Every weekday morning for almost 18 months, Josie Mitzi watched as a neat, professional couple arrived at the suburban Melbourne library where she works.They’d make their way to the sunny patch of carpet they’d effectively made their own, then unpack toys and a little picnic. Food isn’t allowed in the library, but for this couple the staff made an exception. Even the security guards knew that.Soon, another adult would arrive, bringing the couple’s baby girl to them, then watch and take notes as the little family played together. Two hours later, the child was taken away again.“It was either the mum was crying or baby was crying,” says Mitzi, a children’s services technician who’s worked in libraries since the 1970s. “It was heartbreak every time.”She knew what she was seeing. The baby was living with foster carers and this was court-ordered access time, supervised by a child protection worker.Unlike some families Mitzi saw, though, this couple, who began their visits in late 2021, was not disengaged or resentful. And both mother and father were there. On time. Every day.“Sometimes dads don’t like to join in rhyme time and sing songs,” Mitzi says, “but this dad was up there, you know, singing rhymes and stuff and joining in and colouring in and everything. He was always such a nice and friendly man and a loving father.”What surprised Mitzi and her colleagues more than anything, though, was how long this went on. Normally they see families for a month or two at most. “But we went through teething with them. Then we went through walking first steps. [The baby’s] first birthday was the day they were here, and we were singing happy birthday with the family,” Mitzi says.https://thearticlestack.com/interactive/modules/audio-enhanced-hub/index.html?resizable=true&v=640&configUrl=https://thearticlestack.com/interactive/hub/configs/audio-quotes/49943.json&v=0.10282010965291255; size: mediumThe library staff grew curious. Then disturbed. Then outraged. Why was this loving family being kept apart for so long?The reason was a medical diagnosis. Forensic doctors at Melbourne’s Royal Children’s Hospital believed, based on a cluster of clinical findings, that when the baby was just nine weeks old, her father had shaken her so violently that he’d damaged her brain, possibly leaving long-term injuries.It’s known as shaken baby syndrome – or what proponents now prefer to call abusive or inflicted head trauma – a diagnosis that’s been putting people in jail all over the world since the 1990s.In some jurisdictions overseas that’s now beginning to change. The quality of the studies underpinning the orthodoxy is under challenge, prompting hard questions about whether shaking can actually cause the kind of brain damage it’s alleged to. In the United States, a man on death row in Texas has had a reprieve after an appeal court expressed doubts about the science. More than 40 others have been exonerated since 1990. Many more have had their cases dismissed at trial.In Australia, though, these questions are rarely raised. In hospitals and courtrooms around the country the shaken baby orthodoxy often goes unchallenged, as do the child removals, criminal prosecutions and prison sentences that follow.For individuals, the consequences are life-changing.Three young men – Jesse Vinaccia, Jesse Harvey and Joby Rowe – were all convicted and jailed in Victoria in 2018 and 2019, with the medical opinion of one expert doctor at the Royal Children’s Hospital providing the key piece of evidence in each case. Each man insists he was blameless – that pre-existing medical conditions caused the children’s death or injury.“If I was rich, I probably would have been able to afford good lawyers, and might have turned out different,” Harvey says. He’s on parole having served his six-year sentence.David’s son, Oliver (we can’t use their surname because of child protection proceedings) died at four weeks of age. David says the baby had a seizure one night and just went limp in his arms. For seven years David – who was charged with child homicide in Victoria – fought to establish his innocence before a jury last year found the medical evidence against him simply did not stack up.“It’s effectively a new start,” David says, “and at the end of the day, it doesn’t matter, because it still doesn’t bring my son back. I still don’t have a son.”Cases like these have now prompted highly credentialled doctors and scientists in Australia to speak up for the first time. Among them are one of our leading forensic pathologists, Stephen Cordner, now retired, and a former paediatric intensive care physician, James Tibballs.Cordner, the long-time head of the Victorian Institute of Forensic Medicine, says there is considerable doubt over the science behind shaken baby syndrome. And while he is sure that its proponents are motivated to protect children, he believes some defendants are being wrongfully convicted.