Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and Evie and Grace [2023] NSWChC 1 Hearing dates: 18, 19, 20, 21, 22, 25, 27 July 2022, 15 November 2022, 12 December 2022 Date of orders: 13 February 2023 Decision date: 13 February 2023 Jurisdiction: Care and protection Before: Judge Ellen Skinner, President of the Children's Court Decision: There is a realistic possibility of restoration of the child to the mother and father within a reasonable period. Catchwords: CHILDREN – Care and Protection – unexplained injuries – assessment of risk – realistic possibility of restoration Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: Bell-Collins Children v Secretary, Department of Family and Community Services (No. 2) [2016] NSWSC 853 DCJ and Bloom (2021) NSW ChC 2 Isles & Nelissen (2021) FedCFamC1F 295 Napier & Hepburn (2006) FamCA 1316 M v M (1988) HCA 68 SS v Department of Human Services (NSW) [2010] NSWDC 279 T v H & Ors [1985] NSWSC Category: Principal judgment Parties: Secretary, Department of Communities and Justice Evie (Young person) Grace (Young person) The Father The Mother Representation: Solicitors: Ms Anderson – Counsel (Secretary) Ms Canning (Independent Legal Representative) Mr Nott (Mother and Father) File Number(s): 2021/344033 Publication restriction: Pseudonyms have been used for the children, family members, carers and medical professionals. JUDGMENT 1. This case requires the court to assess whether a child who has suffered unexplained injuries in the care of their parents can be restored to their parents, despite the parents failing to provide an adequate explanation for the injuries. In the extraordinary circumstances of this case restoration is in the best interests of the safety, welfare and well-being of the children. 2. What follows is a summary (paragraphs 3 – 9), the background to proceedings (paragraphs 10 – 29), an analysis of relevant law (paragraphs 30 – 50), an application of the law to the facts (paragraphs 51 – 73) and a conclusion (paragraphs 74 – 78). Summary 1. Evie and Grace ('the children') are identical twins born on 28 April 2021. On 22 November 2021 their parents presented Evie to Westmead Children's hospital for an x-ray which revealed a fracture to Evie's right arm. Further tests revealed that both the children had healing fractures at multiple sites. The children's parents, the Mother and the Father ('the parents'), were unable to provide an explanation for the injuries and on 30 November 2021 the children were assumed into care and placed with their maternal great aunt. 2. The Mother and the Father denied causing injuries to the children and the matter was listed for an establishment hearing on 18 July 2022. Following four days of evidence the parents made a concession, without admissions, and the court made a finding that it was satisfied the children were in need of care for the reason that the children had been physically abused, pursuant to ground 71(1)(c) of the Children and Young Persons (Care and Protection) Act 1998. 3. As a consequence of this concession the parents did not give evidence. Neither parent has taken responsibility for causing injuries nor provided an adequate explanation. None of the medical experts proffered an opinion about the likely cause of the injuries. Accordingly, the factors that led to the infliction of harm have not been identified. In order to mitigate the risk of future harm the court is unable to direct services to address actual risks and can only consider general risks and the availability of support, supervision and oversight of people who will act protectively towards the children by reporting any concerns about future risks. 4. The Department filed a care plan on 7 November 2022. The Secretary has assessed that there is a realistic possibility of the restoration of the children to the care of their parents. 5. The Care Plan proposes: 1. All aspects of parental responsibility for the children be allocated to the Minister for a period of 12 months. 2. At the conclusion of order 1 the children are placed under the supervision of the Secretary for a period of 12 months. 3. The parents provide undertakings directed towards ensuring the parents co-operate with the Department and advise the Department of information that is relevant to the care of the children during the two years in which the Department remains formally involved with the family. 4. S 82 reports be provided at five months and eleven months and s 76 reports be provided at 17 months and 23 months. 1. The parents support the care plan. They remain together and want the children restored to their care. The independent legal representative for Evie and Grace, Ms Canning, maintains concerns about the risk of unacceptable harm to the children if they are restored to their parents. 2. I am satisfied there is a realistic possibility of the restoration of the children to their parents within a reasonable period and that permanency planning has been appropriately and adequately addressed. The children will be restored to their parents in accordance with the Care Plan. Background 1. On 22 November 2021 Evie's parents presented her to Westmead Children's hospital for an x-ray of her right arm. The Father told medical staff that on Friday 19 November Evie had become upset after rolling awkwardly on her arm. The Father contacted his wife, a general practitioner, and advised of the incident but reported that Evie was no longer distressed so they agreed to monitor Evie over the weekend. 