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  One's a tragedy... Three is Murder April 6, 2008  Watch our report hereReporter: Ross Coulthart Producer: Nick Farrow Imagine being accused of killing two of your own children and of attempting to murder your only surviving child. You protest your innocence. There is no hard evidence you did anything. But the experts say the more you deny your crime the more you fit the profile. That's what happened ten years ago to a Sydney mother we are calling Kathy. She lost three children from various illnesses while they were babies or toddlers. When her fourth and only surviving child, a daughter whom we will call Eve, got sick almost exactly a decade ago Kathy immediately came under suspicion. Within weeks of her admission to Westmead Hospital, Eve was taken off her mother and put in the care of child protection authorities. The evidence used to justify taking Eve into care was based largely on the now discredited theory coined by British expert Sir Roy Meadow – that of Munchausen Syndrome by Proxy. It's based on the notion that some mothers deliberately harm their kids – faking their illnesses in order to bring attention and benefit to themselves. The so-called Meadow's law said "one sudden infant death is a tragedy, two is suspicious and three is murder, until proved otherwise." In 1998, Kathy was accused of deliberately infecting Eve with saliva or dirty water, causing multiple abscesses on her body. No-one had ever seen her do this but the experts claimed this was the only plausible explanation for her daughter’s mysterious illness. Five years after Eve was taken from her, Kathy was criminally charged with attempting to murder her daughter. Then late last year, after lengthy court hearings, the Crown dramatically withdrew its criminal case against her. To Kathy, the decision to drop all charges against her was her vindication. She believes that even though the Crown did not claim she was a MSBP mother in the criminal brief, the views of Sir Roy Meadow and other 'experts' contaminated her chances of a fair trial. She now wants Eve back. However, while she has been denied all but a few closely supervised meetings with daughter every year, she has now been told that DOCS does not accept a Supreme Court judgment that led to the abandonment of the criminal case last year negates their view that she probably tried to kill her daughter. DOCS has said it chooses to rely on the evidence given at the original custody hearings ten years ago. But what had changed between the time that evidence was given in the original custody hearings and the recent criminal charges against Kathy was the international attitude towards the so-called Munchausen Syndrome by Proxy. The evidence of the same British expert Sir Roy Meadow, which had been so crucial in the decision to take custody of Eve off Kathy, was dramatically found to be false in another now infamous case – the murder conviction of British solicitor and mother Sally Clark. As other cases based on Sir Roy’s evidence collapsed in UK courts, the MSBP diagnosis was largely abandoned and discredited in courts around the World. Today's story features an interview with the accused mother, Kathy. We hear also from her treating paediatrician Dr Paul Knight, who strongly supports Kathy’s protestations of her innocence. MSBP critic Dr Helen Hayward-Brown says what happened to Kathy has happened to other Australian mothers. She says that the evidence of Sir Roy Meadow, although now seriously discredited, has formed the basis for the removal of other children than Eve from their mothers. She believes it is time for all child protection agencies across Australia to reinvestigate the basis for their original care and protection orders over numerous children where the controversial theory of MSBP was at the heart of claims of child abuse. SUNDAY first investigated the controversial theory of MSBP in 1999. A transcript of those stories can be viewed here: The first was a Granada UK TV special showing covertly obtained pictures of mothers deliberately harming their children in British hospitals – powerful and very dramatic evidence that some mothers do deliberately harm their children as alleged: What is Munchausen Syndrome by Proxy? July 11, 1999 But, as Ross Coulthart revealed in an investigation later that same year, there were growing concerns even back then that the understandable moral panic about child abuse was causing some experts to leap to judgment too quickly. A transcript of his story can be viewed at: No Justice For Accused Mothers October 24, 1999 This weekend's Weekend Australian magazine also features a major story by Mark Whittaker on Kathy’s case. A full working week prior to broadcast, SUNDAY put detailed questions to NSW Department of Community Services. Response from the NSW Department of Community Services It is important to note that the NSW Department of Community Services (DoCS) was never a party to the criminal prosecution (subsequently withdrawn), which was undertaken by the Office of the