In the matter of CW (A Child) (1) IW (2) SW Enfield  EWCA Civ 402 and Shaken Baby Syndrome
The following is my commentary on the judgment in respect of the above case:
The judgment is in the link.
On 27th March 2007 there was a hearing in the Court of Appeal where I appeared as a Mackenzie Friend. This related to a case where a couple (IW and SW) were asking the Court of Appeal to stop the Local Authority (Enfield) from having their daughter adopted whilst the case was considered by the European Court of Human Rights
I became involved in this case because I felt that it highlighted a number of the problems with the current system of Public Family Law. The Court of Appeal Judge (Munby) has since published an anonymous judgment which allows the consideration of the points of law and other aspects in public. This response is a response to that judgment that hopefully can also stand alone.
The history of the case is that IW and SW are married. IW was previously married to TW and had two children. The second child was taken to hospital on 30th March 1999 and was found to be suffering from serious injuries as a result of which he now suffers from cerebral palsy and a number of other disabilities.
Later on IW and SW had a daughter CW. The case is not about DW, the child that was injured, but instead about CW who is being taken through forced adoption because of what happened to DW – who was left in the care of his parents.
The first key issue in this case is that of what caused the brain injury and what can be known with any certainty as to what happened that day. The factual evidence was that DW had subdural haematomae and retinal haemorrhages.
A medical expert indicated that his view was that these injuries were as a result of DW being shaken.
The point of law at this point is that the medical evidence was in fact never challenged. During the set of hearings relating to DW there never was a judgment to put DW into care. Both sets of hearings resulted in conclusions that left DW in the hands of his parents. However, on 6th March 2000 District Judge Bradley concluded that DW was injured by one of his parents.
This leaves the start of this case squarely in the middle of the Shaken Baby Syndrome (SBS) debate. There are a number of unproven hypotheses about SBS. The first unproven hypothesis is that the presence of subdural haematomae and retinal haemorrhage (SHRH) demonstrate that in the absence of another known cause the infant has been shaken.
Bandak FA, however, wrote in Forensic Sci Int 30/6/2005“We have determined that an infant head subjected to the levels of rotational velocity and acceleration called for in the SBS literature, would experience forces on the infant neck far exceeding the limits for structural failure of the cervical spine. Furthermore, shaking cervical spine injury can occur at much lower levels of head velocity and acceleration than those reported for the SBS. These findings are consistent with the physical laws of injury biomechanics as well as our collective understanding of the fragile infant cervical spine from (1) clinical obstetric experience, (2) automotive medicine and crash safety experience, and (3) common parental experience. The findings are not, however, consistent with the current clinical SBS experience and are in stark contradiction with the reported rarity of cervical spine injury in children diagnosed with SBS. In light of the implications of these findings on child protection and their social and medico-legal significance, a re-evaluation of the current diagnostic criteria for the SBS and its application is suggested.”
There is also the Geddes hypothesis which indicates that we should not rely merely on subdural haematomae and retinal haemorrhages to conclude that a baby has been shaken.
Some things are certain. It is certain that SHRH can occur spontaneously as a result of glutaric aciduria. The appeal of Ian and Angela Gay against their conviction for the killing of their foster son was not just a salt poisoning case, but also an SBS case. In that case the jury accepted that a too rapid hydration of the boy was the cause of SHRH.
The difficulty for the appellants, however, is that IW was a Fork Lift Truck driver. He had not any personal experience in considering the issues relating to SHRH. All he could do was clutch at some straws found on the internet. In the mean time a well paid expert gave sufficient cause for the judge to conclude that he was guilty. He did not have the knowledge to prove his innocence.
In essence, therefore, the judicial process here was in contravention of Article 6 of the European Convention of Human Rights – the right to a fair trial. The significance of the key facts has not been properly considered and the defendants not given a proper opportunity to challenge them. The issue of “equality of arms” is important from a scientific point of view just as much as from a legal point of view.
The legal significance of SBS was considered in a Daubert hearing in Kentucky on April 17th 2006 and the court concluded:"The Court can further conclude that based on the medical signs and symptoms, the clinical medical and scientific research communities are in disagreement as to whether it is possible to determine if a given head injury is due to an accident or abuse. Therefore, the Court finds that because the Daubert test has not been met, neither party can call a witness to give an expert opinion as to whether a child's head injury is due to a shaken baby syndrome when only the child exhibits a subdural hematoma and bilateral ocular bleeding. Either party can call a witness to give an expert opinion as to the cause of the injury being due to shaken baby syndrome, if and only, the child exhibits a subdural hematoma and bilateral ocular bleeding, and any other indicia of abuse present such as long-bone injuries, a fractured skull, bruising, or other indications that abuse has occurred."
A matter peripheral to the core SBS debate occurred in a case recently concluded in respect of a baby in Oldham (OLDHAM MBC v (1) GW (2) PW (3) KPW (A CHILD BY HIS GUARDIAN JACQUELINE COULTRIDGE) & FORBES (Intervenor) (2007)). In this case the original expert was absolutely certain at the start of the case that a baby had been shaken. At the end of this case the same person was certain that the injuries caused could not have resulted from the baby being shaken.
The difficulty lies in the fact that the court is accepting the view of an expert that is not shared by all of those in that profession. Furthermore there is not a fair trial because the parents have not had the practical opportunity of bringing to bear an alternative expert perspective.
It was accepted by the court in the present case that the SBS hypothesis is unproven. The justification for accepting an unproven hypothesis was the difficulty of testing the hypothesis. This would, however, imply accepting any arguable hypothesis where a difficulty can be demonstrated in proving it.
