SS v Department of Human Services (NSW)

[2010] NSWDC 279

CITATION:	SS v Department of Human Services (NSW) [2010] NSWDC 279 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	6, 7, 8, 9, 10, 13, 14 September, and 15 November 2010
JUDGMENT DATE:	3 December 2010
JURISDICTION:	Child Care Appeal
JUDGMENT OF:	Johnstone DCJ
DECISION:	Appeal dismissed and the orders of the Children’s Court confirmed except for variations required to the contact orders and notations
CATCHWORDS:	CHILDREN - Care Appeal - plaintiffs seeking restoration of two children removed from their care - whether children in need of care and protection - whether the youngest child sustained severe brain damage as a result of non-accidental shaking by one or other of the parents
LEGISLATION CITED:	Children and Young Persons (Care and Protection Act) 1998
CASES CITED:	Briginshaw v Briginshaw [1938] HCA 34 Director General of Department of Community Services; Re “Sophie” [2008] NSWCA 250 M v M [1988] HCA 88 S v Department of Community Services [2008] NSWDC (Unreported 12.12.20-08)
PARTIES:	SS (First Plaintiff) CS (Second Plaintiff) Department of Human Services (First Defendant) GS (Second Defendant)
FILE NUMBER(S):	2009/334971
COUNSEL:	Ms M Castle (Plaintiffs) Mr M W Anderson (First Defendant) Ms Rutkowska (Second Defendant) Ms Leis (Independent Representative for the children)
SOLICITORS:	W G McNally Jones Staff (Plaintiffs) Crown Solicitor (First Defendant) Legal Aid (Second Defendant) Mark Whelan (Independent representative for the children)

REASONS FOR JUDGMENT
The proceedings and the issues

1. This appeal concerns two young boys, JS and J, who were removed from the care of SS and CS, the plaintiffs, in May 2008 after J, a baby, was diagnosed, at the age of 11 weeks, with severe brain damage, which the first defendant contends was caused by “shaken baby syndrome”. JS is now 6 years old. J is now aged 2 years and 8 months. The plaintiffs seek restoration of JS and baby J to their care.

2. Ms SS (now 28) is the mother of both JS and J. Her first son is BB who is now 12 years old. BB was born in 1998 when Ms SS was living with Mr AB. They separated in September 1998. Her second son, JS was born on 24 November 2004 when the mother was in a de facto relationship with Mr GS (now 34), the second defendant. Ms SS and Mr GS separated in March 2005, soon after JS was born. Ms SS then commenced living with Mr CS (now 30), the second plaintiff, in a continuing de facto relationship. JS was in shared care between his separated parents pursuant to Family Law orders, but resided with Ms SS and Mr CS for half of each week. Baby J was born on 9 March 2008.

3. On 25 May 2008, some 11 weeks after his birth, J was exhibiting unusual symptoms and movements. The parents took him to Mount Druitt hospital. Shortly after admission to that hospital he was transferred to the Royal Alexandra Hospital for Children at Westmead for specialist care. J presented with multiple problems involving seizures, a bulging fontanelle, acute bilateral subdural haemorrhaging and bilateral retinal haemorrhaging. He was diagnosed as having sustained brain damage. Because the cause of J’s problems was unexplained a notification was made to the Joint Investigation Response Team (JIRT) for investigation and assessment of the cause of his brain damage.

4. Following the investigation, Emergency Care and Protection Orders were sought under the Children and Young Persons (Care and Protection Act) 1998. Interim orders were obtained allocating parental responsibility of both boys to the Minister. The Department assumed JS and J into the care of the Minister. JS was placed with his father, Mr GS. J remained at Westmead until August 2008 when he was transferred to the Allowah Presbyterian Children’s Hospital, a rehabilitation hospital located at Dundas, where he has remained till now.

5. Care Plans in respect of both JS and J were subsequently filed in the Children’s Court and final orders sought. There were hearings in the Children’s Court, following which the Senior Children’s Magistrate found it more likely than not that J’s injuries were caused by non-accidental shaking. He determined in respect of J, who had been exclusively in the care of the plaintiffs in the days leading up to him sustaining brain damage, that restoration to their care involved an unacceptable risk inconsistent with his safety, welfare and well-being, and accordingly, there was no realistic possibility of restoration. As to JS, the Court also determined that there was no realistic possibility of restoration and that it was in his best interests to be in the sole care of his father, Mr GS.

6. The Children’s Court made final orders on 17 April 2009 pursuant to which:

· Sole parental responsibility for JS was allocated to his father, GS, to the exclusion of the

mother except for contact, until he turns 18.

· All aspects of parental responsibility for baby J were allocated to the Minister until he turns

18.

· Contact was ordered, stipulating the minimum contact to be had as between the boys and

the plaintiffs, and as between each other.

7. JS has remained in the sole care of his father, Mr GS, where he has made good progress. He has formed a strong bond with his father and his paternal grandmother. There were, however, some difficulties more recently when the father became engaged and proposed that his fiancée move in with him. As a result, that proposal was abandoned in the short term and the marriage deferred until such time as JS becomes more comfortable with the idea.

8. J has sustained brain damage resulting in quadriplegic spastic dystonic motor disorder, involving tonic seizures, cortical visual impairment and severe hearing loss. He also suffers from difficult to control epilepsy. He has remained in Allowah since August 2005 and although he has made some progress, he remains severely disabled. He is fully dependent on adult caregivers for all activities of daily living including feeding, bathing, personal hygiene, dressing, mobility and position changes. He is confined to a bed or a supportive apparatus on a stroller base in which he can sit or be supported in a symmetrical upright position and work or play at a tray. There was evidence that J is sensitive to and is stimulated by attention from his carers and to his environment, but his capacity for bonding and attachment is uncertain.

9. There has been ongoing contact between the boys and the plaintiffs in accordance with the orders of Children’s Court. The contact has been positive. In addition, JS and J have had sibling contact that has been generally beneficial, notwithstanding some instances of them not engaging well. Neither of the boys has contact with their older brother, BB.

10. The plaintiffs appeal to this court from the orders made by the Children’s Court by way of a new hearing and evidence in addition to and in substitution for the evidence on which the orders were made by that court: s 91 of the Children and Young Persons (Care and Protection Act) 1998. They contend that the first defendant did not establish, to the relevant evidentiary standard, that care orders should be made in respect of the two boys. They submit, therefore, that the appeal should be allowed and the orders of the Children’s Court set aside, with the result that the two boys should be returned to their care as before.

11. In the alternative, the plaintiffs submit that it is in the best interests of J that he be put into a family placement. They seek orders that he be placed in the care of Ms SS’s aunt, KH, with an increased contact regime with them, at the discretion of Mrs KH.

