Yesterday it was Submissions and Analysis points1-4, Today it is points 5-7 ….
5. Evidence should always be the underpinning of child protection social work. Social workers in this field should always remember that they get their mandate under the Child Family & Community Services Act and that they are ultimately accountable to a court of law for any child removal. It is thus important that they be trained to know the difference between good evidence and bad evidence. The difference between fact, hearsay and opinion. They deal with so much subjective material that they often lose sight of the need for objective assessment and we see this over and again in the testimony for the director. Intuition, gut feeling and opinion unsupported by fact have no place in a protection hearing. It is not good enough to say that he didn’t like the parent’s attitude, or she was not co-operative. On the other hand if you go into a situation where you can see squalor, scabies and headlice and where the kids seldom go to school, you have some hard facts. When one has hard convincing evidence, one does not need devices such as a risk assessment. The risk assessment is in the evidence.
6. Profile. If we are to accept that the cause of an injury cannot be determined by medical evidence alone, then how can one differentiate between accidental and non-accidental injury? The answer is that there must be reliable factual evidence. There must be eyewitness evidence, or some other form of direct evidence. As has been stated by different medical experts and by Goudge, it becomes a legal matter and not a medical matter. One of the ways of making this determination is to study the profile of the suspected offender. If there is a history of violence, drug addiction, crime, or marital strife and especially frequent previous injury, then the possibility of deliberate injury increases. People get injured all the time and in the vast majority of cases, this is by accident. Most people are reliable witnesses to their own injuries. With young children it is different. They too suffer frequent injury and it is mostly accidental. People with normal social profiles rarely deliberately inflict injury on their children. So doctors don’t usually question the stated cause of injury without very good reason. The Baynes obviously have a profile, which would make it very unlikely that they would ever harm one of their children and this must have been apparent to the director and his staff. This would then put them into conflict with Dr. Colbourne and would face them with a dilemma. It seems that their method of resolving the dilemma was to re-invent the family profile by using every device to smear and defame them. By means of the “risk assessment” and other evidence, they hoped that their blatant and clumsy efforts at defamation would convince the court. We will review how this was done.
7. Mr. Finn Jensen QC made a very lengthy summary for the director. He revisited the evidence in great detail. He examined every medical report in minute detail and tried to find fault. Frequently repetitious. We do not think that it is necessary for us to respond to him in like detail. While we recognise that it is expected that each side will interpret everything in a partisan fashion, we do not think that it is necessary to go to the lengths of Mr. Jensen. Your honour has sat through many days of evidence and you have access to all the transcripts and your own notes. I do not think that you need a great deal of direction from us to come to your own conclusions about the validity and weight to assign to each piece of evidence. The director, through his counsel, has made many arguments. Some of these are spurious and some disputive, but unpersuasive. Because it is expected in the court process, we will address several of his arguments, but we prefer to group them and not to repeat ourselves by dealing with them one by one. A summation of the evidence will show that the director’s case rests solely on one much disputed medical opinion and comes nowhere near providing the compelling evidence required to justify a continuing care order. Indeed there is inadequate evidence to justify the length of time that the children have already been in care.
To be continued.........................