CET-E V DEPARTMENT OF CHILD YOUTH AND FAMILY SERVICES HC WN CIV 2005-485-002156

CET-E V DEPARTMENT OF CHILD YOUTH AND FAMILY SERVICES HC WN CIV 2005-485-002156 17 October 2006IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2005-485-002156IN THE MATTER OF the Children Young Persons and Their Families Act 1989 AND IN THE MATTER OF of a Child J BETWEEN CET-E Appellant AND DEPARTMENT OF CHILD YOUTH AND FAMILY SERVICES Respondent Hearing: 27 September 2006 Appearances: B Corkill for Appellant G Gimblett for Respondent C Doyle for Child Judgment: 17 October 2006 at 3pmRESERVED JUDGMENT OF MILLER J[1] "J", an autistic and intellectually handicapped girl aged 16, is in the custody of the respondent, which now calls itself the Ministry of Social Development. It has placed her in the care of her paternal grandparents, Mr and Mrs B. In this appeal, her mother, CET-E, who formerly shared J's care with the Bs, says the Family Court erred by refusing to discharge an ex parte custody order made in favour of the respondent. [2] The issue is whether J was abused physically while in the care of CET-E; specifically, whether someone repeatedly burned the sole of her right foot with a cigarette and inflicted blunt trauma to her vagina. CET-E says the Family Court erred in that there was insufficient evidence to prove to the required standard that J had been burned or otherwise abused or that the injuries happened while in her care.Factual background[3] J was born on 5 December 1989, and it became apparent over the next few years that she is handicapped. She has suffered much developmental delay, but she has some language. The meaning of what she had to say about the injuries is one of the issues in dispute. [4] J's parents separated several years after her birth, but her paternal grandparents have always played a major role in her life. As Judge McAloon observed in the judgment under appeal, there has been considerable acrimony between CET-E and the paternal grandparents over the years, with the Bs levelling allegations of abuse on a number of occasions. He recorded that the allegations had been the subject of reports from psychologists and paediatricians but the outcome has been inconclusive because of J's intellectual difficulties. That is not the only reason for inconclusiveness, as will become apparent. [5] For my purposes, it is convenient to begin the narrative on 4 July 1997, when Judge Ellis considered applications for guardianship and custody by Mrs B, who feared that her regular access to J was about to be curtailed because of conflict with CET-E. Judge Ellis described Mrs B as a confident, articulate, persuasive member of the dominant culture. CET-E was a reserved, somewhat shy, woman of Ngati Porou descent, conscious of her relative lack of education, resources, and social skills. He was, I think it is fair to say, critical of the Bs for what he saw as their intense focus on procedural rather than substantive problems and refusal to acknowledge the growing parenting skills of the mother. CET-E, understandably offended by the grandparents' complaints that she is an unfit parent, was no longer willing to tolerate Mrs B acting as a de facto guardian of J. [6] Judge Ellis confronted allegations of violence in the mother's household, but was satisfied that J was safe there. He observed that J had an extraordinary degree of supervision, with a team of some four or five professionals regularly involved in her care, including teachers at her special needs school. Recognising the energy and commitment of Mrs B, he ordered a shared custody arrangement under which J was predominantly in the care of her mother.[7] A further application for custody was made at the end of 1997, based apparently on physical evidence of an injury and reported statements made by J. Judge Ellis noted that there was no formal custody application before the Court, and he did not accept that the evidence justified immediate removal of J from the mother's home. He based that conclusion on a report from a clinical psychologist, Geraldine Keith. In a subsequent minute of 5 February 1999, Judge Ellis noted that an investigation had indicated there were concerns, but they were not sufficient to justify removal. He ordered a further review. [8] Ms Keith reviewed the allegations of abuse in a report of 10 June 1999. There were also allegations of newly emergent behaviours involving loss of bowel control and expressions of momentary distress. Again there were allegations that J was disclosing abuse in her use of language. Ms Keith referred to a "wheels on the bus" sequence; that was a reference to a complaint from the Bs' in which they substituted different names or objects for the word "wheels" in the well known children's song. J would respond as they incorporated words into the song. For example, when they sang "the cigarette on the bus goes .", she would reply "burn, burn, burn". When her mother's