Introduction

[1] This case involves consideration of what happened to an infant in the first six to eight weeks of her life. Baby By suffered injuries which have required significant medical intervention and ongoing treatment. The primary issue for determination is the cause of the injuries suffered by the infant. In this regard the Court has heard a significant body of medical evidence in an effort to resolve this question.

[2] The proceedings commenced with the apprehension of the children following baby By's admission to the British Columbia Children's Hospital on October 22, 2007. The Presentation hearing pursuant to s. 35 of the Children, Family and Community Services Act (the “Act”) was held December 14, 2007. The matter was set for hearing twice but each time the matter was adjourned by the parties. The trial commenced on January 14, 2010 and exceeded the original time set aside to hear the matter. As a result continuation dates were scheduled through to the fall of 2010. The matter culminated with the 'filing of the parents' reply to submissions on November 8, 2010.

[3] The Director has applied pursuant to s. 41 (1) (d) that the three children, K, Bn and baby By, be placed in the continuing care of the Province.

Relevant Legislation

[4] The provisions of the Act relevant to this application include:

Guiding principles

2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles:

(a) children are entitled to be protected from abuse, neglect and harm or threat of harm;

(b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;

(c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;

(d) the child's views should be taken into account when decisions relating to a child are made;

(e) kinship ties and a child’s attachment to the extended family should be preserved if possible;

(f) the cultural identity of aboriginal children should be preserved;

(g) decisions relating to children should be made and implemented in a timely manner.

Best Interests

4 (1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child's best interests, including for example:

(a) the child's safety;

(b) the child's physical and emotional needs and level of development;

(c) the importance of continuity in the child's care;

(d) the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship;

(e) the child's cultural, racial, linguistic and religious heritage;

(f) the child's views;

(g) the effect on the child if there is delay in making a decision.

(2) If the child is an aboriginal child, the importance of preserving the child’s cultural identity must be considered in determining the child's best interests.

Orders Made at Protection Hearings

41 (1) Subject to subsection (2.1), if the Court finds that the child needs protection, it must make one of the following orders in the child's best interests:

(a) that the child be returned to or remain in the custody of the parent apparently entitled to custody and be under the director's supervision for a specified period of up to 6 months;

(b) that the child be placed in the custody of a person other than a parent with the consent of the other person and under the director's supervision, for a specified period in accordance with section 43;

(c) that the child remain or be placed in the custody of the director for a specified period in accordance with section 43;

(d) that the child be placed in the continuing custody of the director.

(1.1) When an order is made under subsection (1) (b) or (c), the Court may order that on the expiry of the order under subsection (1) (b) or (c) the child

(a) be returned to the parent, and

(b) be under the director's supervision for a specified period of up to 6 months.

(2) The Court must not order under subsection (1) (d) that the child be placed in the continuing custody of the director unless

(a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found,

(b) a parent is unable or unwilling to resume custody of the child, or

(c) the nature and extent of the harm the child has suffered or the likelihood that the child will suffer harm is such that there is little prospect it would be in the child's best interests to be returned to the parent.

(2.1) If an order was made under section 33.2 (2), the child has not been removed since that order was made and the Court finds that the child needs protection, the Court must order that the director supervise the child's care for a specified period of up to 6 months.

(3) The Court may attach to an order under this section any terms or conditions recommended by the director to implement a plan of care.

[5] Section 41 (1) sets out the orders that the Court can make at a Protection hearing if the children are in need of protection, which includes placing the children in the continuing care of the Director. However, a continuing custody order must not be made at this stage of the process unless the harm the children have suffered or are likely to suffer is such that there is little prospect that it would be in the children's best interest to be returned to the parent.

[6] Counsel for the Director submits that in this particular case the three infant children are in need of protection and that in the circumstances of this particular case they should be placed in the continuing care of the Director. Counsel for the Director submits that baby By suffered either a non accidental injury or unexplained injuries of significance while in the care of her parents. In failing to discharge their duties, the parents have placed the children at risk of further physical harm and as a result they are in need of protection. The Director then submits that based on the lack of taking steps to remedy the situation giving rise to the finding, and the lack of evidence before the Court, the children should be placed in the continuing custody of the Director.

[7] The parents submit that baby By's injuries were as a result of the child Bn falling on his sister and his head striking hers. This was the cause of all the injuries except the metaphyseal fracture which was caused in the course of baby By undergoing medical procedures at the MSA Hospital in Abbotsford, B.C. Accordingly, the children should be returned to the care of their parents.

[8] An application pursuant to s. 41 contemplates a 2-stage process:

a. In the first stage the Court must be satisfied that the children are in need of protection; and

b. In the event that the Court finds the children in need of protection, the second stage is to determine whether they should be placed in the continuing care of the Director.

Stage One

[9] The first stage of the application focuses on the issue of whether or not the children are in need of protection. It is the Director's position that at the time of the removal on October 22, 2007, the children were in need of protection.

[10] The central issue to resolve at this stage is what happened to baby By? There is little issue with the assertion that baby By suffered injuries which occurred while in the parents' care. The circumstances surrounding how baby By incurred the injuries are the central focus of this proceeding.

[11] Section 13 of the Act outlines the basis on which a protection “finding can be made. Section 13(1) provides:

13(1) A child needs protection in the following circumstances:

(a) if the child has been, or is likely to be, physically harmed by the child's parent;

(b) if the child has been, or is likely to be, sexually abused or exploited by the child's parent;

(c) if the child has been, or is likely to be, physically harmed, sexually abused or sexually exploited by another person and if the child's parent is unwilling or unable to protect the child;

(d) if the child has been, or is likely to be, physically harmed because of neglect by the child's parent;

(e) if the child is emotionally harmed by the parent's conduct;

(f) if the child is deprived of necessary health care;

(g) if the child's development is likely to be seriously impaired by a treatable condition and the child's parent refuses to provide or consent to treatment;

(h) if the child's parent is unable or unwilling to care for the child and has not made adequate provision for the child's care;

(i) if the child is or has been absent from home in circumstances that endanger the child's safety or well-being;

(j) if the child's parent is dead and adequate provision has not been made for the child's care;

(k) if the child has been abandoned and adequate provision has not been made for the child's care;

(I) if the child is in the care of a director or another person by agreement and the child's parent is unwilling or unable to resume care when the agreement is no longer in force.

(1.1) For the purpose of subsection (1) (b) and (c) and section 14 (1) (a) but without limiting the meaning of “sexually abused” or “sexually exploited”, a child has been or is likely to be sexually abused or sexually exploited if the child has been, or is likely to be,

(a) encouraged or helped to engage in prostitution, or

(b) coerced or inveigled into engaging in prostitution.

[12] The Director submits that the children are likely to be harmed as a result of the injuries suffered by the infant child. In other words, the Director submits that baby By suffered from unexplained injuries while in the care of her parents. Given the unexplained nature of the injuries this puts all three children at risk that they are likely to be physically harmed by the parents, through their failure to protect the children or through neglect. As a result they are in need of protection.

 

Chronology

[13] Mr. B is 35 years of age. Mrs. B is 38 years of age. Mr. and Mrs. B have been married for approximately nine years and have three children: K, born October 18,2004; Bn, born June 12,2005; and By, born August 3,2007.

[14] In early 2005 Mr. B suffered a fairly significant work related injury that forced him to be off work for a number of months. Mrs. B indicated that the residual effect of the accident was that Mr. B suffered from migraine headaches. He had difficulty with noise and his balance. She indicated that he had a problem with the sound of children crying and he would at times put on ear muffs in an effort to block the noise. As well, he would go down to the basement in an effort to avoid the noise.

[15] Due to Mr. B being off work, the family finances were “tight” following the accident.

[16] Mrs. B had what could be described as high risk pregnancies; the child K was born approximately 6 weeks premature and the child Bn was born very premature at 25 weeks. The child Bn was hospitalized for approximately 10 . weeks and discharged on September 6, 2005. While he was in hospital he had a number of medical problems.

[17] On December 31, 2005, the child Bn suffered from what Mrs. B described as an apnoeic attack. The child was placed in the baby bassinette while Mrs. B stepped into the bathroom. She came out of the bathroom a short time later and observed Mr. B with the child in the bedroom behind the bathroom door. According to Mrs. B the child Bn was not breathing. The child resumed breathing and was taken to the doctor the next day.

[18] For the next two weeks the parents took turns watching the child to ensure that the problem did not reoccur.

[19] The Bs went to the food bank in Langley, B.C. on the morning of January 13, 2006. The two children, K and Bn, were in their car seats and remained in the vehicle while Mrs. B went into the food bank. She was in the food bank for approximately 45 to 60 minutes. When she returned, the child Bn was crying; in fact it was her understanding (from her husband) that the child Bn had been crying for most of the time she had been away from the car.

[20] It was noted that the child Bn's crying was different than his normal crying sounds.

[21] The family returned home, at which point they discovered that the child Bn's right arm appeared to be limp. As a result, they went and had the child examined at the Langley Memorial Hospital later that same morning. The child was x-rayed and was observed to have a traverse fracture and two old fractures to the right arm. The breaks, according to the limited assessment of Dr. Hlady, were thought to be suspicious and indicative of physical abuse.

[22] As a result of the findings, Dr. Hlady notified the Ministry. Social worker Gail McQueen was assigned the file and commenced an investigation. The RCMP was contacted and a criminal investigation was initiated.

[23] As a result of these developments, a safety plan was put in place by the social worker. Mrs. B would remain in the home with the child K. The child Bn was admitted to the hospital and upon his discharge would return to live with his mother. Mrs. B's mother would assist Mrs. B in the care of the children. For the time being Mr. B would relocate to his in-laws' basement suite and have no contact with the children and not attend the residence.