12. In relation to JS, the plaintiffs submit that the contact orders are grossly inadequate to meet his needs and foster his best interests, and that the monthly two hour visits currently being undertaken are inadequate to allow a deeper and growing bonding to take place. They seek contact orders that will allow them to have significant unsupervised time with JS on a weekly basis, sufficiently flexible to enable overnight contact.

13. The Director General of the Department contends that the appeal should be dismissed. It is submitted that JS and J were in need of care and protection when they were removed, and would remain in need but for that removal. Restoration of either JS or J to the plaintiffs is opposed. As to a family placement in respect of J, it is submitted that the Minister or her delegate can assess whether any family member who puts themself forward as suitable carers is suitable. So far as JS is concerned, the least intrusive intervention into his life at this point in time is for him to remain in the sole care of his father. The Director General also opposes any change in the contact orders.

14. The Independent Representative for the children submits that there is no realistic possibility of restoration of either JS or J to the plaintiffs. In relation to JS, the least intrusive order is such that he should remain primarily in the care of his father. As to J, the question of his permanent placement is problematic, and a full assessment is needed to assess how his needs can be met, in particular whether a placement with Mrs KH is appropriate. It was submitted that the appeal should be dismissed except as to the extent that the orders should be varied to accommodate:

(a) assessment of the viability of the possibility of J’s placement with his maternal great aunt;

(b) in the event that placement with J’s maternal great aunt is not viable, an addendum to J’s permanency plan that is directed to meeting all of J’s needs in the event that he remains institutionalised;

(c) additional supervised contact between J and his parents;

(d) additional sibling contact (both between J and JS, and also with BB if that can be facilitated); and

(e) further s 82 reports, until such time as J is in a permanent placement.

15. The father of JS, Mr GS, supports the submissions of The Director General and the Independent Representative for the children. He opposes any change to the orders of the Children’s Court in respect of JS.

16. The outcome of this appeal, and the orders that might be required to be made, all depend to a significant degree on the determination of the pivotal issue, that is, whether the brain damage sustained by J was the result of non-accidental shaking by one or other of the plaintiffs.

The background to the removal of the children

17. J is the son of the plaintiffs, Ms SS and Mr CS. Baby J was born on 9 March 2008 by caesarean section. The birth involved the use of forceps, probably causing a laceration or mark on his forehead, which healed in time.

18. Ms SS had to go back into hospital for a few days when some internal complications emerged following removal of her stitches on 13 March 2008.

19. From some time in April 2008, Ms SS began working as a prostitute at the Jingle Bells brothel. She worked at night and often only returned home in the early hours of the morning and slept through part of the day. This left Mr CS to care for J during the time she was out and while she was sleeping.

20. J was reported by both the parents and family friends to be a healthy, robust baby boy prior to the later events leading to his admission to Mt Druitt Hospital. There were no concerns about his development. There was evidence of him occasionally exhibiting unusual behaviour, including a quivering lip, shuddering or twitching, and making sudden jerking movements in his limbs.

21. In early May the parents travelled by car to Queensland for a few days with J to visit relatives.

22. On 12 May 2008, J received his usual childhood immunisation injections from his local general practitioner, Dr Kwok. There were no significant problems after the vaccinations. There was no haematoma at the site of the needle. There was some suggestion that his temperature had gone up and he was pale and lethargic for a short period, sleeping more than usual. He was also off his food for a day.

23. About a week after that a bout of diarrhoea ran through the family, and J was reported to be feeling unwell. According to Ms SS, JS had come home from pre-school with a ‘bug’, which everyone then caught. J had a runny nose and watery bowel motions and was ‘whingeing’ more than usual.

24. On Saturday 24 May 2008 Ms SS came home from work at about 6.30am. Mr CS was up feeding J. She noticed that J’s hair was damp so she unwrapped him and took his temperature. The reading was 39.4°C so she gave him some Baby Panadol, which reduced his temperature to 37.3°C after about an hour. After she thought he was all right, she went to bed. When she woke up at about 3.00pm J didn’t appear to be hot and she didn’t check his temperature again. She said she did notice, however, that he was more lethargic and thought he might still have the stomach bug or cold. Ms SS went to work that night leaving J in the care of Mr CS.

25. On the following morning, Sunday 25 May 2008, Ms SS arrived home from work at approximately 6.20am. According to her evidence, J was asleep in his cot in the bedroom she shared with Mr CS, who was also asleep, and she went straight to bed. According to Mr CS, Ms SS arrived home at about 6.30am and he was feeding J with formula. Ms SS nursed J briefly before going to bed.

26. Ms SS did not wake up till about 3.10pm. According to her, J did not sleep in his cot in her bedroom during the day. According to Mr CS he did, during which time he was doing chores and went outside for a period.

27. After Ms SS woke up, according to her evidence, J was lying on the lounge. She noticed he was pale, lying there drifting off to sleep. Mr CS told her J had not been eating a lot and was not as active as usual. She said she rang her mother who told her to keep his fluids up so he didn’t dehydrate. She boiled some water to give to J. Whilst doing that she noticed J make a sudden and quick movement of his head. She picked him up and gave him some water to drink. He started to move his head again while looking at her in a blank, staring way, as if he was looking straight through her. She clicked her fingers in front of his eyes but he didn’t blink. She became concerned and decided to take J to hospital to have him checked. They then drove to Mt Druitt Hospital where they took J to the Emergency Department at about 4.46pm.

28. According to the Hospital Notes J presented at triage with diarrhoea, fever, lethargy and a rash on his cheeks. He was in fact afebrile, had a pulse rate of 106/min and saturating at 100% in room air. Soon after admission, ‘jerky movements of both hands’ were observed together with ‘twitching of lower extremity’, which lasted 2 - 3 minutes, and he was transferred to a resuscitation bay. Clinical examination revealed a full fontanelle and a bruise on the left side of the head. A number of investigations were undertaken including blood tests.

29. Due to ongoing intermittent seizures and concerns a decision was made to transfer J to the Children’s Hospital at Westmead for further investigation and management. He was sedated and intubated and transported that evening to the Paediatric Intensive Care Unit at Westmead (PICU). The NETS transfer report records occasional jerking movements of his left arm progressing to generalised seizure activity. His fontanelle was bulging, his pupils were equal and reactive, and he was hypertonic and hyperreflexic.

30. Upon admission to the PICU at Westmead at about 11.30pm J was immediately transferred to medical imaging then returned to the PICU for stabilisation, where he continued to receive anticonvulsants and inotropic support to maintain blood pressure. He remained afebrile with a heart rate of 150-160min. A series of further investigations and tests were carried out.

