RAY FERRIS ABOUT DR. COLBOURNE AND SHAKEN BABIES

Ray Ferris is a retired child-protection worker and the author of The Art of Child Protection, and an occasional contributor here. 

When I say that Dr. Colbourne is on the warpath again, most of you will not know what I mean. So let me explain about the shaken baby syndrome.

Doctors who believe in the shaken baby syndrome hypothesis claim that when three medical symptoms are present, they can only be explained by a shaken baby opinion.  They claim that when these injuries occur to an infant that they can tell the cause of injury. They claim, they could only happen because the baby has been shaken. Hence the acronym of SBS syndrome. The reason why such an allegation is especially damaging is that it is an automatic allegation that an injury has been deliberately inflicted and is thus criminal and proof that the parent is unfit. Well you can see for yourselves that if the hypothesis is incorrect, that it can result in horrible wrongs being done to parents and other caregivers.

AN APPEAL TO CHILD PROTECTION SOCIAL WORKERS

I once made a public entreaty to social workers engaged in child protection. Here is what I said.

“When you reflect upon the cases in which you are now or have been involved, and if within that list you readily identify families which would benefit from being together rather than apart and you have the means to affect that reconciliation, do all that you can to insure that this happens. So much rests with you. You control destinies. That seems a frightening responsibility.

Anyone occupying a role which owns the weight and the power of the child protection worker within our society, has to have the right stuff if he or she is confidently and effectively to protect the rights of children, safeguard the rights of families and parents and live with a deep contentment at the end of the day. If you see many cases where harm has been inflicted upon innocents, it is understandable that callousness develops toward the responsible caregivers. How discriminating you must be to preserve your own authentic objectivity. How discerning you must be so that can separate fact and evidence from story and assumption. 

You are a member of the public and the public depends upon you front line people to be so careful with your invested power for our sakes, the children among us, children who may require food, opportunity, protection. And by referring to “our sakes” I also intend our families, parents of children, parents who require understanding, a listening ear, parents who require advice & counsel and encouragement, grandparents whose grandchildren are their joys and for whom they hope. Make all of your action choices wisely and be gentle with us please.”

Then, many readers responded of which these are samples.1.     “There is no point appealing to SW as the presence of some good SW, if they ever exist, cannot stop this structural corruption. Nobody will jeopardize their pay cheque, job security and livelihood to uphold justice. Child protection" industry is a racket controlled by a cartel aiming to get rich by ripping off taxpayers at the expense of destroying families. The only way to stop this is by revoking child removal authority and kill CFCSA.”
2.     “Rhetoric that appears radical may not be effective or persuasive. However, revoking child removal authority by killing CFCSA is the only practical solution to end this fiasco and build a safer future for our children. Doing so will not compromise real child protection as there are other laws giving authority to separate abusive parents and children based on good evidence and legal due process. Removing the absolute power to remove will substantially reduce wrongful removal, abuse of power and corruption.”
3.     “The truth about child protection, and all the corruption, is very difficult to articulate because it is so unbelievable. A person tends to sound like a fanatic or lunatic. But just because someone sounds like this, doesn't mean they aren't telling the truth.”
4.     “I had a long history of involvement with MCFD as I was a single parent with multiples and I had a hard time coping with fatigue. Another single mom told me that if I went to my dr. and said I am depressed I could get free childcare. Big mistake!! Many years later they wanted to get me because they thought my son was mentally ill and needed meds so they re-opened a file and claimed 'historical involvement'. It got really weird for quite a while and finally I got my kids back. SO, they do return them. Just keep calm and friendly. Hopefully you are not expected to do a psychological evaluation, as that can be either very good or very bad depending on the doctor. I see now that MCFD was really jerking my chain, as they had no real evidence. They try to bluff you but most of what they write is thin and does not stand up. The case of physical injury is very hard to fight as in SBS. If a medical doctor claims you have physically injured your child, you are in for a long fight. The other stuff should not even be in court and it is a measure they now take to hold the kids until their paperwork catches up. It still can take awhile. I had to wait 4 months without my kids!!! And then there is more work too with all the 'services' they want to give. It is a tough system and all they encourage you to do is to go with their 'services' to a point, as if you do not they make sure you never get your kids back.”

CONGRATS FIFTH ESTATE - WELL DONE SBS DOCUMENTARY

I waited, I watched, I am Pleased

You should check this link to see when the show is repeated. It will also be archived at the CBC TV site. (Repeat airtimes)

DIAGNOSIS MURDER

This long awaited documentary was better than I had hoped! This has been the most significant public awareness vehicle to date, to alert Canada to the possibilities of unjust allegations and convictions with regard to Shaken Baby Syndrome.

The Fifth Estate investigative team, the production crew, and Gillian Findlay are a class act. They researched both sides of this controversial issue and they allowed both sides to speak. Yet it was clear enough on which side of the diagnostic/judicial conundrum Fifth Estate stood.

Shaken Baby Syndrome (SBS) is a medical diagnosis based on the presence of a diagnostic triad: (1) retinal bleeding, (2) bleeding in the protective layer of the brain, and (3) brain swelling. During the past twenty years this has been the preferred diagnosis. It was formulaic. These injuries in a child were considered conclusive evidence of a shaken baby. Every shaken baby has a shaker. A shaker has committed a criminal offence punishable upon conviction.  But WAIT!

In Toronto, one of Jeffrey Smith’s twin daughters, born very prematurely and struggling to live in their early months, died while in his sole care one day eighteen years ago. He went to prison after being tried for murder but sentenced for manslaughter. This was one of two heart-wrenching stories featured last night. Recently he was exonerated.That little girl died of natural causes. Jeff's life has changed forever. His other daughter is eighteen years of age now and he has never seen her. She was raised by her mom who although she was not present when the little girl died, was convinced by the police that the father was responsible. She did not appear on air.

