One year Care Order following serious non-accidental injury – 2013vol4#1


Key words: Non-accidental injury; expert medical evidence; attachment; foster care for children with special needs; threshold for Care Order; alternatives to long-term Care Orders; Resolutions Approach;

The District Court refused a full Care Order until they were 18 for two small children where the younger one had suffered catastrophic injuries while in the care of her parents. However, a Care Order for one year was made, on condition that the parents and the HSE undergo an intensive rehabilitative programme called the Resolutions Approach, designed to assist families where there was abuse that was denied by the parents.

The hearing of the HSE application for a full Care Order, which had seen a number of preliminary applications, lasted 17 days over six months in a rural town. Interim care orders were in place, whereby the two children were in the care of relatives with extensive supervised access every day for the parents.

In the course of the proceedings evidence was heard from 12 medical witnesses, including two psychiatrists and two psychologists, five social workers and the guardian ad litem appointed for the children.

For the first part of the trial the parents contested the HSE contention that the baby had suffered injuries at the hand of, or in the presence of, one or other of her parents. This led to lengthy medical evidence being given by a range of medical witnesses. One medical expert gave evidence on behalf of the parents, but he did not fundamentally disagree with the view that the most likely cause of the baby’s injuries was non-accidental injury.

As a result, following an adjournment of some weeks, the mother changed her position when the hearing resumed and told the court she accepted that the baby had suffered injury while in the care of the father, her husband. She told the court she was prepared to do whatever was necessary to protect her children, including excluding her husband from the family home.

However, the HSE insisted that the children could only be safe with a full Care Order until they were 18, living with non-relative foster parents. They called extensive evidence from social workers, a perinatal psychiatrist and a HSE psychologist to support their position that the parents and their relatives deceived the HSE about their commitment to the agreed programme for the care of the children under the Interim Care Order, and insisted they therefore could not be trusted to keep the children safe in the future.

A psychiatrist gave evidence on behalf of the parents arguing that the father could have suffered from “dissociation”, a psychological condition that meant he could have hurt the baby in a dissociated state and not remember it. He said that separating the children from their parents, with whom they had a close relationship, could give rise to attachment disorder. Taking them into care was not risk-free, he said.

The court also heard extensive evidence for the guardian ad litem appointed by the court for the two children. He said that the children, both of whom had special needs, were thriving in the care of their relative carers, with the active involvement of both their parents, and a way should be found to reintegrate the family if this could be done safely. He recommended an approach known as the “Resolutions Approach”, which was a template for dealing with situations of abuse within families that was denied by the parents.

This approach formed part of the order made by the judge, who found that the child had been injured while in the care of her parents, that either of them could have inflicted the injury, that the second child was also at risk and that the HSE was right to bring the application for Care Orders. However, he found that the HSE had not adequately explored alternatives to long-term Care Orders until the children were 18, and made Care Orders for one year, during which time the Resolutions Approach had to be attempted.

The judge also said that the approach taken by the parents to the medical evidence and the suggestion of non-accidental injury had brought them into conflict with the social workers and medical professionals “and undoubtedly has led to the very entrenched positions manifested by both sides throughout all the court appearances… It has to a very significant extent curtailed the ability and the willingness of the social workers to countenance an alternative to full Care Orders. It is deeply regrettable that this should be the case as it has greatly prolonged these proceedings.”

(Some details of this case have been changed to protect the anonymity of the family)

The Hearing

At the outset of the hearing counsel for the parents raised the question of the presence in court of members of the Garda Siochana. The superintendent said they were there in case anything disclosed during the case indicated action would have to be taken regarding the injuries to the child. The judge said this was highly improper. These were in camera proceedings and there was no basis for the Garda presence. The proceedings were being recorded and an application could be made for the content of the recordings.

The baby [B] at the centre of the case had been brought to the local hospital with a high temperature some weeks after her birth early in 2012. She was referred by the local hospital to Crumlin paediatric hospital with a suspected heart murmur. The consultant paediatric cardiologist said that this was quite common in babies. The child was discharged. A week later the doctor recognised the parents again in the Dublin hospital and discovered the child was there in intensive care. Shortly afterwards the child protection protocol was invoked.

HSE medical evidence

The local hospital’s paediatrician told the court that when the young baby, B, was brought in to the hospital with a temperature it did not cause a lot of concern. While examining her, the doctor noticed unusual marks on her back, which the mother said had not been there before. The baby was treated with intravenous antibiotics. She did not see her as a very sick baby at this time and saw no need to stay around.

Two days later she found B very irritable and thought she should have a lumbar puncture, though this was not carried out. She was X-rayed and had other tests, which came back normal. She was grunting, which could be a sign of a chest infection or a heart problem. She was released on the Saturday, and was referred to Crumlin hospital in Dublin for a heart examination. This took place on the Monday. During this examination, which revealed nothing of major concern, the consultant cardiologist noticed no major neurological deficit and the child was discharged and travelled home with her parents on the Monday.

B was readmitted to the local hospital on Tuesday. The mother said she was shaking her legs and was really sick. She was put on antibiotics and an anti-viral drug. The hospital staff was worried about encephalitis or meningitis and the child’s reduced level of consciousness. She was having seizures off and on and was sent to intensive care for ventilation. The doctor rang Dublin to see if they had a bed for the baby citing her concerns as meningitis, encephalitis, epilepsy and non-accidental head injury.

The parents said the child had been fine when discharged on the previous Saturday and on the Sunday. They had travelled to Dublin on the Monday and she was not herself when she came back. She woke early on the Tuesday and was very irritable. The doctor told the court she was a well baby on the Friday but by the Tuesday was very sick. She was incubated and transferred to Dublin by air ambulance.

She told the court that the X-rays taken earlier had revealed rib fractures and this would explain the irritability. Unfortunately they did not have these X-rays before the child was discharged from the local hospital on the Saturday. She did not see the marks on the second admission. Asked by the parents’ counsel if she and two other doctors had reviewed the marks and thought they could be birthmarks, she said: “With the benefit of hindsight I am very disappointed I didn’t think it [the marks] was a child protection issue.”

Asked about the proposed lumbar puncture, she said that if a baby has meningitis she has a high temperature, is irritable and sometimes vomits. If a child has encephalitis she is usually not well enough for a lumbar puncture. During her first admission the baby’s heart rate and temperature were at the top end of normal. Referring to the rib fractures on the X-rays, she said they were difficult for a non-specialist to see, but would be very obvious to a radiologist.

She told the court: “It is not our job to give an opinion on child protection. Our job is to outline the medical condition of the child. I am not an expert in non-accidental head injuries… I worked with child protection experts in England who taught me that marks could indicate non-accidental injuries and we should instigate a child protection examination. No-one wants a child to be readmitted sicker than when they left hospital, and that we missed something important. We are all in fear of missing meningitis.”

A paediatrician from Crumlin hospital told the court that the protocol for treating a child with these symptoms was to look for an infection like meningitis or encephalitis, to look initially for something that is very treatable, then to do a CT scan. The CT scan revealed that there was fresh blood in the brain and an extended area of bruising. “Once you see blood there you start thinking is there a reason, for example, a metabolic reason. Neurology would have been informed. You have to be careful you don’t go down just one pathway.”

An MRI scan was then arranged and that revealed extensive brain injury and a fractured skull. “You then enquire, why does a baby this young have a fractured skull?”

The X-rays from the local hospital showed fractures on the right side of the ribs. Callouses on the fractures showed they were not new. “When a very young child has fractures you wonder does she have others.” This paediatrician said the hospital examined various explanations, including a metabolic disorder, abnormalities in calcium or other bone strength issues, a genetic issue or haemoglobin issues. The baby was examined by an endocrinologist. The child was examined by 11 different consultants from a range of specialities as part of evaluating her injuries.

It appeared the rib fractures had happened at two different times. The first set of injuries would have been three to four weeks old. The child protection protocol says that the social work department should be involved when there are any injuries that cannot be explained, especially in a non-mobile child. This protocol was initiated.

Asked about the reaction of the parents, the paediatrician said that the mother had been informed the baby had a very, very significant brain injury. She was very upset, which would not be unusual. There was a question that the baby might not survive, and the mother was very emotional, saying, “I can’t believe this.” She was lying on the floor for a time. The doctor stayed with the parents for a time and when he returned the next day he said the hospital would look for medical explanations for the child’s injuries but would also have to look at the issue of whether she had been hurt.

The child deteriorated. Blood products were found broken down in the brain. The baby was sent to Temple St hospital to have a shunt put in to bypass the area of the blockage.

Counsel for the parents asked the doctor if the hospital had carried out a Dexa (bone density) scan. “Our first thought was bone fragility,” the doctor replied. “But the data in the population [of babies of that age] is not adequate for comparison.” Asked if he was aware of research that suggests that there is a significant misdiagnosis of child abuse involving broken bones, when they were due to brittle bones, he said they were very careful to make themselves aware of the literature. He insisted that a Dexa scan was not appropriate for a very young baby, because of the lack of comparators.

Asked if the skull fracture altered the way he looked at the other injuries, the doctor said B had significant brain injuries, the bleeding was in the soft tissue. For most children where there is a fracture there would be a bump. He did not agree that the absence of swelling in this case meant the skull injury was in fact a fissure rather than a fracture. He did not agree with the parents’ counsel that a slightly elevated copper level indicated low calcium.

He was then asked if the presence of retinal haemorrhaging can be used to show the type and force of shaking in a baby, he said he could not give a percentage of the cases where retinal haemorrhaging was present in shaken babies.

He told counsel for the guardian ad litem (GAL) that the medical team was pursuing a multi-disciplinary approach. Four specialists met and discussed the various results. He agreed that in the absence of any other plausible explanation for the injuries they concluded these were non-accidental injuries.

An endocrinologist from Crumlin hospital said he had been asked to consult concerning the seizures. B was on ventilation at the time and receiving intravenous therapy. He assessed her movement and the tone of her limbs which were abnormal. She was having intermittent seizures.

The CT scan revealed fresh blood on the surface of the brain. The most likely explanation was traumatic brain injury. The MRI scan gave a much more detailed picture and showed injuries indicative of a loss of oxygen to the brain. Injuries in the brain tissue could explain the seizures, the state of the baby’s limbs and her overall presentation, according to the endocrinologist.

The doctor said these were fresh injuries and could not be the result of a kick during pregnancy. The mother had said the child A had kicked her in the abdomen during her pregnancy. The scan only picked up injuries that occurred in the previous 10 days. He said he would not make a connection between the skull fracture and the bleeding, they were separate injuries. In cases where abuse was admitted such injuries usually arose from shaking. “Rib fractures, brain injuries and seizures taken together are indicative of shaking,” he said.