“Child abuse is a scourge,” Cordner says, but “the real issue is, how well can medicine diagnose it?”I’m sitting at the kitchen table of an uncluttered family home in a new housing estate in Melbourne’s north. Sippy cups and snack plates are stacked on the sink.It’s my first conversation with the couple from the library. The involvement of the child protection agency in their lives means, for legal reasons, we can’t reveal their real identities.But this soft-spoken Indian husband and wife, we’ll call them Kabir and Dipika, are burning to tell their story. As we speak, Kabir has been criminally charged with recklessly causing serious injury and faces up to 15 years in jail at the hands of what he calls a “gossip gang” of child protection officials, doctors and police.Their story began on the day in August 2021, when baby Dua was born. “When I pushed her, it wasn’t like, little by little, she was coming out,” Dipika says, her eyes wide. “No, I pushed her so hard that she slipped from one end to the other.”In medical language, it was a “precipitous birth”. And as Dua’s head rushed into the world, it opened up a fourth-degree tear in her mother. In Dipika’s words, the wound went “from the vagina to the bumhole”.“That is a traumatic birth,” confirms retired intensive care physician James Tibballs. Over 43 years at the Royal Children’s Hospital, Tibballs has seen virtually everything that can go wrong with a child, and he knows how dangerous this can be. A baby’s soft head is designed to mould to the shape of the birth canal, but an accelerated delivery imposes huge pressure and can do serious damage.For some reason, though, at the hospital, a paediatric registrar recorded a “normal vaginal delivery”. And as first-time parents, Kabir and Dipika were none the wiser. To them, Dua was perfect even though, from the start, she was unsettled. “She would instantly cry as soon as we’d just put her flat on the bed,” says Kabir. “It felt like she was in pain”.https://thearticlestack.com/interactive/modules/audio-enhanced-hub/index.html?resizable=true&v=187&configUrl=https://thearticlestack.com/interactive/hub/configs/audio-quotes/49946.json&v=0.5076629200062065; size: mediumThe couple took her to the GP and to hospital. They were told nothing was wrong, that “babies cry”. At the maternal and child health nurse, they were given a pamphlet. It warned them not to get so frustrated they would shake their baby.Kabir and Dipika both remember the moment. They didn’t know it then, but within weeks, that medical theory would come to dominate their lives.https://thearticlestack.com/interactive/modules/tearout-excerpt/?resizable=true&v=266&configUrl=https://thearticlestack.com/interactive/hub/configs/tearout-excerpt/49958.json&v=0.48910418019588864; size: regularThe pamphlet they were given emerges from a body of research and clinical practice that traces back to a paediatric neurosurgeon called Norman Guthkelch, and his work in the north-east of England in the early 1970s. He noticed that some of the babies treated in a Hull hospital had subdural haematomas – blood collecting between two membranes that cover the brain – but no sign of external injury. When their mothers told him of their habit of giving their bairns a little shake to calm them down, it reminded him of something else – the brain injuries from whiplash that he’d read about in rhesus monkeys used in high-speed car crash experiments.So in a two-page paper in the British Medical Journal in 1971, Guthkelch theorised about a link.He said later his intention had been to educate. But to his horror, over time, his theory metastasised. Keith Findley, an associate professor at the University of Wisconsin Law School, and a specialist in wrongful convictions, has studied the change. “So in the 1990s this hypothesis of unknowing infliction of harm by caring parents morphed into an intentional, or at least fully knowing infliction of massive, forceful harm on to children by people with irredeemable souls – people who would shake a baby knowing that it will probably harm the child or kill it,” he says via phone from Wisconsin. “That was the transition. That’s when it began to be prosecuted.”At the heart of this medico-legal theory is a set of clinical findings known, until recently at least, as “the triad”. Subdural haemorrhage – bleeding under the dura matter in the brain – is the first sign. The second is retinal haemorrhage – bleeding in the light-sensitive tissue at the back of the eye. And the third and most dangerous is swelling of the brain.The damage can be so profound, say some proponents, that the forces involved are equivalent to a fall from a multi-storey building or a car crash. And injury occurs almost immediately.Among paediatricians and many other medical specialties, the diagnosis is