Forensic evidence in child protection proceedings
Judge Peter Johnstone, President of the Children’s Court of NSW, International symposium on shaken baby syndrome and abusive head trauma, 16 September 2019, Sydney.
I would like to acknowledge the traditional custodians of the land upon which we meet today, the people of the Eora Nation, and pay my respects to their Elders, past, present and emerging.
I would also like to recognise the over-representation of Aboriginal and Torres Strait Islander children and families in the Children’s Court jurisdiction and acknowledge that this over-representation is deeply intertwined with historical and ongoing experiences of intergenerational trauma, institutionalisation, and colonisation.
Cases involving instances of shaken baby syndrome are among the most emotive, controversial and challenging within the care and protection jurisdiction of the Children’s Court of NSW.
Decision making in care and protection proceedings is complex, and necessitates that judicial officers engage in the difficult task of considering and evaluating the multiple factors which combine to impact on the child’s future safety, welfare and well-being. This process is especially complex in cases involving non-accidental head injury where there is typically no direct evidence to the alleged abuse, and the explanations offered by carers are usually inconsistent with the physical findings. (Throughout this paper, I will use the term “non-accidental head injury”, as it encompasses all cases with evidence of head trauma as well as brain injuries.)
This paper aims to explore the role of forensic evidence in care and protection proceedings involving non-accidental head injury. It will look first at the role of the Children’s Court in care and protection proceedings in NSW. Secondly, it will discuss current research in non-accidental head injury. Thirdly, it will provide an overview of three cases involving suspected non-accidental head injury in the Children’s Court, and analyse decision-making processes employed by judicial officers in establishing whether there is an unacceptable risk of harm. Finally, the paper will discuss the role of forensic and other evidence in care and protection proceedings involving non-accidental head injury in the Children’s Court.
Specialist nature of the Children’s Court
The Children’s Court of NSW is a specialist court which deals with both care and protection matters and offences committed by children and young people under 18.
The Children’s Court of NSW consists of a President, 15 specialist Children’s Magistrates and 14 Children’s Registrars. It sits permanently in 7 locations, and conducts circuits on a regular basis at other country locations across NSW.
Care and protection proceedings
Care and protection proceedings are conducted in the Children’s Court of NSW under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (‘the Care Act’).
The objects of the Care Act, as set out in s 8, are:
that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and
recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and
that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and
that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.
The paramountcy principle under which the Care Act is to be administered provides that in any action or decision concerning a particular child, their safety, welfare and well-being is paramount. This principle prevails over all other considerations, even where it conflicts with the rights or interests of the parents.
Care and protection proceedings in the Children’s Court are conducted in two main stages: the establishment stage and the placement stage.
Establishment is a threshold issue that grounds the court’s continuing jurisdiction in care and protection matters. A final Care order can only be made if the court is satisfied, on the balance of probabilities that the child is in need of care and protection.
It is now well settled law that critical decisions under the Care Act relating to such issues as restoration, contact, parental responsibility and placement, the proper test to be applied is that of “unacceptable risk of harm to the child”, as established in the High Court decision in M v M (1988) 166 CLR 69. Whether there is an unacceptable risk of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard. The High Court held that in applying the unacceptable risk of harm test it is necessary to determine firstly whether a risk of harm exists and, secondly, the magnitude of that risk, as it may be determinative of the issues involved in the particular proceedings.
The unacceptable risk of harm test was applied in the matter of DFaCS Re Eggleton  NSWChC 4 in which I noted at :
It seems to me … that the unacceptable risk of harm that is said to be presented to the child by his parents needs to be evaluated against the prospect of it actually occurring, and against the protective measures that might be put in place to ameliorate or minimise that risk ...
The onus of proof in care and protection matters is upon the Secretary. The standard of proof is on the balance of probabilities. The High Court decision in Briginshaw v Briginshaw (1938) 60 CLR 336 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved. Further, the Secretary will not fail to satisfy the burden of proof on the balance of probabilities simply because hypotheses cannot be excluded which, although consistent with innocence, are highly improbable. This was determined by Sackville AJA in Director-General of Department of Community Services; Re "Sophie"  NSWCA 250 at –, where he said:
The reasoning process I have outlined involves an error of law. The primary Judge, although stating the principles governing the burden of proof correctly did not apply them correctly. It was appropriate to take into account the gravity of the allegation of sexual misconduct made against the father, as required by s 140(2) of the Evidence Act 1995 (NSW). It was not appropriate to find that the Director-General had failed to satisfy the burden of proof on the balance of probabilities simply because his Honour could not exclude a hypothesis that, although consistent with innocence, was “highly improbable”. To approach the fact-finding task in that way was to apply a standard of proof higher than the balance of probabilities, even taking into account the gravity of the allegation made against the father.