Zabeth and Paul Bayne of Surrey, BC, had charges dropped in 2007 but their three children were removed from them because of suspicion that one of them had injured their youngest child. She did not die. She was gravely ill for a long while. She too had been born with some prematurity but in a household accident at seven weeks of age she had also been struck by a sibling as he fell on her while running. That explanation did not wash with authorities, both law enforcement and medical. A pediatrician diagnosed her as a ‘Shaken Baby.’ RCMP dropped initial charges due to insufficient evidence but the Ministry of Children understandably continued to consider the parents a risk. Not understandable was the Ministry’s unwillingness to ask for a second opinion - a disinclination to entertain the possibility there may be another explanation for her injuries. It took four (4) years and everything that this determined couple could give in order to win a verdict that they were not responsible for the child’s injuries and to have their children returned to them this past year, four years after the saga began.

Fifth Estate considerately, wisely held off the broadcast of this show until the Bayne family was no longer under the review period assigned for the first three months that the children were back with their parents. The Baynes were not vindictive in the interview. They plainly expressed how the ordeal had affected them personally and how helpless they had been within a child protection system that assumes guilt until proven innocent. Last night’s show may become a resource to prevent other innocent and grieving parents from being presumed guilty.

PARENTAL CAPACITY ASSESSMENTS

If you want to know what a Parental Capacity Assessment is, today's blog post is written by Ray Ferris. Ray had career of 31 years service in child welfare and protection as a social worker and district supervisor and family court coordinator. Ray is the author of 'The Art of Child Protection'. You can purchase it from him by writing to rtferris@telus.net

"Parental capacity assessments are essentially a method of making an inventory of the life skills of parents. PCAs are similar to Risk Assessments and the main difference is the starting point of each assessment. A risk assessment usually starts with a perceived risk and then assesses the strengths of a parent to resolve that risk. A parental capacity assessment is principally geared to assessing the historical and current functioning of a family in order to provide a profile. This past and present profile is then used to assess the likelihood of future risk. Some types of risk cannot be assessed properly without considering profile.

THE LIFE SENTENCE TO ALAN YURKO / 594

Dr. Harold Buttram

Two days ago I mentioned Dr. Harold Buttram, one of the presenters at the recent Evidence Based Medicine and Social Investigation Conference. This is an addendum to my information concerning him.

I will here provide you with a link to an article written by Dr. Buttram entitled, ‘Shaken Baby Syndrome or Vaccine-Induced Encephalitis?’ which will inform and alarm you. The article’s inspiration was the case of Alan Ream Yurko at whose trial Buttram testified that it was not shaking but six vaccines that contributed to the death of Yurko’s 10 week old son, Alan. Mr. Yurko was sentenced to life plus ten years. After serving seven years, an appeal won his release. The article shows that the theories on which the SBS is based are both undocumented and flawed and that convictions in many cases of the SBS may have been the result of misdiagnosis, the true cause of death or injury having been vaccine-related.

Parenting Capacity Assessment (PCA) / 507

His Honour rejected the SBS theory but in making his ruling he also spurned the natural judgement to return the children to their parents. Many of you have felt that this conclusion defied logic, because he ruled to continue the government care of all three children without supportive evidence. He had just thrown it out.

Okay, so make the best of it. It is ostensibly three more months of care. Zabeth and Paul must show themselves clean, concerned, cooperative, capable and they have three months in which to do that and this is precisely the type of case for which the Ministry requests a Parenting Capacity Assessment (PCA). PCA's are medico-legal reports and most PCA’s do not end up in court, but result in a plan of action agreed upon by both parties yet nevertheless they are prepared with the expectation that they may be examined in a court of law.

CHRISTIE'S FINAL SUBMISSION installment 5of10 Speaking to Jensen's Summation / 493

Paul and Zabeth Bayne were in court in 2010 defending against the Director of Family and Child Services application for a CCO, ongoing care of the Baynes' three children. This is the fifth installment in a brief series of quotations from Doug Christie's final SUBMISSION IN RESPONSE to Finn Jensen's closing summation. It was presented November 4, 2010 to the Court (Judge Crabtree) on behalf of Paul and Zabeth Bayne. This is a public document. No ban was placed on court presented material.

Yesterday I quoted Mr. Christie's Submissions and Analysis points 8-10. Today it is....pts 11-14  beginning, "From the start of their experience with the Hope staff, the Baynes experienced aggressive behaviour."

IF IT WASN'T SBS, THEN WHAT? DON'T KNOW? PRECISELY! LET THE CHILDREN GO! / 486

Maybe this will keep you going until Monday.

The questionable convictions in Ontario in the 1980's and 90's, some of which were were based upon Shaken Baby Syndrome, and some of which were because of testimony by now-disgraced pathologist Charles Smith, render Judge Crabtree's conclusion to the Bayne questionable if not impugnable.

If the Baynes' children should not be retained in the province of British Columbia foster care system because the judge dismissed SBS as a cause for one child's injuries, then there is no reason whatsoever for them to be in care. None whatsoever.

In the middle of a circle of cows

Don't tell me there is a risk. If the law cannot say that the risk is a definite 80%, or 50% or 30% then don't speak about a probability of risk. Then for Judge Crabtree to venture a 10% risk probability is fanciful nonsense, deplorable.

EXONERATED / Part 427 / For Love and For Justice / Zabeth and Paul Bayne

PostMedia News Photo of Dinesh Kumar

The National Post ran this story on Thursday. Mr. Dinesh Kumar is now 44 years old but twenty years ago he was accused of killing his five week old son. It was the now notoriously inaccurate Ontario pathologist, Dr. Charles Smith, who concluded that the infant named Gaurov died as a result of shaken baby syndrome. On Thursday the Ontario Court of Appeal cleared this poor suffering man of all liability in his son's death. Of course, his case was compounded by the fact that 20 years ago he was subjected to such intense investigatory pressure that he could no longer take it, so he confessed to taking his son's life. He was initially charged with second degree murder but when he pleased guilty , it was to a lesser charge of criminal negligence causing death. For two decades he has lived with the shame, the sentence, the ostracism, the record of being a baby killer, when in fact he was innocent.

Confession is precisely what the MCFD Team here in B.C. has expected and initially sought to extract from the Baynes with regard to injuries sustained by their several week old infant daughter over three years ago. When that confession was not offered but rather a resounding declaration of innocence in every early meeting with them, the MCFD became entrenched in a combative posture that has been well demonstrated by the wording of risk assessments and affidavits and cross examinations.

