The unjust path to justice

Like so many, I have been particularly moved by the alleged allegations of child abuse occurring in childcare centres in Melbourne, Australia, that have come to light this week.

I am moved as a mother, who relied heavily on childcare when my son was an infant and toddler. I am moved as a member of society that abhors such acts.

I am also moved as a medicolegal examiner, because I work exclusively in a system that only affords compensation if it is decided that an injury has occurred as a result of the violence or abuse, of a sufficient threshold and that the injury needs to be permanent.

I have seen media reports about legal firms contemplating class actions and preparing to represent the reported large numbers of alleged victims, who are still children. I know with my expertise that this road while available to those who have been impacted and injured by these alleged acts, will be torturous and protracted. This is not only because most claims for personal injury can be, but also because our current way of assessing victims of abuse will not be fit for purpose.

I am clearly on the medical side of the medicolegal field, and what I have learnt about the legal side has been taught by fellow IME experts, in the form of accreditations and courses. I have also answered hundreds of questions posed to me as part of letters of instruction.

I have now examined hundreds of adult victims of childhood sexual abuse. Because of this experience, I can see impediments to any claims for compensation or redress that would occur while the alleged victims are still children. I write this to begin a discussion about a better way to examine victims and apportion compensation, given our current guides to impairment ratings are over 30 years old. They were also written to physical injuries sustained from accidents or assaults, with psychological injuries added as an afterthought and prior to any awareness of the surge in claims for compensation for historical abuse matters.

Again, I am not a lawyer, and there may be legal processes available to pursue claims for compensation for children. If the only avenue is to use the current process, here are the areas that will prove to be limitations, and what we could identify and address before victims are further distressed by hurdles:

Scope of Expertise

If a plaintiff (the potential victim coming forward) is a child then they need to be examined by an expert with specific child and adolescent subspecialty training, such as developmental paediatrician or a psychologist or psychiatrist with specific subspecialty training. Other clinicians could be considered not to have the required experience to assess children for the injuries and their evidence could be discredited because of this. The problem with this is that there are very few medicolegal experts who have this training, and wait times to be assessed would be disproportionately longer that waiting for an assessment with a clinician who has experience with adults.

Expert clinicians who prepare reports for other jurisdictions such as the family court may not have the required ability or skills to prepare reports for personal injury, as they are skilled at providing guidance to the court about matters such as impacts of parenting behaviours and how the effects may appear limited to this setting. This is different to examining for injury that meets the criteria for a diagnosable mental health condition that is considered permanent.

Obtaining a history

When working with adult plaintiffs, a medicolegal expert must obtain a history directly from the person they are examining, and substantiate or refute their history using any documents or materials provided to them as part of a brief. Other parties cannot provide a history, and rarely are given permission to sit in on assessments. The way children are assessed in the clinical and forensic setting is via other modalities that may be non verbal, such as observing behaviours through play. Interactions with adult caregivers are also utilised to form opinions. The permissable types of reliable and valid information gathered from an adult guardian or caregiver will need to be re-defined regarding how much this can be used as evidence to guide legal proceedings.

Assessing whether an injury is permanent

This is a big limitation when awarding compensation and providing redress. It is something I didn’t full appreciate until I did my own medicolegal training. Just because a person is the victim of an assault or accident, no matter how abhorrent, if they didn’t sustain an injury then there is no claim. It is simply not a case of, “oh well, we’ll sue the childcare centre for what they did to our child”. I can see that an indirect way to pursue such claims is to determine whether a parent or adult carer suffered a diagnosable injury by hearing about the alleged assault, or witnessed the impact on their child. Again, I’m not a lawyer, but writing this to begin a discussion.

Also, it would be hoped that victims who were identified would be provided treatment that is age appropriate should they be showing signs of behaviour change or distress. By providing this treatment, clinicians would be aiming for recovery, or at least minimisation of symptoms, thus reducing the level of any injury that is to be compensated for.

Causing further harm

Examining people who present with histories or evidence of sexual abuse can be fraught with risk. Firstly, by re-telling their stories, they may be further traumatised. Secondly, although divulging details of the alleged crimes so parents are informed is a positive step, there is a chance that by parents asking a lot of questions of their children with details, they may cause confusion for their children about what actually happened and what didn’t. Thirdly, not every person who has been the victim of abuse goes on to develop a psychiatric sequelae, and that doesn’t mean that the abuse was not a very difficult incident to go through. Children who are otherwise supported and cared for, with attention to distress may settle and recover. And some children may never develop an awareness of a memory of the abuse occurring, for many reasons. Putting children through a rigorous process with an independent examiner who is not there to be therapeutic, may cause injury in itself.

Call for a better way

This story involving alleged repeated acts of childhood abuse occurring has been a distressing revelation and will continue to cause distress and fear. One small positive is that it has the potential to cause a real discussion, a collaboration between those working in the medicolegal arena, lawyers and clinicians alike about developing best practice. This best practice could potentially also govern how we approach all plaintiffs presenting for assessment of injury related to sexual abuse, whether in the historical context, or in case such as this, when the victims are children and the current standard of examination is not fit for purpose, and may do more harm than good.

[ PUBLISHED Medium 4th July, 2025 : https://doctorhelens11.medium.com/the-unjust-path-to-justice-da6e442990e2]