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Guilty until proved innocent is the new legal standard

CultureGuilty until proved innocent is the new legal standard

My contribution to this series of articles in the Sunday Guardian seeks to examine how and why child protection laws over the past twenty years should have led to the wrongful conviction of thousands of innocent parents and care givers worldwide.  Last week I described how three ambiguous clinical situations commonly encountered by doctors were recast in the 1980s as evidence of an epidemic of “covert” abuse inflicted by parents on their children.

These situations are, first,repetitive Sudden Infant Death Syndrome (SIDS):while the loss of a single child from SIDS is a tragedy, two such deaths in the same family, it was argued, was “suspicious” of smothering, and three,“murder unless proved otherwise”.

Second, “unexplained” symptoms:all doctors encounter “puzzling” cases where the cause of their patient’s symptoms is difficult to explain.  This could be due, it was argued, to “factitious” illness or “Munchausen’s Syndrome by Proxy” where parents induced symptoms in their children, warranting their repeated admission to hospital.

And third, childhood injuries.  Children are by nature accident-prone but when the severity of the injury is inconsistent with the parental account of how it occurred, the likelihood must be, it was argued, that they are deliberately inflicted. This was said to be particularly so when a child presents to hospital with the triad of signs indicative of Shaken Baby Syndrome or several unexplained metaphyseal “fractures” of the limbs.

I will first examine the methods by which innocent parents have been convicted of deliberately injuring their children.

We start with the authority of the child abuse expert.  By the close ofthe 1980s, the leading experts in child abuse had acquired an international reputation, were called on to instruct and educate, not just their fellow paediatricians, but also the police, lawyers, social workers and judges in these novel child abuse syndromes.  Their persuasive expert opinion, when expressed in court, was guaranteed a sympathetic hearing, while their confidence in the syndromes they had discovered was virtually unchallengeable.  Further, they could scarcely accept the force of contrary evidence, since to do so would require them to concede that their expert testimonies might, in similar cases, have resulted in wrongful convictions.

Next, the circular argument of successful convictions.  The validity of a child abuse syndrome would appear to be confirmed by the high proportion of successful convictions.  This came to rely increasingly on a circular argument—where the main evidence of the child abuse syndrome of which the parents were accused was that parents had been convicted of it in the past.  Thus, the prominent expert Sir Roy Meadow maintained that courts’ verdicts were correct in convicting parents of smothering their children, without making clear that it was his expert testimony that repetitive SIDS was “murder unless proved otherwise”, that had been a major factor in securing those convictions.

Similarly, parents whose child presented with bleeding beneath the skull and behind the eye were accused of inflicting Shaken Baby Syndrome because, in the vast majority of cases, parents of children with this pattern of bleeding were convicted of causing Shaken Baby Syndrome.

There is a further element of circularity in the “Catch-22” that parents find themselves in, of either confessing to the alleged assault (for which they might be offered the inducement, “if you say you did it, we will let you have your child back”) or denying it—in which case their denial is evidence they must be lying about the events surrounding their child’s injury, which was then taken as further evidence of their guilt.  It is, after all, only to be expected that parents who had “covertly” harmed their children should maintain that deceptive facade by protesting their innocence.  The more consistently they deny their culpability, the guiltier they must be.

And finally, the silencing of parents.  The forces of expertise ranged against the parents were formidable enough, but it is apparent too from their personal accounts that they were subjected to a series of intimidating tactics to deny the validity of their testimony as the only witnesses of the circumstance surrounding their child’s injury or death.  The prompt involvement of the police and social workers would lead to further accusatory interrogations that began from the principle that the parents must be guilty—as the doctors would not have made such serious accusations if they were not convinced they were true.  Parents describe the same pattern of events where they would only be informed late on a Friday evening that a preliminary court hearing had been arranged for the following Monday morning—thus leaving them the week-end to find a lawyer (who is unlikely to have any expertise in this field) to contest their child being taken into foster care.