He said he had tried to explain to the parents what the injuries were. The child was likely to have both physical and mental disabilities. “The lack of oxygen to the brain would have lasting effects. The parents were distraught.” Asked if the injuries could have been caused by the two-year-old jumping onto the baby in her Moses basket he replied: “No.”

Asked how such injuries occur he said that there were blood vessels underneath the membrane of the brain, and there was a leak under the membrane. “Acceleration injury causes tear in the blood vessels. This does not occur because of a minor injury.”

Asked if there was any explanation other than shaking for this type of brain injury he said a possible drop in blood pressure could cause it. Asked whether retinal damage, which was not present in this case, was not a necessary feature of shaking injuries, he said that research from England showed that retinal damage was not present in all cases.

A radiologist told the court a CT scan showed blood in a subdural location, different from the location of the skull fracture. These were separate injuries, the radiologist said. An MRI scan showed fluid at the back of the brain. The injuries would have taken place a week to ten days earlier. Fractures were then found on the left side. It was likely the rib injuries occurred on two different occasions.

The radiologist said that the rib fractures were unusual. If such fractures occur in young babies, they are more likely to be at the front as a result of a fall. The type of injury that would cause fractures at the back of the ribs was something causing the ribs to move against the spine. It could be a car accident or being grabbed around the chest with fingers at the back, squeezing the chest.

She said this type of injury would not be caused by a two-year-old jumping on the baby in her Moses basket.

Counsel for the parents pointed out that after an independent consultant had looked at the scans the possibility emerged that the skull injury was a fissure, which can occur in small children, not a fracture. This changed the complexion of the case, as the idea there was a skull fracture had put into people’s minds the idea that injuries were caused by banging the baby’s head off a wall or dropping her. But there may not have been a skull fracture at all.

“A lot of this case turns on whether the parents gave an adequate explanation for the injuries. The possibility that this was not a fracture at all is not in any report,” the counsel said. The doctor replied that this did not affect the reading of all the scans.

A community paediatrician who specialises in child protection told the court she spoke to the parents about the pregnancy and the illness which led them to bring the child to the local hospital. The mother had said the child did not like being unclothed or having her nappy changed.

Asked about brittle bone disease, the doctor said this was a life-long condition, it was not a temporary one. This possibility had been investigated and discounted.

Asked about the significance of the injuries, she said: “Rib fractures raise particular concerns. Subdural haemorrhage with no explanation is very significant. Retinal haemorrhage would complete the triad of symptoms suggesting this condition. But any of these symptoms on its own would give rise to serious child protection concern.”

She said a child with rib fractures would be in pain, irritable and would feed badly. Other possible causes of subdural haemorrhage were meningitis and encephalitis, but there was no indication of that here, nor of metabolic disorder or malignancy. “There are a particular set of signs and symptoms [for medical causes] that are absent here.” Seventy-one per cent of rib fractures were indicative of abuse. The overall conclusion was the exclusion of medical causes for the injuries and that their most likely cause was trauma, she said.

Another paediatrician who was an expert in child protection, and who was asked by the Gardaí to overview the medical evidence, told the court that the injuries were unlikely to have been caused while the mother was pregnant, as such injuries would have required a huge trauma, like a car accident. The mother would have been very unwell during pregnancy if something like this had happened.

Birth injuries did not arise as an explanation for these brain injuries, as the injuries had to have occurred within 10 days of the MRI scan. Also the baby’s initial neurological tests at birth were normal.

Referring to the marks on the baby’s back which the mother said were new, she said there had been some debate as to whether they were birth marks, but birthmarks do not disappear for months or sometimes years. There was no evidence these marks were anything other than bruises. Counsel for the parents objected that it was the doctor in the local hospital, the only doctor who had seen the marks, who thought they could have been birthmarks.

Turning to the X-rays showing the rib fractures, this paediatrician said in her opinion they occurred on different dates. “As a clinician, if I had seen the bruising, the fractures and the brain injury I would have been concerned at the constellation of injuries.”

She said that 25 per cent of children who suffer head trauma die, and 50 per cent of those who survive have neuro-developmental damage. She said this baby had been extensively examined for medical causes for the injuries, more than required by the guidelines from the College of Paediatricians. She said she had reviewed the literature on temporary bone density problems after hearing earlier evidence and there were conditions, like rickets and calcium deficiency, which might cause this. However, there was no evidence of abnormality in the bone structure in this case.

In her opinion injuries had been inflicted on two or maybe three occasions. There were right side rib fractures which were old. She thought B’s admission to the local hospital was due to the left side rib fractures. The third episode was the devastating head injuries. The skull fracture was not responsible for the brain injury. The constellation of injuries, even without the skull fracture, was highly suspicious of non-accidental injury.

Parents’ medical expert

A UK-based expert on non-accidental head injuries, called on behalf of the parents, told the court it was possible what appeared as a skull fracture was in fact a fissure, a developmental abnormality of the skull bones. He had considerable experience of a skull fracture having been diagnosed where a child died, and the post mortem later revealed there was a skull fissure. “There are no radiological features to distinguish a fracture from a fissure,” he said.

Referring to the bleeding on the brain, he said this was likely to have occurred three to seven days before the MRI scan. The best way of establishing the cause of such an injury was by taking a history of the patient. There was likely to be a change in the behaviour of the child after the event.

He said there was a spectrum of opinion relating to “shaken baby syndrome”. A small number of individuals had the view that all brain injuries like these were due to shaking. It was a black and white issue. There were a small number of people at the other end of the spectrum who said that these injuries may be caused by shaking, but generally were not. “Most of us are in the grey area,” he said. He admitted that in this case the injury was more likely to have been non-accidental in origin.

Asked about the degree of force needed for such an injury, he said: “We don’t know. We don’t see it from the normal rough and tumble of domestic life. Minimum force defines a threshold where injuries are likely to occur. I suspect once you are over that threshold the difference in force between cases where the child recovers and where the child suffers from devastating injuries and goes on to die is not very great.”

Asked about the circumstances in which such brain injuries occur, he said: “In about 10 per cent there is persistent and sustained abuse, in about 10 per cent the injury has a plausible explanation. The vast majority, about 80 per cent, occur on the basis of a momentary loss of control.”

He said the injury would lead to a change in a baby’s behaviour, but it was likely the perpetrator would not see the underlying cause for the change. Sometimes a baby would not be brought to hospital for some days. Non-accidental head injury did not produce specific symptoms. He said a number of issues had become increasingly difficult in relation to non-accidental head injury in recent years. One was the distinction between skull fractures and fissures.

He said the term “non-accidental” referred to an act that was not deliberate or premeditated. It could be an act that was reckless or ill-judged. Asked if two or three events that arose from a “momentary loss of control” would indicate a higher level of risk that a single such event, he said: “That is a matter for the court.”

HSE perinatal psychiatrist

A perinatal consultant psychiatrist had been asked by the HSE to assess the parents in the light of the injuries to the child. She told the court she had met the parents both separately and together. The presented in a very coherent and non-stressed way and as a happy, united couple.

They had a sense of grievance about what had been done to them. There were repeated references to the intrusive nature of the social work department’s involvement in their lives as a result of the reporting of the injuries and the impact of the removal of the children on their lives. It was quite difficult to get them to say who they thought had inflicted the injuries on the child.

The psychiatrist had asked them separately about the injuries and the mother said that the older child had jumped on her abdomen during pregnancy. She said this explanation was not comfortable for her. The father was unable to give any answer to explain the injuries.

They explained the system they had for caring for the baby. They looked after her on alternate nights. She was a difficult-to-soothe baby. The father was looking after her the night before her admission to hospital. She was very unsettled and woke at 6 am screaming. The mother then came “on duty”.

The psychiatrist said when she interviewed the couple separately the mother presented herself as a very functional individual. “What struck me was she didn’t take on board that the injuries were non-accidental. She was not looking for an explanation for the injuries. She was not able to countenance the father being responsible. She presented her family and her family of origin as very ideal. She said she had been asked to consider her husband had been responsible and said she was unable to do it.”

The mother had denied that having a new baby had imposed stresses on the couple and had denied having suffered any post-natal depression. The psychiatrist said she was surprised in the circumstance that she did not report either subjective or biological symptoms of stress, for example sleep disturbance. The mother said social services had put the family through hell and caused additional difficulties for the older child.

The father did talk significantly about his childhood, including his father’s drinking and abuse of his mother. He did say he had symptoms of stress, which was entirely appropriate in the circumstances. He was asked to consider if his wife could have inflicted the injuries and he said he had considered it, but he could not believe it as she was a very kind person.

She said she put to them the facts as laid down in the medical notes and that the injuries were most consistent with abusive head injury, and asked them who they thought had inflicted these injuries. The mother seemed very surprised she mentioned non-accidental head injury and found it quite difficult to get beyond this point. “There was a high level of denial that the injuries were non-accidental,” she said.

The mother mentioned several times that B had a high-pitched cry and was a difficult-to-soothe baby. That does mean increased stress on parents, but they denied this was the case. They were highly functional individuals, with good work records and were well integrated into their local community.

Asked by counsel for the HSE for her view of the future for the children and their parents, she said: “Until there is an open evaluation of the possibility of a traumatic brain injury that has been inflicted B will remain exposed to the same risks. If the risks are not identified they can’t be addressed and resolved. Until then the baby will remain at significant risk. I can’t comment on A.”

Asked to comment on the report drawn up by a psychiatrist for the couple, she said she did not have any significant disagreement with his observations, but did with his conclusion that the children should be returned to their parents and the parents have therapy. “You can’t bring into therapy people who do not acknowledge there is a problem,” she said.

Referred to a section of the other psychiatrist’s report stating that it was possible the father had caused the injuries in a dissociated state and had no memory of it, she said: “There is no evidence for this. A dissociated episode is an extremely rare event and very controversial … I think the idea one would have an amnesiac episode and during it would cause injury to a baby should be discounted as a possibility.”

Asked about the risk of attachment disturbance to the children if they were removed from their parents, she said: “The experience of abuse as a child is a much higher risk than an attachment disorder. There has to be a resolution of the issue of the injuries before the children can be returned.”

Parents’ psychiatrist

The psychiatrist called on behalf of the parents, who specialises in attachment issues, said he had spent three days with the parents and the children, both together and alone. The child B, who suffered the injuries, seemed to be developing well. She was feeding excellently and said “Mama”. She was expected to walk soon. Physically there was possible cerebral palsy.