DPP. DoCS was a party to the Children's Court and District Court proceedings in relation to the ongoing care arrangements for a young person. It is also important to understand the difference between the criminal and civil or care jurisdictions, and the different standards of evidence/proof that are required. The initial decision of the Children's Court was not based upon any evidence from Professor Meadow, and his evidence was simply one small part amongst evidence from many experts in the subsequent District Court matter. Whether a child is in need of care and protection should always be determined on the basis of all information that is held concerning the individual child and should address the needs of that child. Both the Children's Court and District Court heard the alternative explanation for the children's illnesses (later suggested by Professor Blackwell in the criminal proceedings) and concluded, after hearing all the evidence led at that time, that it was more likely than not that none of the children were immunocompromised at the time of their respective illnesses. Specific answers to your questions are provided below. 1. On what evidence does DOCS believe Kathy is a threat to her surviving child Eve? Any questions about risk of harm were previously determined by the Children's Court – who decided the child should be placed in care - and District Court. The current concerns are primarily about the welfare and well-being of this child who has not lived with her mother for the past 9-10 years and what is currently in her best interests. DoCS is presently assessing whether more contact with her mother and a reduction of supervision can occur. The child’s health has improved significantly since she has been in care. 2. Why does the Department believe that the Supreme Court decision should not place in doubt any of the findings of the Children’s Court and District Court on appeal concerning the alleged abuse? The issues dealt with in the Supreme Court were in relation to specific criminal charges of attempted murder. In criminal matters evidence is assessed according to the criminal standard of proof of beyond reasonable doubt, and on evidence that is required to meet strict rules of evidence. In the care proceedings before the Children's Court and District Court, the issues before the court were much broader (being about possible abuse and risk of further abuse) and the evidence these courts were able to consider was also much broader. This is because, in care proceedings, the standard of proof is much lower than the criminal standard (ie the court can weigh up alternative explanations for what happened and determine which is the most likely to be true) and also courts in care matters are not bound by the strict rules of evidence but can consider other evidence that might not be admissible in criminal proceedings. While the decisions of the District Court and Children's Court remain unaffected by the Supreme Court decision, the Supreme Court decision will be taken into account in future deliberations. 3. If the Department genuinely believes that Kathy is still a case of MSBP then why did it not plead MSBP in the criminal hearing, instead asserting factitious disorder? The criminal proceedings were prosecuted by the ODPP not the Department of Community Services. DoCS played no role in the criminal proceedings and was never a party to them. The Department cannot comment on proceedings in which it had no involvement. 4. Why should the public not conclude that DOCS is maintaining Kathy is an abusive mother because to give her custody now would be to admit the evidence in the original custody hearings was flawed? To draw such a conclusion would be to misunderstand the nature of child protection as well as the difference between a criminal prosecution and care proceedings. It also fails to recognise that the central issue for DoCS must be the needs of the child. The criminal proceedings were on much narrower issues and conducted according to strict rules of evidence assessed at a much higher standard of proof. The care proceedings considered not only much broader issues and a broader range of evidence, but also looked at issues of present and future risk to the child as well as how her immediate and long-term needs might be addressed, none of which are considerations in criminal proceedings that look solely at past events. Any decisions of the Court to restore parental responsibility for the child to her mother must also take into account the child’s present and future needs as well as the mother’s present circumstances, not just what occurred when the child was last in her mother’s care. 5. Any reading of the original evidence given in the Children’s Court and District Court shows that the now discredited theory of MSBP (and the evidence of Sir Roy Meadow in the District Court hearing) was a substantial basis for the decision to remove Eve from her mother - Does DOCS dispute this and, if so, why? The evidence before the courts in the care proceedings consisted of a substantial amount of