31. The results of the initial examinations and investigations were summarised in the Assessment Report dated 1 July 2008. They included findings of extensive brain haemorrhaging involving bilateral subdural haematomas of different densities and intensities. There was also left sided intraventricular haemorrhaging present. J had suffered extensive bilateral cerebral hemispheric ischaemia (brain damage due to lack of oxygen) and oedema of the brain (swelling). Other neurological abnormalities included increased tone, abnormal posturing, hyperreflexia, seizures and epileptic discharges. Also detected was extensive bilateral retinal haemorrhaging involving all retinal layers, extending from posterior pole to periphery. There was no evidence of trauma, either by way of skin damage, or by way of bone fractures. His growth parameters were symmetrical and appropriate for his age.

32. The Assessment Report of 1 July 2008 was written by Dr Anna Sturcheska, a specialist paediatrician in the Child Protection Unit, and Mr Mark Palmer the Senior Clinician in the Child Protection Unit. The Assessment Report explained the nature and cause of subdural haemorrhage and retinal haemorrhage.

33. Subdural haemorrhage is bleeding that accumulates between the outer protective covering of the brain and the arachnoid membrane, which occurs after bridging veins stretch and rupture across the subdural space. There are various possible explanations, including cranial birth trauma and predisposing congenital conditions, all of which were excluded in J’s case. Another possible cause is shearing forces through shaking, causing the child’s head to whiplash ‘to and fro’ such that the brain swirls first in one direction, and then the reverse, setting up rotation of the brain within the skull.

34. Retinal haemorrhage can also be the result of various causes such as accidental head injuries caused by trauma, such as a fall or motor vehicle accident. They can also occur in newborn babies following prolonged labour, but these are usually mild and occur in one layer only of the retina, and resolve within 3 - 6 weeks. Retinal haemorrhages that extend from posterior pole to the periphery and involve multiple retinal layers, as in J’s case, are highly suggestive of abusive head trauma.

35. The constellation of intracranial bleeding with severe and extensive ischemic brain changes, plus extensive retinal haemorrhages, without obvious evidence of bleeding tendencies or other underlying medical condition in the absence of a history of an accidental cause all indicated that an inflicted head injury was the most likely cause of J’s clinical presentation.

36. The Assessment Report concluded:

“No medical condition has been identified through the investigations that could explain J’s presentation. This included coagulation disorders, infections, known neurological genetics conditions, congenital brain abnormalities or metabolic disorders.

J’s presentation is of acute and severe traumatic head injury with consequent hypoxic - ischemic (lack of oxygen) brain damage. This is on a background of probable older subdural haematomas.

J’s primary injuries that were identified on CT scan, MRI and examination are: subdural haematomas, intraventricular haemorrhage and retinal haemorrhages. J’s secondary injuries (which occur when cells that were uninjured by the primary trauma die from later changes) are the result of hypoxia due to apnoea, intracranial hypertension (due to brain swelling), or a combination of the above with associated seizures.”

37. The Assessment Report went on to express concern:

“It is highly concerning that J has significant unexplained injuries, which are indicative of inflicted head injury on more than one occasion (most probably due to shaking).”

38. The report included the following recommendations:

1. “ The JIRT (DoCS and Police) investigation should continue with further action through the

Criminal Court and Children’s Court as indicated by the outcome of these investigations.”

2. “ J to be referred for appropriate medical and therapeutic follow-up based on

assessments by Dr Isaacs and the Brain Injury Rehabilitation Team…”

3. “ J should not be discharged from this Hospital into the care of either or both of his

parents without a clear understanding of how his injuries have been caused and by

whom. The person(s) causing his injuries should not be considered as potential

carer(s) without significant intervention to address the circumstances which led to

him being injured.”

The Director General’s case

39. The Director General’s case is that the medical evidence tendered leads to the conclusion on the balance of probabilities that J suffered a non-accidental abusive head injury that was nearly fatal, and that this caused his severe developmental and functional disabilities. The perpetrator(s) who caused those injuries are not identified, but on the balance of probabilities it was J’s mother and/or father.

40. Reliance was placed principally on the hospital records and the evidence of Dr Stachurska, Dr Hing and Professor Isaacs. It was submitted that the exact mechanism of injury other than the fact that it was non-accidental and abusive is not necessarily required to be found by the Court, but that most probably the injuries were consistent with J having been shaken on at least two occasions prior to his presentation to hospital, with the most recent injuries caused within the previous 24 hours, leading to acute bilateral subdural haemorrhage and extensive multilayered retinal haemorrhages in both eyes.

41. It was conceded that the opinions surrounding the existence of different densities of blood is not without some controversy as to precise ageing of the bleeding. The Director General, however, relied on the opinions from the treating doctors at Westmead Children's Hospital that the unexplained injuries suffered by J “are indicative of inflicted head injury on more than one occasion (most probably due to shaking)”: see the Assessment Report at 13/20, 14/20, 18/20 and 19/20. It was considered that based on his clinical picture, J suffered injuries within a 24-hour period preceding his presentation for medical attention. This caused the acute bleeding identified in the CT and MRI scans. The presence of mixed blood within the subdural space seen on both CT scan and MRI indicated that there had been an acute bleeding episode (within the previous seven days) and probably a previous bleed within the brain of at least 14 days.

42. In other words, the consensus opinion was that there was an inflicted head injury on more than one occasion within the previous 2 to 3 weeks prior to J’s presentation at hospital. The most likely mechanism of the injury was by shaking.

43. Dr Anna Stachurska is a paediatrician by speciality and since 2006 has been the Staff Specialist of the Child Protection Unit at the Children's Hospital at Westmead. From 2000 to 2006 she worked at Westmead as a doctor in various roles including the Emergency Department, General Paediatrics, the Child Protection Unit, Psychological Medicine, the Child Development Unit, Oncology and Respiratory Medicine. She was also seconded to the Neonatal Intensive Care Unit at Westmead Hospital, General Paediatrics at the Nepean Hospital and Community Paediatrics at the Mt Druitt Hospital. She has various degrees and diplomas and has written and presented various papers in the area of paediatrics. As the paediatrician in the Child Protection Unit, her role was to seek opinions from experts in various fields and together with the diagnostic and radiological evidence, and her own experience and expertise, formulate a diagnosis for children referred to the unit.

44. The opinion of Dr Stachurska is that J’s injury was most likely caused by being shaken, that is by non-accidental head injury or shaken baby syndrome. She disagreed with the evidence of the two doctors called by the plaintiffs, Dr Gabaeff and Dr Gardner, that an available alternative cause was meningitis. She excluded meningitis as a potential cause on various bases, including Dr Gabaeff’s misinterpretation of J’s temperature readings, the cessation of antibiotics after 28 May 2008, and the unanimous opinion of senior paediatric neurologists and radiologists at the Westmead Children’s Hospital that the neuroimaging findings were inconsistent with meningitis.

