Monday, March 7, 2011

CHILDREN IN NEED OF PROTECTION / Part 468 / For Love and For Justice / Zabeth and Paul Bayne

The future of this blog is being reassessed now. An announcement will be made later this week. Until then, the synopses of Judge Thomas Crabtree's recent ruling on the Bayne Case will be completed here.

Debriefing Judge Crabtree's REASONS FOR JUDGMENT March 2, 2011
My Third of Numerous Synopses (Judge Crabtree's actual wording is in quotations. Everything else is my understanding of the statements in the ruling.)

I continue with Judge Crabtree's evaluation of the question, “Are the Children in Need of Protection?” and this time his Analysis, beginning with The Evidence of Mrs. Bayne. This is a critical area in his ruling, since there are two parents and the infant's injuries occurred while the child was in their care, and Mrs. Bayne was the only parent who took the stand. Her testimony was covered in points 173-198 of the ruling, a significant investment of time and prose.

Judge Crabtree assessed Zabeth as intelligent, industrious, organized.

Her testimony touched three domains, conditions leading to the baby's birth, during 2 ½ months after birth, and what transpired following apprehension of three children. He deemed her testimony sometimes problematic even contradictory with respect to explanations and details of events and sometimes overstatements to deflect concerns or to reflect positively on her and her husband.

He observed inconsistencies in her testimony during the CCO hearing with statements she made during the presentation hearing or prior statements. He found problematic her description of where her husband was relative to the baby on September 23, 2007, whether he was preparing dinner and walking in and out of the room where the baby was lying on the rug, when in fact Zabeth could not have seen Paul, given she was in a different room. He concluded that her testimony on the critical matter of the fall of one child on another was inconsistent, that is, details differed from her previous statements about the event. She noted that once she observed her toddler son's head upon the baby after a tumble yet in another testimony she said she didn't see the impact. He noted that no injuries were observed on either the baby or the toddler following the incident. Judge Crabtree's own words of summary with respect to her testimony are: [198] “In my view, Mrs. Bayne's explanation at trial is a reconstruction of events in an effort to explain a traumatic event which happened to her daughter. Such an approach is not uncommon in an effort to put the "best" explanation forward. I am unable place to any weight on the explanation of what the witness describes as having taken place on September 23, 2007. Any contact between the children on this occasion, was of such a trivial nature as to be of no consequence at all.

Then Judge Crabtree covered the matter of the father's silence under a subheading entitled, The Failure of the Father to Testify. That will follow next, tomorrow.
  • Please pay attention to Ray Ferris' Comment today which speaks to whether or not the Judge actually granted a Continuing Care Order or rather a Temporary Care Order. 


  1. Does it matter whether or not the children showed signs of injury? Was it not already proven by a doctor that the baby already had a condition that looked like SBS? Is it true that there were NO signs of trauma to the baby's neck?

  2. Teya, I don't know how familiar you may be with the case, the medical findings, the contesting opinions, or the reason for your last query.

    The details are too lengthy to rehearse again here and are all found within the history of the blog posts. Yet let me simply say that SBS was the original diagnosis of one doctor. Not proven. SBS is not proven. It is an assumption. The theory assumes that several symptoms point to abuse by shaking. Ten medical experts in court said the same symptoms can point to other causes, including an accident, like the bumping together of two children's heads. And no, there was no neck trauma to the child. That was one of the factors that the contesting experts spoke to, that a shaking that could produce brain hemmoraging would doubtless injure the neck. Most importantly to the case now, is that Judge Crabtree discounted SBS. But he also didn't accept the accident story of Zabeth. Therefore, if the injury is unexplained he is still considering that parental risk is a reasonable assumption (whether that risk is due to neglect, not watching well enough, letting a child fall etc etc.) The Baynes stick to their story.

  3. At one point I believe she stated that her husband was on the computer in the same room, and had the children directly in his line of vision. If this is the case, his decision not to testify is problematic.

    She also stated at one point that neither child cried immediately after the incident, that there were no clinically evident signs of injury. On another occasion, the mother states that both children cried or fussed for a short time but that there were no signs of injury.

