Examining child protection practice in New South Wales: Non-accidental injury and the principle of strict liability

This article examines child protection practice when the Department of Communities and Justice in New South Wales takes the view that an injury to a child is non-accidental. The position taken in this paper is that once a child protection caseworker takes the position that an injury is non-accidental, then a strict liability or absolute liability approach is adopted. In effect, any of the child’s parents or caregivers are identified as persons who may have caused the injury or harm. What follows is the decision that a child must never be restored to the parents or caregivers, unless a person confesses to causing the harm and completes specific child protection counselling. Our concern is with the process of investigation, the reliance on one medical opinion in a context where the parents or caregivers are not in a financial position to obtain a second opinion, the failure to observe the rules of evidence when considering medical opinion, and the manner of substantiation of the non-accidental injury. In addition, we argue that there is a lack of knowledge about the factors that influence a paediatrician’s decision-making and that the guidelines for judicial decision-making derived from case law need to be examined further.