared to have less understanding of the possible developmental and cognitive sequelae of her brain injury.

Dr Newman considered that Mrs L appeared to understand the implication of Nellie’s brain injury. She observed Mrs L in interaction with both of her daughters, Nellie and W. She stated that Mrs L was “responsive and sensitive to the children’s communications and took obvious pleasure in playing with W...Mrs L was pleased that Nellie is now playing well with W...Mrs L overall appears reticent and reserved. It was difficult to assess the extent of any depression but she denied symptoms of major depression or psychosis”.

Dr Newman concluded that both Mr and Mrs L “have been traumatised by the enforced separation from Nellie and have feelings of guilt and sadness about this. They are aware that Nellie will need sensitive care and time in order to establish attachment relationships to her family....Of concern is the fact that their remains no adequate explanation of Nellie’s injuries. The family’s capacity to safely care for Nellie is difficult to assess but they appear motivated to comply with medical recommendations regarding Nellie’s care”.

Dr Newman was of the opinion that if Nellie was to be returned to her parents the family would require ongoing counselling, monitoring of Nellie, bilingual family support services being involved and that the parents be referred to Transcultural Mental Health Service for ongoing support.

Dr Kozlowska’s report

Dr Kozlowska is a senior child and adolescent psychiatrist working in the Department of Psychological Medicine at the Children’s Hospital Westmead. She has significant experience in working with young traumatized children and their caregivers and has a particular interest in attachment.

Dr Kozlowska was asked by the Department to provide a report concerning the possible restoration of Nellie to her parents. Dr Kozlowska understood that “there is concern about Nellie’s future care and about the role of attachment in terms of assessing the risk issues in relation to Nellie being safely returned to her family.”

Dr Kozlowska reviewed the material and wrote:

“In view of the fact that an identifiable perpetrator has not been identified, it is difficult to be specific about the degree of risk if Nellie returns to her family. However, Mr and Mrs L have cooperated with services and are agreeable for ongoing contact and support to be organised. This should include review of Mr L’s reactive depression. There is no evidence of other significant risk factors at this time. The family have made arrangements both financially and in terms of their parenting arrangements for supports to be put in place. It would seem that a trial return to the family in the context of significant supports and close review and supervision is now indicated.”

Ms Foley’s report

Ms Foley is a senior social worker with the Westmead Children’s Hospital and an authorised court clinician. She has over thirty years experience in child related issues. She is a member of an international expert panel of Child Protection. Her area of expertise includes the assessment of children and their families in relation to physical and emotional abuse and neglect.

Ms Foley was requested by the Department to comment on its first care plan and review the assessments already undertaken by Dr Newman, Mr Harding, the Children’s Hospital at Westmead and the Department.

Ms Foley reviewed the earlier assessments and identified the various psychological stresses operating on the family both before and after the injury to Nellie. She also noted the family’s strengths, those being their willingness to comply with requirements made of them regarding Nellie’s care and Mr L’s strong desire to care for his daughter. She noted that the parents related appropriately to their other two children and that there was no indication of any physical harm to either of them. Ms Foley also noted that “there is no apparent domestic violence and the mental state assessment does not indicate specific risk issues”.

Ms Foley went on to observe that “At the age of two years, Nellie is no longer significantly vulnerable to a shaking injury. She of course remains vulnerable to other forms of abuse or neglect, although there are no other specific indicators of abusive behaviours described as being present in her family”.

Ms Foley was of the view that the Department’s care plan was appropriate. The only significant alteration to the plan that Ms Foley suggested was that the “shared parental responsibility and supervision of Nellie needs to be three years rather than one year. This would take Nellie up to school attendance age”.

Despite the experts endorsement of Ms Su’s case plan the Department decided to change the recommendation contained within it.

Report of Dr Kozlowska and Ms Foley

Shortly before the hearing of this matter the Department asked Ms Foley and Dr Kozlowska to review the amended care plan. They requested an opportunity to meet with Mr and Mrs L to review their mental state and to observe their interactions with Nellie (then aged 2 years and 6 months) and their other children, W (4 years) and R (15 months). They were interviewed on the 9th and 24th March 2004. Before the interviews, Ms Foley and Dr Kozlowska had access to all of the medical reports and affidavits filed in the proceedings.