[24] Following his interview with the RCMP, Mr. B was charged in connection with the injuries to the child Bn.

[25] Between January 14 and February 9, there was considerable medical investigation undertaken with respect to the fractures suffered by the child Bn as well as an examination into the child K's well-being. The examination and assessment included the participation of a number of health care professionals.

[26] After viewing additional x-rays and consulting with her colleague, Dr. Hlady modified her initial view. She opined in a letter dated February 15, 2006 (Exhibit 44) that the fractures are almost certainly related to his extreme prematurity.

[27] Dr. Whitfield, a neonatologist, opined in a letter dated February 7,2006 (Exhibit 2) that the fractures suffered by the child Bn are related to osteopenia of prematurity.

[28] Based on the medical results received, the Ministry completed the investigation and concluded there was no further need for Ministry involvement. This was confirmed in the letter dated February 14, 2006, (Exhibit 1).

[29] As a result the Ministry closed their file and the criminal matter ended. Mr. B returned to the family home in Langley, B.C. and continued working in the Surrey area.

[30] The Bs moved to Hope, B.C. in August 2006. Mr. B returned to work shortly before the move and was employed by a company in Aldergrove. The move was brought about, according to Mrs. B, by their desire to acquire a one-level home with land. The Town of Hope was an attractive area in that housing was more affordable, Mr. B could continue to commute to work and Mrs. B would also be able to teach piano. They moved into the house and this is where the family resided through to the time that baby By was apprehended.

[31] Upon moving to Hope, the family became involved in a local church which they attended regularly. Mr. B became a member of the church board soon after the move. This was a position he held until his resignation in August 2007. The Bs met a number of people on their move to Hope; a number of the acquaintances were people involved in the church, including Mr. and Mrs. Hoffman, the pastor of the church and his wife. They socialized together between fall 2006 and spring 2007.

[32] In October 2006 Mrs. B became pregnant with baby By. Her pregnancy was a difficult one.

[33] Due to the previous premature birth of the child Bn at 25 weeks, healthcare providers expressed concern over the pregnancy. At 12 weeks, Mrs. B received a cervical stitch. She was directed to rest for a period of four months from February to May 2007.

[34] This was a somewhat stressful period for the Bs. Mrs. B remained at home with Mr. B, caring for the children during the day. Mr. B would travel back and forth to Aldergrove to work. Mrs. B's mobility was curtailed due to the concerns over the pregnancy. At the same time, the two young children, (K, now age 2½ and Bn, age 2) placed significant demands on the parents in terms of the care and attention they required.

[35] During this time, the Hoffmans provided some assistance by dropping over to the home, bringing food and socializing with the family.

[36] Mr. B's employment was subsequently terminated due to a lack of work and closing down the night shift. As a result, the family income was reduced to UIC benefits and the small amount of earnings Mrs. B saved when she was able to teach piano.

[37] According to Mrs. Hoffman, she felt that the two families were pretty close by the end of 2006. The relationship continued, but in the months leading up to the birth of baby By, there was less and less contact with the Bs. Mrs. Hoffman said she felt the B family was becoming isolated.

[38] At some point in time there was what can be described as a falling out between the Bs and the Hoffmans over a disagreement regarding Mrs. B working for Mrs. Hoffman, teaching music at the studio that Mrs. Hoffman was opening up. Mrs. Hoffman indicated that Mrs. B had previously committed to teaching music in her studio, and then decided not to about 2 weeks before Mrs. Hoffman's business was set to open. Mr. B resigned from the church board and the two families did not see each other or communicate as frequently as they had previously.

[39] In the last three months prior to baby By's birth, Mrs. B's situation did not improve; the pregnancy continued to be a difficult one. During this period of time, she rested and spent more time in bed. She rarely went outside.

[40] Mrs. B took no supplements during the pregnancy due to the Bs' limited financial situation; she was unable to afford them.

[41] Baby By B was born August 3, 2007. She was born premature at 34 weeks gestation. Baby By remained in the hospital for the first two weeks. In the hospital, there was a concern over her lack of feeding and her loss of weight. As a result, she was fed formula.

[42] Baby By was released from hospital on August 17, 2007. The first two weeks at home, she appeared to be progressing normally. There was always a concern about baby By's need to gain weight but she appeared to be doing reasonably well. During that period she was seen by public health and family health care providers and no concerns were noted.

[43] There were no reported difficulties in the first two weeks of September. Both parents were at home caring for the three children.

[44] Mr. Hoffman indicated that following baby By's birth the B family had become more remote in his view, and there was less and less contact with the family.

[45] In the later part of the month of September, baby By developed medical issues.

[46] On September 23, shortly before dinner, Mrs. B finished breast feeding baby By and placed her on a blanket on the living room floor. She was laid down on a carpeted area below an alcove which provided an opening between the living room and the kitchen. According to Mrs. B, her husband was in the kitchen cooking the evening meal and watching over baby By. Mrs. B returned to the bathroom adjoining the master bedroom to express breast milk. The child K and the child Bn were on the main level of the residence playing.

[47] Baby By had been lying on her tummy on the carpet for about 15 minutes when Mrs. B came out of the bathroom and reached the bedroom door. At this moment she observed the child Bn stumble and fall on top of baby By. She observed that the child Bn's head was on top of baby By's head. Mrs. B went over to where the two children were located and pulled the child Bn off baby By and picked her up. Baby By whimpered but was not crying. Mrs. B checked baby By and the child Bn and did not note any bruising or sign of injury on either of them.

[48] Later the same evening, Mrs. B thought baby By was not feeding as well as she had been previously. Over the next several days, Mrs. B noted that baby By continued to eat less.

[49] On September 26, 2007, shortly after breast feeding, baby By was again placed on the living room floor in a similar fashion as had been done on the earlier occasion. Mrs. B returned to the bedroom to express breast milk. About 15 minutes later, she came back into the living room and observed Mr. B holding baby By with his finger in her mouth as if he was checking for something lodged in her mouth.

[50] She noted the child had vomited and she was gasping for air. It was apparent to her that baby By was not doing well and both she and her husband became frantic. Mr. B was slapping baby By's back and attempting CPR on her.

[51] Mr. and Mrs. B gathered up the two boys. Mr. B held baby By, jumped down the stairs leading from the front door to the walkway and went to the family vehicle. The boys were put into the family vehicle. Mr. B passed baby By to her mother, who was seated in the vehicle, and he drove them all to the Hope Hospital located about 10 blocks away.

[52] At the hospital, baby By was seen by Dr. Fourie. The child was given oxygen, observed for about one hour and discharged. The Bs returned home.

[53] A few hours later, at approximately 1:00 am the next morning, the Bs returned to the hospital in Hope, B.C. The parents had observed that baby By was not feeding and was unable to move her limbs.

[54] The child was transferred, by the parents, to the MSA Hospital located in Abbotsford, B.C. Baby By was admitted to the MSA Hospital. She was seen by Dr. Sorial, a pediatrician. She was found to be anemic; she had very low hemoglobin of 77. Her head circumference was larger than usual. She was watched for a period of time and then discharged. The doctors there believed she may have been suffering from a reflux disorder.

[55] On September 30^th, the parents took baby By to the emergency department at the hospital in Hope, B.C. as they continued to be concerned about her ongoing vomiting and the fact there was something unusual about the way she cried. The doctor was of the view the child was constipated.

[56] Baby By was seen for a follow up consultation with Dr. Sorial on October 3, 2007 at which time it was noted her weight had dropped since her admission on September 2ih, from 3.3 to 3.1 kilograms.

[57] While the foregoing events were taking place, the Hope office of the Ministry of Children and Family received a call on October 1, 2007 relating to a concern over the welfare of the B children. The call was from the Hoffmans who had become concerned that the family had become withdrawn and that the children looked underdeveloped and had recently been taken to the hospital in Hope. Mr. Gulbot, a social worker and team leader for Hope, took the call. Upon receiving the information and completing the preliminary in-office assessment, he developed an action plan, which included conducting a home visit.

[58] Mr. Gulbot and Ms. Adams, a social worker with the Hope office, attended the B residence on the same date. They inspected the home and had a discussion with the parents, who provided information as to the ongoing supports in place for the children, particularly relating to the child Bn and baby By's premature births.

[59] During the consultation there was a discussion pertaining to the visit to the Hope hospital the preceding Wednesday, September 26 when baby By had stopped breathing.

[60] Follow-up calls were made to the health care professionals who were involved in the children's care including the family doctor, public health nurse and support staff working at Hope Family Place.

[61] In light of the initial concerns raised, the results of the interviews, the willingness of the parents to engage in programs and the available supports the decision was made to develop a collaborative plan to identify risks and to build up supports for the family rather than commence an investigation.

[62] As a precautionary matter, the Ministry requested an assessment of the children be conducted by the children's family physician. This was completed on October 13, 2007 and no medical concerns were identified.

[63] As part of the plan, Ms. White from Hope Community Services was assigned to assist in developing the supports which may be beneficial to the family. Other than the feedback received from the family physician and Ms. White, there were no new calls or concerns regarding the family following the home visit until Mr. Gulbot received a call from Ms. Green, a social worker at BC Children’s Hospital.

[64] By October 6^th, Mrs. B was concerned over baby By's medical issues. She was taken to the Fraser Canyon emergency department in Hope with a history of nausea and vomiting over nine days. She was transferred to the Chilliwack Hospital and subsequently to the MSA Hospital. During baby By's hospitalization from October 6 to 9^th, a number of tests were conducted, including a lumbar puncture, and x-rays were taken. Mrs. B noted the difficulty that the nursing staff had in placing the infant in the appropriate position for x-rays to be taken and the lumbar puncture to be administered.