As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd at , statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly. In the end, however, as Ipp JA observed in Dolman v Palmer at , the enquiry is simply whether the allegation has been proved on the balance of probabilities.
Once a child or young person has been found to be in need of care and protection, the Secretary of the Department of Family and Community Services must assess whether there is a realistic possibility of the child being restored to his or her parents within a reasonable period of time, not exceeding two years, having regard to the circumstances of the child and any evidence that the parents are likely to be able to satisfactorily address the issues that led to the removal of the child from their care.
The assessment as to whether or not there is a realistic possibility of restoration to a parent involves an important threshold construct which informs the planning that is to be undertaken in respect of any child, and determines whether some other course of action is appropriate, such as placement with a family member or with someone else, in foster care.
The Care Act provides that it is for the Secretary to make the assessment in the first instance. It is then for the court to decide whether to accept that assessment.
In considering whether to accept the Secretary’s assessment, the court must have regard to two matters:
The circumstances of the child or young person, and
The evidence, if any, that the child or young person's parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.
There is no definition of the phrase “realistic possibility of restoration” in the Care Act. However, the principles concerning the interpretation and application of the phrase were comprehensively considered in the NSW Supreme Court by Slattery, J In the matter of Campbell  NSWSC 761.
This decision was cited with approval by the NSW Court of Appeal in Re Henry; JL v Secretary, Department of Family and Community Services  NSWCA 89. The case law suggests that for a court to make a finding of realistic possibility of restoration the possibility must be “realistic”, that is, it must be real or practical. The possibility must not be fanciful, sentimental or idealistic, or based upon “unlikely hopes for the future”. It needs to be “sensible” and “commonsensical”.
If the court does not accept the assessment of the Secretary as to restoration, it may direct the Secretary to prepare a different permanency plan. The Secretary is then required to address the permanency planning for the child in accordance with the decision as to restoration or otherwise.
Evidence in care and protection proceedings
The Care Act confers a unique jurisdiction on the Children’s Court. As Wilson J observed in the High Court in J v Lieschke (1987) 162 CLR 447 at  in relation to the Child Welfare Act 1939, “[n]eglect proceedings are truly a creature of statue, neither civil or criminal in nature”.
The Children’s Court has a wide discretion to admit evidence in care and protection proceedings, such as hearsay evidence, that would not be admissible in other courts. Nevertheless, it must draw its conclusions from material that is satisfactory, in the probative sense, so as to avoid decision making that might appear capricious, arbitrary or without foundational material.
The court is required to examine the sources of evidence, particularly quasi-opinion and secondary evidence, to determine its strength and the weight to be given to it.
The court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. In Re T  EWCA Civ 558 at , Dame Elizabeth Butler-Sloss P observed:
Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.
When considering cases of suspected non-accidental head injury the court will frequently be required to consider and evaluate evidence from experts, particularly medical witnesses. Their evidence is opinion evidence.
Despite the Children’s Court’s broad discretion to admit evidence, in matters concerning expert scientific evidence the court tends to apply the usual rules of evidence relating to expert testimony.
The law sets out a number of specific requirements in respect of opinion evidence.
In Makita (Australia) Pty Ltd v Sprowles Heydon JA, then a justice of the NSWCA, summarised the applicable law in relation to the admissibility of expert evidence:
there must be field of “specialised knowledge” in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert;
the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”;
so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert;
so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way;
it must be established that the facts on which the opinion is based form a proper foundation for it; and the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert, and on which the opinion is “wholly or substantially based” applies to the facts assumed or observed so as to produce the opinion propounded.
Thus, expert witnesses must exercise their independent professional judgement in relation to issues.
Doctors should not stray outside their area of expertise. For example, a general practitioner should not venture to express a view on a matter of psychiatry, or at least should make clear that the view is based on a limited level of general medical knowledge derived from study or general practice. The expert should clearly set out any written material considered, and all the people consulted with, and specify which aspects of that material were regarded as persuasive in forming the opinion. Medical experts should identify any paper or study they have relied on, and should articulate the reasoning process they have used to come to any opinion or conclusion, and be in a position to defend it.
Expert witnesses in the Children’s Court must comply with the Expert Witness Code of Conduct as set out in the Uniform Civil Procedure Rules 2005.
Non-accidental head injury
It is not possible to analyse the role of forensic evidence in care and protection proceedings involving suspected non-accidental head injury without an attempt to survey the present realities of abusive head trauma in infants.
The issue of non-accidental head injury has been the subject of profound and sometimes passionate disagreement.