factual material as well as expert evidence. It should be noted that the evidence included reports from a number of paediatric clinicians and experts, most of whom treated the child and/or her siblings and based their evidence on their direct experience with these children. It should also be noted in particular that the initial decision of the Children's Court was not based upon any evidence from Professor Meadow as he did not give evidence in the Children’s Court, only in the District Court. These courts did consider the alternative explanations put forward by the mother as to what occurred. Neither DoCS, nor anyone else, can at this point in time assert what weight the Court gave to individual pieces of evidence unless this is clearly stated in a judgement. It is not stated in the judgements that the evidence of Professor Meadow was the substantial basis for both decisions – especially because, as previously noted, the evidence of Professor Meadow was not before the Children’s Court. All that can be stated with certainty is that the specialist Children's Court and, then the District Court (where there was the opportunity to introduce new evidence), considered all of the material placed before the Courts and on the basis of that material concluded that it was more likely than not that the child was abused and at risk of further abuse. 6. Has DOCS told Eve that her mother Kathy tried to kill or hurt her? No. She has received age appropriate information in relation to why she is in foster care, as do all children and young people in care. This information was provided to her by the child's psychologist. The decision regarding specifically what information is provided and at which stage that information is provided is a matter for case management and assessment by the child’s psychologist. She was told that when she was placed in care she was sick and had been getting sicker. On being placed with carers she began to recover and has since remained healthy. The details of what has been said are not something that can, or should, be disclosed in response to a media inquiry, but DoCS can confirm that this child has not been told by DoCS that her mother tried to kill or hurt her. 7. If so, then on what evidence has DoCS made this assertion? See above. 8. If not, then what did DOCS mean when it told Kathy’s lawyers in March 2005 that a "skilled therapist has been engaged to explain to Eve, when appropriate and in age-appropriate language and concepts, why her mother is not able to care for her." See above. 9. Does DOCS still stand by the evidence of its expert Sir Roy Meadow that Kathy is a case of MSBP? The report from Prof Meadow formed only a small part of a comprehensive brief of evidence from experts from a variety of disciplines including microbiology, immunology, child protection, genetics and paediatrics who treated or considered this child and her siblings. This evidence was put before the courts and upheld both at first instance and on appeal. All courts that have considered all of this evidence have stated that this child was in need of care and protection that it was unsafe for her to return to her mother's care. This conclusion did not depend on whether the mother’s actions could be explained using theories about MSBP. 10. Does DOCS also believe, as Sir Roy asserted in the District Court hearing, that one of the indicators of MSBP is "denial of knowledge by the perpetrator as to the etiology of the child's illness"? DoCS does not have any view on what are the indicators of MSBP but relies upon the best available evidence as to whether and why the child is in need of care and protection. As previously stated, the determination by the District Court was on the basis of a comprehensive brief of evidence of which Prof Meadow’ evidence formed only a small part. The determination did not turn on whether or not the mother's behaviours could be classified as MSBP but upon whether the child was in need of care and protection. Also, as previously stated, in the original care proceedings before the Children's Court Prof Meadow did not give evidence. The task for DoCS at all times has been to protect the child taking into account both past harm or abuse and her present and future needs and best interests. 11. Why should denial of abuse be evidence, as DOCS 'expert' apparently believes? Firstly, at the time of these matters before the Children's and District Courts, there was no suggestion that Professor Meadow was neither an expert nor an appropriate expert to give evidence. Secondly, irrespective of any comments on MSBP, denial of abuse can be significant when assessing future risk to the child. For example denial of abuse, in the face of overwhelming evidence to the contrary, can be an important factor in determining the risk of further abuse if the child were returned to the person's care. If a person has abused a child but does not recognise or acknowledge this, then it is highly likely that the person, when presented with the same or similar circumstances in the future, will repeat those same abusive behaviours. This is a relevant factor in all situations of abuse - no matter how the child has been harmed. 