Now listen to an extract of the Kumar case as it is reported by Linda Nguyen of the National Post. She writes, “Dr. Smith concluded Gaurov died of shaken-baby syndrome. But in new material filed with the appeal court, new opinions from various medical experts have found that Smith’s conclusion is no longer scientifically valid.” Lawyer James Lockyer took on Mr. Kumar's case three years ago,. Mr. Lockyer is the founding director for the Association in Defence of the Wrongly Convicted. He said, “... 20 years ago, the theory offered to explain shaken-baby syndrome was “en vogue... The trouble was that the attempt of an explanation somehow became fact, became science — when it wasn’t... Smith’s reputation went beyond police and Crown and judges, it seemed to have affected defence lawyers of the day. If Smith said something, it was almost bound to be right.”

The Baynes' child did not die. They are so thankful for that yet nonetheless, in their case parents have again borne blame for conditions of injury to their child because the title of the diagnosis itself implicates non accidental injury. MCFD practitioners have been willing to depend exclusively on a doctor's SBS diagnosis, well in fact, the Director himself said that his affidavit in support of the Continuing Care Application rested solely upon the pediatrician's SBS diagnosis. Apparently in B.C. there is a medical consensus that SBS is still 'en vogue.” No one within MCFD sought to think outside this strict designation by seeking other opinions. It was left to Zabeth and Paul themselves to uncover medical experts who disagree with the blanket SBS diagnosis and certainly disagree that it should apply in this case.That contradictory evidence by the way is building daily and annually in the medical arena and appears only appropriate that this well publicized Bayne Case shall conclude with a Judge dismissing the validity of SBS as a justification for the treatment of this entire family.

Not for a moment is anyone saying that to question SBS is to turn on a green light for child abusers and shakers. Rather the opposition is to the use of a triad of injuries as an automatic guilty conviction if not criminally then certainly practically within the framework of a child protection system with the legal interruptive, invasionary power like that bestowed upon MCFD through the CFCSA. Any way one slices this kind of case, the RCMP could find no substantive evidence that warranted a charge of any kind, and the medical diagnosis also came without actual evidence of culpability. The suspicion that arises from the grave physical conditions of an injured child is not the equivalent of evidence, and even the suspicion must be set aside when the resultant diagnosis is one which is increasingly disputed because the injuries may be consistent with accident or one of various other conditions or diseases.

WHAT DOES AN IMPROVED OUTCOME LOOK LIKE? / Part 421 / For Love and For Justice / Zabeth and Paul Bayne

logo design for business logic by james wenzel

Yesterday I wrote two posts and in the first entry I said that we need a model of casework that ensures consistent practices which support improved outcomes for children, youth and families. I am going to give MCFD an example of what a good outcome looks like. I will use the Paul and Zabeth Bayne and their three children as an example because even this difficult case could have been addressed with an improved outcome provision.

There is no question that this has been a complicated case. It is complicated by the nature of their youngest child's injuries, by the initial medical diagnosis of those injuries using a term that immediately insinuates parental liability, by the controversy in the medical sciences arena about the legitimacy of the shaken baby syndrome diagnosis, by the early and continued denial by the parents of any harm done by them to their child, by the early RCMP arrest and charges against the parents prior to an investigation and then the subsequent release and dropping of charges for lack of evidence, by the immediate apprehension of the two older syblings, by the failure of MCFD to follow prescribed time-line guidelines within its own authorizing ACT, by the MCFD refusal to accept the Bayne explanation of accidental injury, by the MCFD refusal to give credence or even read the hundreds of letters of support for the Baynes, by the unjustified retention of the two boys without cause and against their own counsel's advice, by the adversarial treatment MCFD administered to the Baynes at every level including intensely rigid instruction about visitation, by the financial losses of the family in properties to pay legal fees, by the unduly long three years that MCFD has withheld the children from their parents, by the publicity that has been garnered by public protests, by online blogs and news media venues suggesting MCFD blundering, and by the lengthy court case in which the bulk of the time was spent by MCFD counsel. That is complicated!

If an improved outcome had been the focus of MCFD for the Bayne family, the Director and his team would have considered that in spite of a suspicious injury and a medical opinion, there was no verifiable specific evidence. It would have understood the significance of the RCMP dropping of charges. It would have viewed the medical diagnosis as an opinion rather than a verdict. It would have dug deeply enough to recognize even three years ago the controversy revolving around the SBS diagnosis. It may still not have believed the Baynes' story of accidental injury or believe that either one of them was innocent of wrongdoing. However, MCFD would have acknowledged that it did not have proof against the Baynes. It merely had suspicion of them and MCFD would have understood the significant difference between evidence and suspicion. MCFD would have viewed this now as an opportunity – an opportunity to help this family. It would have recognized that the best interests of the children was unquestionably to be with their parents and it would have considered how that can best be effected. It would have provided to the Baynes a compassionate plan whereby the parents were not made to feel like criminals always under suspicion but rather as clients being helped by a caring social agency, whereby the well-being of the children in the family home could be monitored each week for a specified time period, whereby the parents could have attended any agreed upon course for parents of small children to improve understanding, coping skills and patience and whereby the concerns of MCFD could be met and the dignity of two respected people could be retained.

Please send this to news media people you know with a courteous two sentence intro inviting them to read this link. Example: "Please read today's GPS blog post. The Bayne Family will hear Judge Crabtree's ruling by January 19th. Thank you. The Link is: GPS"

This Blog has been advocating the return of three children to their biological parents, Paul and Zabeth Bayne, for which a ruling is expected from Judge Crabtree by January 19th. Three days. Stay posted.

BREAKING NEWS on SBS /Part 413 / For Love and For Justice / Zabeth and Paul Bayne

BREAKING NEWS: PART 413 I can't help myself. I already had written a post for today and it, Part 412, is found just below this present entry. I hope you read that too, but right now something of great significance must have your attention. It may or may not presently affect the Bayne Case as the judge concludes his writing of the decision for their case. This piece of news concerns Shaken Baby Syndrome and it's validity as a justifiable cause for action taken against givers of care to a child who has either been injured or dies from injuries that have heretofore been classified as categorically attributable only to SBS.