45. Dr Stephen Hing is a medical practitioner specialising in ophthalmology. He has worked in the area of paediatric ophthalmology for 21 years and is currently the head of the Ophthalmology Department at Westmead Hospital. He also works in private practice. He has particular expertise and experience in relation to children. He is a fellow of a number of colleges of ophthalmologists including the Royal College and the American Association of Pediatric Ophthalmology and Strabismus. He has written or participated in numerous publications in his area of specialty over a long period of time.

46. Dr Hing’s view is that it is extremely likely that J’s brain injury was caused by non-accidental means, that is, by abusive head trauma. He also disagreed with Dr Gabaeff and Dr Gardner that an available alternative cause was meningitis. Although retinal haemorrhages can occur from meningitis, they do not look like the retinal haemorrhages suffered by J. His haemorrhages were severe: they were multi-layered and extensive, extending from side to side and into the nerve fibre, or inner layer of the retina. Dr Hing also excluded other possible causes such as major head trauma or a clotting disorder. He referred to literature based on independent research that supports a conclusion that J’s retinal haemorrhages indicate a 96% probability of abusive head trauma. He noted that Dr Gardner questioned whether shaking can cause retinal haemorrhages. He said in response:

“Although he cites one study (Emerson) which questions our knowledge of the pathogenesis of such haemorrhages, there is no question that even if we do not know the exact mechanism, that the commonest cause of such haemorrhages is Shaken Baby Syndrome and that in the absence of a major crush injury to the head, and/or blood clotting disorders, that is the diagnosis.”

47. Professor David Isaacs is a senior staff specialist in General Paediatrics and Paediatric Infectious Diseases at Westmead Children's Hospital. He is also a Clinical Professor of Paediatric Infectious Diseases at the University of Sydney. He has worked in general paediatrics and paediatric infectious diseases for 22 years. His impressive 30 page curriculum vitae demonstrates a history of extensive experience and expertise, and of dedication to his specialty, including over 250 publications. He was a most impressive witness.

48. Professor Isaacs’ view was that it is almost certain J was severely shaken, causing bleeding in the brain and eyes. He also disputed meningitis as a possible or plausible cause. In his opinion, if J had meningitis, he would have died from it, in that it would have been almost impossible for him to have been cured after receiving only 48 hours of antibiotic treatment.

49. The CT scan of 26 May 2008 showed bleeding around J’s brain. Most of the subdural haemorrhage evident was recent, but there were areas on both sides of the brain that the expert radiologist considered were suggestive that some of the blood had been present for much longer. Having regard to the different ages of bleeds within J’s brain, Professor Isaacs concluded that the shaking had occurred on several occasions. The presence of old blood as well as new blood between the hemispheres of the brain also excluded meningitis as a plausible cause.

50. In support of the mechanism of injury the Director General’s submissions referred to the literature contained within Exhibit 2 particularly the papers titled “Abusive Head Trauma: Judicial Admissions Highlight Violent and Repetitive Shaking” (Adamsbaum et al) in Pediatrics Vol 126, No 3 September 2010; “Confessed abuse versus witnessed accidents in infants: comparison of clinical, radiological, and ophthalmological data in corroborated cases”, (Vinchon et al), in Childs Nerv Syst (2010) 26:637-645; “Perpetrator accounts in infant abusive head trauma brought about by a shaking event" (Biron and Shelton), in Child Abuse & Neglect 29 (2005) 1347-1358.

51. The submissions noted that perpetrator accounts are not scientific evidence and have limitations which are recognised in those studies, but that the perpetrator statements indicate that “[s]haking is effective because it stops the infant’s crying and [the child] ‘goes to sleep after being shaken’”: Adamsbaum et al, at p 553.

52. The Director General relies in particular on the predictive diagnostic value of the presence of the combination of subdural haematoma and severe retinal haemorrhages in the absence of signs of impact (by accidental means): Vinchon et al, p 643 and 644. The evidence of Dr Hing that there is a 96% chance that the retinal haemorrhages in those circumstances ‘are due to abuse’ rather than accidental trauma was a central theme of the submissions.

53. The Director General submitted that the medical evidence, in particular that of

Dr Stachurska, Dr Hing and Professor Isaacs, is carefully reasoned, is objective and is reliable. It is to be preferred to that of Dr Gabaeff and Dr Gardner who gave their evidence on behalf of the plaintiffs as advocates in the cause of debunking the “so-called shaken baby syndrome”, to which they are dedicated in their opposition, contrary to mainstream paediatric medical opinion (T 278.49).

The plaintiffs’ submissions

54. I will shortly turn to consider aspects of the submissions made on behalf of the plaintiffs.

55. Before analysing the plaintiffs’ case in this appeal, it is to be noted that they have resiled from two matters central to the conduct of the proceedings in the Children’s Court. Firstly, both plaintiffs made concessions, with the benefit of independent legal advice, that the children were in need of care and protection. There was a consent finding to that effect, which the plaintiffs adhered to in this appeal. The Director General contended that the need for care and protection has therefore been established. Nevertheless, I have allowed that issue to be re-agitated, over objection, in this appeal. Secondly, in the Children’s Court, the plaintiffs contended that J suffered brain damage not because of any fault on their part, but due to bleeding in or around his brain that had probably been caused by a blood coagulation deficiency related to vitamin K. They accept that that theory was flawed.

56. In this appeal, the plaintiffs’ ultimate submission is that upon analysis, the medical conclusion that J was a ‘shaken baby’ is based on less than unassailable foundations. The existence of alternative hypotheses, together with the “circular reasoning” of the ‘science’ of shaken baby syndrome, and an inability to cross examine foundational opinions, leads to the position where the court cannot be comfortably satisfied that the Director General proved the case against the plaintiffs. The alternative hypotheses are those advanced by the two doctors from the United States called on behalf of the plaintiffs, Dr Gabaeff and Dr Gardner.

57. Counsel for the plaintiffs attempts to make much of the fact that the Director General relied on written reports, and only made three of the experts available for cross examination: Dr Stachurska, Dr Hing and Professor Isaacs. The reality is, however, that the plaintiffs did not request that any other doctors attend for cross examination. I agree with the Director General that it was not open to the plaintiffs to challenge the evidence on that basis. Nor, in my view, did the fact in some way diminish the weight to be placed on the medical evidence led by the Director General. Care proceedings, including appeals from the Children’s Court, are not adversarial, nor do the rules of evidence apply, and the decisions concerning the outcome of the appeal are to be made having regard to the paramount concern for the safety, welfare and well-being of the children.