widely accepted. The Australian specialist body, the Child Protection Paediatric Society of Australasia, does not have a position, but other national bodies across the Western world have put out consensus statements supporting it.Kim Oates, an emeritus professor of paediatrics at the University of Sydney and former chief executive of Westmead Children’s Hospital, says, “We know vast amounts about children and their physiology and how they work. And we know the mechanism … with shaking and what happens.”https://thearticlestack.com/interactive/modules/audio-enhanced-hub/index.html?resizable=true&v=704&configUrl=https://thearticlestack.com/interactive/hub/configs/audio-quotes/49948.json&v=0.3120718166341575; size: mediumWhen police and prosecutors pursue these cases, they are drawing on a medical diagnosis that provides almost everything they need to secure a conviction: a victim, a perpetrator (the last person holding the baby) and, because of the extreme violence alleged, criminal intent.A 2009 paper by law professor Deborah Tuerkheimer described shaken baby theory as a “medical diagnosis of murder”.For Kabir and Dipika, the journey from unsettled daughter to the criminal courts began when Dua was nine weeks old. It was an October night in 2021 and Dipika was resting after a long day looking after Dua. Kabir was in another room quietly filming videos of his daughter to send back home to India.The last – a sweet cameo where Dua hiccups and gurgles while Kabir tries to get her to smile – is time-stamped 9.11pm. Some time between then and 9.15pm – four minutes later – police allege Kabir picked her up and shook her so violently that blood vessels burst in her head and her eyes.Kabir’s account is different. “Everything just felt very ordinary, normal. Dua was kind of happy. She was well fed, she was OK. And then suddenly she started, like, she would just stretch out her arms, having some seizure-like motions. And then she would stiffen up.”Two or three times she did it, Kabir says. Then she grunted once and went floppy.https://thearticlestack.com/interactive/modules/audio-enhanced-hub/index.html?resizable=true&v=460&configUrl=https://thearticlestack.com/interactive/hub/configs/audio-quotes/49949.json&v=0.3931252454300008; size: mediumKabir woke Dipika. They rushed Dua to the local hospital. “I literally thought she’s dying,” Dipika says. Dua was given scans, antibiotics, antivirals and an anti-seizure drug and, the following morning, transferred to the Royal Children’s hospital in Melbourne’s Parkville.On the way, Dua began moving again and feeding. Relief washed over Dipika. Just taking her daughter to the world-renowned hospital had put her on the road to recovery.Behind the scenes, though, trouble was brewing for the family. An MRI scan from the first hospital had revealed “subdural fluid collections”, which the radiologist thought might have blood in them. His report, forwarded to the Royal Children’s, included the words: “Non-accidental injury could account for the appearance”.In the language of forensic medicine, the radiologist was suggesting Dua might have been abused.However, the document also said this: “Post birth-related trauma is not excluded.” It was a possible innocent explanation for Dua’s seizures.Stephen Cordner, the renowned forensic pathologist, has studied this family’s case closely. In an expert report he provided more than three years later, he pointed out that almost 50 per cent of babies born vaginally have subdural haemorrhages, and Dua’s traumatic birth would have made that kind of injury more likely.Cordner also pointed out in the medical notes the significant increase over previous weeks in the circumference of Dua’s head. It appeared to be swelling. “Delayed consequences of birth trauma is a reasonably possible explanation” – not just for the baby being uncomfortable lying down, but also for the seizures Kabir described.At the Royal Children’s Hospital in 2021, though, as Dua was recovering in the ward, these ideas were barely entertained. And after a particular team of specialist doctors became involved, suspicion turned quickly towards her parents.That team is called the Victorian Forensic Paediatric Medical Service (VFPMS) and their work – and that of centres like them in other Australian hospitals – lies at the heart of this story.The job of forensic paediatricians is not to treat children but to examine them, quiz the parents and diagnose whether a child has been abused. The VFPMS can intervene in suspected child abuse in every hospital in the state, and among the 10 or so doctors on staff, the shaken baby orthodoxy is pursued aggressively.The VFPMS notes say birth trauma would “not account for” Dua’s condition – fluid (with some blood possible) beneath the dura and retinal haemorrhage. The third element of the triad – a swollen brain – was not evident, but their diagnosis was that “shaking with or without impact has likely occurred”.Once they reached that conclusion, they moved quickly. At stake here was something important – the wellbeing of the child and the potential culpability of their abuser. Within days, as Dua remained in hospital, the VFPMS called a “Suspected Child Abuse and Neglect” – a SCAN meeting – inviting police and child protection officers to help work out a plan.James Tibballs, the retired Royal Children’s intensive care physician, has grown sceptical of the shaken baby diagnosis. He says the treating physician is not normally invited to SCAN meetings, but that, over 43 years at the hospital, he attended perhaps 10. He did not like what he saw.