Shaking as a mechanism for inflicting intracranial injury in infants was first described in an article in the British Medical Journal in 1971. The research relied upon was published a few years prior wherein rhesus monkeys were placed in fibreglass chairs on tracks and then, with their heads free to rotate, subjected to accelerations similar to those in rear end motor vehicle collisions. Some of the animals were found thereafter to have suffered intracranial injury and some were found to have a concomitant neck injury. The resulting proposition that rotational acceleration of sufficient magnitude could cause intracranial injury without impact, and therefore without external evidence of injury, appeared to be an explanation for hitherto unexplained injury in infants.
In 1987 however, a major study of 48 children aged one month to two years with suspected shake injury was published in the Journal of Neurosurgery. The experiment concluded that the accelerations established for shakes were smaller by a factor of 50 to one than those for impacts. The study ended:
It is our conclusion that the shaken baby syndrome, at least in its most severe acute form, is not usually caused by shaking alone. Although shaking may, in fact, be a part of the process, it is more likely that such infants suffer blunt impact. The most likely scenario may be a child who was shaken, then thrown into or against a crib, or other surface, striking the back of the head and thus undergoing a large, brief deceleration.
In 2005, the United Kingdom Court of Appeal heard appeals by four carers in whose care infants had died or suffered brain injury. The court heard ten expert medical witnesses called on the behalf of the appellants and 11 called on behalf of the Crown. The essential issues in the appeals was a challenge to the then accepted hypothesis concerning shaken baby syndrome and the proposition that the coincidence of the “triad” — encepathology, subdural haemorrhage and retinal haemorrhage — in a child, was the “hallmark” of non-accidental head injury.
A team of distinguished doctors, led by Dr Jennian Geddes, produced three papers which cumulatively challenged the supposed infallibility of the “triad”. In R v Harris  EWCA Crim1980, the court disregarded Dr Geddes’ research as a credible or alternative explanation of the triad injuries. It continued at –:
There are many other medical issues involved in cases of non-accidental head injury. Further, there remains a body of medical opinion which does not accept that the triad is an infallible tool for diagnosis. This body of opinion, whilst recognising that the triad is consistent with non-accidental head injury, cautions against its use as a certain diagnosis in the absence of other evidence.
Whilst a strong pointer to non-accidental head injury on its own we do not think it is possible to find that it [the triad] must automatically and necessarily lead to a diagnosis of non-accidental head injury. All the circumstances, including the clinical picture, must be taken into account.
In 2009, researchers confronted the circularity of reasoning issue which lies at the centre of the proposition that the triad are, without evidence of external injury, capable of establishing shaken infant syndrome.
Further, a French report published the following year on the study of 112 cases over a 4-year period, in 29 of which the perpetrator had confessed to violence towards the child. These were compared with 112 cases in which there was no confession. It was found that there was no statistically significant difference between the two groups for gender ratio, number of deaths, main symptoms, presence of fractures, retinal haemorrhages or subdural haemorrhages. Significantly, 11 of the 29 children of the confessed deliberate shaking group were listed to have had no skin lesions, fractures, other injuries or previous injuries.
Finally, in 2016 the Swedish Agency for Health Technology Assessment and Assessment of Social Services published a controversial report. The report addressed the methodologies of the enormous number of pieces of research on the issue. Of 1065 pieces selected for initial survey, 1035 were excluded because they did not meet the inclusion criteria. Of the remaining 30 studies, only two were assessed to have moderate quality, and none of high quality.
I end this survey by acknowledging its limitations. As a judicial officer I am limited in my understanding of medical processes, and although I have engaged in research and reading on the topic of non-accidental head injury, I am by no means a specialist on the topic.
Non-accidental head injury in care proceedings
Care and protection proceedings involving suspected non-accidental head injury are among the most emotive, controversial and challenging matters judicial officers face. Decision making is complex, and necessitates that the court engage in the difficult task of considering and evaluating the multiple factors which combine to impact on the child’s future safety, welfare and well-being.
In matters involving suspected non-accidental head injury, the Children’s Court is tasked with deciding whether the child has suffered significant harm, or if there is a real possibility of significant harm in the future. Critical to this decision-making process is establishing whether there is an unacceptable risk of harm to the child.
Proving on the balance of probabilities that injuries occurred through abuse and non-accidental means can be challenging. Even in matters where the court is able to make a finding that the injuries were caused through abuse, ascertaining the identity of the offender is often difficult, if not impossible, as the circumstances of the alleged crimes are not precisely determined by the pathological findings and perpetrators’ accounts of the events are rarely accurate and consistent.