In relation to her attachment behaviour, she sought her mother out preferentially. She also did this with her father. “She does have attachment to both parents, as one would expect.”

In relation to the older child, who has special needs, he said he was a challenging child. His mother and father were responsive to him and they felt he was making more progress than the professionals attributed to him. He did show a primary attachment to his mother.

In order to develop normally a child should have an attachment to a fundamental attachment figure, he said. “Without it you’re adrift, mentally and physically.” It was almost inevitable that separation from a primary attachment figure would lead to attachment disorganisation and the effects were thought to be long-term.

Here the older child did not cope well with change and his parents leaving and coming back stressed him. If he was removed and looked after by foster parents it would be a challenge for him. The younger child had made progress and would continue to make progress in the care of her parents. “Removing the children is not risk-free. A risk to one may not be a risk to the other,” he said.

The psychiatrist said the father had unresolved losses. He had traumatic amnesia relating to the deaths of close relatives. “A person who is unresolved in relation to loss is prone to dissociation.” He agreed the theory of dissociation was controversial and said it was often not diagnosed, though it was in the psychiatric diagnostic manual.

Asked how this would be remedied for the father, he said through psychotherapy to deal with the disorganising effect of losses in childhood. Therapy would also benefit the mother and would help her in her parenting.

Asked about the other psychiatrist’s assessment of the mother being in denial about the child’s injuries, he said this was her way of dealing with stress; she “just got on with it”. The father was much more reflective and insightful. He did not think the mother was saying non-accidental injury had not happened. She understood and acknowledged it. “But her response is – ‘now we get on’.

“The entire process here is about managing risk and making safe decisions based on risk. There is risk to the children in being removed and that has to be assessed. There is risk to the children in not being removed and that has to be assessed. If the court were to decide that one or other parent did inflict the injuries on B, then that is going to decide what the risk-reduction strategy should be.”

He said neither of the parents had a propensity to aggression. “If either of them inflicted an injury of this kind then it happened in the context of dissociated experience. I do not think it was intentional.”

Failure to acknowledge responsibility could be for various reasons. It could be because those responsible were likely to be charged, or because of society’s view. But also they may not be aware of causing the injuries, he said.

Asked if acknowledgement of causing injury was necessary from the point of view of managing the risk, he said: “Not necessarily from the point of view of risk. If this happened in a dissociated state and during the loss of control, acknowledgement would be more likely if the person went into treatment.”

Asked about comments from a psychologist for the HSE, contained in a report, about the parents’ “deceit”, he said that the relationship of a HSE psychologist with the parents of children who were being taken into care was not a clinical relationship. “It would indicate some sort of disturbance to disclose information to the detriment of their welfare or the welfare of their case. It would be completely naïve to expect the person to trust you. Expecting trust is a failure to understand the power imbalance.”

He said the breach of the supervision conditions that had occurred the previous September seemed to be a major incident in the HSE’s re-evaluation of the parents. He did not agree with this assessment of the breach.

Asked about the fact that phone texts acquired by the Gardaí for their own purposes and acquired by the HSE showed trouble in the relationship, he said: “I am not surprised at that. We know such proceedings are associated with marriage break-up. What comes through is [the father] being reassuring to [the mother]. They spend their time dealing with difficult children. You have to admire their ability to do it instead of picking on little details. These are very committed parents.”

Asked by the HSE barrister what his role was in the proceedings, he said it was to look at the attachment profile of the children and the psychiatric aspects of the case. Asked if it was not an artificial exercise to look at attachment in the context of B’s injuries, he said: “No, you have to look at context. There is a danger in a situation like this that one can’t look beyond the injuries, and look at every aspect including the relationships within the family, which will inform future decisions.” He said he accepted the physical safety of the children had to be secured and that it outranked the attachment issues of the children.

The HSE barrister put it to him that there had been two, possibly three, events over two to three weeks where B suffered serious injuries. “Are you saying this has no importance for the safety of the children?” “No, of course it does,” replied the psychiatrist. “If the court decides one person is culpable that person should be excluded.”

“Are you saying that a person could be going around doing this and not be aware of it?” asked the barrister. “Possibly, yes,” the psychiatrist replied. “There is no evidence of aggression.” Asked whether the phone texts referring to shouting did not indicate aggression, he said this was not pervasive or continual.

Asked about removing the children and having them establish an attachment to foster parents and then, if things improved, moving them back, the psychiatrist said: “That is a complete misunderstanding of attachment. You can’t replace one [attachment figure] with another. Each time you move the children you cause attachment disorganisation for the children.” He said he thought there was a more nuanced way of protecting the children without removing them from their parents, which was a highly disruptive experience.

He said if the court found one of the parents was responsible for the injuries the children could be in the care of the non-responsible parent while the responsible parent received therapy, and was re-evaluated in six months to a year. He said the older child had suffered no injuries and was thriving. The likelihood was that if these children were removed from their parents they would not be kept together. The older child would be disturbed by the move and the likelihood was he would be left in limbo. “The court has to know what the children are going to is better than what they are being released from.”

Asked if monthly contact between parents and children would be sufficient to maintain their attachment he said: “Not at all. It just re-traumatises the child every time.”

HSE Psychiatrist recalled

The perinatal psychiatrist called by the HSE was recalled for further evidence and said she found no evidence of memory trauma and dissociation on the part of the father. “A diagnosis of dissociative disorder is not admissible in court because it is not seen as reliable.” The psychiatrist said the existence of such a disorder was not acknowledged by most psychiatrists. “I can’t discuss a therapy for it as I don’t think it exists.

“It is very difficult to talk about [the reintegration of the family] when there is no drive to find out the cause of the injuries. I can’t discuss pathways until that issue is resolved. The first thing in psychotherapy is acknowledgement. You need a fundamental desire to change. It is a huge commitment. Until those conditions are met psychotherapy is of no value.

“If it is accepted that the injuries are non-accidental, the first thing is to find out who caused the injuries. If it was the parents, that’s the starting point. I don’t know how that scenario would unfold if there was such an acknowledgement.”

Change in mother’s position

When the case resumed after an adjournment of six and a half weeks, counsel for the mother said that, having heard the evidence during the previous hearing, particularly the evidence from her own medical expert, the mother now accepted that, if she did not cause the injuries, her husband must have. She had approached her solicitor, who approached the HSE, and indicated she would take any steps necessary to protect her children and resume their care, including excluding her husband from the family home and supervising any contact he would have with the children.

Her counsel said the position of the HSE appeared to be that it still wanted a full Care Order, it was concerned about the mother’s motives. The mother was more than happy to engage in a motivational assessment, her counsel said.

“She believes all the other possibilities have been discounted, as they were by the evidence, and non-accidental injury was caused while [B] was in her and her husband’s care and she takes responsibility for that,” her counsel said. “She has a marriage, but this takes second place to her responsibility and care for her children.”

The counsel said that the HSE was now claiming that A was the victim of emotional abuse, though there was no evidence of any harm being inflicted on him. The HSE was also now seeking to change the foster carers.

Counsel for the HSE said that the problem was the father had not made a similar concession as the mother. “Is the motivation true or a tactical concession?” he asked. “The issues facing the court are not materially altered. In relation to A, he was in the same house where these injuries happened. If they can happen to one child they can happen to the other.”

He said the mother’s “supposed revelation” that she had been convinced by the evidence given in particular by the expert called on her behalf was not believable. The father now had separate legal representation. “We don’t think this is a real concession. We think it’s tactical.”

The father’s barrister said the separate legal representation was not tactical. The psychiatrist’s report, commissioned by the parents, had come as something of a shock, as it pointed the finger at the father. He maintained his position that he had no recollection of causing the injury, but in the light of the report it would be foolhardy to ignore it and he wanted to have a psychiatric assessment of himself, and had taken on board the psychiatrist’s recommendation of psychotherapy.

The HSE barrister said that the HSE was very concerned about the behaviour of the foster parents in relation to the HSE and the parents’ emotional abuse of A. There was a reference in the text messages to shouting in front of the children which could amount to emotional abuse.

“Is the HSE suggesting that shouting in front of children is emotional abuse?” asked the judge. “To the extent revealed in the texts,” the barrister replied. “The context of this is what happened to B. The basis of the application to change foster carers is because of the refusal of the foster carers to engage with the HSE, not the emotional abuse of A.”

“We have moved a considerable distance,” the judge said. “The issue now is, what are the implications for the safety of the children? The early social work reports dealt with the non-acceptance by the parents of non-accidental injury.”

Social work evidence

The principal social worker for the area then gave evidence. “We know from research that usually [in the case of non-accidental injury] the home situation is marked by extreme conflict, extreme stress, sometimes mental illness or substance abuse. None of these things was apparent to the HSE in this case,” he said. “Both the mother and father presented as a transparent couple who gave the impression they were cooperating with us. It led the social work department to conclude good parenting was going on but we were very confused about the injuries to B.”

He said in all cases of non-accidental injury child protection measures have to be put in place, including that neither parent can be alone with the child, and in this case a voluntary arrangement was put in place with relative carers.

He said the mother had advanced a number of possible explanations for the injuries to B, but all had been discounted by the medical evidence. The care arrangements specified that there was to be no unsupervised access by the parents to the children, and the carers accepted all access had to be supervised. A was taken into voluntary care with relatives at the same time as B.

The principal social worker said the mother had been incredulous that one or other of them [the parents] could have caused the injuries and placed a lot of emphasis on finding another explanation.

The relative carers were interviewed by social workers and the interaction between the parents and the children were observed, and they seemed to be normal. The mother in particular was clearly following advice in relation to regulating the behaviour of A, who has special needs. Prior to the breach of the care plan there was a positive interaction between the social work department and the parents within what seemed like an almost perfect family situation.

“But you can’t have a perfect family situation within which such injuries occur,” he said. The parents were therefore referred to a psychologist and a psychiatrist to see if there was an underlying psychological disorder that might have caused such injuries to occur.

Around this time a document was prepared about a plan for re-uniting the family. “I was unhappy about returning the children to an environment where such injuries had occurred, even when there were all these other positive aspects and good interaction,” he said. He said he took advice from more senior managers and sought advice from a social work professor in Trinity College about how to move forward. “I felt the multiple nature of the injuries was very serious. There was an ongoing Garda investigation which was not yet complete.”

Because of his doubts he was not prepared to pursue reunification of the family at that point, and the possibility of a long-term Care Order was also on the table, he said.

