Scrap outdated infanticide law, say judges

Three Court of Appeal judges have called for a review of the "outdated and unsatisfactory" law on infanticide after upholding the conviction of a mother for the murder of her baby.

Three Court of Appeal judges have called for a review of the "outdated and unsatisfactory" law on infanticide after upholding the conviction of a mother for the murder of her baby.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