The Secretary, Department of Family and Community Services and the Harper Children [2016] NSWChC 3
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Children's Court
New South Wales
Medium Neutral Citation: The Secretary, Department of Family and Community Services and the Harper Children [2016] NSWChC 3
Hearing dates: 8, 9, 10, 11, 12, 15, 16, 18, 19, 22, 23, 24, 25, & 26 April 2016
Date of orders: 08 July 2016
Decision date: 08 July 2016
Jurisdiction: Care and protection
Before: Judge Peter Johnstone, President of the Children's Court of New South Wales
Decision: There is no realistic possibility of restoration of the children to their mother; there is a realistic possibility of restoration of the children to their father; permanency planning approved
Catchwords: CHILDREN - Care and Protection - realistic possibility of restoration - permanency planning - placement - allocation of parental responsibility
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Cases Cited: Blinko and Blinko [2015] FamCAFC 146
Briginshaw v Briginshaw [1938] HCA 34
DFaCS (NSW) re Oscar [2013] NSWChC 1
DFaCS (NSW) and the Colt Children [2013]
NSWChC 5
Community Services; Re "Sophie" [2008] NSWCA 250
Director General of Department of Community Services; Re "Sophie" [2008] NSWCA 250
In the matter of Campbell [2011] NSWSC 761
JL v Secretary, Department of family and Community Services [2015] NSWCA 88
Johnson v Page [2007] Fam CA 1235
M v M [1988] HCA
N v S (1996) FLC 92-655
Napier v Hepburn [2006] FamCA 1316
Re Tanya [2016] NSWSC 794 at [70].
Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89
Category: Principal judgment
Parties: The Secretary, Department of Family and Community Services NSW (DFaCS)
The Harper Children
The Mother
The Father
Representation: Ms M Neville, of counsel, instructed by
Mr H Patterson, solicitor, for the Secretary
Mr Anderson, of counsel, instructed by Ms A Schrale, solicitor, for the mother
The father, in person, unrepresented
Ms L Miller, solicitor, as the Independent Legal Representative for the children
File Number(s): 2014/547-550
Publication restriction: Pseudonyms have been used in order to anonymise the children and parties.
Judgment
Reasons for Decision
The nature of the proceedings and the principal issues
1. These proceedings concern the four Harper children, Dylan (10), Blake (9), Clare (8) and Aiden (4) who were removed from their mother on 2 October 2014 by the Secretary of the Department of Family and Community Services (DFaCS) pursuant to the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) following an episode in Westmead Children's Hospital when Dylan developed sepsis and nearly died. Medical opinion was that the sepsis had occurred as a result of the introduction of deliberate contamination to Dylan's blood through the injection of faecal or decaying material via an intravenous line.
2. The father of the children is currently caring for them. The maternal grandparents have also been playing a significant role in the lives of the children in caring initially for three of the children, and then providing assistance when subsequently all four children came into the care of their father, including the supervision of the contact visits by the children with their mother.
3. Following the commencement of these proceedings, the Children's Court made a finding on 12 December 2014 that the children were in need of care and protection (s 71 of the Care Act).
4. Before the Court now, for its consideration and determination, is the permanency planning for the children's future. The planning proposed by the Secretary is contained in amended Care Plans filed by the Secretary in December 2015. The Secretary has made an assessment that there is no realistic possibility of restoration of the children to their mother, and that the children should be restored to their father, and placed permanently with him under his sole parental responsibility till they turn 18. It is proposed that the children have contact with the mother, but that such contact should continue to be supervised.
5. The mother opposes the permanency planning and asks the Court to find that there is a realistic possibility of the children being restored to her. She seeks placement of the children into her care, under her sole parental responsibility till they turn 18.
6. The principal issues for determination are, therefore, whether there is a realistic possibility of restoration to one or other parent; the best permanent placement for the children; and the allocation of parental responsibility for them.
7. There are other, secondary issues, depending upon the outcome of the determination of the issues of restoration and placement, including the nature and extent of contact between the children and others significant to them.
The applicable legal framework
1. I now summarise the legislation and principles relevant to the matters for decision in this case: see also Re Tanya [2016] NSWSC 794 at [70].
2. These are child protection proceedings governed by the Care Act. Decisions in the proceedings are to be made consistently with the objects, provisions and principles provided for in that Act and, if relevant, with the provisions of the United Nations Convention on the Rights of the Child 1989 (CROC) see Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at 264] - [268].
3. There was no suggestion that this Court needed to take into account any provision in CROC in the present case such that there was some different requirement, some additional principle, or some gloss that required the Court to have particular regard to in determining this case, such that I was required to go beyond the Care Act and the case law interpreting that Act and the relevant provisions, or in the consideration of the permanency planning proposed.
4. The Care Act is required to be administered under the principle that the safety, welfare, and well-being of the children are paramount (the paramount concern): s 9(1) of the Care Act. This is often referred to as the paramountcy principle, and it prevails over all other considerations, even where it conflicts with the rights or interests of the parents.
5. It is now well settled law that in all decisions under the Care Act 1998 involving the paramount concern for the safety, welfare and well-being of a child, including issues of removal, restoration, contact, custody and placement, the proper test to be applied is that of "unacceptable risk of harm to the child": M v M [1988] HCA 68 at [25]. Whether there is an unacceptable risk of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard: see Johnson v Page [2007] Fam CA 1235. I will discuss this test in more detail below.
6. The High Court has held that in applying the unacceptable risk of harm test it is necessary to determine firstly whether a risk of harm exists and, secondly, the magnitude of that risk, as it may be determinative of the issues involved in the particular proceedings.
7. The onus of proof is upon the Secretary. The standard of proof is on the balance of probabilities: s 93(4) of the Care Act. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved: Director-General of Department of Community Services; Re "Sophie" [2008] NSWCA 250.
8. The Court is not bound by the rules of evidence, unless it so determines: s 93(3). Nevertheless, the Court must draw its conclusions from material that is satisfactory, in the probative sense, so as to avoid decision-making that might appear capricious, arbitrary or without foundational material: JL v Secretary, Department of family and Community Services [2015] NSWCA 88 at [148].
9. Secondary to the paramountcy principle, the Care Act sets out other, particular principles to be applied in the administration of the Act. These principally are set out in s 9(2) and s 10.
10. Where relevant, there are further specific principles that are applicable in the case of Aboriginal and Torres Strait Islander children, principally set out in ss, 11, 12 and 13.
11. Some of these "secondary" principles that are of potential relevance to the present matter include the following. I paraphrase the provisions concerned:
* Wherever a child is able to form their own view, they are to be given an opportunity to express that view freely. Those views are to be given due weight in accordance with the child's developmental capacity, and the circumstances: s 9(2)(a). See also s 10.
* Account must be taken of the culture, disability, language, religion and sexuality of the child and, if relevant, those with parental responsibility for the child or young person: s 9(2)(b).
* Any action to be taken to protect the children from harm must be the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect them from harm and promote their development: s 9(2)(c).
* That any out-of-home care arrangements are to be made in a timely manner, to ensure the provision of a safe, nurturing, stable, and secure environment, recognising the children's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made s 9(2)(e).
1. Once a child or young person has been found to be in need of care and protection, it becomes the responsibility of the Secretary to prepare a Care Plan: s 78.
2. The Care Plan addresses issues such as the interim arrangements for the child; whether there is a realistic possibility of restoration; the allocation of parental responsibility: s 80(b); and permanency planning, including contact and the provision of services for the child.
3. The assessment as to whether or not there is a "realistic possibility of restoration" to a parent involves an important threshold construct which informs the planning that is to be undertaken in respect of any child, and determines whether some other course of action is appropriate, such as placement with a family member or with someone else, in foster care.
4. It is for the Secretary to make the assessment in the first instance: s 83(1). It is then for the Court to decide whether to accept that assessment: s 83(5).
5. Regard must be had to two matters:
1. the circumstances of the child or young person, and
2. able to satisfactorily address the issues that have led to the removal of the child or young person from their care.
1. There is no definition of the phrase "realistic possibility of restoration" in the Care Act. However, the principles concerning the interpretation and application of the phrase were comprehensively considered in the Supreme Court by Justice Slattery in 2011: In the matter of Campbell [2011] NSWSC 761. This decision has recently been cited with approval by the Court of Appeal: Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [44].
2. I have discussed the principles in a number of judgments including DFaCS re Oscar [2013] ChC 1 at [29] - [34]. The principles may be summarised as follows:
* A possibility is something less than a probability; that is, something that it is likely to happen. A possibility is something that may or may not happen. That said, it must be something that is not impossible.
* The concept of realistic possibility of restoration is not to be confused with the mere hope that a parent's situation may improve.
* The possibility must be 'realistic', that is, it must be real or practical. The possibility must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future'. It needs to be 'sensible' and 'commonsensical'.
* It is at the time of the determination that the Court must make the assessment. It must be a realistic possibility at that time, not merely a future possibility.
* It is going too far to read into the expression a requirement that a parent must always at the time of hearing have demonstrated participation in a program with some significant "runs on the board": In the matter of Campbell [2011] NSWSC 761 at [56].
* There are two limbs to the requirements for assessing whether there is a realistic possibility of restoration. The first requires a consideration of the circumstances of the child or young person. The second requires a consideration of whether the parent(s) 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.
* The determination must be undertaken in the context of the totality of the Care Act, in particular the objects set out in s 8 and other principles to be applied in its administration, including the notion of unacceptable risk of harm.
1. If the Court does not accept the assessment of the Secretary as to restoration, it may direct the Secretary to prepare a different permanency plan: s 83(6).
2. The Secretary is then required to address the permanency planning for the child in accordance with the decision as to restoration or otherwise: s 78.
3. Permanency planning means the making of a plan that aims to provide a child with a stable, preferably permanent, placement that offers long-term security and meets their needs.
4. The Secretary, having prepared the permanency plan, places it before the Children's Court for its consideration: s 83(2) and s 83(3). The Court may approve the permanency planning by an express finding that it has been appropriately and adequately addressed: s 83(7). Or, it may reject the permanency planning. Or it may decline to make such a finding, in which event final Care orders cannot be made.
Unacceptable risk of harm
1. Central to the determination of the issues in the present case is the application of the unacceptable risk of harm test formulated in the High Court decision in M v M [1988] HCA 68.
2. Counsel for the Secretary and for the mother both addressed subsequent judicial pronouncements and commentary surrounding the test in some detail in their submissions, which I will now endeavour to adequately summarise.
3. The particular factual scenario in M v M involved allegations of sexual harm to the children the subject of the proceedings. It is now well established that "unacceptable risk" does not arise solely in respect of allegations of physical or sexual abuse.
4. It can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: DFaCS (NSW) and the Colt Children [2013] NSWChC 5 at [146] - [149].
5. The High Court observed that efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations, and the courts are striving for a greater degree of definition than the subject is capable of yielding:
[25] "The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B v B (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse."
1. The concept of the balancing exercise is further addressed as follows:
[20] "The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464."
1. Importantly in the present context, the High Court also observed in M v M that reaching a positive finding that abuse has occurred is not always possible, nor is it always desirable, noting that there may be strong practical family reasons to refrain from making a finding:
[23] "No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so."
1. The submissions then refer to a paper prepared by the Hon John Fogarty AM entitled "Unacceptable Risk: A Return to Basics". In that paper, he outlined a 7 point summary of the principles emerging from M v M. That summary was endorsed by the Full Court of the Family Court of Australia in Johnson v Page [2007] FamCA 1235 (at [68] and [71]). The summary is as follows:
1. The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2. The nature of the risk is best expressed by the term 'unacceptable risk'. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3. Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4. The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5. The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6. The onus of proof in reaching that conclusion is the ordinary civil standard.
7. But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
1. The written submissions refer also to a decision by the majority of the Full Court of the Family Court in Napier v Hepburn [2006] FamCA 1316 "where it was held that failure to reject an allegation as groundless does not mean that inevitably there is an unacceptable risk of harm".