Dr. Charles Smith at Goudge Inquiry / photo:Adrian Wyld

I was alerted late last night in an email as well as by a comment to yesterday's blog post 411 that a hugely significant legal statement about SBS had been made in Toronto yesterday and I want you to read it. I want Judge Crabtree to read it. I want all parents who have similarly been either charged with or wrongly suspected of SBS to read this. I want Mr. McNeill to read this and legal counsel Finn Jensen to read this and Mr. Loren Humeny and Mr. Berhe Gulbot to read this. While each of these people may have acted in good faith within the authorization of their respective roles, each must now conscientiously begin to explore the possibility that the SBS diagnosis as a blanket or conclusive explanation for the classic triad of injuries is no longer unquestionably valid and perhaps not at all. There are too many other possible medical explanations for the same set of injuries. That has been the Baynes' contention from the start. They had to work against all odds to locate and to subscribe the medical opinions of ten reputable medical experts to contest the initial SBS diagnosis. That should have been MCFD case workers' jobs. It should have been a concern of Mr. Jensen to verify before taking twenty-two days in court to argue it as reason to keep three children from their parents forever, two of the children not even being the subject victims of the SBS allegation.

So here is the news that broke yesterday in Toronto. This excerpt from CityNews.

“Both the Crown and defence lawyers are seeking an acquittal for a man they believe was wrongly convicted of his baby’s death nearly two decades ago, based on evidence presented by the now-disgraced Dr. Charles Smith. Smith testified 19 years ago that Dinesh Kumar’s five-week-old son Gaurov died of shaken baby syndrome. At the time Smith was lauded as one of the best in the field of child pathology, but is now disgraced following the findings of a 2008 Goudge inquiry into his work. Smith’s conclusions in the case are no longer scientifically valid. Kumar, originally charged with second-degree murder, is represented by lawyer James Lockyer, who says his client agreed to pleaded guilty to criminal negligence causing death to avoid deportation to India. The Crown and defence have filed a request with the Court of Appeal for Ontario to have the conviction set aside. A hearing is scheduled for Jan. 17.” The handwriting is on the wall – plain enough to be read by everyone. Do not be confused by some medical term modification, from SBS to Non Accidental (traumatic) Injury. Given the variant opinions, it must not be assumed that same triad of symptoms automatically implicate guilt of parents in willfully harming their child. With respect to the Kumar story, some conflict appears. One news source tells us that "The Crown also says it “does not accept” criticism that shaken baby syndrome is a discredited theory. It remains to be seen whether the court will" (Toronto Star).  Another source says, "Crown attorney Gillian Roberts writes in court filings, '... the medical evidence on which the case was based in 1992 reflected the prevailing views of the day” (Hamilton Spectator, Alison Jones).

Now the fact is that the affidavit submitted by the Director of MCFD Fraser Valley Region and written by one of his social workers, states clearly that MCFD action is based in the Bayne Case upon the SBS diagnosis of a Children's Hospital pediatrician. It was inevitable that one or more such cases as the one cited in the news article would eventually come to light and would change opinions. The Bayne Case should be the next one. Judge Crabtree delivers his decision within nine days (Jan 19 at the latest).

It's now 8:22 am and I have just located a fuller account by Globe and Mail writer Kirk Makin, written yesterday. From it I have taken these sections."In a court document unsealed Friday, Crown counsel Gillian Roberts said that changes in medical knowledge about infant brain injuries have seriously undermined Mr. Kumar’s conviction. She said that in view of medical controversy that surrounds the notion of shaken baby syndrome, 'no reasonable jury could convict the appellant of any form of homicide in relation to his son, Gaurov....the prevailing understanding of that medical knowledge has changed. ' ”

In fact here is an entire Google page of indexed references to this story. Twenty two additional news sources, some from same network or authors.

Related CityNews Stories
Charges Withdrawn In Child Death Case Involving Pathologist Dr. Charles Smith
Man Wrongly Convicted Of Killing 4-Year-Old Niece Paid $4.25 Million
People Wrongfully Convicted On Testimony Of Dr. Charles Smith To Be Compensated
Woman Acquitted In Infant Son's Death
Disgraced Pathologist Apologizes For "Mistakes"

THE URGENCY OF THE RULING / Part 371 / For Love and For Justice / Zabeth and Paul Bayne

 Judge Thomas Crabtree is an active gentleman with more than enough responsibility. He has cases pending upon which he must adjudicate and he has his new duties as Chief Justice of British Columbia. Somewhere during his work days over these next several weeks he is allocating hours to read through the 237 pages of transcript generated over the twenty-two days in court when the case between the Director of Family and Child Services and Zabeth and Paul Bayne was heard. He has himself expressed his cognizance of the urgency of this outcome for all who are involved and that means he will deliver his ruling as soon as he can. He did provide an estimated window of eight to twelve weeks. That puts us into 2011.

Paul and Zabeth outside Chilliwack Courthouse

The Director's application for a Continuing Care Order for all three of the Bayne children is the causative legal action that finally brought this family to the Provincial Court. The application should be denied. The Baynes' three children were born October 18, 2004; June 12, 2005; and August 3, 2007 respectively and they have not lived with their parents for over three years because the Director removed them and kept them. This application should be denied because the quality of its supportive evidence is deficient. That deficiency is articulated for the Judge in the Baynes' Final Submission in refutation of the Finn Jensen closing summary. It should serve to underscore the impressions his Honour himself deduced as he listened in court hour after hour. Impressions that the Baynes are not baby abusers, that circumstantially incriminating information should no longer be used to punish these parents in the name of protecting the children, that the disparity between Ministry and Bayne resources to argue this case has not resulted in a conclusive victory for MCFD.

And yes, this case is crucial. The urgency of the ruling and the outcome to which Judge Crabtree alluded, for all who are involved, is not something we have thought much about. Its importance for Paul and Zabeth is patently obvious. Each day that they wake they face yet again the reality of their loss and the Director and his cast want to see this continue as a life sentence. The urgency of the outcome for the Ministry is not customarily considered but it should be. The Director can ill afford to lose another judgement because the publicity depreciates his reputation and this case has already garnered national and local televised news coverage and it will again. Reputation is invaluable and notoriety is to be shunned. What mystifies me is the modulation from sincere conscientious concern for the safety of children to the aggressive anti-Bayne/parent commitment that characterizes the evidence put forward during this hearing. Further, Minister of Children Mary Polak doesn't want to face media questions about the case handling of one of her regional offices. It is not an enviable aspect of her job. She was already stick handling her way at a news conference yesterday with regard to the young girl left with her dead mother's body at a Cultus Lake home. Her Ministry has not been forthcoming with information about that case, at least not nearly soon enough to satisfy Mary Ellen Turpel-Lafond, the Children's and Youth Advocate who already went public with her disapproval and this week subpoena'd the information. Thanks to a reader today for supplying this Times Colonist link to Turpel-Lafond's statements.