name or that of her mother's partner were used, J would reply "naughty, naughty, naughty", and when the word "bottom" was used, she would respond "milk, milk, milk", which the Bs apparently interpreted as a reference to semen. [9] Despite the Bs' concern, Ms Keith could not conclude that these behaviours indicated physical or emotional abuse. On the contrary, J seemed a happier child than previously, and the ambience between J and her mother on the one hand, and J and the Bs on the other, was warm and attentive. She was also striving to use language as a communication tool, which Ms Keith saw as a very positive development. She noted concern, however, at the behaviour of the mother's partner, who had threatened Ms Keith. She accepted that there were high-risk indicators for J, and plainly saw a need for continued close monitoring. Following this report, the respondent withdrew its then application for a declaration that J was in need of care or protection.[10] In a report of 17 August 2000, Dr Fitzsimons, a general practitioner, recorded that J had been under his medical care since 1995. On a number of occasions he had been asked to examine J for assessment and confirmation of possible injuries. On none of those occasions had there been any evidence of injury indicating abuse. On several occasions he had been asked to examine J's genitalia to assess signs which Mrs B believed might represent sexual abuse; on no occasion had he been able to confirm it. He was unable to comment on allegations that J's sexualised behaviour evidenced sexual abuse; he had not observed such behaviour. [11] In a report of 4 December 2000, Ms Keith reported on current arrangements for J's care. She interviewed the mother and the Bs and observed J in both contexts, and she spoke to staff at J's school. She reported positively on J's interactions with her mother; by contrast, the Bs evidenced anxiety when managing J's highly autistic behaviour. She concluded that the Bs had to learn to more readily relinquish abuse or trauma hypotheses as explanations for all J's unexpected or unacceptable behaviours. The school had developed techniques for managing J that the Bs needed to catch up on; she made a number of specific recommendations for pooling experience. Judge Mill subsequently made an order permitting the Bs to visit J's classroom once a term while she was in their custody. [12] In May 2003, Judge Mill heard an application for variation of custody orders. At that time, J resided with her mother 10 days out of 14 during term time, with school holidays being shared. He reviewed allegations of abuse and heard evidence from Ms Keith, Mrs B, and various other witnesses. [13] The first issue concerned comments made by J, who had appeared to describe an injury under her arm as a cigarette burn and attributed it to her mother. J had also described a mark on her stomach as a burn, again attributing it to her mother. The Judge thought that the medical notes suggested the doctor considered they were more like bite reactions. (There is also evidence that J refers to insect bites as burns.) He accepted that it is highly unlikely that J could be coached, and he rejected the possibilities that she had been, or that the Bs had untruthfully or incorrectly relayed the reported remarks. Against that, statements made by J may be overvalued andwrongly interpreted. He noted a risk that the Bs would mistakenly interpret any evidence as abuse; Mrs B was a person on "red alert". [14] The Judge concluded that it seemed more likely than not that the injury under J's arm was a burn and it was more likely than not that it occurred while in her mother's care; however, he could not be sure how it was inflicted or whether it was deliberate. [15] There was also evidence of J making other comments arguably consistent with domestic disharmony in her mother's household and fear of CET-E's partner, but again with the aid of Ms Keith, Judge Mill found it difficult to know what to make of these statements and the expert evidence about them. Allegations had been levelled against the mother's partner that he is a violent man who is involved in dealing drugs; the Judge concluded that J was at times frightened of him and should not be left alone with him. But the partner was now only an occasional visitor to the property. [16] The evidence did not satisfy the Judge that there had been sexual abuse. Such evidence as there was involved interpretation of statements and drawings by J. Ms Keith was unable to interpret the drawings. There was some emphasis on the genital area but such drawings are not diagnostic of abuse. The Judge reviewed evidence of sexualised behaviour at school, but he thought it was more likely to be associated with the onset of puberty and noted that CET-E had taken immediate and responsible steps to deal with it. [17] Judge Mill also reviewed the evidence of two witnesses, one of whom lived in the