2. That evening the Mother returned from work and assessed Evie's arm. She asked her brother, the maternal uncle, also a general practitioner, to look at Evie's arm. Evie's parents and her uncle agreed to keep monitoring Evie's condition. 3. On Sunday 21 November Evie had reduced the use of her arm and the parents and the maternal uncle observed bruising and swelling. The parents agreed to take Evie to Westmead Children's hospital on Monday 22 November for an x-ray. 4. Upon Evie's presentation to Westmead, she underwent a scan which revealed a transverse fracture to Evie's right humerus. The family was referred to the Child Protection Unit (CPU) for assessment. Additional scans revealed Evie had healing fractures to her right clavicle, right radius bone, left femur and seven ribs. Concern about the extent of Evie's injuries caused the CPU to assess Grace. Grace's scans revealed healing fractures to Grace's right radius bone, left tibia and three ribs. The fractures to both children appeared to be at different stages of healing indicating they had occurred at different times. 5. The Mother and the Father were unable to provide an explanation for the multiple fractures to both children. The children were assumed into care on 30 November and upon their discharge from hospital on 3 December they were placed with their maternal great aunt. 6. The Secretary sought establishment on ground 71(1)(c) and the finding was supported by the children's independent legal representative. The parents denied causing injury to the children and contested establishment. The matter was listed for a ten day establishment hearing commencing on 18 July 2022. 7. The Secretary relied on the evidence of CPU medical experts to prove that it was more probable that the injuries were sustained through an external cause, such as abuse or neglect, than through an organic cause, such as a bone fragility condition. The parents relied on expert evidence regarding the presentation of bone fragility in children and the factors that cause bone fragility. Identical twins are exposed to the same pre-natal environmental factors and have almost identical genes such that a bone fragility condition would be likely to present in both girls. 8. A child with bone fragility may be harmed despite ordinary or careful handling and the child may not be in need of care and protection if the child's parents are aware of the condition and are able to meet the medical needs of the child. 9. Initially, the parents' medical experts did not agree on the interpretation of scans regarding the injuries that were identified by the CPU experts. The parents have since accepted that the children's injuries are as detailed by Dr A in his affidavit dated 15 July 2021. The injuries are set out in a table below: Evie's injuries: Status Type Location Simple a. Acute Fracture Right humerus Upper arm b. Old healing Fracture Right clavicle Collarbone c. Old healed Fracture Right radius bone Forearm d. Old healed Fracture Left femur Thigh e. Multiple and bilateral rib fractures of the chest i. Healed Fracture Left 3rd rib posteriorly ii. Healed Fracture Left 4th rib posterior iii. Healed Fracture Left 4th rib posterolateral iv. Healed Fracture Left 5th rib posterior v. Healing Fracture Left 5th rib posterolateral vi. Healing Fracture Left 6th rib posterior vii. Healed Fracture Left 6th rib anterior viii. Healed Fracture Left 7th rib posterolateral ix. Healed Fracture Left 7th rib lateral x. Healed Fracture Left 9th rib posterior xi. Healed Fracture Left 9th rib posterolateral xii. Healed Mild sclerosis and expansion Right 4th rib posteriorly xiii. Healed Fracture Right 5th rib posteriorly xiv. Healed Fracture Right 6th rib posteriorly xv. Healed Fracture Right 7th rib posteriorly xvi. Healed Fracture Right 9th rib posteriorly xvii. Healed Fracture Right 10th rib posterolaterally Grace's injuries: Status Type Location Simple a. Healed Fracture Right radius Forearm b. Healed Fracture Left tibia Lower leg c. Healing Fracture Right 11th rib posterior Rib d. - Bone injuries Right 3rd and 10th rib posteriorly Ribs 1. The Department relied on the evidence of Dr A (Forensic Paediatrician), Dr T (Paediatric Clinical Geneticist), Dr H (Paediatric Radiologist), Dr L (Paediatric Genetic Radiologist), Professor D (Paediatric Endocrinologist) and Associate Professor W (Paediatric Endocrinologist). 2. The Department's experts either worked with the CPU or had worked with the CPU at the time Evie attended the hospital. After the children presented to Westmead the CPU convened joint consultations of experts regarding the presentation of the children and their test results to assess whether the children required a child protection response. None of the Secretary's witnesses could give an explanation (by way of medical diagnosis or through describing the likely manner in which force was applied) for the fractures. 3. Dr A was asked to consider the test results and indicate what he would expect to see in a child who had been neglected or abused when compared with the presentation of a child who suffered a bone fragility condition. Dr A stated that the transverse fracture to Evie's right humerus would ordinarily require 'bending of the bone or direct impact causing angulation'. Dr A accepted that a transverse fracture could possibly be caused by a rolling injury but said it was unlikely to be the mechanism that caused the fracture. 4. Dr A gave evidence that children who have a bone fragility condition have a predilection towards sustaining injuries in otherwise safe care environments. Neither Evie nor Grace had suffered an injury since being removed from their home, indicating the cause of harm was more likely to be their environment than a bone fragility condition. 