Asked if the parents thought that the children were going back to them, and that their interview with a psychiatrist was the final step in the process, he said he saw how they might have held out hope they would get the family back together. The other social workers working with the family knew any reunification would require the agreement of senior management. No decision was made about reunification. It was not accurate that the interview with the psychiatrist was just part of the reunification process.

Then there was a breach of the access plan and the mother was found alone with the children. She suggested to the social worker dealing with the case that she [the social worker] should lie to him, her line manager. “It was very concerning that she would suggest [the social worker] should lie to a senior manager who would make the final sign-off on the care of the children,” the principal social worker said.

The relative carer who should have been there said he had just popped out to the shops and this was a once-off event and it had not happened before. It therefore seemed there was a carer who colluded with the parents in relation to unsupervised access. This led the HSE to seek an Emergency Care Order. Later the text messages between the couple showed that this had not been a once-off event, there had been many breaches of the care plan from very shortly after B came into voluntary care.

“We trusted the care of the children to [the relative] and felt we were manipulated into thinking there was no potential risk from the mother,” he said. “Our trust was broken in this relative’s ability to keep the children safe.”

He said it was clear from the text messages that the parents had had access to the children beyond what was agreed, including overnight access. A scene described in the text messages of the father shouting at B seemed to have occurred during one of these unsupervised overnight accesses. One of the text messages from the father said: “Our child cries every night at 3 am.” “How does he know if he is not meant to be there?” asked the principal social worker.

“If we had a parent shouting at a child in a foster carer’s home it should have been reported to us. So we think the potential for the ongoing emotional abuse of the children is due to the lack of adherence to the care plan.”

The foster carers were refusing to discuss all this with the social work department and the department felt the situation was untenable.

Asked about what the text messages told him about the family, he said they began to tell them something about the real situation. There was deep conflict between the carers, there was a prospect of the parents possibly separating, there was shouting at the children. Most of the cases of non-accidental injury begin with shouting at very young children because the parents have a very low tolerance for the children’s need for care.

He said when the child was brought to hospital one parent must have inflicted the injuries and known about them. The nature of the injuries was concealed from the medical professionals. The chronology of events placed B in the care of her parents at the time of the injuries.

Asked by the HSE barrister what he thought the text messages revealed, he said they showed that the couple was going through considerable stress around the time of the birth of B. Two weeks before her birth there was a derogatory reference to A’s special needs, which were “highly inappropriate for parents”. The text messages showed evidence of extreme conflict and threats to the wife’s physical safety. “It all raises the question of why this was not shared with us during the psychological assessment of the family. Either this was being minimised as normal or they were hiding the true nature of the relationship and disharmony in the home which makes the injuries more understandable.”

Texts at this time showed “a very angry man who showed a lot of anger towards his wife and children.” They also showed the mother knew the father had an anger problem. “These problems were never presented to any of the professionals. It means you can’t properly assess the family situation because pertinent information was kept from you. Every consideration of a possible reunification of the family was based on a false premise because it was based on hiding the anger.”

Asked how he interpreted the mother’s concession that she accepted non-accidental injury had been inflicted, he said it had to be seen in context. The mother had had access to all the medical reports before. She was now saying she had made a commitment to the father in marriage and hoped to save the relationship, but would do all that was necessary to protect the children, and would do whatever the HSE asked. She was not volunteering protective measures.

The fact that the father was now proposing to get therapy for his alleged “dissociated state” meant he did not have to take responsibility for causing the injuries, the parents would be back together with the children and no-one would have to take responsibility for a child being injured to the point of nearly dying.

“If the problems in the relationship are minimised to the point of non-existence nothing will change and we will put the children back into a situation of danger. It is not acceptable. The best solution would be for a person to come forward and say when and how and why [the injuries] happened so that we can address that.”

He said the department had “deep concern” about nine hours a day access with the perpetrators of the abuse, about the carers, who were from the extended family, and the breaches of the access arrangements which exposed the children to further harm. There was no acceptance from the carers that the mother and father posed a risk to the children. This was why it was necessary to move them to a safer place.

The existing carers were being assessed as long-term carers but because of the breaches of the care plan it was highly unlikely they would be approved. He added that the HSE had identified an approved foster placement for the children.

Referring to the concern about emotional abuse, he wondered if A’s challenging behaviour could be due to having witnessed shouting and therefore having been subjected to emotional abuse. “Could emotional abuse contribute to his special needs or have caused them? Could there have been a misdiagnosis of his special needs?” He said that, given the information in the text messages, the department had felt it necessary to have a new assessment of A.

Referring to the proposal to move the children to a new placement, he said that the priority was that they were in a safe environment. Children could form attachments to people who were a risk to them, but that could pose a long-term threat to their psychological well-being. He said he was satisfied the proposed new carers were motivated to do the best they could for the children. The priority would be to get them settled into their new placement, and this would mean a reduction in access to once a week for the first four to six weeks, so that they could bond with the new carers.

In the medium to long term there would be child-in-care reviews which would consider the care plan, including access. A long-term Care Order did not preclude the children returning to their parents some time in the future before they were 18.

Counsel for the mother said that she would be arguing her client should be able to care for her children with the support of her family. The application being made here was to move the children to their potential long-term carers without the court deciding on the ultimate outcome of the case. The proposal was to move the children from relative to non-relative foster care. The foster carers may wish to come to court to say that the children might want a connection with their family.

Counsel for the mother said that the social work report outlined significant positive aspects in all areas of the family’s functioning, the support of the extended family, the parenting capacity, etc. “That still exists. The children have progressed,” she said.

“All along the problem is that everything seems to be fine but there is a crime scene in the corner of the picture,” the social worker replied.

“But in your evidence you did not give any evidence of the good parenting that is written up in the report,” the counsel said.

“That’s how it seemed at the time. But we learned since then that there was trouble in the marital relationship and shouting at the children,” he replied.

The counsel pointed to the guardian ad litem’s report where it stated that A had settled in relative care and his mother was “adept at meeting his diverse range of needs”. “Your entire evidence yesterday did not refer to any positive parenting. You are the person taking the decision to take these children away from their families. There are very positive aspects of the children’s situation at the moment.”

“I’m not denying that. But there is the general issue of safety.”

The counsel said that there was no evidence A had been subjected to emotional abuse.

“There is evidence A could have been exposed to a high degree of conflict in the home environment which would have been emotional abuse,” the principal social worker replied. “There is no evidence of that,” the counsel said. “There is some evidence in the text messages,” he replied. “But the evidence is he is doing very well. There is no evidence of distress,” counsel said.

She quoted from the social work department’s report from the previous August, which had considered the reunification of the family. “It was made clear to the mother and father this was subject to the approval of senior management,” the principal social worker replied. He said he was not happy with this plan and felt more work needed to be done on risk assessment.

The counsel pointed out that at this time access was increased from 19 hours a week to 63 hours a week, and she said that her client understood this was in the context of a reunification plan. Her clients understood they had to undergo a psychiatric assessment as part of that plan.

The counsel said that every aspect of the couple’s lives had been scrutinised by professionals over the past two years. There were in excess of 2,000 text messages. In none of them was there any indication of collusion or of her client having any knowledge that her husband had inflicted the injuries.

“That’s correct,” the principal social worker replied. “Do you agree this has to be a factor the court has to take into account?” “A factor, yes.”

He agreed that the change in the attitude of the social work department came about following the breaches in the agreed access arrangements in September, when the parents believed the children would be coming home. The breaches, combined with the text messages that had just come to light, led to the HSE applying for a long-term Care Order.

“You put these [the text messages] into your report without giving [the parents] any opportunity to discuss them with you. Adverse comments and inferences were drawn without any opportunity for them to discuss them. There were derogatory comments about infidelity [in your report] when there was no reference at all to it in the text messages,” the counsel said.

“It’s a possible interpretation [of certain text messages],” the principal social worker replied.

Turning to the proposal to move the children to new carers, the counsel asked if any assessment had been made of the impact of such a move on A. This proposal was to move him on an interim basis. He could have to move again. The principal social worker said the new foster carers would receive a full report on his special needs.

“Everyone knows of the deleterious effect of multiple moves in care. You are suggesting a move that may not be a final move. There is no thought of the consequences for A,” the counsel said. “This is about the safe care of A and the ability of the carers to ensure safe care. I agree it is not in the interests of children to have multiple moves but safe care is the priority,” the social worker replied.

Turning to the mother’s change in position, he said: “We are a bit suspicious. She now says it is non-accidental injury. That’s been known for a long time. In relation to the breach of the care arrangements, she was prepared to lie and to ask the staff to lie to me. I have to ask, what was the motivation of the mother at this time?”

Pressed on what else the mother could do, he said: “I have a problem accepting the mother did not know what happened with the children. One of those parents knows who inflicted these injuries and is not telling us. Until we know it is not possible to put a safe plan in place for these children.”

She asked him why, in the proposed care plan, if the children were made subject to a full Care Order the parents would have access only once a month. “They should have time to bond with the new primary carers. They need to go to a place where they are given time to recognise the new carers as their primary carers,” the social worker replied.

“Has it been suggested that the location [of the care] would not be make known to the parents?” she asked. “If there is any danger to the children,” the principal social worker replied.

“But the law is that this is only permissible in exceptional circumstances,” the counsel said. “There are no drug or alcohol problems.” “[We have] once a month access because from experience it’s the least disruptive from the point of the view of the stability of the placement,” the principal social worker replied.

“Before reaching a conclusion on the best interests of the children, would it be normal to get an expert opinion on the attachment of the children to the parents?” the father’s barrister asked. “Attachment issues come second to assuring safe care, ensuring that there is no physical threat to the children,” he replied.

Pressed on whether they had commissioned an opinion on attachment, he said: “I don’t think it’s an issue. What social workers have seen seems fine. But it does not dispense with the safety concerns.”

Asked why the GAL’s report, citing the positive aspects of the relationship between parents and children, had not been referred to in court, he said that this was not in dispute, but had to be seen in the context of the injuries.

The barrister for the guardian ad litem asked him if he was satisfied all options, other than a Care Order until the children were 18, had been exhausted. “I am satisfied under the given circumstances we feel we have no other option for the safe care of the children,” he said.

The GAL’s barrister referred to the “Resolutions” model, a method developed in England of dealing with the aftermath of denied abuse and non-accidental injury and outlined by the GAL in his report, and asked whether the recommendations in it could be followed in the future. “In relation to building bridges [between the HSE and the parents], how would you be able to effect change?” he asked.