58. The plaintiffs’ written submissions start with a detailed discussion of the applicable legislation and what the Director General is required to prove, together with an analysis of the requisite standard of proof. One of the propositions advanced in this context was that “generally speaking, parents do not violently shake their babies, repeatedly, almost to death.” Sadly, however, children are abused by those caring for them. According to Dr Stachurska:

“Head injury children, we see almost every week. One or two children, which are basically children who have either skull fracture or concussion or have fallen from a changing table and have a bulging swelling. Children who have underlying intracranial bleeding this is less, much less common…probably we'll have seven - perhaps seven a year with similar pictures as J presented.” (T 166)

59. The issue for determination was stated in this way:

“The issue for determination in this Court is whether the Director General has established to the relevant evidentiary standard that the medical condition of J upon presentation at Mt Druitt Hospital and subsequently at Westmead Children’s Hospital was brought about by the physical action of either of his parents.” [42]

And:

“The Court must determine whether the Director General has proven, on the balance of probabilities, that J was violently shaken, on at least three occasions.”

60. It was submitted for the plaintiffs that after evaluating the evidence the Court will not be satisfied that the abuse took place: [91]. It was further submitted that when taking into account all the evidence, considering the weight that ought to be given to it, and evaluating that against the background of the grave nature of the conduct alleged and the inherent unlikelihood of it occurring, the Court would not be satisfied to the requisite standard that the conduct took place and will find, as a result, that the Director general has not discharged the burden of proof: [102].

61. The submissions addressed the evidence of Dr Stachurska, Dr Hing and Professor Isaacs in a critical way. In effect, the court was asked to reject their evidence and prefer the evidence of Dr Gabaeff and Dr Gardner.

62. The criticism of the evidence of Dr Stachurska was that it contained a flaw fatal to the Director General’s case and that she expressed opinions outside her expertise, the foundation of her opinions being the opinions of others who had the expertise but were not called to be cross-examined on those opinions. It was suggested that her role was as an investigator and assessment report writer. It was next submitted that she lacked independence from the doctors whose opinions she relied on, whose opinions had not been tested. Thus, to the extent that she expressed an opinion, it was not on the basis of her own expertise, but on that of others. It was also submitted that Dr Stachurska lacked credibility as a witness in that she was frequently unwilling to answer questions and unwilling to make concessions in respect of any proposition that might assist the plaintiffs case, and because she was self-admittedly “passionate” about child abuse issues.

63. The fatal flaw asserted was said to be a logical conundrum posed by the MRI report of Dr Ahmed dated 26 May 2008, in which he observed subdural blood “of probable subacute age (3-7 days old)”. Dr Stachurska’s major conclusion was that J’s injuries were suffered within a 24-hour period preceding his presentation. But the MRI establishes there were subdural haematomas of different ages. It was submitted that both the report and the opinion of Dr Stachurska cannot be correct: either the report is wrong, or the event that caused the bleeding did not occur in the previous 24 hours. Dr Stachurska acknowledged the literature, which without exception suggests that the symptoms (not the ultimate brain damage, which runs a progressive course) occur shortly after the assault. It was suggested that Dr Stachurska dealt with this apparent contradiction by abandoning Dr Ahmed’s opinion and skating over the contradiction. But Dr Ahmed was not called by the Director General to give evidence about his findings.

64. There was also an attack on the evidence of Professor Isaacs. His evidence was described as “arrogant” and “creative”. It was submitted that he was not independent and that he was cast in the role of justifying actions and opinions taken in the Westmead Hospital during J’s treatment. He attempted to buttress and support conclusions and opinions of others in his hospital and allowed his enthusiasm for the cause to exaggerate and rely on non-existent facts.

65. One of the criticisms of Professor Isaacs’ evidence was his reliance on evidence from X-rays of J’s legs suggesting bony abnormalities consistent with having been held by the legs when shaken. He was, however, forced to concede that the basis for his conclusion was wrong. It was also submitted that he was creative in advancing the proposition that there were three, rather than two, differing ages of blood demonstrated in J’s brain by the MRI leading to his positive assertion that there were three episodes of the child having been shaken. But the foundational basis for the assertion was “fanciful and imaginary”, lacking any factual basis of truth. These matters were said to be such that the weight to be afforded to his opinions is severely diminished and tarnished.

66. It was next submitted that Professor Isaacs’ rejection of Dr Gabaeff’s opinion that J had meningitis was similarly tainted. His opinion was based on the fact that when the antibiotics being administered to J were ceased, Js did not get worse, or die. But this opinion is, it was said, contrary to the objective medical evidence, and contrary to the opinion of Dr Gabaeff that the antibiotics administered were sufficient to treat bacterial meningitis.

67. Finally, it was submitted that Professor Isaacs’ opinion that the bleeding demonstrated on the MRI and CT scans was different to the bleeding that would appear with meningitis was flawed. That is because he failed to acknowledge the view expressed by Dr Gabaeff to the effect that blood moves around the brain freely over time once it has leaked out of the vascular system. It does so by infusing through the subdural space. Further, the opinion should not be given weight because it is based on the opinion of a senior radiologist who was not called to be cross-examined.

68. Dr Hing did not escape criticism. His opinion was described as being based on circular reasoning, which has been criticised in the literature, and now recognised as fallacious. It was submitted that his evidence must be considered against a background of the very small number of cases of retinal haemorrhaging in meningitis and shaken baby that he has seen. The numerical sample is insufficient to discern a “pattern”, and therefore of limited probative value.

69. The plaintiffs rely on the opinions of Dr Steven Gabaeff and Dr Horace Gardner.

70. Dr Gabaeff is a physician who currently practises in emergency medicine and clinical forensic medicine in the United States. About 50% of his professional work time is spent providing medico-legal opinions. He has spent the last 21 years actively researching and working as a forensic consultant. He has worked on some 1500 legal cases in that time, including cases alleging shaken baby syndrome, maintaining an active and leading edge awareness of research concerning the syndrome.

71. Dr Gabaeff has extensive experience in forensic medicine, especially in the area of child maltreatment. He has worked as an expert consultant for the Medical Board of California and as a reviewer for the journal of the American Professional Society on the Abuse of Children. He has written papers and maintains an extensive library of research articles. He is a member of the Evidence Based Medical Society (EBMS), a group of physicians from around the world with a common interest in an evidence based approach to forensic matters concerning child abuse. He is devoted to effecting a change in some of the many misconceptions he believes exist and persist about shaken baby syndrome.

72. Dr Gabaeff provided two reports and gave oral evidence from his home in the United States via conference call facilities.

73. In the opinion of Dr Gabaeff the brain damage suffered by J was the result of meningitis. He said:

“In the matter of J I believe that a terrible mistake has been made and the child abuse doctors at Westmead Hospital misdiagnosed this child’s presentation.