[65] In the course of this procedure there was blood noted. When analyzed, this was determined to be blood which had been in the cerebrospinal fluid for some time as opposed to fresh blood caused by the procedure to complete the lumbar puncture. This fact would subsequently be relevant in determining the age of the bleeding in the skull. A number of other tests were conducted with negative results. The doctor was concerned over the larger than normal head circumference of By and ordered a CT scan. Due to the unavailability of staff to complete the CT scan, it was deferred. Baby By was discharged and returned home after several days.

[66] On October 16, 2007, baby By was seen for a follow up consultation with Dr. Ebesh who noted she had an enlarged head. As a consequence, an ultrasound and CT scan were arranged

[67] On October 18, 2007, baby By saw Dr. Ebesh and a CT scan was conducted at the MSA Hospital. A large fluid collection was observed to be located in her skull, and the Bs were advised to take the child to Children's Hospital. On arrival at the emergency department of Children's Hospital, baby By was seen by Dr. Cochrane, a neurosurgeon. Later she was seen by Dr. Colbourne, a pediatrician and the child protection doctor on call that week.

[68] Children's Hospital Child Protection Team is a multidisciplinary team comprised of pediatricians, social workers, nurses, administrative assistants, psychologists and psychiatrists. The team takes referrals from all over the province relating to concerns of child maltreatment including physical abuse, sexual abuse and neglect.

[69] Upon being consulted, Dr. Colbourne met baby By and the parents in the emergency department. She obtained a history, examined the child, and outlined the various investigations that needed to be done to determine the extent of the infant's injuries. During the initial discussion the doctor learned that some time towards mid to late September there was an episode where baby By's brother had fallen on her but that she seemed all right. In addition, Dr. Colbourne spoke to Dr. Ebesh and Dr. Sorial to obtain details of their involvement with the child.

[70] Baby By was admitted to the hospital and stayed there from October 19 to 25, 2007. In addition to various procedures and assessments undertaken, a shunt was inserted in order to drain fluids which had accumulated in the subdural area. This took place on October 19, 2007.

[71] The children were removed on October 22, 2007. Baby By was in Children's Hospital and social workers went to the hospital on the direction of Mr. Gulbot to remove her. The parents were there and were advised of this. Social workers Humeny and Gulbot attended the maternal grandparents' residence in Surrey where the boys had been staying and advised they were being removed from the parents' care.

[72] The removal of the children by the Director was based upon the views expressed by the doctors at Children's Hospital: Dr. Poskitt (radiologist), Dr. Gardiner (pediatric ophthalmologist), and Dr. Colbourne (pediatrician).

[73] The decision was made to leave the children K and Bn in the care of the grandparents, as this was deemed the least intrusive measure or course of action. Baby By was discharged from Children's Hospital on October 25,2007 at which point she was placed in a foster home.

[74] A Report to Court was filed at the Presentation hearing which was heard on December 14, 2007. At this time an Interim Order was made by placing the children in the interim care of the Director, (see Exhibit 93.)

[75] Over the course of the next few months, the children lived separately: the two boys with the grandparents and baby By in a foster home. The parents were active in the children's lives though limited by the Court order in place. The order specified supervised access, and it was the Director who arranged supervision services.

[76] There were attempts to resolve the matter in whole or in part through mediation. The first such session was held March 7, 2008, but a resolution was not achieved. A second mediation session was held May 16, 2008.

[77] There is an issue as to whether the May 16^th session produced a resolution to some of the outstanding issues. The parties met on this date for a further mediation meeting. The parties left the meeting having produced a document which set out terms on which the two older children would be returned to the parents' care. The agreement provides for a partial resolution of the matter. The agreement provided for the return of the two older children to the parents' care under a supervision order on various terms and conditions. These included a term that the parents would allow the social worker to inquire about the children and to have access to them. The agreement also provided that “the parties are to meet again in mediation on July 16^th, 2008 ... “

[78] The agreement goes on to state “this document contains the whole agreement made between the parties” and that it will be filed with the Court. The agreement appears to be signed by a number of people including the two social workers having conduct of the file, and the parents.

[79] In May 2008, the two older children, who were the subject of this arrangement, were living with their maternal grandparents, as were their parents. There was no implementation plan referred to in the agreement and when they left the meeting Mrs. B testified that it was her understanding, based on the discussions at the meeting, that the two older children were now in the parents' care and the parents could act as they wished with regards to the children, subject to the terms which had been agreed to.

[80] Shortly following the mediation session, a news story appeared on a television newscast that showed an interview with Mr. and Mrs. B and the children. The interview was conducted at the residence of the maternal grandparents. This was observed by Mr. Humeny who advised Mr. Gulbot. From Mr. Humeny's perspective this was a problem. He testified that as far as he was concerned, it demonstrated the parents had no intention of working with the Director, and the children's privacy was breached. As the children were in the Director's care, this raised a concern. In addition, since the grandparents had the children in their care at the time of the interview, it raised a question in the social worker's mind whether they were exercising appropriate control in the residence.

[81] Mr. Gulbot, the supervisor, expressed similar concerns.

[82] It is clear that following the broadcast, the relationship between the Ministry and the parents deteriorated.

[83] Following the broadcast, attempts were made by the social worker to discuss the situation. Calls made to the grandparents' home were not returned.

[84] On June 12^th, social workers Gulbot and Humeny and a police officer attended the residence of the grandparents unannounced. They arrived in the course of a birthday celebration organized for one of the boys.

[85] The Ministry removed the two boys from the residence and placed them in the care of a foster home in the Agassiz, B.C. area. The two boys were in the foster home from June 2008 to January 2009. During this time, the parents exercised supervised access to the extent they were permitted.

[86] During this period, baby By continued to reside in a different foster home.

[87] In January 2009 the children were reunited in one foster placement, operated by Tracy. Having all three children located in this resource was a temporary placement. This resource did not have the capacity to care for all three children on a long-term basis. As well, it was the Ministry's position to locate the children in a resource which was closer to where the parents reside. By this time, the parents had moved from Hope to Surrey.

[88] Accordingly, once a foster resource was located in closer proximity to where the parents resided, the two boys were relocated there and baby By joined her brothers in October 2009. The three children have been together in this home since that time. The children have done well in the placement.

[89] While in the Ministry's care, the children's medical needs have been addressed and monitored:

a.    The shunt which was originally placed during baby By's initial stay at Children's Hospital in October 2007 was removed;

b.    Baby By is involved in the Children's Hospital Infant Outpatient program. She is receiving physiotherapy and has regular contact with the pediatrician.

c.    The child K has no identifiable special needs or concerns;

d.    The child Bn participates in the infant development program, physiotherapy, and speech therapy.

Medical Evidence

[90] A number of Doctors testified at trial and a number of reports were filed. The Director relies on the expert evidence of Dr. Sargent, Dr. Gardiner, Dr. Colbourne and Dr. Alexander. The parents rely on the expert evidence of Dr. Plunkett and Dr. Barnes as well as the opinions expressed in writing filed on behalf of Dr. Gardner, Dr. Galaznick, Dr. Butt, Dr. Monson, Dr. Innis, Dr. Van Ee, and Dr. Stephens.

Dr. Sargent

[91] Dr. Poskitt was the consulting radiologist in October 2001. Dr. Poskitt retired and was not available to testify at the hearing. As a result, arrangements were made for Dr. Sargent to review the images and to testify at the trial. Dr. Sargent is the head of radiology at Children's Hospital. In preparation for undertaking the review and providing his opinion, Dr. Sargent had a conversation with Dr. Colbourne, at which time he was provided with brief information pertaining to the request.

[92] The initial request for Dr. Sargent's participation was made after Dr. Colbourne had completed her testimony on February 4, 2010. Dr. Sargent prepared a written summary of his findings dated February 17, 2010 (Exhibit 82).

[93] Dr. Sargent's findings are as follows:

a. Metaphyseal fracture of the proximal left femur;

b. A right parietal skull fracture;

c. Subdural collection;

d. Possibility of a brain injury.

[94] Dr. Sargent is unable to say with certainty how many, if more than one, traumatic events caused the injuries. In part this is because the age of the femoral fracture and the subdural haemorrhage overlap. Dr. Sargent found no evidence that the child suffered from congenital rickets.

Dr. Barnes

[95] Dr. Barnes is the Chief of Pediatric neuroradiology at the Lucile Salter Packard Children's Hospital, Stanford University Medical Centre in Palo Alto, California.

[96] Dr. Barnes reviewed a number of documents and images in preparing his opinion, which was summarized in a written report dated July 15, 2008.

[97] Dr. Barnes also found:

a.    a large right parietal skull fracture;

b.    very large chronic subdural collections;

[98] These findings are entirely consistent in his view with the history of impact of head trauma (and associated unilateral retinal haemorrhage). During his testimony, Dr. Barnes agreed with the suggestion that it would require a significant force, particularly impact to cause the skull fracture. Later, this was modified and he could not state the degree of force required.

[99] Dr. Barnes disagreed with Dr. Sargent as to whether baby By sustained a metaphyseal fracture of the proximal left femur. He noted a number of features which strongly indicate the presence of a metabolic or dysplastic bone condition, congenital rickets.

[100] Dr. Barnes acknowledges that there is a possible injury to the brain.

[101] Dr. Barnes held the view that it was not possible to date the fluid collection. He said it could be recent or it could be old. He stated that, based on the medical information available to him, the fluid collection could date from pre-birth, birth, or some time following the birth.

