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.
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”.
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 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.
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 symptom—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.
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.
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 if the absence in 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.
Part II of this paper will be published next week.
This article is published in collaboration with www.saveyourchildren.in.
James Le Fanu is a British physician and writer. He was educated at Cambridge University and the Royal London Hospital. His articles have appeared in medical journals such as the British Medical Journal.He writes as a medical journalist in the well-known British newspapers: the Daily Telegraph and the Sunday Telegraph