In order to illustrate the role of forensic evidence in care and protection proceedings involving suspected non-accidental head injury and the decision-making processes employed by courts, this paper will conduct a survey of four matters involving head trauma.
Relevant case law
SS v Department of Human Services (NSW)  NSWDC 279
In the matter of SS v Department of Human Services (NSW)  NSWDC 279 an 11-week-old baby, J, was admitted to Mount Druitt Hospital suffering from diarrhoea, fever, lethargy and a rash on his cheeks. Clinical examination revealed multiple problems including seizures, a bulging fontanelle, acute bilateral subdural haemorrhaging and bilateral retinal haemorrhaging. There was no evidence of trauma, either by way of skin damage, or by way of bone fractures.
J was later transferred to the Children’s Hospital at Westmead where he was diagnosed as having sustained brain damage. Subsequently, a notification was made to the Joint Investigation Response Team (JIRT) for investigation and assessment of the cause of his brain damage. Following the investigation, J was assumed into the care of the Minister of the Department of Human Services. J remained at Westmead Hospital until he was transferred to a rehabilitation hospital.
The Department of Human Services filed a Care Plan in the Children’s Court seeking final orders allocating parental responsibility for J to the Minister until he turned 18. The Children’s Court found that it was more likely than not that J’s injuries were caused by non-accidental shaking. The court determined that restoration of J to the parents care involved an unacceptable risk of harm inconsistent with his safety, welfare and well-being, and accordingly, there was a finding of no realistic possibility of restoration.
The parents appealed to the District Court from the orders made by the Children’s Court by way of new hearing and evidence in addition to and in substitution for the evidence on which the orders were made by that court. They contended that the Director-General did not establish, to the relevant evidentiary standard, that care orders should be made. They submitted, therefore, that the appeal should be allowed and the orders of the Children’s Court set aside, with the result that J should be returned to their care.
The outcome of the appeal and the orders were dependent upon the determination of the pivotal issue, that is, whether the brain damage sustained by J was the result of non-accidental shaking by one of the parents.
The parents’ explanation of events in support of their appeal was as follows. According to the mother’s evidence, she found J lying on the lounge one afternoon. She noticed he was pale, lying there drifting off to sleep. The father told her J had not been eating a lot and was not as active as usual. She noticed J make a sudden and quick movement of his head. She picked him up and gave him some water to drink.
The mother noticed he was looking at her in a blank way, and when she clicked her fingers in front of his eyes he didn’t blink. She became concerned and took J to Mount Druitt Hospital.
In support of their appeal, the parents relied upon two overseas medical witnesses, Dr Gabaeff and Dr Gardner.
Dr Gabaeff, a physician practicing in emergency medicine and clinic forensic medicine in the United States, argued that in his opinion, the brain damage suffered by J was the result of meningitis. He disagreed with the studies in the medical literature that identified the diagnostic value of subdural haematoma and retinal haemorrhages, and the absence of signs of impact, as good indicators of inflicted head injuries.
Dr Gardner, a retired ophthalmologist from the United States, further suggested that there were a number of possible alternative causes of the retinal haemorrhages suffered by J, including birth haemorrhages, infections, blood disorders and alterations in intrathoracic, intra-abdominal, intracranial and intravascular pressure.
The Director-General submitted that the parents presented an unacceptable risk of harm to J, and argued that parental responsibility should remain allocated in accordance with the orders of the Children’s Court. The Director-General’s case relied upon the hospital records and the evidence of Dr Stachurska, Dr Hing and Professor Isaacs.
Dr Anna Stachurska, a specialist paediatrician in the Child Protection Unit, and Mr Mark Palmer, the Senior Clinician in the Child Protection Unit at Westmead Hospital, provided the court with J’s initial Assessment Report. The report found no medical condition that could explain J’s presentation. Rather, it pointed towards a finding that J’s injuries were non-accidental: “It is highly concerning that J has significant unexplained injuries, which are indicative of inflicted head injury on more than one occasion (most probably due to shaking)”.
In providing evidence to the court, Dr Stachurska, reiterated that she was of the view that J’s injury was most likely caused by being shaken. She disagreed with the evidence of the two doctors called by the parents, Dr Gabaeff and Dr Gardner, that an available alternative cause was meningitis.
Dr Hing and Dr Isaacs supported the findings of the initial assessment. Dr Stephen Hing, a medical practitioner specialising in ophthalmology, was of the view that it was extremely likely that J’s brain injury was caused by non-accidental means. He also disagreed with Dr Gabaeff and Dr Gardener that an available alternative cause of the injuries was meningitis. He noted that although retinal haemorrhages can occur from meningitis, they do not look like the severe retinal haemorrhages suffered by J. Further, Professor David Isaacs, a senior staff specialist in General Paediatrics and Paediatric Infectious Diseases at Westmead Children’s Hospital, said that he was almost certain J was severely shaken on several occasions, causing bleeding in the brain and eyes. He also disputed meningitis as a cause.