5. It is noted that since the parents became aware of the fractures, they researched guidelines for safe handling of children with bone fragility conditions. Those guidelines were provided to the children's carers and the parents funded appropriate cushioning and supports during the period the children were in care. 6. The parents relied on the expertise of Professor B (Consultant Emeritus; Clinical Geneticist), Dr G (Clinical Molecular Geneticist), Dr X (Paediatric Orthopaedics and Scoliosis), Professor K (Director Ehlers Danlos Clinical Research Program) and Dr S (Radiologist). These experts gave evidence about the likelihood of fractures being caused by an undiagnosed condition such as Rickets, Osteogenesis Imperfecta, or Ehlers Danlos syndrome or as a result of a temporary brittle bone condition due to a Vitamin D deficiency. 7. Dr B and Dr L advised the parents that a more comprehensive genetic test could be undertaken through comparing the genomes of the parents and the children. The parents provided blood samples for testing but the screen did not reveal any genetic variations that are known to correlate with a bone fragility condition. 8. The parents' experts reached inconsistent conclusions about the interpretation of test results and the likely cause of the fractures. The parents indicated a preference for the evidence of Professor B. Professor B gave evidence that an infant could sustain a transverse fracture by rolling on their arm but concluded the other test results did not support the diagnosis of either a temporary or permanent bone fragility condition at the time the fractures occurred. 9. The parents intended to give evidence. I intervened and indicated that even if the court accepted they were persons of good character who were unlikely to cause harm to their children it would be difficult to give a character finding more weight than the expert medical evidence. 10. As the matter was listed for establishment the only issue to be resolved was whether the children were in need of care and protection. The parents did not give evidence and made a concession, without admissions, that the children were in need of care and protection. The matter was established. There has been no placement hearing such that my intervention prevented the parents from addressing issues relevant to restoration and permanency planning such as risk factors, insight, future risk to the children and opportunities or efforts that had been made or can be made to mitigate any risk. 11. A consolidated establishment and placement hearing may have been more appropriate in this matter. Despite the paucity of evidence regarding the cause of harm and the consequent inability to ameliorate future similar harm, I am satisfied the court is able to make final determinations based on filed evidence and submissions. The law 1. The court will consider the paramountcy principle and assess whether there is a realistic possibility of restoration within a reasonable period having determined whether restoration presents an unacceptable risk of harm to the children. In making this determination the court will consider the s 9(2) principles, the permanent placement principles and the Secretary's permanency plan. 2. S 9(1) provides that in any action or decision concerning a child or young person the safety, welfare and well-being of the child or young person are paramount. 3. S 83 provides that where the Secretary applies to the Children's Court for a care order for the removal of a child the Secretary must assess whether there is a realistic possibility of the child or young person being restored to their parents within a reasonable period having regard to – 1. The circumstances of the child or young person, and 2. The evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care. 3. S 83(5) provides that the Children's Court is to determine whether to accept that assessment within 6 months after the Children's Court makes an interim order, subject to sub-s 5A. 1. In assessing whether there is a realistic possibility of restoration within a reasonable period the court is to assess whether restoration presents an "unacceptable risk to the child" M v M (1988) HCA 68 at (25). 2. Judge Johnstone in DCJ and Bloom (2021) NSW ChC 2 determined that in assessing whether there is a realistic possibility of restoration within a reasonable period the court may take into account the progress of the parents in relation to their rehabilitation, their progress in respect of gaining insight into their parenting deficiencies and their ability to satisfactorily address the issues that have led to the removal of their child (171) and that the court may also have regard to any plan that prepares, educates or assists parents in moving towards a restoration which involves for example, supports, scaffolding, treatment, training and education, provided it is viable and practicable (172). 3. The Secretary is to provide a permanency plan with regard to the permanent placement principles, set out in s 10A which provide (at s 10A(3)) that if it is practicable and in the best interests of a child or young person the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent or parents so as to preserve the family relationship. 