Their report is dated 25 March 2004 and became available to the parties after the first hearing day.

The authors of the report were of the opinion that Nellie was suffering from a severe attachment disorder, that is a failure to develop attachment to preferred adult caregivers and indiscriminate approaches to strangers to seek interaction and comfort.

They concluded that this was the product of the numerous placements Nellie had had in her short life, some 7 or 8 in total (there was some dispute as to the exact number). As a result Nellie “has been unable to develop a preferred attachment relationship, and where the normal anxiety and fear of strangers has failed to develop”. They considered “this over-familiar behaviour is inappropriate and potentially dangerous”. However, they observed “It must be noted that despite Nellie’s abnormal attachment behaviours, there is potentially still time to prevent an ‘at risk’ development trajectory”.

Ms Foley and Dr Kozlowska were also of the opinion that Nellie’s earlier neglect whilst in China complicated her attachment disorder. They concluded that if Nellie’s attachment disorder was to be arrested and corrected then it was important that “Nellie is given the opportunity to form long-term nurturing and culturally appropriate attachment relationships, which will give her the opportunity to overcome early adversity”

The report documented considerable improvement in the mental health of both Mr and Mrs L. It noted that Mr L’s reactive depression, as observed by Dr Newman, was greatly improved. His depression had previously been of concern because of the risk that the condition might pose to the care of Nellie and the other children.

During the interviews no difficulties or inappropriate parenting or interactions were observed.

Many of the stress factors that initially had been operating on the mind of Mr L in particular had been reduced. He had made arrangements which resolved some of his earlier financial pressures. As a family they were less isolated. They had developed a network of friends and had the support of their church and some of its members.

Ms Foley and Dr Kozlowska reviewed the report from the Hills Family Centre where Mr and Mrs L had completed the Triple P Program. They noted that the report observed that the family needed to “process the frustration, anger and helplessness” that the parents felt following the removal of Nellie. Ms Foley and Dr Kozlowska were of the opinion that Mr and Mrs L “had made significant emotional gains since the time of this report”.

They reported that Mr and Mrs L were still very hopeful and keen to have Nellie restored to their care and that they were prepared to comply with all requirements asked of them in relation to Nellie’s ongoing medical care and supervision.

On the issue of the original injury to Nellie they wrote:

“The cause of this injury to Nellie is still a mystery. Whilst a shaking injury is a form of physical abuse, it is not always found associated with the same risk factors as other forms of physical abuse. The seriousness of the injuries and the shame of the impact on the child means that many families struggle to admit to knowing how the injuries may have occurred”.

Their report goes on to list the positive factors favouring Nellie’s restoration to Mr and Mrs L. They may be summarised as follows:

· Since early 2003 they have been committed to Nellie’s wellbeing. Up until the decision to seek permanent removal of Nellie, they had regularly attended to her care, medical appointments and all requests made of them by the Department.

· The Ls have two other children about whom there have never been any other concerns in regard to physical harm and neglect.

· During the six month when the Ls had extensive contact with Nellie whilst in the care of Mr and Mrs F, there were no concerns about that care and no further incidents of injury to Nellie.

· During Nellie’s stay in hospital and the subsequent interviews with the authors of the report, the Ls had demonstrated empathy and planning to meet the needs of their children, including Nellie.

· There are no indicators of domestic violence between Mr and Mrs L or of any significant conflict between them.

· The risk of future physical harm is considered to be low because of the above matters.

· Despite the separation from her parents, Nellie has been “able to hold them in mind and yearns for time with them. Together with Nellie’s interactions with her parents, this sets a nice beginning for Nellie being able to establish attachment relationships with both her biological parents”.

Dr Kozlowska and Ms Foley were of the opinion that :

“...it is highly unlikely that Nellie’s needs, including her emotional needs and need for safety and overall wellbeing could be equally well met outside placement with her biological family. Multiple foster placements are dangerous for her emotional health, and if continued have the potential to put her at risk of severe emotional and behavioural disturbance. Emotional and behavioural difficulties will also contribute adversely to cognitive development and learning opportunities”.

