Child destruction
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Child destruction is the name of a
statutory A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
offence in
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
,
Northern Ireland Northern Ireland ( ga, Tuaisceart Éireann ; sco, label= Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is variously described as a country, province or region. Nort ...
and
Hong Kong Hong Kong ( (US) or (UK); , ), officially the Hong Kong Special Administrative Region of the People's Republic of China ( abbr. Hong Kong SAR or HKSAR), is a city and special administrative region of China on the eastern Pearl River Delt ...
. The offence of that name has been abolished and replaced in
Victoria, Australia Victoria is a state in southeastern Australia. It is the second-smallest state with a land area of , the second most populated state (after New South Wales) with a population of over 6.5 million, and the most densely populated state in Au ...
. Child destruction is the crime of killing an unborn but viable
foetus A fetus or foetus (; plural fetuses, feti, foetuses, or foeti) is the unborn offspring that develops from an animal embryo. Following embryonic development the fetal stage of development takes place. In human prenatal development, fetal develo ...
; that is, a child "capable of being born alive", before it has "a separate existence". People have been convicted of the offence for injuring a heavily pregnant woman in the abdomen, such that her foetus dies; for killing a foetus during
childbirth Childbirth, also known as labour and delivery, is the ending of pregnancy where one or more babies exits the internal environment of the mother via vaginal delivery or caesarean section. In 2019, there were about 140.11 million births globall ...
; or for performing a
late-term abortion Late termination of pregnancy, also referred to as late-term abortion, describes the termination of pregnancy by induced abortion during a late stage of gestation. In this context, ''late'' is not precisely defined, and different medical publicati ...
. The purpose of the offence is to criminalise the killing of a child during its birth, because this is neither abortion nor homicide for the purposes of the criminal law. It can also be used to prosecute late abortions.Card, Richard (editor). Card, Cross and Jones: Criminal Law. Twelfth Edition. Butterworths. 1992. . ¶¶11.82–83. During the second reading of the Preservation of Infant Life Bill 1928 to 1929,
Lord Atkin James Richard Atkin, Baron Atkin, (28 November 1867 – 25 June 1944), commonly known as Dick Atkin, was an Australian-born British judge, who served as a lord of appeal in ordinary from 1928 until his death in 1944. He is especially remembere ...
said:


England and Wales


Statute

In
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
, the offence is created by section 1(1) of the
Infant Life (Preservation) Act 1929 The Infant Life (Preservation) Act 1929 is an Act of the Parliament of the United Kingdom. It created the offence of child destruction. The Act retains three sections, the most substantive legal changes of which are in the first section. The B ...
:


"Capable of being born alive"

See C v S 988QB 135, 9872 WLR 1108, 9871 All ER 1230, 9872 FLR 505, (1987) 17 Fam Law 269, CA (Civ Div) In a 1991 case Brooke J said that a child is "born alive" if "after birth, it exists as a live child, that is to say breathing and living by reason of its breathing through its own lungs alone, without deriving any of its living or power of living by or through any connection with its mother." As originally enacted, section 5(1) of the
Abortion Act 1967 The Abortion Act 1967 is an Act of the Parliament of the United Kingdom legalising abortions on certain grounds by registered practitioners, and regulating the tax-paid provision of such medical practices through the National Health Service (NHS ...
described the Infant Life (Preservation) Act 1929 with suffix "(protecting the life of the viable foetus)". It was held that this description would not alter its effect. The defence suggestion that "viable" had a narrower meaning thus described fewer foetuses than "capable of being born alive" was rejected in 1991. By 2000, David Ormerod opines that a definition of "born alive" taken from the 1991 case is not of universal application and that an example of a case where it was not applicable was Re A (Children), where a conjoined twin who never drew breath was considered to have been born alive. Applicability after 28 weeks' gestation has been reduced to 24 weeks.


"Felony"

The distinction between felony and misdemeanour was abolished by the
Criminal Law Act 1967 The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom that made some major changes to English criminal law, as part of wider liberal reforms by the Labour government elected in 1966. Most of it is still in force. Territ ...
. That Act directs that "any enactment creating an offence by directing it to be felony shall be read as directing it to be an offence".


"Penal servitude"

The reference to a sentence of penal servitude must be construed as a reference to a sentence of imprisonment: The
Criminal Justice Act 1948 The Criminal Justice Act 1948 () is an Act of the Parliament of the United Kingdom. Overview It is "one of the most important measures relating to the reform of the criminal law and its administration". It abolished: * penal servitude, har ...
, section 1(1).


