Coronial powers and the rights of the unborn (Part 1)

In this two-part article, Maya Sikand KC, Tom Stoate, and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield. 

This first part seeks to answer the question: should coroners have jurisdiction to investigate stillbirths?

The second part will examine whether foetuses should enjoy Article 2 rights which do not conflict with the rights of the mother.

Rianna Cleary, who was 18 years old at the time, gave birth to Aisha Cleary alone in her cell in HMP Bronzefield, on the night of 26 September 2019, without medical or any other assistance. Ms Cleary’s two calls for help via the prison emergency intercom system in her cell were first ignored, then unanswered – despite there being a 24-hour nursing station on her wing in the prison. Terrified and in pain, without knowing what to do, Ms Cleary felt compelled to bite through her umbilical cord. Aisha’s birth was not discovered by prison staff until the next morning – after other prisoners raised their concerns – at which time Aisha was ‘not moving, had a tinge of blue on her lips, but was still warm’.^[1] Unsuccessful resuscitation attempts were made, with an adult oxygen mask in the absence of any paediatric or neo-natal mask. Less than an hour later, paramedics confirmed that Aisha had died.  The Senior Coroner for Surrey, Richard Travers, stated that Aisha ‘arrived into the world in the most harrowing of circumstances’.^[2] 

Following a month-long inquest, involving ten interested persons (‘IPs’) and more than 50 witnesses, including three expert witnesses, Mr Travers concluded that numerous causative failings contributed to Aisha’s death.

A case for coronial jurisdiction 

Ms Cleary lost consciousness during Aisha’s birth, so she did not know whether Aisha was stillborn or died shortly after birth. Expert evidence from Dr Andreas Marnerides, the eminent paediatric pathologist who conducted baby Aisha’s post-mortem, and Ruth Mason, an independent consultant obstetrician and gynaecologist instructed by the Senior Coroner, was inconclusive on this central issue.^[3] This uncertainty created a legal quandary for the Court due to the opaque legal framework surrounding coronial jurisdiction in the case of a stillbirth or possible stillbirth.

Section 1(2) of the Coroners and Justice Act 2009 (‘CJA’) provides:

Duty to investigate certain deaths

• A senior coroner who is made aware that the body of a deceased person is within that coroner’s area must as soon as practicable conduct an investigation into the person’s death if subsection (2) applies
• This subsection applies if the coroner has reason to suspect that—

(a) the deceased died a violent or unnatural death,

(b) the cause of death is unknown, or

(c) the deceased died while in custody or otherwise in state detention.

In the case of R (on the application of T) v HM Senior Coroner for West Yorkshire [2017] EWCA Civ 318, [2018] 2 WLR 21, the Court of Appeal held that, so long as a coroner suspects that one of the matters set out in s.1(2) was ‘in play’, the coroner can investigate and conduct an inquest into the death of a baby who might or might not have been born alive, without first being satisfied on the balance of probabilities that the baby had been born alive. 

In Aisha’s case, the Senior Coroner accepted that the conditions in s.1(2) did apply and opened an inquest into her death. 

However, as is set out in the recent Chief Coroner’s Guidance No.45, and as has been covered on the UKHRB previously, coroners do not have jurisdiction to conduct an investigation in relation to a stillborn baby because ‘where there has not been an independent life, there has not legally been a death’.^[4]  The definition of a stillborn child in this context is: ‘one which has issued forth from its mother after the 24th week of pregnancy and which did not at any time after being completely expelled from its mother breathe or show any other signs of life’.^[5] As established in T, where there is doubt over whether a child was born alive, a coroner has a discretion to hold an investigation to determine that fact. However, the coronial powers that flow from that finding remain unclear. 

At the close of the inquest, Mr Travers concluded that: ‘Aisha was either born alive and died shortly afterwards, or she died before her delivery, but not more than 24 hours earlier’.^[6] Despite submissions from a number of IPs to the effect that this finding meant that Mr Travers did not have jurisdiction to complete a Record of Inquest in full, Mr Travers determined: 

‘my finding that Aisha may have been born alive and died is sufficient to permit and, indeed, to require me to record my relevant findings on the matters raised in section 5 of the 2009 Act. I consider that it would be wholly wrong for me to treat Aisha’s death as if I had made a finding of stillbirth’.^[7]

Bereaved parents of stillborn children have campaigned, over many years, for coroners to have jurisdiction to investigate still births.^[8] Aisha’s case highlights the arbitrary nature of the delineation between, for example, the death of a full-term foetus in utero – or even intrapartum in the vaginal canal – and the death of a baby moments after birth who draws a single breath. Whether an inquest can be opened or continue, or which conclusions a coroner is ultimately entitled to make, may turn on a clinical analysis of the pattern of aeration in the alveoli of the lungs,^[9] or witness evidence as to whether the umbilical cord was seen to have been ‘pulsing’.^[10] This bright-line test gives rise to a level of uncertainty which is likely to be distressing for family members: whether an inquest can be heard in cases where it is not immediately clear whether a baby was born alive becomes a matter of legal and factual argument (as was the case in Aisha’s Inquest); and even where it is determined that an inquest can be opened, the risk that it may be halted if evidence demonstrates that the child was in fact stillborn permeates the entire process, causing inevitable further distress. 