2. In Napier v Hepburn the strenuous denials by the impugned parent were implicitly rejected but no reasons were given for rejection of those denials. The court there also considered and extracted with approval part of Justice Fogarty's dissenting judgment in N v S (1996) FLC 92-655 at 82,713 who was the author of the paper referred to with approval in Johnson v Page [2007] FamCA 1235:
[84] "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."
1. It was submitted that the following extract from the judgment by his Honour Justice Fogarty referred to and extracted with approval in Napier v Hepburn reflects an appropriate method to assist the determination of whether there exists an unacceptable risk:
[56] "In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of 'unacceptable risk' must be assessed in light of the grave consequences of sexual abuse to a child's development, as well as the effects of future contact with the party."
1. Counsel referred to a decision of the Full Court of the Family Court in Blinko and Blinko [2015] FamCAFC 146 where the appropriate approach in dealing with issues of risk and the obligation on the Court to consider whether the imposition of conditions or other safeguards would ameliorate those risks was discussed, and said that as part of assessing risk the Court should consider possible measures to ameliorate that risk:
[27] "A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because "[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of 'benefit to the child": see Hon John Fogarty AM "Unacceptable Risk – A Return to Basics" (2006) 20 Australian Journal of Family Law 249 at 261".
1. Finally, in this context, there is the important statement of principle by Sackville AJA (in the plurality) in Director General of Department of Community Services; Re "Sophie" [2008] NSWCA 250 in relation to other possibilities of the cause of harm.
2. Justice Sackville made it clear that it was not appropriate to find that the Secretary had failed to satisfy the burden of proof on the balance of probabilities simply because the Court could not exclude a hypothesis that there was some other possible cause of the harm.
3. Specifically, Justice Sackville said:
[67] "The reasoning process I have outlined involves an error of law. The primary Judge, although stating the principles governing the burden of proof correctly did not apply them correctly. It was appropriate to take into account the gravity of the allegation of sexual misconduct made against the father, as required by s 140(2) of the Evidence Act. It was not appropriate to find that the Director-General had failed to satisfy the burden of proof on the balance of probabilities simply because his Honour could not exclude a hypothesis that, although consistent with innocence, was highly improbable. To approach the fact-finding task in that way was to apply a standard of proof higher than the balance of probabilities, even taking into account the gravity of the allegation made against the father."
[68] "As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly. In the end, however, as Ipp JA observed in Dolman v Palmer at [47], the enquiry is simply whether the allegation has been proved on the balance of probabilities." (Citations omitted).
Some historical background
1. The mother is now 35. She is one of four children, she being the youngest child. She grew up in the western suburbs of Sydney and attended local primary and secondary schools.
2. She then enrolled at university for a year before studying nursing, and worked as a nurse.
3. The father is now 38. He grew up in the eastern suburbs of Sydney, where he went to primary school then secondary school. His parents split up when he was about two years old. He has an older sister. After school he worked in various jobs from the age of 15, then joined the Police Force at 24. He worked in general duties at first then studied to become a Police Prosecutor, his current position. He was promoted to the rank of Sergeant.
4. The mother and father met and commenced a relationship, moving in together in January 2003. They were married in 2004, and their four children followed in fairly quick succession. With four children under the age of 4, the family moved to live in a different location.
5. When Dylan was about 5 months old, the mother retuned to work as a nurse, part-time in the Emergency Department at a hospital. The maternal grandparents provided considerable assistance with the children. The maternal grandmother resigned her employment in April 2009 to help care for the children.
6. The parents lived together until the relationship ended in late 2013, and they separated in January 2014 when the father moved out of the home, at which time their oldest child, Dylan, was 8 years old, Blake was 7, Clare was 5, and Aiden was 4. Dylan was suffering from a brittle asthma condition, which had involved an increasing incidence of hospitalisation, Blake was suffering from autism and recurrent croup, also involving some hospitalisation, and Clare was experiencing language delay.
7. Following the separation, the mother struggled to cope with the trauma of the marital breakdown and the responsibility of caring for 4 young, demanding children with particular needs, even with the help of her parents who moved into the home in May 2014.
8. She was subsequently diagnosed as suffering from Major Depression and Dysthymia against a background of "personality vulnerabilities" and trauma, including an experience of childhood sexual abuse: Exhibit 2 (Dr Chan).
The proximate events leading to the removal of the children
1. The children were removed from the mother's care on 2 October 2014 following upon the hospitalisation of Dylan, then aged 9, a month earlier, at the Children's Hospital at Westmead (CHW), and events that occurred during that period of hospitalisation.
2. Dylan was diagnosed with asthma at age 2 and suffered from that condition throughout his childhood. He had multiple admissions to hospital and was by 2009 on doses of oral steroids. Prior to September 2014, he had had some 17 admissions to hospital related to his asthma condition.
3. He had been well known to the respiratory team at the Children's Hospital at Westmead from the age of 4, when in August 2009 he was first admitted for an asthma episode, and came under the supervision of Dr Fitzgerald, a Respiratory Physician. Thereafter he was admitted on a frequent basis to the Paediatric Intensive Care Unit for severe exacerbations, having experienced some 18 admissions over a 5 year period.
4. During that 5 year period the treating hospital staff observed Dylan as having marked behaviour problems and a complex relationship with his mother. Concerns were also expressed as to the mother, including late responses to acute asthma episodes and a tendency to treat Dylan herself without medical or nursing input from hospital staff. Treatment involved "very large doses of corticosteroids" for symptom control:
"Over time, due to Dylan's repeated presentations with asthma, and reports from his mother about persistent symptoms at home, Dylan has had increasing ramping up of his asthma management, to the point where he was put on oral steroids in high doses."
1. On 2 September 2014, Dylan presented to a general practitioner at around 9.30 am with mildly increased respiratory effort and some wheezes, but no fevers. He was alert and behaving normally, and was sent home.
2. His mother reported that about 90 minutes later, he experienced a sudden deterioration, became unsteady, confused and turned pale and blue, and then became unconscious. She administered a dose of intramuscular adrenaline, following which he regained colour and consciousness, and his breathing improved. The mother drove Dylan to the local hospital.
3. The subsequent narrative is set out in the Children's Hospital Assessment Report dated 4 December 2014 (Exhibit B):
"Presentation to the Local Hospital
On presentation to the Local Hospital emergency department (ED), Dylan had moderate work of breathing, a raised respiratory rate of 30 – 40 breaths per minute, and poor air entry in the lungs. His oxygen saturations were slightly low being 93% in room air. He was not noted to have any wheeze.
Dylan also had constricted 2mm pupils and intermittent left side myoclonic jerks, symptoms not usually associated with acute exacerbation of asthma. Dylan's mother told the staff in ED that she also noticed Dylan's myoclonic jerks en route to ED. It was unclear to the medical staff why Dylan had presented with constricted pupils and myoclonic jerks.
Dylan's mother told the staff at the Local Hospital that Dylan had complained of headaches and blurry vision at school over the preceding two weeks prior to his presentation, and that he had had vomiting for 3 days prior to presentation.
At the Local Hospital ED, Dylan was treated for acute life-threatening asthma and commenced on salbutamol infusion, magnesium sulphate, intravenous antibiotics, methylprednisone and inhaled ipratropium bromide.
Transfer to CHW PICU
Due to his severe clinical presentation, Dylan was transferred via NETS directly to the Paediatric Intensive Care Unit (PICU) at Children's Hospital at Westmead the same afternoon to receive ongoing treatment.
During the transfer and on arrival to the PICU, Dylan was noticed by medical and nursing staff to continue to have constricted 2mm pupils and intermittent myoclonic jerks, symptoms not consistent with asthma.
Dylan also had difficulty passing urine despite having 284mls of urine on his bladder scan. He was eventually able to void at around 8:30pm that evening. Dylan again complained of difficulty with voiding over the following day while in PICU. It was unclear as to why Dylan had difficulty passing urine. His symptoms were consistent with urinary retention.
Overnight in PICU Dylan remained confused and difficult to rouse. He improved the next morning and by that time was orientated and appropriate. However he continued to have intermittent myoclonic jerking of his legs on his second day of admission to PICU.
A neurology consultation was undertaken given his unusual presenting symptoms (constricted pupils, myoclonic jerks, confusion and fluctuating levels of consciousness). A lumbar puncture (LP) was performed on 3/9/14. The LP was normal and excluded encephalomeningitis (infection of the brain meninges) as the cause for his presentation. The opening pressure of the LP was 28cm H20, which was slightly high and raised the question of possible benign intracranial hypertension as a cause for some of his neurological symptoms.
A urine drug screen was sent on 3/9/14 to investigate poisoning or overdose as a cause of Dylan's presentation. The drug screen detected an "unknown peak", the significance of which is uncertain. Unfortunately this sample is no longer available for further testing and no further samples were taken at the time.
Nasopharyngeal aspirate taken on 2/9/14 was positive for rhinovirus, a virus commonly found in people with the common cold.
Dylan's other blood tests were essentially normal and in keeping with his clinical state at the time.
Dylan responded remarkably quickly to treatment of his asthma such that his salbutamol infusion was able to be ceased after about 14 hours and he was able to be discharged to the ward from PICU on Day 3. This is highly unusual for a child with a life-threatening exacerbation of asthma, however is in keeping with Dylan's previous pattern of admissions to PICU where he tended to present very unwell but recovered exceptionally quickly.
Progress on the ward from 4/9/14 to 23/9/14
Dylan was discharged to the ward from PICU on Day 3 of admission (4/9/14) under the care of the respiratory team. Dylan's usual respiratory physician Dr Dominic Fitzgerald was away and so he was admitted under the care of another respiratory physician, Dr Peter Cooper. The respiratory nurses who knew Dylan well from his previous admission and outpatient clinic appointments continued to assist in his inpatient care.
One of the concerns that Dr Cooper and his respiratory team had with regards to Dylan's asthma was the long-term dependence on very high doses of oral steroids for symptom control. The oral steroids were needed despite Dylan having normal pulmonary function testing on multiple occasions. Normal pulmonary function testing in a child with frequent and severe asthma exacerbations is highly unusual and points to other contributing factors for these presentations of breathlessness. Dr Cooper felt that the use of high daily doses of oral steroids in Dylan's case was quite unusual, as the efficacy of inhaled treatments for asthma these days mean that very few children, if any, require such high doses of oral steroids in order to have sufficient symptom control. Dr Cooper was concerned that there may have been other factors, such as anxiety, which contributed to Dylan's asthma presentation.
For these reasons, he and his team decided to use Dylan's current admission to slowly wean Dylan off his oral steroids and to involve the psychologists and psychiatrists at the hospital to assess if there are any behavioural or psychosocial components to Dylan's illness.
On 4/9/14 an ophthalmology review showed possible early signs of papilloedema (swelling of the optic disc). However, subsequent eye examination showed segmental swelling of the optic disc at the superior nasal poles of both eyes (persistent even at 6 weeks post-admission). This feature is not consistent with the diagnosis of papilloedema and papilloedema has since been excluded.
Dylan was treated for benign intracranial hypertension (BIH) with acetazolamide (commenced 5/9/14). The BIH was thought to be secondary to long-term use of steroids for his asthma treatment. However BIH in the absence of papilloedema is unusual. An MRI brain performed was completely normal.
Over the next several days Dylan continued to improve clinically. He had no further episodes of confusion.
On the night of 10/9/14, Dylan became suddenly unwell with vomiting, headaches, low blood pressure and low potassium levels. The low potassium was attributed to treatment with acetazolamide. He was treated with intravenous fluids and potassium replacement and improved.
On 12/9/14 at 2pm, Dylan again became acutely unwell. He developed a high fever (39.3 degrees C). He complained of ear and neck pain. He became irritable and lethargic and developed photophobia (light sensitivity). He had low blood pressure. Dylan was reviewed by the ward doctor and diagnosed with sepsis (bacterial infection of the blood stream). The source of infection was unclear. However as Dylan had some redness of his skin over a previous cannulation site the possibility of fever from cellulitis (skin infection) at this site was considered. Blood cultures and other tests were taken.
