Scrap outdated infanticide law, say judges

Three Court of Appeal judges have called for a review of the "outdated and unsatisfactory" law on infanticide after upholding the conviction of a mother for the murder of her baby.

Three Court of Appeal judges have called for a review of the "outdated and unsatisfactory" law on infanticide after upholding the conviction of a mother for the murder of her baby.

They raised concerns that vulnerable, mentally ill women are being given mandatory life sentences for killing their babies when they should have been treated more leniently.

The judges had rejected an appeal by 29-year-old Chaha'Oh-Niyol Kai-Whitewind against her conviction for murdering her 12-week old baby Bidziil. She had her case referred for appeal following the recent quashing of murder convictions against the "cot- death" mothers Sally Clark, Angela Cannings and Donna Anthony. But the Court of Appeal ruled that, unlike the other three cases, there was "ample" evidence that Ms Kai-Whitewind had murdered her baby.

She was convicted in 2003 of suffocating Bidziil when, the prosecution said, she became frustrated with his refusal to breastfeed and depressed at her failure to bond with him.

The trial was told the infant had been under a care order after suffering a broken leg while living with his mother and her boyfriend in Birmingham, and was returned to them just days before his death.

Ms Kai-Whitewind, who changed her name after adopting native American culture, had told a psychiatric nurse she had thought about killing the baby, who was conceived as a result of rape. Blood was found in the boy's nose and mouth, and his mother had delayed calling an ambulance after he stopped breathing.

But she denied having anything to do with his death, claiming it was from natural causes. She refused to give evidence or plead guilty to infanticide or manslaughter on the grounds of diminished responsibility.

Under the 1938 Infanticide Act, a woman who kills her child when it is less than a year old and "while the balance of her mind was disturbed by reason of the fact that she had not fully recovered from the effect of giving birth", should not be found guilty of murder.

Of the 49 women convicted of infanticide between 1989 and 2000, only two were jailed; the rest were given probation, supervision or hospital orders.

But because Ms Kai-Whitewind did not admit her guilt and refused to undergo psychiatric reports, she was convicted of murder and given a life sentence.

Giving their ruling yesterday, the deputy chief justice, Lord Justice Judge, sitting with Mrs Justice Hallett and Mr Justice Leveson, said her conviction was "safe". But Lord Justice Judge added: "The law relating to infanticide is unsatisfactory and outdated. The appeal in this sad case demonstrates the need for a thorough re-examination."

He said a "particular area of concern" was that the infanticide defence was restricted to a mother being affected by the actual birth and not subsequent events, such as a lack of bonding. He added: "The second problem arises when the mother who has in fact killed her infant is unable to admit it.

"This may be because she is too unwell to do so, or too emotionally disturbed by what she has in fact done, or too deeply troubled by the consequences of an admission of guilt on her ability to care for any surviving children. When this happens, it is sometimes difficult to produce psychiatric evidence relating to the balance of the mother's mind.

"Yet, of itself, it does not automatically follow from denial that the balance of her mind was not disturbed: in some cases it may indeed help to confirm that it was."

About five infanticide convictions a year are handed down in England and Wales. One in 500 new mothers suffers from puerperal psychosis, a severe form of mania which can result in them harming themselves or their babies. Most cases are now spotted before a tragic incident occurs.

But lawyers say some of the most vulnerable women are still being jailed by the criminal justice system. Helena Kennedy QC, who has defended several women accused of killing their children, said in an interview last year: "The problem in these cases is that unless a woman says 'I did it', you can't mount a psychiatric defence. You can't go behind her back and get a psychiatric report.

"The problem is that these women can't admit it to themselves, and they certainly can't admit it to their partners. The problem for the lawyer is getting the woman to acknowledge it herself. It's complex."

Until 1922, the killing of a child was a capital offence, but juries had become so sympathetic to women accused in such cases that the first infanticide law was brought in to cover newborn babies. In 1938, it was extended to the killing by a mother of babies up to a year old.

Homicide of children under one is greater than that of any other age group, four times higher than the murder rate in the population. Countries such as Sweden now ask a panel of doctors to try such cases, rather than a judge and jury.