In Aisha’s case, it was possible to proceed from an initial investigation to an inquest, and to hear the evidence to its conclusion, because, sadly, there was doubt about whether she was born alive or was stillborn. However, it is often the case that any uncertainty is resolved at an earlier stage. This was the case in 2020, when Senior Coroner Caroline Beasley-Murray felt legally compelled to halt an inquest, after hearing evidence which satisfied her that Baby Freddie, who died as a result of excessive force during an attempted forceps delivery, had not been born alive.^[11] She subsequently wrote to the Ministry of Justice urging it to revisit plans to make it possible to hold inquests into stillbirths.^[12] She stated in her Report to Prevent Future Deaths that it ‘would have been helpful for there to have been, during the course of the inquest, an exploration, in the course of evidence, of the treatment and care provided to baby Freddie and his parents at the time of delivery’. ^[13]

The coroner was referring to the stalled Government consultation, launched in 2019, to consider whether coroners should have powers to investigate stillbirths.^[14] In that consultation, the Government proposed that stillbirths occurring at or after the 37^thweek of gestation (considered full-term in the U.K.) should be within a coroner’s powers to investigate. The 334 consultation responses included those from bereaved parents, charities and clinicians.^[15] The Royal College of Pathologists highlighted the unequal impact of the law as between cases of perinatal death:

‘the current situation – where early neonatal deaths soon after birth are subject to coronial investigation, whereas intrapartum stillbirths (occurring possibly only a few minutes earlier) are not – leads to inequity in investigation of perinatal deaths, which often have similar underlying causes’.^[16]

The Nursing and Midwifery Council (‘NMC’) stated that ‘some cases would benefit with independent investigations by the coroner’;^[17] and that the NMC ‘would welcome any proposals which ensure the process of learning from these incidents is streamlined, helping us to take action to protect the public, where needed, as quickly as possible’.^[18] Sands,^[19] a stillbirth and neonatal death charity, supported the proposal for coroners to have jurisdiction to investigate ‘where that is requested by the family of the stillborn child’.^[20]

In contrast, Birthrights,^[21] a charity which promotes human rights in childbirth was firmly against the proposal due to concerns it could ‘cause additional distress to families at an already traumatic time’, although it took the view that distress could be mitigated by requiring the consent of the bereaved.^[22]

The consultation process was completed in June 2019, but the government has failed to report to date. Tim Loughton MP sought an update in Parliament as recently as July 2023 and was assured by Maria Caulfield, Parliamentary Under-Secretary of State for Mental Health and Women’s Health Strategy, that those involved ‘hope to publish [the report] very soon’.^[23]

In Northern Ireland (‘NI’) in 2013, in a landmark Court of Appeal decision, it was held that coroners have jurisdiction to carry out an inquest into the stillbirth of a viable foetus.^[24] The claimant in that case was Siobhan Desmond, whose child, Axel, was stillborn. The cause of the stillbirth was unclear, but at least one report took the view that the hospital where Axel was born was responsible.^[25] The Court of Appeal held that the words ‘deceased person’ in the relevant legislation,^[26] which was silent on cases of stillbirth, ‘include[d] a foetus in utero then capable of being born alive’.^[27] This resulted in 61 referrals of stillbirths to coroners between November 2013 and December 2014. The vast majority (47) of those referrals, however, were closed by way of a death certificate, without an investigation.^[28] Data from the five years to April 2021 shows that only 7% of stillbirths in NI were in fact referred to a coroner.^[29] Media coverage has suggested that coronial investigations into stillbirths are preventing future deaths,^[30] and, a decade on from that landmark ruling, it does not appear that there is a campaign by parents of stillborn children to bring an end to, or place limitations upon, the coroner’s jurisdiction.

The present state of the law in England and Wales means that opportunities to prevent future deaths in cases of stillbirth risk are being missed. Certainly, cases like Baby Freddie’s, where there is suspected medical negligence, or baby Aisha’s, where there are suspected causative State failures, should not be beyond the reach of the coronial courts. A reform of the law on coronial jurisdiction to include such cases could be set out in the legislative framework in comparable terms to the test for when an inquest must be heard with a jury, as set out in s.7(2) of the CJA, where, for example, coroners will have jurisdiction over a stillbirth or possible stillbirth if the senior coroner has reason to suspect that a public body (or a body exercising public powers) may have caused or contributed to the risk of stillbirth. 

Coroners should also have the power to conduct an enhanced investigation, comparable to an Article 2 investigation, where it is at least arguable (adopting the low threshold in the Article 2 case law) that actions or failings on the part of a State agency may have caused or contributed to the outcome of the pregnancy being a stillbirth.^[31]

This pragmatic solution would: hold the State to account; offer greater clarity at an earlier stage as to whether there is jurisdiction; provide much needed answers to bereaved family members of (potentially) stillborn babies; and allow independent, public investigations capable of preventing future stillbirths.

Maya Sikand KC and Tom Stoate are barristers who acted for Aisha’s mother in the inquest into her death, and Ruby Peacock is a pupil barrister, all at Doughty Street Chambers.