“The parents would have to explain how the injuries occurred,” the social worker replied. “The Resolutions model does not require that at the outset,” the barrister replied. “Is there scope for dialogue, in a therapeutic environment?”

“If the parents are in a therapeutic situation it can take some time,” the social worker replied. “An eight-week assessment and if it is positive a six-week reunification process,” the GAL barrister replied.

“For the children that is another eight weeks of delay and denial. We need absolute trust in the light of the breaches.”

The barrister pointed to the GAL report, where it said that it was difficult to place children with special needs and often such placements broke down. It pointed out that in one case it took the HSE three years to find a suitable placement for a child with special needs. “A placement has been identified,” the principal social worker said.

The judge asked him: “Would you say there could be a less sinister interpretation of the texts?”

“I am not sure I would use the word ‘sinister’,” the social worker replied. “What I’m trying to get across is that they refer to a context in which there would be an environment in which these injuries could take place, in the absence of us having any explanation of the injuries.”

The judge said, referring to the Resolutions model document and whether dialogue was possible: “You said it would be difficult to re-establish a relationship. Is it your view that there can be dialogue with the current carers if they were appraised of their misunderstanding of the legal advice [not to discuss the parents texts with the HSE]?”

“Their assessment as foster carers includes whether historically they ever compromised the safety of any child. We need to discuss that further with them. If it goes to a multi-disciplinary foster care committee it will be very difficult to get approval. The court may find itself in a position of directing that the children stay in a foster placement which the HSE can’t approve. We have very serious concerns. It would be a very hard matter to resolve,” the principal social worker replied.

Counsel for the parents said that all the text messages, not just those extracted by the Gardai as relevant to the children, had now been obtained and handed into court and to the HSE.

Application to move placement

The court considered the application to move the children to the new foster carers when it resumed the hearing the next day. Counsel for the HSE said this arose from the refusal of the existing foster carers to engage with the HSE on the advice of the parents’ legal team. The dynamic of the foster carers was to run everything by the people from whom they were meant to be keeping the children safe. “These children are at immediate risk where they are. It makes it an urgent matter for the court to consider.”

Counsel for the guardian ad litem (GAL) said that the court had no knowledge if the new foster carers had any special training to deal with A’s special needs. If the children were taken to them that day, and the court made an order [on the Care Order application] in a few weeks, they could be moving the children again.

The GAL gave evidence of having been appointed the previous October. He said that Child B had been with her current placement for 13 and a half of her 15 and a half months. Moving the child from her current carers would cause difficulties as she would lose contact with her parents and grandparents.

Child A was in a different situation. Because of his special needs he relied on a very strict daily routine. Any change in that would have a severe effect on him emotionally and behaviourally. For example introducing a new person into the room produced screaming and kicking. He was attuned to familiar faces and voices. “I would have concerns about taking him out of that environment,” the GAL said.

Asked what if this was going to happen anyway, he said there needed to be time devoted to the transition. The proposed foster carers had no foster children at the moment. If they were approved there needed to be individual needs assessment of both children and matching with foster parents. Given these were new foster parents it wasn’t known what preparation they had for dealing with a child like A.

The HSE needed to re-engage with the relative foster carers. It was relevant that there had been some movement within the family in relation to non-accidental injury while B was in the custody of the parents, the GAL said.

Asked if the current foster carers were realistic carers for both A and B, he said he did not know what the long-term plans were, but the important thing in relation to the proposal to move the children was being cognizant of the children’s individual needs. There needed to be liaison between the current foster parents and any new carer. “If the children are being taken today to foster parents with no experience of children with special needs it would not be safe,” he said.

The HSE barrister asked him if he accepted that the current arrangement was unlikely to win approval from the HSE. The barrister said there were practical difficulties: one of the current foster carers had put his life on hold to care for his young relative, and the others could have problems caring for the other child in the future. The barrister asked if the GAL accepted there were problems with their attitude.

The GAL said given the nature of the medical evidence there was a need to reiterate to the foster parents that under no circumstances should the children be alone with the parents. In relation to the text messages, he did not think the foster parents were being belligerent. They may have thought they could not discuss them. They had a very limited understanding of the legal situation.

Asked if he was aware the relative foster parents did not accept there had been non-accidental injury, he said the first priority should be to explain the situation and how they should continue to ensure the children’s safety. Asked if he accepted that the parents were given free rein with access to the children during the breaches of the care plan, he said he did, but this happened in a context where the parents had come to believe there would be reunification of the family. The foster carers were relatives, and there may not have been as stringent monitoring by the HSE as there should have been.

The HSE barrister asked him if he was aware B had had a number of visits to hospital.

The judge interjected: “Are you suggesting this is the fault of the carers? We’re talking about a baby who suffered catastrophic injuries. It’s hardly surprising [B] would be in hospital more than other children.”

The barrister asked the GAL if he accepted that new foster carers had been identified for these children. “There is a serious shortage of foster carers for children with special needs. Such children need consistent carers,” the GAL replied. “The relative foster carers manage the behaviour and promote this child’s learning. There is a need for an assessment of A’s specific needs and to consider whether he should even be in the same placement as B.”

The HSE barrister said the same support would be available to the new foster carers as the current ones. The GAL replied: “But that’s starting all over again. Moving the children into that situation now is not in their best interests. There has to be a level of liaison between the new foster carers and the relative foster carers and the parents. It has to be a phased process.

“An individual needs assessment involves information from the carers, from medical personnel, from social workers, from the early intervention team, etc. The obvious person to go to is the mother.”

Counsel for the mother asked him if he had seen any change in the risk assessment of the children since the previous October, and he said he had not.

She (the counsel) told the court there was a specific procedure for moving children outlined in the
Act that had not been followed, and the application was fatally flawed procedurally. But in addition there was no evidence that it was in the best interests of the children that they be moved. On the contrary, the evidence of the GAL was that it would damage them.

Refusing the HSE application to move the children to new foster carers the judge said: “We have an artificial situation where an incident occurred during a break in the hearing. Having given consideration to the evidence of the guardian ad litem, and in the absence of an emergency situation, I think it would be gravely detrimental to the children to move them at this stage.”

Further social work evidence

The social worker who had worked closely with the family said at the outset she had an open and good relationship with the parents. The mother’s parenting ability was of a very high standard. The father was very relaxed with the children. The social worker tried to work with them on their level of denial.

She discussed the case with the principal social worker. The difficulty they had was the denial, there was no understanding of the circumstances where the injuries occurred, they could not identify which parent had caused the injuries and they could not identify what the risks were. At the time they were adhering to the child protection plan and advancing a rehabilitation plan. The principal social worker was not happy with it and said he would take advice from his line manager.

Asked if a decision had been made on the rehabilitation plan, she said: “Absolutely not.”

Referring to the breach of the access arrangement, she said the foster carer for A was seen out and about when he should have been with A, and this meant the child was being looked after by his parents. She visited the house and found B there when she should have been with the other foster carers. The mother said: “I can explain.” The social worker told her she would have to report the incident and the mother told her to lie and say she was somewhere else.

“I was shocked by what she was asking me to do. The concern was if she asked me to lie the relative carers were incredibly compromised.” The mother said she was only alone with the children for a few minutes.

“They are very, very plausible, incredibly plausible, so that I was asking myself had I overlooked something,” this social worker said. The matter was referred to the principal social worker, who sought and obtained an Interim Care Order.

She said she would never have recommended reunification if she had been made aware of the extent of the breaches and of the behaviour of the couple towards each other and the children.

The case adjourned again for two weeks and when it resumed this social worker continued to give evidence, and she agreed with counsel for the mother that in August there were proposals to re-unite the family; even if the father had inflicted the injuries it was thought there was a very low risk of it happening again. She said she had told the mother that if rehabilitation did take place it would take a considerable period of time.

Referring to all the text messages, counsel for the mother suggested they were affectionate and sometimes showed sarcasm and irony. There was no evidence the marriage was on the rocks in the two years of text messages. “We gave you all the text messages hoping they would reassure the HSE,” the counsel said. “We hoped the HSE would turn up today and said these text messages no longer have the same import. They show a loving couple who love their children and are good parents.”

The social worker said they showed things they had not been made aware of, like the father’s aggression. “But these text messages don’t show an aggressive person. There is only one reference in two years. Can you show me where they were manipulating and putting up a false front of a good relationship? Are you standing over that?” asked the counsel.

“I am standing over that we were misled over the investigation of the injuries,” the social worker replied. “That was testing the medical evidence. It was quite appropriate to do that,” the counsel said.

Asked if there was any evidence at all of domestic violence, the social worker said: “No evidence.”

The barrister for the GAL asked if she had considered the extended family as a protective factor for the children. She said No, because of their denial of non-accidental injury. There had been no transparency or engagement with the social work department from them.

Referring to the Resolutions model, the GAL barrister asked: “Might it be an option to invite an independent person in and see if they can assess the parents and see if they are suitable for this approach?”

“It would be very difficult,” the social worker replied.

“Do you agree a fresh pair of eyes could be helpful?” “No, there were multiple injuries to the child.”

“From the children’s point of view, they need routine, consistency and stability, is it not fair to give them the benefit of one final assessment before moving them away?” “I’m happy for a review,” the social worker said. “But first and foremost we must make them safe.”

“What would ensure that?” asked the GAL barrister. “Being moved quite quickly,” she replied. “Away from their parents and entire family network? If a suitable family member could be found, are you saying they would not be assessed?” “I don’t see that. There have been a lot of assessments,” the social worker replied.

HSE forensic psychologist

The HSE forensic psychologist said he had spent between 25 and 30 hours with the parents. He had conducted psychometric tests for potential for child abuse. The mother test scored highly for depression though she denied any feeling of depression. The father’s profile mimicked that of physical abusers, but only on one indicator. The father showed he may be a little better able to manage his anger than average. Overall, he said he was getting mixed messages from the psychometric scores.

The father did tell him about his own father’s violence towards his mother, which would be a significant risk factor, but he raised it himself and this was positive. He came across as trying to be honest and truthful. There were no indications of any difficulties in the relationship. There was no criminal record or any other evidence of any violence in his history.

In general the mother had a much less traumatic upbringing than her husband. She said her husband was the most thoughtful man she had ever met. There was no suggestion of conflict.

In relation to an explanation for the injuries to B, she said she had received a kick to the abdomen about two weeks before the baby was born. She then also described A jumping into B’s Moses basket.

“They presented as a very likeable couple. There was no evidence of conflict, drug or alcohol abuse or any other contributing factor. The tests were very confusing but the couple didn’t seem to be contradicting each other. But sometimes one piece of evidence throws the rest of it into a different light,” he said.