“Even if there’s a good [alternative] explanation [for a child’s injuries], once the accusation has been made, it’s almost impossible to erase,” Tibballs says. “‘It’s child abuse, and that’s all there is to it ’… It’s almost impossible for a parent to escape unscathed.”In Dua’s case, notes taken by a social worker at the SCAN meeting show a VFPMS doctor alleging her injuries were “usually presenting in this pattern from acceleration/deceleration such as shaking”. They were “concerning for shaking type injury”.Kabir and Dipika did not know any of this, but out on the ward, the atmosphere soured. Police came to interview Dipika as she stayed with her daughter, and twice went to their house to search for evidence. The child protection service also interviewed them, and even the medical staff, says Dipika, “were not sounding like doctors, they were more like investigators – they were trying to collect evidence”.Repeatedly the couple was asked what had happened and, repeatedly, Kabir and Dipika explained. It was not the answer the authorities wanted to hear.Documents produced by the child protection service for the Children’s Court confirm this. Dua would be taken away from her parents, the papers say, because they were “unable to provide details of what could have caused these injuries”.Globally, the scientific argument over this diagnosis has become so belligerent that some describe it as a war. The first serious questions about Guthkelch’s theory were raised in 1987, when a doctor of neurosurgery at the University of Pennsylvania called Ann-Christine Duhaime led a team in a biomechanical study.Everybody in this dispute agrees that shaking a baby is a terrible idea. But that first biomechanical study found the most violent shaking generated a tiny fraction of the force required to cause the brain injuries seen in the monkeys from the car crash experiments. Short falls and other impacts were significantly more powerful.“Shaking alone does not produce shaken baby syndrome,” Duhaime concluded.Multiple biomechanical studies using mice, piglets, lambs and more sophisticated baby-sized crash test dummies have since also failed to support the existing shaken baby hypothesis.It has not stopped the theory. And in this war, the two sides agree on virtually nothing – the causes or mechanism of the triad, which other medical conditions might cause these clinical signs, whether or not impact is required and how dangerous short falls can be (from a parent’s arms, or even a couch).Sceptics say the bulk of the medical evidence supporting the diagnosis is based on a logical flaw. Since you cannot shake a baby to find out if that causes the triad, virtually every study looks at children already assumed to have been “abused”, so their cases are inevitably tainted by selection bias, or “circular reasoning”.Proponents, on the other hand, believe the sceptics are providing succour to child abusers.Between 2014 and 2016, 50 scientists and doctors from the Swedish government’s national health technology agency tried to sort this argument out. They could not find enough evidence to support the theory in the 30 papers that directly addressed the question. Circular reasoning and poor study designs meant the studies were largely low quality and certainly could not sustain criminal prosecutions beyond reasonable doubt, they found. The Swedish scientists, their approach and their findings, in turn, were quickly dismissed. Their critics said they had excluded nearly all of the available learning, posed a clinically irrelevant question, conducted an inadequate literature search and designed their review poorly.The prosecutions rolled on.Supporters of shaken baby theory say it’s evolved. They’ve changed its name and now reject the term “triad”. They say abuse is not diagnosed on the triad alone, but instead a complex “constellation” of signs, and “differential diagnosis” that excludes other conditions.But in case after case, at least in Australia, one, two or three of the triad signs remain the starting point. Often the endpoint is a prison cell for the last man or woman holding the baby.Stephen Cordner is retired now. But he spent his career examining people who’ve died – whether by accident or intent – and trying to discern if a crime was committed. He’s increasingly sceptical of the shaking theory.