same street as CET-E. Several years previously she had complained to the Department about an incident where CET-E pulled J in the supermarket, causing her to go into a wall. She had also told Ms Keith about a burn injury in 1997, and had associated it with CET-E. But at the hearing, which she was compelled to attend, she maintained that she had no concerns about CET-E or J. The other witness confirmed that the first witness had been concerned about J and about CET-E's partner. The Judge concluded that there had been a time of considerableunhappiness and some risk for J in her mother's home, but that things had improved vastly since then. [18] Judge Mill was unable to conclude that abuse had occurred, but the evidence plainly left him in a state of concern. He modified the care arrangement in the Bs' favour, ordering that Mrs B would have care of J each second week from Tuesday after school until Monday morning before school. He reasoned that the Bs are well- intentioned and important people in J's life, and that J has a particularly close bond with Mrs B who provides a happy environment for her. He also concluded that she has an important and close bond with her mother and siblings. [19] The shared custody arrangements continued until January 2005, when events occurred that triggered the present proceeding.The ex parte application for custody[20] Between 17 January and 1 February 2005, J was in the care of her mother. School had resumed by 31 January but she did not attend on that day due to a cold. Her mother took her to Dr Fitzsimons. He gave evidence. He had not noted a limp or any difficulty in walking (which one might expect had she been burned on the sole of her foot). Nor did he notice any difference in mood; J normally has a bright and chatty demeanour. He said that he would normally watch J enter the room and he would have noted a limp or a statement that J was feeling pain. [21] There was also evidence from the principal at J's school. J attended school on 1 February, and the school did not notice anything unusual about her apart from a head cold. J did not complain of having a sore foot nor was she in any obvious discomfort. [22] J was transferred to the Bs custody on 1 February. On the evening of 2 February they took her to an after hours medical centre, where Dr Chew examined her. Mrs B asked J to tell the doctor what was wrong with her foot. J pointed to her right foot and said "sore, sore, Mum's cigarette, Mum's cigarette". She was crying. The doctor found five distinct, somewhat circumscribed, round shaped, faintyellowish skin lesions approximately 0.5cm in diameter in the middle of her right sole. The B's told him that there was a history of abuse, and that some old and faint spots on her abdomen could be from old cigarette burns. They said that J had been abused with cigarettes in the past. Dr Chew interpreted the lesions as burn marks a few days in age. J also had an infection over the medial aspect of the right sole. Dr Chew called the respondent. [23] Two days later, J was seen by a paediatrician, Dr Wiltshire. Although J had been referred to him by a social worker, J was accompanied only by the Bs. Dr Wiltshire concluded that it was impossible to speculate on what caused the lesions as many potential mechanisms were possible. They would, however, be consistent with healing trauma for burns. [24] Meantime, on 3 February social workers interviewed J at the Bs home. Sam Sakaria, the social worker assigned to J, said that when asked how the sores on her foot occurred J replied twice "cigarette burn, Mum did it". [25] On 7 February the respondent obtained ex parte an order for custody of J, and it placed her with the Bs. [26] Mrs B subsequently explained in evidence that J had been complaining of a sore bottom since her arrival on 1 February, but nothing was done about it until 9 February because they were attending to the foot. On 10 February, a doctor took a urine sample and told the B's that J had a urinary tract infection, for which she was prescribed medication. She was seen by Dr McDonald of the Wellington Sexual Health Centre on 25 February but was too sore for examination. An appointment was arranged with Dr Elder, a paediatrician and a senior lecturer in paediatrics. She saw J on 11 March but it was not possible to get a good look at the genital area because of non co-operation. Arrangements were made to examine J under general anaesthetic, and that was done on 23 March. The examination revealed a scar in an area internal to the external genitalia but external to the hymen. Dr Elder opined that this trauma could have been inflicted or due to an accident; it was not possible to differentiate on the physical findings alone. It does not appear that the injury was associated with the urinary tract infection; rather, the latter appears to have led to thediscovery of the former. Dr Elder also gave evidence in the Family Court; she