[102] Dr. Barnes is of the view that baby By suffered from a vitamin D deficiency and had congenital rickets.

[103] Congenital rickets is a disease affecting infants less than 6 months of age which is due to vitamin D deficiency and is defined as an interruption in the development and mineralization of the growth plate of bone. Dr. Barnes stated that congenital rickets is a “bone fragility disorder” and infants can sustain fractures from minor traumatic episodes “that we wouldn't even consider as trauma”. An insufficiency/deficiency of vitamin D levels in the blood does not constitute rickets, but it creates susceptibility to the condition. In his view, congenital rickets could not be eliminated as a possible cause without conducting such a test.

[104] Dr. Barnes notes that vitamin D deficiency rickets is persistent in Canada, particularly among children who reside in the north and who are breastfeed without appropriate vitamin supplementation. In this case, Mrs. B was advised by a family physician to provide vitamin D supplements to baby By, which she testified she did do. Dr. Barnes notes that the recommended dosage was one-half of the Canadian guideline amounts, which caused him some concern.

[105] Upon examination of the various images made available to him, he found that the skeletal findings strongly indicate the presence of a metabolic and dysplastic bone condition, congenital rickets.

[106] This assessment is based on the following:

a.             There was under-ossification, which was described as the situation where the face and skull bones have not formed adequate bone to be apparent on skull films.

b.             Marked anterior rib flaring;

c.             Coarse trabecular pattern of the long bones;

d.             Cortical tunneling;

e.             Abnormal cupping.

[107] In reference to the left proximal femur abnormality and the skull fracture Dr. Barnes stated:

These are the only ones that I would be suspicious of being obviously a fracture due to trauma with the ... with also the consideration that we may be seeing two areas of fracture from trauma that are the superimposed upon bones that are not developed normally that is why we would work up ... do the work-up for a bone fragility disorder.

[108] As noted above much of Dr. Barnes's view rests on his opinion that baby By suffered from congenital rickets. Dr. Sargent disagreed with the assessment.

[109] In Dr. Barnes's view, this issue could be easily resolved by completing a vitamin D deficiency test. He noted that there is no substitute for completing this test. On the other hand Dr. Colbourne noted that such a test was not necessary because tests for calcium, phosphate, alkaline and phosphatase and a bone scan were completed. She was satisfied with the results and stated this provides a more reliable indicator of bone fragility than a vitamin D test. Dr. Barnes did not comment on the entire range of tests that were undertaken to assess bone fragility which Dr. Colbourne ordered. Dr. Barnes did note that congenital rickets is a bone fragility disorder, and a test for vitamin D deficiency will only determine whether the precondition for this condition exists. Based on this, the assessment conducted by Dr. Colbourne provides a reliable indicator whether or not baby By suffered from a bone fragility disorder.

[110] Both Dr. Sargent and Dr. Barnes acknowledged that the interpretation of skeletal images is highly subjective. This was brought to light when various images were referred to during cross-examination. The doctors endeavored to demonstrate their findings by pointing to various markings on the films. To the untrained eye, it was at times difficult to see the specific marking that was being described or referred to. In some respect, this would have been an occasion where having the two doctors attend and give evidence at the same time would have been beneficial. This would have assisted in highlighting the differences and points of contention in their opinions.

[111] I also note that Dr. Barnes did not have all the images to review prior to expressing his opinion. In the course of his testimony he acknowledged that the additional x-ray and the CT scan would have assisted in the formulation of his opinion.

[112] In the final analysis there was little disagreement or difference in the opinions of Dr. Sargent and Dr. Barnes but for the issue of whether baby By suffered from congenital rickets. This is of course important given the fractures to the proximal femur and the skull.

[113] Based on the results obtained from the tests undertaken by Dr. Colbourne, I accept the view of Dr. Sargent, that baby By did not suffer from congenital rickets.

[114] Dr. Barnes accepts the view that glutaric aciduria was eliminated as a cause for the injuries. He agreed there were no specific findings related to hypoxia. Finally, Dr. Barnes stated that trauma was a cause of the fracture and that child birth is one mechanism for causing the trauma. He did not expand on this or suggest that this was a cause in this case.

[115] I find that the subdural haemorrhage was not caused by a mechanism relating to birth. In light of the comments in the article “Prevalence and evolution of inter-intra cranial haemorrhage in asymptomatic term infants,” American Journal of Neuroradiology, a subdural haemorrhage after one month of age is unlikely to be birth-related. This is also consistent with the infant's head circumference being within the normal range earlier in September and increased by early October.

Dr. Gardiner

[116] Dr. Gardiner is a pediatric ophthalmologist who has worked at BC Children's Hospital for approximately 10 years in this specialty. She has extensive clinical experience in the field, currently seeing approximately 4,000 to 5,000 children each year. She is one of three such specialists in this field in the Province of British Columbia.

[117] Dr. Gardiner examined the infant on a number of occasions relating to the initial diagnosis and ongoing treatment of baby By. Her opinion is based upon the first two examinations. On the first occasion, the doctor conducted an examination of the infant's eyes for vision and external abnormality. There was a concern that baby By's vision was limited, that the eyes were not perfectly aligned and the left eye was watery. The eyes were then examined with the aid of an ophthalmoloscope which permits a view of the retina. No abnormalities were observed in the right eye. In the left eye, four haemorrhages were observed in different layers of the retina.

[118] Following the initial examination the second consultation was arranged to permit a more detailed evaluation of the child's eyes. The examination was conducted while baby By was under anesthesia and it involved a more detailed examination of the eye and layers of the retina. This examination permitted the rotation of the eyeball and examination of the periphery of the retina.

[119] The right eye was found to be normal. In the left eye, Dr. Gardiner observed numerous haemorrhages. The doctor's diagnosis was significant retinal haemorrhaging from the posterior (center part of the back of the eye) pole to the periphery in multiple layers of the retina. Dr. Gardiner classified the retinal haemorrhaging in this case as severe given the number of haemorrhages and their location. The doctor had not seen this type of case where there had been a blow to the head without an acceleration/deceleration type of injury.

[120] Dr. Gardiner opined that, taking into account the subdural haemorrhages with the pattern of retinal haemorrhages, and aware of the long bone 'fracture, it made her “suspicious of a severe injury, a considerable acceleration/deceleration injury plus or minus impact”.

[121] Dr. Gardiner acknowledged that there is a debate as to whether retinal haemorrhages could be caused by impact alone or whether this type of injury required an acceleration/deceleration mechanism. She subscribes to the position that there needs to be an acceleration/deceleration component to the injury in this case. It is also her view that the constellation of injuries is suggestive of a non-accidental type of cause.

Dr. Gardner

[122] Dr. Gardner is a retired ophthalmologist. He has, as he indicates, an interest in shaken baby syndrome and has published in the area. He reviewed a number of records relating to baby By including the mother's pregnancy records, the child's birth and outpatient records and 31 RETCAM photographs of the child's eyes.

[123] Dr. Gardner was not ca./led. His opinion was set out in a letter dated December 3, 2008. No issue was taken with respect to the admission of the letter opinion and it was not challenged but for the comments of Dr. Gardiner in the course of her testimony.

[124] He also indicated that he had taken some additional history relating to the child Bn's fall and had reviewed a video of him running. Neither of the latter two documents was referred to at trial.

[125] Dr. Gardner was provided information upon which he based his opinion. Information provided was that a two year old fell while running with his head striking baby By's head.

[126] In short, Dr. Gardner concludes that the head injury is consistent with the fall by the brother onto the infant.

[127] Dr. Gardner then reviews the 31 RETCAM photographs and concludes that “all the eye findings in this case are consistent with the history as given by the parents and the medical conditions identified in the clinical chart without need of an abusive event”. I assume the doctor is referring to the clinical records relating to the left eye. Dr. Gardner did not appear to be questioning the eye findings (except for the use of the descriptor “fading”). In his report, Dr. Gardner raises the question as to whether the haemorrhages should be reviewed. He does not contradict the basis on which Dr. Gardiner forms her opinion nor does he take issue with her finding that what she observed was a severe retinal haemorrhage.

[128] Dr. Gardiner has extensive experience in a very specialized area of medicine (pediatric ophthalmology). Dr. Gardner is a retired ophthalmologist but, when practicing, did not have the degree of specialty that Dr. Gardiner holds.

[129] Dr. Gardiner acknowledges that her role is to both treat and protect children. As well, in her view she is representing the child. This perception explains her comment when she stated that when you have a brain haemorrhage, brain injury and retinal haemorrhaging and long bone fractures you have to think it was a non­-accidental injury until proven otherwise. In light of her view, the Court must guard against any unintended bias or shading of her views.

[130] Dr. Gardner does not disagree with the finding of retinal haemorrhages. The issue is the cause of the injury. The shortcomings of Dr. Gardner's view lie in the fact that he relies on information that is not before the Court. He makes reference to additional information including the video, without setting it out in his opinion. He makes no reference to the medical pathway to his conclusion and there is no ability to assess the basis on which it occurs. As a result, Dr. Gardner's opinion is a general statement that in some cases, a short fall could cause a skull fracture and retinal haemorrhages without particularizing how it could be so in this case. Dr. Gardner's opinion also ventures into the area of speculation with respect to his comments relating to the causes of other injuries, which is clearly outside of his expertise. It was unusual for an ophthalmologist to provide the opinion that “it is also possible that the brother's fall would drive the left hip into the relatively hard floor and cause the hip problem”.