In my opinion, after having reviewed all the material forwarded to me, J had meningitis when he arrived at Mt Druitt Hospital. It was an active disease process at that time, virulent and rapidly progressive, identifiable to medical providers but not lay parents, for several days. It is likely that he had a nascent infection going back at leat 2 weeks when he received 5 injected vaccinations.

It is quite likely that the vaccinations of 12 May 2008 introduced this skin contaminant (the coagulase negative Staphylococcus) into the subdermal space and started an infection that turned into meningitis infection.”

74. Dr Gabaeff believes that shaken baby syndrome has now been identified as a “bogus entity.” He disagrees with the studies in the medical literature that identify the diagnostic value of subdural haematomas and retinal haemorrhages and the absence of signs of impact as good indicators of choosing between the differential diagnosis of inflicted head injuries and accidental trauma. The alleged relationship between retinal haemorrhage and shaking is a false relationship. The biomechanical evidence is that shaking does not exist as a valid mechanism to cause subdural haematoma or retinal haemorrhage in the absence of neck injury. Shaking as a way to afford injury to the brain without neck injury in a previously healthy child is not a valid diagnosis. The absence of neck injury rules out abusive shaking as a cause of brain injury.

75. Dr Gardner is a retired ophthalmologist now aged 71. He is also from the United States. He has not actively seen patients for several years, and all of his current work is medico legal. He was the chief of ophthalmology at Fort Carson Military Hospital from 1980-1985. In his military practice about 50% of his work was with children, although he did not claim to be a paediatric ophthalmologist. He is not a qualified paediatrician He does not appear to have published extensively within his field. Dr Gardner is also a member of Evidence Based Medical Society (EBMS). In his view shaken baby syndrome is not a real syndrome but a theory, and the members of EBMS work diligently to ‘find out what is really going on in these cases.’

76. Dr Gardner provided two reports and travelled to Australia from the United States for the purpose of giving evidence in person on behalf of the plaintiffs.

77. In the opinion of Dr Gardner there were a number of possible alternative causes of the retinal haemorrhages suffered by J, including birth haemorrhages, infections, blood disorders and alterations in intrathoracic, intraabdominal, intracranial and intravascular pressure. The presence of subdural haematoma and retinal haemorrhaging was entirely consistent with J having had meningitis. The meningitis causes increased cranial pressure, which in turn causes the retinal haemorrhages.

78. Dr Gardner took issue with the evidence tendered by the Director General to the effect that the retinal haemorrhages evident in J’s eyes were inconsistent with meningitis. There is no pattern that is specific to abuse. He also subscribed to the biomechanical argument that regards shaking as providing insufficient acceleration and deceleration to cause brain damage.

79. Dr Gardner also detailed other possible theories for J’s injuries, one being the possibility that they occurred spontaneously, or from a minor event such as coughing or gentle shaking, another being that Jessie had a number of conditions, such as anaemia, platelet elevation, fast head growth and intracranial pressure, which taken together cumulatively may have been the cause.

The lay evidence

80. The plaintiffs submitted that the determination of whether the Director General has proven on the balance of probabilities that J was violently shaken is of particular difficulty in the present case because it is a largely circumstantial case, based on the highly contested science of the so-called “shaken baby syndrome”, based on much evidence that is untested and untestable, and is absent any other objective evidence of abuse or propensity for abuse by the parents:

“The nature of the conduct alleged to have occurred - that either SS or CS shook J so violently that he almost died – is of the gravest nature. It is not only morally reprehensible: it transgresses the fundamental obligation of parenthood to protect one’s child from harm; it is criminal: causing grievous bodily harm carries a custodial sentence. It is the sort of criminal conduct that results in severe condemnation from the community and a finding that the conduct occurred will brand SS and CS for the rest of their lives as child abusers, even though there is no suggestion that they will ever be criminally charged or that the evidence rises anywhere near the level of even a prima facie case, let alone a conviction on the basis of proof beyond reasonable doubt.”

81. It was submitted that against the grave nature of the conduct alleged to have occurred is the inherent unlikelihood of it having occurred, both in general terms and specifically with respect to these plaintiffs. Generally speaking, parents do not violently shake their babies, repeatedly, almost to death. This proposition needs no proof: it is self-evident. The Court can take judicial notice of it.

82. It was further submitted that the conduct is also unlikely to have happened when judged against the evidence that is before the Court about the plaintiffs. The pregnancy was planned and followed on from two miscarriages: J was a much wanted baby. They established a happy and stable home life for JS and there is no evidence or suggestion of him having suffered any abuse or maltreatment in their care. Neither plaintiff has a criminal history or any history of being violent in their previous relationships. There are no reports or any suggestions of domestic violence or even disharmony between them. Neither has substance abuse problems. Ms SS gave up drinking alcohol at the age of 21 and Mr CS hardly drinks. Both have loving supportive families. Neither has ever had any mental health problems. Both were observed by family and friends to have been a loving couple and loving and caring towards JS and J. Both deny, and have always denied, harming J in any way. Despite an extensive investigation by JIRT no criminal charges were ever laid.

83. It was submitted for the plaintiffs that they can be accepted as witnesses of truth. They gave their evidence frankly and without collusion.

84. The Director General, however, was critical of the evidence from the parents. It was submitted that Ms SS, in particular, was less than frank about her work as a prostitute and that debases the reliability of her evidence generally. It also has implications for the proposals in respect of the future care of the children.

The applicable legal principles

85. I turn at this point to briefly consider the legal principles to be applied in making the decisions required in this appeal.

86. Before the court may make a care order in respect of the children, it must be satisfied that they are in need of care and protection. The Director General submits that they are, and relies upon the grounds set out in s 71(1)(c) of the Children and Young Persons (Care and Protection Act) 1998 (the Care Act), that JS and J have been or are likely to be physically abused or ill-treated. In the case of J, the allegation is that he was physically abused and remains likely to be physically abused, by reason of the brain damage he suffered from the non-accidental shaking. Similarly, JS remains likely to be physically abused, by reason of the abuse of J and the failure of the plaintiffs to acknowledge the true cause of J’s injuries. The Director General submitted that the likelihood of abuse or ill treatment is a real risk and an unacceptable risk if the children were to be placed back into the care of the plaintiffs.

87. It is accepted by the parties that the standard of proof is on the balance of probabilities: s 93(4) of the Care Act.

88. It is also accepted that the High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, is achieved: Director General of Department of Community Services; Re “Sophie” [2008] NSWCA 250.