Over the next two days Dylan remained febrile and his blood pressure continued to be low, consistent with sepsis. The results of the blood cultures were negative, and the source of his sepsis was unable to be confirmed. Dylan recovered without any antibiotics and over the next 6 days was clinically well.
On 17/9/14, Dylan had a normal pulmonary function test, showing no evidence of airflow obstruction at all. This was a surprisingly good result given the severity of Dylan's presentation only 2 weeks prior.
On 20/9/14 Dylan was noted to sleep for prolonged periods of time and his mother reported him to be drowsy. He had complained of a headache that morning and had minimal appetite. He was examined and found to have constricted 2mm pupils. He did not respond to voice but did wake up when touched. It was not clear what the cause of these symptoms were and Dylan was observed.
The next morning (21/9/14) Dylan was more alert but unsteady on his feet. In the afternoon be became lethargic and confused. He spiked a temperature at 10:30pm, and had a high heart rate and low blood pressure. His clinical status then deteriorated rapidly and an urgent medical response was called. Dylan was assessed to have sepsis with haemodynamic instability (shock). He required urgent treatment with intravenous fluid boluses. Empirical intravenous antibiotics were started after blood cultures were taken.
Dylan when examined was found to have constricted 2mm pupils and was intermittently delirious but had no other localising neurological signs. The cause of his small constricted pupils was unclear but was unrelated to sepsis.
On 22/9/14 Dylan had another MRI brain and a repeat LP under general anaesthetic to investigate his unusual neurological symptoms. MRI was normal. LP was normal apart from an opening pressure of 31cm H20 (slightly high).
Second admission to PICU 22/9/14 – 23/9/14
After the above procedures under general anaesthetic Dylan had low blood pressure and required admission to PICU for observation.
On 23/9/14 Dylan was transferred back to the ward, as he had recovered from his low blood pressure by this time. Dylan continued on intravenous antibiotics.
Transfer back to ward 23/9/14 to 26/9/14
On 23/9/14 Dylan had a second eye review which showed healthy optic discs with no papilloedema. He remained clinically well and was interactive and playful on this date.
On 24/9/14 Dylan had another clinical deterioration with back pain, agitation and fevers. He was already on intravenous antibiotics at this time (commenced from 21/9/14). Further blood cultures were taken in view of new fevers. Dylan was again noted to have low potassium levels, the cause of which was unclear as he was no longer on acetazolamide by this time.
By 25/9/14 Dylan was clinically very unwell requiring repeated medical reviews for low blood pressure and high heart rate, consistent with bacterial sepsis.
On 26/9/14 a number of further investigations were organised, including a bone scan, abdominal and renal ultrasound scans, to look for the source of the bacterial infection causing the sepsis. The bone scan was normal. The abdominal and renal ultrasounds were also normal, with the abdominal ultrasound scan demonstrating a large spleen consistent with Dylan fighting off a serious infection. At this point Professor David Isaacs, Infectious Diseases Specialist, was consulted due to lack of any obvious source of infection. Dylan was continued on empirical intravenous antibiotics until the source of the infection could be found.
On 26/9/14 Dylan had a third eye review which showed normal optic discs. He had his third LP, which was again normal with opening pressure of 22cm (within normal range).
He continued to have high blood pressure and low heart rate and with his clinical deterioration required admission to PICU for further management.
Third admission to PICU 26/9/14 to/1/10/14
On 27/9/14 while in PICU and already on intravenous antibiotics, Dylan started developing rigors and very low blood pressures, indicating sepsis. Further blood cultures were taken due to ongoing fevers. This set of blood cultures from 27/9/14 subsequently grew two organisms:
1. Escherichia coli (E. coli) in the aerobic bottle;
2. Bifidobacterium in the anaerobic bottle.
A urine sample taken on the same day had no growth of bacteria.
Dylan was already on cefotaxime (as empirical management for his sepsis) at the time the blood culture was taken and the E. coli grown in the blood culture was sensitive to this antibiotic. Therefore Dylan was continued on intravenous cefotaxime for treatment, and a single dose of gentamicin was given on the 28/9/14.
By 1/10/14 Dylan was clinically well enough for discharge back to the ward.
Transfer back to ward from 1/10/14 to 29/10/14
The two organisms grown on blood cultures on the 27/9/14 were highly unusual organisms causing sepsis, and very rarely seen in blood cultures. These bowel organisms are normally present in the gut. It is extremely unusual to find bowl organisms infecting the bloodstream, particularly in the absence of any bowel pathology, as demonstrated by Dylan's normal abdominal ultrasound and lack of any bowel symptoms.
Professor David Isaacs (Infectious Diseases Specialist) was consulted by the respiratory team due to the growth of these highly unusual organisms in Dylan's blood cultures. Professor Isaacs' opinion was that these organisms in the blood stream were acquired due to deliberated contamination through injection of faecal or decaying material via an intravenous line.
Given these serious concerns the Child Protection Unit was consulted. A case conference meeting was then convened involving Dr Peter Cooper (Respiratory Physician), Respiratory Team Nurses (Tracy Marshall CNC & Lucy Hatton CNS), Respiratory Registrar Dr Catherine Liebau, Professor David Isaacs (Infectious Diseases), Dr Nick Piggot (PICU Consultant), Nicole Chang (Nursing Unit Manager from the ward), Dr Susan Marks (CPU Consultant), Dr Christine Peng (CPU Registrar) and Stacey Black (CPU Social Worker). Dylan's clinical findings were discussed. At the conclusion of this meeting it was felt that the growth of these gut organisms in the blood cultures were highly suggestive of deliberate contamination of Dylan's intravenous line by injection of faecal matter. Thus the possibility of induced or factitious illness in Dylan became a significant concern. It was agreed that CPU would report the matter to Community Services Helpline as a matter of priority to ensure Dylan's ongoing safety while in hospital.
A report outlining these concerns for Dylan was made to Community Services on 1/10/14. JIRT responded and attended the hospital on 2/10/14, and interviewed both Dylan and his mother.
Dylan was assumed into the care of Community Services on the evening of 2/10/14. His mother was no longer allowed access to him at the hospital. His father was contacted to come to CHW and became his main carer in hospital from that time until the time of discharge. Medically Dylan improved significantly after 2/10/14. Apart from recovering well from his sepsis, he also did not have any further episodes of fevers, headache, confusion, drowsiness or back pain over the next 4 weeks in hospital. He had no further episodes of constricted pupils.
He did not require any further short-acting bronchodilator (Ventolin) for asthma symptoms from 3/10/14, which was quite a dramatic change. The oral steroids were able to be weaned and his last dose of oral steroid was given on 24/10/14. The process of weaning needed to be slow (over 3-4 weeks) as Dylan had been on oral steroids over the last 4-5 years. Dylan's excellent lung function was confirmed by normal pulmonary function test results on multiple occasions during the steroid weaning process.
Behavioural changes in Dylan
Throughout his admission, Dylan had extremely challenging behaviours on the ward, both towards his mother and also towards hospital staff. He was verbally abusive and often unwilling to comply with treatment instructions. The psychological medicine team (Dr Kath Knight, child psychiatrist and Siew Koo, child psychologist) was closely involved to assist Dylan with behavioural management. They saw Dylan frequently while he was an inpatient and had set up a number of behavioural strategies, such as the use of rewards, consequences, timetabling, and consistent messages for behaviour management. Despite their close involvement Dylan continued to have many outbursts and extremely difficult to manage behaviours. This was witnessed by many doctors, nurses, and other allied health staff (e.g. play therapists, occupational therapists, hospital school teachers) consistently up to, and including, the evening Dylan was removed from the care of his mother.
The next day Dylan's behaviour and demeanour had changed dramatically. He was no longer verbally abusive. He had no difficulty complying with his medications. He was much more pleasant to staff. He was happy to attend treatment with occupational therapists, asthma educators, and play therapists. He became much more engaged during therapy. A similar positive change was also noticed by hospital school teachers. These changes were also witnessed and reported by the doctors and nurses on the ward. During this time his father was his main carer in hospital."
Professor Isaacs' expert opinion
1. Professor David Isaacs is a consultant paediatrician at the Children's Hospital at Westmead, specialising in infectious diseases. He has held this position at the hospital for over 27 years, since 1989. He is also a Clinical Professor in Paediatric Infectious Diseases at the University of Sydney, a Fellow of the Royal College of Paediatrics and Child Health UK, and a Fellow of the Royal Australasian College of Paediatricians, Australia.
2. He was consulted by the respiratory team at the hospital following the growth of the highly unusual organisms in Dylan's blood cultures of 27 September 2014.
3. He prepared an Interim Report dated 2 October 2014, in which he expressed the following opinion about the cause of the sepsis developed by Dylan:
"This report is written as a preliminary comment on the current situation regarding Dylan. My name is David Isaacs and I am a paediatric infectious disease consultant at the Children's Hospital at Westmead and Clinical Professor in Paediatric Infectious Diseases at the University of Sydney. I have only met Dylan and his mother once briefly on Friday September 26 but I have read his case-notes, and discussed his case with a number of colleagues.
Dylan has a long history of asthma that has been extremely difficult to control and he has required 17 admissions to the Paediatric Intensive Care Unit. His course has been complicated by the use of very large doses of corticosteroids over which there is some controversy. He has had marked behaviour problems and has a complex relationship with his mother. Dylan has been seen by Dr Kath Knight in Psychological Medicine who has diagnosed him with oppositional defiant disorder, separation anxiety, medical phobias and aggressive behaviour.
The mother's marriage ended at the end of 2013 and she told me her husband cleaned out the house of furniture in January 2014. Dylan has 3 younger siblings, Blake aged 7 who has autism and recurrent croup, Clare aged 5 who has language delay and Aiden who is an infant. The mother has apparently struggled to cope this year and the Hospital is attempting to support her.
Dylan was admitted on 2.9.14 supposedly with asthma but had an acute confusional state, which proved to be due to raised intracranial pressure ("benign intracranial hypertension"), a recognised complication of high dose corticosteroids.
He has rhinovirus (a common cold virus) in his respiratory secretions on admission which may have contributed to precipitating his benign intracranial hypertension. His clinical course was complicated by a range of symptoms (tired, sleepy, headache, vomiting, abdominal and back pain) and after about 10 days by fevers for which no cause was clear. The fevers were initially low-grade but were later associated with fluid boluses due to tachycardia and hypotension (low blood pressure) suggesting possible circulatory compromise, i.e. mild shock. He was started on intravenous cefotaxime on 21.9.14.
The Infectious Disease team was asked for advice about Dylan on 23.9.14 because of the fevers. Because of the abdominal pain and back pain we considered intra-abdominal pathology or bone infection. Dylan's abdomen was soft, his urine cultures were sterile and an abdominal ultrasound scan performed on 26.9.14 showed nothing abnormal except possibly a slightly enlarged spleen, although interpretation was difficult because he was not cooperative. A normal bone scan on 29.9.14 effectively excluded bone infection. Blood cultures taken on 13, 21 and 25 September were sterile. However, a blood culture taken on 27 September grew Escherichia coli and another bowel organism called Bifidobacterium. A urine sample taken the same day was sterile and contained no cells. Dylan was on cefotaxime at the time the blood culture was taken and the E. coli was sensitive to this antibiotic.
When we grow bowel organisms from blood cultures the usual explanation is that the child has active bowel pathology, for example a perforated appendicitis or significant necrosis (death) of the bowel wall. Although Dylan's immunity is reduced, this alone is insufficient explanation of the organisms in his bloodstream: patients on high-dose steroids do not get bowel organisms in their bloodstream unless they also have bowl pathology. Bowel organisms can sometimes appear in blood cultures because they can cause urinary tract infections, but Bifidobacterium does not usually infect urine and Dylan's urine culture, taken the same day as the positive blood culture, was sterile.