was the only witness on the subject of genital injury. [27] CET-E applied for an order discharging the interim custody order. Judge McAloon heard evidence and argument over four days in August and September 2005, and delivered his judgment on 28 September. He heard from a number of witnesses in person. They included CET-E, Mrs B, Mr Sakaria, Dr Elder, Dr Chew, Dr Wiltshire and Dr Fitzsimons. However, he did not hear from Ms Keith or any other independent person qualified to interpret J's language.The legislation[28] The interim custody order was made under s.78 of the Children Young Persons and Their Families Act 1989, and the application to set it aside was made under s.125 of that Act. Section 78 provides so far as relevant:(1) In any proceedings in a Court under Part 2 of this Act in relation to a child or young person, the Court may, on the application of any party to the proceedings, or a barrister or solicitor representing the child or young person, or of its own motion, make an order relating to the custody of the child or young person pending the determination of the proceedings. (2) Without limiting the generality of subsection (1) of this section, the Court may make an order under that subsection in relation to a child or young person in the following cases: (b) Where the Court is satisfied that the child or young person is in need of care or protection for the period of the order:[29] The substantive proceeding to which the interim order related was an application under s.67 of the Act for a declaration that J was in need of care or protection. That proceeding has been filed but is yet to be heard. The Act prescribes that a child or young person who is in need of care or protection if he or she is being, or is likely to be, harmed (either physically or emotionally or sexually), ill-treated, abused, or seriously deprived: s.14(1)(a). [30] Section 71 of the Act provides:Where— (a) An application for a declaration that a child or young person is in need of care or protection is made on any of the grounds specified in paragraph (a) or paragraph (b) of section 14(1) of this Act; and (b) The Court is satisfied that, but for the failure of the evidence to establish that a parent or guardian of the child or young person or a person having the care of the child or young person is culpable in relation to the harm suffered by the child or young person, the grounds for making the declaration are made out,— the Court may find those grounds made out.[31] The heading to the section states that the Court may make a declaration in the absence of proof of responsibility for neglect or ill-treatment. That accurately states its purpose. It remains the position, however, that the Court must be satisfied that the child or young person is in need of care or protection. It follows that the existence or otherwise of an allegedly culpable person who has access to the child or young person when in the respondent custodial person's care may be important, as of course would be evidence that the custodial person is personally culpable in some way. I note in passing Mr Corkill's point that s.71 does not expressly provide that it applies to an interim order made under s78(2)(b), but it seems to me that it must do so of necessity. [32] The Court may receive any evidence that it thinks fit, whether it is otherwise admissible or not: s.195. The standard of proof is that applying in civil proceedings: s.197. There was no suggestion that the onus shifted to CET-E in an application to set aside an ex parte order under s125. That is consistent with the customary approach to applications to rescind ex parte injunctions: Ron West Motors v Broadcasting Corporation of New Zealand [1989] 3 NZLR 520, 523. I approach the matter accordingly. [33] Mr Gimblett urged on me s.6, which provides that the welfare and interest of the child or young person shall be the first and paramount consideration, having regard to the principles set out in s.5 and s.13; those principles include the principle that children and young persons must be protected from harm, their rights upheld, and their welfare promoted: s.13(a). I accept that if J had been abused, there could be little doubt that removal was in her interests, which prevail emphatically overthose of CET-E or anyone else. But to point to s6 begs the question in this case. It does not alter the burden and standard of proof; specifically, it does not establish a precautionary principle under which the Court should remove a child when faced with any plausible allegation of abuse. Counsel did not refer me to the recent judgment of Asher J in Thomas v Department of Child Youth and Family Services, (Auckland High Court, CIV 2006-404-3522, 10 August 2006, Asher J), in which the legislation and authorities were carefully reviewed. Asher J held that s.195 applies to interim orders under s.78, and that the Court must be satisfied on the balance of probabilities that the child is being harmed. [34] Mr Corkill submitted that the Court must apply the principle that the more serious the allegation the stronger should be the evidence. He cited Re H & Others (Minors) [1996] 1 All ER 1, 16:The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.