4. S 84 provides that a permanency plan involving restoration must include the following: 1. A description of the minimum outcomes the Secretary believes must be achieved before it would be safe for the child or young person to return to his or her parents, 2. Details of the services the Department is able to provide, or to arrange the provision of, to the child or young person or his or her family in order to facilitate restoration, 3. Details of other services that the Children's Court could request other government departments or funded non-government agencies to provide to the child or young person or his or her family in order to facilitate restoration, 4. A statement of the length of time during which restoration should be actively pursued. 1. The information provided by the Secretary in the permanency plan assists the court in assessing whether there is an unacceptable risk of harm to the children. 2. The Children's Court regularly makes assessments of risk and attempts to distinguish between acceptable risk and unacceptable risk. In an ordinary day most people will be exposed to a low risk of serious harm and a high risk of minor harm. Risk cannot be eliminated. Unfortunately, some children have experienced serious harm and / or are exposed to a high risk of serious harm and in those circumstances the court must intervene to protect them from further harm. 3. The science of medicine is not absolute. There is a possibility that the twins had a temporary bone fragility condition that was not detected through existing medical tests. The court must proceed to assess risk based on a finding, on the balance of probabilities, that the fractures were caused by external factors, most likely a parent. 4. A finding of harm (irrespective of cause) is not required to determine future risk of harm. The High Court observed in M v M that reaching a positive finding that abuse has occurred is not always possible, nor is it always desirable. Furthermore, evidence of past abuse is not the only predictive factor when assessing future risk to a child. 5. In this case there has been a finding of probable harm. The fractures were sustained during the six months between birth and Evie's presentation to Westmead. Evie presented with an acute injury to her right humerus consistent with an injury that occurred a few days prior to her hospital attendance. The Mother had been the primary carer for the children during a period of maternity leave but had returned to work shortly before Evie's arm was injured. Evie's injury occurred while she was in the care of her Father, making it more likely that the Father caused or contributed to the injury. As Dr A did not accept the Father's explanation that Evie rolling on her arm was the mechanism that caused the injury there is a concern that the Father contributed to the injury to Evie's arm then concealed his role. It follows that if he was implicated in injuring Evie's arm he may be responsible for the other fractures and there would be a risk of further harm to the children if restored to the Father. As both parents had been the primary carers for the children from birth during the period the fractures were sustained there remains a possibility that restoration to the Mother could also present a risk of harm. 6. The decision of McGuire J in Isles & Nelissen (2021) FedCFamC1F 295 was upheld on appeal. The relevant extracts from McGuire J's judgment include: "The notion of 'an unacceptable risk,' is, however, a predictive or prospective exercise for the Court in determining whether there is a 'risk' into the future; the magnitude of that risk; and whether there are tools or circumstances to adequately mitigate that risk." (60) "Nevertheless, and where the overall consideration for the Court is the best interests of children including their safety and welfare, the notion of the 'unacceptable risk' assumes critical consideration and an inability to make a positive finding does not impede a determination of unacceptable risk. Suffice to say that a conclusion of there being unacceptable risk may be had from the cumulative consideration of factors where each individually might not be proved to the requisite standard. As mentioned above, however, this is not to be a 'default' position by the Court but one requiring active and discrete consideration including as to the implications of a finding of unacceptable risk which will almost inevitably impact on the relationship between the child and parent." (213) "Ultimately, this Court's focus is not on guilt or innocence but on the best interests of the children. The considerations and findings above are in respect of alleged past acts or behaviour. It remains for me to conduct a separate and predictive consideration as to risk where the focus is on the adjective 'unacceptable'. In doing so, however, I again consider and weigh past and current evidence and facts including tendency evidence. I am able to reach a conclusion of unacceptable risk on a cumulative consideration but without the restriction of particular findings on the balance of probabilities. Rather, the consideration here is as to "possibilities" in a prospective sense. This is not to be considered as a 'default consideration' where a court is unable to make a positive finding of fact but one carried out discretely, separately and independently with the focus being on future risk rather than past fact." (267) 1. Policy and practical reasons support the line of authority that unless a parent identifies the cause of harm, accepts responsibility for the harm and addresses the factors that led to the harm, the risk of further harm to a child will be unacceptable and a child cannot be restored. Many parents are driven by a desire to be reunited with their children and will more likely be transparent with the Department and the Courts if their disclosure of the cause of harm increases the likelihood of the restoration of their children. Practically, disclosure enables targeted responses to address the risk factors and provide strategies to mitigate future risk. Absent this evidence it is difficult to conclude that the risk can be mitigated. 