Defence

A
registered medical practitioner A physician (American English), medical practitioner ( Commonwealth English), medical doctor, or simply doctor, is a health professional who practices medicine, which is concerned with promoting, maintaining or restoring health through t ...
who terminates a pregnancy in accordance with the provisions of the Abortion Act 1967 does not commit this offence.


Mode of trial

Child destruction is an
indictable-only offence In many common law jurisdictions (e.g. England and Wales, Ireland, Canada, Hong Kong, India, Australia, New Zealand, Malaysia, Singapore), an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing ...
.


Sentence

Child destruction is punishable with
imprisonment for life Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes fo ...
or for any shorter term.


Early release of prisoners

Child destruction is an "excluded offence" for the purposes of section 32 of the
Criminal Justice Act 1982 In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...
.


History

Before 1 April 1991, section 5(1) of the Abortion Act 1967 provided that nothing in that Act affected the provisions of the Infant Life (Preservation) Act 1929. That section was substituted by section 37(4) of the
Human Fertilisation and Embryology Act 1990 The Human Fertilisation and Embryology Act 1990 is an Act of the Parliament of the United Kingdom. It created the Human Fertilisation and Embryology Authority which is in charge of human embryo research, along with monitoring and licensing fertil ...
.


Incidence

The charge of child destruction is rare. There were ten cases in the ten years to 1987. When a woman who had a backstreet abortion while 7½ months pregnant was given a
suspended sentence A suspended sentence is a sentence on conviction for a criminal offence, the serving of which the court orders to be deferred in order to allow the defendant to perform a period of probation. If the defendant does not break the law during that ...
of 12 months in 2007, the
Crown Prosecution Service The Crown Prosecution Service (CPS) is the principal public agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions. The main responsibilities of the CPS are to provide legal adv ...
was unaware of any similar conviction. In 2000, a man stamped on his girlfriend's abdomen and thereby caused her to go into premature labour. Since he had intended to kill the foetus in the womb, whereas in fact the baby died shortly after birth, he was convicted of
manslaughter Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th cen ...
and
attempt An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step toward completing the crime, but for reasons not intended by the criminal, the final resulting crime does not occur.''Criminal Law - ...
ed child destruction. In 2012, a woman who self-administered an abortion drug when 39 weeks pregnant was convicted of unlawful abortion under the 1861 Act. The sentencing judge remarked that she might equally have been charged with child destruction. In 2015, Kevin Wilson and an accomplice, who was under eighteen and could not be legally named, were convicted of child destruction and
grievous bodily harm Grievous bodily harm (often abbreviated to GBH) is a term used in English criminal law to describe the severest forms of battery. It refers to two offences that are created by sections 18 and 20 of the Offences against the Person Act 1861. The ...
after they beat and kicked Wilson's pregnant ex-girlfriend, causing fatal injuries to the foetus.


Northern Ireland

In
Northern Ireland law The law of Northern Ireland is the legal system of statute and common law operating in Northern Ireland since the partition of Ireland established Northern Ireland as a distinct jurisdiction in 1921. Prior to 1921, Northern Ireland was part of ...
, the offence is created by section 25(1) of the
Criminal Justice Act (Northern Ireland) 1945 The Criminal Justice Act (Northern Ireland) 1945 (c. 15) is an Act of the Parliament of Northern Ireland. Section 25 of the Act creates the offence of child destruction, which states: This section provides a defence of acting in good faith to ...
.


Sentence

Child destruction is punishable with
imprisonment for life Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes fo ...
or for any shorter term.


Use

The first conviction for this offence was in 2000. The
coroner A coroner is a government or judicial official who is empowered to conduct or order an inquest into Manner of death, the manner or cause of death, and to investigate or confirm the identity of an unknown person who has been found dead within th ...
reporting on the 1998
Omagh bombing The Omagh bombing was a car bombing on 15 August 1998 in the town of Omagh in County Tyrone, Northern Ireland. It was carried out by the Real Irish Republican Army (Real IRA), a Provisional Irish Republican Army (IRA) splinter group who oppose ...
recommended that the
Director of Public Prosecutions for Northern Ireland The Director of Public Prosecutions (DPP) is the head of the Public Prosecution Service of Northern Ireland, and is appointed by the Attorney General for Northern Ireland. The position of DPP was established in 1972. The current DPP is Stephen He ...
should prosecute for two counts of child destruction as well as 29 of murder, as one of the people killed was 34 weeks pregnant with twins.


