Parents

Shaken Baby Syndrome

Shaken Baby Syndrome

The unlawful death of a child is always a deeply traumatic act and one that shakes any society to its core. For some parents, it represents not only a deeply personal and tragic loss but the beginning of a nightmare.

The reality in most murder and manslaughter cases is that the perpetrator is known, and close to the victim. Investigators will, therefore, look closely at the parents when a child dies, an approach which for a grieving parent can only add to the pain that they are suffering. We cannot lose sight of the fact that people facing these allegations are still in a state of profound shock and grief.

Experts will be brought on board very quickly to establish a cause of death, and in some cases, this will be stated to be from non-accidental injury (NAI) and caused by excessive shaking, often of such force that it is described as being the equivalent of a car-crash.

An allegation of shaking is often based on the presence of three things (the 'triad of injuries'):

• Swelling of the brain;

• Retinal bleeding; and 

• Blood in the dura (an area between the brain and skull).

The presence of these injuries, as proof of violent shaking, can be found mainly in medical literature emanating from the United States  as early as the 1940s.

The research findings went largely unchallenged until 2001 when Dr Jennian Geddes published a paper that offered up alternative explanations for the medical results. In later years other experts would revisit this area of medicine, and they too argue that other factors may be in play.

Experts who have challenged the conventional interpretation of the 'triad' have often paid a hefty price.

Dr Waney Squier, a well-known expert in this area, who has acted in a great many cases, was struck off by the General Medical Council (Medical Practitioners' Tribunal) following a prolonged campaign to discredit her.

However, the GMC finding was reversed by the High Court in November 2016 (Squier v General Medical Council [2016] EWHC 2739 (Admin)).

The science in this area is still in a state of flux, and from a criminal law perspective that is a critical issue as cases must be proved to a standard so that the jury can be sure of the defendant's guilt.

How can I assist?

This area of law is complex. The highest quality criminal defence work requires not only an understanding of the law in this area, but of other related areas, such as medicine - and a refusal to automatically accept apparently 'conclusive' expert opinions. By quickly identifying the pertinent issues I will pull together a top team of advocates and experts with an intimate knowledge of this complex area.

Examples of ‘baby shaking’ cases I have been involved with can be found here.  

For a confidential and private consultation, please contact me on 07766001774 or email me via contact@crimelawyer.co.uk.

 

Misbehaving children - Can I hit my child?

Can I hit my child?

This is a topical post that relates to the recent consultation in Wales, proposing to criminalise all hitting of children - stopping parents from punishing their children by smacking them.

Laws that criminalise unlawful violence date back to 1861 and are used every day in
Criminal Courts to support prosecutions.

Despite what might appear to be an obvious legal position, the question is often asked as to whether it is in fact permissible to 'smack' a child.

The simple answer is that it is lawful to chastise a child by smacking, although the extent of that provision needs explaining in more detail below.

Perhaps surprising to many is the fact that the UK is only one of two places in the European Union that permits this state of affairs (the other being the Czech Republic).

This week the devolved government in Wales launched a 12-week consultation, with proposals to outlaw all smacking of children.

The minister for children and social care said:

“Our knowledge of what children need to grow and thrive has developed considerably over the last 20 years. We now know that physical punishment can have negative long-term impacts on a child’s life chances and we also know it is an ineffective punishment.

While physically punishing children was accepted as normal practice in previous generations, we know that it is increasingly being seen as less acceptable and parents feel less comfortable.

We want parents in Wales to be confident in managing their children’s behaviour without feeling they must resort to physical punishment. If there is any potential risk of harm to a child, then it is our obligation as a government to take action. Legislation was introduced many years ago to stop physical punishment in schools and childcare settings – now is the time to ensure it is no longer acceptable anywhere.”

The move in Wales follows similar developments in Scotland last October, which resulted in the children's commissioners of Scotland, England, Wales and Northern Ireland calling for a ban on smacking children.

Attitudes to parenting practices have also changed. While physically punishing children was accepted as normal practice in previous generations, research shows parents today are increasingly using positive approaches which are proven to be more effective, while feeling less comfortable about using physical punishment.  In 1998, for example, 88% of British adults agreed that “it is sometimes necessary to smack a naughty child”, while in 2015 only 24% of parents in Wales supported this statement.

Despite this shift in attitude, at the moment there are no plans to change the law as it applies in England.

What does the law allow?

The law allows an assault on a child provided that it constitutes 'reasonable punishment'.

Section 58 Children Act 2004 states however that this defence cannot apply to the more serious charges of violence such as assault occasioning actual bodily harm (ABH), or above.

What is 'reasonable punishment'?

The concept of ‘reasonable punishment’ has its origins in Victorian times. The case that established the legally accepted definition was R v Hopley (1860).

In this case, a boy was beaten by a schoolmaster with the permission from the child’s father, which led to the death of the child.

During the trial, the presiding judge, Chief Justice Cockburn, stated that: 

“A parent or a schoolmaster, who for this purpose represents the parent and has the parental authority delegated to him, may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable.”  

This case established in law reasonable punishment as a defence for those parents, carers or other responsible adults - such as teachers - who were charged with the criminal offence of assault on children.

The use of corporal punishment was commonplace in schools until the 1980s.  From 1986, however, the UK Parliament increasingly restricted the use of corporal punishment, prohibiting it in all state maintained schools in 1987 and in independent schools in 1999. Its use was ended in children’s homes in 2001, Local Authority foster care in 2002 and in childcare provision in 2007. 

The question of whether the punishment is 'moderate and reasonable' will be for a court to decide on the facts of any individual case.

It is fair to say, however, that any punishment that results in more than transient or trifling injury (leaves a mark or bruise, for example), is likely to fall outside of this defence. It is therefore important than parents find other mechanisms to deal with children who might at times be very challenging.

Contact me on +44(0)7766001774 or email me (contact@crimelawyer.co.uk) concerning any criminal law enquiry.  I will be able to guide you through any criminal allegation, working with you to achieve the best possible outcome.