The determination of the issue of whether the brain damage sustained by J was the result of non-accidental shaking involved a consideration of the competing bodies of medical opinion. The court concluded, at , –, that it preferred the body of medical evidence presented on behalf of the Director-General rather than the evidence of Dr Gabaeff and Dr Gardener:
An overall assessment of the medical evidence revealed the Director General’s evidence to be the more objective. Dr Gabaeff and Dr Gardener approached the task from a prejudiced and pre-judged perspective. Their evidence, which was wholly concerned to debunk the notion of shaken baby syndrome, is to be approached with considerable caution. The medical evidence led by the Director General, on the other hand, involved a logical evaluation of all available material, was concerned to consider other possibilities, and was carefully and logically reasoned. That evidence is consistent with mainstream paediatric medical opinion. By their own admission, Dr Gabaeff and Dr Gardener are outside that conventional paradigm.
The plaintiffs’ experts… were unashamedly partisan, and the totality of their evidence must be viewed with suspicion.
Their evidence was found wanting in a number of important respects. Dr Gardner’s position, upon analysis, is to the effect that there were other possible explanations for J’s presentation. But, because Dr Gardner does not accept shaken baby syndrome as a valid diagnosis, the explanation must be otherwise. To my mind that was circular reasoning. Dr Gabaeff’s position was entirely premised on the diagnosis of meningitis. Flaws in his reasoning process were exposed in cross-examination, including for example his reliance on an incorrectly assumed fever, and a theory as to the possible mechanism of infection being the immunisation injections, which was discredited. I preferred the evidence of the Westmead experts and I find that J’s brain damage was not caused by meningitis.
The court found that it was satisfied, on the balance of probabilities, that the proximate cause of the brain damage observed following the hospitalisation of J was non-accidental shaking in the previous 24 hours. The only persons who, on the balance of probabilities, were in the available pool of perpetrators, were the parents.
Re Lincoln and Raymond  CLN 5
In the matter of Re Lincoln and Raymond  CLN 5, Lincoln, was admitted to Royal Alexandra Hospital for Children at Westmead suffering seizures, a bulging fontanelle and low grade temperature, although there were no external signs of trauma. Further investigations showed Lincoln had bilateral acute haemorrhages, chronic subdural haemorrhages, retinal haemorrhages and extensive bilateral bleeding. There was a subsequent emergency care and protection order which allocated parental responsibility for the child to the Minister pending further order.
The Director-General sought an order that the Minister have parental responsibility of Lincoln until he attained the age of 18 years.
A number of expert witnesses were called on behalf of the Director-General. The overwhelming bulk of medical opinion among those who treated Lincoln or consulted regarding his care was that his injuries were non-accidental and caused by having been shaken without impact to his head.
The parents argued that there was a realistic possibility of restoration to their care. They denied having done anything which may have occasioned Lincoln’s injuries. They suggested that perhaps Lincoln had been suffering from a medical abnormality, such as meningitis, or that a vaccination may have been responsible for his injuries. The parents’ views were supported by Dr Innes, a medical practitioner, who suggested, at  that:
Lincoln suffered a subdural haemorrhage brought on by a coagulopathy — a tendency to bleed spontaneously. The cause of the coagulopathy was a deficiency of vitamin K which caused the condition known as the “late form of Haemorrhagic Disease of the New Born”.
The court preferred the evidence presented by the Director-General over that presented by the parents. The Senior Children’s Magistrate came to this conclusion after an analysis of all the presented evidence. He noted at –:
In the first place, Dr Stachurska has treated Lincoln and was involved with him when he presented at hospital. In contrast to Dr Innes who has never met the child, conducted no tests, undertook no consultations and had access to very few of the records, Dr Stachurska treated Lincoln at RAHC Westmead and was responsible for his care. It was she who ordered a variety of tests and, armed with a wide range of written material including hospital and nursing notes and records and test results, she had the opportunity to consult with colleagues, experts in a variety of fields, and to explore Lincoln’s symptoms and the origin of his injuries.