    Laying a 6 week old, pre-term infant, face down on the carpet, in the immediate vicinity of a toddler sibling who may struggle with issues of impulse and gross motor control, then leaving the room, not a wise decision. The child was injured , a fact which is not in dispute. Whether or not her injuries occurred as a result of deliberate aggression, poor judgment, or secondary neglect are questions which are best left in the hands of the Judge.

  4. So does this mean that if a child has an accident because the parents are momentarily not watching the children, that's it, the children get taken away forever?

    Think of all the times when you were a child - bruises, scrapes, maybe even broken bones. It's all part of growing up. The only way to guarantee no injuries whatsoever is to live in a plastic bubble.

    Given the large number of injuries, abuse and death in foster care, why wouldn't it be logical to say that foster care itself is too risky? That the government makes a bad, neglectful, even abusive parent.

    This will never end as long as people continue to give the government such power.

  5. Hallo Ron;so we start another week. I will devote some time to the Bayne judgement. First of all let me correct a misunderstanding which is circulating and I may have contributed to it. My apologies to those who may have been misled. The judgement IS NOT a continuous care order. He has made a temporary order for another six months. This will automatically expire at that time unless the director takes active steps to continue it.
    What has happened hear is that the judge has denied the director his quest for a CONTINUOUS CARE ORDER UNDER 41 (1) (d) of the act. He has made an order under c. The judge at this stage has three options. He has said (as I have said all along) that the evidence is insufficient to find the parents to be hopelessly unfit. He has now got the following options. He could have ruled that the risk was insufficient to justify further time in care. Had he done that, he would have created enormous problems for the ministry. After over three years, their name would have been mud and the Baynes could probably claim costs. Having made a protection finding that there was a small risk, he can choose a temporary order, which he has done. A bit odd when the director has already had a virtual temporary order for three years by interim custody. Second, he could still just return the kids home on the grounds of length of time in care on minimal risk. Third he could have returned the kids under supervision for three months. This is the one I expected. It still saves face for the director and gets the new baby home as well. The quality of mercy seems to be a bit strained here.
    As a matter of interest, I think that the learned judge has actually made an error in law here. If the readers check the sections of the act above and then check section 43, I think that you will find that the law limits him to a three month order for a child of less than five or if the youngest is below that age. I have drawn this to the attention of counsel. It can easily be corrected. This also means that an appeal would be a waste of time. Wait to see what happens when the order expires, which I predict as three months. The judge can keep on extending it for up to one year, but that would make little sense. If we regard the three and a half year struggle as a battle, the judge has more or less called it a draw. Neither side got what it wanted and neither got fatally wounded. The judge has said okay we can call the fight over and a draw. I want you people to shake hands and try to work together to get the kids back home (citing the guidelines as home is the best place). Now it remains to be seen if the director can take a more conciliatory stance. In view of the fact that the Baynes have taken an awful beating for more than three years, I would still advise them to be cautious and still to ask for clarity in all communications.
    I will be writing more later today on important things that the judge omitted. Later on in the week I want to write about risk assessment in terms that any intelligent person can understand.

  6. "The Child" documentary is appearing tonight 5pm PST, 8PM EST.

    Online viewing is available at: sent out this newsletter notice.{B77542B7-C997-4606-AE2D-2832F458865F}

  7. The magnitude of granting a CCO cannot be understated. This is the same as sterilization of parents.

    There are plenty of crack addicts, drunks, and parents who lead questionable lifestyles who have children who exceed that "10%" of possibility of danger to their children, yet they continue to be allowed to be parents, whether or not remedial course is available, offerred or undertaken.

    Those few parents who end up in MCFD's crosshairs may receive "help" or vilification. This is exactly the same as a speeding ticket. While hundreds of cars whiz by, routinely violating the speed limit, the one person stopped can get their car impounded on the spot. The rest are simply reduced to breathing a sigh of relief, grateful it is not them. It seems impossible to simply raise the threshold 10% to avoid criminalizing people.

    MCFD and child protection organizations continually seek to lower the threshold, AND be designated as the authority to set such thresholds, and make them as ambiguous as possible.

