Infanticide and the criminal law

What is meant by infanticide?

Under the criminal law of England and Wales, infanticide is both an offence in its own right and a partial defence to the charge of murder. Only a biological mother who kills her own child within 12 months of the birth can be charged with infanticide or rely on it as a defence. The death can be by either act or omission.

Infanticide Act 1938

Under s 1 of the Infanticide Act 1938, (as amended by s 57 of the Coroners and Justice Act 2009), infanticide can apply where a woman:

  • by any wilful act or omission;
  • causes the death of her child who is aged under 12 months;
  • but at the time of the act or omission 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 caused by the birth of the child then;
  • notwithstanding that the circumstances were such that, but for this Act, the offence would have amounted to murder;
  • she shall be guilty of an offence of infanticide; and
  • may for such an offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child.

R v Gore (2007) EWCA Crim 2789 established that there is no need for all the ingredients of murder to be proved before a defendant could be convicted of infanticide. The case confirmed that the aim of Parliament was to create a new offence of infanticide which covered circumstances much wider than offences that would otherwise be murder. The mens rea for infanticide, therefore, does not require any intention to kill or cause serious bodily harm.

Burden of proof

In a case where infanticide is claimed for an offence that otherwise would have been framed as murder or manslaughter the burden of proof is on the prosecution to disprove a claim of infanticide beyond a reasonable doubt.

What will be the punishment for a mother convicted of infanticide?

The maximum penalty for infanticide is life imprisonment. However, in practice a non-custodial sentence is usually the outcome. This non-custodial sentence will however, often be subject to a treatment or a hospital order.

Problems with the law of infanticide

The possibility that infanticide could be found in cases whereby a homicide could not be established was an issue which has been highlighted by the Law Commission. For example, the interpretation of ‘wilful act’, could include a negligent act which falls below the standard of gross negligence which is necessary for the offence of manslaughter to be established. Following this, the Coroners and Justice Act 2009 clarified the position that infanticide cannot be charged in circumstances which would not lead to a homicide.

Infanticide versus diminished responsibility

Some feel the law surrounding infanticide should be abolished with the defence of diminished responsibility applying to this situation also. This has however, been rejected by both the Law Commission and the government as it is felt that in certain situations a mother who has killed her baby after giving birth in a clandestine environment – often very young mothers – would be unable to successfully plead diminished responsibility where the burden of proof rests with the defendant.

Other Important Information

*No Win No Fee

  • Although all our cases are handled on a no win no fee basis, other costs could be payable upon solicitors request. These will be fully explained to you before you proceed. Most customers will pay 25% (including VAT) of the compensation they are awarded to their law firm, although this may vary based on individual circumstances. Your solicitor may arrange for insurance to be in place for you to make sure your claim is risk free. Termination fees based on time spent may apply, or in situations such as: lack of cooperation or deliberately misleading our solicitors, or failing to go to any medical or expert examination, or court hearing.
  • *Criminal Injury Claims

  • If you want to make a claim for a criminal injury, you are not required to use the services of a claims management company to pursue the claim. You can submit your claim for free on your own behalf, directly to the Criminal Injury Compensation Authority (England, Wales, and Scotland) or the Criminal Injury Compensation Scheme (Northern Ireland).
About the Author

Nicola Laver LLB

Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.

When you submit your details, you'll be in safe hands. Our partners are National Accident Helpline (a brand of National Accident Law, a firm of personal injury solicitors regulated by the Solicitors Regulation Authority). They are the UK's leading personal injury service. Their friendly legal services advisers will call you to talk about your claim and give you free, no-obligation advice. National Accident Law may pay us a marketing fee for our services.

By submitting your personal data, you agree for your details to be sent to National Accident Law so they can contact you to discuss your claim.

If you win your case, your solicitor's success fee will be taken from the compensation you are awarded - up to a maximum of 25%. Your solicitor will discuss any fees before starting your case.