He said risk assessment was very highly specialised. There were very clear guidelines and people carrying out risk assessments had to follow a very clear method.

The factors to be considered included whether the person had been violent in the past, a history of addictions, severe mental illness. On the basis of the information he had the family presented as low risk. “My gut feeling was that the father didn’t do it. I would have thought that at the time.

“Then I learned of the breach to the care plan and the access arrangements and the fact that they lied. There were further breaches. These were significant. In any care plan you’re looking at a person’s response to sanctions. If a person has a second conviction for violence it shows the sanction for the first didn’t work. They not only lied, they encouraged us to lie.”

He said the mother was extremely emphatic that if her husband caused the injuries it would be the end of the relationship. This case gradually unfolded, he said. As the evidence developed the picture became clearer. There was still no explanation for the injuries. He said he went back to the medical notes and found there was no change in the foetal heart-beat around the time of the alleged kick to the stomach.

He said another suggestion was made that the car had braked suddenly on the way back from Dublin with B following her first hospital admission and her injuries might have been caused by the jolt. But this was not pursued.

Asked if the approach advocated by the GAL was viable, he said the practice of risk assessment was evolving. Risk assessment did not look for culpability per se. It looks at historical risk and risk management.

“I understand we were looking at the Resolutions model last August. Now we have different information and we are not talking about the Resolutions model any more.”

He said risk assessment required understanding, not blame. Without understanding it was very difficult to assess risk. The injuries were severe and persisted. They did not seem to have been the result of a once-off uncharacteristic loss of control. It was taking a very high risk to put a child back into that environment.

Asked about the significance of the information revealed in the text messages, he said: “The texts do reveal concerns about domestic violence and depression I was not being told about. They did show the mother showing a degree of understanding of the mind-set of the children.

“As a psychologist I am looking for people’s slips to indicate what is going on behind the scenes. There are a lot of exchanges of affection and then suddenly this volcano that erupts in the middle of it. It may not be significant if there was not an injured baby.

“There is obvious tension between the couple. The father was away for four or five days for his work.”

Asked if he accepted the mother’s new position relating to her husband, he said she had said at the latest meeting that she had not previously joined the dots but did now. He was concerned at the timing of her change of heart.

Asked about the father undergoing psychotherapy he said it depended on the type. Research showed that some could actually make matters worse. “A vague assessment leads to vague intervention leads to vague outcome,” he said. Asked about future risk, he said that in the absence of full disclosure he could not eliminate all the risk factors.

He said he would be concerned about giving weight to the “dissociated state” hypothesis during which the injury was caused, which had been advanced by the psychiatrist who gave evidence for the parents. Even if it was accepted, if they wanted to solve the problem they needed to define it accurately. However, he did not accept the hypothesis, the evidence did not support it.

According to forensic psychology the best indicator of future behaviour is past behaviour, he said. The Resolutions model, put forward by the GAL, required the parents to work in an open and honest manner with the social work department. There had been a massive breach of trust here.

Counsel for the mother said he appeared to misunderstand the Resolutions model. The matters listed were not preconditions, but a description of how it worked. It did not require boxes to be ticked in advance, but changes to be brought about during the process. She said that he seemed to be saying the only model of risk assessment that was appropriate was the one used by him where people had been convicted of an offence or were in psychiatric hospital and may be at risk of reoffending. This model was not appropriate to child protection, where the only concern was the safety of the child. If this could be provided for, there was no reason for the child not to go back home.

The psychologist said there was a question of how a person adhered to a safety plan into which they had an input and which was agreed.

The counsel said that the Resolutions model took the outcome of court proceedings as the starting point. The breaches of the care plan had occurred before any court proceedings. After the court had made the Interim Care Order there had been no further breaches. “This [Resolutions] method does reduce incidents of injury. I wonder why you are so opposed to this couple being assessed for it,” she said.

“The question that is important in this case is the risk of very serious harm. This child nearly died,” the psychologist said.

The counsel asked him to consider his first report on the couple, where a number of risk factors for child abuse, including substance abuse, relationship instability, personality disorder, prostitution, etc. were listed and ruled as “absent”. All 15 risk factors on the list were listed as “absent”. In his second report he omitted many of the factors he had listed as “absent”, thus lowering the score, she said, and leading to a new evaluation of “medium to high present risk and medium to high future risk”. Would this be less if it was found the mother was not responsible, she asked.

The psychologist said where there was a child injury that in itself increased the risk.

“If there are some events that are open to adverse interpretation, like the breaches, then everything else is interpreted in a way that is adverse to my client,” the counsel said.

“I am not doing that. If there is a hypothesis and then more and more information supports that hypothesis … psychological information is very, very subtle.”

“All the information you are using here was known to you at the time of the first report. What you have done in the second report is re-interpret it.” “Absolutely,” the psychologist replied.

The case resumed following an adjournment of two weeks. The barrister for the guardian ad litem asked the HSE psychologist why he supported the HSE’s proposal for a long-term Care Order, and he said this was in the light of the assessment of “low to medium” risk of harm and the lack of acknowledgement of how the injuries were caused.

Asked if there was any way that the status quo could be retained for the children, the psychologist replied there needed to be disclosure so that the trigger factors could be identified. The barrister said that a number of risk factors, like drug and alcohol abuse, were absent in this case, while a number of positive factors were present, like the fact that the parents had had a lot of care of the children for the duration of the HSE involvement and there was an extremely good family member involved.

“Except that within the family there seems to be an acceptance that the parents are right and the social workers are wrong,” the psychologist replied. “What is of concern to me is that the positive factors were present when the injuries occurred. That should not have happened.”

“Is there any chance we can move on from that appalling event to maintain what we can of a caring and nurturing family?” asked the barrister. “It is the view of the GAL that this [the Resolutions model] should be road-tested.” He asked him if it was not fair to say the parents were willing to accept supervision and support. “Yes. Grudgingly,” the psychologist replied.

“Do you accept there are other options out there apart from a full Care Order?” the barrister asked. “There are always options,” the psychologist replied. “But the main problem is we don’t know what triggers the anger.”

“I asked if all the options could be explored. In your report only one is put forward, a full Care Order.”

“The positives emerged since the report,” the psychologist replied. “All these things could be looked at. There is a shift. I am not convinced how genuine it is.”

The mother’s evidence

When the case resumed following a three-week adjournment, the mother gave evidence of the birth of B and the circumstances that led to her being taken into care.

She described her courtship and marriage and the birth of the couple’s first child, A. She and her husband had a close relationship and at first there were no concerns about A. After about a year and a half she became pregnant again. She began notice A had some developmental problems and shortly before the birth of her second child A was diagnosed with a disability.

When B was born early in 2012 she had a high pitched cry. When she was about five weeks old she brought her to hospital concerned about a high temperature. She was examined and she was told it was likely to be flu since there was flu in the house at the time. While there she was examined by a paediatrician who asked her about marks on the child’s back. The mother told her that she had not noticed them. The child was x-rayed. There was no sign of fractured ribs and no suggestion or question of physical injury. The test for meningitis came back negative. The child was seen by a number of doctors and nurses and none of them raised the possibility that she had injuries.

They returned home and she and her husband did alternate nights sleeping with child B who was in a Moses basket in the master bedroom.

“Did you notice any event which would cause concern about the care of the child in your absence?” asked her solicitor. “No,” she replied. She said there was one day when she heard a high pitched scream when she was in the shower and she thought that maybe her husband had tightened the blanket too much.

The child was sent to Crumlin hospital in Dublin for tests on her heart, which revealed a small hole. On their way home she was unsettled but she thought it might be due to the car journey. They got home at about 7 pm and child A went to bed. Her husband kept child B that night. The next day was her husband’s birthday and she wanted to take the child from him early in the morning to allow him to have a lie in. Early in the morning she heard “a high pitched scream” from the child and noticed she had a little twitch. She went to her husband and asked him if she had been doing this the previous night and he said no.

Judge asked where the twitch was. She replied “in her head”.

Later that day at about 1 o’clock she noticed she had a slight twitch and she raised her hand in the air. She also noticed a little vein appearing on her forehead above her eye. She rang paedriatrics and went straight to the local hospital. The child was a little lethargic and she had a seizure on the table at 3pm. She was given medication and the doctors rang Crumlin to talk to a neurologist. They did not know what was wrong. They thought it might be meningitis. She was airlifted to Crumlin and she and her husband drove to Dublin.

That night the hospital did a CT scan and the doctors said she had a brain injury and a fractured skull. “I was devastated,” she said. The staff asked if anything could have happened to the baby and she said she had swerved on the way home from their first visit but they (the doctors) said that couldn’t have caused it.

They were told the baby would not be able to sit up or feed and would be very disabled. “I was hysterical and crying,” she said. Her solicitor said her reaction was extreme and understandable and she replied “No” when he asked her if there was any element of play-acting on her part.

Her solicitor said it had been stated that she had put forward fanciful theories including being kicked in the stomach by child A while pregnant and she said she was asked was there absolutely anything she could think of [to cause the injuries] and she mentioned being kicked.

On the Friday she was brought into a room with a paediatrician, child B’s nurse and the head nurse and details of the injuries were given. She was “absolutely shocked … completely blown away” and she said there must be something wrong with the child’s bones. There was detection of a second set of rib fractures and she inquired about a Dexa scan but was told there was not sufficient data to make a comparison.

She said the child developed a virus in the hospital and was screeching at a high level and was putting her hand up to her head. The HSE were now involved and she was being supervised by a nurse all the time she was with the child.

The child was sent to Temple Street Hospital where she had surgery to have a shunt inserted. She was continuing to have seizures.

She was asked about a row with a nurse when the child returned to Crumlin and she agreed she didn’t want to discuss the child’s condition while the nurse was talking to her over the cot. She agreed that she had “a tetchy exchange” with her.

Her solicitor asked her about her reaction to being told that the child had rib and skull fractures as well as brain bleeds and she replied that they (she and her husband) did everything they could to find out what had happened. “I looked at all kinds of things. They were being called non-accidental injuries. For a long period of time in Crumlin they were doing tests. I was exploring all medical explanations. I looked at everything.” If there was no medical explanation then “something had happened,” she said.

She had been told that the injuries were non-accidental and her solicitor asked her what did she understand that to mean and she replied “something traumatic”.

He asked her what possible physical traumas did she attempt to quantify and she said she made a list of everyone who came to the house and who had been with the child during visits to hospitals. She said she did not believe at the time that her husband had injured the baby and “I knew that I hadn’t.” Solicitor: “So the implication was that one of you had?” “I couldn’t accept that.”

