Concern over Munchausen syndrome has been raised not reduced by reversing the decision of a family court judge, writes Sarah Harman

The Court of Appeal, in deciding on 14 May 2004 not to reverse the decision of a family court judge in two landmark cases where mothers were accused of deliberately harming their children, clearly hoped to stem the tide of public concern about the controversial Munchausen syndrome by proxy diagnosis (where women harm children to attract attention).

It is likely to have had the opposite effect.

The two family appeals were prompted by the criminal Court of Appeal's decision in January, which resulted in the release of Angela Canning, who had been convicted of killing two of her children.

In one of the family cases, there was no agreement between the experts about the cause of the child's illness.

No medical reason could be found.

But because the mother had harmed herself as a young woman some 12 years before, because she had lied and had suffered severe post-natal depression and had initially rejected her child, these characteristics marked her out for two of the six medical experts as exhibiting the signs of Munchausen syndrome by proxy.

The judge hearing the case initially accepted the Munchausen theory and also relied on the mother's problematic past, although she acknowledged there was much positive evidence about her.

But although the Court of Appeal criticised the original judge for relying at all on the medical evidence, it still upheld the decision on the basis that 'non-medical evidence' was 'relevant and cogent' and met the threshold criteria.

This decision will concern many of those who fear the impact of controversial theories that strengthen the power of social services over vulnerable families.

They will be concerned that circumstantial, rather than direct, evidence will be sufficient to justify a decision that a mother has deliberately harmed her child.

Opinions about whether Munchausen syndrome by proxy even exists or not are bitterly polarised and this Court of Appeal judgment will widen the ever-increasing gulf.

Even those lawyers who are reluctant to be drawn into the controversy are concerned that these vital family judgments at first instance are made in private and therefore unavailable for scrutiny.

The reasoning behind the confidentiality of family court proceedings - some say secrecy - is that the child's welfare must come first and that the child must not be put at risk of being identified.

But once the child's case goes to appeal, although anonymised, public reporting of judgments that reveal many identifying features is permitted.

The family courts' secrecy is rooted in a 40-year-old law that is not appropriate today.

It forbids any 'information' about family proceedings being put in the public domain.

For the most part the frequent breaches of this law - which are inevitable in a modern society - are ignored.

Parents (and sometimes children) talk in the media about their court experiences.

They talk to their MPs and other parents.

All such exchanges technically are contempt - as I found out to my cost.

Aggrieved parents will be further dismayed that the minister for children's review of Munchausen cases will not be an independent process but will be carried out by social services scrutinising their own decisions.

It is difficult not to be cynical about such an exercise.

But the minister for children has an opportunity at least to address the secrecy issue in her Children's Bill, which is shortly to become law.

A more open family court system would bring about a better relationship between families and the courts.

Sarah Harman is a partner at Canterbury-based Harman & Harman Solicitors and a member of the Law Society's children panel