So very much depends upon a Judge's discernment right now. 

An earlier blog post, Part 238 July 3, 2010 entitled 'The Importance of the Bayne Ruling' also spoke to the significance of the outcome but anticipated it much sooner than it will come. The delays of the court case have been lengthy. 

The Bayne Story / Part 304 / For Love and For Justice / Zabeth and Paul Bayne/

Soon compelling documentaries will publicly review the B.C. government's victimization of a five-member family. Victoria is not going to like this. News networks are ready and waiting.

Paul and Zabeth Bayne had it all. They were young. They had love for one another, faith in God, a home and property for children to play on. They had one son whose birth was not easy for Zabeth, and then another son born with the challenges of serious prematurity, born at 25 weeks. Zabeth and Paul had strength, resiliency and determination. They took this child for medical checks several times each week and various services to assist his development were brought into the family home, services to assist with feeding and muscle toning and general health developmental. Their family doctor was pleased with the children's health and the parents' care of their children. And then a daughter was born and their joy was immeasurable. She too had a premature birth.

The Ministry of Children became involved with the Baynes during the first year of their second child's life, prior to the arrival of the baby girl. At his sixth month he was suddenly crying inconsolably and as he squirmed they noticed his arm hung limply. Tests at hospital revealed a fracture. Standard protective procedure you might say. Both parents were questioned. Paul was asked to leave his house for two weeks. A study identified prematurity of bones in the child and Paul was permitted to resume his role at home. But a Bayne file had begun in the MCFD database.

Paul and Zabeth have looked forward to a large and thriving family and they love their children, so the family of five was just beginning their lives together when that determinative day occurred. The new baby was doing well, fed well, slept well – all was well. Of course she, like her brother would contend with the conditions that pertain to premature birth. Then a household accident. Can be perceived as preposterous but then how many similar mishaps have occurred in our homes. This one had serious consequences. One child active and happy fell on the baby resting on a blanket on a carpeted floor where daddy could see her and to whom mommy would soon return from the other room. Zabeth says she saw the fall. You know much of the rest of this story. Within hours their girl's feeding habits changed and other serious signs prompted Paul and Zabeth to take her to local hospitals and clinics without anyone accurately identifying her issues over several days. Then at last the baby was taken to BC Children's Hospital where the brain bleed and other symptoms were noted and the shaken baby syndrome assessment was made.

Even the RCMP needed to investigate a possible case of abuse but closed that down early. The MCFD was loath to discard the SBS and Abuse storyline, even when other medical experts disputed the SBS diagnosis. What you will not know is the archived attitudes, tactics, setups and actions by the local MCFD to sustain the assumption of risk to the children at the hands of their parents or to trip up the parents. I won't bother covering it. Journalists are poised and will be all over this. I am guessing that when these become public, Victoria will not be pleased.

MCFD HAS A VESTED INTEREST IN SBS / Part 267 / For Love and For Justice / Zabeth and Paul Bayne/

Before you begin, I apologize for the length of this piece.

Here is something to think about. As you know by now, the MCFD did not, and does not accept Paul's and Zabeth's denial of inflicting harm on their third child nor their explanation of a domestic accident that involved a toddler sibling and the infant daughter in an impact collision, one child falling on the other, head against head. Dr. Colbourne diagnosed a probable shaken baby syndrome origin for the child's injuries in 2007. She made that assessment based upon her knowledge and experience. She then did what she must do in the event of such a diagnosis and that was to notify the MCFD. The MCFD accepted her diagnosis not merely as probable cause but the definitive cause of the girl's injuries. Today, twenty eight months after removing all three children, MCFD cites in its affidavit in support of a Continuing Care Order that it rests its case soundly upon Dr. Colbourne's conclusion.

Social Worker Loren Humeny's recorded notes submitted in court indicate that in 2007 Dr. Colbourne was almost certain that this was a shaking 'type' of injury. Her own testimony clarifies that she believed that it was distinctly a shaking injury and her 2009 in court testimony expressed that it was an impact/shaking induced injury. During that two year interval the National Center for Shaken Baby added 'impact' as a causal link to shaking. Further, NCSBS changed the name from shaken baby syndrome to 'traumatic head injury', which implies impact. Ongoing research revealed that unless there is an underlying illness, impact is necessary to effect this type of injury. The organization that claimed this type of injury is caused by shaking now incorporated 'impact' into its definition. Even so, those making this diagnosis punctuate felony rather than accepting accidental cause. I am not saying that the linkage of shaking and impact are inaccurate. I am saying that it may be unwise to assume that a specific constellation of signs and symptoms are always the result of criminality rather than accident. See  White Paper: Shaken Baby Syndrome/Abusive Head Trauma Prevention

Neither Dr. Colbourne nor MCFD has accepted the association between the Baynes' impact accident story and the altered SBS causation which now accommodates to impact.

Dr. Colbourne was for some time listed on the international board of directors for the Center and that relationship was actual at the time that the Bayne children were apprehended. Dr. Colbourne's name was removed from the Center's web page some time in the past two years.

MCFD encourages training of caseworkers on the subject of SBS. MCFD's website states: "...Team members have completed a number of other MCFD sponsored educational and training courses, including sessions on Shaken Baby Syndrome, Alternative Dispute Resolution, Mediation, Attachment Theory and Community Living Services." This is available in the report called Director's Case Practice Audit Report, Vancouver Coastal Region, Pemberton Integrated Family Services RYH 2009.

