Proving Or Disproving Non-Accidental Paediatric Injury In Child Abuse Cases

Understanding An Expert Witnesses Role In Proving Or Disproving Non-Accidental Paediatric Injury In Child Abuse Cases

Proving or disproving non-accidental injury in criminal prosecutions involving child abuse is notoriously controversial.

In the decades following the publication of The Battered Child Syndrome, which provided clinical evidence that child abuse was more common than once thought, the pressure on schools, the police, and medical professionals to report suspected child abuse cases has intensified. This has led to deep divides within the medical and legal community, most recognisably in cases of so-called ‘shaken-baby syndrome‘.

The impact of child abuse accusations is enormous for everyone involved. Naturally, the first concern is to protect the child in question; however, those falsely accused of child abuse can have their reputations, careers, and family lives destroyed in an instant.

Child abuse cases

Lord Justice Ryder described a non-accidental injury (NAI) thus in Re S (A Child) [2014] EWCA Civ 25 at paragraph 19.

“The term’ non-accidental injury’ may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).”

One of the key roles of an expert witness in such cases is helping the Court understand whether or not the child in question’s accident involved an ‘element of wrong’. One of the leading cases in this area is W (Children) [2009] EWCA Civ 59. The Court of Appeal was asked to consider an out-of-time appeal by parents (W) regarding the decision that they had caused an NAI to one of their children (B), and against the subsequent care and adoption orders made in respect of B and two of W’s other children.

The initial decision and the issuance of the Care Order occurred in 2004, followed by the Adoption Order in 2005. The three children, aged nine, seven, and five at the time of the appeal, had been placed in foster care back in 2003. In 2007, during the legal proceedings concerning W’s youngest child, medical evidence from multiple experts revealed that B’s injuries were not caused by violence but rather stemmed from the uncommon condition of scurvy.

Unfortunately for the parents in this case, although the Court of Appeal accepted the new expert evidence, due to adoption legislation and consideration of what was in the children’s best interests, it was unable to interfere with the Adoption Orders.

In delivering his judgment, Lord Justice Wilson concluded at paragraph 206:

“The moral which I draw from this case and will never forget is that a hypothesis in relation to the causation of a child’s injuries must not be dismissed only because such causation would be highly unusual and that, where his history contains a demonstrably rare feature, the possible nexus between that feature and his injuries must be the subject of specialist appraisal at an early stage.”

How to choose an expert witness in criminal child abuse cases

The catastrophic consequences of wrongly decided NAI cases involving children are well illustrated above. Therefore, legal professionals must pay particular care when choosing expert witnesses in such cases. In his article, Child Abuse and Child Protection – The Role of the Expert, Alec Samuels provides the following on how to identify a “good and not so good expert”:

  • A good expert is meticulous in getting the facts correct, as these cases are fact-specific. This includes the facts of the case and the applicable scientific facts.
  • They will have recent clinical and forensic practice and experience and not stray from their area of expertise.
  • Salient issues are clearly identified and their analysis is logical and consistent.
  • Their evidence is based on up-to-date knowledge, experience, and peer-reviewed literature.
  • Their final report is concise, with sound, independent, unbiased reasons provided for the conclusions reached.
  • Recognising that no one has a “monopoly of wisdom”, they will listen to and consider opposing views and amend or moderate their opinion if appropriate.
  • They will appreciate that in NAI cases involving children, the unknown can never be ruled out, especially in developing areas.

Concluding comments

Proving NAI in children beyond a reasonable doubt will almost always require expert evidence. Given that the stakes are so high for everyone involved, especially the child, the prosecution and defence must ensure they select experts with the experience and expertise required to assist the Court in their decision.

How Expert Reports can help

At Expert Court Reports, we have several experts in the following disciplines who have extensive experience appearing as expert witnesses and drafting reports in non-accidental injury criminal cases involving children:

Paediatric Neuroradiologist – Dr Kshitij (Kish) Mankad
Paediatric orthopaedic surgeon –  Mr David Bryson
Forensic physician – Dr Amandeep Singh Ranu

If you would like to find out more about how our Expert Witnesses can assist you please call us on 01865 587865, email office@expertcourtreports.co.uk, or request a call by completing our online form.