Secondly, as I think Dr Innes would recognise, Dr Stachurska, when she gave her evidence and expressed her clinical opinions … represented the majority of medical opinion in this country and around the world. Unlike Dr Innes, she has no axe to grind and no special theory to advance. She is not a crusader for or an apostle of any particular medical theory whereas Dr Innes is a man seized of a theory, convinced of its truth and eager to proselytise. Dr Stachurska presented her evidence calmly and respectfully. She did not accuse her medical colleagues of “talking nonsense” and treat their opinions with derision as Dr Innes did. It is difficult to see her speaking so blithely about the Baby P case or writing in protest about the jury verdict as Dr Innes did. It seemed to me that, in contrast to Dr Innes’ evidence, Dr Stachurska’s evidence was sober, well considered and internally consistent and that there was no suggestion that she was grasping at straws upon which she might build a hypothesis.
The court concluded that it was more likely than not that Lincoln’s injuries were caused by shaking. Senior Children’s Magistrate Mitchell concluded at , , on all the evidence, that there was an unacceptable risk of harm to Lincoln:
The question for the Children’s Court in the present case, then, is not whether the parents or, for that matter, any other person is responsible for Lincoln’s injuries but whether the proposals put to the court for his care and for the care of his brother constitute an acceptable or unacceptable risk so far as the safety, welfare and well-being of each of the children is concerned. In assessing risk, the court should have particular regard to the following:
the egregious nature and extent of the injuries which have been inflicted on Lincoln
the fact that neither parent has offered an acceptable explanation of those injuries
the opportunity which each of Lincoln’s parent has had to inflict injury
the relative lack of opportunity which any other person has had to mistreat Lincoln
the on-going extreme vulnerability of Lincoln in particular and his and Raymond’s need of and entitlement to protection
the extent of Lincoln’s continuing disabilities and the degree to which his on-going care will call for special skills and special qualities including patience and empathy
the reservations regarding the reliability and suitability of his parents which prudently are entertained in the circumstances of Lincoln’s injuries while in the care of his parents
the consequences of Lincoln’s long term separation from his parents, particularly with regard to his attachments
the attachments of each of the boys
the suitability of the father as a carer for Raymond and the boy’s progress while in his father’s care
the unavailability of any other family member to take care of the children
the risks and unknowns necessarily involved in out-of-home care and separation from parents.
Taking all those matters into account and having considered them in detail, my assessment is that the proposal of [the parents] that Lincoln be restored to their care involves an unacceptable risk to the child and is not consistent with his safety, welfare and well-being. Accordingly, there is no realistic possibility of a restoration in his case.
Re Anthony  NSWLC 21
In the matter of Re Anthony  NSWLC 21, Anthony, then aged 10 weeks, presented at Sydney Children’s Hospital at Randwick. Following a number of investigations, Anthony was found to have both old and new subdural haemorrhages bilaterally, widespread haemorrhages in both his eyes, fractures of multiple ribs and facial bruising.
Anthony’s parents professed themselves to be “bewildered.” Each denied causing any harm to Anthony, and while acknowledging the logical inconsistency of the position, each doubted that the other could have done so.
Following Anthony’s discharge from hospital, he resided, while in the parental responsibility of the Minister, with his maternal grandmother. An application was made by the Director-General to the Children’s Court to place Anthony with his maternal grandmother for a period of five years, and continue to have contact with his parents.
A number of expert witnesses were called by the Director-General and the parents during proceedings before the Children’s Court to determine whether, on the balance of probabilities, Anthony’s parents presented an unacceptable risk of harm. In doing so, it was necessary for the court to ascertain whether on balance, Anthony’s injuries were the result of abuse.
The Director-General relied upon two witnesses, Dr Moran and Dr Tait, from the Sydney Children’s Hospital Network.
Dr Moran reported that “subdural haemorrhages and retinal haemorrhages most usually occur secondary to trauma … of the acceleration-deceleration type, typically caused by shaking with impact”. Further, he suggested that Anthony’s rib fractures were “caused by squeezing of the chest wall … and require a degree of force which is not associated with normal handling”.
Dr Tait, a Consultant Paediatrician, agreed with Dr Moran that, at 12 months of age, retinal haemorrhages, particularly those involving different layers of the retina as was the case with Anthony, “are rare, and in this age group almost exclusively are the consequence of forceful acceleration/deceleration of the head in association with angular rotation”.
The parents presented an affidavit of Dr Kalokerinos suggesting that some or perhaps all of Anthony’s injuries may have been a consequence of vitamin C deficiency. The court noted that Dr Kalokerinos’ thesis was not new, and had failed to attract support of the medical profession. Similarly, the theory was not supported by consistent rigorous study and research. Senior Children’s Magistrate Mitchell, while praising Kalokerinos as “a distinguished Australian humanitarian”, held that “his honourable motives do not render his science reliable.” The court employed the concept of “general acceptance” and dismissed Dr Kalokerinos’s theory by stating that it had “failed to attract support in the medical profession”.