Blood cultures can be accidently contaminated, either at the time of taking blood or in the laboratory. The presence of more than one organism in a blood culture is often an indicator that the blood culture is contaminated. However, that is only true for skin organisms since the contamination is from the skin of the patient or of staff. Bowel organisms are not usually accepted as blood culture contaminants, even in neonatal units, where such contamination might be more likely. In the absence of any demonstrable cause of bowel pathology, urinary tract infection and with accidental contamination highly unlikely a more sinister cause of Dylan's positive blood culture is that bowel organisms were deliberately injected in the form of faecal material or suspension, which would be most likely to have been directly into his intravenous line. The fact that the bloodstream E. coli was sensitive to the antibiotic Dylan was receiving intravenously is consistent with accidental or deliberate contamination but less consistent with other possible causes. It is possible that Dylan's previous fevers and shock-like episodes were due to prior injection of faecal material which would not always result in positive blood cultures. In my view the most likely explanation for Dylan's fevers and positive blood culture is that some sort of faecal or decaying material was injected into his intravenous line. This is a life-threatening situation, since the injection of bowel organisms can cause fatal sepsis."
1. Professor Isaacs prepared a subsequent report dated 13 November 2014 in which he confirmed that opinion in the following terms:
"When we grow bowel organisms from blood cultures, the usual explanation is that the child has active bowel pathology, for example a perforated appendicitis or significant necrosis (death) of the bowel wall. Although Dylan's immunity was reduced, this alone was insufficient to explain the organisms grown from his blood stream: we would not expect patients on high-dose steroids to get bowel organisms in their blood stream unless they also have bowel pathology. Bowel organisms can sometimes appear in blood cultures because they can cause urinary tract infections, but Bifidobacterium does not usually infect urine and Dylan's urine culture, taken the same day as the positive blood culture, was sterile.
Blood cultures can be accidentally contaminated, either at the time of taking blood or in the laboratory. The presence of more than one organism in a blood culture is often an indicator that the blood culture is contaminated. Blood culture contamination is often with skin organisms, since the most common source is from the skin of the patient while taking the blood culture or the skin of staff processing the blood culture. Bowel organisms are not usually accepted as contaminants, even in neonatal units, where such contamination might be more likely. In the absence of any demonstrable cause of bowel pathology, urinary tract infection and with accidental contamination highly unlikely, a more sinister cause of Dylan's positive blood culture is that bowel organisms were deliberately injected in the form of faecal material or a faecal suspension, which would be most likely to have been directly into his intravenous line. The fact that the blood stream E. coli was sensitive to the antibiotic Dylan was receiving intravenously is consistent with accidental or deliberate contamination, but less consistent with other possible causes. It is possible that Dylan's previous fevers and shock-like episodes were due to prior injection of faecal material which would not always result in positive blood cultures. In my view the most likely explanation for Dylan's fevers and positive blood culture is that some sort of faecal or decaying material was injected into his intravenous line. This is a life-threatening situation since the injection of bowel organisms can cause fatal sepsis."
1. Professor Isaacs gave oral evidence at the hearing, and was extensively cross-examined, but his view about the introduction of faecal matter to Dylan's bloodstream was not shaken (T 11.2.16 at p 41):
Q. …So do you accept that it's a rather tenuous diagnosis that you've undertaken?
A. I can't think of a better explanation than the one that I've given so I've been over all the possibilities of why you would get E. coli in the bloodstream of a child of Dylan's age in this setting.
I've said it could have come through his urinary tract no, it could have come through his bowel no. It could be somewhere else in him an abscess somewhere, we couldn't find one.
Once I've excluded those I've got to explain how does E. coli, this very unusual organism, get into his bloodstream. I've looked at the possibilities of it being of there being contamination of the blood culture at the time of collecting or in the laboratory and they seem much less likely to me than the rather ghastly diagnosis which I don't like to make that someone is injecting faecal material into the bloodstream of one of a child. It's not a diagnosis I make with any pleasure but my role as a paediatrician is to protect the child and when I suspect that I have to try and work out what's going on. He's rather a disturbed young man with a long medical history and some shock like episodes which are otherwise unexplained. This is the explanation that best explains it.
So I don't think it's far-fetched, I think it's a horrible explanation, I don't like to make it but I do want to protect this child and I do want to make sure he's safe and E. coli in your bloodstream is a life threatening episode, you can die from that."
1. A series of alternative explanations were put to Professor Isaacs by counsel for the mother, all of which he rejected.
2. The specific propositions considered by Professor Isaacs as not being an adequate or likely alternative to his conclusion that Dylan's infection was caused deliberately are summarised by counsel for the Secretary as follows:
1. He rejected the possibility that the infection could have occurred because Dylan's immunity was compromised by the high dose of corticosteroids.
2. He rejected the notion that E. coli is a pathogen that could be passed hand to mouth causing food poisoning.
The possibility of accidental contamination of the sample at the time of collection caused by failure of staff to wash their hands and glove up, the presence of baby and child's poo from various sources was rejected by Professor Isaacs in the following terms:
"A. It is not uncommon for us to have quite a lot of trouble getting blood from children as you can imagine, we never get E. coli in blood cultures in this sort of setting, so I think it's highly unlikely that this is all explicable by people failing to wash their hands, introducing a significant amount of faecal material on the skin of the child which then gets into the blood cultures. I would say that's highly unlikely, well I've never come across it in 27 years of as a paediatrician disease specialist."
And later in the evidence:
"A. Faeces I have to say it is fairly ubiquitous and having the possibility of children soiling themselves and it being around happens all the time, it doesn't matter whether it's from another child, from Dylan himself and so on. So as paediatricians you know children wear nappies for the first year or two of their lives, we have to deal with faeces and make sure that we don't contaminate ourselves, that we don't spread it around, that we don't contaminate blood cultures and so on. I don't think other children soiling themselves, whether it's a sibling or Dylan himself or anything is a likely explanation in this case of what's happened."
1. He rejected the other following possible explanations put forward by the mother for Dylan's shock-like symptoms:
1. Adrenocortical insufficiency.
2. Anaesthesia from the lumbar puncture performed.
3. The administration of Acetazolamide to treat BIH.
4. Skin sepsis caused by an infected cannula site as causing fever.
5. Dylan's aspiration during the lumbar puncture procedure.
1. The process of investigating and explaining Dylan's positive blood cultures was further summarised by counsel for the Secretary as follows:
1. The usual explanation when bowel organisms are grown from blood cultures is that the child has active bowel pathology – e.g. a perforated appendix or significant necrosis of the bowel wall. Dylan did not have active bowel pathology.
2. Dylan's immunity was reduced, but this alone was insufficient explanation of the organisms in his blood stream.
3. Bowel organisms can sometimes appear in blood cultures because they can cause urinary tract infections, but Bifidobacterium does not usually infect urine and Dylan's urine culture (taken the same day as the positive blood culture) was sterile.
4. Blood cultures can be accidentally contaminated and the presence of more than one organism is often an indicator of contamination, however, this is only true for skin organisms. Bowel organisms are not usually accepted as blood culture contaminants, even in neonatal units where such contamination might be likely.
5. In the absence any demonstrable cause of bowel pathology, urinary tract infection and with accidental contamination highly unlikely, a more sinister cause of the positive blood culture was the deliberate injection of faecal material or suspension – most likely directly into his intravenous line.
6. The fact that the bloodstream E. coli was sensitive to the antibiotic is consistent with accidental or deliberate contamination but less consistent with other possible causes.
7. The most likely explanation for Dylan's fevers and positive blood culture is that some sort of faecal or decaying material was injected into his intravenous line.
8. It is possible Dylan's prior fevers and shock like episodes were due to prior injection which would not always result in positive blood cultures.
1. Professor Isaacs also rejected the proposition as highly unlikely that the injection of faecal material into Dylan's cannula was perpetrated by a member of the medical or nursing staff present in the ward, as there was only one victim, rather than a pattern of conduct involving multiple victims.
2. It was then put to Professor Isaacs that it would be extremely unlikely that the mother would inject her own child with faecal matter. He gave the following answer (T 11.2.16 at p 43):
"…I don't make this diagnosis lightly. I've only made it a few times in my career. It's a diagnosis that doctors find incredibly confronting to think that anyone would harm a child, but particularly the mother which feels like a betrayal of the trust between the mother and the child and a double betrayal because it's a trust between the mother and the doctor that's being betrayed as well here.
So doctors find it incredibly confronting, lots of doctors don't want to even think that such a thing could happen. I don't like making that diagnosis but our primary focus as paediatricians is to protect the child.
In certain circumstances we have to intervene and if the police and it's not us making this decision, if the police make the decision to separate the mother from the child and the child then gets better, there's a presumption, not proof, probably wouldn't hold up in a court of law, but might hold up in a Children's Court that you've protected this child by separating mother from child and that therefore the mother was doing it.
Now I can't prove anything in these things, all I want is for Dylan to be safe and in the long run possibly to work with his mother so that she's better and the pair of them can resume a relationship, but that is my interest as a paediatrician, I don't think the diagnosis is one I like making but on the other hand I think it's an important one for me to make if that's the - if I'm right then Dylan's life is protected, possibly saved by this and his mother gets the chance to recover, get treatment, recover and possibly renew her relationship with Dylan or continue it under supervision with Dylan and possibly renew it in the much more constructive way in the long run."
The Secretary's case
1. The Secretary's case is that the children should not be restored to their mother and that they should remain with their father, formal restoration to him being in the children's best interests.
2. Accordingly the Secretary seeks final care orders allocating parental responsibility to the father in 12 months' time:
"…the Secretary proposes contact between the children and the mother that is regular, limited and supervised. The intention is to monitor the children's progress and responses to contact over time and to adjust the duration and frequency of contact and consider the ongoing need for supervision in accordance with the children's needs. Undertakings and orders for supervision are sought to support the placement and to ensure that the children's needs are adequately and appropriately met under those arrangements."
1. It was submitted that the children are well settled in the placement with their father where they are cared for lovingly and safely, with appropriate understanding of and attention to their individual special needs.
2. As regards the mother, the Secretary submits that she continues to pose an unacceptable risk of harm to the children such that placement with her is not appropriate.
3. The Secretary contends that the following risks exist for the children in the mother's care:
a) Medical harm;
b) Regression of the gains made in their health, behaviour, and educational outcomes; and
c) Psychological and emotional harm.
1. Further, it is submitted that the Court could not reject outright as groundless that the mother deliberately injected faecal or decaying material into Dylan's cannula during his admission to the Children's Hospital at Westmead.
2. The Secretary relies in particular on the following evidence:
* The medical evidence as to the presence of E. coli and Bifidobacterium in Dylan's blood stream during his hospital admission in September 2014.
* The medical evidence ruling out or rendering unlikely in the extreme, contamination other than by deliberate injection of faecal or decaying material most likely through the cannula site.
* The evidence of the mother's training as a nurse, her knowledge of the mechanics of cannulas and her experience of having accessed patients' cannulas in the past.
* The evidence of the mother's access to Dylan during the relevant period.
* The evidence of Dylan's comments heard by nursing staff to the effect of What have you put in my cannula mum?
* The evidence of Dylan's rapid recovery of health and pro-social behaviour once the mother was excluded from the Hospital.
1. To those factors I would add the medical evidence that it is highly unlikely that the injection of faecal material into the cannula was perpetrated by a member of the medical or nursing staff present in the ward, or was the result of hospital procedures.
2. The Secretary does not rely upon suggestions that the mother suffered from Induced or Factitious Disorder, nor does he seek a finding that she deliberately injected faecal matter into Dylan's cannula, but it is submitted that the mother had the opportunity and the capacity to do so, such that the allegations are relevant to the assessment of the risk posed by any restoration to the mother.
3. Thus, in the assessment of risk "it is appropriate for the Court to consider the possibility that the mother, notwithstanding her denials, could have been responsible for the introduction of the faecal material, or, in the alternative whether - as adverted to in M v M - the allegation that the mother could be responsible is an allegation that the Court could reject without hesitation as being groundless".