[35] As Mr Corkill emphasised, this approach has been adopted in care of children proceedings in the UK: in Re U (a child) (Department for Education and Skills intervening) [2004] 3 WLR 753, 759. It has also been applied in New Zealand: Re S (Care and protection) [1996] 14 FRNZ 378, 385. [36] I respectfully doubt whether it is logically correct to say that the more serious the allegation the less likely it is that the event occurred. Nor may the Court adopt some intermediate standard of proof falling between the civil and criminal standards. I prefer to put it as Woodhouse P did in T v M (1984) NZFLR 462, 463:For myself I would say at once that the provision for questions of fact to be "decided on a balance of probabilities" when that is considered merely interms of the required standard of proof is the definition of a constant. There are no gradations, whatever might happen to be the subject matter. What is required is an affirmative demonstration that the relevant and suggested inference is more probable than not. Nothing less than this will be sufficient. At the same time no more is necessary. But having said that it is not only usual but in any evidential context it is logically right for conclusions in the area of inference and judgment to be influenced both by the purpose to which they are directed and the significance of the assessment being made. Just as there are shades of possibility so the point at which there is satisfaction as to probability will vary depending upon the subject matter. The matter has been expressed in various ways.those various observations are all aimed at explaining the simple need to be careful in estimating whether or not the inference to be drawn is in truth probable rather than merely possible. It is a principle of good common sense that the more serious the issue the greater should be the care used in assessing it.[37] Ms Doyle drew my attention to the test of need of care or protection, emphasising that a declaration may be founded either on present harm or on likelihood of future harm. It is true that a judgement must be made about likelihood of future harm, but I reject the implicit submission that a lesser standard of proof applies to future harm. Rather, the applicant must establish, on the balance of probabilities, facts that allow the Court to conclude that future harm is more likely than not; Thomas v CYFS (above) at [57]. In some cases, and this is one, there could be no foundation for a finding of likely future harm in the absence of a finding that the child or young person had been harmed already: Thomas v CYFS (above) at [61], [58]. [38] In this case, Judge McAloon reminded himself of the standard of proof:I accept that the standard of proof is on the balance of probabilities. I also note that s.14(1)(a) covers a situation, not only where a child has been abused, but also covers a situation where a child is likely to be abused.[39] The issue before the Judge was whether J had in fact been abused, and his reference to likelihood of abuse while dealing with the standard of proof is troubling, for it suggests he may have applied a lesser standard.Burns[40] CET-E firmly denied any abuse. She is a smoker but she gave evidence that she does not use the word cigarette; CET-E refers to cigarettes as "smokes". TheJudge asked her whether J could not use the word "cigarette" and CET-E replied "no, she can't – well its not in her memory base while she is with me". Earlier in her evidence she had been asked whether J uses the word "cigarette" and she replied "no". [41] Mr Corkill submitted that the Judge misinterpreted this evidence. In his judgment he held that he did not accept the mother's evidence that J could not say the word "cigarette". Although made in passing, the Judge's comment was, as Mr Corkill submitted, a credibility finding against CET-E. What the evidence actually highlighted is that the word "cigarette" is not one that J uses in CET-E's household, because CET-E herself does not use it. As Mr Corkill pointed out, it is a word used by the Bs; that was established by the "wheels on the bus" account they gave to Ms Keith. [42] Dr Fitzsimons was cross-examined on J's complaints to Dr Chew and Mr Sakaria. It was put to him that J had said "cigarette burns, Mum did it". The doctor replied that he had no experience with J giving that sort of information. If she had a sore throat or a cough, for example, he could seldom get extra information. Rather, she would fixate on one thing like "sore ear", and she would say "sore ear" in response to every question. Because J operates very much on association, he thought it possible that