2. In T v H & Ors [1985] NSWSC (unreported 19 December 1985, at 18) Hodgson J stated: "Had there been an explanation of his injuries, the result may have been different. If the cause of the injuries was known and was acknowledged by the person responsible, one could assess the likelihood of that person acting again so as to cause the injuries. It would be possible to assess the risk involved to the plaintiff and to weigh that against the advantages of returning the plaintiff to his parents. However, in the absence of any explanation, it is far more difficult to assess and weigh the relative advantages and disadvantages in this manner." 1. Slattery J in Bell-Collins Children v Secretary, Department of Family and Community Services (No. 2) [2016] NSWSC 853 confirmed the principle put forward in T v H & Ors, and said: "The Court cannot accept the parents' explanations for the injuries. In those circumstances, the submissions of the Secretary and the Minister and the ILR are persuasive: if the injuries cannot be explained then any children in the care of the parents will remain at risk because without knowing the cause of the injuries there is no way to mitigate the risk." (159) 1. Slattery J went on to provide that: "Unless and until the parents can explain how the injuries did occur in a way that conforms with the medical evidence, including by explaining what conduct of theirs probably contributed to the injuries, then should the children be returned to the parents' care, there will always remain an unacceptable risk of harm to them." (162) 1. In SS v Department of Human Services (NSW) [2010] NSWDC 279, Judge Johnstone (at that time sitting in the District Court hearing an appeal from the Children's Court) concluded: "...in this case there is in fact strong evidence to support the notion that the refusal, or failure, to acknowledge the abuse, leads to a comfortable satisfaction that there remains a continuing likelihood of physical abuse or ill-treatment, in respect of [subject children]. That evidence, in my view, accords with common sense." 1. In contrast, in Napier & Hepburn (2006) FamCA 1316 Bryant CJ and Kay R stated "We find it difficult to understand how those factors, without a further explanation by the trial judge, could safely lead the trial judge to conclude that there was an unacceptable risk of abuse. In order to reach that conclusion the trial judge needed to evaluate not only the seriousness of the behaviour if it occurs, that is that the behaviour would be unacceptable, but also the risk that the behaviour is likely to occur… What potential there was for these events to continue to occur if they had previously occurred in the past, might well be diminished by the bright lights that have been shone upon the parties and their conduct, in the course of these proceedings." (82) 1. Bryant CJ and Kay J drew attention to the factors that might reduce the risk, such as the other parent being alert to the potential for harm to a child, the ability of a child to protect themselves, and the parent's awareness that they were under scrutiny. They stated: "There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper." (84) 1. Where there are identified risks of harm to children the Court is to consider whether the level of risk and / or level of harm can be reduced to an acceptable level of risk of harm. The risk of physical harm is easier to assess than the risk of psychological harm. 2. Physical harm is likely to present at a time proximate to an injury whereas psychological harm may not manifest for years. Every child who is displaced from their home environment will experience some level of psychological harm. The risk of psychological harm must be balanced against the risk of both physical and psychological harm if the children remain in their home environment. Applying the law to the facts 1. Practically, there are a range of factors that may influence an assessment of base risk and factors that may increase or reduce that risk to enable an assessment of actual risk. Actual risk is the balance between the likelihood of harm and the seriousness of the harm. It may be clearer to refer to an assessment of actual risk as a safety assessment. A child is safe if they will not be exposed to an unacceptable risk of harm in their care environment. 2. A non-exhaustive list of factors in assessing safety include: 1. The nature and seriousness of the injury. 2. The circumstances in which injury was observed and response of primary carer. (Did they respond appropriately? Was their explanation consistent with medical evidence?) 3. The cause of the injury – who caused the injury (or who had an opportunity to cause the injury) and how did the injury occur? 4. The factors underlying the conduct that caused the injury. 5. The resulting impairment to the child and whether the child requires specialist medical or home care. 6. The ability of the carer to address the factors that caused the injury, the access to services to address those factors and the demonstrated commitment of the carer towards addressing those factors. 7. The ability of the carer to meet the needs of the child. 