She gave evidence about the care plan which was put in place by the HSE and said she and her husband agreed to a voluntary care order. They moved out of the family home. Access was increased after the first social work report was written. There were further increases in access and social workers visited regularly with a mix of scheduled and unscheduled visits.

After one social work report in August which dealt with the possibility of reintegration or long term care “I thought we were getting our babies back.” She said that the social worker had suggested to her that they were low risk.

“Did you believe [your husband] harmed her?” “No”.

There was a meeting in August and the head social worker said he was not mad about the reintegration plan and he didn’t sign off on it. She said she was pressing the HSE for reintegration and was asking when it was going to happen. A nine-week plan had been ruled out. Her social worker told her to prepare herself for the fact that this might take a lot longer as they might wait for the guards and they may need to do more testing with her and explore other avenues.

She agreed that she and her husband were in wholesale breach of the access agreement during August and she was with the child every second night, sometimes on her own. She “100 per cent agree I shouldn’t have done it.” She said the HSE investigated it vigorously. The care plan was made an order of court with very stern warnings. “I felt we had literally hung on to our babies by the skin of our teeth and my attitude now is complete compliance because of our fear of losing them.” She said there had been no breach of the plan since. She was one hundred per cent committed to it and would adhere to any future plan.

She was then asked about the text messages. Asked about her husband shouting at child B she said he had been having problems getting the child’s wind up and had texted he had hated her. She asked him what was he talking about and he said he was sorry and he had been upset. She said it was an isolated incident and he was “so good with them”. She said her husband had been getting extremely stressed and might need something like acupuncture.

Asked if the texts suggested financial difficulty, she said he had taken €60,000 out of their joint account instead of his own account and he had put it back in. They were financially sound. She did not believe he had ever been unfaithful [as had been suggested by the HSE arising from its interpretation of the texts].

They did have arguments but there was rarely strong language used. If they did have a row she might “huff” for a while but she didn’t like going to bed without making up.

Asked about persuading others to collude with her to deceive the HSE in breaching the access agreement, she said she didn’t believe her husband was a risk. Everyone believed they were good with kids. He put it to her that the combined effort of the family group to mislead the HSE was largely at her behest and she replied that it was considered very reasonable because “everybody believed the children were better with us.”

She was then asked if she had been preoccupied with trying to confine all the injuries to one event and she said there was a suggestion initially that they were dealing with one rib injury. One doctor said there was one, then another doctor said there was another. Her medical expert had raised the possibility that there was not a skull fracture. “I thought if this is wrong, what else is wrong? It was evolving that there was more than one injury.”

The solicitor told the court that the mother had reached a conclusion that came through a process which included questions which he had put to her expert witness and he had put in his answers. He was submitting it to the court to show the process the mother was going through. She had reached a certain realisation and had gone to the HSE with it. The hope she held [that her husband was not responsible] was being dissipated not just from the HSE but from her own witnesses. The existence of two separate rib injuries was gaining currency. The HSE was saying it’s a bit late, the solicitor said.

Asked what she now believed she replied: “I believe it was a non-accidental injury caused by my husband.” She said she had explored every other possible avenue and did so with some vigour. She had challenged the experts and asked all the questions. All other medical explanations had been eliminated.

Taking everybody’s evidence together and her own expert’s evidence, it was not in accordance with her hopes. Her expert confirmed the brain injury occurred at a different time to the rib injury.

She had a conversation with her counsel and talked to her family. She took two weeks and spoke seriously to her husband. She said to her counsel she believed her husband had hurt the baby and they had to go to the HSE. She had been hanging her hopes on the injuries being caused by one event.

Asked what was she prepared to do in terms of her relationship with the children, she said she would engage in any plans or protocols which were drawn up and would follow them to the letter of the law. “I love them more than anything in the world,” she said.

The barrister for the HSE said: “We’ve had more experts than we have seen for a very long time. Do you accept it’s due to your challenging all the evidence? You had a ream of medical reports and you continued to approach it saying this didn’t happen?”

“Initially in Crumlin I was sure there was another alternative. I looked for other medical explanations. I had to look at other possibilities. I honestly believed that A jumping on top of her was a possibility. I was trying to find out the cause,” she replied.

Asked why she did not bother questioning her husband, she said: “I knew I didn’t hurt B and I said, ‘look me in the eyes and tell me the truth’ and I asked him several times. I didn’t see or hear anything to suspect [my husband].”

Barrister: “What made you resist all the medical experts?”

Mother: “I didn’t believe anyone could have hurt him.”

During extensive cross-examination she insisted she was not aware the baby was injured when she first brought her to hospital, and had seen nothing untoward at home that would explain the injuries.

“What confidence could a person have if B had injuries in the future that you would detect them?” “I would obviously be more hyper vigilant in the future,” the mother replied.

She described again taking B to hospital in Dublin where her heart was examined, and returning home.

“I heard a sharp cry the following morning. It was quite instant and sharp at 6.10 in the morning. I heard it through two closed doors.”

Later that morning the baby seemed more fatigued than usual and she did not take her bottle. When she woke at about 11 am her eye twitched and flickered. She rang her husband and said she was taking her to hospital, and told staff there she had some episode or seizure. The doctor said if she had viral meningitis it would not have been wiped out by the earlier treatment.

The barrister said: “They tried a different type of medication and then airlifted him. This was a full blown emergency and neither you nor your husband could give them the slightest scintilla of information to help them.”

Mother: “I gave them everything I knew to help.”

The barrister insisted she must have known who inflicted the injury on the baby, she had stressed she did not and she consciously and cleverly deceived medical staff, questioning their conclusions.

Barrister: “The appalling vista is you were there when it happened, you actually inflicted them.”

The mother’s solicitor objected: “Nowhere during the course of HSE case did anyone suggest that [the mother] inflicted injuries on the child, nobody. The emphasis of what they were saying was on her ability to mind the child, that she was unable to protect the child. But to accuse her of inflicting it….”

Judge: “Isn’t it the basis of the case that it must be one or the other?”

HSE barrister: “It’s now agreed it was inflicted by one or the other. Did you inflict these injuries?”

Mother: “You have my absolute word for that.”

Barrister: “If your husband said the same, why would we believe one over the other? You said earlier your husband had no knowledge of having done it.”

Mother: “I have no knowledge that he hurt B. I did not notice B having a seizure on Monday evening, not until ten past six on Tuesday morning.”

Barrister: “You are choosing as a tactical option to play dumb about it. You were present when the injury was inflicted.”

Mother: “I am distraught at what has happened to B and I stand over the fact that I have no knowledge of how it happened.”

Referring to the breach of the care plan, she said: “I wanted them all day and every day. The [relative carers] did not believe we had hurt B. Of course we said we didn’t hurt her.”

She said the relative carers presumed the parents wanted more time with the children and it built up to overnight access. The barrister said she had come into court and, together with the foster carers, said there had just been a single breach and the HSE should be reasonable about it.

“It was a complete lie,” the HSE barrister said. “You and all the carers came into court and lied about it to get around the next corner.”

“Yes, based on my belief that it was best for the children,” the mother said.

Asked about her attitude to her husband, she said: “I married him. I’m holding on by a thread. I have very little hope for the marriage. Right now I am not with [A and B]. When the court makes the decision I have a lot of things to decide.”

The barrister said her solicitor had told the HSE that having benefited from medical evidence she was forced to accept that B had got non-accidental injuries caused either by herself or her husband and since she hadn’t caused them she would abide by any HSE decision even if it meant the exclusion of her husband. “That’s true,” she said.

The mother told the barrister that she and her husband had separate counsel since the case started.

Barrister: “That’s because if he took one for the team that might be more acceptable. You’ve chosen not to tell us what happened but you do know what happened.”

Mother: “The second set of texts give a much more accurate picture. I don’t know where the relationship is going, we co-exist.”

Asked if she believed in the explanation of “transient amnesia” put forward by the psychiatrist called by her legal team, she said: “As a theory I don’t know if it stands up.”

“I’m suggesting the reality is you both know what happened and you have jointly decided on how to get out of it. The reason you are not conflicting [your husband] is you both know what happened and you are prioritising your marriage over your children.”

“If I had any knowledge of what had happened I would be telling you. I love them and they love me and I would do anything to protect them. I agree I didn’t protect B from serious injury. Now that I am aware of that there is no way I would fathom that again. I had no knowledge she had suffered the injuries, when it happened or how it happened,” the mother said.

“I believe they should have a father and that should be one under a protective environment.”

Barrister: “If you were adroit in getting around the voluntary care order what’s to stop you from getting around any order in say six months’ time?”

Mother: “I will be obeying any plan that the judge or anyone puts in place. I would not be happy for [my husband] to be alone with the children.”

The solicitor for the mother intervened to say the DPP had said she was taking no further action in the case.

The mother answered “No” when the barrister for HSE finally put it to her that she was hoping that she would get custody of the children and that she would gradually reintegrate her husband back into the family.

The barrister for the children’s guardian ad litem asked about the situation of the two children. The mother told the court B has a walker and does little bits of exercise and is becoming verbal. Her particular needs mean her coordination is not great and she has a small weakness on the left hand side. There had been a lot of improvements in her condition since her injuries.

A found it difficult to trust new people. “When he is in an alien environment he would be melting down all the time,” she said.

Asked about a recent psychological assessment of her accessed independently, she said she had told the psychologist she would prioritise the children over everything else. “I know if I deviate the children can be taken into care. It’s fundamental it’s kept to the letter of the law.”

Asked if she would work honestly with the professionals, she said she would. “I respect the most recent social worker, she never tried to be my friend. We all work together. My family are brilliant to me. My parents are mental about the children. They are extremely well loved children.”

Motivational psychologist’s evidence

When the case resumed after a week’s adjournment the independent psychologist, who previously worked for the HSE for 26 years and who examined the mother to assess her motivation and capacity to change, told the court that the extended family had acted out of a shared belief that neither parent had hurt the child. There was a recurring theme that they all thought it was important for the children that the parents spend time with them.

She said the mother’s relationship with the father now involved a conflict between her affection for him and an acceptance that he hurt B. “She has to move from the position that neither of them hurt the child and supporting each other to accepting he did. It’s a huge 360 degree turn. You don’t make that easily. There is a lot to be reconciled along the way. The fact she is conflicted is more normal that if she had made the turn without conflict.

