In this paper British doctor James Le Fanu explains how mistaken medical theories have led to parents being wrongly convicted of physically harming their children. Part II of this paper will be published next week. This article was first published in two parts on 10 March 2018 and 18 March 2018 in the Sunday Guardian with the titles “Theories and frameworks misdefining child abuse” and “Guilty until proved innocent is the new legal standard” as part of our ongoing weekly series in collaboration with them called “Global Child Rights and Wrongs”.
The Issue: How and Why have Child Protection Laws Led to the Conviction of Innocent Parents?
The crucial question posed in the series ‘Global Child Rights and Wrongs’ in the Sunday Guardian is how – and why – child protection laws should, over the past few decades, have led to the wrongful conviction of thousands of innocent parents and care givers world-wide, with devastating consequences for all concerned. The scale of these wrongful convictions would imply, if self-evidently, some unique malfunctioning of the legal system – a failure to fulfil its prime purpose of distinguishing guilt from innocence. To be sure, justice can miscarry – hence the opportunity provided by the appeal system to strike down judgements that, in the light of subsequent evidence, prove to be erroneous. But the situation here is quite different – a systematic (or systemic) miscarriage of justice entrenched within the legal system over many years.
History of Western Child Protection Legislation: Battered Child Syndrome
The physical and emotional abuse of children – infanticide, mutilation, abandonment and other forms of violence stretches back to antiquity. It is, however, only in the recent past that the legal framework for their protection has been created prompted by a most influential article, ‘The Battered Child Syndrome’, published in the Journal of the American Medical Association in 1962.
This ‘syndrome’, observed Dr Henry Kempe of the University of Colorado, may occur at any age but most commonly in children younger than three years. “In several instances the manifestations are limited to those from a single episode of trauma”, he wrote, “but more often there is evidence of prolonged neglect with poor skin hygiene, multiple soft tissue injuries and malnutrition. There is often a history of previous episodes of parental inflicted trauma.” As for those responsible for inflicting these injuries, “they are often described as psychopathic characters … alcoholism, sexual promiscuity, unstable marriages and criminal activities are common … they are immature, impulsive, self-centred and quick to react with poorly controlled aggression”.
The response to Dr Kempe’s identification of the ‘battered child syndrome’ was immediate and effective with the establishment of procedures involving doctors, social workers and the police to properly investigate suspected cases, bolstered by a raft of long-overdue child protection legislation.
From Visibly Abused Children to ‘Covert Abuse’ Theories
Twenty years later that framework of investigative procedures would become, if unintentionally, the instrument for securing the conviction of many innocent parents for the crime of ‘non-accidental injury’ of their children. How did this happen? There should be little difficulty in recognising the victims of the battered child syndrome both on clinical grounds- the signs of neglect and soft tissue injury, multiple fractures and so on- and from the psychological profile of the perpetrators. But, argued the prominent British paediatrician Sir Roy Meadow, these cases were only the most visible manifestations of a hidden epidemic of ‘covert abuse’ deliberately inflicted on their children by seemingly loving and respectable parents in such a way as to conceal the fact that they were the perpetrators.
Specifically, ‘covert abuse’, it was argued, was the likely explanation in three very different ambiguous or uncertain clinical situations commonly encountered by doctors.
First, sudden infant death syndrome (SIDS). SIDS remains much the commonest cause of unexpected death in childhood whose causes include the vogue on medical advice for placing babies in the prone position when sleeping, but in many instances remains elusive. But, insisted Professor Meadow, when two children in the same family succumb from SIDS this is ‘suspicious’ of infanticide by smothering while three such deaths is ‘murder unless proved otherwise’. This assertion would become known as ‘Meadow’s rule’.
The second type of ambiguous clinical situation was medically unexplained symptoms. All doctors encounter ‘puzzling’ patients the cause of whose signs and symptoms remain obscure despite the most thorough of investigations. This raises the possibility that parents (in particular the mother) might be fabricating their child’s symptoms warranting repeated hospital admissions and investigative procedures. In his own experience, Professor Meadow had identified this phenomenon that he labelled ‘Munchausen’s Syndrome by Proxy’. He claimed to have encountered this syndrome in nineteen children. But their, in his view, ‘fraudulent clinical histories and fabricated science’ encompassed the full spectrum of possible paediatric illnesses – bleeding from every orifice, drowsiness, seizures, unsteadiness, rashes, fevers and raised levels of glucose and salt in the blood suggestive of diabetes or some disturbance of kidney function.