8. The visibility of the child within the home and beyond the home and ability of observers to respond appropriately to escalating risk factors or evidence of further harm. 9. The ability and willingness of the carer/s to comply with directions, engage with services and communicate with services when relevant factors change (housing instability, new partner, additional children etc) 10. The age, capacity and vulnerability of the child and their ability to protect themselves from harm or seek assistance when risk factors increase. 11. The likely gravity of future harm. 12. The psychological harm that is likely to be experienced by a child who remains with their parent / carer following injury, is restored to their parent / carer or is displaced from their parent / carer and raised in out of home care. 1. An application of those factors to this case leads to the following conclusions: 1. The children sustained fractures that have healed. The most probable cause was the application of excessive force by a parent. 2. The presenting injury was immediately reported to the Mother, reviewed by the uncle, and assessed by the parents and uncle leading to the parents presenting the child to hospital for review. In my view this was an appropriate response. Parents who present injured children to hospital are able to prioritise the well-being of the child over any concern that they may be held responsible for the harm. Despite this, the explanation is not consistent with the medical evidence leading to a concern that the use of excessive force has been concealed. 3. The cause of the injuries are unknown but a parent is the most likely perpetrator of harm. 4. There are no factors that indicate the children may be at risk of harm. The parents do not use drugs or alcohol. They do not have an untreated or untreatable mental illness and have not been diagnosed with any cognitive impairments or personality disorders. There is no reported domestic or family violence in the relationship. The parents do not have criminal records. The parents housing and income are stable. The parents and children are well-supported by family and friends. 5. The injuries have healed. The children are developmentally advanced and do not require specialist care. 6. The parents are intelligent, educated and engaged with services as recommended by the Department. They have made the children available for medical assessments and reviews and have personally undertaken medical tests in search of a medical explanation for the injuries. The parents have both attended upon psychologists to address concerns about their capacity to support their children. 7. The risk of physical harm is a concern that arises from the history of unexplained injuries. The children do not have special needs and the parents have the parenting capacity to meet their needs. 8. It is highly unlikely that the injuries were caused by both parents. This is a situation where exposure of the harm will cause both parents to reflect on the way they have handled the children and to closely observe the other when handling the children. The children's maternal uncle and grandparents will remain connected to the children and are alert to any signs of physical distress. The children attend childcare three days each week and are supported by a nanny. While the children are under the supervision of the Department there will be oversight of their presentation to the nanny, their attendance at childcare and their medical records. Each parent, members of the extended family, child-carers and medical professionals are well-placed to report any concerns before the children are exposed to a risk of grave harm. 9. The parents have been compliant, engaged, communicative and child-focused. As there was no explanation for the injuries there are no identified risk factors specific to this family. The support of the extended family will provide scaffolding in the event the parents' personal circumstances change. 10. The children will be two years old in April and remain vulnerable to physical harm but their vulnerability will decrease with age. They have started to talk but are not yet capable of reporting harm. 11. The children are loved by their parents. The children were conceived using in vitro fertilisation 18 months after the parents planned to have children. There is no evidence of specific risks, the risks relate solely to the previous unexplained injuries. The risk of future harm is of a child being subjected to excessive force and injured. The risk of grave harm is low. 12. There is no evidence the children have been psychologically harmed by their injuries or the conduct that caused the injuries. There is a risk that in the future the children will be distressed to learn that they sustained fractures in the care of their parents. The children currently have a close relationship with their parents. Restoration is unlikely to cause trauma or psychological harm whereas ongoing displacement from the home may have psychological consequences. 1. In these proceedings, after the Court made the finding that the children were in need of care and protection the parties were referred to a Dispute Resolution Conference with an experienced Children's Registrar to discuss interim placement and contact. 2. The parties returned to court with a proposal that the Mother and the children return to the family home and the Father live separately but have regular contact supervised by maternal family members. The maternal uncle and maternal grandmother, who are both general practitioners, promised to supervise the children whenever the children were in the care of their parents. 