The Children’s Court also had the privilege of hearing from Dr Lennings, a clinical and forensic psychologist. Dr Lennings opined that the psycho-social factors often pointing to risk in cases of non-accidental injury to children were absent in the case of Re Anthony. Further, he did not believe that either parent was prone to impulsivity of behaviour, there was no suggestion of personality disorder in either parent and there was an absence of aggression and violence. While Dr Lennings acknowledged that the absence of psycho-social factors was peculiar, as he explained, “human behaviour is unpredictable”.
Further, the court reflected upon the findings of Kasia Kozlowska and Sue Foley in their paper titled “Attachment and risk of future harm: a case of non-accidental brain injury” published in the Australian and New Zealand Journal of Family Therapy. This paper noted that:
shaking may be the result of one of a number of scenarios: a lack of empathy for the child’s needs or distress; parental difficulty in managing the child’s negative emotions; parental difficulty in managing their own emotions; or parental anger at the impact of the child on their ability to meet their own physical or emotional needs.
Kozlowska and Foley argue that an exploration of “perpetrator intentionality” is an important tool for the assessment of future risk but acknowledge that in many cases “understanding the circumstances surrounding the shaking event in order to understand risk is not possible in day-to-day practice”. The court noted that such a practice is not possible where the identity of the perpetrator is unknown or where the perpetrator is unwilling to speak about the matter, and as such, was not possible in Re Anthony.
In such circumstances, the learned authors acknowledged that the “assumption remains however, that after an alleged incident, there is always ongoing potential for harm, even though the circumstances of the injury may remain unclear” and, for that reason, they argue that the “broader indicators of risk” including parental substance abuse, parental or older sibling mental health examination and history, history of poor impulse control, frustration tolerance, violence between family members, other instances of physical harm or neglect of children, safe physical handling of children, physical discipline practices, parental ability to empathise with children, and parental ability to recognise and meet their children’s needs must be carefully considered.
As Stephan Herridge states in “Non-accidental injury in care proceedings — a digest for practitioners”  CLN 6 at 12:
If the cause of the injuries was known and was acknowledged by the person responsible, one could assess the likelihood of that person acting again so as to cause the injuries. It would be possible to assess the risk involved to the plaintiff and to weigh that against the advantages of returning him to his parents. However, in the absence of any explanation, it is far more difficult to assess and weigh the relative advantages and disadvantages in this matter.
The court in Re Anthony then turned to consider and balance the risks associated with restoration against those in alternate or out-of-home care, at :
It follows then that, in assessing whether the risk posed to a child by a parental proposal is acceptable or unacceptable, one of the factors which will be considered is the risk of disadvantage posed by alternate proposals for the care of the child advanced by the Director-General or any other party. There will be cases where the risks posed by parents are so egregious that they quite overwhelm the disadvantages posed by a proposal of long term out-of-home care but, in other cases, such as Re Nellie  CLN 4, where there had been serious injury to the child caused by an unexplained shaking incident, the risks posed by a restoration to the parents and the disadvantages involved in the Director-General’s proposals were much more evenly balanced.
The Children’s Court held that to restore Anthony to his parents in the circumstances was an unacceptable risk to his safety, welfare and well-being. Accordingly, the court directed that Anthony should be placed in the parental responsibility of the grandparents.
Forensic evidence in child protection proceedings
Care and protection proceedings involving suspected non-accidental head injury often rest entirely upon forensic evidence.
A review of legal principles, as set out in Re JS  EWHC 1370 (Fam), emphasises the centrality of expert evidence in care and protection proceedings involving matters of suspected non-accidental head injury.
Firstly, the burden of proof lies with the Department of Family and Community Services, now known as the Department of Communities and Justice. It is the Department that brings these proceedings and identifies the findings they invite the court to make. Therefore the burden of proving the allegations rests with them.
Second, the standard of proof is the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336. If the Department of Family and Community Services proves on the balance of probabilities that a child has sustained non-accidental injuries inflicted by one of his parents, the Children’s Court will treat that fact as established and all future decisions concerning his future will be based on that finding.
Third, findings of fact in suspected non-accidental injury must be based on evidence. As Munby LJ observed in Re A (A Child)  EWCA Civ 12 at :
[It] is an elementary proposition that findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation.
Fourth, when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss P observed in Re T  EWCA Civ 558 at :
evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.
Fifth, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists.
Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence. Thus there may be cases, if the medical opinion is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts.
Sixth, in assessing the expert evidence it is to be borne in mind that cases involving an allegation of shaking involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others.
Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them.
Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything.