she could be coached to associate the word "burn" with other words. [43] Turning to the physical evidence, Dr Chew was cross-examined. He accepted that it would be surprising if J did not appear to be sore at all during the daytime on 1 February when she was at school. He did not think that the lesions were associated with the infection on her foot, but he accepted that the infection might have been present for less than 24 hours. The doctor had not previously treated cigarette burns, and he accepted that his conclusion that the marks might be cigarette burns was based on the advice from Mrs B that J had been abused in the past. Mrs B's account was a partial one; she did not tell him the outcome of previous proceedings. He also accepted that the lesions were not concave or cratered but rather were quite flat. That point assumed significance because the defence produced photographs of cigarette burns purposefully inflicted; they typically have a concave or indented appearance. J's lesions he described as quite superficial.[44] Dr Wiltshire accepted that the lesions might have been an infection that was nearing the end of its healing phase; they might also be consistent with healing trauma for burns. There was really no way of differentiating those possibilities when he saw J. Asked to compare the photographs of deliberately inflicted cigarette burns with the lesions on J's foot, he said that the lesions were not typical of such burns. They were raised and red and were oval rather than circular in shape. [45] Neither doctor was willing to speculate, understandably, on how easy it would be to hold J down and inflict a number of cigarette burns on the sole of her foot. J, I was given to understand, is larger than her mother, who is not a big woman; the record contains a reference to J's weight of 90kg. The Judge did not refer to this point in his reasoning. [46] The Judge did not deal with the lesions and the genital injury separately in his reasoning, which appears at paragraph 74-84 of the judgment. I accept Mr Corkill's submission that he attached significance to J's use of the word "cigarette". He held that it appeared that the burns on J's foot were almost a continuum of the situation described before Judge Mill. He was fortified by evidence, and Judge Mill's finding, that J could not be coached to make any particular statement. I take it from this that he relied heavily on J's reported statements. It appears, although he did not expressly say so, that he found that the lesions were caused by cigarette burns. He relied on Dr Chew's evidence that the marks on her foot would be a few days old but less than one week old, and that they would not have occurred within the previous 24 hours, so they must have occurred while J was with her mother. He appears to have concluded that the absence of previous complaint, to Dr Fitzsimons or at school, may have been due to J's high pain threshold. I observe that J may well have a high pain threshold, but that conclusion is difficult to reconcile with Dr Chew's evidence that she was crying when he saw her. [47] Perhaps because the Judge did not analyse the two injuries separately, he did not specifically refer in his reasoning to the oral evidence of Dr Wiltshire and Dr Chew (he did summarise the evidence earlier in his judgment). In my view, neither witness established that the lesions on J's foot were attributable to cigarette burns. On the contrary, Dr Wiltshire's evidence is positively inconsistent with cigaretteburns; the lesions were not only too shallow to be characteristic of deliberate burns but also were the wrong shape. Mr Gimblett invited me to rely more heavily on Dr Chew's initial evidence since he saw J two days before Dr Wiltshire did, but I declined to do so; Dr Chew based his evidence on what Mrs B told him, and he had no experience of burns of this sort. [48] That leaves J's statements to Mr Sakaria and Dr Chew. She undoubtedly said "sore, sore, Mum's cigarette, Mum's cigarette". This evidence troubled me greatly, as it undoubtedly did Judge McAloon. It must be considered, however, in light of Dr Fitzsimon's evidence which suggests that J could not form meaningful word associations of that kind without constant repetition. It is unfortunate that the Judge did not have the benefit of psychological evidence. [49] Counsel referred me to reports by Ms Keith and another psychologist, Prue Vincent, in 1998 and 1999. When Ms Vincent reported on 13 October 1998, she said that J's language was characteristic of the earliest stage of life (around two years of age). It was difficult to ask her to access memories unless there was an association that was meaningful to her, and accessing her memory was further complicated by the fact that lacked language skills to express herself, and further by the fact that her memories were likely to be stored as sensations that she had not processed in any cognitive way. She