COMPELLING REASONS TO BE FAIR / Part 205 / For Love and For Justice / Zabeth and Paul Bayne/

Without question this is a complex case. There are so many strands of information. So many factors to consider. So difficult to be impartial when you have an understandable bias for the social worker or for the Bayne parents. So many compelling reasons to be receptive to interaction of viewpoints. So many reasons to be fair.

The Baynes were not served notice about the Temporary Care Order application prior to arriving in court back in 2007 for a presentation hearing. Let's just say they were uninformed and uninitiated. There in the court room they were informed of the MCFD intention to keep the children in care under a TCO. This application was achieved without the Baynes' involvement or possibility of contesting the presentation. Further, MCFD did not follow protocol thereafter and renew the TCO every three months. It is possible that this was done surreptitiously and if so, disclosure has never been made. The likelihood is that the proper steps were not taken. When, after two years, MCFD notified the Baynes at a scheduled meeting, that MCFD was now seeking a Continuing Care Order, the Baynes pointed out the failure to follow due process with regard to the TCO and that the Baynes' rights had been violated, this was unanswered and ignored as though unimportant. The MCFD's claim was that the CCO was the decision of choice now because the children had been in care for so long already. This meeting was recorded by an invited observer. (While good social work goes on at the front line, it is this type of self-serving and patent wrongheadedness with respect to its own governing rules that has marked the management decisions throughout the Bayne ordeal.)

It can be argued from evidence presented in court that Dr. Colbourne, the specialist of the original SBS diagnosis of the Bayne child was initially, not 100% certain but that she believed this was a shaken baby. It can also be argued that she altered her diagnostic opinion in the summer of 2008, at least she added 'impact' as causative. Why she made this adjustment is unknown but she may have concluded that her 'baby shaking' opinion was deficient as a stand alone cause. Besides, the National Center for Shaken Baby on who Board of Directors she sat for some time had in the years of this case added 'impact' as a causal link to shaking. By May 2008 she had received three of the Baynes' experts' reports which pointed to 'impact. ' Those experts were Dr. Gardner, Dr. Galaznik and Dr. Innis. Since the MCFD case for either TCO or CCO rested chiefly on that diagnosis, this diagnostic shift was discussed in John Fitzimmon's correspondence to lawyer Finn Jensen in which because Dr. Colbourne's examination may have missed the child's skull fracture, the question was posed about Dr. Colbourne's credibility in court.

Nine days after the removal on Oct 31, 2007 the MCFD told the Baynes that it had already concluded that a second medical opinion would not be sought. It had concluded its investigations. Dr. Cochrane the neurosurgeon and Dr. Poskitt were two of the original doctors drawn into the case near the start but both declined to testify for the MCFD, Dr. Cochrane excusing himself early.

At the presentation hearing in December of 2007 Zabeth Bayne recounted the only plausible explanation for her youngest child's injuries that she and Paul could consider, injuries that warranted taking her to several hospitals for a diagnosis and for treatment. That in court submission concerned the accident of one child falling on the smallest. She posited this without opportunity for disclosure of the medical reports, or opportunity for second opinions. To date, at no time has a judge heard the evidence of the experts who disagree with the SBS diagnosis. That will come as the case concludes August 9-13, 2010. However, with that disadvantage in 2007 and because the Judge was waiting for RCMP investigation results, the Judge ruled, granting an Interim Order. Subsequently, RCMP dropped the charges against the Baynes and the file was discarded for lack of evidence to proceed.

The fact that Colbourne added the 'impact' factor is a critical one for MCFD, because if substantive evidence for 'shaking' by either one of these parents is already lacking in this case, and it is, it is an unsupportable leap to suggest an impact to the child other than the one the Baynes themselves reported at the very beginning – one of their active children fell on the youngest infant while she lay on the floor in the care of her parents, who like any other parents were multi-tasking while monitoring their new daughter. Why, when only weeks old was she placed on the floor when two small boys were playing in the house? Reasonable question. A reasonable response is that it has never been uncommon for an infant to be placed on a blanket on the floor where it is assumed she will be safe even in a home with other children. Would these parents repeat this? - probably not. But this was not neglect or abuse.