    With SBS being discounted in the Baynes case, and automatic blame has been alluded and assigned to the parents (but none to the medical establishment who failed them and their child for the month in question), the judge distills it down to two pages surrounding a single incident and differing accounts over a period of time.

    This type of selective judication is a frightening thing to witness. The few who attended many days of hearings will attest to the circus this hearing was host to. This judgment is not reflective of the hurdles placed before the parents during this process, and in no way shape or form can this process be considered fair. The best this blog can do is warn parents what they can face, and hopefully offer guidelines to avoid identical situations.

    If experts cannot agree on the source of injury, and services ARE referred to as being sufficient to address concerns and reverse this CCO, then lets get on with it.


    I have already stated that Judge Crabtree found some inconsistencies in Zabeth's testimony and he did not say whether these deliberate or mistaken recall inconsistencies. The inconsistencies worked against the Baynes. As to causation of injuries, yes, this was left to the judge and he ruled. Nothing more to say.


    The vital issue is not the injury itself but confirmation of cause. An accident is an accident whether in a biological parent home or a foster home. Something like an SBS theory wants to presume cause by ruling accident out as an explanation for the injury symptoms. Hence it is no longer being referred to as SBS but rather Non-Accidental Injury. Other experts are saying that the symptoms are not so reliably presumptive to justify even that label. Both SBS and non-accidental is assuming more than the symptoms support. The scalding difficulty is the ease with which child removal is done and sustained on the basis of this debatable diagnosis.

  10. Ron; I am pleased to see some well informed and intelligent analysis today. (As well as mine I mean.) Anon points out the selective judgement and that is why I am going to write about the important omissions. Before I do, I want to talk about the testimony of Mrs. Bayne. First of all about laying her daughter on the floor. You cannot offer any reproach to Zabeth that she has not said to herself many times over.
    The judge based a lot of his conclusions on what he deemed to be inconsistencies in Mrs. Baynes testimony. His comments show a total lack of empathy or of understanding of people. He must have known that the Baynes had been suffering dreadfully for the last three years. Surely it was obvious to everyone in the courtroom that the hearing was torture for both parents. They had to listen to all those attacks from the ministry witnesses including three or four social workers. By the time it came for her to take the stand she was in a state of nervous exhaustion and terrified of making a slip that would lose the children. It took great courage to testify. Finn Jensen grilled her for a day and a half. He attacked her like a pitbull and harried her on every minute detail of things that had happened three and a half years ago. How many of us can remember exactly what took place on a given day a year ago, let alone three? How many of us can remember exactly what we said about the matter a few days later? We do not go about our lives expecting be cross-examined. The judge even knocked her for forgetting her notes one day. I remember on the first day of the trial she was in such a turmoil that she left some critical material on the kitchen table and Doug Christie was not amused. He showed no compassion there and no mercy. If judges just bury their noses in case law and make no attempt to understand what sort of people are before them, they do not dispense justice. They merely dispense law. The judge noticed that Zabeth was diligent and intelligent and had shown constancy in her involvement with the children and had always sought more access. He did not realise that he was half way towards providing a parental capacity assessment. Does he have tunnel vision or was this a deliberate avoidance. He should have said does the lady who weeps with distress during the hearing and has been so constant look like someone who would deliberately injure a babe? Look at all these supporters who are here. Why do they show such love and respect for the Baynes? So Finn Jensen can trip a frightened woman up now and again. Does that make her a liar and an abuser? The judge decided that it did.
    Another big gap was the fact that the director took up over week calling in witnesses, whose evidence had no value or relevance to supporting the director's case. They were blatantly hostile and they were there simply to try and trash the Baynes. You think I exaggerate. Then why did the judge make no reference to them in his judgement? He made comments on every defence witness. He made only minimal reference to Mr. Hoffman. Did he forget that this gentleman had such a bad memory and such a selective memory that he could not remember one thing he had said to the police in an 18 page transcript.I said that the judge had cherry picked the law and the evidence. Why did we wait four months for this. Had the judge commented on the tesimony of the others, he could only have done so to the discredit of the ministry, so he just forgot about them. I have at least four other omissions for another day.

  11. I just have one question:

    Why have the Baynes decided not to appeal?