was, however, able to convey information about what had happened to her. She could convey telegraphically memories of events that had affected her and could use the words burn and sore meaningfully and in appropriate context. She lacked the mental capacity to invent things or to lie, or to incorporate and use what she had heard from others. She could give accurate accounts of associations. [50] Commenting on Ms Vincent's report, Miss Keith added that "sequences can obtain a reinforced value which can give the utterances a semblance of meaning by way of the manner of expression that may in fact simply reflect the attention that the utterances are given." J might be communicating appropriate or abusive experiences; she might in effect be playing with language. In her 4 December 2000 report, Miss Keith confirmed highly autistic features, notably the quite ritualised speech and language repetitions that she used in dealing with the Bs. Those speechreiterations were to be contrasted with simple conversational speech which at times worked quite effectively within a restricted range between J and her caregiver of the moment. When the listener attempted to interact across both styles of speech utterances (the autistic repetition and her attempts to communicate), confusion resulted and this was evident in the Bs' interactions with J. [51] I do not think that it is possible to conclude that J had been burned with a cigarette in reliance on her reported statements alone. The record indicates that repeated statements of this sort may evidence not communication but rather ritualised repetition of the sort noted by Dr Fitzsimon. I prefer to rely on his evidence, the previous psychological opinions, and the inherent improbability that CET-E could hold J down and inflict such burns on her, let alone that CET-E, knowing of the history of abuse allegations, would inflict visible injuries just before a change of custody. The use of the word "cigarette" highlights a further difficulty in relying on J's account; that is a word that the Bs use, and J's use of it raises the possibility that she has adopted their account of her injuries. [52] Mr Corkill also argued that the evidence did not show that J suffered these injuries while in CET-E's care. As to that, the Judge relied on Dr Chew's evidence that they would be a few days old but less than one week old. Apart from the doctor's inexperience with cigarette burns, Mr Corkill pointed to the absence of any symptoms on 1 February. In my view, it was open to the Judge to find that the lesions were suffered before J left CET-E's care; Dr Chew saw her only a day later. [53] My conclusion, however, is that the respondent failed to show on the balance of probabilities that J had been burned with cigarettes at all.Genital injury[54] Allegations of sexual abuse of J have been longstanding, although previous medical examinations revealed no evidence consistent with it. These allegations had focused on CET-E's partner and father of her two youngest children. There is certainly evidence from which the Court could conclude that he is an undesirable person who should not have care of or access to J. However, the unchallengedevidence before Judge McAloon was that he was no longer a presence in J's life and had not been for two years. He has a new partner. There was no evidence to suggest, therefore, that he posed a continuing risk for J or that he might have inflicted the genital injury. At no time has it been suggested that CET-E has abused J sexually, and no such allegation was put to her in the Family Court. Nor was any other candidate identified. [55] The respondent's case on the subject of the genital injury rested on the evidence of Ms Elder. As mentioned, she prepared two reports, and the second, following examination under general anaesthetic, recorded that the trauma could have been inflicted or due to an accident. It was not possible to differentiate on the physical findings alone. [56] In oral evidence, Ms Elder said that this was not a specific type of trauma and that one could not determine the cause just by looking at it. She observed that it is a little less likely for older children to suffer an accidental straddle injury; they tend to be more stable in terms of mobility. Asked whether most girls of J's age would have suffered that sort of injury, she responded that it was an unusual injury, not common. She thought "some serious force" would be required to cause the injury. Sexual abuse might have caused the injury, as could an accident or inflicted physical injury with more physical than sexual intent. She could not say on the physical findings that one of those was more likely than the other in the absence of any other history to go with. Basically the only history she had was the complaint of soreness. It does not appear that there was any evidence of complaint by J, apart from a sore bottom which can be accounted for by a urinary tract infection. [57] The Judge referred to the earlier judgments and said that he believed he was entitled to take into account the background "and the fact that the internal examination by Dr Elder was indeed thorough and produced an outcome which does inter alia point to abuse". The Judge went on to hold that it was quite plain that there was an injury and it was unlikely that it was self-inflicted and probably not accidentally inflicted. He also referred to Dr Elder's evidence that some serious force would be needed to cause the injuries described, and that sexual abuse or accidental injury were the most likely causes.