4. The Secretary relies on the following features of the evidence as relevant to the risk of unacceptable harm posed by the mother:
1. The mother is medically trained and has been employed as a registered nurse. She is aware of the mechanics of cannulas and experienced in dealing with patients who have cannulas inserted.
2. Prior to separation, and indeed prior to placement of the children with him, the father was an absent parent who was distant and uninvolved in the family. The evidence reflects that he was detached from the family unit and the family unit broke down, in large part, due to him having had an affair.
3. The mother visited with Dylan in hospital on all relevant days during his admission, having a break on the afternoons of 17 and 18 September 2014.
4. Professor Isaacs gave evidence that in the Paediatric Intensive Care Unit (PICU), there are 4 beds to a ward, that there is one to one supervision, and that one would not necessarily expect 4 nurses in the room at all times given that they require breaks. Professor Isaacs gave evidence that notwithstanding this high ratio of nurse to patient care, opportunities still present themselves if someone wants to interfere with equipment.
5. In any event, the report of Dr Grace Wong gives the following timeline of Dylan's movement between the general ward and the PICU:
1. 2 September 2014: Dylan was transferred from the Local Hospital ED to the PICU at CHW.
2. 2 September - 4 September 2014: Dylan was in the PICU.
3. 4 September - 22 September 2014: Dylan was on the general ward.
4. 22 September - 23 September 2014: Dylan was in the PICU.
5. 23 September - 26 September 2014: Dylan was on the general ward.
6. 26 September - 1 October 2014: Dylan was in the PICU.
1. The evidence indicates that there are fewer nurses per patient on the general ward and that supervision of patients is far less stringent. Assuming the Court accepts Professor Isaac's evidence that the faecal material was likely being introduced to Dylan's bloodstream from around 12 September 2014 to 27 September 2014, it appears Dylan spent most of that period on the general ward where patient monitoring and supervision was far less stringent.
1. The Secretary also relies upon evidence of statements made by Dylan relating to his cannula, specifically, that on 24 September 2014 Dylan was heard by two nurses to say words to his mother to the effect that she had put something into his cannula:
Nurse Brown gave a statement to the Police that she heard a conversation between Dylan and his mother that day:
Dylan: "Why are you making me sick?"
Mother: "How am I making you sick?"
Dylan: "You could've put something in my cannula when I was asleep."
Nurse White told the Police that she heard the following conversation:
Dylan: "Mummy, what did you do to my cannula this time?" or "What did you put in it?"
Mother: "Dylan, why would you say that? That makes me upset when you say those things."
1. The Secretary submits that it is significant that following the mother's removal from the ward and the restrictions on her contact with Dylan, his health and his behaviour dramatically and immediately improved.
2. Prior to removal from his Mother's care, Dylan had 17 admissions to the CHW PICU for asthma, as well as regular attendances to Emergency Departments at Blue Mountains and Westmead Hospitals. Dylan has not been hospitalised since discharge from CHW into his father's care in October 2014. The father gives evidence that Dylan has had no hospital admissions or attendances for asthma since discharge in October 2014. Professor Fitzgerald, Dylan's treating respiratory paediatrician gave evidence that Dylan has been far more stable in the past 15 months than he was in the 4 years leading up to the hospitalisation and subsequent withdrawal from corticosteroids:
"Whilst the evidence would support the contention that it would be reasonable to expect that there would be some improvement in Dylan's health and behaviour following weaning off the corticosteroids, the evidence would indicate that his recovery and improvement was beyond what one might expect. Dr Babajanyan, although overgeneralising somewhat described the improvement as a "medical miracle"."
1. Having regard to the accumulation of all these factors, the Secretary submits that the Court would be comfortably satisfied that the mother poses an unacceptable risk of harm to Dylan. The impact of that risk is profound. Dylan was very ill and could have died. There are no supports that could satisfactorily ameliorate the risk.
2. Moving on from the events relating to the near fatal sepsis experienced by Dylan, the Secretary submits that the mother was not effectively managing the children's behaviours prior to their removal. She was not coping, and was overwhelmed and stressed. According to the evidence of Dr Lennings, her insight into the needs of the children was poor.
3. Both Dylan and Blake have enjoyed significant improvements in their health and their behaviour since removal from their mother and placement into the care of their father.
4. Dylan, in particular, has experienced dramatic improvement:
"He has continued to improve in his health since being placed with his father. It is conceded that it is reasonable to expect some improvement in Dylan's health would occur following his weaning off corticosteroid medication. The improvements observed in Dylan include the following:
Dr Babajanyan observed:
1. Dylan's health is currently exceptionally good - minimal problems with his previously severe life threatening asthma.
2. Dylan has also had emotional and behavioural "unusualities" - there are still some emotional and behavioural concerns that might need to be addressed.
Staff from Dylan's school observed:
1. Dylan's Mother was previously reported to have informed the school he might need a wheelchair.
2. Dylan is now participating in sports in school. He is a more robust child – a full participant.
3. Over the past 2 years, his classroom teacher has noticed a great improvement in his learning rate.
1. Dr Wong gave this evidence about Dylan:
"I think in this case, the fact that a significant change in his care giving environment has resulted in him getting better clinically so quickly, with a reduction in treatment rather than a ramping up of his treatment, is a very good indication that there was something very unusual going on with his presentations. I think that adds to the weight of opinion about what was happening for Dylan around his repeated presentations to hospital.
This was a boy that was very, very unwell prior to this previous admission, with 19 admissions to paediatric ICU, and on average coming to hospital every six weeks for his asthma, and with a change in his care giver, he was able to come off nearly all of his medications. He no longer had any further unusual episodes of constrictive pupils or myoclonic jerks. He was no longer presenting in acute delirium or confusion. I think that is very significant in Dylan's case."
1. Blake has similarly made significant improvements in his health and behaviour. Prior to removal, he had also experienced multiple presentations to hospital for croup. Blake has autism, which has been described as "high functioning". He was suffering from a number of complex issues, which his father says are improving. His urinary incontinence is now rare, and his faecal incontinence, although still occurring, has "come a long way". He has only had two admissions to hospital since removal, once for croup and once for a cold.
2. As regards Clare and Aiden:
"Clare's health has been described by her father as excellent. She has some speech issues which were addressed by the speech therapist at Skills For Kids. She has not experienced the same respiratory illnesses as her older brothers. Behaviourally, she is reported to have previously kicked her maternal grandmother, although there is no indication that such behaviour has occurred recently."
"Aiden was also described as having perfect health. It is noted that he appears to have had some recently emerging issues with aggression at school, with the teacher's aide giving evidence that he said to her words to the effect of You are the enemy of my family. In discussion with the teacher's aide and with the Principal, Aiden is reported to have attributed such comments initially to his maternal grandmother, then to his mother. Aiden is also reported to have made a comment about the car the teacher's aide owned which she took to be threatening. Aiden has not previously demonstrated such behaviours."
1. It was submitted however, that despite these improvements, each of these children still have health, developmental and behavioural vulnerabilities that require to be addressed on an ongoing basis:
"Dylan has had multiple provisional diagnoses from time to time but seems to have elements of an Oppositional Defiant Disorder – making him difficult to manage and more prone to aggressive outburst, with his various conditions complicated by dependency producing behaviour engaged in by his mother.
Blake has a raft of conditions seemingly related to Autism Spectrum Disorder that complicate his development and behaviour. He remains vulnerable and will continue to exhibit such vulnerability for the foreseeable future.
Clare has some mild developmental delay – likely promoted by attention seeking behaviours. In the long run, appropriate speech therapy and parenting will see her resume a mostly normal developmental trajectory. There are early indications of aggressive type behaviours in Clare and whether they will develop into a frank disorder or they will mute with appropriate parenting remains something the doctor is unsure about.
Aiden appears not to have specific psychological disorder, although his grandparents assessed him as being delayed in his development."
1. It was submitted that these issues will require competent and appropriate parenting to manage into the future. "In assessing the mother's capacity the Court would need to have regard to the additional skills needed to parent this sibling group – in addition to considering the skills required to parent each individual child."
2. Reference was made to the evidence of Dr Lennings:
"…the mother's level of functioning remains quite impaired and has significant ramifications for her parenting capacity".
1. In cross-examination, Dr Lennings considered that whilst the mother had made progress in addressing her psychological and psychiatric health, she was at the beginning rather than the end of that phase.
2. The Secretary contends, therefore, that the mother has not yet fully or satisfactorily addressed the mental health and parenting capacity issues that lead to the situation of crisis the household so often appeared to be in during 2014.
"…the Court cannot be confident that the same or a similar constellation of circumstances would arise again in the future if the children were returned to the mother's care…the Court would be concerned that inadequate parenting would lead to a regression in health, behaviour and development and result in a loss of the gains made to date. Such a loss would be contrary to the children's safety, welfare and well-being."
1. Accordingly, the risks posed by the mother are unacceptable, and are not capable of sufficient amelioration such that the children could live with the mother, even if the maternal grandparents were to be involved in supporting her. They simply could not be effective supervisors at all times. Nor, it was submitted, would they bring the necessary level of vigilance required to any supervisory role. During cross-examination neither grandparent believed the mother would need any supervision:
"The risks posed by the mother relate not just to whether she would commit a deliberate act of harm upon Dylan or one of the other children, but arise from her psychological functioning and the parenting dynamic that exists between her and the children. This second aspect of risk is one that supervision could not ameliorate."
1. The Secretary's submissions further contend, therefore, that future contact for the children with the mother continue to be supervised, by the grandparents, and that the frequency of that contact be limited, and clearly defined, with future changes to occur only after appropriate therapeutic review.
2. The Secretary submitted therefore, that there is no realistic possibility of restoration to the mother.
3. As regards the circumstances of the children:
"They are vulnerable children and the older 3 have a range of developmental issues. Dylan and Blake are children who have experienced an extraordinarily high degree of medical intervention. Each child - although Aiden to a lesser extent - has significant needs. Dr Lennings opined that they are children who still exhibit significant behavioural disturbance despite their health gains and that there remain large problematic areas of function. He attributes some - but not all - of these problematic areas of function to their need to spend more time with their mother. Whilst it would be reasonable to expect that some of those issues may resolve with more time with their mother, the children's individual needs mean that when considered as a whole, they present as a complex and challenging sibling group."
1. As regards the mother, she is not able to satisfactorily address the issues that led to the removal of the children from her care. She has not fully or sufficiently addressed the psychological issues that detracted from her parenting capacity prior to the removal of the children from her care.
2. The Secretary relied upon the opinion of Dr Lennings that he would not recommend restoration to the mother regardless of the Court's determination on the issue of the deliberate harm:
"…her lack of coping, high psychological morbidity and emotional dependence on the children. This will in turn re-introduce the children into a competitive and somewhat anxious relationship with their mother."
1. The Secretary acknowledged that the mother has been attending to her psychiatric and psychological health by her engagement with Dr Chan and Ms Ahmed. Dr Lennings at the time of writing his report opined that the mother was at the beginning of that phase of work.
2. It was submitted that 12 months on, there remains work to be done. Dr Lennings gave evidence as to the assessment of the mother's response to therapy in the following terms:
"…But that's why I said right at the beginning if you accept the diagnosis (of Munchausen by proxy) then the mother's response to therapy which appears to have been one of demonstrating acceptance and insight is only superficial. If you decide that there wasn't a deliberate act of child abuse then the mother's response to treatment seems to be much more encouraging. I can't make that decision."
1. As to the therapy the mother is receiving from Ms Ahmed:
"Given the scope of Ms Ahmed's therapy with the mother it is submitted that it was not reasonable for Ms Ahmed to prefer her own views on the mother's parenting capacity to the expertise of Dr Lennings. In this part of her evidence she became an advocate for the mother and the Court would bear this in mind when assessing the totality of her evidence."
1. The Secretary also submitted that the mother's response to more recent stressors in the context of her employment were further indicators of her ongoing emotional fragility and that she still has some significant way to go in her therapeutic work.
