A call for justice for families wrongly accused in baby adoption scandal?

Publication date: 3 March 2004

3rd March 2004

Bozena Michalowska-Howells

The recent judgment overturning the conviction of Angela Cannings, has thrown light into a dark corner of the British legal system.

Angela Cannings was convicted of killing her 3 children on the basis of Professor Roy Meadow’s now discredited theory of Munchausen Syndrome by Proxy (MSbP). The theory espouses that some mothers harm their children to draw attention to themselves. The Court of Appeal’s decision in her case has opened the door for the review of 258 cases of child deaths where the parents were convicted of killing their babies. If found that those parents were wrongly convicted and imprisoned, they would be rightly entitled to compensation under section 113 of the Criminal Justice Act for their wrongful imprisonment and the additional tragedy of being falsely accused of murdering their children.

But little has been said of the position of the parents of the estimated 5000 British children that have been taken into care or adopted over the past 15 years because of allegations that parents suffered from MSbP. In the case of those parents whose children were forcibly adopted and contact severed, a life sentence has also been imposed on them.

The Solicitor General Harriet Harmen MP highlighted this issue in a statement to Parliament last month:

"We will make sure that we recognise that not only injustices done in the

criminal justice system but any potential injustices in care proceedings are identified and acted on. We bear in mind the absolute, utmost gravity and seriousness of those whose injustice is not in the hands of the criminal justice system but as a result of the family justice system"

Margaret Hodge MP Minister for Children stated however that it is unlikely that adoption orders will be reversed.

“If a miscarriage of justice was made 10 or 15 years ago what is in the child’s interests now? If the adoption order was made on the basis of Meadow’s evidence and that was over 10 years ago, what is in the real interest of the child?”

Margaret Hodge’s office is looking into whether or not the 5000 cases should be reviewed. Mrs Hodge made clear that whatever she decided, those families who thought they had been wronged could go back to the family courts. The family courts however, have been too willing to accept the evidence of experts espousing MSPB without being fully abreast of the scientific issues. In failing to allow proper examination of the expert evidence, the family courts have failed those parents and their children and permitted the perpetration of terrible miscarriages of justice.

In 1987 the Butler Sloss’ report following the Cleveland child abuse scandals, of which the present fiasco is frighteningly reminiscent, warned of excessive reliance on experts' opinion by local authorities and social services departments without sufficient corroborative evidence. It stated that it is important that social workers should not act solely on the basis of medical diagnoses. A full investigation and social assessment should be carried out. Yet local authorities continue to blindly follow the dubious diagnostic techniques of experts such as Roy Meadow without looking for further corroborative evidence. They ignore existing or potential diagnoses such as Autism, Attention Deficit and Hyperactivity Disorder [ADHD] or fail to take into consideration other potential causes of an illness or death such as birth injury and adverse reactions to vaccines, or from medically prescribed drugs such as Cisapride which has been found to be a cause of cot death.

The social services’ over reliance on expert opinion has also given free reign to some medical experts to make, according to some parents, unfounded allegations of MSbP to push children into care so that tests can be carried out on them where the parents have refused consent because they believed the tests may not have been in the best interests of the child.

It is of great concern that lessons learned from the Cleveland, Rochdale and Orkney scandals have been completely ignored.

In light of the Butler Sloss recommendations, it is vital that those cases where the child has been put into care or adopted on the basis of an allegation that the parent suffered from MSbP are revisited. The parents should be given the chance to clear their names and be reunited with their children. A mechanism should be put in place to achieve this without further delay.

In light of the comments made by Harriet Harman and Margaret Hodge, if those 5000 cases are not reviewed or a public enquiry held there would be a very strong case for a decision not to do so, to be judicially reviewed.

In addition to making all attempts to reunite a family, the courts must also recognise the devastating effect forced separation of parent and child will have on the development of the child and the tremendous and debilitating grief and anxiety it will cause to the parents. Far from suffering from MSbP parents are often diagnosed as suffering from PTSD Post Traumatic Stress Disorder as a result of the allegations made.

Compensation should therefore be due to both parent and child for the actual harm and loss they have suffered. But as the law stands at present, a parent cannot bring the medical expert or local authority to account in negligence, for the stress and anxiety caused by indiscriminate allegations of MSbP and a draconian and disproportionate child care policy followed.

However in the recent Court of Appeal decision in D v .East Berkshire Community Health Trust (2003) an NHS Trust wrongfully accused a parent of having MSbP which caused both mother and child psychological harm. The court acknowledged that NHS trusts and local authorities owe a duty of care to the child, but would not acknowledge a duty of care to the parent .

The court concluded that

“It will always be in the parents’ interests that the child should not be removed thus the child’s interests are in potential conflict with the interests of the parents. In view of this it was considered that there are cogent reasons of public policy for concluding that where child care decisions have been taken no common law duty of care should be owed to the parents”.

The case is being appealed to the House of Lords.

If the UK courts will not recognise the rights of the parent, the European Court of Human Rights ( ECHR) will.

Leigh Day & Co took the case of P,C &S –v- United Kingdom to the ECHR. In that case a mother (P), residing in America had two children A and B. B became the subject of custody proceedings between P and her estranged husband. During that time the mother was charged with having administered laxative inappropriately. An order was made for monitored contact on condition that P underwent psychiatric treatment, which she duly did.

The mother then came to the UK where she remarried C (a qualified social worker with a doctorate concerning women wrongly accused of being Münchausen Syndrome by Proxy abusers) and became pregnant. Rochdale social services were notified of her extant conviction and the social services department immediately became involved with the view to taking the child into care once born.

On the day their daughter S was born, an emergency child protection order was issued. Rochdale Metropolitan Borough Council then applied for a care order under the Children Act 1989. In the meantime, P and C, who were allowed supervised contact with S, developed an excellent relationship with her, according to the supervising officials. However, even though P and C’s treatment of S during contact sessions had been exemplary, the social services department insisted that P had a personality disorder and since C would not accept the diagnosis of MSbP S’s moral or physical health would therefore be endangered if left with her parents. The Rochdale Social Services department failed to take into consideration other alternatives to adoption and discounted the pleas of the paternal grandparents to allow S to live with them. An order was made freeing S for adoption. Leave to appeal was refused and S was adopted on 27 March 2000. The adoption order made no provision for future direct contact between S and her parents.

The ECHR found that there had been a breach by the UK of the parent’s rights under article 8; the right to respect for private and family life home and correspondence:

“it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parent and the child as well as the possible alternatives to taking the child into public care were carried out prior to implementation of a care measure. The taking into care of a child should normally be regarded as a temporary measure to be discontinued as soon as the circumstances permit. The measure of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent with the child. In this regard a fair balance has to be struck between the interests of the child remaining in care and those of the parent in being reunited with the child.”

The ECHR awarded damages of 12000 euros to each parent in respect of loss of opportunity.

Where it can be shown that an NHS trust or local authority has ridden rough shod over the interests and rights of the parents, as many parents argue, those parents can find some redress in the Human Rights Act 1998 and the Strasbourg courts.

Therefore if the government does not fully address the injustices suffered at the hands of the family justice system, the government should prepare itself for a barrage of claims that British families’ human rights have been violated.

Bozena Michalowska Howells is a partner at Leigh Day & Co specialising in complex claims and group actions.

Countries: United Kingdom