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Factitious Illness By Proxy - Where are we now?

Julia Macur QC reviews the use of terms such as 'factitious illness by proxy' at fact finding hearings in the light of recent cases.

Factitious Illness By Proxy - Where are we now?

Julia Macur, QC, St Ives Chambers

Development of the terminology
It was Professor, Sir Roy Meadow who coined the phrase 'Munchausen's Syndrome by Proxy' in the mid 1970's, in a report describing the fabrication or inducement of illness in two children by their respective mothers. It is a term which continues in existence albeit its usage appears to have been in decline for some years, particularly in the court arena. Whether the term will be extinguished completely following Professor, Sir Roy Meadow's 'discredited' evidence in the high profile cases of Sally Clarke, Angela Canning and Trudi Patel remains to be seen. What is certain is that local authorities and the family courts will continue to have cases referred to them where a parent, usually the mother, is suspected of causing physical harm to her child, sometimes with unintended drastic consequences, or else fabricating unusual symptoms, in order to invite high level medical intervention.

Other labels to describe such behaviour already exist. A front runner, 'Factitious Illness by Proxy', ('FIBP') is seen by some as more 'neutral' in its connotations, but is nonetheless a description which has hampered, and unless checked could prevent, an independent and objective appraisal of the facts by medical practitioners, social workers, advocates and thereby the family courts.

The object of this article is to question whether the decision in Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567; [2004] 2 FLR 263 will rein in any temptation to adopt a broad brush approach to the facts led by the 'diagnosis' of factitious illness by proxy which, however provisional, will prove a self fulfilling prophecy. Despite the conclusion drawn by the Court of Appeal in Re U (supra) that 'the decision of the court in R v Cannings has no doubt provided a useful warning to judges in care proceedings against ill-considered conclusions or conclusions resting on insufficient evidence', (paragraph 29) I have my doubts that Re U will necessarily shape the correct approach to issues of fact in all cases, and suspect that some advisors, advocates and thereby the court will continue to be unwilling to thoroughly investigate the facts free from preconception leading to misconception.

R v Canning [2004] EWCA Crim 01
Angela Canning was convicted of murdering her infant children, Jason and Matthew, by smothering them. Both had been admitted to hospital with 'Acute' or 'Apparent Life Threatening Events', (ALTE's), apparently recovered, but died days after their discharge. The Prosecution case against her was that these deaths formed part of an overall 'pattern'. A previous appeal against conviction had been dismissed. The Court of Appeal (Lord Justice Judge, Rafferty and Pitchers JJ) on this occasion took the opportunity to examine the two possible approaches ' where three infant deaths have occurred in the same family, each apparently unexplained, and for each of which there is no evidence extraneous to the expert evidence that harm was or must have been inflicted (for example, indications or admissions of violence, or a pattern of ill treatment)……One approach is to examine each death to see whether it is possible to identify one or the other of the known natural causes of infant death. If this cannot be done, the rarity of such incidents in the same family is thought to raise a very powerful inference that the deaths must have resulted from deliberate harm. The alternative approach is to start with the same fact, that three unexplained deaths in the same family is indeed rare, but thereafter to proceed on the basis that if there is nothing to explain them, in our current state of knowledge at any rate, they remain unexplained, and still, despite the known fact that some parents do smother their infant children, possible natural deaths.'

Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567; [2004] 2 FLR 263
The Court of Appeal in Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567; [2004] 2 FLR 263, examining the impact of the decision of the Court of Appeal, Criminal Division, in R v Canning (supra) upon cases proceeding in family courts, emphasised that the decision turned on the very particular facts of that case. However, whilst not every case of so called FIBP will involve smothering or death, many will involve ALTE's, and all will display an apparent 'pattern' of unusual, repeated, unresolved and/or 'new' symptoms regardless of the medical intervention achieved. Outcomes in these cases will inevitably depend upon 'the [particular] starting point which is adopted' in examining the facts. (See R v Canning supra at para 11). That is, an approach which views an absent medical diagnosis as indicating that the relevant symptoms must be induced or fabricated will interpret every other piece of evidence to fit the conclusion already reached. The alternative approach, to admit the possibility of an unknown condition or unusual symptomology will permit an open minded assessment of crucial extraneous evidence, which may the more properly inform the investigation of the court.

The Court of Appeal in Re U (see supra) unhesitatingly adopted some of the considerations emphasized by the judgment in R v Canning 'that are of direct application in care proceedings' namely

(i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.

(ii) Recurrence is not in itself probative.

(iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause.

(iv) The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.

(v) The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark. (See paragraph 23).

However, giving all due weight to the different functions of the criminal and family courts as highlighted by the Court of Appeal in paragraphs 24 and 25 of its judgment the fact that the family 'judge invariably surveys a wide canvas, including a detailed history of the parents' lives, their relationship and their interaction with professionals…[with]… many contributions to this context, family members, neighbours, health records, as well as the observation of professionals such as social workers, health visitors and children's guardian' does not preclude him/her being persuaded into adversely interpreting the same by the suggestion of FIBP.

In considering the particular facts of Re B within the appeal ( Re U; Re B supra) the Court of Appeal concluded that the medical evidence was 'not sufficiently cogent to be relied upon to pass the test of balance of probabilities in accordance with the principles set out in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, [1996] 1 FLR 80' and that 'the postulation (of parental responsibility for rigors) rested partly on the foundation that science had no answer and partly on extraneous circumstances culled from the mother's medical history.' However, the Court felt that the trial judge 'was entitled to take into account that there was no natural or medical explanation for the rigors and to assess the weight and credibility of the non-medical evidence.' Rightly so. In some cases there will be extraneous evidence, sometimes unchallenged, which will enable the court to interpret the unexplained and serious incidents of repeated ill health in a child, but what if the only extraneous issue to assist determination is an assessment of the relevant parent's credibility. Surely, in these cases the danger will be for credibility to be assessed by the inability of the parent to explain the medically unexplained.