12. Why should the public not conclude, as have most jurisdictions internationally, that MSBP is in fact an unhelpful profiling tool which detracts from a proper consideration of the evidence? As previously stated, the determination by the District Court was on the basis of a comprehensive brief of evidence of which Prof Meadow' evidence formed only a small part. The determination did not turn on whether or not the mother’s behaviours could be classified as MSBP and therefore any doubts the medical profession has held, or may continue to hold, about Prof Meadow’ theory as a profiling tool does not detract in any significant way from the other evidence led in this case. DoCS does not support the use of any profiling tool as the sole determinant of whether a child is in need of care and protection. Whether a child is in need of care and protection should always be determined on the basis of all information that is held concerning the individual child and should address the needs of that child. 13. Does DOCS reject the evidence of the Defence microbiologist witness Professor Caroline Blackwell which highlighted serious shortcomings in the Crown evidence against Kathy? DoCS has not needed to consider the evidence of Professor Blackwell whose report was provided as part of the criminal proceedings in which DoCS was not involved. DoCS understands that Professor Blackwell, who is not a paediatric clinician (which may or may not be relevant to care decisions), provided a report for the criminal charges against this mother. While DoCS was not involved in the criminal proceedings DoCS understands that Professor Blackwell was not cross-examined in the criminal proceedings. DoCS further understands that she posed an alternative hypothesis which was not tested in the court. Again it should be noted that in criminal proceedings the existence of a possible alternative explanation is sufficient to defeat a prosecution, whereas in civil proceedings such as care proceedings the court has the opportunity to consider all the various alternative explanations and come to some conclusion about which is the more likely explanation having regard to the facts of the case. In the care proceedings in this particular case both the Children's Court and the District Court heard evidence from both DoCS and the mother about various explanations of what had occurred and concluded that it was more likely than not that the child had been abused. 13. Is DOCS aware that Professor Blackwell was involved in highlighting similar failings in the Crown evidence in the Sally Clark case which led to Ms Clark’s subsequent exoneration? DoCS was not a party to any criminal or other proceedings involving Ms Clark and therefore cannot comment on the medical or other evidence led by the prosecution upon which Prof Blackwell commented on, nor any similarities that evidence might have to the NSW proceedings. Such comparisons are unhelpful in any event because Ms Clark's proceedings were criminal proceedings and, as previously stated, there are significant differences between criminal proceedings and care proceedings as to the issues before the court and the examination of those issues. 14. In particular, what is DOCS' response to Professor Blackwell's expert evidence that the Crown evidence asserting that septic shock episodes suffered by Eve were the result of injections of saliva or dirty water was not backed up by the laboratory results? DoCS was not a party to the criminal proceedings and no Court has made a finding on Prof Blackwell’s evidence in relation to this child. As stated previously, it has not been necessary for DoCS to separately consider this matter. 15. DOCS contended that there was nothing to explain the septic shock episodes other than Kathy's abuse but Professor Blackwell's report suggests there was an explanation - virdians streptoccoccal septic shock, which occurs in immunocompromised patients. What is DOCS'response to this evidence? This alternative explanation was in fact considered by the medical experts in the care proceedings, however the expert evidence led at that time concluded that this did not sufficiently explain the illnesses suffered by the child. The courts, after hearing all the evidence led at that time, came to a similar view. 16. DOCS also asserted the deaths of two other of Kathy's children were similar coincidences which ought to be allowed in as evidence against Kathy. The Defence clearly proved to the Court that these deaths were probably not coincidences and that (as Prof Blackwell stated) the "common factor among the three children is not hard evidence of alleged innoculation of foreign material but laboratory-confirmed evidence of low levels of IgG...the affront to common sense is the application of the label factitious illness to circumstances for which reasonable alternative explanations can be provided and for which the evidence for this poorly defined 'syndrome' is less than