Comment: The story of young Indian migrants Zita and Ravi* and their infant daughter was the subject of last year’s podcast series Fractured by Newsroom investigative journalists Melanie Reid and Bonnie Sumner.
This article is about how I first came to hear of Zita and Ravi’s plight and became a voluntary advocate for them in their struggle against the many arms of the state. I am still involved, together with Reid and Sumner, in seeking justice for them.
I am the parent of two daughters with osteogenesis imperfecta, or brittle bones, and I am the grandparent of another. My wife and I know what it is like to take a child with an unexplained fracture to a hospital with no bruising, especially when the underlying condition hasn’t been diagnosed. There is a spoken or unspoken suspicion you have hurt the child. It was a common experience of parents of children with osteogenesis imperfecta. There were cases internationally where such parents or carers had their children taken from them and were charged, convicted and imprisoned for child abuse. I know the hospital checked with our GP after one of our daughters had two successive skull fractures as an infant before their brittle bone condition had been diagnosed. Perhaps we were lucky that we were Pākehā professionals with an address on Auckland’s North Shore.
I am always alert to news stories of parents whose babies are taken from them because of unexplained fractures. I heard of one such case in 2017. A young South African migrant couple had their second child taken by Oranga Tamariki at birth, because they were still under suspicion of having injured their first, also taken from them as a baby. I became their voluntary advocate.
The elder child turned out to have a type of osteogenesis imperfecta, although the Starship doctors maintained that wasn’t the cause. Police charges were ultimately dropped, and both children were returned to their parents. But their family life had been completely upended and they had paid thousands of dollars in legal fees. I published stories about them and ‘the baby with the broken bones.’
Ravi contacted me because he found my articles online in his search for an explanation for his daughter’s injuries. He was desperate. His wife, Zita, was in prison, convicted of injuring their daughter with reckless disregard. Their daughter, now four years old, had been taken by Oranga Tamariki at nine weeks and put in foster care. Ravi was only allowed to see her once a month. Zita wasn’t allowed to see her at all.
Zita faced deportation at the end of her sentence because she was now a convicted criminal. Ravi also faced also being thrown out of the country because he was on a partnership visa, cancelled because of his wife’s conviction, and their daughter would be kept in New Zealand under the care of the state.
It is also worth explaining that even though Ravi was found not guilty in the trial, he was not given back custody of his child – Oranga Tamariki seemingly considered that because Zita continued to maintain her innocence and he supported her, he was complicit.
All the while, their daughter was in the care of someone of a different ethnicity and religion, living in a different town. Struggling with his limited English, Ravi had to engage with the hospital, Oranga Tamariki, the police, the courts, Corrections, Immigration NZ, the Parole Board, the Immigration Tribunal, even the Ombudsman. He was unable to work because his visa had not been renewed. He and Zita had nowhere left to turn and they felt utterly defeated and desperate.
I agreed to help. Step by step over the next three years we made progress. It was incredibly frustrating. A loving mother had been demonised, her husband was not trusted. I appealed to social workers, chief executives, Members of Parliament, ministers. Every step was hard fought and often I felt I was banging my head against a brick wall.
Nevertheless, for Ravi, there was a gradual improvement in access, a successful appeal to the Immigration Tribunal against immediate deportation and eventually his daughter was able to come and live with him and his sister.
For Zita, the improvement was being able to see her daughter on video from prison (after zero contact for two years) and being released on parole. Despite an imminent threat of deportation, we were able to get this halted. Finally, after seven years apart, the whole family was reunited and able to live together once again. But as I told them at the outset, the real obstacle to achieving justice was what was called by the Judge at her trial, the Court of Appeal, the Parole Board, the Criminal Cases Review Commission and the Immigration Tribunal, the “overwhelming medical evidence” that she had injured her daughter.
This “overwhelming” evidence was that their eight-week-old baby could only have suffered her brain injury by what is called abusive head trauma, previously known as shaken baby syndrome, and that her multiple rib fractures could only have been caused by squeezing. All unnoticed by midwife, Plunket nurse and GP before her admission to hospital despite thorough examinations.
The diagnosis of abusive head trauma is regarded as medical orthodoxy in New Zealand hospitals, but it has increasingly been challenged internationally as unscientific and responsible for the wrongful conviction and imprisonment of parents and carers.
In Zita and Ravi’s case, their baby had a severe vitamin D deficiency (which can affect bone mineralisation and may increase the risk of fractures), and Zita’s labour and delivery had been traumatic. Nevertheless, the Starship doctors dismissed other possible explanations and within the first 24 hours after she was admitted to hospital diagnosed the baby’s injuries as non-accidental.
As one international medical expert said in the Fractured podcast “They rush to judgment and there’s nothing for them to lose if they make a false allegation and ruin a family because there’s no consequence. They’re completely immune to any accountability.”