3. The relationship between the Mother and the Father was observably close during the hearing and the Father has a good relationship with maternal family members. The Father was born in England and his family are in England. The interim proposal provided for a qualified general practitioner, albeit a member of the maternal family, to have oversight of the children at all times the children were in the care of the Mother. Separating the Mother and the Father would have impacted the children due to the cost of displacing the Father and the stress on the relationship of parents who have been primary supports to each other through the period the children were in care. 4. An interim order was made allowing both parents and their children to return home, pursuant to undertakings that the parents would not be caring for the children in the home without the presence of the maternal grandmother or maternal uncle. 5. The independent legal representative expressed legitimate concerns regarding risks to the children during the period of the interim orders. These risks are equally relevant when assessing placement on an interim basis as they are when assessing whether there is a realistic possibility of the restoration of the children to the care of their parents pursuant to a final order. 6. Ms Canning identified risk to the children due to the failure of the parents to acknowledge the cause of harm, their lack of insight into the likely cause of harm, a concern that the risk could not be mitigated without acknowledgement of the cause of harm, the resultant inability to address risk factors to prevent future harm as well as the harm to the children if the Father was allowed to return home on an interim basis then excluded from the home pursuant to final orders. 7. The decision to make interim orders enabling the parents to return as shared carers in the family home was made following an assessment of risk. The children suffered unexplained fractures at multiple sites on different occasions while in the care of their parents. Returning the children to their parents presented a moderate risk of further injury. Although serious, the fractures that were sustained did not cause the children such distress or dysfunction that close family members or medical practitioners noticed any harm prior to the fracture to Evie's arm. Both children had been assessed by Dr M (General Paediatrician) and they had seen Dr F (Orthopaedic Surgeon) for developmental dysplasia of the hip (DDH), leading to a correction of Grace's hip through the use of a harness. Neither doctor had raised any concerns about potential abuse. 8. The fractures have now healed and there is no permanent impairment to either child. Interim arrangements to return the parents as carers needed to ensure there was minimal risk of physical harm while considering the psychological well-being of the children. 9. This is an unusually well-qualified family for identifying and responding to physical harm. The mother, her brother, and both their parents are general medical practitioners. They are a close family, as evidenced by the maternal uncle and grandmother's willingness to supervise the parents return to their home. This supervision increased visibility of the children's physical health within the extended family. The children were enrolled in day care and had a part-time in-home carer which increased visibility of the well-being of the children within the community. The Department was to maintain a role in supervising the children through regular communication with the parents, the extended family, the nanny, the child-care facility and medical practitioners. 10. Since Evie's presentation to Westmead the parents and the maternal extended family have been accessible, communicative, compliant, focused on the health and well-being of their children and motivated towards restoration. This transparency indicated the undertakings were likely to be honoured which significantly reduced the risk of physical harm. 11. The remaining concern was whether there was a risk of psychological harm if the children were returned to their parents' home on an interim basis, only for a final order allocating parental responsibility to an alternate carer or the Minister. 12. The children were with alternate carers from December 2021 to July 2022. In alternate care the attachment between children and their parents can be damaged and children can form attachments with their carers. The experiences of a child's attachments can have a lasting impact on their capacity to relate to others. The Children's Court endeavours to make decisions about infants within 6 months of making interim orders to minimise the impact that disrupted attachments can have on children. 13. Infants are challenging for their primary carers as they need constant care and attention. Dr A gave evidence that twins are more likely to be harmed than single children. Displacing a child from their home puts pressure on carers whose lives are interrupted by their commitment to providing a safe home for a child and that pressure must increase when caring for multiple children. Those tensions impact the children. Extended family members provided a safe and caring environment for the children, but the extended family supported the children being safely restored to their parents. If the children remained in care they would probably reside with their extended family but if there was a prospect that the children would be restored to their parents it was desirable for the restoration to occur as soon as restoration was deemed safe. 14. The interim order had sufficient safeguards to enable the parents to care for the children without exposing the children to an unacceptable risk of physical or psychological harm. The terms of the interim order that enabled the parents to care for the children would not have been enacted if there was no prospect of the children being restored to their parents. The interim period has ensured the children maintain and develop their attachment to their parents to reduce the risk of long-term psychological disruption while providing the court with an opportunity to assess the capacity of the parents to safely care for their children. 