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to be prosecuted for harming her children, it is not enough to put a under a welter of legal arguments and posturing. Care courts, he label on it; facts are required to justify the case." This, according suggested, should be inquisitorial, aimed at establishing what has to Refshauge, is the normal situation in law. "By labelling the happened and what the outcome should be. woman in this way with munchausen syndrome by proxy or Pragnell said the Crown already has the sympathy of the Court factitious illness by proxy you are saying the woman is guilty, as and that magistrates won't risk a child's safety. "In this way the the label creates the guilt. The problem is that labelling is nota © Crown has the case almost won, even before entering the court. process for determining guilt; it is done in a very different way, Even if the court rules that a child can go home, even for a short with doctors, psychiatrists and social workers guessing. People are period, this is often ignored by child protection social workers." not convicted for having a syndrome or a particular behaviour; He noted that child protection is not a level playing field and is far they are convicted for the illegal acts that they do." from being just and fair. "This is why Meadow and Southall were Vicki Waye, senior law lecturer at Australia's Adelaide able to get away with many travesties of the truth for so many University and author of Evidence Handbook, also said the years and to completely manipulate the system." Brisbane decision is traditional law where evidence has to adhere Additionally, as Hayward-Brown stated, parents have limited to the facts of a case. "The evidence of witnesses had to be what finances and are often denied government legal aid and support— they observed and what was said. They could not call ita as opposed to the authorities, which appear to have unlimited syndrome or label it." Waye believes the decision will be highly funds to pursue these cases. It is unfortunate, she said, that many persuasive in other courts, but not binding. mothers have been falsely pursued by the authorities, when time Dr Gary Edmond, senior law lecturer at the University of New and finances could have been more productively used in South Wales, Australia, said it is dangerous to say that just protecting children who really are at risk of harm. because other people do something—in this case, harm their children—then "this mother" also did it. "The Appeal Court is Child protection agencies’ disregard for the law explaining that the prosecution must use facts rather than a vague In New South Wales, the child protection agency DOCS label like MSBP to prove its case. The Court seems to be saying (Department of Community Services) has confirmed it is that the term 'MSBP' adds very little, "precluded" by law from using is potentially prejudicial and should be allegations of munchausen syndrome avoided." He said the risk will not be . . by proxy as the basis for removal of a eliminated by the use of other MSBP Is frequently used In child. Yet it has been using MSBP similarly vague terms. care proceedings in the allegations for many years as the UK child care lawyer Sarah Harman central allegation in child protection thinks UK courts are making "political Children's Court where a proceedings. judgements" by not challenging AA Written statements to this author MSBP. "UK courts are not dealing decision rests on the degree of from DOCS, dated 10 and 24 with MSBP or factitious illness by probability and not necessarily September 2003, suggest that DOCS is roxy as the Queensland Appeal Court A in breach of its own legislation when it did. Our courte are still finding by the rules of evidence. states that the " Children and Young against mothers, even when the Persons (Care and Protection) Act medical evidence is unsafe." 1998 (Section 71, Subsection 2) pre- Earl Howe said MSBP underpinned cludes DOCS from taking any medical the Clark and Cannings cases as it was not possible to separate condition of a parent or carer into account when making a child Meadow's expert testimony, given that he was an acknowledged protection decision". The Director-General of DOCS, Dr Neil leading expert on MSBP. Further, Earl Howe noted that MSBP Shepherd, declined to be interviewed for this article. was a major plank of the prosecution's Clark case, while in the In medical child abuse cases, DOCS uses MSBP as the central Cannings case MSBP or a personality disorder led to her arrest. allegation against a mother to remove a child from its family and He said that statistics and inferences have often been used with place the child into care. DOCS makes no other substantive alle- the "MSBP profile" to "damn individuals" in the family courts gations against the mother. MSBP allegations are made by DOCS over the past few years. in removal warrants and affidavits to police and the Children's "Meadow and his theories are now in complete disrepute, and Court, and are the principal element of DOCS cases—despite the he has been publicly discredited," said Pragnell. aforementioned DOCS statements. DOCS generally only obtains The QCA decision was made in a criminal court, where guilt "expert advice" from one or two doctors with "expertise" in the must be established beyond reasonable doubt, but munchausen area of MSBP and fails to conduct its own investigations. syndrome by proxy is frequently used in care proceedings in the According to Pragnell, agencies such as DOCS and some Children's Court where a decision rests on the degree of doctors from child protection units at major public hospitals are probability and does not necessarily abide by the rules of evidence. showing scant regard for legal requirements. "This is causing This is the heart of the problem, according to Pragnell. In immense harm to the status of the medical profession and public NSW, in Children's Court care proceedings that involve MSBP, it _ trust in physicians, as relatives and friends of affected families are is up to the discretion of an individual magistrate to determine to alarmed and angered by the needless and unwarranted removal of what extent the rules of evidence should apply. Pragnell said that children and, in some cases, the imprisonment of innocent in care proceedings, "hearsay" evidence is admissible, while such mothers." evidence would be inadmissible in criminal matters. Therefore, in Earl Howe said he feels there is a sinister development care cases, the cards are heavily stacked against mothers when occurring in the UK, with MSBP being confined to the "dustbin" added to the balance-of-probability decision that these courts and doctors replacing it with the term "personality disorder". make. Pragnell considers that care proceedings should not be an "This has the same result as MSBP; it is a catch-all term to accuse adversarial contest, as the best interests of the child could be lost mothers." Sarah Harman agrees with Earl Howe that MSBP or under a welter of legal arguments and posturing. Care courts, he suggested, should be inquisitorial, aimed at establishing what has happened and what the outcome should be. Pragnell said the Crown already has the sympathy of the Court and that magistrates won't risk a child's safety. "In this way the Crown has the case almost won, even before entering the court. Even if the court rules that a child can go home, even for a short period, this is often ignored by child protection social workers." He noted that child protection is not a level playing field and is far from being just and fair. "This is why Meadow and Southall were able to get away with many travesties of the truth for so many years and to completely manipulate the system." Additionally, as Hayward-Brown stated, parents have limited finances and are often denied government legal aid and support— as opposed to the authorities, which appear to have unlimited funds to pursue these cases. It is unfortunate, she said, that many mothers have been falsely pursued by the authorities, when time and finances could have been more productively used in protecting children who really are at risk of harm. MSBP is frequently used in care proceedings in the _ Children's Court where a 40 = NEXUS www.nexusmagazine.com OCTOBER — NOVEMBER 2004