In conclusion they stated:

“We believe that the family has demonstrated the ability to provide safe and appropriate nurturing care to Nellie and their other children. They have demonstrated that they understand their emotional needs, their physical needs, and their educational and cultural needs. There are no indicators of significant conflict between the parents and Mr and Mrs L have good connections with the community and no current significant financial stressors. There has been stability in living circumstances. There are no current mental health concerns and the concerns in the past have always been described as reactive to the loss of Mr L’s father and repeated separations from Nellie”.

Not surprisingly in light of the above, Ms Foley and Dr Kozlowska recommended that Nellie be restored to her family as soon as possible subject to various support services and conditions being in place.

Despite the recommendations contained in this report the Department maintained that the risk of returning Nellie to her parents was too great. Accordingly it pressed the court to make an order allocating parental responsibility of Nellie to the Minister until she attained the age of 18 years.

The Hearing

The force of the Department’s argument that Nellie should be permanently removed from her parents was based on the premise that her injury was non-accidental and that either or both of Nellie’s parents were responsible for it.

In determining how the injury occurred and who was responsible, it is necessary to have regard to the parents’ account of matters leading up to Nellie’s presentation at hospital on the evening of 17 March 2003.

Mr L collected his daughter from the carer in China on or about the 22nd February 2003. Mr L noted that she appeared thin, had a problem with her leg, was not walking well and often fell over. He also noted a bruise on her forehead. Mr L believed this to be the result of a fall. This bruise was said to be evident on Nellie’s passport photograph taken in China. In regard to the latter injury, the evidence was not such as to suggest that the bruise was occasioned at the time of the brain injury.

Mr L’s original account, as set out in the report of Ms Foley and Dr Stephens, was that on the flight to Australia Nellie slept a lot, occasionally moaned and groaned but did not cry. On arrival in Australia she was very quiet and did not want to play with her older sister. Apart from this, Mr L noticed nothing unusual although he and Nellie were very jet lagged.

Mr and Mrs L took her to their local doctor on 13 March 2003 not out of any specific concern for her then state of health but for her ‘innoculations’. As it turned out this could not be done as Nellie did not have a Medicare card.

There is some corroboration of the visit in the letter of Dr Au-Yong dated 8 March 2004 which indicates that the doctor saw Mr and Mrs L, W and R on 13 March 2003.

Nellie was well enough to be left in the playroom to play with her step-siblings on 15 and 16 March 2003, although she was noticed to be tired and not very energetic on the 15th March. On 16 March Nellie appeared to have a temperature, she was given tablets and appeared to get better. It was not until 17 March that Mr L noticed something amiss in her health. She appeared unwell in the morning and at 6:00 pm she had a fit and a fever.

Mr and Mrs L have not wavered from this version of events. It has been consistently repeated to the health professionals at Westmead Hospital, members of the JIRT investigation team and to this court. Mr and Mrs L have each consistently denied being responsible for the injury and denied any knowledge as to how it may have occurred.

Mr and Mrs L also repeatedly stated that during the period between Nellie’s arrival in Australia and her presentation to the Emergency Department on 17 March 2003 she had been in their exclusive care.

Called on to explain how the injury could possibly have occurred, Mr and Mrs L speculated that it may have happened in China when Nellie was not in Mr L’s care. Alternatively, it was suggested that it might have happened on 15th or 16th March 2003 when Mr L left Nellie in the playroom with his children from a former marriage. Those children are Queenie (born 10 December 1996) and Edward (born 7 July 1999). At that time they were aged 6 years and 4 months and 3 years and 9 months respectively.

Mr L told the health professionals at the hospital that there was a table in the playroom, approximately one metre high. He speculated that Nellie might have fallen from the table.

Mr L told health professionals that during the time that Nellie was in the playroom he did not hear a cry come from her although he was mowing the lawns at the time

Police visited the home of Mr and Mrs L and took photographs of the playroom. Apparently there was no table but the base of a bed approximately 700 mm high. Allowing for problems with interpretation it may be that Mr and Mrs L were speculating that Nellie might have fallen from the bed base on to the concrete floor. The floor had a covering of linoleum.

It will be recalled that the joint report of Ms Foley and Dr Stephens referred to the radiologist’s opinion that the injury had most likely occurred within four days of the MRI having been taken ie since 14 March 2003.