robust". What is the Department’s response to this evidence? DoCS again notes that in criminal proceedings the defence merely needed to show that an alternative explanation exists in order to defeat criminal charges, not that the alternative explanation is the one most likely to be true. DoCS further understands that the criminal court did not need to make a finding as to whether Prof Blackwell’s evidence was to be preferred. The alternative explanation being suggested by Prof Blackwell in the criminal proceedings was in fact considered by both the Children's Court and the District Court in the care proceedings and the courts concluded, after hearing all the evidence led at that time, that it was more likely than not that none of the children were immunocompromised at the time of their respective illnesses. 17. As the DOCS justification for removing Eve from her mother included this alleged evidence of earlier abuse of Kathy's deceased children, why is the Supreme Court's rejection of that evidence not highly relevant to the issue of Kathy's custody of her daughter? The current concerns are primarily about the welfare and well-being of this child who has not lived with her mother for the past 9-10 years and what is currently in her best interests. DoCS is presently assessing whether more contact with her mother and a reduction of supervision can occur. Apart from this primary consideration, and as stated previously, even where evidence is rejected by a criminal court, this does not mean that the evidence should also be rejected in care proceedings where the issues are broader and the court is able to consider which of a number of competing explanations is most likely to be true, having regard to a wider range of facts and expert opinion than is admissible in criminal proceedings. In care proceedings the standard of proof is not as high and the court is not bound by the same strict rules of evidence as apply in criminal proceedings. 18. What is DOCS' response to the evidence of Flinders University immunologist Professor Peter McDonald that Eve’s illness can be fully explained without invoking a diagnosis of MSBP? A similar theory to what DoCS understands was advanced by Professor McDonald was postulated in evidence in 1999 and rejected by the District Court. However DoCS would reiterate that the evidence from Prof Meadow formed only a small part of a comprehensive brief of evidence from experts from a variety of disciplines including microbiology, immunology, child protection, genetics and paediatrics who treated this child and her siblings. 19. Will DOCS consider a review of Kathy's case and of all other cases in NSW which have relied on an MSBP diagnosis and/or the evidence of now discredited UK expert Sir Roy Meadow? DoCS is presently assessing whether more contact with her mother and a reduction of supervision can occur. This is not a review of the mother's case but rather a review of the needs of the child. These reviews are required to occur regularly and will also occur whenever there has been a significant change in the circumstances of the child that justify a further review. As the initial concerns for the care and protection of this child were not solely, or predominantly, dependent upon the evidence of Prof Meadow any current views of his previous evidence will not, by itself, justify a review. If not, why not? See above. 20. What is DOCS' response to the concerns raised by Kathy that she was sent a confidential progress report on a child in DOCS' care XXXX. AKA X? The report was written by XXXX, a psychologist in Penrith and includes an invoice from Ms XXXX to XXXX, Manager XXXX at Hawkesbury CSC. It was sent by Ms XXXX in email to Mr XXXX on 22 February at 3.14pm and somehow ended up in the email of Kathy XXXX. [We have deleted the names for privacy reasons] A report and an invoice were emailed to the mother in error. The relevant officer in DoCS was unaware of having made this error until DoCS was advised on 1/04/08 by the Sunday program. It is disappointing that the individual who received the email in error did not make this known at the time. Nonetheless, the error is sincerely regretted and DoCS apologises unreservedly to all people involved. 21. This is not the first occasion in recent months that DOCS appears to have inadvertently sent private documents pertaining to children under its care to unauthorised persons, let alone to a person whom it accuses of child abuse. Why should the public not conclude from this that there are serious management issues inside DOCS? This was an unfortunate case of human error, against which there are very few safeguards. DoCS has recently issued a reminder to all staff statewide about the importance of following procedures to ensure confidential information is not provided to the wrong person. The DoCS office involved has also put in place additional strategies to prevent this reoccurring. It is also incorrect to suggest that DoCS accuses this mother of currently abusing children. |
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