Expert evidence about unexplained injuries in child protection cases

On 10 January, the Daily Mail reported about the alarming case of a baby named Teddy, who was removed from his parents’ care when just six-weeks old, and remained away from them for five months while there was investigation into the causes of bruising on his face and body.  The Mail comments:

After they were reported by a health visitor, seven police officers arrived at the door to forcibly remove the sleeping baby from his mother’s frantic grasp. Both Teddy and his sister Amelia, then six, were taken into emergency foster care. It took another five months for their innocence to be proved.

Finally the family were reunited after medical evidence emerged that Teddy ‘was likely to’ have Ehlers Danlos Syndrome (‘EDS’) and Dr Kathryn Ward, a consultant paediatrician at Airedale General Hospital, concluded that ‘the most plausible explanation’ for Teddy’s bruising was that his mother had gripped his face during winding.

EDS is described on this US website as:

a group of disorders that affect connective tissue supporting the skin, bones, blood vessels, and many other organs and tissues. Defects in connective tissues cause the signs and symptoms of these conditions, which range from mildly loose joints to life-threatening complications.

It is probably fair to say that EDS was a little known condition in family cases about five years ago but, by 2016, the time of Teddy’s removal, was becoming more discussed in cases of unexplained injury to children.  The Daily Mail is very critical of the professionals not ‘spotting’ EDS or even being aware it existed, but it is interesting to note how the issue came to light:

Yet Gina might never have got her children back if it were not for her mother, Pauline, reminding them there was a family history of bruising, which had led to other family members being diagnosed with EDS. Pauline remembered how Gina and her three siblings also bruised easily — so much so that they had blood tests and were found to have the condition.

So whatever happened here, this was not a family who were particularly aware that they carried any defective gene, despite an apparent diagnosis. It did not occur to the mother to raise any issue of a family propensity to bruise easily, until she was reminded by the maternal grandmother. Nor from the reporting does it seem that it was confirmed the family carried the defective EDS gene but rather: ‘ a Harley Street doctor confirmed that both Teddy and Gina were likely to carry the EDS gene’.

We are not aware of any reported judgment about this case and what investigation, if any, the court made of the family’s medical history, so rely upon the Mail‘s accuracy in reporting that point. Without access to a reported judgment in this case, or even any certainty as to the nature of any proceedings before the court, comment is speculative. Which is of course a large part of the problem in any attempt at discussing these types of cases.

The comment about the family’s lack of immediate awareness of their medical history is not to excuse ignorance on the part of doctors or lawyers for failing to investigate a medical condition that may prove a reasonable explanation for bruising on a non-mobile baby. However, it does show that it isn’t always immediate and obvious that such a condition may be relevant. Further, investigations can easily be overshadowed by suspicions against parents which harden for those professionals who have to deal with parents’ possible anger and lack of co-operation – which could be due to their inherent propensity for violence or an entirely understandable reaction of horror at being accused of harming their baby.

The heightened emotional tension around such issues was reflected in the reaction of many commentators:

And it is very alarming to read about the circumstances of this baby’s removal. Why on earth were police officers required? Something had clearly gone wrong in the working relationship between the social workers and the parents.

Lack of trust and understanding between parents and professionals about these issues is not assisted by the Mail attempting to link this case as some kind of proof that there may be many injustices surrounding so-called ‘shaken baby syndrome’.

Campaigners increasingly believe that EDS may account for some of the estimated 250 court cases involving shaken baby syndrome every year in Britain, according to doctors who specialise in child abuse.

There is of course a necessary debate to be had about controversy surrounding medical understanding regarding the ‘triad’ of injuries that form ‘shaken baby syndrome’ (subdural hemorrhage in the brain, retinal hemorrhages and encephalopathy). Considerably more expert discussion would be required to support the Mail in their contention that EDS could provide a reasonable explanation for anything in that  ‘triad’. Teddy was never considered a ‘shaken baby’ – he had suspicious looking bruises on his cheeks, legs and wrists.