Dr Stephens gave evidence before me. She had no particular expertise in the dating of the injury and had relied upon the advice provided directly to her by the radiologist. Her understanding was that the radiologist was able to place the injury as having occurred within that time frame by reference to results of certain tests carried out on a sample of Nellie’s blood. Those tests revealed the blood to be hyper-acute. The information from the specialist to her was that the injury must have occurred within four days or shorter. She said that the specialist team, including herself and the radiologist had ‘reviewed the scans’ on at least three occasions and reached the same conclusion.

Asked to describe the amount of force required to cause the shearing effect to the brain Dr Stephens said the force would be consistent with or equivalent to the force experienced in a major car crash or falling from the third floor of a building. She was firmly of the view, derived from research literature on such injuries, that Nellie’s injury was not consistent with a short fall from a table or a bed base.

She stated that a child suffering this sort of traumatic injury would be expected to show some of the following symptoms: loss of consciousness, drowsiness, non-responsiveness, nausea, vomiting and seizures. She would usually expect such symptoms to show almost immediately or within 24 hours. She however had knowledge of cases where the symptoms were not revealed until 36 hours after the trauma was occasioned.

In Mr L’s affidavit, and adopted by Mrs L, he stated Nellie had a fever on 16 March and a fit and a fever at 6:00 p.m. on the 17 March. Ms Foley and Dr Stephens report of 14 April 2003 also records Mr L as reporting that Nellie has a big vomit while being fed on the evening of 17 March. It will be seen that those symptoms are amongst those identified by Dr Stephens as likely to appear within at most 36 hours of the trauma occurring.

There was no medical evidence called or produced on behalf of the parents, other than the letter from Dr Au-Yong dealing with the matter above referred to. I found the evidence of Dr Stephens to be compelling. She is a highly experienced doctor in her field. Her opinions were not the subject of any serious challenge.

In light of Dr Stephens evidence and Mr L’s account of Nellie’s state of health when he collected her, I find it impossible to accept that the injury occurred to Nellie in China. Her condition as reported by Mr L is inconsistent with such injury having occurred at that time. Allowing for the force required to produce such trauma it appears to me to be highly unlikely that Nellie could have survived the flight from China to Australia without a great deal more distress than reported by Mr L.

Again, accepting Dr Stephens evidence as I do, I reject the suggestion that the injury might have occurred as a result of a fall in the playroom on the 15th or 16th March. Whilst it was not directly suggested, I do not consider it possible that the injury could have been inflicted by Nellie’s step-siblings in the course of play on those dates. Given the age of the children at the time, I am of the view that neither of them would have had the physical capacity to inflict such an injury by shaking.

It was submitted for the parents that there was no evidence that they were responsible for Nellie’s injury. True it is that there is no direct evidence, but the medical evidence coupled with their statements that they were the only ones who had Nellie in their care at the relevant time leads me to find, on the balance of probabilities, that Nellie’s injury was non-accidental and was inflicted by one or other of Mr and Mrs L or, possibly although unlikely, by both. The evidence does not allow me say which of the two was the more likely perpetrator or if one is responsible without the other’s knowledge.

In making that finding I am cognisant of the serious nature of the allegation and the possible ramifications for Mr and Mrs L. I have made that finding in the context of the degree of satisfaction referred to in Briginshaw v Briginshaw (1938) 60 CLR 336.

Placement

There can be little doubt that the injury caused to Nellie was extremely serious. Whilst the physical ramifications may diminish with time it is likely that the congnitive impairment will be permanent. The degree of impairment cannot yet be fully assessed.

There can be no doubt that returning Nellie to the care of her parents poses some degree of risk. The questions for me to decide are; what is the degree of risk and is the risk an acceptable risk. In coming to a decision I have to have regard to the principles set out in the Act and in particular to section 9(a) which is as follows:

“In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety welfare and well-being of the child or young person must be the paramount consideration.”

The court clinician, Mr Harding, gave evidence. Before doing so, he read the additional material filed in the proceedings with the exception of the final report of Ms Foley and Dr Kozlowska which was not available at that time. He had however read the report of Ms Foley dated 31 October 2003 and the report of Dr Kozlowska dated 24 October 2003. Both of those reports recommended consideration of restoration of Nellie to her parents, subject to certain conditions. He considered that both of those reports were consistent with his report.