Berhe Gulbot has been a key MCFD figure associated with the apprehension and ongoing custody of the three Bayne children and he himself has testified that he was one of the Ministry personnel who attended the Shaken Baby Conference organized by the National Center For Shaken Baby in Oct 2007. The Ministry believes in and trusts this theory and has injected ??? dollars into the promotion of this theory. I have sought to read both sides of this controversial diagnosis and I surmise that it may be foolhardy to rest reputations on a theory with a growing discreditation. There is an avalanche of contradictory medical and expert opinions concerning the value and validity of SBS. That it can be disputed bothers me because hundreds of children have been removed from their parents on the basis of this theory with the resultant affects in some cases of criminal prosecution and conviction. Presently, 1500 people are serving sentences in the United States because they were convicted on the basis of this impugnable theory. How many have been convicted in Canada? And even if not convicted because there was insufficient evidence as far as the RCMP was concerned, how many children have been taken away forever? MCFD wants to do this with the Bayne children. That to me will be the ultimate injustice.

Be perfectly clear. I believe that people who shake, impact or harm a child are responsible before the law because this is a grievous act of violence against a vulnerable person. I approve and respect every program designed to prevent such abusive conduct. I believe that the MCFD must become more discerning about SBS diagnoses to consider the variant possibilities so that inaccurate accusations do not destroy innocent families.

INTERPRETING THE PRECEDING REPORTS / Part 237 / For Love and For Justice / Zabeth and Paul Bayne/

So here comes the critical determination after four days of online medical reports.

• This child was in very serious medical crisis in September 2007.
• By reviewing the initial test results and medical reports these past four days, my purpose was to underscore Baby B's condition which resulted in the MCFD intervention in her life.
• What the original and vital diagnosis of shaken baby did not consider were the alternate explanations that were provided yesterday by the reports from ten other experts who reject the shaken baby diagnosis for this specific child.
• It was not the Children's Hospital or the Ministry of Children (MCFD) that sought any alternate opinions to insure that SBS was the accurate diagnosis. MCFD was content that the SBS verdict was the right one. It was content even in the face of conflicting expert opinions.
• An SBS conclusion is conjoined with a 'non accidental injury' designation and therefore responsibility for an inflicted injury must be assessed to the person(s) most likely implicated. In the Bayne case, probability pointed to Zabeth and/or Paul, the biological parents. This would need to be substantiated of course, but how and with what?
• While this was investigated, the children were removed from their parental home.
• The RCMP ruled that there was insufficient evidence to charge Paul and Zabeth.
• When the MCFD regional Director persisted in its custody and care of the children, his decisions were motivated by a child's injuries but they were not associated with evidence and proof of parental responsibility for the injury to the injured child and absolutely no evidence existed to support the continued custody of the two sibling brothers.
• Nevertheless on the strength of suspicion, MCFD continued to withhold the rights of three children to live with their birth parents. Maintaining suspicion, MCFD pressed the Baynes to admit to harming their child until it became evident that the Baynes would assert their innocence unconditionally. Without an admission of responsibility, the Director and his crew would not consider returning the children and further have in documents alleged that the Baynes are uncooperative.In fact that is untrue. They have instead been bravely assertive and understandably concerned that all of their personal and family rights and freedoms are not ignored.
• The shaken baby diagnosis is the substantive basis for MCFD action and now the Continuing Care Order application. A most recent MCFD affidavit states “The Director is seeking a Continuing Care Order, relying upon the diagnosis of the Children's Hospital that B.B. sustained a non-accidental trauma resulting in brain hemorrhaging, a unilateral retinal hemorrhage and a fractured femoral bone.” The hemorrhaging is understood. The reference to fractured femur is intended to infer an intentional injury. Even that was an inaccurate statement as Dr. Culman's report indicated that “The lateral view of the right elbow shows what appears as subperiostal new bone but is in fact cortical tunnelling because there is no new bone on the frontal view. “

THE CRITICAL DETERMINATION: NO CONCLUSIVE EVIDENCE EXISTS THAT THIS CHILD WAS WILLFULLY HARMED BY AN ADULT AND SPECIFICALLY BY PAUL AND/OR ZABETH BAYNE. NO EVIDENCE WHATSOEVER EXISTS THAT THIS CHILD'S SIBLING BROTHERS HAVE BEEN HARMED. THE ACKNOWLEDGED INJURIES TO THIS CHILD DO NOT INDICATE CATEGORICALLY A NON ACCIDENTAL ORIGIN. IF REASONABLE DOUBT PERMITS THE RELEASE OF SOMEONE ACCUSED OF AN AGREGIOUS CRIMINAL ACT, THE REASONABLE DOUBT CONCURRENT WITH NON-CONCLUSIVE GROUNDS IN THE BAYNE CASE DEMANDS THE RELEASE OF THE THREE CHILDREN TO THEIR BIRTH PARENTS.

For Love and For Justice / Part 113 / Zabeth and Paul Bayne

What I am hearing from court proceedings …

This present case against the Baynes maintaining custody of their daughter proceeded from injuries for which they brought her to Vancouver Children’s Hospital and which were diagnosed there as indicators of a Shaken Baby Syndrome and only that. That diagnosis presumed a non accidental injury. Any story that the parent or caregiver offered with regard to an accident had to be categorically mistrusted. The hospital had no option and it had protocol which required staff to notify MCFD and/or RCMP. That was done. The RCMP found insufficient evidence to proceed with charges. From the RCMP standpoint the Baynes were exonerated. MCFD now involved in a child protective scenario looked at the Baynes differently because MCFD had more confidence in the medical diagnosis than they had in the Bayne parents’ story of accident. The only long term resolution that MCFD could foresee was an admission by one or both Bayne parents that in fact the baby had been shaken and that they were sorry and would be willing to take any classes that teach them to manage frustration and annoying baby behaviour. Then perhaps the family could be reunited, albeit with some monitoring provisos but such reunion was not assured.

Of course we now know that the Baynes have for well over two years refused to admit to something for which they still maintain their innocence.

The shortcoming in medical procedure that the Bayne camp has argued in court was a failure at that early investigative stage to systematically eliminate all other possible causes for the injuries. This is called a differential diagnosis.

The MCFD camp maintains through the attending health professional who made the initial diagnosis, that SBS was most consistent with the injury details. Bayne’s counsel Doug Christie questioned Dr. Colbourne’s credentials sufficiently that Judge Crabtree ruled that she would not be allowed to offer an opinion as to whether this was an accident or a non accident, or even to state her opinion that it was SBS. Finn Jensen ducked that ruling a following day by having Dr. Margaret Colbourne recite all the alternative causes with which in her opinion, the indicators were not consistent, and she finally landed on the one remaining cause, SBS. Why Judge Crabtree didn’t insist upon his prior ruling remains unanswered.

