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Child injury cases need a specialist approach

2 January 2022

Unusual aspects of these cases

Cases involving apparently unexplained child injury are unusual for a number of reasons, and people who are accused sometimes find themselves particularly vulnerable in comparison with accusations of offences against adults.

The Effect on Family

Most obviously, there is an immediate impact on the family, and this is in a situation where the stress of death or serious injury to the child has already rocked that family to its core. Social services will immediately move with the police to ‘assess risk', and this often means depriving the children who live there of their parents.

Parents in these cases usually have no criminal convictions, but find themselves from the outset being treated like criminals. If the parents do have any criminal record, this is often used disproportionately against them to try to somehow show a likelihood of guilt. This is clearly a dangerous logic.

Parents can be stopped from grieving

In cases involving death, not only are other children often removed, but the parents are denied the chance to grieve for the lost child. Scandalously, it has even been known for innocent parents to have been cut off from the funeral arrangements.

Medical opinions in child medicine can vary

Evidentially, many cases involving (paediatrics) children and serious injury or death can be open to different interpretations by medical experts, and the received opinion on some well publicised conditions is actually known in some complex cases to change over a period of just a few years. This is of course no consolation to those families who have been marked forever by the experience of being convicted.

Defence solicitors should get secod opinions

These cases are also unusual in that they often require the scientific input of a number of different types of medical expert in the same case. Caution must be shown before accepting anything an expert says which is influenced by an area outside his or her specialisation. The importance of the medical evidence in these cases cannot be overstated. It is fundamental. Any lawyer defending in a case involving child injury or death should (either have more than the ‘man on the street' level of knowledge of the likely issues, or be prepared to learn fast) have specialist knowledge.

How a professional's initial concern can gather its own steam

The very first report of something unexplained or suspicious by a doctor or a social worker is the point at which every next person in the chain of a formal investigation and prosecution is in danger of being prejudiced without even knowing it.

An initial report may be made by a pathologist or doctor, who may not be a specialist in the specific area which he or she is diagnosing. That can then set off a chain of investigation verging on an accusatory tone rather than a fact-finding one, with every person in the chain starting on the basis of what they have already been told, rather than assuming an open minded role. Police, social workers, and CPS lawyers will often be well advanced on the path of building the case against the parent or carer before the paediatric experts (often in a large group of specialists) have even come to their final opinion.

By the time the medical diagnostic process begins to catch up, the whole investigation has a momentum of its own which is hard to influence. This means that the police and prosecution steamroller can be susceptible to unfounded and arrogant attitudes of medical staff at the beginning, irrespective of the damage that is done to innocent families along the way. The existence and danger of this kind of ‘confirmation bias' is of course well documented in other areas.

The Law in Child Fatal Injury Cases

In fatal cases, where there is suspicion of maltreatment, the CPS are likely to charge a person with murder, even if the worst interpretation looks more like the offence of manslaughter.

To prove murder, the prosecution have to prove that a person assaulted the child, intending to cause death or serious injury. Without this, it cannot be murder. The lesser offence of manslaughter can be committed a number of ways. An assault without the intention to at least cause serious injury could be manslaughter. Doing something very irresponsible indeed such as throwing a baby around without care for its safety could be manslaughter by gross negligence (if it is done by someone with a duty to the child such as a parent or carer)*. For more information see our pages on manslaughter and gross negligence manslaughter.

‘Baby shaking cases' - differences in expert opinion

It is fair to say that scientific opinion in non-accidental head injury or so called ‘baby shaking' cases has shifted in a way that has (provided) caused some confusion in the courts, and (even in recent years) in the CPS. The swinging of the pendulum of expert opinion between the so called ‘triad' of injuries approach and the ‘unified hypothesis' approach shows how difficult it is for a jury to be sure of exactly what has occurred, and they should be warned by the defence team appropriately.

In paediatric cases, there may be just a few experts in a particular specialization where there may be hundreds in the equivalent adult sphere, with recognised leaders. In any environment where there is domination of the field by a small number of experts, the risk of serious error is much greater. In this context, it is absolutely essential that a number of experts are contacted and quizzed by the defence team before an expert is finally chosen. The one expert with the slightly unfashionable or unpopular view may be the one who actually provides the key to understanding an alternative explanation of the injury. In allegations of baby shaking, however, the first thing that a defence lawyer has to appreciate is the basic scientific approach to diagnosis which is used in court, and what its limitations are.

Strategy in infant injury and death cases

Of course, every case is different and must be approached with an open mind and sensitivity. But there are certain things that a client in one of these difficult cases must be able to expect from his or her legal team.

  1. No assumptions can be made about what happened, even if the prosecution evidence seems credible. Paediatric legal cases are so very specialised that the police, the CPS, and the experts often make mistakes.

  2. Specialist solicitors and barristers must be used. This is not general high street legal practice work. ‘Specialist' means years of experience in cases involving death and serious injury. It also means some awareness of paediatrics and the way in which social services deal with child protection cases.

  3. These cases, especially if the client is a parent, can result in sheer misery for the family. And the allegation can leave the accused feeling totally isolated. The client needs to know that the legal team have faith in him or her and will fight unflinchingly all the way through the case.

We have attempted here to cover some of the issues that arise in cases involving allegations of child assault, infant death and ‘non-accidental head injuries' or so called ‘baby shaking' cases. However, this is a large and very specialised area, and the guide above is not exhaustive.

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