Mr Harding found it pleasing that progress had been made by Mr and Mrs L and that there was the beginnings of an attachment by Nellie to her parents. On behalf of Nellie, it was put to him that to restore her to the care of her parents was an unacceptable risk. He did not agree and said that one had to have regard to the circumstances and to what support services could be put in place. He was prepared to concede however that he would still have some concerns.

In terms of Nellie’s long-term placement outside of her family, he expressed the opinion that it was enormously important that she should be placed with a culturally appropriate carer, that is, a Chinese carer.

He agreed with the general proposition that a risk of further serious injury to Nellie whilst in the care of her parents would override the concern for a culturally appropriate placement.

Dr Newman, having read the final report of Ms Foley and Dr Kozlowska and all the other relevant material filed in the proceedings, supported their recommendation that Nellie be returned to her parents. She was questioned about Nellie’s attachment disorder and agreed that it was a very serious concern but agreed that it could be restored or developed by consistent, sustained good quality care over an extended period of time. She agreed that Nellie’s history of numerous different carers could leave her pre-disposed to a whole range of mental health problems.

Dr Newman saw Mr and Mrs L as benefiting from participation in counselling with the Transcultural Mental Health Service because of the bilingual service that could be offered. Professionals within that service were better able to pick up and deal with nuances of language, which were sometimes lost in translation through an interpreter. She thought such services would be particularly beneficial for Mrs L.

Dr Newman listed factors that were generally considered risk factors and stated that most of these were not present in the case of Mr and Mrs L. She agreed that the fact that the perpetrator was not known and the fact that Nellie was brain injured did pose a risk but not, in her opinion, an unacceptable risk. She agreed that it was not unknown for one child in a family to be subjected to abuse and others to escape such treatment.

She was of the opinion that the risk had to be looked at in terms of the family’s capacity to engage with various services and to co-operate and accept supervision.

Dr Newman was reluctant to speculate on the level of risk but was prepared to assess it as not being high.

Ms Foley gave evidence. She adopted her previous reports and the recommendations contained in her joint report with Dr Kozlowska. Ms Foley had had the benefit of seeing Mr and Mrs L on a number of occasions when they visited Nellie at Westmead Hospital in March and April 2003 and again in March 2004. She observed that Mr L appeared a lot less depressed than when she had first met him. She believed that his mental state had improved considerably.

She maintained her opinion that Nellie should be restored to her parents and in her view, the sooner the better. Ms Foley believed that if restoration was to occur the transition period need not be more than a few weeks.

If restoration were to occur she considered that it had to be on the basis of Mr and Mrs L receiving family support, mental health counselling and that they comply with all requirements regarding Nellie’s ongoing medical treatment. From her interviews with the Ls she considered that they would willingly comply with all of these requirements.

Ms Foley identified the need for ongoing speech therapy for Nellie, an observation that Mr L had also identified. She felt that the parents would benefit from improving their English skills and that Nellie would benefit from attending a child-care centre.

Ms Foley indicated that she and Dr Kozlowska would be happy to keep on seeing the family and to work with them.

Ms Foley considered that the likelihood of Nellie suffering a similar injury was unlikely, she was less vulnerable to such an injury. Statistics indicated that children over the age of 2 years were at considerably less risk of such abuse although she did agree that the risk might be slightly higher because of the stresses caused by Nellie’s brain injury. However, Ms Foley was at pains to stress that there were no other risk factors present in the family.

Ms Foley conceded that the exercise of ‘risk assessment’ was made more difficult by the lack of an acceptable explanation for the injury and the existence of the possibility that one or both parents were responsible. However she expressed the view that even if one or both parents were responsible that did not mean that it would be repeated. In Ms Foley’s opinion one had to look at the current factors and assess the parents strengths and capacity to provide a safe and nurturing environment for Nellie. She was firmly of the opinion that they were so qualified.

Dr Kozlowska gave evidence. She adopted her previous reports and latest recommendations. Much of Dr Kozlowska’s evidence was in similar terms to that of Ms Foley. She stated that when she saw Mr and Mrs L neither were suffering from reactive depression, although Mr L had clearly suffered from it earlier.