“Triad-only” cases are particularly weak, he thinks. To exert the force alleged, he says, “you’d have to grip arms around the shoulders or the upper arms, or you’d have to grip the chest so hard that you can shake the head so it’s going to bleed inside the head over the brain. I really have great difficulty in accepting that you could do it without leaving an [external] injury.”He believes that, with the best of intentions, some child abuse specialists see themselves as “soldiers on the front line against the scourge of hidden child abuse”.But those good intentions can go wrong under pressure of the court’s requirement for judgments beyond reasonable doubt. “And if there’s a few casualties along the way as we send these child abusers off to jail, well, they’re just collateral damage in a greater cause.”Similar questions are rising in jurisdictions around the world. A New Jersey court labelled the diagnosis “junk science” in 2022, dismissing a child abuse indictment. An Illinois appeal court followed in August this year.In Sweden, the courts barely entertain these cases any more. And in the UK, the Crown Prosecution Service has said the diagnosis should be handled with caution in triad-only cases.Cordner says Australia needs an independent review, asking: “What legal inferences can our courts safely draw from the presence of features of the ‘triad’ alone?”So what could cause babies like Dua to collapse, if she had not been shaken? According to Cordner, there are 10 to 20 known medical conditions that can produce the triad of signs in children - but he suspected up to 50 conditions could be involved. These include low falls, disease, stroke, heart attack, bleeding disorders, genetic conditions and birth trauma.Then there are the unknowns. The Australian Institute of Health and Welfare reports that two of the top three killers of children under one in 2023 were “other ill-defined causes” and sudden infant death syndrome, which itself has no explanation.“So … maybe it’s a mystery, not abuse,” Cordner says.“Maybe it’s a mystery” is not a line that gets anyone very far in court. Particularly not up against the carefully worded reports of the VFPMS – prepared in one of Victoria’s most renowned institutions, the Royal Children’s Hospital.https://thearticlestack.com/interactive/modules/graphic-embed/?resizable=true&v=370&configUrl=https://thearticlestack.com/interactive/hub/configs/graphic-embed/47197.json&v=0.5892968236336541; size: mediumDavid confronted the full force of Melbourne’s forensic establishment the day after his four-week-old son fell critically ill one evening in November 2017.That night, David says, his partner stepped out of their room to warm a bottle for baby Oliver, who had been unsettled and, within seconds, “our son made a funny deep breath, made a big sigh and just became unresponsive”.For 42 minutes, Oliver lay unconscious and not breathing as his parents gave him CPR, followed by paramedics, who eventually resuscitated him. Such a long period without oxygen causes enormous damage to the brain.In the Royal Children’s Hospital the following afternoon, David says a doctor from the VFPMS rushed into the room. Without introducing herself, she examined Oliver, then, says David, “turned and looked at me and said, ‘You did something … and I’m going to prove it.’ ”https://thearticlestack.com/interactive/modules/audio-enhanced-hub/index.html?resizable=true&v=979&configUrl=https://thearticlestack.com/interactive/hub/configs/audio-quotes/50076.json&v=0.9488858537737683; size: mediumDavid’s then partner recalled in court that Lobo “told us … You must have hit him … you must have hit his head’.” In court later, the doctor, Maryanne Lobo, denied using those words. But records provided to the court reveal her saying at an early stage that the clinical signs “strongly suggest that this child has suffered from a non-accidental injury and that … shaking … is the most likely mechanism.” Notes from a SCAN meeting a few days later show VFPMS deputy director Jo Tully announcing the baby’s injury had “likely” been caused by shaking, which “usually occurred immediately prior to the collapse”.So, when Oliver died a few days later, David was in the frame.From the start, Oliver’s treating doctor, the paediatric intensive care physician James Tibballs was sceptical of the abuse diagnosis. But Tibballs was not invited to the SCAN meeting. And for two years after that, the police ignored or rebuffed repeated attempts by David’s lawyer to have police take a statement from Tibballs.Other possible explanations for Oliver’s collapse – including a genetic history on both sides of the family of heart disease and