The third type of ambiguous clinical situation was childhood injuries. Children are by nature accident-prone but, when the severity of their injuries is disproportionate to the explanation provided, this, the theory goes, is highly suggestive of ‘covert abuse’. Specifically, children admitted to hospital following, their parents maintain, a short fall or an episode of choking may exhibit a triad of symptoms -bleeding under the skull, retinal haemorrhages and brain swelling -similar to the whiplash injuries sustained in car accidents or following rigorous shaking (so called ‘Shaken Baby Syndrome’ (SBS)). The imagery of how the violent to and fro movement of the baby’s head could cause bleeding of the vessels in the eye and brain is certainly very persuasive and it seemed logical to infer that any child presenting with these signs must have been shaken – even in the absence of circumstantial evidence of physical abuse. Or again, when x-rays of a child brought to hospital with a fracture of, for example, the arm, reveal the presence of further non-clinically apparent metaphyseal ‘fractures’ of the long bones, this could be interpreted as evidence of their parents having ‘twisted and wedged’ their limbs – despite the absence of bruising or other features suggestive of physical abuse.
Covert Abuse: Master Theory or Mistaken Interpretation of Clinically Ambiguous Situations?
The description of these three novel syndromes , taken together, seemed a major intellectual breakthrough – a ‘master theory’- where the clinically ambiguous situations of recurrent SIDS in the same family, unexplained medical symptoms and the disparity between the severity of physical injury and parental accounts would all be accounted for by the single unifying and plausible diagnosis of covert abuse inflicted by seemingly respectable (indeed exemplary) parents on their unfortunate offspring. And the scale of this ‘hidden’ epidemic turned out to be vastly greater than might be supposed. In Britain there was a fourfold increase in the number of child abuse cases over a decade with, by the end of the 1980’s, an additional 7,500 children every year being placed on the child protection register on the grounds of physical abuse.
There can be no doubt that parents may smother their children, fabricate their illnesses and shake their babies. But the facility with which parents could be accused of inflicting these forms of abuse covertly, concealed from view its poor evidential base for the link between the putative mechanism of assault (smothering, say, or shaking) and subsequent death or injury could neither be independently confirmed nor experimentally investigated.
Alternative Explanations for Covert Abuse Findings
The legitimacy of these novel ‘covert’ abuse syndromes was predicated on two related and highly improbable assumptions, scientific and legal. The scientific: that there could be no other explanation, either known or that might be discovered at some time in the future, that might explain these ‘characteristic’ presentations. ‘Meadow’s rule’, for example, precluded the possibility that there might be some unknown genetic explanation for two or more unexpected childhood deaths in the same family, while the ‘characteristic’ pattern of shaken baby syndrome precluded the possibility of some alternative explanation for those retinal and subdural haemorrhages. The legal assumption presupposed that these presentations were so specific for abuse that they were by themselves sufficient to secure a conviction – even in the absence of the sort of circumstantial evidence of neglect, violence or parental psychopathy that would normally be required to return a guilty verdict in a court of law.
Put another way, the ‘characteristic’ presentation of these syndromes could not sustain the interpretation placed upon them: they might be ‘consistent with’ but could not by themselves be ‘diagnostic of’ child abuse. Thus, many of the parents contributing to those statistics of the fourfold rise in child abuse were likely to be innocent.
In the second of these two articles I will examine the methods of by which they have nonetheless been convicted of deliberately injuring their children – and the current status of those syndromes of ‘covert’ child abuse.
When the doctor becomes policeman, judge and jury
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.
The authority of the child abuse expert.
We start with the authority of the child abuse expert. By the close of the 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.
The circular argument of successful 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.
The silencing of parents
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.
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. [Note: Links to some of Professor Loren Pankratz’ work on misdiagnosis of Munchausen’s Syndrome by Proxy are here, here, and here. – SaveYourChildren.In]
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 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.
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.
Dr James Le Fanu is a British physician and writer. He was educated at Cambridge University and the Royal London Hospital. He is published in the British Medical Journal and writes for British newspapers: the Daily Telegraph and the Sunday Telegraph.