Australia

Each
state and territory of Australia The states and territories are federated administrative divisions in Australia, ruled by regional governments that constitute the second level of governance between the federal government and local governments. States are self-governing pol ...
has a separate criminal code. The offence is called "killing unborn child" and can be committed only around the time of childbirth in
Queensland ) , nickname = Sunshine State , image_map = Queensland in Australia.svg , map_caption = Location of Queensland in Australia , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , established_ ...
,
Western Australia Western Australia (commonly abbreviated as WA) is a state of Australia occupying the western percent of the land area of Australia excluding external territories. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to th ...
, and the
Northern Territory The Northern Territory (commonly abbreviated as NT; formally the Northern Territory of Australia) is an states and territories of Australia, Australian territory in the central and central northern regions of Australia. The Northern Territory ...
. It is called "causing death of child before birth" in
Tasmania ) , nickname = , image_map = Tasmania in Australia.svg , map_caption = Location of Tasmania in AustraliaCoordinates: , subdivision_type = Country , subdi ...
. In South Australia, it comes under the heading of "
abortion Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or "spontaneous abortion"; these occur in approximately 30% to 40% of pregn ...
". The definition is somewhat broader in the
Australian Capital Territory The Australian Capital Territory (commonly abbreviated as ACT), known as the Federal Capital Territory (FCT) until 1938, is a landlocked federal territory of Australia containing the national capital Canberra and some surrounding townships. ...
, and comparably broad to English law in Tasmania and
South Australia South Australia (commonly abbreviated as SA) is a state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of , it is the fourth-largest of Australia's states and territories ...
. The offence was abolished in
Victoria Victoria most commonly refers to: * Victoria (Australia), a state of the Commonwealth of Australia * Victoria, British Columbia, provincial capital of British Columbia, Canada * Victoria (mythology), Roman goddess of Victory * Victoria, Seychelle ...
by the
Abortion Law Reform Act 2008 (Victoria) The Abortion Law Reform Act 2008 is an abortion law reform passed by the Parliament of Victoria, Victorian Parliament in the Australian state of Victoria (Australia), Victoria in 2008. The reform bill sought to amend section 65 of the Crimes Act 1 ...
.
New South Wales ) , nickname = , image_map = New South Wales in Australia.svg , map_caption = Location of New South Wales in AustraliaCoordinates: , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , es ...
does not have a child destruction enactment, but the Crimes Amendment (Grievous Bodily Harm) Act 2005 (NSW) amended the
Crimes Act 1900 The ''Crimes Act'' 1900. is a New South Wales statute that sets out the majority of criminal offences for the state of New South Wales in Australia. It, the Commonwealth Crimes Act 1914. and the Commonwealth Criminal Code Act 1995 form the major ...
(NSW) so that s 4(1)(a) now defines "grievous bodily harm" as including "the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm".


Hong Kong

Child destruction is defined in section 47B of the
Offences against the Person Ordinance Offences Against the Person Act (with its variations) is a stock short title used for legislation in the United Kingdom, in the Republic of Ireland, in Hong Kong, in New Zealand, in Tasmania, in Jamaica, and in Antigua and Barbuda, relating to offe ...
.The
Offences against the Person Ordinance Offences Against the Person Act (with its variations) is a stock short title used for legislation in the United Kingdom, in the Republic of Ireland, in Hong Kong, in New Zealand, in Tasmania, in Jamaica, and in Antigua and Barbuda, relating to offe ...

section 47B
Digitised copy from the
Hong Kong Legal Information Institute The Hong Kong Legal Information Institute (HKLII; pronounced "H K Lee") is a non-governmental organisation in Hong Kong. Its mission is to provide free access to primary legal materials (and some publicly available secondary material) from Hong ...
. Accessed on 27 February 2012.
A person guilty of child destruction is liable to be punished as though he was guilty of
manslaughter Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th cen ...
. This means that he is liable to imprisonment for life and to pay such fine as the court may award.The
Offences against the Person Ordinance Offences Against the Person Act (with its variations) is a stock short title used for legislation in the United Kingdom, in the Republic of Ireland, in Hong Kong, in New Zealand, in Tasmania, in Jamaica, and in Antigua and Barbuda, relating to offe ...

section 7
/ref>


See also

*
Born alive rule The born alive rule is a common law legal principle that holds that various criminal laws, such as homicide and assault, apply only to a child that is " born alive". U.S. courts have overturned this rule, citing recent advances in science and medic ...
*
Foeticide Foeticide (British English), or feticide (American and Canadian English), is the act of killing a fetus, or causing a miscarriage. Etymology Foeticide derives from two constituent Latin roots. ''Foetus'', meaning child, is an alternate form of ...


References

{{English criminal law navbox Infanticide Abortion law Pregnancy with abortive outcome