89. In the context of the present appeal, the Director General will not fail to satisfy the burden of proof on the balance of probabilities simply because hypotheses cannot be excluded which, although consistent with innocence, are highly improbable. The Director General cited the following passage from Sackville AJA in Director General of Department of Community Services; Re “Sophie” [2008] NSWCA 250 at [67] - [68]:

“The reasoning process I have outlined involves an error of law. The primary Judge, although stating the principles governing the burden of proof correctly did not apply them correctly. It was appropriate to take into account the gravity of the allegation of sexual misconduct made against the father, as required by s 140(2) of the Evidence Act. It was not appropriate to find that the Director-General had failed to satisfy the burden of proof on the balance of probabilities simply because his Honour could not exclude a hypothesis that, although consistent with innocence, was highly improbable. To approach the fact-finding task in that way was to apply a standard of proof higher than the balance of probabilities, even taking into account the gravity of the allegation made against the father”: [67]. (Emphasis added)

“As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly. In the end, however, as Ipp JA observed in Dolman v Palmer at [47], the enquiry is simply whether the allegation has been proved on the balance of probabilities”: [68].

90. The objects of the Care Act include the object:

“(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them.”

91. Other relevant principles in the Care Act include the following:

· The paramount concern is the safety, welfare and well-being of the children.

· Any action to be taken to protect the children from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development.

· That the children retain relationships with people of significance.

· That any out-of-home care arrangements are made in a timely manner, to ensure the provision of a safe, nurturing, stable, and secure environment, recognising the children’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

92. S 83(7)(b) of the Care Act requires an express finding by the court, prior to approving a permanency plan involving restoration, that there is a realistic possibility of restoration having regard to:

(i) the circumstances of the child, and

(ii) the evidence, if any, that the child’s parents are likely to be able to address

the issues that have led to the removal of the child from their care.

93. There is no guidance from the superior courts of which I am aware as to the meaning of the phrase “realistic possibility of restoration”. I gave the phrase some consideration in an unreported decision in S v Department of Community Services on 12 December 2008. I there noted first, that a possibility is something less than a probability; that is, something that it is likely to happen; and secondly, a possibility is something that may or may not happen. That said, it must be something that is not impossible. The possibility of restoration must be ‘realistic’. That word is less easy to define, but clearly it was inserted in the legislation to require that the possibility of restoration is real or practical. It must not be fanciful, sentimental or idealistic, or based upon ‘unlikely hopes for the future’. Amongst a myriad of synonyms in the various dictionaries I consulted, the most apt in the context of the section were the words ‘sensible’ and ‘commonsensical’. Furthermore, the determination must be undertaken in the context of the totality of the Care Act, in particular the objects of the Act, together with other principles to be applied in its administration. The objects import notions of safety, welfare, well-being, health, needs, a safe and nurturing environment, and the like.

94. I adopted the following passage from a submission by the Senior Children’s Magistrate to a Special Commission of Enquiry into child protection services in NSW:

“The Children’s Court does not confuse realistic possibility of restoration with the mere hope that a parent’s situation may improve. The body of decisions established by the court over the years requires that usually a realistic possibility be evidenced at the time of hearing by a coherent program already commenced and with some significant ‘runs on the board’. The court needs to be able to see that a parent has already commenced a process of improving his or her parenting, that there has already been significant success and that continuing success can confidently be predicted.

95. As I have said, the pivotal issue for determination is whether the brain damage sustained by J was the result of non-accidental shaking by one or other of the plaintiffs. The Director General submits, and I agree, that it is not necessary in the context of care proceedings, where the paramount concern is the safety, welfare and well-being of the children, to identify the actual perpetrator, or the mechanism of the injury: M V M [1988] HCA 88. It is sufficient if, as in this case, it could only have been one or other of them, or both.

96. I turn then to consider the issues against the background of these principles.

Was the brain damage sustained by J the result of non-accidental shaking?

97. Determination of the issue of whether the brain damage sustained by J was the result of non-accidental shaking necessarily involves a consideration of the competing bodies of medical opinion, and which is to be preferred.

98. For the reasons that follow, I prefer that body of medical evidence presented on behalf of the Director General to that of Dr Gabaeff and Dr Gardner.

99. An overall assessment of the medical evidence revealed the Director General’s evidence to be the more objective. Dr Gabaeff and Dr Gardner approached the task from a prejudiced and pre-judged perspective. Their evidence, which was wholly concerned to debunk the notion of shaken bay syndrome, is to be approached with considerable caution. The medical evidence led by the Director General, on the other hand, involved a logical evaluation of all available material, was concerned to consider other possibilities, and was carefully and logically reasoned. That evidence is consistent with mainstream paediatric medical opinion. By their own admission, Dr Gabaeff and Dr Gardner are outside that conventional paradigm.

100. An individual assessment of the respective expert witnesses also revealed that it was the Westmead doctors who were more reliable and objective.

101. Dr Stachurska was neither partisan nor lacking in independence. Rather she carefully analysed the available evidence, considered alternative explanations, and excluded alternative diagnoses and reached her opinion by way of an analytical reasoning process. Her reliance on opinions of other experts in their respective fields is normal and appropriate, and does not diminish the force of her opinion. I am satisfied that ultimately she made her own independent assessment, based on the totality of the material before her, in forming a reasoned paediatric opinion. I did not regard her as partisan, or evasive. The fact that she is passionate about child abuse does not mean she lacked objectivity. The so-called fatal flaw in her evidence was explained to my satisfaction, in particular by Professor Isaacs.

102. Dr Hing was an impressive witness. He was calm, reasoned and objective. His experience and technical knowledge of ophthalmology was clearly superior to that of Dr Gardner, and his qualifications far more impressive. His evidence was the more persuasive and I preferred it to that of Dr Gardner. The criticism of his evidence was superficial and a desperate resort to minimise the effect of his compelling evidence.

103. Professor Isaacs was unquestionably the best witness called. His experience and expertise is unassailable. I found the personal attack on him to be most unfortunate. Perhaps it was his very stature and calm authority in the witness box that generated the perceived need for such an approach to his evidence to be taken in the plaintiffs’ written submissions. For the record, I reject entirely the criticism levelled at Professor Isaacs. For my part, I found his evidence was of far superior quality to that of Dr Gabaeff. Professor Isaacs was reasoned, moderate and precise. Dr Gabaeff was garrulous and long-winded. Professor Isaacs made appropriate concessions. Dr Gabaeff was dogmatic and resorted to long non-responsive answers to propositions that did not suit his position.

104. I have no hesitation in accepting the evidence of Professor Isaacs. He is an eminent and impressive practitioner with undoubted expertise in is area of specialty. In particular I accept his opinion that J did not suffer meningitis. As Ms Leis put it, Professor Isaacs was prepared to back his judgment by withdrawing the antibiotics – a potential life-threatening decision if wrongly made.

105. The plaintiffs’ experts on the other hand were unashamedly partisan, and the totality of their evidence must be viewed with suspicion.