2. Turning to the father, the Secretary contends that there is a realistic possibility of restoration to him. It is accepted that there are risks attached to the children living with him, including the allegations of his excessive consumption of alcohol, some disclosures as to the use of harsh discipline, and the secondary caregiver role previously played by him prior to separation with the mother.
3. The Secretary submits, however, that these risks are not unacceptable.
4. There have been no reported concerns since May 2015, and although the father did play the secondary caregiver role, he has engaged with supports and is making good progress in improving his parenting skills.
5. The children "have made gains and improved across multiple domains" in his care, and the Court would feel confident of his ability to manage their behaviours and needs into the future:
"Having regard to the gains the children have made in his care, the positive feedback from the medical professionals involved in their care and their school staff and the positive feedback from Marist Youth Services, it is submitted that the Court would find that he is now a more engaged and involved parent than he was at the time the children were removed, and that he has the capacity to provide a safe, nurturing, stable and secure environment for the children."
1. Nevertheless, the Secretary proposes a cautious approach:
1. Gradual rather than immediate transition of parental responsibility from the Minister to the father; and
2. A period of supervision of the children pursuant to s 76 of the Act; and
3. Undertakings being given by the father and being accepted by the Court pursuant to s 73 of the Act.
1. The Secretary's submissions turned, finally, to issues of permanency planning, which proposes that the children live with the father and that parental responsibility is ultimately allocated to him. The plans include the provision of contact between the children and the mother and the children and the maternal grandparents.
2. It was submitted that the Court would find that the Amended Care Plans appropriately and adequately address permanency planning for the children, and that they comply with the requirements of s 78(1) of the Care Act.
3. In respect of contact, it was submitted that the Court not make any order as to contact, and that the issue remain one of casework.
4. Reference was made to the allegations of the mother having had unauthorised contact in the past, and that this risk will persist into the future. The attitude of the maternal grandparents in this regard is relevant. It was submitted that they have facilitated the unauthorised contact.
5. The problem with unauthorised contact is the potential for damage to the children. The Secretary relied again upon the opinion of Dr Lennings that it undermines the trust between all involved:
1. "It has a potential of being detrimental to the children, but - in relationship with yourself firstly, and secondly, if it was then curtailed, what will be happening is the children are getting more contact than what people know about, they're enjoying that, that then gets stopped, they feel they've lost something because they don't really understand that it's surreptitious to start off with. The result is that they will then have a reaction because of that.... it could act to undermine parenting, partly because the kids are being forced to keep a secret from you, it prevents them developing an open relationship with you if that were occurring."
1. Thus, submitted the Secretary,
"None of the prerequisites for contact have been satisfactorily established. There is clearly a need for further work to be done to enable the frequency and duration of the children's time with the mother to be increased. It is also clear that the process of adjusting contact may have either helpful or problematic impacts on the children. There is no suggestion that the Department has unilaterally or unreasonably suspended or cancelled contact and it is submitted that the Court would be confident that the Department - and in the fullness of time the father - will appropriately facilitate contact arrangements that are in the best interests of the children consistent with their safety, welfare and well-being."
The mother's case
1. The mother's case is that the children should be restored to her care. Restoration is a sensible course not based on unlikely hopes for the future, and is ultimately in the best interests of the children.
2. She therefore opposes the current permanency planning proposed by the Secretary.
3. She contends that the issues that led to the removal of the children have all been satisfactorily addressed, and that the children's circumstances "require them to return to their primary caregiver". There is no unacceptable risk of harm posed to the children by their restoration to the mother.
4. Although the children should be returned to her, the mother proposes that they maintain a meaningful relationship with their father, and spend significant time with him, subject to him undertaking some effective alcohol abuse monitoring and counselling.
5. Accordingly the mother seeks final care orders that provide as follows (Ex 36):
a) Parental responsibility for medical treatment, which includes but is not limited to medical, dental treatment and therapeutic treatment be allocated jointly to the Minister, the father and the maternal grandparents.
b) Parental responsibility other than for residence and medical treatment be allocated jointly to the mother, the father and the maternal grandparents.
c) The children reside with the maternal grandparents and the mother at all times when they are not residing with the father.
1. each Monday from 4.30 pm to before school on Wednesday, during school terms;
2. each alternate week from Saturday 10.00 am to Monday commencement of school, during school terms;
3. from 12.00 noon Christmas Eve until 9.00 am Christmas morning;
4. subject to his availability to personally care for the children, for one half of each gazetted NSW public school holiday period; and
5. as otherwise agreed between the father and the maternal grandparents.
d) A supervision order be made for 12 months.
e) A report on the outcomes of the supervision be provided by the Secretary after 10 months.
f) The mother have contact as determined by and supervised by one of the maternal grandparents for a minimum of 8 hours per week.
g) A prohibition order preventing the mother from collecting the children from school unsupervised, from attending their medical appointments or hospital treatments, other than as a support person, and from administering any mediations to the children.
h) Specific, detailed undertakings be accepted from the father.
i) Specific, detailed undertakings be accepted from the maternal grandparents.
j) Specific, detailed undertakings be accepted from the mother.
1. It is submitted that these orders will appropriately address the risks to the children alleged by the Secretary, thus eliminating any suggestion of unacceptable risk to them posed by returning them to her care at this time.
2. As regards the hospitalisation of Dylan, and the life-threatening sepsis from which he suffered, it was submitted that the presence of Escherichia coli, Diptheroids, and Bifidobacterium in the blood samples, all of which can be found on skin or as contaminants in a hospital environment, indicates contamination more consistent with skin or hospital contamination of the samples than with deliberate poisoning. Escherichia Coli could have been on the skin of Dylan or on the needle which punctured the skin. This was the likely source of the contamination.
3. No criminal charges have been laid against the mother:
"So far as the mother is aware this is because the Police have identified that the mother was trying to do her best to care for the children when she was struggling to cope with her own emotional needs as well as those of the children, the mother has not deliberately harmed any of the children, and the mother received little or no support from anyone other than her parents."
1. The general thrust of the mother's case is that she was, prior to the removal, suffering from untreated Major Depression and Dysthymia, which contributed to shortcomings in her parenting and her interactions with the children, particularly in respect of Dylan, but she has undertaken appropriate mental health treatment and therapy and has shown good signs of recovery and is on appropriate medication to assist her mental state, such that it is now highly unlikely that the types of harm alleged by the Secretary or specified by Dr Lennings will occur, given her significant progress:
"Both before and after the separation from the father, the mother was too exhausted to pursue or demand support or assistance for herself. She felt as if she was staggering from crisis to crisis and barely keeping up."
1. She is deeply ashamed about the fact that her mental health difficulties contributed to Dylan's physical health problems in the following four ways:
1. she failed to manage Dylan's behaviour properly;
2. she communicated her anxiety, fear and distress about Dylan's physical health to Dylan and reinforced his own fears about his physical health;
3. she assumed any symptoms displayed by Dylan such as coughing and shortness of breath or hyperventilating, were as a result of his asthma rather than anxiety and therefore always sought medical solution rather than a psychological one;
4. as a result of her exhaustion and depression she failed to understand that she had to pursue psychological assistance for Dylan and herself and that if she did not continuously pursue it, help would not be provided.
1. She acknowledges that she did not fully engage with attempts to provide her with support and assistance in the period prior to the removal of the children:
"There was a referral to 'Coral Tree' residential facility on 6 August 2014, about which the father says he knew nothing. The psychology team at Westmead sent a letter to the wrong address so she never received it. Phone calls from potential support services were not returned if the mother was dealing with a further hospitalization. The mother acknowledges that she should have asked the father for more help with Dylan and Blake after separation, but was angry with him for the way their marriage had ended and did not ask for help when she needed it."
1. It was submitted that the mother was trying to do her best to care for the children prior to their removal but was struggling to cope with her own emotional needs as well as the needs of the children.
2. The mother defends her management of Dylan's asthma by reference to the evidence of some of the medical witnesses.
3. Professor Dominic Fitzgerald was the respiratory physician who was treating Dylan from 2009 up to his removal, during which time the prescribed dosage of oral corticosteroids was significantly increased, as discussed above. Dylan has now been weaned down to what is now a fairly standard asthma medication for a child of his age. According to Dr Fitzgerald, the oral corticosteroids that Dylan had been prescribed previously potentially exacerbated his behaviour, and:
"…the symptoms exhibited by Dylan on his admission in September 2014 are common symptoms and they can be attributed to adrenal insufficiency but they're more likely to occur with inter current viral illness or an infection, whether viral or bacterial which shows symptoms of a fever, tiredness and lethargy."
1. Disharmony and disruption within the family also adversely impacted on Dylan's care, thus:
"This was present for some time and is clearly not all attributable to the mother's issues which were then untreated."
1. The mother also relies upon the evidence of Dr Peter Cooper. It will be recalled that at the time of Dylan's admission to the Children's Hospital at Westmead in September 2014 Dylan's usual respiratory physician, Dr Dominic Fitzgerald, was away and so he was admitted under the care of another respiratory physician, Dr Cooper:
"The reduction in oral corticosteroids dose led to a rescue programme of re-boosting the steroids in case this was a problem for Dylan, and there were a number of occasions when he became sick and then he had to go back up again to a higher dose of oral corticosteroids "it was almost like one step forward, two steps back at times."
1. Dr Andrew Biggin is the Paediatric Endocrinologist at Children's Hospital Westmead and St George Hospital. He gave evidence about adrenal insufficiency and possible explanations for Dylan's presentation:
"…high dose steroids can cause behavioural disturbance, acutely usually and present as an acute psychotic episode or acute aggressional behaviours and an adrenal crisis in its extreme normally presents with collapse but it can present with an intermediate zone of confusion as it's evolving."
1. The import of Dr Biggin's evidence, it was submitted, is that the symptoms of adrenal crisis, benign intracranial hypertension and the long term prescribed steroid side effects are sufficient explanation of the presentation of Dylan's symptoms and his behaviours. This directly confronts the evidence of Professor Isaacs.
2. The mother's written submissions then embark upon a critical analysis of the evidence of Professor Isaacs, which I have set out in some detail above, pointing out deficiencies in his opinion, suggestive of bias, lack of objectivity, his discounting of any material that did not "suit his theory", preferring "his own theory to the observations of other qualified and better placed physicians", and that "the other treating medical specialists did not support the theory propounded by Professor Isaacs. Indeed, Professor Isaacs initiated the theory and it is submitted ignored evidence which did not support the theory":
"The theory adopted or advanced by Professor Isaacs is that the mother had a pot of faecalant material, she sucked some of that up into a needle and syringe, and she injected it directly, into the bung, the rubber bung, of an intravenous line or injected it directly into the port of the intravenous line. There was no pot of such material found on the mother when she was searched at the Hospital and no one ever reported seeing such a "pot of poo" or anything like it. There is no CCTV footage. There was no evidence presented that the mother had ever been seen injecting anything into Dylan, his intravenous line or the bung of the intravenous line.
Professor Isaacs later stated in his evidence that he wasn't saying the mother injected the material. Professor Isaacs agreed he had no proof of the theory. It is the mother's uncontradicted evidence that Professor Isaacs unfairly and in denial of any legitimate expectations the mother had about the process of investigation, never questioned the mother about his suspicions. If he had done so then there is a possibility he would not have jumped to the conclusion he did."
1. It was submitted further that Professor Isaac's opinion influenced the views of others in the hospital:
"After Professor Isaacs advocated the Munchhausen theory it was adopted by other child protection paediatricians such as Dr Wong, and JIRT who deferred to his seniority and authority without question. This perpetuated the presumptive and unsupported suspicions."
1. These unsupported suspicions also infected the subsequent course of events:
"It is submitted that the documents filed in these proceedings and parts of the oral evidence allege, and then assume, heinous behaviour on the part of the children's mother with insufficient evidence and mere speculation about cause and effect, with no credible direct evidence as to the manner or vector of alleged infection… This allegation has been permitted to infect the evidence to such a degree that it is now not possible to clearly know which parts of the evidence have been unaffected by prejudice caused by this unwarranted allegation."