Ninth, as observed by Hedley J in Re R  EWHC 1715 (Fam) at :
there has to be factored into every case which concerns a disputed aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.
The court must resist the temptation to believe that it is always possible to identify the cause of injury to the child.
Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators, is whether there is a likelihood or a real possibility that he or she was the perpetrator, as established in North Yorkshire County Council v SA sub nom A (a Child)  EWCA Civ 839. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injuries to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judicial officer should not strain to do so.
Expert witnesses are uniquely placed to assist the court in cases involving suspected child abuse, but are not an advocate for a party. They have a paramount duty, overriding any duty to the party or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness. Expert witnesses ultimately assist the court in determining matters to ensure the safety, welfare and well-being of a child or young person.
In the current climate of evidence-based medicine, the question of how medical knowledge is utilised in cases of physical child abuse is of paramount importance for the effectiveness of the legal process and the protection of victims.
Forensic evidence plays a central role in care and protection proceedings involving suspected non-accidental head injury. It is critical in establishing the required tests under the Care Act, namely, whether a child is in need of care and protection, and whether there is any realistic possibility of restoration.
Judicial officers rely on medical professionals to conduct timely and high-quality clinical investigations in suspected shaken baby cases to facilitate the decision-making process in court.
Decision making in care and protection proceedings is complex, and necessitates that courts engage in the difficult task of considering and evaluating the multiple factors which combine to impact on the child’s future safety, welfare and well-being. This process is especially complex in cases involving non-accidental head injury where there are typically no witnesses to the alleged abuse and explanations offered by carers are often inconsistent with the physical findings.
Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against all other available evidence. Thus there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judicial officer, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts.
I hope this paper has been illuminating for all here today, especially for those who may come into contact with the care and protection jurisdiction of the Children’s Court of NSW.
 The author acknowledges the considerable help and valuable assistance in the preparation of this paper by the Children’s Court Research Associate, Darcy Jackman.
 K Kozlowska and S Foley, “Attachment and risk of future harm: a case of non-accidental brain injury” (2006) 27(2) Australian and New Zealand Journal of Family Therapy 75.
 Department of Family and Community Services (NSW) and the Bell-Collins Children  NSWChC 5.
 Children and Young Persons (Care and Protection) Act 1998 (NSW), s 9(1).
 Children and Young Persons (Care and Protection) Act 1998 (NSW), s 93(4).
 MXS v Department of Family and Human Services (NSW)  NSWDC 63.
 DFaCS & the Steward Children  NSWChC 1.
 Children and Young Persons (Care and Protection) Act 1998 (NSW), s 83(6).
 ibid s 78.
 JL v Secretary, Department of family and Community Services  NSWCA 88 at ; see also Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 at .
 LZ and QJ v FACS  NSWDC 414 at .
 A Stephens, Legal outcomes in non-accidental head injury (“shaken baby syndrome”) cases: inevitable inconsistencies, PhD Thesis, The University of Sydney, 2011.
 (2001) 52 NSWLR 705 at .
 Children’s Court of New South Wales, Joint Conference of Expert Witnesses in Care Proceedings, Practice Note 9 at www.childrenscourt.justice.nsw.gov.au/Documents/practice_note_9_joint_conferences.pdf, accessed 26 September 2019.
 Uniform Civil Procedure Rules 2005, r 31.18.
 A Duhaime, et al, “The shaken baby syndrome: a clinical, pathological, and biomechanical study” (1987) 66(3) Journal of Neurosurgery 409.
 R v Harris  EWCA Crim 1980 at .
 Ministry of Social Development v Tilo  NZFC 2593 at .
 M Vinchon, et al, “Confessed abuse versus witnessed accident in infants: comparison of clinical, radiological and ophthalmological data in corroborated cases” (2009) 26 Child’s Nervous System 637.
 C Adamsbaum, et al, “Abusive head trauma: judicial admissions highlight violent and repetitive shaking” (2010) 126 Pediatrics 546.
 Swedish Agency for Health Technology Assessment and Assessment of Social Services, Traumatic shaking — the role of the triad in medical investigations of suspected traumatic shaking, SBU Report Number 255E, 2016 at www.sbu.se/en/publications/sbu-assesses/traumatic-shaking--the-role-of-the-triad-in-medical-investigations-of-suspected-traumatic-shaking/, accessed 26 September 2019.
 Stephens, above n 12.
 SS v Department of Human Services (NSW)  NSWDC 279 at 
 Re Anthony  NSWLC 21 at .
 ibid at .
 Stephens, above n 12.
 Re Anthony at .
 ibid at .
 Kozlowska and Foley, above n 2, at 76.
 Kozlowska and Foley, F, above n 2, at 75.