The differential diagnosis for Subdural Hematoma (SDH) in an infant includes impact trauma; a variety of natural diseases; and hypoxia/anoxia, either as a primary event or as a complication of impact or natural disease. A physician investigates, explicitly considers, and eliminates each before he/she attributes these signs and symptoms to a specific mechanical or physiological cause. The question remains. Will the judge conclude that Dr. Colbourne was qualified to conduct an explicit differential consideration of the numerous potential causes for subdural hematoma and retinal bleeding? That will certainly affect the outcome. The judge will have to determine based upon evidence, whether the Baynes are a risk to their children or was the baby's medical story the result of a family accident, or the baby's pre-existing condition exacerbated by an accidental impact?

For Love and For Justice / Part 111 / Zabeth and Paul Bayne

The Best that Jensen Can Do
Part Two of Two Parts

Following the Hoffman testimonies, Finn Jensen called upon his heavyweights for testimony, Adrienne Glen and Dr. Margaret Colbourne. They represent the concern that arose within the child protection unit of Vancouver Children’s Hospital when Bethany was admitted, examined, tested and treated. Each of these women was doing a specific job to the best of her ability and each I must assume fulfilled her role with integrity. Adrienne, an intake social worker at the hospital, visited and conversed with the Bayne family and medical professionals and wrote timely reports and in the process expressed her opinions, sometimes about the Baynes. Dr. Colbourne, very connected to the Shaken Baby Syndrome theory through involvement with an international SBS organization and committed to the understanding that the presence of the diagnostic triad of (1) retinal bleeding, (2) bleeding in the protective layer of the brain, and (3) brain swelling, is predictably indicative of SBS, made that SBS diagnosis with Bethany in 2007. The testimony of each woman in court affirmed her report from 2007 and each report potentially discredited Paul and Zabeth as normal, concerned and loving parents and implied their responsibility in harming their child and by which Finn Jensen hoped to convince the judge that MCFD has acted from the outset upon accurate and trustworthy data. The snag for Jensen is that Counsel Doug Christie was able to cross examine both witnesses and consequently weaken the import of their testimonies. Glen was compelled to admit that her recorded perceptions that the Baynes spent relatively little time with Bethany in hospital were inaccurate and that they had in fact spent many daily hours in hospital with Bethany. Colbourne’s qualifications as an expert were questioned with regard to an absence of biomechanical training needed to ascertain whether or not Bethany's injuries were accidental or non accidental. Theoretically, Colbourne's SBS diagnosis would benefit greatly from the next witness.

Now came Jensen’s super heavyweight Shaken Baby witness, Dr. Randall Alexander from Florida, who has testified in over 300 similar cases and who was here to assure the court that unquestionably, Bethany’s injuries were the result of shaking. His towering persona began to dissolve when he was forced to admit that he wrote his SBS report on Bethany months before seeing the actual film work on Bethany a day before entering the witness box. He had to admit that he had not read Bethany’s birth records, reports concerning Bethany from area hospitals, or any of the ten experts' reports on Bethany that countered his SBS claim. It was clear to the judge that Alexander’s report had been written with incomplete medical information. What kind of evidence is this?

Most recently Social Worker Loren Humeny testified and was cross examined for almost the equivalent of four days. Under cross-examination Humeny was asked whether the risk assessment was written when he was in an adversarial position with the Baynes, because the MCFD was already seeking a continuing care order on all three Bayne children which the parents opposed. He admitted that the risk assessment was highly subjective and primarily his opinion. Christie stated that it had a dearth of factual evidence. It essentially vilified the Baynes and on the one page customarily assigned to summarize strengths, Humeny noted no strengths for them as individuals, as a couple or as parents, saying he didn’t know them, yet admitted that he had spent many hours with them in meetings. The hundreds of letters of reference in support of the Baynes, he admitted he knew about but had not read. So perhaps he doesn’t know them. Judge Crabtree will have to settle for himself whether that constitutes evidence. And this thus far is the best that Jensen has been able to do with what he has. All of this exchange is in court transcripts.

What seemed so strong, so ominous, is paler now and fragile.

For Love and For Justice / Part 106 / Zabeth and Paul Bayne

Dr. John Plunkett on the Stand

On Monday morning I was fortunate to arrive early enough to meet Dr. John Plunkett who was called as a witness for Paul and Zabeth Bayne’s appeal. Baynes’ Attorney, Mr. Doug Christie, led Plunkett through the citation of his certifications and credentials in an effort to qualify him to testify in this court. MCFD lawyer Finn Jensen had opportunity to ask questions pertaining to these qualifications and twice referred to Plunkett as a ‘pathologist for hire.’ Plunkett informed Jensen that the majority of cases for which he testifies are pro bono, so Jensen inquired whether he could be called a ‘consultant for hire’, to which Plunkett said yes.

Plunkett retired five years ago in 2005 from a career as a forensic and general pathologist. He has been called to testify in over 100 cases in which SBS is an issue, on average about a dozen times per year. In most of the cases he testifies for the defence because over a period of recent years he has become convinced that infant head injury with respect to head trauma has been misunderstood and he has sought to educate himself as well as others. He was here today to express reasons why Shaken Baby Syndrome is an increasingly controversial area of diagnosis. Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis based solely on the presence of a diagnostic triad: retinal bleeding, bleeding in the protective layer of the brain, and brain swelling. Much scientific research in recent years has cast mounting doubt on the forensic significance of this triad, thereby undermining the foundations of thousands of SBS custody and criminal cases and convictions. In several countries this scientific evolution has prompted systemic reevaluations of the prosecutorial paradigm. Most recently, after a seventeen-month investigation costing $8.3 million in Ontario a commission, The Goudge Inquiry, recommended that all SBS cases be reviewed. Plunkett conveyed that he is among a growing group of experienced professionals, pathologists and mechanical engineers and even physicians who present alternative diagnoses to SBS. He spoke to the definition of subdural hematoma and differential diagnoses for the signs and symptoms that too frequently in his opinion result in an SBS diagnosis.