Disputed evidence in the many cases of accurately and independently observed commonplace symptoms or injuries is unlikely to hamper the court from reaching a conclusion on the facts. In doing so they will heed the warning in, for example, Re B (A Child) (Split Hearings: Jurisdiction), [2000] 1 WLR 790, sub nom Re B (Split Hearings: Jurisdiction) [2000] 1 FLR 334; and Re B (Non Accidental Injury: Compelling Medical Evidence) [2002] EWCA CIV 902; [2002] 2FLR 599 of the danger of ignoring 'uncontroverted medical evidence' by elevation of 'the credibility or otherwise of lay witnesses'. In doing so they may wish nevertheless to reflect upon the dicta of Stuart- Smith LJ in Loveday v Renton [1990] 1 Med LR 117at 125 in order to avoid reliance on the unreliable expert opinion, even where uncontradicted. However, the certainty that ' there will from time to time be complex and seemingly insoluble factual questions for … resolution' and the Court of Appeal's suggestion that the 'trial judge would be assisted by a psychiatric or psychological assessment of a possible adult perpetrator or of the wider family dynamics' (see Re B; Re U supra, paragraph 147)) presents the possibility that the court's attention will be diverted from a critical appraisal of the disputed facts in favour of an ultimate determination based solely on the issue of 'propensity'.

In Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211, p217 -218, Wall J, as he then was, directed that '[e]vidence of propensity or a psychiatric or psychological assessment of one of the parties is unlikely to be of any assistance in resolving a purely factual issue. ….. Furthermore, such a witness may, as here, express opinions as to propensity or as to responsibility for a child's injuries which are both prejudicial and wrong. The assessment of adult credibility as to the responsibility for a child's injuries (often the critical factual issue) remains the function of the judge.' The Court of Appeal in Re U; Re B were alive to Wall J's 'stricture and no doubt at that time warning against the unnecessary introduction of psychiatric evidence at the first stage of a split trial' but considered that Wall J himself recognized the necessity to do so in appropriate cases. Is the 'appropriate' case to be every case where the trial judge cannot resolve the medical quandary presented to the requisite standard? I fear in those circumstances the family courts may well fall prey to 'experts' who take the stance that there is a definitive psychological profile to the perpetrator of FIBP and that if the parent fulfils it then his or her children's reported symptoms are to be regarded as fabricated or induced. In these cases a parent may be wrongly accused or else acquitted to the ultimate detriment of the child.

An alternative approach
I champion the approach of Ryder J in A County Council v A Mother, A Father And X, Y And Z (By Their Guardian) [2005] EWHC 31 (Fam), who has recently provided guidance in approach to cases which are said specifically to feature 'factitious illness'. Having received evidence that the terms 'Munchausen's Syndrome by Proxy' and 'Factitious and Induced Illness by Proxy' were a 'convenient child protection description of a modus operandi where it is thought that physically, psychiatrically or psychologically a carer is responsible for the presentation of symptoms in a child that would not otherwise have occurred' he adopted the dicta of the Supreme Court of Queensland in R v LM [2004] QCA 192 to the same effect, holding it 'as valid to the English law of evidence as applied to children's proceedings…….In these circumstances, evidence as to the existence of MSBP or FII in any individual case is as likely to be evidence of mere propensity which would be inadmissible at the fact finding stage (see Re CB and JB supra). For my part, I would consign the label MSBP to the history books and however useful FII may apparently be to the child protection practitioner I would caution against its use as other than a factual description of a series of incidents or behaviours that should then be accurately set out (and even then only in the hands of the paediatrician or psychiatrist/psychologist)…..What I seek to caution against is the use of the label as a substitute for factual analysis and risk assessment.'

The adviser/ advocate's responsibility?
It would be foolish for any practitioner to underestimate the necessary preparation to ensure that their client, other professionals and the court stay focused upon the task of careful analysis of the evidence at the 'fact finding' stage of the proceedings. The prospect of wading through voluminous medical records, resisting the temptation to skip the illegible manuscript and the unknown medical terminology is daunting but necessary. The local authority should always be required to produce a detailed indictment of specific allegations and the evidence upon which they rely in support at the earliest opportunity. Counsel for the parent/s must take detailed instructions upon the same and respond promptly in order to indicate the contentious issues for determination. Analysis of medical records may sometimes appropriately include those of the wider family, parents and siblings to corroborate or discount a rare or unusual congenital illness. The accounts of eye witnesses must be carefully scrutinized to see if they may have been 'corrupted' by the label used by family protection practitioners or police officers investigating 'a criminal offence'. Do their witness statements confirm contemporaneous recordings in nursing records and the like? Are there independent eye witnesses to the onset of symptoms? Have the appropriate experts with the relevant expertise been commissioned? Have they been supplied with all relevant information? Even if a finding of induced or fabricated symptoms is made out in one respect, must all the child's previous and subsequent symptoms be consigned to a similar category?

Once facts of fabricated illness are established to the requisite degree the court may well be assisted by a psychiatric or psychological assessment of the parents. It follows, however, that the expert should not revert to a position of 'one size fits all'. The psychological basis for incidents or behaviours adverse to the child's healthcare needs must be deemed uncertain before appropriate assessment. In some cases, there will be a misdirected parental desire for attention, in others, a history of, or subsequently diagnosed, mental illness.

Permanent separation is not an inevitable outcome from a finding of fabricated illness but the risk to a family unit is obvious. Undoubtedly, advisers and advocates must resist the use of generic terms such as Factitious Illness by Proxy at the fact finding stage and insist on a careful evaluation of the base material to assist the court and to promote the welfare of the child.