An update on the law of infanticide: a review of cases over the past 20 years by the Cambridge Pro-Bono Project

Last year I wrote an article highlighting a number of high-profile prosecutions pursued against women for causing the death of a foetus or child during the perinatal period (i.e. during pregnancy and post-birth). 

Since then, further developments have been reported: 

• Constance Marten has been tried and found guilty of concealing the birth of her child and perverting the course of justice by concealing the body. She faces a retrial on the offences of manslaughter by gross negligence and causing or allowing the death of a child.
• Hayley MacFarlane pleaded guilty to infanticide after causing the death of her 5-month-old child while suffering from depression and post-partum psychosis. She was given an indefinite hospital order.
• Jia Xin Teo a 22 year-old student who gave birth and placed the baby in cornflake box to hide the body is currently is being tried for murder with the jury being given the option of infanticide as an alternative. 

Under Section 1(1) of the Infanticide Act 1938 a woman may be charged with infanticide or raise it as a defence to murder under Section 1(2). It is a significant piece of legislation that can only be committed by a woman against her biological child which must be under 12 months old, and arises in circumstances where she is accused of causing the death of the infant by wilful act or omission at a time when the “the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.”  

The effect of this legislation is to allow a woman to enter a plea to infanticide, or to have a jury return a verdict of infanticide or manslaughter as an alternative to murder. 

A woman convicted of infanticide can receive a custodial sentence aligned with the sentencing guidelines for manslaughter. The maximum sentence for manslaughter is life imprisonment but the nature of the infanticide offence means cases are likely to fall within the bottom category for culpability, starting at two years custody. This is a sharp contrast to the steep life sentences attracted by convictions for murder. 

The significant difference in sentence means it is clearly more beneficial to be convicted of infanticide over murder, yet a recent report by the Cambridge Pro-Bono Project (CPP) found the outcomes of these cases were inconsistent in terms of the verdicts being returned and the success of the defence where infanticide was raised. 

Their findings were that between 2002 – 2024, 17 women were found or pleaded guilty to causing the death of their biological child under the age of 12 months: 

• Seven resulted in murder convictions with minimum specified terms ranging from 12 – 18 years. In some of these, infanticide was never raised as a defence or put to the jury. In the remainder where it was raised, the jury still returned a murder verdict.
• One case resulted in a woman pleading guilty to manslaughter. She was sentenced to 12 months imprisonment, suspended for two years. 
• Nine cases resulted in an infanticide conviction, out of these: 
  • Seven women were charged with murder but pleaded guilty to infanticide which was accepted.
  • Two women were found guilty of infanticide following a trial in which their principle charge was murder. 

Out of the women convicted of infanticide, sentences ranged from hospital detention orders to community orders or rehabilitation. 

What the report is not able to comment on is the number of cases that were diverted at pre-charge stage. This is because a freedom of information request on this point was refused by the CPS, leaving those figures unknown. It is an important point however, as the CPS plays a key role in deciding whether these cases are diverted at an early stage, what charges are laid if the case does progress, and whether pleas to lesser offences are accepted. 

Limited access to key documents such as the judge’s summing up and jury directions made it difficult for the CPP come to key conclusions on the difference in facts and outcomes between all these cases, however the information available showed the importance of quality psychiatric evidence in achieving a favourable result. An expert in perinatal psychiatry is particularly critical to explain conditions such as pregnancy denial, automatism and post-partum psychosis to satisfy the jury that “the balance of [the defendant’s] mind was disturbed” at the time the death was caused. 

The last time the law of infanticide was reviewed was in 2006 as part of the Law Commission’s review “Murder, Manslaughter and Infanticide”. The CPP considered the operation of the law since evidence was gathered for that report to make some of the following recommendations: 

1. The link between childbirth and mental disturbance is clear but probably multifactorial and the causes are not yet well understood. Amending the terms of the statute to broaden the wording beyond birth and lactation as a precipitant of mental disturbance and incorporating existing disorders preceding birth, would better reflect the reality of women’s post-partum disorders and the circumstances in which they arise and are exacerbated.
2. There is evidence that socio-economic factors following birth can have an equal if not greater impact on a woman’s mental state than birth or lactation. The language of the statute could be expanded to reflect that.
3. The language of the statute could be clarified to incorporate the judgment of the Court of Appeal in Tunstill [2018] EWCA Crim 1696 that ‘by reason of’ does not mean ‘solely by reason of’ rather, it is sufficient that the effects of childbirth was a ‘substantial or operating cause’ of the disturbance in the balance of the mind. 
4. The effects of postpartum psychosis may last beyond a year, which makes the 12 month cut off of the Infanticide Act fairly arbitrary. The statute could be amended to adopt the approach of the courts in Victoria, Australia, where their infanticide act covers deaths of children up to two years.

While this report notes the need for potential law reform, much can be done through the existing legal framework if further direction is offered by the appeal courts. Such an approach would neutralise the threat of the existing legislative provision being watered down or made more restrictive by the legislature and deliver change quicker.

The difficulty with that is the court’s interpretation of legislation is often limited to the set of issues before it, and the rarity of infanticide cases means it may be some time before all the kinks are ironed out. It also places a great deal of power in the interpretation of the presiding judges who may also take a conservative view of the legislation. 

A further problem that requires no significant legal change are the instances where infanticide is not raised as a defence or an alternative charge at all. This may reflect the relative rarity of these cases and the lack of knowledge about infanticide even amongst experienced defence practitioners. Aside from depriving juries of an alternative to murder, this means defendants may be unaware of a valid defence open to them and legal teams may fail to secure the right expert evidence in a timely fashion to ensure its success. To help address this knowledge gap, the Perinatal Legal Project have gathered together some resources to assist advocates conducting these cases. 

What will hopefully be taken forward from the CPP’s research is more conversation about infanticide and whether the laws are fit for purpose and being applied in a way that is consistent with the intention of the legislature at the time they were made. We need to consider the unique nature of these cases and how they are being handled at each stage, to achieve the best results possible for the vulnerable women caught in these circumstances.

• You can access the full report by the Cambridge Pro-Bono Project here.
• You can access a recording of a seminar on the law of infanticide held at Doughty Street Chambers here.
• You can access materials on infanticide and related offences at the Perinatal Legal Project website here.
• The recommendations of the CPP report followed a review of the available case law, media reports, comparative case law and legislation in Australia and Ireland and some psychiatric journals. In respect of the report’s comments on the latter, it is right to note that the CPP authors came from the Law Faculty with the time limitations of an academic year in the preparation of the report. Therefore, any review of the medical literature contained in the report and the conclusions drawn from it cannot be considered definitive and readers are encouraged to consider resources available from organisations that specialise in perinatal mental health such as Action on Post Partum Psychosis.  

Karlia Lykourgou’s is a barrister at Doughty Street Chambers specialising in crime, professional discipline, and inquiries.