1. The mother contends that because the Secretary has not made out a case that the mother deliberately injected faecal material into Dylan's blood, his whole case is "misconceived in so far as it relied upon medical abuse of any of the children by the mother":
"The more likely explanation of any infection, it is submitted, is that there was an accidental contamination of Dylan's blood sample by the hospital staff from his skin, someone else's skin, or the hospital surroundings."
1. The mother contends that she has now addressed the identified issues referred to by Dr Lennings which led to the removal of the children from her care, she has developed insight into the causes of the problems which existed when the children were removed, she has received treatment for her major depression and anxiety characteristics, and has received appropriate therapeutic assistance from Sarah Ahmed, the Clinical Psychologist who has been assisting her. The children wish to live primarily with her. There is now no reason for the children not to be returned to the care of their mother.
2. In support of this contention, the mother's submissions refer to evidence from several doctors, including Dr Lennings, Dr Chan and Sara Ahmed, her treating clinical psychologist.
3. Dr Lennings is an experienced and respected clinical and forensic psychologist who was commissioned by all the parties as a single expert to make an assessment regarding the issues surrounding the removal of the children from the mother, and to assess the parenting capacity of the mother and the father. He prepared a detailed report dated 15 March 2015. He also gave oral evidence, including extensive cross-examination, at the hearing.
4. The Secretary relies upon the opinion of Dr Lennings in ways to which I have referred above. The mother also relies upon aspects of his evidence, in particular his statement that the mother has made "encouraging progress."
5. Dr Lennings assessed that the mother developed a maladaptive parenting style based on her psychological morbidity. He identified three different risks:
"The first of the risks identified…is that the mother encouraged dependence and indulged the children so that they became oppositional and developmentally compromised. Secondly, the children developed distorted attachments such that they will have difficulty individuating and developing in their own right. Thirdly, the mother managed by crisis such that the child who is not in crisis will experience neglect of their needs at that time."
1. He recommended that the mother engage in diAidentical behavioural therapy or schema based therapy in order to assist her with her psychological morbidity and maladaptive parenting style.
"The mother has shown positive results from her engagement in that therapy. The mother will continue to engage in that therapy."
1. The mother submits that the therapy recommended has been undertaken with clinical psychologist Sara Ahmed, which commenced on 31 March 2015. Ms Ahmed provided reports, and also gave oral evidence and was cross-examined. It was submitted that her evidence was uncontradicted and :
"The Court would be impressed by her professionalism and expertise in helping the mother manage her anxiety and attending to her own psychological needs. Ms Ahmed gave evidence that if a parent attends to their own needs then they will be better equipped in terms of their parenting capacity to focus on the children's needs. Ms Ahmed has not seen the children and, as she appropriately agreed, is not in a position to comment upon them in any knowledgeable or expert way."
1. Both Dr Chan and Ms Ahmed expressed the view that the mother has responded well and has developed good insight into her illness. Dr Chan considers that the therapy and training received by the mother from Ms Ahmed has helped to address her long-standing social anxiety, hypersensitivity to others' criticisms, and mood swings. Ms Ahmed gave evidence that the mother is really focused on improving her own emotional and psychological functioning so that she becomes "better equipped within herself":
"The referral that I was given was primarily to assist the mother in coping and improving her mental and general health in specifically learning strategies about how to regulate emotions and management of distress, which I believe that she has undertaken.
I can speculate about preparatory work. My own views are that if a parent is attending to their own self-care and needs and managing stress on a day-to-day basis in a better capacity that's going to equip them in terms of their parenting."
1. The mother therefore submits:
"There has thus been sufficient progress and engagement in addressing the issues which existed when the children were removed from the mother's care and her response to treatment is encouraging. It is submitted that there should be a new Amended Care Plan recommending restoration of the children to their mother's shared care as proposed by the mother in Exhibit 36."
1. The mother's written submissions then turn to address the shortcomings she alleges in respect of the father as the primary carer.
2. She contends that he has neither the immediate nor the long-term capacity to be the primary carer, and that he has long-standing issues of alcohol abuse and dependence that he has denied and hidden from experts. These issues have not been appropriately addressed and may pose a significant risk to the children's current and future safe and healthy care. They have not been addressed in the permanency planning for any of the children.
3. The mother points to the evidence of the father failing a breath test at work in 2012, concessions made to his general practitioner, disclosures made by the children, and his refusal to undergo CDT testing as requested by caseworkers. She says he responded to these issues unconvincingly in cross-examination, and he deliberately misled and minimised his alcohol dependency to Dr Lennings.
4. It was submitted that testing regimes recommended by Dr Lennings should be employed on a regular basis if the children are to be cared for at all by the father.
The other submissions
1. The father made no written submissions, but his position is largely aligned with the permanency planning proposed by the Secretary. The Independent Legal Representative (ILR) for the children, appointed by the Court, submitted that the Court should find that there is no realistic possibility of restoration of the children to their mother. She made some short submissions supplementary to those provided by the other parties.
2. The ILR recommends orders that take account of the following:
1. PR to the Minister for therapeutic services and contact for the children and family for 18 months.
2. S 82 Reports at 11 and 17 months to advise the Court inter alia of the review of contact with the mother having regard to her progress in therapy and the children's wishes.
Contact Review should be conducted by an independent professional, properly briefed as to the issues and with access to Dr Lennings if he is not the reviewer.
1. All other aspects of parenting responsibility to be allocated to the father for each child until age 18.
2. At the expiration of the first 18 months all residual aspects of Parenting Responsibility should be allocated to the father.
3. A s 76 supervision Order for 12 months with a s 76(4) Report at 28 months.
4. S 73 Undertakings are required as set out in the written submissions. The mother's undertakings should run for the length of the Orders - 3 years.
Findings and conclusions
1. There are several areas of factual contention that I will address first, before turning to the main dispute concerning the development of sepsis by Dylan when he was hospitalised in late 2014.
2. The Secretary relies upon evidence given by two nurses, Nurse Brown and Nurse White, of what they heard Dylan say to his mother about his cannula on 24 September 2014. The mother seeks to minimise the significance of this evidence:
"Nurse White and Nurse Brown are relied upon by the Secretary to say that Dylan was suspicious, while he was drowsy and confused as observed by Dr Cooper, that his mother had put something into his cannula. Their duty is to record even mundane events in the clinical records. Neither nurse thought that the comments were sufficiently remarkable to personally make a record of them. They both said that someone else was making a record and thus unsurprisingly there was no contemporaneous record.
Neither nurse had a strong recollection of the precise words they allege were used by Dylan. The mother did not recall Dylan saying anything about her putting something in his cannula and the transcript of her interview with JIRT which was re-read by her in cross-examination appears to support that evidence. The mother recalls Dylan saying something about not taking poison, which she interpreted as meaning medication such as the corticosteroids or an antibiotic. The mother recalls Dylan accusing the nurses as well as herself of trying to 'poison' him with medication.
Dylan denies that his mother put anything into his cannula. Dylan in his interview in 2015 recalled to Ms Watson that the nurse gave him "really weird medicine". The nurses do not recall that. It is submitted that the evidence relied upon by the Secretary about this issue is inherently unreliable, contradictory and imprecise and the Court would prefer the evidence given by the mother.
The mother emphatically denies putting anything into Dylan's cannula and was unshaken in cross-examination on this point. No weight can be placed upon the nurses' evidence.
Given that Dr Cooper also spoke about the medications being 'poison' it is submitted that this is the more likely explanation for any overheard comments to that effect."
1. I am satisfied, however, that the nurses heard what they said they heard. They both impressed me as disinterested witnesses doing their best to give a reliable and accurate account of what they heard.
2. Their evidence forms part of the accumulation of factors the Court takes into account in assessing the risk of unacceptable harm posed by the mother.
3. Similarly, the Secretary relies upon evidence of the mother engaging in unauthorised contact with the children, and the grandparents allowing, indeed facilitating such contact at the property.
4. After the children were removed from the mother, an Apprehended Violence Order was made against her. On 27 May 2015, that order was varied. The AVO, which is still in place, prohibits the mother from going within 100m of the property except in accordance with orders of the Children's Court; or in accordance with any care plan issued by FaCS, or with the written consent of FaCS.
5. A caseworker from the Northcott Family Support Service gave evidence that she saw the mother at the property contrary to the AVO and at times when the children were present.
6. The mother and her parents deny unauthorised attendances at the premises, and they say it was in fact the mother's sister-in-law who was present on the relevant day, and that the caseworker simply got it wrong.
7. The mother did not call her sister-in-law to confirm this contention.
8. I prefer the evidence of the caseworker on this issue. She was very clear about what she saw. What stuck in her mind was the unsuccessful attempt by the maternal grandmother to block her view down the hall. The mother's denials were unconvincing, and so far as the maternal grandparents are concerned, I have formed an adverse view of their reliability, having regard to their blind support for their daughter and their refusal to accept that she could have done anything wrong.
9. I am comfortably satisfied that the caseworker saw the mother at the home on the day she said she did. The inference to be drawn is that this was not a lone instance. The problem with unauthorised contact, as Dr Lennings says, is the deceit involved and the adverse impact it has on the issue of trust. And worse, making the children parties to the deception impacts adversely on their relationship with their father, his capacity to manage them, and it undermines their placement with him.
10. This evidence also forms part of the accumulation of factors the Court takes into account in assessing the risk of unacceptable harm posed by the mother.
11. The mother's reliance upon Dr Lennings is misplaced. What her submissions do is place selective choices of particular excerpts, but ignore the central theme of his opinion. The basic thrust of his evidence was in fact that the mother had many deep-seated issues to address, and that would take time.
12. In cross-examination he described the mother as overly protective of the children, that her level of anxiety was conducive to the over-medication of their problems, and inappropriate attention to their medical needs. Doctors ramped up medication, for example, based on information provided by her. Her style was management by crisis, over emphasising symptoms, and inappropriately dramatic responses.
13. Whilst her major depression appears to be progressing positively, and she is beginning to develop insight into her style, Dr Lennings was unable to say she had made sufficient progress yet to entrust the children to her care.
14. The mother also placed great reliance upon Ms Ahmed, her psychologist. It was submitted that I would be impressed by her professionalism and expertise in helping the mother manage her anxiety and attending to her psychological needs. I make no comment on her clinical capacity, but as a witness, I was in fact entirely unimpressed. She was evasive, partisan, and lacking in objectivity. She was so determined to assist the mother, she said pretty much what came into her head to achieve that end. Her evidence is unreliable in terms of any genuine progress the mother may or may not have had in addressing her issues, and gives the Court no assistance at all in respect of assessing the mother's future capacity to appropriately parent the children.
15. I turn next to the allegations made against the father in relation to his so-called drinking problem. It is not in issue that he was, prior to the removal of the children, a heavy drinker. I was not persuaded, however, that this historical reality now impacts adversely on the safety of the children. He was accused of misleading the doctors, and the Court, about the true extent of his alcohol dependence. I reject those contentions. He made it abundantly clear that he has addressed any historical alcohol issues, that he now drinks very little, occasionally on weekends, when he does not have the children. I accept that evidence.
16. In fact, I found the father to be very reliable as a witness. He was measured, balanced, and restrained. As a person, my observations of him at the bar table were positive, particularly given the constant derogation, deprecation and disparagement of his character and his care for the children he was forced to endure during the hearing. He dealt with everything calmly, objectively, caringly and undisparagingly.
17. There is no doubt that since he has been allowed to take a greater role in the life of the children, necessarily, he has stepped up to the mark and made significant sacrifices. The evidence around the good job he is doing, the positive gains being made by the children, and the significant overall improvement in their behaviour, is clear and convincing.
18. I am satisfied that the father does not pose any unacceptable risk of harm to the children by reason of any alcohol abuse or dependence, or indeed for any other reason.
