Open Letter on Shaken Baby Syndrome and Courts: A False and Flawed Premise

PREAMBLE

The Open Letter on Shaken Baby Syndrome and Courts has been prepared under the auspices of the International Public Health Research Group [IPHRG]. It was developed from initial drafts by Bill Bache and Charles Pragnell. Final drafting and editing was by Dr Lynne Wrennall, Executive Director of the International Public Health Research Group and the Managing Editor of Argument & Critique. The process of writing the letter has relied on the published research in the field, much of it, published research by the signatories to the letter. The process has also drawn on the iterative contribution of insights by the signatories to the letter. For the purpose of developing the letter, The International Public Health Research Group has functioned as a Delphi group, advising on the process and content relating to the letter.
For the names and details of international experts who have signed their agreement with the letter please see the list of signatories below.

Open Letter on Shaken Baby Syndrome and Courts: A False and Flawed Premise©

We, the undersigned members of various professions worldwide have deep concerns regarding the protection of children from abuse, neglect, and exploitation. Our professional training, experience, and expertise are in medicine, child protection, psychology, epidemiology, biomechanics, physics, engineering, research, academia, medical journalism, law, social work and criminology. We are researchers, authors, teachers and practitioners.

We write because we are deeply concerned about the use of the construct of what is commonly known as Shaken Baby Syndrome [SBS], although it has variously morphed into Shaken Impact Injury, Abusive Head Trauma (AHT), Acquired Brain Injury [ABI] and other similar variants.

INTRODUCTION

Parents and carers in many countries have been falsely accused of injuring or killing a child and face allegations of child abuse, manslaughter or murder. SBS and its variants have been conceptualised in several ways. Generally speaking the ‘Triad’ of symptoms involves retinal haemorrhages, subdural haemorrhages and ischaemic encephalopathy being interpreted as signs of child abuse. Many such accused parents and carers are given long prison sentences and their children are permanently removed from their families. In some jurisdictions, they can even be sentenced to death.

A major concern is that the ‘diagnosis’ of SBS risks blurring the line between diagnosis and verdict. As the Honourable Mr Justice Charles explained in A County Council v. K, D and L [2005] EWHC 144 (Fam), [2005] 1 FLR 851 @ para [89], this blurring of the line, that occurs in the construct of SBS, means that medical experts are at risk of usurping the role of the Judge, Coroner or jury. The construct of SBS presupposes an explanation by experts who are not in possession of all the facts of the case.

It can be shown in many such instances that the evidence of the prosecution experts alleging death or serious injury from SBS is demonstrably flawed. The scientific basis for the assertion that these injuries are the consequence of deliberately inflicted violent shaking is highly contentious. Biomechanical evidence has shown that shaking without contact would only produce the triad of injuries in association with other injuries to the neck and spinal column that are typically not found in alleged SBS cases. Over the past decade it has been found that many of the accused parents/caregivers do not fit the conventional profile of those who commit child abuse and the pattern of injuries has been found to result from alternative aetiologies than shaking.

The scientific and academic literature shows that the construct of SBS is open to significant critique. SBS is lacking in scientifically-conducted validation and forensic rigour. To date, the scientific research which has been conducted, casts considerable doubt on the SBS construct. Moreover, while this diagnosis continues to be used, babies are denied the investigations they need to establish the correct cause, treatment and prevention of recurrence, of their symptoms and signs.

In short, we would inform members of the judiciary and legal profession in those countries which utilise the SBS construct, that it does not have the undivided support of the relevant professional community, an essential consideration in the assessment of expert testimony.

In the U.S.A., the US Supreme Court has ruled in Daubert vs. Merrill Dow [1993] that based on the US Federal Rules of Evidence, the court should assess whether the underlying reasoning or methodology of expert evidence “is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community.” Courts in both the U.S.A. and the U.K. have commented that neither the criminal nor the civil jurisdictions should be the place for fanciful speculations to be offered in evidence.

In the U.K. courts, in criminal and civil cases involving the deaths of children, Lord Justice Judge in the Angela Cannings appeal hearing determined that, "if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed". He also pointed out that today’s medical certainty is soon superseded, a point that has been made in several subsequent rulings that have been collated by Mr Justice Moyston in Lancashire County Council v R [2013] EWHC 3064 (Fam) (11 October 2013).

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The full letter PDF can be accessed by following the link below.