Shaken Baby Syndrome (SBS) is one of the few instances in the criminal justice system that a medical diagnosis stands as the basis for a prosecution. The SBS diagnosis is based on findings of what is known as the triad—retinal hemorrhage, bleeding in the brain and brain swelling. That there are other explanations for these three findings to combine simultaneously in a child is undeniable. Nevertheless SBS has become the go to diagnosis or default verdict for many doctors in emergency and pediatric admitting. As a result of this diagnosis many parents and other care-givers have been arrested and many have been successfully prosecuted for crimes ranging from assault to manslaughter and murder.
Unquestionably, it is a great concern that some children are abused by parents and care givers. There is also a growing concern that the science of SBS does not have sufficient empirical data to justify it as the sole basis for conviction based on a doctor’s diagnosis. Wrongful convictions, of which there have been too many to count is worthy of investigation and does not for a moment diminish the concern for abused children and the determination to stop abusers. When the pragmatic information is missing then too much is left to a doctor's determination in SBS cases and as is often the case when defendants do not have the financial or other resources to challenge prosecution experts, they are more predictably going to be convicted.
The Baynes finally get their day in court starting on January 13th. Oh, not to defend themselves against a Shaken Baby Charge. No, no, they aren’t guilty of anything. There is no outstanding charge. The police are not interested in them. The police have no reason to be concerned about them. No, this is a case to determine whether they can have their children back after two years in foster homes.
In the case of Paul and Zabeth Bayne, their baby was initially diagnosed as a Shaken Baby and they were subsequently arrested for aggravated assault, fingerprinted, photographed, interrogated and then the police concluded there was insufficient evidence to proceed with such a charge and issues an apology to the Baynes and correspondingly destroyed their file. All three children were removed from the Baynes. Why? Because in the eyes of the child protection agency however, which in British Columbia is the Ministry of Children and Family Development, the Baynes were and are still under suspicion because of that initial doctor’s diagnosis. This doctor saw the triad of medical indicators and made the only judgement that seemed plausible given the information at hand. That SBS diagnosis has never been substantiated. In fact, a wave of medical experts stands ready to testify for the Baynes that the diagnosis was wrong, and that the triad of indicators point to other causes than SBS. Further, the Ministry’s lawyer advised it nine months ago to give the boys back because there is no evidence of harm or abuse connected with them and they are healthy boys.
The Ministry has ignored their own legal counsel’s advice. Frankly the Ministry of Children and Family Development has this time made such a monumental bungle that the result will be a full scale inquiry far more penetrating than even the scrupulous Hughes Inquiry of a few years.