Can a love note prove your innocence?

The Daily Mail report today that : Loving note tucked away in a photo album proved parents accused of almost killing their baby did NOT violently shake her

This is about baby Effie, who spent several long months away from the care of her loving parents whilst concerns that they had hurt her were investigated. We have written about this case here and here, so we won’t set out the full history again. The short version is, during the family court case it was discovered that baby Effie suffered from a rare condition called EDS IV which could have accounted for or contributed to her injuries, and everyone agreed that allegations of inflicted harm could not be proved.

The headline is simply not accurate. We will explain why.

In his judgment, the judge does mention the note :

1. I have also seen a small album of photographs prepared by Miss Andrews and Mr Stillwell. It is a beautiful collection of photos and has written into the back page a message that they can never have anticipated that the court would see. It was written by Miss Andrews and says this:-

2. “It’s December 24^th 10:15pm Xmas eve. I’m ready for bed, but as I write this I am dreading Christmas tomorrow because our baby won’t be here. I am missing you Effie…we all are. Me + daddy promise to have you home soon. We love you, always have. Always will xxx”

The body of the article says that :

This message, discovered by a judge by chance when the album was handed in as evidence during an historic family court case, helped stopped Effie being taken away and adopted. For the judge said it provided proof of the devotion of Carla and her partner Craig to Effie even though the pair were facing accusations of violently shaking their daughter and nearly killing her.

We think the bit about the message being discovered “by chance” is probably a bit of a misunderstanding or creative licence. It is clear from the judgment that the note was written into the photo album and not accidentally left within its pages. And it is highly likely that the photo album was disclosed by the parents, who wanted the judge to see how much Effie was loved. Whilst it is a poignant piece of evidence, it is what lawyers call “self serving” – or in layman’s terms : “they would say that wouldn’t they”. As a piece of evidence it would be unlikely to carry very much weight at all, given that it was written by the parents and offered up by them. What’s more, it is a sad fact that normally loving parents do sometimes harm their children – so evidence of that love her is not proof that a parent didn’t harm a child, though it may lend support to other evidence that tends to show innocence. However, it is evidence and would all go in the mix of things the judge had to consider, so it is legitimate to say as the quote above does, that it “helped stop Effie being taken away”. What is not legitimate is to say that it “proved” the parents innocence. It really didn’t.

The judgment sets out the reasons for the decision to return Effie home. They are long and detailed. The judge goes through the extensive expert medical evidence in the case, and some of the wider evidence he heard and read, including the two paragraphs above devoted to the note. At paragraph 157 and onwards the judge embarks on an analysis of all that evidence. There are 18 paragraphs devoted to the medical evidence alone. He then says :

1. It is of course necessary for the court to consider the forensic evidence against the wider canvas. It is clear from the parent’s engagement with the medical services before her collapse that she was a precious baby, adored by both parents. In my view they acted entirely appropriately at the time of her collapse seeking medical assistance in timely fashion. They worked openly with the doctors on admission to hospital. The unfortunate exchange between Mr Stillwell and DS Wheeler occurred at a time of high emotion. Neither parent has a criminal history. Both parents have worked well with all professionals since she was received into care. Their accounts to the police in interview are consistent with the other and internally robust. They had no opportunity to consult after the point of fathers arrest and little time alone after she was admitted to the hospital. Finally there is unanimous acknowledgement by all professionals that this young couple have shown maturity and restraint in their dealings with all professionals and remain committed to the long term care of their young and vulnerable daughter. For these reasons, which must be considered alongside my analysis of the medical evidence, I consider that Effie’s collapse was most likely the consequence of a naturally evolving disease either in the form of a spontaneous rebleed after haemorrhage at birth or in consequence of the lower injury threshold and an event consistent with normal handling. [our emphasis]

So, The Daily Mail is right in saying that the judge concluded that Effie’s parents were devoted to her (although this word isn’t used it is clearly the judge’s view from the passage we’ve emphasised above). But whilst he has considered the note, the judge does not rely on it in reaching his conclusion, instead he sees the parents’ adoration in other aspects of the evidence he has heard. So whilst it is clear that Effie’s parent’s did not violently shake her, we don’t think the headline suggesting that the “love note” proved their innocence is sustainable. And actually we think it does the parents a disservice – there was far broader evidence that supported their love and devotion to their daughter than this note, and in fact the judgment suggests that pretty much everything pointed in that direction, but for the fact that Effie of course had an unexplained collapse. Their exoneration certainly didn’t depend on that little note in a photo album.

However, there are some interesting aspects to the article itself, which goes on to discuss the way in which EDS can mimic the symptoms of shaken baby syndrome. There are some quotes from the mother’s solicitor William Bache saying that :

Effie’s case highlights a problem I’ve seen far too many times. Parents seek help at a hospital for their ill baby. If symptoms are found which some say indicate Shaken Baby Syndrome, there is an unthinking reaction leading to the conclusion of abuse. There is then no further medical inquiry into any other possible reason for the illness. It is a tunnel vision which might leave a child untreated or even dead.

The point he is making is one we discussed here, which is that it was left to the parent’s lawyers to suggest EDS, which led Effie’s mum to research it herself before realising she fitted the profile of a sufferer herself – this was apparently not considered or ruled out whilst Effie was in hospital, leading to delay. We wrote about these issues in our second post on the topic here.

The article criticises the “secret” Family Courts, contrasting it with the Criminal Courts, saying that

Significantly, the Court of Appeal has ruled that due to the continuing confusion surrounding Shaken Baby Syndrome, a criminal conviction should never be made where there is conflicting medical opinion. There must be incontrovertible evidence of an assault.

Ironically however, the family court here wasn’t secret – at the parent’s request to be able to talk about their case and to participate in debate about these issues, the judgment was openly published and the family named, thereby enabling the parents to give interviews and provide photographs, and facilitating the significant press coverage of the case and wider issues, of which this article is a part.

We are trying to establish which Court of Appeal case the Daily Mail are referring to in the quote above (we’ll update if we work it out) [Update – we think its R v Harris [2005] EWCA Crim 1980, but we don’t think this is a remotely accurate summary of what Harris actually says] but note the further irony that it was of course only through the Family Court that the diagnosis was secured and the parents vindicated. One is left wondering whether, if there had not been such a thorough investigation in the family courts and if the mother’s solicitors had not mentioned EDS (which she had never heard of), Effie would still have been left with no clear diagnosis.

We will contact The Daily Mail and ask them to amend their headline and will try and include a link to the judgment via the comments facility [Update – now done]. [Update 11 May : on 9 May the Daily Mail contacted us to let us know they’d amended the headline, which now reads : Loving note that proved baby Effie’s mum and dad weren’t monsters. We think this is a material improvement on the earlier version, and are grateful for the amendment. Whilst it probably didn’t technically prove anything to the court, we can see that it might hold greater significance to the general public, and that in hindsight confirms the findings.] 

[UPDATE : A similar problem arises from this headline in the Mirror, which we will also ask them to correct : Loving note found by judge that stopped parents losing their baby]

Feature Pic courtesy of Abhijit Chendvankar on Flickr (via Creative Commons Licence) – thanks!