Dr Kozlowska was greatly concerned that if Nellie was placed in the care of the Minister she may experience any number of short-term placements. She had seen this happening all to often in the past with devastating effect upon the child’s emotional and mental development. Dr Kozlowska was concerned about the possibility that too much focus was being placed upon the risk of future physical harm occurring without having due regard to the harm that would flow if Nellie was not placed in a long term nurturing environment. In her view, there was a very real risk that whilst Nellie’s physical wellbeing might be protected this would be at her emotional expense. If such harm occurred it would be irreversible and could manifest itself in self-harm, drug and alcohol abuse and sexual abuse.

Dr Kozlowska confirmed that she was prepared to continue to work with Mr and Mrs L, she saw them as having lots of strengths. Dr Kozlowska indicated that she did not do this lightly, she did not offer such assistance to people she did not think amenable to such assistance.

In cross-examination Dr Kozlowska said statistics, in cases such as this, indicated a ‘one in three’ risk of re-abuse. However, the statistics were in respect of families where there had been no intervention or acceptance of help. She did not assess the risk of further abuse in this family as high.

I should add that at the time when the last three witnesses gave their evidence Nellie was, and remains, in a short-term placement. The Department had not been able to find a possible future long-term placement for Nellie. The prospect that Nellie might be placed in a further sequence of short-term placements was a matter of some significance to these witnesses. During submissions, it became apparent that the Department had found a possible long-term carer for Nellie should she be permanently removed from her parents. It transpired that this person had not yet met Nellie nor was the placement a culturally suitable placement, no such placement being available for Nellie on either a long-term or short-term basis.

Mr and Mrs L gave sworn evidence. It was unremarkable in the main. Each repeated the history of the matter as previously set out and denied any involvement in or knowledge of how Nellie suffered the injury.

Meaningful cross-examination of them was made difficult by the usual problems where interpreters have to be used. In this case it was made more so by Mr L’s insistence that he spoke and understood the Mandarin language whereas the interpreter expressed doubts about his level of understanding on the finer points of the language. However, I did not detect any significant difference in the quality of his answers when a Cantonese interpreter was used.

In his evidence Mr L, in particular, demonstrated by his answers a clear understanding of Nellie’s future needs and the various plans he had to address those needs.

Mr L was cross-examined about an Apprehended Violence Order his former wife had taken out in favour of herself and their two children, Queenie and Edward. Mr L’s answers were somewhat evasive on this issue. Eventually he conceded the past existence of the order although he did not think it was still in existence. He said that his former wife had taken it out because he had got angry with her over money and false allegations she was making against him. He stated that it did not involve any allegations of violence against the two children. He was not challenged in respect of this explanation.

Mr and Mrs L stated their love for Nellie and their earnest desire to have her returned to them. I do not doubt their sincerity in this regard, it is entirely consistent with their conduct before and after Nellie’s injury.

In addition to the evidence of Mr and Mrs L, affidavits from Mr and Mrs McCarthy were put into evidence in the Ls’ case. They were not required for cross-examination. The affidavits contained evidence supporting the good character of Mr and Mrs L, details of their appropriate parenting skills and the positive relationship between Nellie and her parents.

The Department and Mr McCaffrey submitted that the risk of returning Nellie to her parents was too great, that the existence of the possibility of future harm was unacceptable. It was submitted that in those circumstances it would not be in Nellie’s best interests to return her to their care.

It was further submitted that the risk was heightened by the existence of the attachment disorder, the period of prolonged separation, Nellie’s special medical needs, her cognitive and physical disabilities and the additional stresses that these would cause to Mr and Mrs L who have two other young children to look after.

In support of his argument, Mr McCaffrey referred me to the decision of the NSW Supreme Court, T v H and Ors, 19 December 1985. That was a case involving care proceedings similar to these and ‘shaken baby syndrome’. That case involved allegations of physical abuse by parents said to be of otherwise good character and who denied any responsibility for the injuries or knowledge as to how they occurred. Mr Justice Hodgson accepted the medical evidence and found that one or other of the parents was responsible for the injuries. His Honour concluded that:

“Accordingly, on the balance of probabilities, it seems to me that the Plaintiff (child) would be in danger if he was at this time returned to the care of the Second Defendants (parents). Had there been an explanation of his injuries, the result may have been different. If the cause of 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 manner.”