In essence, therefore, the present case started with a determination of fact which actually is not only not based in rational argument, but instead in a leap of faith which is only maintained by excluding the alternate perspective. This is, therefore, not Article 6 compliant.
None of this mattered with the original couple (IW and TW) because the children were left with them and even when IW left the marriage (under pressure from the Local Authority) he was allowed unsupervised contact with his children.
In 2004 CW was born and taken into care on the basis of the previous dispute.
IW will accept that he has been quick to anger on a number of occasions. One of the things I have noticed about the relationship between Local Authorities and parents of children involved in care proceedings is the development of a substantial resentment of the behaviour of the authorities. Whether IW’s tendency to respond aggressively to social workers was caused by the social workers or not does not matter. It is accepted that he has been quick to anger.
IW also would not accept that he was responsible for the injuries to DW. It is important to note that there is a substantial body of opinion (accepted by the court in Kentucky) that indicates that the evidence is that he could not have caused DW’s injuries.
This unwillingness of IW to accept responsibility caused the Local Authority to consider that he was “in denial” about the situation. An alternative perspective, of course, is that in fact he did not want to accept responsibility for something that he was not responsible for in any way.
The system (court and local authority) also considered the rest of the family. The recommendation of the local authority was that none of the extended family were capable of looking after CW.
The court also dwelt on the father’s own medical condition. I have had the opportunity of reading the father’s medical file in which it reports the diagnosis that the father has multiple sclerosis. However, the original court considered that his claim to have multiple sclerosis was another reason why he would be a bad father.
The father would accept that he has difficulties working with social workers. The evidence is that the more that people have to do with the care system the harder they find to work with it. That is why children of women who have been in care tend to be taken into care. It is, therefore, not reasonable to consider that having difficulty working with social workers implies that someone is a bad parent.
After the final judgment in late 2006 the parents appealed to the ECHR. They feared what happened in the P, C and S case where the ECHR concluded that a child should not have been taken into care, but too late to stop the child being adopted. Hence they applied for a stay of proceedings to the high court and when that was refused appealed to the Court of Appeal.
The difficulty with this is that I was unaware of what the parents were doing until it had been done. It was not possible, therefore, for me to properly collate the evidence that they needed to challenge the original decision. Again, therefore, we end up with what is in essence an unfair trial. Munby J did go out of his way to collate documents. However, the system is in its operation inherently unfair as the state steamrollers parents and children who have little practical support in challenging the system.
The conclusion was a short hearing at which certain documentation was requested and then collated.
Munby J’s judgment is correct in that the parents have not properly challenged the threshold criteria. That, however, is because the procedures currently operating in the family court and the generalised rush to judgment does not permit them to obtain a fair trial.
There is also an issue with S31 of the Children Act 1989 which sets the bar for the threshold criteria at a ludicrously low level. The mere fact that the father has been shown to be quick to anger with social workers and a judge is considered sufficient to remove his daughter for life. That is not, however, a problem with the interpretation of the law, but instead with the statute itself.
Munby J is, however, fundamentally wrong where he considers the issue of adoption targets.
All Children’s Services Department of Local Authorities have targets for the number of children adopted from care. This is having a substantial impact on the operation of care proceedings. The statistical evidence that I have at this state is that the increases in numbers of children taken into care are increases in the age cohort of children that were previously not taken into care. In other words the children the targets were established to get adopted are not getting adopted instead a completely new group of children are being taken into care and then adopted. That, of course, is not proof of the argument that children are taken into care merely to get them adopted.
Generally the children being additionally adopted are taken into care at a very young age. These are the “adoptible commodities” described by social workers as children that are attractive to potential adopters.
In the absence, therefore, of proof that the cause of the massive increase in newborn babies being taken into care is something other than the adoption targets that remains the only thesis.
The effect of the adoption targets means that the opinion of the local authority is conflicted. To that extent any judgment that relies upon the opinion of the local authority is unlawful as it is relying on unreliable opinion. Personally the opinion I see as demonstrating a care case orientated towards adoption is that of the assessment of the other family members. Where the local authority takes the view that the rest of the family are unacceptable as carers regardless of proper evidence then it seems clear that they are driving towards adoption.
The courts also rely on the independence of the Guardian ad Litem. The difficulty is that there is an inherent bias both with the Local Authority and CAFCASS towards intervention. Intervention is generally damaging both to the child and the wider family. However, the machinery of the state continues to create havoc through inappropriate intervention.
The UK has a particular interest in forced adoption. The question as to whether forced adoption is in itself in contravention of the ECHR has not been considered by the courts. In the rush to increase in a cost effective manner the number of children forcibly taken from their parents at an early age no consideration has been given to the impact on those children when they hit adolescence.
There have been a number of cases recently where birth parents and children have been reunited as the children go into late teens. Where an adoption is resented deeply by the birth parents because it is based in a miscarriage of justice this is not an issue that can be resolved simply by court orders. In the case of forced adoptions based upon miscarriages of justice there may be a few years of quiet whilst the children grow up and the birth parents are suppressed by the courts. However, that won’t last and the trauma caused to all involved including the adoptive parents is something where responsibility has to be clearly lain at the feet of the family division and the professionals responsible for these travesties.
Sadly this case cannot be taken any further in the UK. The refusal of permission to appeal means that the issues cannot be considered in the House of Lords. It does, however, continue n the ECHR.
What is good about this case is that the key issues can be debated properly in public. This is needed for other cases.
This case, however, demonstrates the real and urgent need for a proper consideration of evidence in contentious cases. It also raises questions about the over reliance on experts in public family law cases. Much of the decision-making is based upon opinion rather than fact. This probably requires changes to statute, but until such a stage as proceedings can be discussed in public it will not be possible to perform a systematic review of this.