When doctors tell Oranga Tamariki, the police and the courts that they believe it is a ‘non-accidental injury’ case, the parents or caregivers are deemed to be guilty unless they can prove otherwise. This is a reversal of the normal principle of the presumption of innocence until proven guilty. The proof of guilt offered by the state is the medical evidence. But doctors are not qualified to diagnose a crime, nor is it appropriate for them to do so. Those who are responsible for child protection or prosecution (Oranga Tamariki, the police and the courts) largely base their decisions to take children or prosecute parents on this medical advice, even though there are no witnesses and there is no external evidence of injury, and the parents have no idea what’s wrong with their baby or how the injuries happened.
Recently, the New Jersey Supreme Court in the US went so far as to disallow evidence by a medical expert who was to testify “not only about the injuries observed on a child through medical examinations and tests, but also that the only explanation for those injuries is child abuse,” finding that the evidence was “unreliable and inadmissible at trial”. That type of evidence is no longer permitted in the state of New Jersey and increasingly challenged successfully elsewhere.
While the authorities in Zita’s case were convinced by the medical evidence of Starship doctors (no alternative medical evidence was presented by the defence at trial or in the Court of Appeal), I was not. But I didn’t know how to challenge it. Zita and Ravi had already spent upwards of $100,000 on lawyers to challenge the various authorities and had no money and no hope.
A year after I became involved, the situation was still bleak. The prospect of both Ravi and Zita being deported without their daughter loomed. As a last resort I contacted Newsroom’s senior investigative reporter Melanie Reid, known to me from her reporting on the uplift of Māori babies by Oranga Tamariki, which had led to a number of reviews and major policy and structural changes in Oranga Tamariki in relation to whānau Māori. I sent her an 80-page narrative I had written about Ravi and Zita’s nightmare journey.
Reid and her colleague Bonnie Sumner began to delve into their story and found a few previous cases in New Zealand in which the state’s evidence of shaking and squeezing of babies had been successfully challenged by overseas experts. These families had lawyered up and one case won on appeal. But the reality was grim for other parents who were accused and had their children removed. Some were convicted and sent to jail, because, as with Zita, no alternative medical evidence was presented at their trial. At least one such parent is still in prison today.
Reid and Sumner began contacting overseas experts who had testified in big international cases and somehow, I don’t know quite how, they managed to persuade them to look at the medical evidence that led to Zita’s conviction pro bono.
They obtained the medical files, CT scans and x-rays that were relied on by Starship and sent them overseas for review. The months ticked by but finally their reports started to come through. They came from a professor of neurosurgery at Bergen University in Norway, a professor with expertise in genetics and biochemistry from the University of Amsterdam, an obstetrician/gynaecologist from Los Angeles who had pioneered the method of foetal monitoring during labour, and a neuropathologist and professor of pathology and laboratory medicine at the University of Saskatchewan in Canada.
They disputed the diagnoses and considered the baby’s fractures and brain injury were likely due to extremely low vitamin D and birth trauma (Zita had had a long and painful birth, with both forceps and ventouse suction). They questioned whether some of the fractures were even fractures at all.
Now we had four reports from highly qualified international experts saying this was an ‘overcall’ and not due to abuse, and that there were other obvious medical issues that had been overlooked or wrongly discounted. Reid, Sumner and I together lodged a new application for a review of Zita’s conviction with the Criminal Cases Review Commission in July 2024. It was accepted for review, a thorough assessment is well advanced and a full investigation will hopefully follow.
In light of the application, Associate Immigration Minister Chris Penk last year allowed Zita, Ravi and their daughter to remain in New Zealand for a further 18 months while the Criminal Cases Review Commission assessed it. That time is nearly up, but a finding by the commission is a
long way off. They will again be liable for deportation in September unless they are
granted a further reprieve.
This issue goes beyond Ravi and Zita’s individual case. Their story, as told in the investigative podcast series Fractured, has already brought many other cases to light. Reid and Sumner have been contacted by some 20 families in response. They have told the stories of another three in a further podcast series, Diagnosis of a Crime, which includes the case of a professional athlete. He was tried on similar charges in Dunedin and was found not guilty by a jury after Reid and Sumner secured international experts to appear for the defence to challenge the ‘diagnosis’ of abuse.
This is clearly a systemic issue and needs to be inquired into independently to put right past injustices and prevent future ones. We are all rightly concerned about child abuse, but we must also care for those who are wrongfully accused of it.
It can’t just be left to parents to try to challenge this on an individual basis. They are traumatised by the taking of their children, police interviews and court proceedings. Their children are often traumatised by being taken from their families and placed in foster care. They fear societal censure and shame through being accused of child abuse. They don’t have the knowledge or resources to hire overseas experts. They live in a small country where doctors who know them and believe them are reluctant to go up the medical establishment. They may even, like Ravi and Zita, be in a foreign country with another language. They cannot explain why their child was injured, but they know they did not, and never would, hurt them. While internationally these diagnoses are increasingly challenged, the medical establishment in New Zealand remains unmoved.
Zita, Ravi and their daughter must be allowed to stay in New Zealand until the Criminal Cases Review Commission has completed its review of Zita’s conviction. And an independent inquiry must be conducted to hear the parents’ stories and critically examine the validity of the scientific and legal basis on which such prosecutions are being brought. Otherwise, there is a real risk that more parents will be wrongfully convicted and more children will be unnecessarily removed from their parents by the state.
*Not their real names