His Honour declined to return the child to the parents.

Mr McCaffrey urged me to follow the same line of reasoning. He submitted that the existence of any risk of future harm to Nellie, no matter how remote, was not acceptable and should preclude the court from restoring her to her parents.

There are a number of significant differences between the two cases. In the above case, the child was approximately 6 months old when the injuries were sustained. He was 12 months at the date of the order. The injuries were occasioned on two or more separate occasions. Apart from the brain injuries caused by shaking the child, there were additional injuries - broken bones to the child’s right and left femur, left and right fibia and two broken ribs. At the time of the hearing the Department had not ruled out the possibility of eventually returning child to its parents but considered that should not happen at that time because the child was “still young and delicate”.

It will be noted that his Honour expressly referred to the risk of returning the child at “this time”. The case is not an authority that a child should never be returned in such circumstances. Similarly, His Honour does not go on to say that it is not possible to assess the risk involved but rather that it is more difficult to assess the risk in the absence of the complete picture.

Findings

On the evidence before me, I make the following findings (in no particular order of significance):

· Mr and Mrs L were genuinely distraught at having to leave Nellie behind in China. They made appropriate and concerted efforts, so far as they were able, to ensure Nellie’s wellbeing whilst in China.

· Mr L demonstrated considerable determination in seeking to ensure that Nellie was reunited with her parents.

· Nellie’s injury occurred in Australia whilst in the care of her parents and that one or other or both of them were responsible for the injury. The possibility remains open that one parent has caused the injury without the other’s knowledge. The injury arose from a single traumatic event.

· At the time of the injury Mr and Mrs L were living and functioning under considerable stress. They were experiencing financial pressures because of the trip to China, maintaining a large mortgage on limited income and rearing a family of five. Mr L was still grieving from the death of his father in 1999 and Mrs L had only been in Australia for a relatively short period of time. She had given birth to her third child some 10 or 11 weeks before Nellie’s arrival. The family was to some extent isolated by language and had a limited number of friends.

· There have been no complaints of abuse in respect of Mr and Mrs L’s other two children or the two children from Mr L’s former marriage.

· During Nellie’s lengthy stay in hospital (over one month) Mr and Mrs L visited her almost daily and were attentive to her needs. The same can be said of the period of 5 or 6 months that Nellie was in the care of Mr and Mrs F.

· Mr and Mrs L’s reluctance to undergo counselling with the Transcultural Mental Health Service, the subsequent severing of contact and co-operation with the Department and the suspension of visits to Nellie between September and December 2003 was, in my view, understandable in light of the changed recommendation by the Department and the manner in which it occurred.

· Since Mr and Mrs L resumed visiting Nellie, their conduct had been appropriate at all times.

· There is no evidence of any matrimonial disharmony, domestic violence or the use of prohibited drugs or excessive consumption of alcohol.

· As a result of various events before and after Nellie’s injury, Mr L suffered from reactive depression. He has since recovered from this. Neither Mr nor Mrs L suffer from any form of mental illness.

· Mr and Mrs L have attended a parenting program. They have learnt and applied new parenting skills.

· Mr and Mrs L’s two other children, both young and vulnerable, have remained in their care without apparent incident. This is so despite the extraordinary stresses occasioned by the injury to Nellie and these proceedings.

· Mr L has reduced his working hours, sold his taxi business and resolved some of his financial difficulties.

· Mr and Mrs L now have an understanding of Nellie’s long-term physical, intellectual, emotional and medical needs.

· In the event of Nellie being returned to their care they are prepared to fully cooperate with the Department and Nellie’s medical practitioners. They have previously clearly demonstrated such willingness.

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· Because of Nellie’s age and physical development the risk of similar injury is significantly diminished although the risk of other forms of abuse remains, heightened to some extent by Nellie’s medical condition.

· There are the normal benefits of a child being reared by its natural parents, in a culturally appropriate family unit and in the company of its siblings.

· The neglect of Nellie by her carer in China together with Nellie’s attachment disorder, brought about by a succession of short term placements, adds greater emphasis to the long term placement being with her parents.