15. The parents have been residing with their children since July 2022. During this time psychologist Beth Murray-Roach has assessed whether it is in the best interests of the safety, welfare and well-being of the children to be restored to their parents. 16. Ms Murray-Roach's opinion was drawn from a review of the evidence, an assessment of the children with their parents, a psychological assessment of both parents, and updating information to reflect that the parents had both completed the Circle of Security, the Mother maintained regular appointments with her psychologist, and the Father had attended two sessions with a psychologist until the psychologist advised that he already implemented appropriate stress management techniques such that further engagement was not required. 17. Ms Murray-Roach reported that the parents do not take full responsibility for the children's injuries but suggests the parents accept the injuries were either a non-accidental injury or they were caused by a medical condition. 18. Ms Murray-Roach commented that despite their failure to take responsibility for causing any injuries, both parents had been open to considering the medical evidence about how the injuries were caused. Ms Murray-Roach ultimately recommended that the children be restored to their parents as the parents had displayed a willingness to explain how the injuries were caused, they had positive parenting capacity and showed a willingness to adjust how they cared for their children. Ms Murray-Roach recommended that the children and parents would benefit from the ongoing support of the Mother's family. Ms Murray-Roach qualified her recommendation by stating that if it came to light that one of the parents caused harm she would recommend the children be restored to the non-offending parent but finally concluded that the recommendation of restoration remained, even if the parents did cause the harm, as the parents showed positive prognostic factors to support change. 19. The parents have recently facilitated a medical review of the children. The doctors reported that the children are developmentally advanced and in good health. Nothing on a physical examination suggests bruising or injury and there is a recommendation that the children be reviewed in August and subject to a bone mineral density test when they turn three. The parents' engagement with medical services mitigates the risk of future harm as it relates to the more probable risk of external force causing injury but also the possibility that the children are predisposed towards injury. In my view, the comments of Bryant CJ and Kay J in Napier & Hepburn have relevance with respect to the future risk of harm to the children as at the time the children presented to hospital their parents were unaware of the extent of their injuries. The conduct that caused the injuries involved the use of a force that exceeded the strength of the bone. The parents and the maternal family are now alert to the risk of injury and this attention will reduce the risk of harm. I am satisfied that the parents are likely able to satisfactorily address the issues that caused their children to enter care. Conclusion 1. The court is required to apply legislative considerations to the circumstances of these children and assess what outcome will be in the best interests of their safety, welfare and well-being. In many ways, this requires the court to synthesise the principles of the Act, the permanency planning principles, the permanency plan and the risk factors in assessing whether there is an unacceptable risk of harm to the children if restored to their parents. 2. As stated earlier, risk cannot be eliminated. The court must give due weight to the impact of removal on children and endorse permanency plans that provide adequate supports and oversight for children to be restored to their parent/s. No home is without risk but the home of a parent offers a place where a child connects and belongs. Active efforts should be made to provide parents with supports and services to ensure children can remain at home or be restored to their home without exposing any children to an unacceptable risk of harm. 3. The Care Plans filed on 7 November 2022 address the s 84 requirements and provide for a staged withdrawal of extended family from the home while the Department and Mackillop maintain regular home visits. 4. Although the parents have not provided an adequate explanation for the injuries I am satisfied that the risk of harm has been sufficiently mitigated such that the children are likely to be safe in the care of their parents. The best interests of the safety, welfare and well-being of the children will be addressed by the children being restored to the care of their parents. 5. This has been an unusual and difficult case and I am grateful to the parties for the pragmatic and collaborative manner in which they identified the key issues and progressed the resolution of the matter. The benefit of preparation, communication and efficiency flows to the children who are subject of the proceedings and to all other children who have matters pending before the court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2023