Judge asks: "Is it possible to die before one has been born?"

By Kathryn Torney

A CO Derry woman has vowed to continue with her legal battle to secure an inquest into the death of her stillborn son despite a setback in Belfast’s High Court today.

Mr Justice Treacy has dismissed a challenge by Attorney General John Larkin against a decision by senior coroner John Leckey not to hold an inquest into the death of Axel Desmond in 2001.

A spokesman for the Attorney General’s Office said this afternoon: “The Attorney is disappointed with the judgment and will be actively considering an appeal.”

In his judgement today, the judge said that the ramifications of allowing inquests to take place into stillbirths would reverberate widely and would have implications in other areas like abortion, stem cell research, IVF and cloning.

Axel died in Altnagelvin Hospital in October 2001. He was alive, moving and had a heart rate up to the moment his mother lost consciousness under anaesthetic for the caesarean delivery.

Ten years later an out-of-court settlement was agreed with the Western Health and Social Care Trust. There was no admission of liability on behalf of the trust.

The Detail first reported on Axel’s case in June 2011.

Axel’s mother Siobhan has campaigned for the past 11 years for the deaths of her son and other stillborn children to be afforded the same level of enquiry as children who have died after drawing breath, allowing learning to come from the preventable deaths.

In July last year, Mr Larkin directed that Mr Leckey should hold an inquest into Axel’s death after considering his case.

Mr Larkin referred to the level of protection afforded to the life of unborn children in Northern Ireland through the criminal offence of child destruction. However, Mr Leckey stated that he believed he did not have the legal authority to hold an inquest.

Inquests are currently not held into stillbirths anywhere in Britain and Ireland.

An inquest into a child who is ultimately deemed stillborn currently only takes place when there is doubt about whether there was a still or live birth. If it is determined that a stillbirth has occurred, there is no further investigation by the coroner into the cause of death nor any consideration of what could be done differently in the future.

During the judicial review application, Mr Leckey’s legal representatives argued that coroners in Northern Ireland have always held the view that they do not have jurisdiction to perform an inquest into stillbirths and that as there is no express provision it is up to the legislature to change this.

He also contended that the statutory interpretation of “person” did not encompass “a pre-natal child”.

The Attorney General argued that while there was no provision to expressly empower the coroner to perform an inquest into a stillborn, there was nothing that expressly denied it.

WHAT IS A PERSON?

Speaking this morning, Mr Justice Treacy said it was clear that there is no express statutory jurisdiction allowing coroners in Northern Ireland to conduct an inquest into the death of a stillborn child.

He said that while there was substantial persuasive evidence on both sides, there were also important and weighty policy issues at the core of the challenge, “such as ‘What is a person?’, ‘Is it possible to die before one has been born?’, ‘Is there a legal difference between life in the womb and life outside the womb?’”

His judgement continued: “While I have full sympathy for Ms Desmond and understand and in fact agree that stillbirth by medical negligence could be established in future as a special case – though I do not necessarily agree that an inquest is necessary, it cannot be the case that the current understanding of these philosophically fundamental policy issues can or should be addressed by a first instance court in the instant case where the focus is so narrow.”

Mr Justice Treacy said that given the ramifications of the policy issues, he was of the view that if the legislature had intended to confer this jurisdiction upon the coroners it would have “clearly and unambiguously” provided for in legislation.

He added that the longstanding practice of coroners not to conduct inquests into stillborn babies because of the perceived absence of jurisdiction had until now been without legal challenge.

He concluded: “The coroner was correct in refusing to comply with the Attorney General’s direction. I uphold the coroner’s interpretation of the (coronial) act. The application for judicial review must be dismissed.”

LOOKING FORWARD

Siobhan said that she hoped that the Attorney General would appeal the decision and that she was happy her case was being subjected to intense legal scrutiny.

She said: “This interpretation of the law we have been given today is hopefully an important step towards inquests into stillbirths being permitted in Northern Ireland and I am humbled by the amount of work that the Attorney General’s Office, the coroner’s office and the judge have put into my case so far.

“It is daunting that there is likely to be another stage to go through but I just have to look forward and know that this massive change is possible. I want the sharpest legal minds to be part of this process.

“The incredible love and emotion I feel for my child is only matched by my hope that something good and true will come out of his death.

“I was advised to prepare for a long legal process and I am willing to do that to ensure that the truth of what happened to Axel comes out in the end.”

It is understood that the Attorney General’s Office has six weeks to lodge an appeal against the decision.

Breda Hughes, from the Royal College of Midwives, also attended today’s hearing at Belfast’s High Court.

Speaking afterwards, she said: “This is the first time in 50 years that coronial jurisdiction has been tested.

“The ramifications if the judge had found the other way would have been immediate. The issues then we would then have needed to address would include whether we would have to notify the coroner of all stillbirths or only stillbirths of a certain gestation. And what if parents do not want an inquest?

“It would have thrown up very difficult scenarios and created a lot more questions than answers. Maybe sometime in the future that could still happen.

“If you change the legal concept of personhood this would also impact on issues like cloning, stem cell research and selective reduction of embryos.

“At the moment, a person is only legally a person when they show signs of life and are fully expelled from the mother.

“This was an interesting ruling and we will now wait to see if there are any future challenges.

“I do not think that the outcome today absolves the health service from carrying out its own detailed investigations into cases of stillbirth and loss.”