Conclusion

In this case, I have found that the injury was caused by either or both of the parents. I have to proceed on the basis that each is a possible perpetrator. The injury was extremely serious and the consequences long lasting. Having regard to the gravity of the injury suffered, Nellie could not be returned to her parents if I was of the opinion that there was a “real possibility, a possibility that cannot be sensibly ignored” of future harm occurring (House of Lords In re O and N (minors) (FC) In re B (minors) (2002) (FC)).

Trying to assess the likelihood of whether an inherently uncertain event will occur is an imprecise exercise. In this case, the ‘uncertain event’ in question is some form of child abuse. The exercise is made more difficult because the reason for the occurrence of the past abuse is not known. The degree of difficulty is amply illustrated by the Department’s original plan to recommend restoration and its subsequent decision to reverse the recommendation unsupported by any new evidence.

Whilst the exercise is difficult and imprecise it is not impossible and may be undertaken with some degree of confidence if sufficient other facts are known.

In assessing whether Nellie would be put at unacceptable risk in her parents care, I have to look to the past circumstances, the present and the known strengths and weaknesses of the parents.

From the above findings it can be seen that at the time of the injury to Nellie the parents were suffering considerable stresses. Many of those stresses have disappeared or diminished in strength. Many of the factors commonly found in child abuse cases are not present. One factor which was present and of concern was Mr L’s reactive depression. That has now been alleviated. Another stressor, the presence of a very young child, R, has been reduced by the passage of time, as has the family’s isolation. The injury was, on the evidence relied upon, a single event not a course of conduct. A range of experts in matters of child abuse have not detected any inappropriate conduct by the parents in terms of their reaction and relationship with Nellie or their other children.

The fact that Mr and Mrs L have denied responsibility is not perhaps surprising. As Ms Foley observed, the shame, embarrassment, not to mention remorse, flowing from such conduct is often reason enough for the perpetrator not to admit the conduct. To this might be added the fear of criminal sanctions.

The view to which I have come is that in all likelihood this injury has occurred as a result of a momentary loss of control by one of the parents. Nellie has been vigorously shaken by that parent without appreciation of the very significant harm that could flow from such an action. It has occurred at a time when the family was under considerable strain from a number of sources.

The strengths of the Ls are set out in the above findings of fact but may be shortly stated in terms that they have overcome many of their earlier problems, they are in good mental health, are a solid family with the support of friends and members of a supportive religious community.

As to the future, they have demonstrated a willingness to work with the authorities for the benefit of Nellie.

Having regard to the above findings I am of the opinion that the risk of further harm to Nellie whilst in the care of her parents is low. It is in my view an acceptable risk, one that on the evidence before me can be sensibly ignored when considering the benefits that are likely to flow from Nellie being restored to the care of her parents. They are in a position to provide long-term, consistent nurturing care for Nellie in a culturally appropriate environment and in the company of her siblings. I therefore propose to order that Nellie be restored to her parents.

In coming to that conclusion I have been greatly assisted by the evidence of the expert witnesses all of whom I found to be highly competent and caring professionals. Their evidence has been compelling. Having said that, I recognise that the opinions of the expert witnesses do not relieve me from the responsibility of reaching my own independent conclusions based upon my own assessment of all the evidence. Indeed, the experts assessments and opinions generally were made on the premise that either of both of Mr and Mrs L were only possible perpetrators rather than actual perpetrators.

In the course of evidence, all of the expert witnesses recognised that if Nellie is to be returned to her parents it should not be done until a very clear care plan has been prepared. The plan needs to stipulate each party’s responsibilities and who is to provide what services. I note that Dr Kozlowska was of the opinion that this could be done in relatively short period of time once all interested parties could meet.

Similarly, the evidence indicated that once those arrangements have been made restoration should take place as soon as possible, with a transition period of two weeks or thereabouts. It seems to me that the original care plan prepared by Ms Su is a good starting point although the suggestion of Ms Foley that it should extend until Nellie attains school age is a good one. Restoration would be dependant upon Mr and Mrs L agreeing to attend the Transcultural Mental Health Service for counselling.

I propose to adjourn the matter for the preparation of a restoration plan pursuant to section 83 (b) of the Act.