“It’s very difficult for her to accept someone close to her has hurt her child. She can’t take on board at the moment how to integrate her relationship with him into the future. She has no idea how it will work out. That’s realistic.”

She said there were no concrete steps the mother could take at the moment, while the proceedings were still going on. That was realistic.

She said she differed from the HSE psychologist’s assessment in that she saw the mother’s personality as a normal variation in personality type rather than “histrionic”. “I don’t know where that comes from. I could not identify with that,” she said. “There was no evidence of narcissism [which entails] a feeling of entitlement and a tendency to exploit others. It was not consistent with my interview data and I could not see them in the other data.”

She said there were a number of points between his first and second reports where the HSE psychologist used non-verbal behaviours to support his conclusions. “It is important to rely on facts. We don’t know enough about non-verbal behaviour to rely on it for conclusions.”

The second report omitted a lot of things, “viewing it through not believing what she said. There is quite a lot of judgment in it,” she said.

“She [the mother] has a positive coping style. This is very admirable in most situations. The disadvantage arises when you gloss over negative things. She has this belief almost everything is solvable.”

She said the report from the team supporting A’s special needs was positive concerning the mother’s strong commitment to the children and her ability to prioritise their safety if she cared for them.

“In child protection we have a particular lens through which we view things. I don’t think she would understand that. [In relation to the care plan lapses] she had a very strong feeling that they needed her, especially A, and that he had gone back in his development without her. She also wanted to be with her young baby. That’s normal. There was a general belief in the extended family that child protection would have a temporary role and that things would get back to normal. She would say she was naïve in relation to that and to how [social services] would view the breach.

“People outside child protection are quite naïve about how child protection works and the alarm bells that ring if there is a breach of access.”

She said there was no significant power imbalance in the relationship between the parents and the father would not be able to bully the mother into seeing the children in the future.

She said the mother was moving along the road and making changes in her attitudes, but she could not demonstrate that while the situation was unresolved. She said her clinical opinion was that the mother could prioritise the children’s safety over her marital relationship. “She will cooperate with child protection and would be very fearful of the consequences if she doesn’t.”

Raising the children outside their family posed real risks for them. “If it can be done safely the best thing is to be raised in your own family.” She recommended the use of an outside agency to oversee this, if ordered by the court.

The HSE barrister asked her about her response to the medical evidence, showing that the baby had been seriously injured while in the care of her parents. She replied: “A case has to move forward, even a case of denied child abuse. We are looking at the mother’s capacity to parent in the future.” She said her report did not address the issue of who perpetrated the abuse, but was forward-looking.

“When such injuries occur and the parents are investigated, it becomes very difficult for behaviour not to be seen as pathological. We look for pathology because we have to explain what happened,” she said.

Asked about her recommendation that an outside agency become involved, she said: “I think in this case there has been a huge difficulty in the relationship between the social work department and this family. There is a huge issue raised by the breach of trust. The social work department has not been keen to work with the family. It feels it’s difficult to move forward without an admission. Since the breach occurred there has been a reluctance to go forward.”

“It’s not an unwillingness, it’s a concern the children are not safe. Any other agency will have the same problem,” the barrister said.

“The Resolutions model starts with the situation we have, its strengths and weaknesses, and goes forward from there,” she said. She told the GAL barrister her knowledge of the Resolutions model was mainly from the literature, and the results appeared to be very good.

Guardian ad Litem evidence

The children’s GAL told the court that he found there had been an acknowledgement by the mother of the risk.

From the beginning the social work team thought this was a case where there could be reunification of the family, given the absence of other risk factors, for example, alcohol or drug abuse, mental illness, domestic violence, etc.

He said the HSE’s early plan for reunification was not based on the Resolutions model, as at that stage there was no acknowledgement of the risk from the parents. His difficulty with the approach of the social work department was that, quite rightly, their job was to protect children and their priority was protectionist.

“I have worked in child protection for 26 years and I know how it works. The reason why the Resolutions model was developed was because a lot of experienced practitioners felt stymied by existing practice. Look at the review of the deaths of children in care – it was followed by an increase in referrals to court. Organisations respond in certain ways,” he said.

Turning to the children, he said B was thriving well and responded like any child of her age. She showed no sign of distress in any interaction with either parent. She had a strong attachment to her parents and carers at the moment and that would be disturbed by a change.

The situation of A was different, in that his world revolved around basic routines and individuals. The most important thing, if he was to be moved, was that it be gradual. There would need to be close liaison between the parents and any prospective foster parents.

Referring to the HSE proposal to reduce access from the existing 63 hours a week to a few hours weekly, he said he was often asked to comment on the reduction of access when children were moved into long term care. This was often when there was drug misuse or imprisonment among the parents and the prognosis for change was poor. It may also be necessary where there was interference with the foster parents or coercion.

“That is not relevant here. I would have to see a reason for the reduction in access from nine hours a day, seven days a week, to once a month. There are no background negative features, no suggestion the mother would use access to disrupt the placement. My concern would be that the reduction of access reduces the chance of reunification,” he said.

He said he was concerned the HSE had not exhausted all the options for care for the children, including the use of members of the extended family. “Even if you consider the children should remain in care, you cannot conclude it should be until they are 18. There is a tendency in social work to focus on the negatives and the issues that give rise to concerns, and not look at the positives. All the reports coming back on the children’s development are extremely positive. Compared with other cases of non-accidental injury, there are more positives in this case in terms of positive interactions.

“Non-accidental injury and child abuse are very emotive issues. Child protection workers can feel they did everything possible to help a family and their trust was betrayed. To work in the area you have to become de-sensitised to an extent. You have to ensure you don’t become emotionally involved so you don’t feel betrayed. When that happens you can’t move forward,” he said.

“I am not suggesting for a moment that at the end of these proceedings the court makes no order and returns the children to their parents. There is an opportunity to road-test alternatives and if necessary to spell out scenarios.”

He said the Resolutions Approach was a short intervention that tried to bring mediation to the process, there were specialist agencies that did it. “My preferred option would be to look at the Resolutions model as the last option before taking the children into care. The support of the extended family is very important. There are a range of options available to the court. It is best if things are done on an interim basis. Permanent orders can have significant implications for family reunification.”

He said that no matter how rosy a picture was painted of foster care at the moment it was under-resourced and under-supported, and the support was being cut back. “It is very difficult to source foster parents with experience and training in children with special needs. I am constantly dealing with breakdowns in foster placements.”

The judge asked him for his views on short-term orders, and he said that short-term orders for older children were very disruptive. This was not so much of an issue with smaller children.

Asked how many times the Resolutions model had been used in the Republic, he said it hadn’t, but had been used in Northern Ireland. “This model is not tried and trusted here,” the barrister said. “There are no professionals to manage and monitor it here.” The GAL said the assessment would be carried out by someone from the UK.

The judge asked him about a full Care Order for less than the child’s minority, and he said if there was a piece of work to be done the court would want to hear about it. This could be done with a short term order and a review date.

“Some of my colleagues have made orders for six to 12 months and then asked for the case to come back to court,” the judge said.

“The HSE would need reassurance it has some control of the situation,” the GAL said.

The judge reserved judgment until after the summer break.

Giving his decision when court resumed, the judge said: “The HSE acted properly in bringing these applications and in their handling and investigation of the case. I find however that they have not done enough to exhaust all other alternatives to a long term Care Order.

“I will therefore make Care Orders in respect of both A and B for a period of one year. Pursuant to Section 47 I direct that the parties commence the Resolutions approach… I also direct that there shall be no change in the current placements, without further order of the court, to allow the RA to be fully explored.”

He directed a review in six months to examine the progress under this approach, with the guardian ad litem remaining in place for this time.

He also found that the very high amount of access that the children, and particularly A, had with their parents was extremely beneficial to the development and progress and that this should continue.

Referring to the evidence, the judge said: “The weight of the medical evidence was overwhelming in showing that the injuries sustained by B were non-accidental…. The injuries were inflicted on at least two, and possibly three occasions and they occurred when B was in the care of either or both of her parents.”

He said it was not possible on the evidence to find which of the two parents perpetrated the injuries on indeed whether each of them had perpetrated some of the injuries. “The absence of any evidence whatsoever as to the circumstances in which, and method by which, the injuries occurred leaves the court in the position of having to assume that both parents were aware of the circumstances and that either or both parents could have inflicted the injuries.”

Much of the early part of the hearing was taken up with very detailed medical evidence and cross-examination of the medical experts on behalf of the parents seeking to advance the proposition that the injuries had a medical or accidental explanation.

“This approach by the parents brought them into conflict with the social workers, and indeed the medical professionals, from a very early stage, and undoubtedly has led to the very entrenched positions manifested by both sides throughout all the court appearances,” the judge said. “It has to a very significant extent curtailed the ability and the willingness of the social workers to countenance an alternative to full Care Orders. It is deeply regrettable that this should be the case as it has greatly prolonged these proceedings.”

Referring to the breach in the access agreement in August and the trawl of the couple’s text messages carried out by the HSE, he said that the whole series of 2,000 text messages “do not, in the whole, support the sinister interpretation placed on them by the HSE,” though they did support the contention that the couple were at times concealing the stress they were under.

Turning to the question of the Care Orders, he said he was satisfied the threshold had been met with regard to B. The position with regard to A was more complex, as he had not been physically harmed. The suggestion by the HSE that he had been shouted at by his father and may have been present during arguments went “nowhere near establishing that the threshold under [the Act] had been reached.” In fact the evidence was that he was receiving excellent care from his parents and current carer. The main argument that he was at risk was the injuries suffered by B.

Counsel for the mother had referred to an English case where the Supreme Court found that the fact that a mother was one of two parents who may, in a previous relationship, have injured her child leading to his death, did not amount to proof of likely harm to a new baby born in a new relationship. However, that case was different in that in this case either or both of the parents had been found to have caused the injuries to B and there were no other possible perpetrators.

In this case “I have found that B suffered harm, that it was non-accidental, and that either or both of the parents” caused the harm. On this basis he believed that the threshold had been reached in the case of A also.

Turning to the question of the duration of such orders, he referred to evidence given by the guardian ad litem, who had strongly advocated the Resolutions Approach in this case, which was based on a series of phases, each of which must be negotiated successfully before moving on to the next. The children’s safety could be protected until the completion of the process.

The GAL had also stressed that the risks to the children in this case if moved to foster care were substantial. They were doing very well at the moment, and there were difficulties in placing children with special needs in care, with frequent breakdowns in placements. He did not see the sort of features in this case that would warrant Care Orders until the children were 18, and so concluded by making them for a year, subject to his directions.