He expressed that Bethany Bayne’s medical reports and film work provided evidence that she had chronic subdural hematoma, that is evidence of trauma, blood vessel damage and bleeding as long as three weeks before admission at Vancouver Children’s Hospital. It surprised him that a CT scan had not been ordered for her at any of the prior examinations in three area hospitals as the Baynes made six visits to healthcare facilities to discover what was wrong with her. Her condition should have been determined earlier because the signs were significant. In his estimation the only explanation was that she had an event three weeks earlier which fit the subdural bleeding and that there was no other evidence of any other attributable cause. The event which the Baynes reported of one child impacting the other accidentally three weeks before VCH saw her was consistent with the film work and reports. In his estimation shaking could not possibly produce this subdural hematoma. There was structural brain damage which caused the subdural hematoma and shaking could not affect this. He adamantly feels that a physician should never decide whether an injury is accidentally or non accidentally caused. Further, his conviction is that before submitting a report that may be the primary focus for a child custody or criminal investigation, a physician should consult with biomechanical engineers.

The reports of at least ten medical experts who agree with Dr. Plunkett's assessment are available for you to read at a site dedicated to the Bayne Plea. These were presented on Monday in court. (access them by clicking the link in the underlined sentence.)

A group of about twenty supporters of the Baynes silently and lawfully stood with signs outside the Court House yesterday, asking for children to be returned.

For Love and For Justice / Part 104 / Zabeth and Paul Bayne

A Report from Friday’s Court Session February 5, 2010 with Randall Alexander in the witness box.

Randall Alexander – A primary witness for the Ministry of Children and Family Development.

Proviso: Lawyer Doug Christie's questions to discredit the specific testimony of Randall Alexander in the Bayne case and my blog post here should NOT be interpreted as disapproval of efforts to prevent shaken baby and prosecution of criminal abuse of children.

This will have cost MCFD thousands of dollars. It would be different if 'Jason' Alexander had flown in from California. Remember ‘George Costanza’ from Seinfeld fame? At least then you could laugh. Instead, on Friday, directly from Florida, 'Randall' Alexander took the witness box to provide testimony for the Ministry of Children and Family Development. What he says is not a laughing matter. He is not humorous. It is the stuff of nightmares. For caregivers, falsely accused, his name on the roster of witnesses is always disquieting.

Doug Christie began to cross examine him as soon as possible. Alexander’s credentials were touted by MCFD lawyer Finn Jensen to bolster his credibility as a witness with expertise in determining whether shaken baby abuse had occurred with the Bayne child. His expertise has been accepted before in countless cases and on the basis of his testimony people have been found guilty of a variety of offenses. Many people are in prison today and many children are in foster care on the strength of his testimony. Christie’s dissection of Alexander’s credibility began with reference to a media account of a case in which a father was found guilty of murdering his six month old daughter and he was sentenced to life in prison. An Appeals Court judge found Dr. Alexander’s conduct shocking and prejudicial and his testimony was discarded and the defendant given a reduced sentence.

In a another case in which Alexander gave testimony against the defendant, the father was initially found guilty but the sentence was reversed and the defendant exonerated. Christie referenced yet another case in which the court deemed that Alexander allegedly acted in an inappropriate manner and in a short while on Friday the infallibility of this expert was being diminished. (all public information) I wish that this citation of questionable testimonies would make more cautious, the hundreds of child protection workers, pediatricians, police agencies and prosecution lawyers, who have confidence in and continue to rely on Alexander’s opinion about one theoretical diagnosis. Alexander is a Director for the National Center for Shaken Baby which occupies a this Utah office complex.
For Alexander, every child exhibiting the triad* of symptoms is a shaken baby. Dr. Alexander has never testified for the defense in a case and his CV indicates that he trains pediatricians, RCMP, judges, prosecutors and social workers to convict shaken baby perpetrators. He does not train defense lawyers. (*see tomorrow's blog post for the triad details)

With specific reference to the Bayne case, here is what we learned on Friday. Dr. Alexander admitted that he had seen the film work for Bethany’s injuries only the day before he took the stand yet he had written his report on the case a significant amount of time earlier. Dr. Alexander’s report was one page and a few lines in length. Christie ascertained that the cited sources for Alexander's decision was information from Dr. Colboune at BC Children's Hospital, a history of the case provided to him by the prosecution and some of the Bayne's experts' reports. There was no indication in the witness'report that he had seen or read the hospital reports from Matsqui, Chilliwack and Fraser Canyon Hospitals where Bethany was also examined in the days prior to admission at Vancouver Children’s Hospital. Under Christie's questioning, Alexander acknowledged that he had not read Bethany’s birth records where the severe prematurity factor should have been considered for a prudent rather than default assessment of cause for the symptoms observed. He also did not read all of the ten reports by other experts who, like him had examined Bethany’s medical data but rendered opinions that pointed to other causes and discounted shaken baby syndrome. He admitted upon questioning that he came to this moment of testimony, not knowing that the accidental fall of one child upon Bethany had been witnessed, or how heavy the falling child was or the speed at which the falling boy impacted the infant girl or the type of floor she was lying on, or what kind of physical reaction Bethany had at the time of the accident or that during the three weeks following the accident she had fits of vomiting, and therefore Christie submitted to court that Alexander had written his report based on incomplete medical history.

Christie's submission was noteworthy because in spite of the absence of information and preparedness, Alexander was claiming to be an expert who could render an opinion in this case that should help to prove that Bethany was a shaken baby and that Paul and Zabeth are abusers and that they do not deserve to have children in their home.

Christie introduced to court a damaging video as the last exhibit of the day. In this video Alexander is giving testimony in court in another shaken baby case while holding a doll in his hands to demonstrate the effect that shaking a baby would actually have. In this case the neck collapsed and the doll’s head fell off. Noticeably uncomfortable he fumbled with the doll’s head to reattach it to the body. This exhibit displayed the content and delivery of testimony which Alexander customarily provides for the prosecution at the expense of grieving and suffering families.

The payment that MCFD approved for Alexander's testimony, his flight and his accommodation was covered by all of us in British Columbia. At a great disadvantage are parents like the Baynes who are typically without the resources to bring medical professionals who would like to help. But wait for Tuesday's report of Monday's scheduled witness for the Baynes.