[131] In assessing the evidence of this particular aspect of the case I remind myself of the caution that I expressed earlier that the desire to protect children could unintentionally “shade” one's evidence. I accept Dr. Gardiner's diagnosis that baby By suffered from severe retinal haemorrhages. She agreed with the general proposition that they could have been caused by “traumatic head injury of considerable force” but stated that that was not what happened here. In her view the cause was an acceleration/deceleration type of force or mechanism.

[132] It is not clear whether Dr. Gardiner was aware at the point she formulated her opinion that baby By had suffered a skull fracture. Dr. Gardiner's view that the cause included an acceleration/deceleration force was in part formed with an awareness of all the injuries diagnosed and the mechanisms which could cause them. This consideration of these factors takes Dr. Gardiner beyond the area of expertise for which she was qualified to give expert evidence and impacts upon her final conclusion as to the cause of the injury. Dr. Gardiner’s view is that baby By suffered severe retinal haemorrhaging extending out to the periphery of the left eye. I do not accept her view that the injury was caused by shaking or an acceleration/deceleration force.

Dr. Colbourne

[133] Dr. Colbourne is a pediatrician with a subspecialty in pediatric emergency medicine. She is a pediatric emergency physician at Children’s Hospital and an associate clinical professor in pediatric emergency medicine at the University of British Columbia. In addition, she is a member of the Child Protection Team at Children's Hospital.

[134] Dr. Colbourne's involvement in this matter came as a result of a request for a consult by the neurosurgical team at Children's Hospital. Dr. Colbourne was consulted in her capacity as the Child Protection doctor on duty at the hospital at the time.

[135] Dr. Colbourne provided an initial opinion based on the examination of baby By. In correspondence to the social worker dated October 31,2007, she described the injuries suffered by baby By to be:

a. Intracranial injury;

b. Retinal haemorrhages;

c. Parietal left femoral metaphyseal fracture.

[136] The doctor was of the view that the cause of the injuries was related to a shaking incident. While the fracture was clearly visible on the x-ray images and available for her review, there was no reference to it. Dr. Colbourne expressed the opinion that the only explanation for this combination of injuries would be a severe shaking type injury.

[137] At trial, Dr. Colbourne modified her opinion. She noted that the child had a skull fracture in addition to the other injuries noted earlier. She testified there were different causes for the injuries. A combination of blunt force trauma to the head and indirect forces in a shaking kind of manner caused the bleeding into the brain and the bleeding in the eyes. In addition, probably an indirect force of traction to the leg caused the break at the proximal femur, likely yanking or pulling.

[138] Dr. Colbourne explained that, while aware of the fracture, she forgot to make reference to it in the first report. If this is the case, I do not understand Dr. Colbourne's comment in her first report where she stated, ''the only explanation for this possible combination of injuries is shaking”. At trial however, the Doctor agrees the cause of the skull fracture would have been a blunt force and that same force could contribute to other injuries. The doctor agrees with the proposition that a toddler falling on a infant child could possibly cause a skull fracture but would not likely cause the degree of subdural haemorrhage observed and would not cause the retinal haemorrhages.

[139] With regard to the metaphyseal fracture, at trial she stated that the injury is caused by a yanking or pulling mechanism. In her earlier view she indicated that all injuries were as a result of the shaking mechanism. In addition she noted that this was the first time she had seen this kind of injury at the proximal femur.

[140] With respect to the timing of the injuries, Dr. Colbourne opined that they likely occurred sometime toward the end of September, when the infant became symptomatic. Based on the infant's first presentation with the symptoms on September 26^th at the Canyon hospital, the low hemoglobin count on September 27^th and the blood noted in the subarachnoid space and the femoral fracture on October 6^th, she believed the injuries probably occurred sometime around the end of September. In her view, she felt they may have happened on a number of days over a 10-day timeline.

[141] Dr. Colbourne indicated that there can be other non-abusive causes of subdural haemorrhages which are connected to congenital problems and disease, all of which were eliminated. I accept Dr. Colbourne's opinion that the skull 'fracture and the left proximal femur fracture were associated with trauma of some significance. do not accept that the injuries were caused by shaking. or an acceleration/deceleration mechanism. It is certainly possible that they could have been, but I am unable to conclude that this was the probable cause of the injuries.

Dr. Alexander

[142] Dr. Alexander is a doctor licensed in the state of Florida and has been a pediatrician since 1984. He is presently a professor at the University of Florida in Jacksonville in the Department of Pediatrics. He is involved in patient care and is the medical director in charge of 24 child protection medical teams for the Children's Medical Services in the Department of Health in the state of Florida. He has previously been qualified as an expert in child abuse with an emphasis on pediatrics in the United States.

[143] Dr. Alexander's opinion was expressed in a letter dated January 9, 2010. The opinion was formulated prior to an examination of the x-rays or other films obtained at Children's Hospital when the child was first admitted.

[144] In the report, Dr. Alexander was of the opinion that baby By was the victim of multiple life-threatening physical abuses. The doctor relies on clinical records provided by Children's Hospital, particularly the consultative report of Dr. Colbourne, and a letter from Dr. Gardiner, and he concludes that the injuries were as follows:

a.            Findings are indicative of abusive head trauma;

b.            Retinal haemorrhages suggests later shaking;

c.            Femoral fracture would be a more recent injury; and

d.            Skull fracture would be a newer impact injury of the skull than the subdural haemorrhaging.

[145] At trial, he modified his opinion, stating that the head trauma consists of a parietal fracture and subdural haemorrhaging. This event occurs earlier in time. The retinal haemorrhaging occurs after this, and the femoral fracture is the most recent injury. He states that all are life-threatening injuries. In cross-examination, his opinion is further modified, stating that there are two or three acts of abuse over two or three occasions.

[146] The mechanism that would result in this type of right parietal bone fracture was a blunt force impact. He indicated the force would have to be “pretty severe”. In his clinical experience the type of force necessary to cause this type of injury in an infant includes:

[147] Dr. Alexander indicated that he would see approximately 50 cases of this type of injury annually.

[148] Dr. Alexander, relying on Dr. Gardiner's assessment of the retinal haemorrhages, is of the view that intracranial pressure or blunt force trauma would not produce the number or the extent of the retinal haemorrhages out to the periphery. Dr. Alexander's “first thought” would be a shaking mechanism or severe bleeding disorder.

[149] The metaphyseal fracture, in his view, was caused by pulling or twisting forces.

[150] The bilateral subdural haemorrhaging can be caused by shaking or impact injuries. In his view, the skull fracture is associated with the subdural haemorrhages.

[151] Dr. Alexander is a leading proponent of the “shaken-baby” theory in the United States. He is on the Advisory Committee to the National Centre for Shaken Baby and has spoken extensively in this particular area over the past decade. He spoke with great conviction with respect to this particular the view. While he acknowledged that there was considerable debate with respect to the mechanism of shaking of young infants and its' diagnosis, the debate was a legal one not a medical one. The evidence at this trial would suggest a contrary position.

[152] Dr. Alexander provided little, if any, explanation as to how he formulated his views that the injuries led to the conclusion that they were due to abuse. He termed all the injuries as life-threatening events but provided no explanation as to how or why this was the case.

[153] Dr. Alexander's evidence as to when the injuries were sustained is at odds with the evidence of Dr. Sargent.

[154] Dr. Alexander was unwilling to examine alternative hypotheses for the cause of the injury or injuries. He was somewhat dismissive of the other experts called to express an opinion, on the basis that they were not experts in the area of child abuse.

[155] His initial views were based on the review of a limited number of the clinical records, primarily the consultation report of Dr. Colbourne and a letter of Dr. Gardiner, as well as some records obtained from the Children's Hospital. He had no opportunity to review any of the images or the balance of the clinical records from the various hospitals and health care providers that the child attended prior to her admission to Children's Hospital.

[156] For the foregoing reasons, I place little weight on the opinions expressed by Dr. Alexander in this case

Dr. Plunkett

[157] Dr. Plunkett is a forensic pathologist. Forensic pathology is the specialty of pathology concerned with injury mechanisms or injury mechanics and contribution of injury to organ dysfunction and death. He was the Minnesota Regional Coroner for approximately 24 years prior to retirement in 2005. In the late 1990s, he developed an interest in the area of what is referred to as Shaken Baby Syndrome and the cause of such injury. He came to the view that by the late 1990s or 2000:

... almost everything taught in medical school and in formal post-graduate medicine or medical education and published in the medical literature regarding infant injury was wrong.

[158] The doctor is of the general view that there is no evidence that traumatic brain injury which he defines as subdura.1 bleeding, retinal haemorrhage or brain swelling, can be caused by shaking an infant.

[159] In this case, Dr. Plunkett states that baby By had an event that is consistent with her brother striking her head with his. The event he is referring to is the subdural haemorrhage. This is based on his earlier work and observations that a short fall can, on occasion, cause significant injury. He acknowledges however that it is unusual for a three week old baby to develop subdural bleeding as a result of such an impact.

[160] He concludes this based on the information that he was provided which include the following:

a. The child Bn is running at 9 feet per second and then falling;

b. He had been running across the floor;

c. He struck baby By's head with an impact.

[161] Dr. Plunkett further opines that the retinal haemorrhaging is caused by an increase in the intracranial pressure which causes the veins to collapse and blood in the capillaries to back up, thereby causing the haemorrhages.

[162] Dr. Plunkett states that short falls may cause an unexpected serious head trauma, but he acknowledges that such occurrences are rare.

[163] In this case, the factual assumptions on which the doctor formulates his opinion have not been established. There was no evidence that the child was running at 9 feet per second, nor was there evidence that baby By's head was struck with an impact. In regard to the opinion that the intracranial pressure caused the retinal haemorrhages, Dr. Gardiner's evidence, based on her examinations of the eye, found no evidence that lead her to conclude there was an increase in intracranial pressure, or occlusion of the retinal veins by clotted blood or structural occlusion. She detailed the findings which lead to her conclusion.