These psychological tactics were a prelude to the yet more powerful intimidatory weapon of technical obscurantism—the description of their child’s injuries and the accounts of the charges against them in a language in which the professionals were fluent, but the bewildered parents were not.

The silencing of parents was made more effective still by the rules of confidentiality that wrapped the proceedings of the family courts in a cocoon of secrecy protecting the testimony of expert witnesses from external scrutiny, while concealing from public view the spectacle of so many respectable parents being convicted of inflicting these terrible injuries without the slightest hint of circumstantial evidence that they had done so.

For parents there was no escaping their fate.  From the moment of the initial allegation against them, the alliance of medical experts, police, social workers and unsympathetic judiciary—well organised, experienced and well-financed—meant their eventual conviction was almost a foregone conclusion.  Nonetheless, the two assumptions, scientific and legal, of the specificity of this syndrome as diagnostic of abuse remained as insecure as ever, with the courts’ willingness to convict parents resting almost entirely on their faith in the reliability and trustworthiness of medical expert opinion.

The first indication that such faith might be misplaced came with a series of high profile court cases exonerating three mothers—each of whom had lost more than one child from SIDS—from the charge of having murdered their children.  Further research would refute Professor Meadow’s claim (as reflected in “Meadow’s rule”) that this was “extremely rare” and thus the cause was likely to be unnatural.  On the contrary, it proved to be “not uncommon”; the consequence of one or other of several inherited conditions predisposing to fatal disturbance of heart rhythm.

Meanwhile, serious doubts about the validity of the diagnosis of Munchausen’s Syndrome by Proxy emerged when it transpired that a child’s “unexplained” symptoms—attributed, for example, to deliberate poisoning or the injection of foreign substances under the skin—were subsequently shown to be due to some unusual condition with which the doctor was not familiar.  Professor of Psychiatry, Loren Pankratz, in a much-cited article noted the diagnosis had been confirmed in just two of the eleven cases in which he had been involved.

Similarly, further research has undermined the contention that bleeding beneath the skull and behind the eye is characteristic of Shaken Baby Syndrome, with an evidence-based review finding “serious data gaps, flaws of logic and inconsistency of case definition” in the relevant scientific studies.  This was not, as its name implied, a “syndrome” at all, but rather encompassed several different forms of brain injury.  Thus, a series of independently witnessed accidents confirmed, as parents had maintained, that minor falls could cause an acute subdural bleed with the retinal haemorrhages being due to a sudden rise of pressure within the skull.  Or again, parental histories of a preceding episode of respiratory collapse were consistent with the very different findings of brain injury where damage to the walls of the blood vessels from lack of oxygen causes them to leak blood under the skull or into the retina.

As for the fourth of the quartet of forms of “covert” abuse, with parents accused of “twisting and wrenching” their child’s limbs to cause those metaphyseal fractures, the likely explanation has to be some overlooked disturbance of bone metabolism such as rickets from deficiency of Vitamin D.

For all that, the allegation of “covert abuse” continues to thrive in the criminal courts.  To be sure, Meadow’s “rule” and Munchausen’s Syndrome by Proxy have had to be discarded but the parents of children admitted to hospital with injuries associated with Shaken Baby Syndrome or unexplained fractures are still routinely accused and convicted of having caused them.  “The course of injustice has become almost immovable” observes Professor of Law, Deborah Tuerkheimer.

The arguments have become more nuanced.  It may be conceded that in the past parents may have been wrongly convicted and that this pattern of injuries is not necessarily “characteristic” of abuse.  But the juggernaut of what has become a remorseless (and for many, very lucrative) child abuse industry rolls on.  The presumption holds that parents are guilty unless proved innocent but, in the absence of an objective test for innocence, the sedulous endorsement of misleading or erroneous scientific evidence in the courts continues to prevail.

Part I of this paper was published last week.

This article is published in collaboration with 

James Le Fanu is a British physician and writer. He was educated at Cambridge University and the Royal London Hospital. He has publications in the British Medical Journal and writes a column for the Daily Telegraph and the Sunday Telegraph in Britain


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