106. Their evidence was found wanting in a number of important respects. Dr Gardner’s position, upon analysis, is to the effect that there were other possible explanations for J’s presentation. But, because Dr Gardner does not accept shaken baby syndrome as a valid diagnosis, the explanation must be otherwise. To my mind that was circular reasoning. Dr Gabaeff’s position was entirely premised on the diagnosis of meningitis. Flaws in his reasoning process were exposed in cross-examination, including for example his reliance on an incorrectly assumed fever, and a theory as to the possible mechanism of infection being the immunisation injections, which was discredited. I preferred the evidence of the Westmead experts and I find that J’s brain damage was not caused by meningitis.

107. I take into account the lay evidence, including the denials of any wrongdoing on the part of the parents, and the subjective factors relied upon that tend to militate against a finding of wrongdoing on their part. It is perhaps stating the obvious to observe that each parent can only be accountable for their own actions, and the sad fact may be that only one of them was involved, and the other is entirely innocent.

108. But in this case, the medical evidence presented by the Director General is overwhelmingly in support of the conclusion that J suffered abusive head trauma prior to his admission to hospital. There may have been earlier, less serious episodes of shaking prior to 25 May 2008, but I am comfortably satisfied, on the balance of probabilities, that the proximate cause of the brain damage observed following his hospitalisation on that day was non-accidental shaking in the previous 24 hours. The only persons who, on the balance of probabilities, were in the available pool of perpetrators, were the parents.

109. For these reasons I find that the brain damage sustained by J was the result of non-accidental shaking by one or both of his parents.

Are the children in need of care and protection?

110. The pivotal issue of abuse having been determined in favour of the Director General, the next issue to be determined is whether care orders should be made in respect of J and JS. The court may make a care order if satisfied that they are in need of care and protection for the reason that have been or are likely to be physically abused or ill-treated.

111. The Director General submitted that the fact of abuse having been established, the case for intervention by the court is made out. Unless there is an acceptance and acknowledgement by the carers, proper safeguarding of the children is impossible.

112. For my part I would be prepared to accept that proposition as self-evident. But in this case there is in fact strong evidence to support the notion that the refusal, or failure, to acknowledge the abuse, leads to a comfortable satisfaction that there remains a continuing likelihood of physical abuse or ill-treatment, in respect of both boys. That evidence, in my view, accords with common sense.

113. For these reasons I am comfortably satisfied, by reason of the abuse of J and the failure of the plaintiffs to acknowledge the true cause of J’s injuries, that both JS and J are likely to be physically abused or ill-treated.

114. Having regard to the terms of s 71(1)(c) of the Care Act, it is sufficient to have found that J was abused to ground a care order. But in this case I can go further and find also that he remains likely to be physically abused or ill-treated.

115. Similarly, I find that JS remains likely to be physically abused or ill-treated.

116. I find, therefore, that J and JS are in need of care and protection and that that care orders should be made in respect of each of them.

Is there a realistic possibility of restoration?

117. I turn therefore to consider whether there is a realistic possibility of restoration of either J or JS to the plaintiffs’ care. Having regard to their circumstances and the present unlikelihood of the parents being able to address the issues that have led to the removal of the children from their care, there is not at this time a realistic possibility of restoration.

118. In respect of JS, the possibility is and will remain completely unrealistic. And to restore JS to their care now would be clearly inconsistent with the principle of least intrusive intervention.

119. In respect of J, I do not rule out that there may come a time when he could be restored to the care of his parents. Everybody agrees that J will be better off in a placement, out of Allowah. The evidence is that it will be extremely difficult to find a suitable placement for him. His parents want to care for him. It is not inconceivable that in the fullness of time the parents may gain sufficient insight into the issue of J’s abuse and the extent of his disabilities to be assessed as suitable carers. That, however, is a matter for the Director General in the fullness of time, as circumstances unfold, particularly if a suitable placement external to an institution cannot be found.

120. For the purposes of the present appeal, however, I find there is no present realistic possibility of restoration of J to the parents.

121. The appeal will, therefore, be dismissed insofar as it seeks restoration of J and JS to the plaintiffs. Parental responsibility is, therefore, to remain allocated in accordance with the orders of the Children’s Court.

The alternative orders sought

122. In the event that the court found against them on restoration, the plaintiffs sought alternative orders. The first set of alternative orders sought relates to the prospective placement of J with Ms KH. The second set of alternative orders relates to contact.

123. In respect of the placement of J, subsequent to the hearing and the evidence of Ms KH, she was assessed in respect of her suitability as a long-term carer of J. The report of the assessment was tendered as Exhibit 9. The Assessor did not recommend Ms KH be approved to care for J. The report states:

“The limited contact that the carer has had with the subject child since birth and the uncertainty of her ability to protect J from further harm raises concerns about her ability and capacity to care J.”

124. That assessment accords with my view of Ms KH. Unlike the assessor, however, I would not rule out the potential for Ms KH to overcome these obstacles and become suitable at some stage in the future if another suitable permanent carer cannot be found.

125. For the purposes of this appeal, however, I find that Ms KH is presently unsuitable, such that to place J in her care would be inconsistent with the paramount concern for the safety, welfare and well-being of the children.

126. Turning to the question of orders in respect of contact, there a number of considerations to be addressed. The plaintiffs seek additional contact to that allowed for by the Children’s Court. As I understand it, the Director General does not oppose the concept in principle, subject to the question of supervision and the administrative arrangements that might be required being feasible, particularly in relation to J, having regard to the involvement of another entity, namely Allowah. The independent legal representative for the children has put forward a set of proposed orders and notations. If these are acceptable to all the parties, I will make those orders and notations. Or, the parties can negotiate a set of orders and notations acceptable to them. If not, they can come back before me for submissions and a decision imposed. In the meantime, for the guidance of the parties, I will set out my tentative views.

127. As to the idea of further reports under s 82 of the Care Act, I see that as unnecessary, at least so far as this court is concerned. Those matters, in my view, are best left to the Director General or, if required, the Children’s Court.

128. As to contact, I will deal firstly with J. It seems to me, uninstructed, that it would be a good thing for J to have increased contact with his parents, at least whilst he remains at Allowah or an equivalent institution.

129. In respect of JS, the evidence suggests that JS would enjoy additional contact, at least with his mother, and Mr GS sees that as a good thing.

130. As to sibling contact, I would not see it as necessary for any increased contact between J and JS to be mandated by the court.

131. I have no problem with the idea of contact with BB, but I don’t see that as requiring any order from this court.

Disposition of the appeal

132. I therefore dismiss the appeal and confirm the orders of the Children’s Court except as to the extent that the orders should be varied to accommodate:

(a) variations to the orders for contact,

(b) any additional notations.

02/05/2011 - Substitution - Paragraph(s) 22, 80