  12. Ron you tell me that you are going to change the focus of the blog, so I will finish off the omissions while the going is good.
    First omission. The judge noted that the presentation hearing was December 14 2007 and protection hearing started in January 2010 "the parties having adjourned it". A smooth evasion of the fact that it took 27 months for evidence to be tested. Maximum time of a temporary order is 12 months. He failed to omit that most of the delay was because there was no court time available and the director had called so many witnesses that the time could not found. Or that part of the problem was that the Baynes could not afford a lawyer. I would have expected the chief justice to express deep concern about such flaws in the system. Many of those witnesses were just filler with nothing of merit to offer. Later on in citing the law and the guidelines, he made no comment on the need for timeliness and continuity of care. When he summed up events, he noted the three moves of the children but did not relate it to continuity of care. Dear me no.
    The English philosopher John Stuart Mill spent a lot of time trying to make a mathematical measure of happines. He tried to find the greatest happinss of the greatest number, by what he called a "felific calculus." When I read Judge Crabtree trying to calculate the percentage of risk, I could not help thinking about it. The judge made one two huge omissions in his calculation. The first was that risk cannot be determined on injury alone, but there must be corroboration and then profile is important. The Baynes have an obviously low risk profile and the whole thrust of social work evidence was to try to reinvent it by smear The second big omission was that he failed to consider the risk in the foster care system by comparison. He knew of the repeated moves, but made no comment. Already the evidence of destabilisation was there. What was the risk in foster care? Some say as high as 50%. The risk is far higher than the "possibility" in the Bayne case or at worst a 10% probability. A serious omission.
    He criticised the defence for not calling more witnesses. He raised concern at the father not testifying, but after a rather long winded and obscurely worded discussion said it did not affect the judgement. He made a lot of criticism of the defence for not calling as witnesses people like the grandparents and many of the people who wrote references. What he omitted to say was that Finn Jensen took so long in his cross-examinations, especially of Zabeth, that he made sure that there would be no time that week for Paul to take the stand. He knew that Jensen had wasted a week with spurious witnesses and had stolen all that time from the Baynes. He knew that the Baynes were appalled at the slow pace and they were afraid that the trial could take another year. He knew that they did it so as not to keep the children in limbo any more. He omitted any mention of such. Just like he ignored Jensen stretching everything beyond reason and delaying things for two more months, just to make a summary.
    The omissions show the bias in this judgement more than what was included does. You have to know the case well to spot them though. I started off by saying that this judgement was obviously political. I now modify that. I say that the judgement was expedient and sought a middle path. If the children are back home in three months, it may well just turn out to be one of the many delays that have plagued this case. The real victim will be poor little Josiah Baynes who cannot have his mommy and daddy like he deserves. When his parents planned to have him, nobody in their wildest dreams would have dreamt that this hearing could go beyond October.

  13. Hello Anon 4:13 PM APPEAL
    Fair question. It is for the Baynes to answer but I can tell you that if your scroll up to Ray Ferris' comment in today's comments, you will read something crucial about the judge's ruling.

    His wording led to an initial wrong interpretation of his ruling. It was assumed that he had granted the Ministry a Continuing Care Order, but in truth he did not. That is good news. The CCO is rather permanent. However, he quoted from the Act Section 41(1)(C) which grants a temporary order only, and that has a 3 month time limit and is not permanent. He mentioned six months. We don't know whether that was an error on his part or whether this too was calculated in some incomprehensible way. An appeal of a CCO is therefore unnecessary.

  14. Thank you, Ron for your answer re: will the Baynes appeal. Too many mistakes are being made by the system, I would be so leery of assuming anything.

    I sure hope you continue this blog, because it is providing such a valuable service to people who are suffering such cruelty. It must be a lot of hard work for you, so I understand how you would want to take a break or whatever. If there is any way you could continue it, or if someone who is like minded could continue it, that would be such a great thing.

  15. Thanks Taya, much appreciated affirmation.
    We will see.


I encourage your comments using this filter.
1. Write politely with a sincere statement, valid question, justifiable comment.
2. Engage with the blog post or a previous comment whether you agree or disagree.
3. Avoid hate, profanity, name calling, character attack, slander and threats, particularly when using specific names.
4. Do not advertise