[58] Again I find myself in the unhappy position of disagreeing with the Judge. Dr Elder's evidence was that based on the physical examination alone, which is all she had to go on; she could not say that one cause was more likely than the other. The Judge referred to the history of allegations, but none of those were made out. Nor did he appear to recognise that the previous allegations focused on CET-E's partner, who was no longer on the scene. The Judge did refer to s.71, noting that it was not necessary for the respondent to prove who inflicted the harm. It might have been someone else to whose care J had been temporarily entrusted. But the absence of any identified candidate cast doubt on the respondent's case that the genital injury was the result of abuse. [59] The Judge must have concluded that J was injured while in the custody of CET-E because, invoking s71, he held "I am not able on the evidence before me to state when the injury took place or whether J was in her mother's care at the time, or had been placed with someone else by the mother. This in fact is the situation which is envisaged by s.71 of the Act." But Mr Corkill pointed out that the expert evidence did not establish that the injury occurred before the Bs assumed custody of J. The only evidence about timing of the genital injury is that of Dr Elder, and she was not able to say when the injury occurred. She could not rule out the possibility that it occurred after 1 February on examination alone. J did not complain of a sore bottom when she saw Dr Chew. On the evidence, then, the respondent failed to prove that the injury happened in CET-E's care. [60] It follows that the respondent failed to make out its grounds for an interim order removing J from CET-E's custody.Conclusions and relief[61] The appeal succeeds. It remains the position, as it was before Judge Ellis and Judge Mill, that the evidence does not establish that J had been abused or deliberately harmed while in CET-E's care. [62] The question of relief is one of some complexity. J is now 16; for that reason, counsel advised, it is not possible to revert to the former joint custodyarrangement made under the Care of Children Act. Orders made under the Children Young Persons and their Families Act may subsist, however, until J's 17th birthday on 5 December this year. At that point, the respondent's obligations in respect of her will cease. I was told that it appears likely that someone will move to have her made a ward of the Court. [63] Under ss.78 and 79 of the CYPF Act, I could substitute an order having the effect of the former custody orders. But complicating matters is the extremely limited contact between J and her mother since she was removed in February 2005. They have seen one another only three times. Ms Doyle was inclined to blame CET- E for that, pointing out that she has failed to apply to the Family Court for supervised access and attributing that to a refusal to accept supervision. One might have thought that the respondent would offer to facilitate supervised access without need of a Court order. CET-E's evidence before the Family Court was that she had spoken to J's teachers and monitored her progress but that supervised access would only do more damage because J would want to go home with her when they met. [64] Whatever the explanation, it would not be appropriate to revert immediately to the former arrangement after the lapse of more than 18 months. J must remain with the Bs for the time being. Nor is it appropriate that this Court assume responsibility for reviewing J's present needs and proposed care arrangements. Instead, I will allow the appeal and set aside the interim order made in favour of the respondent, but order that this judgment lie in Court for a period of four weeks from today's date to allow the parties to seek an interim order under s.78. [65] I was not told whether CET-E is legally aided. In the event that she is not, memoranda may be filed as to costs."In accordance with r 540(4) I direct the Registrar to endorse this judgment with a delivery time of 3.00 pm on the 17 th day of October 2006."F Miller JSolicitors:Harrison Law, Porirua City for Appellant Rainey Collins, Wellington for Respondent Catriona Doyle & Rohan Cochrane Law Office, Porirua for Child