[164] Given the lack of evidentiary foundation for Dr. Plunkett's opinion in relation to the impact and the force of the impact, and lack of ophthalmological findings, I am unable to accept his opinion. The opinion of Dr. Butt and Dr. Monson are also based on the same factual foundation; that the child Bn was running, stumbled and his head struck the head of baby By. Dr. Galaznik also basis his opinion on a crush injury. I am unable to accept their opinions based on the lack of an evidentiary foundation.

[165] With respect to the remaining opinions filed by way of medical-legal reports, I make the following comments. Dr. Stephens, a forensic pathologist, identified in his report a vitamin D deficiency of the mother a number of months after the event. Dr. Gardiner indicated a vitamin D level of only 49 which she describes as being in the low/normal range. Again this is a reference to the mother's vitamin D level and there was no indication as to when the result was obtained. Dr. Innes, a pathologist, makes reference to a vitamin C, D and K deficiency and the affect that this may have. There is no evidence of such deficiencies in this case.

Are the Children in Need of Protection -the Test

[166] A case dealing with unexplained injuries is British Columbia (Superintendent of Family and Child Services) v. G(C) [1989] B.C.J. No. 1577 (B.C.C.A.). The case involved an appeal from a decision at a Protection hearing in which evidence was presented that two twin babies, age 7 months at the time of the hearing, and a five and a half year old half sister were found not to be in need of protection. The twins had suffered a number of injuries when they were 4 to 6 weeks old, including a cranial fracture and 14 fractured ribs in one, and 6 broken ribs in the other. The parents were unable to explain the cause of the twins' fractured ribs, although explanations were advanced at the hearing. The father offered an explanation for the cranial fracture. The doctor who testified was of the view that the injury was not accidental and the infant was not able to injure himself in this way.

[167] The Court held:

In approaching the resolution of this matter in that way the hearing judge misdirected himself. To begin with he was not conducting a trial which might lead to a finding of guilt of one or other of the parents with respect to the

injuries suffered by the twins. Yet he considered that that was the issue before him and having heard the parents testify he was reluctant to find that either of them had abused the twins and caused the injuries which they had suffered. But that was not the nature of the inquiry to be conducted on the hearing, rather the hearing judge was to consider the evidence led on the hearing and decide on the basis of that evidence whether having regard to the safety and well being of these children they should remain in the custody of their parents or whether they should be temporarily placed in the custody of the Superintendent.

When the facts disclosed by the evidence are considered, namely that each of the children suffered extensive rib fractures, that in the opinion of Dr. Hlady those injuries were not accidental and the parents who had had the custody and care of these children gave no satisfactory explanation as to how those injuries had been sustained, the only conclusion open to the hearing judge on that evidence was that the safety and well being of the children required that they be placed in the custody temporarily of the Superintendent.

[168] The case of C. G. , supra, stands for the proposition that the role of the trial judge is not to assign blame or make a finding of who the abuser was. The focus is on assessing whether the children should remain in the custody of their parents, having regard to their safety and well being.

[169] As was noted in B.S. v. British Columbia (Director of Child, Family and Community Services) (1998),48 B.C.L.R. (3d) 106 (C.A.), s. 13 of the Act sets out when a child will be considered in need of protection. Section 13 is non-exhaustive and the provisions of s. 2 of the Act may be invoked to ensure protection of the child when the precise requirements of s. 13(1) cannot be met with sufficient certainty.

[170] In D.M.G. v. British Columbia (Director of Family and Child Services) [2007] B.C.J. No. 682, Russell J. at paragraph 97 states:

Thus, a child is in need of protection if the need of protection from abuse, neglect, harm or threat of harm is proven to the requisite standard, even if it cannot be proven who perpetuated the harm with sufficient certainty to meet the precise requirements of one of the paragraphs of subsection 13(1).

[171] A helpful discussion of the requisite standard of proof to be met by the Director is provided in the B.S. decision at paragraph 27 -31:

When the assertion being made is about a past event then the actual occurrence of that event must be shown by the weight of the evidence to have been more probable than not. That is the case with past abuse, neglect, or harm to a child.

But where the assertion being made is that there is a risk that an event will occur in the future, then it is the risk of the future event and not the future event itself that must be shown by the weight of the evidence to be more probable than not. That is the case with consideration of a threat of future harm.

The result is that in considering past abuse the degree of certainty that it has occurred will be more than is required in considering whether abuse will occur in the future. A ten percent risk of future abuse may meet the test of the risk being shown to exist on the balance of probabilities. whereas a ten percent assignment of the probability that the abuse had occurred in the past would not meet the balance of probability test.

In assessing the risk of future harm, (which is called the threat of future harm in s. 2), there is room for a variable assessment depending on the nature of the threatened harm which is in contemplation. A threat of harm through neglect of the child's hygiene might well have to be much more probable in order to meet the balance of probability test than a threat of serious permanent injury through physical or sexual abuse. Generally speaking, a risk sufficient to meet the test might well be described as a risk that constitutes “a real possibility.”

I have received a good deal of stimulation on this subject from the decision of the House of Lords in In Re H. and Others, [1996] A.C. 563 ... However, I wish to say that I would adopt the views expressed by all five law lords that the word “likely” has a primary meaning of “more probable than not”, but a recognized secondary meaning of “a real possibility”, and that the secondary meaning captures the intent of Parliament in the use of the word “likely” in relation to the possibility of a child suffering harm in the future.

[Emphasis added.]

[172] The test for the Director to meet therefore is that there is a real possibility that the child may suffer harm. Further, as Justice Proudfoot of the B.C. Court of Appeal stated in Supt. Of Fam. and Child Service v. M. (8) 28 RFL (2d) 278 at 287:

While I say that the test to be applied is, on the balance of probabilities, as to what is in the best interests of the child, no such test exists when we deal with the element of the risk of injury. I am satisfied that a much lower test would be applicable when we are dealing with that aspect.

Analysis

The Evidence of Mrs. B

[173] Mrs. B is clearly an intelligent and articulate person. I find her to be industrious in light of what she has done in order to arrange her affairs to maintain the access schedule with the children, work in an effort to establish a new residence closer to where the children are currently residing and to organize matters related to the litigation.

[174] Her evidence focused on three main areas: first, the circumstances leading up to the birth of baby By; second, the events during the first 2 and 1/2 months following the child's birth; and third, what has occurred since the children were removed.

[175] A critical portion of the evidence focuses on the events surrounding September 23, 2007. However, her evidence, in general, was problematic in some respects. She would minimize events if it showed her in a better light. For example, she minimized the support provided in Hope by Mr. and Mrs. Hoffman. A second example was her explanation as to why her husband resigned from the church board. She claimed it was as a result of a philosophical difference which was expressed in his letter of resignation. This assertion was contradicted by a review of the letter.

[176] On other occasions she would have a tendency to overstate matters. Asked at one point whether the return of the three children while pregnant with her fourth child would be a stressful situation, her response was “absolutely not”. The response ignores the present circumstance with two children having varying degrees of special needs, her past difficulties during pregnancy and premature births, and the pending arrival of a newborn. This circumstance could not be anything but stressful.

[177] She recognized the importance of the need for having relevant documents readily available at trial. She had organized a significant number of documents and was well acquainted with them to aid in cross examination of the Director's witnesses. However, during her cross-examination she made reference several times to relevant information that would be in her personal notes, but when pressed, admitted she had not brought parts of the notes to the trial. These references were to the lack of breast milk consumed following September 23^rd and the vitamin D supplements, two relevant areas of evidence in the context of this case.

[178] Specifically with respect to the account of what happened on September 23, 2007, there are a number of concerns. At trial in examination in chief, the mother testified that she observed the child Bn run around the corner, stumble and fall on to baby By.

[179] She stated:

“I saw his head on top of hers. I cannot say where his head actually struck, which point. She was lying on her stomach. Her legs were tucked underneath her slightly and her head was to the side.

She was lying on the right side. The left side was up.”

[180] I note the parietal skull fracture was on the right side not the left side of the skull.

[181] There were inconsistencies between this account and descriptions given at the Presentation hearing and on other occasions prior to the trial.

[182] At trial she testified that the father was watching baby By and was preparing dinner in the kitchen. She described him as going back and forth. She stated “he would not have left her alone”. At the Presentation hearing she said he was preparing dinner.

[183] Not only are the two accounts somewhat different, Mrs. B would have no knowledge of whether the father was “back and forth” as she described because she was not present.

[184] At trial, she testified the child Bn came around the corner. She states that she does not remember when she first sees him, stating, “I don't remember clearly”. At the Presentation hearing she said she saw her son one foot away from the infant.·

[185] At trial in her evidence in chief, the mother stated the child Bn was running. In cross examination she said he walked fast, a stumbling run.

[186] Given the location of the infant on the floor in the living room and the child Bn coming around the corner, Mrs. B would not have any meaningful opportunity to observe how quickly the child was proceeding.

[187] The mother testified the child Bn stumbled and fell. She did not recall how the child Bn landed and she did not see contact because it happened so fast.

[188] As to the location of the two children after the fall, in her evidence in chief she said she “saw his head on top of hers”. At the Presentation hearing she testified at one point that the heads were “inline” with each other and, at another point she said the heads were beside each other.

[189] At Children's Hospital, she advised Dr. Colbourne that the child Bn had fallen on baby By. In a subsequent statement sent to Dr. Colbourne, she explained “our son fell on her from a run with his head making forceful contact as she lay on her tummy resting”.