For a detailed and helpful overview about the ‘war’ between experts over ‘shaken baby syndrome’ see this article in the Guardian.

In an interview with the parents on ITV, Joanna Nicolas, a child protection consultant, referred to important contextual research on numbers of babies killed each year, the particular vulnerability of under 1’s, and the relevance of bruises to non mobile babies – for example, see this overview from the Cornwall Safeguarding Partnership. It’s always a serious issue when children so young have visible bruises – these injuries are either inflicted by another or arise from some underlying medical issue.

Therefore social workers have to tread a fine line between making often urgent decisions about removing children from safe homes or leaving them in dangerous homes. They will often have to err on the side of caution as the consequences of leaving such a vulnerable child in a dangerous home are huge. Further, the difficulties of such cases can be compounded where there are a possible multiplicity of ’causes’ for any worries about how the parents are coping, which may involving social and environmental factors. This can also obscure timely assessment of any relevant medical condition.

Parents must be able to have trust in the system to investigate quickly any underlying medical condition that may explain injuries to their child that they cannot. This case does seem to be a very sad example where a lack of a working relationship between parents and professionals led to a removal of two children in unnecessarily brutal circumstances with a delay of four months before Teddy was tested for any possible gene mutations. The Mail article gives a clue to what may have gone so badly wrong here, describing the arrest of Teddy’s father:

An hour later, Joshua was arrested on suspicion of assaulting his baby. ‘They put me in handcuffs in the hospital and walked me out through A&E. It was horrible. People were staring at me. In the police car back to the station, I was shaking with anger and shock.’

If professionals fear a baby has been harmed by a parent and that parent’s shock and disbelief is then perceived as violent and threatening, its not hard to see how a situation can quickly spiral out of control.

It is asking a lot of parents of a baby to be able to cope calmly with this kind of child protection intervention. The Transparency Project has been concerned for some time now about a general lack of understanding of the role of experts in these proceedings and that some parents appear to be increasingly distrustful about engaging with expert assessments. There are frequent complaints about the perceived lack of independence of many experts and what seems to be a widespread misunderstanding about how experts are appointed to report in family cases.

Guidance note on the use of experts in child protection proceedings

In an attempt to provide better clarity about the role of experts in child protection cases, and with the hope of  restoring some trust in the system, it is the intention of The Transparency Project to provide a Guidance Note in the near future..

We propose to examine the following issues – please do contact us or comment below if there are other areas that you think would benefit from more clarification.

• What each sort of expert discipline is / does (e.g. what is a psychologist / psychiatrist / paediatrician)
• parents’ anxieties over the possible consequences of assessments, Why / when it might be a good idea to cooperate with such an assessment – you can’t be compelled.
• What issues experts help with
• How they are instructed and are they independent?
• Letters of instruction / signing up to Practice Direction 25 and duty to the court.
• Drug and alcohol testing
• Experts giving evidence and what weight they have –  important but the court will consider all evidence in the round etc – when a judge can depart from an expert
• When paper-based assessments are acceptable and when they are not
• Ethics issues – recording interviews by experts, notes, record of conversations with professionals; need to see documents.
• Privacy issues – who gets to see your medical notes?

For parents facing investigation – some quick suggestions

And finally – if you are a parent facing investigation because your child is injured, Andrew Pack provided a helpful guest post on the Child Protection Resource. His advice can be summarised as:

• Don’t panic
• As soon as you can make a list of what you can remember
  • Who was caring for your child at the relevant time?
  • Can you remember anything unusual that happened?
  • Can you remember your baby acting in an unusual way, was there crying, bruising, etc
• If the baby is very young, was the birth very difficult? Sometimes traumatic births can cause injuries*.
• Is there any history of rickets, or vitamin D deficiency?
• Is there any history with you, or the other parent, or in their family of any clotting disorder, bruising disorder or any bone disorder?  If they have a diagnosis for a condition but aren’t sure whether it covers any of those, get them to write down the name of it and let your lawyer know the list.

*See our recent post on this issue.

Image courtesy of Jessica Leung on Flickr