19. I turn now to address the evidence of Dr Isaacs, who in my view was also subjected to unfair criticism. I found Professor Isaacs to be a compellingly credible witness. His experience and qualifications are unquestioned. His evidence was lucid, logical, and objective.
20. It was put to the Professor in cross-examination that his "hypothesis" as to the cause of Dylan's sepsis was tenuous. Clearly it wasn't. Rather it was the product of thorough, careful and painstaking analysis of all the relevant considerations. As he was at pains to point out, the diagnosis was "incredibly confronting", only reached after an exhaustive accumulation and consideration of information and material and the elimination of other possible factors, leading inexorably to only one conclusion.
21. As the Secretary submitted:
"The mother did not adduce any alternative medical opinion to challenge Professor Isaacs' evidence. In circumstances where Professor Isaacs has not accepted any alternative hypothesis posited by the mother as to causation of the infection and causation of Dylan's shock-like symptoms, the Court can find, with confidence, that the infection in Dylan's blood was caused by the deliberate introduction of faecal or decaying material into blood stream, most likely by injection through the cannula over a series of days between 12 September 2014 and 27 September 2014."
1. I find that it is highly unlikely that a member of staff injected the faecal matter into Dylan's blood stream. I find it is also highly unlikely that Dylan's sepsis was caused by skin contamination, the hospital environment, hospital procedures, including contamination at the site of the cannula, the actions of hospital staff or others, or by reason of any one of the preponderance of theories postulated by the mother: Re Sophie [2008] NSWCA 250 at [67].
2. Fundamentally, I am comfortably satisfied, the contaminant was inserted, introduced.
3. I was left in no doubt that the cause of Dylan's sepsis was the injection of faecal material into his blood through his cannula. I am comfortably satisfied that the insertion was deliberate.
4. The mother had both the opportunity and the capacity to have been the person responsible, and in my assessment this gives rise to the mother being someone who poses an unacceptable risk to her children if they were to be left in her care, unsupervised.
5. This circumstance also forms part of the accumulation of factors the Court takes into account in assessing the risk of unacceptable harm posed by the mother.
6. Having regard to the matters I have discussed, and the accumulation of factors addressed in these reasons and in the submissions of the Secretary and the children's Independent Legal Representative, I am comfortably satisfied that the mother continues to pose a serious and unacceptable risk of harm to the children. The safety, welfare and well-being of the children is compromised accordingly. That risk is not capable of amelioration or mitigated to an acceptable standard, by the protective measures offered by the mother, or otherwise. There is, in my view, only one safe course of action, and that is to maintain the status quo, and keep the children in the care of their father.
Establishment
1. These children were found to be in need of care and protection on 12 December 2014.
2. The Court has jurisdiction to determine the placement of the children and to make final care orders having regard to their safety, welfare and well-being.
Is there a realistic possibility of restoration to the mother
1. I am required to consider and confirm or reject the Secretary's assessment that there is no realistic possibility of restoration of the children to the mother: s 83(5) of the Care Act.
2. In my assessment there is no realistic possibility of restoration to the mother of the children. I have already found that she continues to pose an unacceptable risk of harm to the children that it is not possible to sufficiently ameliorate by appropriate protective measures.
3. For my part, the circumstances of the children alone militate against a restoration to the mother. They are clearly safe and thriving under the care of their father. It is not in their interest to change the present arrangements, to risk putting them back into an uncertain environment and put at risk the advances they are making.
4. That position is reinforced (a fortiori) because the evidence is that mother has not, and is highly unlikely to be able to address the issues that led to the removal of the children from her care.
5. For these reasons I find that there is no realistic possibility of restoration to the mother and I accept the assessment of the Secretary.
Restoration to the father
1. In my assessment, there is a realistic possibility of restoration to the father of the children.
2. His development of parenting skills has not been straightforward. There was his historical drinking issue, which I have already addressed. There is no doubt that prior to separation the majority of the parenting of the children was done by the mother and that his role was secondary, and he has had to develop his parenting capacity.
3. There have also been some issues with discipline, but there have been no reported concerns since May 2015.
4. The father has received assistance to develop his parenting capacity, in particular from Marist Youth Services who makes positive reports about his engagement and progress. With the assistance of the maternal grandparents, he has been able to maintain the children's various medical and therapeutic appointments:
"The children have made gains and have improved across multiple domains in the father's care. Notwithstanding an historic lack of heavy involvement with the children in the past, the gains made indicate that the children are progressing in the father's care and the Court would feel confident of his ability to manage their behaviours and needs into the future."
1. I am comfortably satisfied that the father does not pose an unacceptable risk of harm to the children. On the contrary, I consider he is the best person to carry on their care into the future.
2. I expressly find that having regard to the circumstances of the children, and having regard to the evidence about that he is likely to be able to satisfactorily address the issues that led to the removal of the children, there is a realistic possibility of restoration to the father and I accept the assessment of the Secretary.
The future involvement of the maternal grandparents
1. The permanency planning proposed by the Secretary involves the maternal grandparents. There are some problems surrounding this, given their unreliability in the ways to which I have already adverted.
2. The father has shown a good capacity to work cooperatively, in particular with the maternal grandmother.
3. The father and the maternal grandfather have not shared an amicable relationship, but they both have demonstrated the capacity to rise above their differences in the interests of the children.
4. I agree with the Secretary's submission that further work is desirable to improve the relationship. I am satisfied, however, that the father will continue to include and involve the maternal grandparents in the lives of the children and enjoy their assistance in caring for the children and assisting with contact between the children and their mother.
Contact
1. The permanency planning proposes limited and supervised contact between the children and the mother. There is no proposal for contact to be dealt with by way of order. Rather, the Secretary submits that contact ought be dealt with by way of the Care Plan to ensure it can be adjusted to suit the children's needs into the future.
2. This position is dictated by the views expressed by Dr Lennings:
"Dr Lennings appears to formulate 3 prerequisites to adjusting contact - entrenched change in the Mother, a co-operative working relationship between the Mother, Father and Maternal Grandparents with good communication, and a review to assess whether an increase in contact is associated with improvements in the children's behaviour rather than causing problems…
None of the prerequisites for contact have been satisfactorily established. There is clearly a need for further work to be done to enable the frequency and duration of the children's time with the Mother to be increased. It is also clear that the process of adjusting contact may have either helpful or problematic impacts on the children.
There is no suggestion that the Department has unilaterally or unreasonably suspended or cancelled contact and it is submitted that the Court would be confident that the Department - and in the fullness of time the Father - will appropriately facilitate contact arrangements that are in the best interests of the children consistent with their safety, welfare and well-being. "
1. I agree with these submissions.
2. For all the reasons set out above I do no propose to make any specific order for contact, which will occur in accordance with the Care Plans and future case work, as circumstances change and develop.
Undertakings
1. The Secretary proposes that the mother, the father and the maternal grandparents give undertakings.
2. The mother has not indicated a preparedness to give the undertakings sought, nor have the maternal grandparents. Given the permanency planning proposed and the final orders to be made, I do not require their undertakings.
3. The father agrees to give the undertakings sought, and I accept his undertakings.
The permanency planning proposed by the Secretary
1. The Secretary proposes that the children live with the father and that parental responsibility be ultimately allocated to him. The Care Plans provide for contact between the children and the mother and the children and the maternal grandparents. It is also proposed that the Court make a supervision order for 12 months and a prohibition order against the mother from being present at premises where the children may be, except during authorised contact.
2. I have given particular consideration to and am satisfied that the permanency planning proposed, and the final care orders proposed by the Secretary, appropriately and adequately address the following matters:
1. the least intrusive intervention in the life of the children and their family that is consistent with the paramount concern to protect the children from harm and promote their development;
2. that the children will be provided with a safe, nurturing, stable and secure environment;
3. the permanent placement principles in s 10A of the Care Act;
4. the needs of the children;
It also avoids the instability and uncertainty of multiple placements because the children live with family, which in this case, offers a commitment that would not be found in an out of home care placement.
1. I am not disposed to make the prohibition order sought.
Disposition
1. I formally accept the Secretary's assessments as set out in the Care Plans that there is no realistic possibility of restoration of the children to their mother but that there is a realistic possibility of restoration to their father.
2. I am expressly satisfied that any other order or orders than those proposed in relation to the allocation of parental responsibility would be insufficient to meet the children's needs.
3. I am expressly satisfied that the permanency planning for them has been appropriately and adequately addressed, and I formally approve that planning.
4. I therefore make final care orders and notations under the provisions of the Children and Young Person (Care and Protection) Act 1998 (the Care Act) as follows:
As to parental responsibility:
a) Pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 parental responsibility for all 4 children is allocated to the Minister for Community Services for a period of 3 months.
b) Upon the expiration of order (1) and pursuant to s 79(1) & (2) the Court allocates parental responsibility for a period of 9 months as follows:
(a) Parental responsibility for contact between the children and their Mother is allocated to the Minister;
(b) Parental responsibility for medical and dental treatment is allocated to the Minister;
(c) All other aspects of parental responsibility are allocated to the Father.
c) Upon the expiration of order (2) and pursuant to s 79(1)(a) all aspects of parental responsibility for the children are allocated to the Father to the exclusion of the Mother.
d) Pursuant to s 82, ten months after the expiration of order (2) the Secretary of the Department of Family and Community Services is to provide to the Court a written report concerning the suitability of the arrangements for the care and protection of the children.
As to supervision:
e) Upon the expiration of order (2) and pursuant to s 76, the children are to be placed under the supervision of the Minister for a period of 12 months and the Court notes:
(a) The reason for the supervision order is to ensure the children's needs are met and that care arrangements made during the currency of the Minister's parental responsibility continue as the Department transitions out of the life of the children and their family.
(b) The purpose of the supervision order is to enable officers of the Department of Family and Community Services to meet with and talk with the children to ascertain their views and wishes on the care arrangements made during the currency of the Minister's parental responsibility.
Undertakings:
f) Pursuant to s 73 and for a period of 12 months from the date of these orders the Court accepts undertakings from the Father as follows:
(a) I will accept the supervision and reasonable directions of the Secretary including but not limited to the following matters:
(i) To work cooperatively with FaCS including participation in scheduled and unscheduled home visits, meeting, case conferences, telephone communications and written correspondence.
(ii) To participate in and to ensure the children participate in any therapeutic services to which FaCS refer the father and/or the children.
(iii) To comply with any request made by the Secretary to participate in Carbohydrate Deficient Transferrin (CDT) testing within 72 hours of such request having been made.
(iv) To provide any necessary written consents to enable the Secretary to obtain information concerning my attendance for CDT testing and to obtain a copy of the results of such testing.
(v) To provide any necessary written consent to enable the Secretary to obtain reports from any service that has been arranged or agreed to by the Secretary for the purpose of ensuring an alcohol free home environment for the children.
(vi) To give the Secretary seven (7) days written notice of any proposed change of address.
(vii) To immediately inform the Secretary of any change in telephone number.
(viii) To advise the Secretary at least seven (7) days in advance of the full name and date of birth of any person over the age of 16 years who is to reside in the same premises as the children.
(ix) To advise the Secretary at least 24 hours in advance of any circumstances that will affect my ability to attend appointments or services that have been arranged or agreed to by the Secretary for the purpose of support in relation to alcohol use.
(x) To permit the Secretary to inspect the home and speak with any person in the home including the child.
(b) I will report any child at risk concerns to FaCS.
(c) I will not allow the mother to stay overnight in my home while the children are in my care.
(d) I will facilitate contact between the children and their mother and the children and their maternal grandmother in accordance with these orders and with any direction given by FaCS.
(e) I will not discuss the Children's Court proceedings with the children nor will I discuss the Children's Court proceedings with any other person within the presence or hearing of the children.
(f) I will not denigrate the mother, the maternal grandparents or any member of their family within the presence or hearing of the children and if I become aware of any other person doing so I will take all reasonable steps to ensure the children are not exposed to such comments.
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Decision last updated: 22 July 2016