[190] When pressed at trial as to the position of the two heads after the fall she stated “it would've been on top”.

[191] In the clinical records of the MSA Hospital during a consult with Dr. Anquist on October 6, 2007, there is the following reference: “two and a half weeks ago, the older brother stumbled over her but she did not seem to be hurt”. Mrs. B acknowledged speaking to the doctor and providing the information to him.

[192] She testified that she first described the incident on September 26^th and then on the 27^th to Dr. Sorial. She acknowledges there is no note in Dr. Sorial's report.

[193] In summary, there are a number of inconsistencies in the account of what happened and when it happened.

[194] Mrs. B's testimony on the pivotal point of the incident of contact between the two children is inconsistent. She provides a different account at trial than on earlier occasions and the description of the location of the two children following the fall becomes more descriptive over time, not less so. Her opportunity to observe was limited.

[195] There were no injuries observed on either baby By or her older brother as a result of the September 23,2007 incident.

[196] Mrs. B's testified the child was placed in the same location in the living room three days later, after breast feeding. Baby By was then left on her own as Mrs. B returned to another room, to express breast milk. This would appear somewhat unusual if an event of any significance occurred on that date. At trial it was suggested that doing so would be risky. Mrs. B stated that “if it had occurred to me, again, I wouldn't have put her there”. The response reflects the fact that this was not a significant event.

[197] This response should also be compared in the context of Mrs. B's response of the September 23, 2007 incident “it did not seem like a non event when I was watching it”. It is difficult to reconcile this response to Mrs. B's actions on September 26, 2007.

[198] In my view, Mrs. B's explanation at trial is a reconstruction of events in an effort to explain a traumatic event which happened to her daughter. Such an approach is not uncommon in an effort to put the “best” explanation forward. I am unable place to any weight on the explanation of what the witness describes as having taken place on September 23, 2007. Any contact between the children on this occasion, was of such a trivial nature as to be of no consequence at all.

The Failure of the Father to Testify

[199] The father was present throughout the proceeding but did not testify. In submissions, counsel indicated that the mother's testimony had gone too long and he was closing the parents' case following the testimony of the mother. Originally the trial plan had called for the father to testify.

[200] Since birth, the infant was in the care of the mother, the father or both parents. The mother testified as to what occurred when she had the child in her care as well as to her observations as to what the father did and the assistance he rendered in caring for the children. However, there were times when the father was with and cared for baby By on his own.

[201] There are two known instances where the father was alone with or in the vicinity of baby By. The first was on September 23,2007, when he was watching over the evening meal and baby By, who was in the living room. The second was on September 26,2007, when baby By (according to Mrs. B) vomited and stopped breathing. On this occasion the mother left the child 15 minutes earlier and gone to the bedroom to express breast milk. She returned to observe the father holding the infant with his fingers in the infant's mouth apparently checking her mouth for any obstructions.

[202] In regard to the first incident, what did the father see leading up to or immediately following the fall? What effects were observed to either child?

[203] In regard to the second incident, why and what led up to the father picking up baby By?

[204] Failure to call a party in a civil proceeding was considered in The Law of Evidence in Canada, Second Edition (John Sopinka, Sidney N. Lederman and Alan Bryant, Butterworths: Markham Ontario, 1999). The ability to draw an adverse inference from the failure of a party to testify is addressed at page 297:

§6.321 In civil cases, an unfavorable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it.

[205] P.J.S. (Re), [2000] B.C.J. No. 787, was an appeal from an order granting continuing custody of the appellant mother's child to the Director of Family and Community Services. The child had been removed just after its birth because the mother refused to feed it. The appellant did not give evidence and called only one witness, leaving the bulk of the evidence against her unanswered. One of the grounds of her appeal was that the trial judge should not have made an adverse inference against her for not testifying:

[206] The trial judge had held:

The Court is bound to draw adverse inferences from C.D.P.'s failure to testify, especially in view of the fact that I had on an earlier date expressed a desire to hear her evidence. Since she has not refuted any of the damaging evidence given concerning her behaviour before and after the events of the day when P.J.S. was born, I infer such evidence is true.

[207] On appeal, it was held that the trial judge had properly considered the evidence at trial and implicitly affirmed the decision to draw the adverse inference.

[208] In F.A.L v. A.B.B., [1995] M.J. No. 229,125 D.L.R. (4th) 640 (C.A). the Manitoba Court of Appeal had the opportunity to comment on the adverse inference doctrine in a claim of paternity in a circumstance where the Respondent (the alleged father) failed to testify at the hearing. The, trial Court declined to make the inference· and the Court of Appeal held that the inference could have, but need not have been made.

[209] In the course of giving its reasons, the Court made the following comments:

18 The adverse inference doctrine is more a matter of logic than of law. The law permits an adverse inference to be drawn against a party in certain circumstances. It does not require it. Generally, the drawing of such an inference is a matter exclusively within the domain of the trial judge.

19 One of the circumstances in which an adverse inference may be drawn is where a party with knowledge of a relevant fact fails to testify. The judge may infer that, if the party had testified, his or her testimony would have been against that party's interest. Thus, if there is some evidence that a defendant was the. driver of a car and the defendant does not testify, it may be inferred that the defendant was indeed the driver.

20 This logical approach to proof admits exceptions. Thus, if the defendant has amnesia as a result of the accident, his failure to testify is otherwise explained and should not result in an adverse inference against him. Generally, an alternative explanation as to the party's failure to testify I if reasonable, will negate the inference which might otherwise have been drawn.

[210] As in the P.J.S. decision, there is evidence in the present case which is unanswered and there is a party to the proceeding who would have some knowledge of the facts and did not testify. This circumstance where a person with knowledge of relevant facts does not testify, as noted in the decision of F.A.L., is one in which an adverse inference may be drawn.

[211] In considering whether to draw an adverse inference in this case there are certainly questions that remain unresolved particularly in regard to the events of September 26,2007. Having said that, I am not satisfied in this case that it is necessary to draw an inference that the father's evidence would have been unfavourable to the case.

Summary

[212] In my view, Mrs. B's explanation at trial is a reconstruction of events in an effort to explain a traumatic event which happened to her daughter. I am unable to place any weight on the explanation of what the witness describes as having taken place on September 23, 2007. Any contact between the children on this occasion was of such a trivial nature as to be of no consequence at all. I come to this conclusion based on the comments set out in the previous sections summarized as follows:

a.    The limited opportunity to observe the movement or speed that the child Bn was travelling;

b.    The specific point of contact between baby By and the child Bn was not observed;

c.    The various inconsistencies in the accounts describing the event;

d.    The lack of any appreciable or observable injury to either child;

e.    The fact that neither child cried following the event and baby By's eyes were open from which I conclude she was conscious;

f.      The comments of the mother at trial regarding the significance of the event; and

g.    The fact that the mother placed baby By in exactly the same position on the living room floor three days following the event; and,

h.    The injuries to baby By, based on the medical evidence, were significant.

[213] Could the trivial contact between the child Bn and baby By which may have occurred on September 23, 2007, explain the injuries suffered by baby By?

[214] Dr. Barnes appropriately framed the initial portion of this discussion when he indicated in the course of his testimony that the left proximal femur abnormality and the skull fracture are two injuries that he would be suspicious of. He was of the view that what may be observed are two areas of fracture from trauma or, alternatively, two areas of fracture from trauma that are superimposed upon bones that have not developed normally. He was unable to differentiate between the two with the inference being that a less traumatic force could result in the injuries to which he observed.

[215] I have not accepted Dr. Barnes opinion that baby By suffered from congenital rickets or that there was an underlying bone fragility disorder.

[216] Dr. Sargent describes the left proximal femur fracture and the fact that it can be caused by yanking or pulling. Dr. Colbourne describes in more detail the physiological make up of the proximal head of the femur and how it takes some force to cause such a fracture as it is encased in a fairly strong sheath.

[217] Dr. Sargent and Dr. Colbourne comment on the skull fracture as being large and it is of some significance. The subdural haemorrhaging is described as a large bilateral collection. Finally, Dr. Gardiner describes a left eye injury as severe retinal haemorrhaging. There were a number of haemorrhages observed in multiple layers extend out to the periphery. Finally the left proximal metaphyseal fracture is an unusual injury.

[218] On the basis of the medical evidence that I accept, baby By suffered a significant injury. Dr. Plunkett and Dr. Barnes do not disagree with that description, only as to the mechanism which caused the injury. I conclude the injuries diagnosed were not caused by this incident of September 23, 2007.

[219] Baby By was in the care of one or both of her parents since birth. She is incapable of putting herself in a position where she would cause or contribute to the injuries to which she suffered. There is no explanation as to how these injuries were caused.

[220] The Director submits that they were caused by one or both of the parents. A finding of intention or allocation of blame is not required in this proceeding. The Director submits that there is cogent medical evidence that should satisfy the Court that some of these injuries were caused by the application of acceleration/deceleration forces, in other words, that baby By was shaken.

[221] In considering this question, I bear in mind the submissions of counsel on this particular issue and all the relevant documentary evidence introduced at trial.

[222] Three general references which counsel made highlight the ongoing debate with respect to one aspect of this case, the seriously contested shaking or acceleration/deceleration theory: The Gouge Inquiry, which involved the examination into the expertise and opinions of a former Ontario forensic pathologist, Dr. Smith; the English appellate decision of R. v. Harris and others [2005] EWCA Crim. 1980; and the Goldsmith Inquiry.

