Medical evidence given on injuries to children in child protection proceedings: “a sad and unsatisfying jurisdiction”

Abstract

Introduction Cases of suspected serious physical abuse of a young child are uncommon, but present a challenge to clinicians who work with children. A medical opinion on the cause of injury is central to the management of such cases. Scientific understanding in the area is, however, still being developed, and the task of inferring cause from the appearance of an injury can be difficult. Medical practice in the area is conducted in a complex socio-legal setting where legal and social science professionals each pursue the child’s best interests with approaches specific to their discipline. Adding to, and sometimes overshadowing, both of these approaches are concerns of criminal justice, and the danger of a serious injustice arising from flawed medical evidence. Cases are typically emotionally charged and powerful biases may impact on clinical decision-making. All the risks associated with expert evidence in the administration of justice arise in this jurisdiction also. Children’s Courts are “not bound” by the rules of evidence, but in many matters the Court must still be mindful of the principles of those rules in the reception of expert evidence. Methods Semi-structured interviews of seven magistrates and six paediatricians were conducted, on medical evidence given in child protection proceedings in Queensland, and related topics. Results Strictly legal or forensic medical issues are not as prominent in the management of cases of suspected physical child abuse in Queensland as in other jurisdictions, especially in comparison to family justice in the United Kingdom. Features of both the statutory child protection system and the Children’s Court in Queensland lead to relatively few cases of this nature being seriously contested or coming to trial. It appears possible that critical decisions in such cases may be determined through less rigorous means than paediatricians and other clinicians might assume. Specific issues which arose in interviews included: • Concerns regarding medical reports, routinely provided for child protection investigations. It is possible that these documents may be interpreted or put to use in ways which the clinician providing them would not expect or be comfortable with. • Less rigorous testing of medical opinions in the child protection jurisdiction than that routinely encountered in criminal trials. • Significant value seen in children being legally represented, but lack of universal access to this. • Inadequate briefing of legal representatives, to the detriment of the expert’s assistance of the court. • Lack of prominence or attention given to the child protection jurisdiction in comparison to criminal justice. Discussion In cases of suspected physical child abuse in Queensland, it is difficult to be sure what factors most often determine the outcome of a case. Cases of serious injury to very young children do not routinely come under the close scrutiny of a superior court, as occurs in the United Kingdom, and medical opinions on the cause of injury often pass unchallenged. One avenue to improve the current circumstance in this regard would be to establish links between clinicians who work with children, and lawyers who work in children’s law and child protection. Scientific knowledge regarding injuries to children is currently somewhat limited, but is growing quickly. More precise understanding of accidental mechanisms of injury, along with foundational biomechanical understanding of the behaviour of living infant tissue, hold promise for the future.