infant death and the forceps used during Oliver’s birth – were not explored, David says. His solicitor, Holly Boylan, says this is common. “If you’re making that assumption [that a child was abused] at a very early stage then the rest of the inquiries that you’re making are really hampered by bias.”Lobo, the VFPMS doctor, later said in court these investigations were not pursued because Oliver “clearly had died of a head injury”.Meanwhile, David’s family was turned upside down. David’s older son – who was in the process of being diagnosed with autism – was removed from his parents’ care. Ten months later, when David’s daughter was born, child protection was waiting to take her away too. (Ultimately, the mother was able to keep her, but on the condition David did not live in the house.)Police installed covert listening devices in their home. One night, an officer knocked on David’s door pretending to be a journalist and tried to extract a confession in the guise of an interview.David’s partner supported him throughout – she had heard nothing from the bedroom on the fatal night, and described David as a calm, loving father. But the pressure was intense and their relationship didn’t survive.Seven years after Oliver’s collapse, David’s case finally came to trial. His lawyers argued it was plausible that he had accidentally dropped his son. David did not give evidence, and remains adamant this did not happen. But that’s the question on which his trial turned.After 18 days, a Supreme Court jury returned a rare not-guilty verdict.David is now trying to rebuild his life. But the seven years of fighting have taken their toll – he can’t even afford to bury his son. “We’ve had him cremated, but we … can’t do it, financially,” he says, through tears. “Everything we had went into the court proceedings and not working for four years.“I have nothing left.”The VFPMS’s diagnosis of abuse meant Kabir and Dipika also lost access to their child. When they got home from hospital without her in November 2021, Dipika quietly went to Dua’s room to cry.The couple was not willing, though, to simply mourn. “We borrowed, we begged, and we gathered whatever we could,” Kabir says. “And, yeah. We fought.”In their fight, this Indian couple from suburban Melbourne hit a pot of gold: an indomitable American lawyer called Heather Kirkwood. Kirkwood, a former high-flying antitrust lawyer for the US government, now works pro bono advising on shaken baby cases around the world. Kirkwood has secured four full exonerations of people convicted, post-conviction relief for six others and had many more cases dismissed and wins at trial. She helped Kabir and Dipika gather thousands of documents. They showed from the first days of the investigation that police and child protection had formed the firm view that Kabir was a cold, controlling and violent man.Their evidence was wafer-thin. They mistranslated one of Dipika’s text messages to a friend in her native Hindi to suggest Kabir had violently extracted breast milk from his wife’s body. Dipika was actually complaining that her husband had got the wrong bottle from the fridge.A damaged bedhead Kabir had dropped during a house move was described as having “a fist-sized hole directly above where Dipika had been sleeping”. Kabir – who is a sales manager – was instead listed as an IT expert who, child protection staff said without evidence, was “capable” of installing cameras in their home and tracking Dipika’s phone. He was so controlling he wouldn’t let her learn to drive, family violence practitioners alleged. Among the documents, Dipika was called the “victim survivor” – and practitioners postulated that only by putting Kabir in prison would Dipika feel free enough to admit the abuse.Put to the test, though, all this “evidence” simply evaporated.Confronted with the breast milk story, Dipika remembers thinking: “Are these Australian police crazy?” As for being denied a driver’s licence, she exclaims at me: “No! I’m scared of the cars coming!” She is learning to drive now but, “This is a joke between [Kabir and me], that Dua will drive first!”Behind all these suspicions lay one, overarching allegation – the original diagnosis of child abuse, and Kabir’s supposed refusal to admit to it. “[Dua] cannot come home unless the parents give an explanation on how [she] obtained those injuries,” one report says.https://thearticlestack.com/interactive/modules/audio-enhanced-hub/index.html?resizable=true&v=365&configUrl=https://thearticlestack.com/interactive/hub/configs/audio-quotes/49953.json&v=0.533548954251425; size: mediumFor 18 months, this insistence kept extending baby Dua’s time in foster care.At the library meetings, though, an entirely different picture was emerging of Kabir. In a parallel set of reports, the child protection supervisors were all seeing what Josie Mitzi saw: a loving, caring, involved family man.