[223] Each reference in its own way draws attention to the debate in the medical and other parts of the scientific community as to whether or not the shaking mechanism has certain, particularized medical findings. At the heart of this debate is the view that non-accidental head injury (or as it was previously referred to, Shaken Baby Syndrome) depends on findings of a triad of injuries consisting of encephalopathy, subdural haemorrhages and retinal haemorrhages. For a number of years the diagnosis of these injuries in infants has been considered a basis upon which to find a non-accidental head injury.

[224] The Director is not suggesting that the sole cause of the injuries to baby By is shaking. In fact, the doctors called by the Director testified that they had moved away from the view that a finding of the triad is specific to a shaking injury. On the other hand, Dr. Alexander, Dr. Colbourne and Dr. Gardiner rely on the diagnosis of certain injuries to reach the conclusion that there was an element of shaking that took place in this case.

[225] As a result of this, it is useful to remind oneself of some of the comments which have urged caution when considering these types of injuries in infant children.

[226] In R. v. Harris and others (supra) the Court of Appeal heard four appeals seeking to overturn criminal convictions for murder or manslaughter. Present in each of the cases was one or more of the features which has collectively been referred to as the triad.

[227] The Court heard a considerable body of expert evidence and spent time setting out the salient features of the various hypotheses to inform them with respect to the cases before them, as well as “to inform those involved in future trials as the current accepted state of medical science”.

[228] In the course of the discussion, the Court noted that the assessment of injuries is open to a great deal of further experimentation and information.

[229] In the Harris case, the Court concluded:

The presence of the triad of injuries is consistent with the unlawful application of force;

a.            The importance of the clinical/records, “the clinical history is perhaps the most important clinical tool ... “, (para.149);

b.            In those cases where the triad alone is present, that it in the absence of supporting evidence such as bruising or broken bones the triad alone “cannot automatically or necessarily” lead to a finding that the infant has been shaken, (para.152);

c.            The triad remains a “strong pointer” to a shaking mechanism as the cause of the injuries, (para. 70);

d.            As to the degree of force required to cause the triad the application of some force is required. In the vast majority of cases more than rough handling is required. However, in rare, or very rare cases such injuries could be caused by little force, (para 147);

e.            It was concluded that cases of non-accidental head injury cases will be determined on their individual facts. (para. 267).

[230] These comments are useful when a Court is required to assess an unexplained serious head trauma and asked to consider a finding that the cause is by way of an acceleration/deceleration mechanism. The comments suggest that caution ought to be exercised and attention focused on the facts. In considering the medical evidence and in particular the opinions of Dr. Colbourne and Dr. Gardiner limited by the earlier comments, as well as the views of Dr. Plunkett, Dr. Gardner and Dr. Barnes, I am not satisfied that the injuries in this case were caused by a shaking or acceleration/deceleration mechanism.

Conclusion -Stage One

[231] In conclusion, I find the injuries suffered by baby By to be unexplained significant injuries which she received while in the care of her parents.

[232] Section 13(1) of the Act provides that children are in need of protection if they are likely to be physically harmed by the parent or physically harmed due to the neglect of the parents. Based on the unexplained injuries suffered by baby By, the Director says there is a risk physical harm will occur in the future.

[233] Generally, the degree of risk required to meet this test is a risk that constitutes a real possibility that the children may suffer harm. In these circumstances, based upon the circumstances surrounding the unexplained injuries to baby By, I conclude that there is such a risk. I am satisfied that there exists a real possibility that the children may suffer physical harm.

Stage Two

[234] As noted earlier, a continuing custody order in favour of the Director is granted pursuant to s. 41 (1 )(d) of the Act on the Court being satisfied pursuant to s. 41 (2)(c) that the nature and extent of the likelihood that the child will suffer harm is such that there is little prospect it would be in the child's best interest to be returned to the parent.

[235] The Court finds the children in need of protection, and the issue to be determined is whether the children should be placed in the continuing care of the Director.

[236] This particular question is governed by s. 41 (1) and (2) of the Act. The Director has applied pursuant to s. 41 (1 )(d) for a continuing custody order. The Court must not make an order under s. 41 (1 )(d) of the Act unless the requirements of s. 41 (2){c) have been satisfied which provides that “the nature and extent of the harm the child has suffered or the likelihood that the child will suffer is such that there is little prospect it would be in the child’s best interests to be returned to the parent.” Section 41 (1) provides a number of alternatives to the granting of a CCO which include:

a.            Return the children to the parents under the Director's supervision for 6 months;

b.            Place the children in the custody of another person (with that person's consent and under the director's supervision for a specified period of time);

c.            The children remain in the custody of the Director for a specified period of time.

[237] In making this determination, the Court must be guided by the children's best interests.

[238] The Director submits that the children be placed in the continuing care of the Director due to the nature and extent of the harm suffered and the length of time this matter has been outstanding. The fact that this matter has been outstanding for in excess of three years is a relevant factor in this case in view of the parents' position that has been maintained since the removal of the children. There has been considerable effort and involvement by many professionals in order to provide the opinions to the Court at great expense to the parties. There has been no evidence from family members and those persons in the community who are prepared to support the family should a temporary order be granted. Finally, there has been no effort by the parents to engage with social workers in a parental assessment or risk assessment which reports could have been beneficial as a planning tool in an effort to seek the return of the children.

[239] The Director says that in light of these factors the extent of the harm suffered is such that there is little prospect that it would be in the children's best interest to be returned to the parents.

[240] The Director further submits the situation will be exacerbated by the arrival of a new child, given the financial pressures that they were previously under when living in Hope.

[241] The parents did not make submissions on this issue. However, this does not preclude the Court from considering the issue and the evidence available at trial relevant to this question.

[242] In September 2007, the family was in a fair degree of stress. Mr. B's health concerns relating to the residual effects of the work related accident continued. The lack of financial resources contributed to this stress as did the fact that the family consisted of two young children and a new infant.

[243] The mother testified as to the current living situation and the efforts undertaken by her and Mr. B to prepare for the return of the children to their home. They have suitable accommodation which is situated in an area closer to family supports than their previous residence in Hope.

[244] There was a move to return the two older children to the parents under a supervision order in May 2008. I appreciate this did not ultimately occur, but the fact that these discussions took place and the arrangement agreed to in principle is recognition by the Director of the parent's ability to address outstanding concerns as they relate to the safety and welfare of the children.

[245] From the outset, the parents have been devoted and dedicated to having as much access to their children as could possibly be arranged. In fact they made several applications in which they continued to press the issue and to obtain more time with the Children than the Ministry was prepared to provide. At times this was cause for strained relations with those in the Ministry who attempted to implement the access schedule.

[246] The access was at all times supervised. This was an impediment to the amount of access and affected the quality of it. They persevered despite the limitations that were by necessity imposed until the trial. In my view, they put their lives and careers on hold to ensure they could maintain as much contact and connection with the children as was possible in the circumstances.

[247] The parents of the mother did not testify, however there is evidence of their support to the family in numerous ways prior to the Director's involvement in October 2007, in caring for the two older children when the Director first became involved and in opening up their residence to the parents for a period of time. This is certainly an indication of extended family prepared to provide assistance to the family.

[248] Similarly the parents of the mother did not testify however there is evidence of their support to the family in numerous ways prior to the Director's involvement in October 2007, in caring for the two older children when the Director first became involved and in opening up their residence to the parents for a period of time. This is certainly an indication of extended family prepared to provide assistance to the family.

[249] A number of letters and related material were filed in the course of the proceeding. A review of the letters reveals that they are dated and written for a different purpose -many were part of a campaign to the Ministry advocating a change in their position. All are supportive of the parents. Some touch on their parental ability.

[250] While the rules permit consideration of such material, the concern is that the authors of the letters were not called. Counsel for the Director notes that the contents of the letters are not sworn and there was no ability to test the information by way of cross examination. This is a significant factor which limits the weight of the letters of support. Having said that, the letters are an indication that friends and acquaintances who, in some capacity and form, have indicated a willingness to support the mother and father. Incidentally I note that in one of the letters that the writer indicated that she had been to the B residence on September 23, 2007 for dinner. This person was not called.

[251] Where the CCO is sought pursuant to the s. 41 (1) of the Act, both the protections issue and the permanent custody issue are addressed at the same time. When proceeding in this fashion there is no opportunity for the parents to reflect on the finding made at the Protection hearing. It leaves no opportunity to consider whether they are prepared to take such action to address the concerns giving rise to the finding at the Protection hearing.

[252] Participating or cooperating in the preparation of a parental capacity assessment may be seen as acknowledgment or an admission. This is something parents are often not prepared to do, based on their belief as to what happened.

[253] In addition, the relationship between the social workers and Mr. and Mrs. B had deteriorated to the point where communication had broken down and the relationship lacks trust. There was a reluctance to deal with them.

[254] There is some basis for this reticence to work with the social workers. The failure of the Ministry to live up to the spirit of the mediation agreement contributed to the belief that the social workers were not there to work toward the reintegration of the family.

[255] The children are now residing together. While the children have been in care there has been significant involvement by the parents in connecting with the children.

[256] As s. 2 of the Act provides, the family is the preferred environment for the care and upbringing of the children, but children are entitled to be protected from abuse and neglect and this must be the overriding concern of the Court. The opportunity is now in the hands of the parents. The children are in need of protection. Now is the time to move beyond this question and to take the appropriate steps to address and remedy the situation to satisfy the Court that the children should be returned to their care and custody.

Conclusion - Stage Two

[257] In the. circumstances of this case I conclude that an order pursuant to s. 41 (1 )(c) for a period of 6 months is warranted.

[258] In the event that further directions are required the matter should be set down before me through the Judicial Case Manager at the Chilliwack Courthouse.

 

T.J. Crabtree, PCJ