Start your day with The Independent, sign up for daily news emails
ebooksA celebration of British elections
Cristiano Ronaldo celebrates his goal for Real Madrid against Juventus
Ed Miliband and David Cameron are neck and neck in the polls
election 2015Armando Iannucci: on how British politics is broken
Arts and Entertainment
Harrison Ford plays Indiana Jones in The Last Crusade (1989)
Life and Style
Great minds like Einstein don't think alike
Arts and Entertainment
Billie Piper as Brona in Penny Dreadful
tvReview: It’s business as usual in Victorian London. Let’s hope that changes as we get further into the new series spoiler alert
Life and Style
A nurse tends to a recovering patient on a general ward at The Queen Elizabeth Hospital in Birmingham
Fans take a selfie with Ed Miliband in Kempston, near Bedford, on Tuesday
election 2015
Arts and Entertainment
No Offence
tvReview: No Offence has characters who are larger than life and yet somehow completely true to life at the same time spoiler alert
Chuck Norris pictured in 1996
Arts and Entertainment
Sarah Lucas, I SCREAM DADDIO, Installation View, British Pavilion 2015
artWhy Sarah Lucas is the perfect choice to represent British art at the Venice Biennale
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?

Day In a Page

General Election 2015: Ed Miliband's unlikely journey from hapless geek to heart-throb

Miliband's unlikely journey from hapless geek to heart-throb

He was meant to be Labour's biggest handicap - but has become almost an asset
General Election 2015: A guide to the smaller parties, from the the National Health Action Party to the Church of the Militant Elvis Party

On the margins

From Militant Elvis to Women's Equality: a guide to the underdogs standing in the election
Amr Darrag: Ex-Muslim Brotherhood minister in exile still believes Egypt's military regime can be replaced with 'moderate' Islamic rule

'This is the battle of young Egypt for the future of our country'

Ex-Muslim Brotherhood minister Amr Darrag still believes the opposition can rid Egypt of its military regime and replace it with 'moderate' Islamic rule, he tells Robert Fisk
Why patients must rely less on doctors: Improving our own health is the 'blockbuster drug of the century'

Why patients must rely less on doctors

Improving our own health is the 'blockbuster drug of the century'
Sarah Lucas is the perfect artist to represent Britain at the Venice Biennale

Flesh in Venice

Sarah Lucas has filled the British pavilion at the Venice Biennale with slinky cats and casts of her female friends' private parts. It makes you proud to be a woman, says Karen Wright
11 best anti-ageing day creams

11 best anti-ageing day creams

Slow down the ageing process with one of these high-performance, hardworking anti-agers
Juventus 2 Real Madrid 1: Five things we learnt, including Iker Casillas is past it and Carlos Tevez remains effective

Juventus vs Real Madrid

Five things we learnt from the Italian's Champions League first leg win over the Spanish giants
Ashes 2015: Test series looks a lost cause for England... whoever takes over as ECB director of cricket

Ashes series looks a lost cause for England...

Whoever takes over as ECB director of cricket, says Stephen Brenkley
Fishing for votes with Nigel Farage: The Ukip leader shows how he can work an audience as he casts his line to the disaffected of Grimsby

Fishing is on Nigel Farage's mind

Ukip leader casts a line to the disaffected
Who is bombing whom in the Middle East? It's amazing they don't all hit each other

Who is bombing whom in the Middle East?

Robert Fisk untangles the countries and factions
China's influence on fashion: At the top of the game both creatively and commercially

China's influence on fashion

At the top of the game both creatively and commercially
Lord O’Donnell: Former cabinet secretary on the election and life away from the levers of power

The man known as GOD has a reputation for getting the job done

Lord O'Donnell's three principles of rule
Rainbow shades: It's all bright on the night

Rainbow shades

It's all bright on the night
'It was first time I had ever tasted chocolate. I kept a piece, and when Amsterdam was liberated, I gave it to the first Allied soldier I saw'

Bread from heaven

Dutch survivors thank RAF for World War II drop that saved millions
Britain will be 'run for the wealthy and powerful' if Tories retain power - Labour

How 'the Axe' helped Labour

UK will be 'run for the wealthy and powerful' if Tories retain power