“Father affectionately greeted the child, carried her in the air, gave kisses,” says one report. “Mother changed nappy unprompted; dad supported by dangling toys in front of child’s face keeping her attention,” says another. “Child often reached over to be held by the father”.“It was like a video camera,” says Kirkwood. “It was like, ‘Oh my gosh, I’ve never seen anything like this. We don’t need a psych eval. This is better. This is coming from their people. This is what they’re seeing.”Finally, in May 2023, on the eve of a contested hearing in the children’s court, Kabir and Dipika got Dua back.But their ordeal was not over yet. Six months later, criminal charges were laid. But when they saw the police brief of evidence, it made no mention of family violence. In its place were two things: the medical evidence from the VFPMS and a series of Google searches by Kabir for shaken baby syndrome.Kabir says he was Googling trying to work out what was meant by the pamphlet the maternal and child health nurse had handed them. In Hindi, the idea of shaking is indistinguishable from rocking. Or jiggling.https://thearticlestack.com/interactive/modules/audio-enhanced-hub/index.html?resizable=true&v=877&configUrl=https://thearticlestack.com/interactive/hub/configs/audio-quotes/49954.json&v=0.3364442268041955; size: mediumSays Holly Boylan, his Australian lawyer, the searches – a few dozen among thousands of queries about cars and cots, household items and citizenship – looked like nothing more than “an inquisitive father doing research into whether he was settling her appropriately”.Boylan, representing Kabir in the criminal matter, set about establishing her client’s defence. Josie Mitzi from the library gave a statement, but the most powerful piece of evidence was an expert medical report from Cordner. “There is insufficient medical evidence for a conclusion of inflicted head injury,” he wrote, adding, it was “reasonable to include birth injury as a possible cause”.In April this year, three and a half years after the parents’ ordeal began, as the court readied to choose a date for Kabir’s trial, the prosecution simply backed out. They called the parties to a hearing in the County Court and withdrew the charges. Boylan describes it as “clinical and short and not particularly sweet”.A spokesperson for the director of public prosecutions says later that the expert reports made it clear that shaking was “not the only reasonable conclusion”, and there was “no reasonable prospect of conviction”.There was no apology, no offer of compensation.Kirkwood, the American lawyer, has consulted on cases globally. But what she saw of the Australian system shocked her.“Part one was exactly like other shaken baby cases. The ones we win, the ones we get overturned, all the rest of it. Regular old shaken baby case.”But the allegations of violence, coercion, spying? The Google searches? Ignoring for so long the stellar reports from child protection supervisors?“No, no, that is not a regular shaken baby case,” Kirkwood says.“How would you describe it?” I ask.“A lynching.”https://thearticlestack.com/interactive/modules/audio-enhanced-hub/index.html?resizable=true&v=323&configUrl=https://thearticlestack.com/interactive/hub/configs/audio-quotes/49955.json&v=0.26223553363141827; size: mediumNo one knows officially how many babies are said to be killed or injured by suspected shaken baby syndrome (abusive head trauma) in Australia, or how many people are convicted, or lose their children. Cordner is frustrated, he says, that nobody seems to be counting.We have some numbers from the deputy director of the VFPMS, Dr Jo Tully – one of the key proponents of the shaken baby diagnosis in Australia. She said in a speech in 2018 about 65 cases per year were admitted to Australian hospitals, including 20 in Victoria alone. The condition was the cause of death for the majority of the children killed by their carers, Tully said, “and these figures are almost certainly the tip of the iceberg. How many were missing? Well, I don’t think we will ever know.”Tully said in another speech the same year that forensic doctors diagnosing child abuse need to treat parents’ stories with great scepticism, then write reports that are “explicit but that are 100 per cent right, 100 per cent of the time”. She has been the VFPMS expert witness in a number of trials and oversees the work of other doctors in her team. Her expert evidence was crucial in three “triad only” convictions secured in 2018 and 2019. And she defended the shaken baby diagnosis during the biggest challenge it’s yet faced in Australia – the 2021 appeal in one of those cases.https://thearticlestack.com/interactive/modules/audio-enhanced-hub/index.html?resizable=true&v=25&configUrl=https://thearticlestack.com/interactive/hub/configs/audio-quotes/49956.json&v=0.6010412859498798; size: mediumIn that Victorian Court of Appeal hearing, lawyers for Jesse Vinaccia, who was convicted of child homicide, argued that the child had spent three of the previous days in hospital with a grossly swollen head from an unrelated medical condition. That, they said, was a more plausible cause of death than unwitnessed shaking. They also mounted a full-throated challenge to the science of shaken baby syndrome, invoking the Swedish study at length and calling one of its authors to give evidence in person.Tully, for the prosecution, told the court there was no real medical argument about the diagnosis – just a “perceived controversy … driven in the media”.In a majority decision of the three-judge court in 2022, Vinaccia lost. The majority described the Swedish report as “radical in its approach and conclusions”, saying it “seeks to set aside decades of study … and the widespread acceptance” of the triad. Tully, by contrast, was “an impressive witness” and the prosecution’s case “cogent and reliable both scientifically and more generally”.The third, dissenting, judge disagreed. She said the evidence against Vinaccia was too weak to sustain his conviction, and he should be acquitted. But she was outvoted.The majority’s decision cemented shaken baby theory in Victorian law. The medical curriculum being taught to the coming generation of doctors supports the orthodoxy. Related reading suggests that the parents’ version of events in shaking cases “is generally inconsistent with the medical findings”.Good Weekend and the related podcast Diagnosing Murder approached Tully, the VFPMS and its equivalent at Sydney’s Westmead Hospital seeking interviews. Those requests were refused.Instead, the Royal Children’s Hospital sent a statement saying the VFPMS’s judgements were underpinned by research, they worked closely with Victoria Police and Child Protection, and that “due consideration is given” to other conditions that might explain a child’s injuries. The VFPMS “always puts a child’s safety, health and wellbeing first”, the statement said.The child protection service responded to questions saying it always acts in the best interests of the child. Victoria Police said its investigations were extensive and thorough.When the charges were dropped against Kabir earlier this year, this little family could finally begin to move on. Dipika says she can breathe again. “I can’t imagine a life without him,” she says of Kabir.Still, though, she worries. She’s terrified that if she takes Dua to a doctor or the hospital, she might not be able to bring her home. And she and Kabir have shelved their dream of having a second child. “I’m so scared,” Dipika says. “I can’t imagine child protection getting involved again.”As for Dua, she’s a healthy, happy child who’s now four and hitting her developmental milestones. Dipika’s learning to drive, but the race with Dua is still on: in the back seat of the family car the chatty little girl happily identifies red and green traffic lights and what they mean.This family won their case with determination, a huge investment of their own funds and money from family in India. They were backed by an expert report from a renowned pathologist and unstinting support from lawyers Kirkwood and Boylan.They were the lucky ones. Unlike in America, there are very few experts in Australia who give defence evidence in these cases. There are no “innocence projects” to systematically question the science and take on individuals’ cases. Most of the people accused here – young fathers or boyfriends, generally – take their chances with Legal Aid-funded lawyers of varying knowledge and commitment.Cordner and the retired intensive care doctor James Tibballs feel a responsibility after stellar careers in medicine and science to raise these hard questions. Cordner wants people to know that “there isn’t a totally impenetrable medical-scientific fence around defending this position”.Tibballs thinks the system will change, but it’s probably “decades off”: “The machine has got a huge amount of momentum and to change its course means changes on so many levels, in medicine and law, in the police, social workers.”Dipika, meanwhile, has a message for this big system. “I’m not the same person I was four years back. I am not,” she says. “For [the doctors and prosecutors], it’s easy, it’s just a case. We’re a case number.“But for us, it’s our life. And they have changed us completely.”Update: This story has been updated after the execution of Texas man Robert Roberson was halted by the Texas Court of Criminal Appeals and his case remitted to the lower courts.https://thearticlestack.com/interactive/modules/podcast-pointer-hub/index.html?resizable=true&v=489&configUrl=https://thearticlestack.com/interactive/hub/configs/podcast-pointer/50001.json&v=0.8670998855320331; size: medium