House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Written Evidence

Evidence submitted by NSPCC

EXECUTIVE SUMMARY

1. The NSPCC has long been concerned that the systems for investigating and reviewing child deaths are inadequate for ascertaining both the extent to which maltreatment is a factor in child deaths and how child deaths might be prevented. Any proposed changes to the coroner system should aim to create a system that is fit for the purpose of identifying, and helping to prevent, child deaths from abuse and neglect.

2. It is of critical importance that the evolving interpretation of Human Rights law as it affects the state's obligation to investigate deaths should be central to reform. As stated in the case of McKerr v The UK (May 4, 2001), there is a need for the court to "subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of state agents but also all the surrounding circumstances." We believe that this approach should be the touchstone for investigating child deaths, and the test by which reform of the coroner system should be judged in relation to children.

3. The NSPCC welcomed the statement in the Home Office Position Paper on Coroner Reform[24] that a reformed coroner system should have a clear focus on learning the lessons from deaths in order to develop strategies to avoid preventable deaths in future. We are concerned, however, that this paper, and the recent Department for Constitutional Affairs (DCA) briefing[25], does not give sufficient attention to child deaths, nor to the need for family and social factors to be an integral part of assessing a child's death and determining its cause.

PROBLEMS WITH THE EXISTING SYSTEM

4. Different studies of child deaths suggest that deaths potentially related to child maltreatment are sometimes missed. [26]Furthermore, "complex decision-making around child death [including the influence of parents' grief and the emotions of professionals] may be directly linked to an under-estimation of child homicides within official statistics".[27] It has been proposed that in some cases a Sudden Infant Death Syndrome (SIDS) diagnosis can be used to mask child abuse and to avoid asking awkward questions—"thus SIDS, in accepting uncertainty, has paradoxically acted to close down further enquiry." [28]

5. It is important that reformed systems should redress the current limitations of the child homicide figures, which are considered to be an under-estimate of the true number of child deaths following abuse and neglect for a number of reasons, including:

— The legal difficulty of proof of homicide

— The loss or lack of identification of a child's body

— Misdiagnosed "sudden infant death (SIDS) syndrome" deaths

— Cases where maltreatment is not the immediate cause of death and the child dies of "natural causes" including accidents.

The need for improved statistics

6. The "Statistics of Deaths Reported to Coroners: England and Wales", an annual statistical bulletin produced by the Home Office, includes details of the number of deaths reported to coroners and the proportion these form of all registered deaths. The number of post-mortems conducted, inquests held and verdicts returned at these inquests are all recorded. The information is broken down by sex but not by age. This is a serious omission. Evidence from the Office of National Statistics publication "Mortality Statistics—Childhood (Series DH3)", and research on child deaths referred to coroners[29] show that child deaths reported to coroners have a very different profile to that of all deaths.

7. It would greatly assist child protection professionals to monitor the effects of their prevention efforts if the Coroners' statistics were broken down by age to distinguish between the child and adult deaths. Ideally this would be: under 1, 1-4, 5-15 and 16 and over, in line with the Office of National Statistics' mortality data. Statistical data should be comparable across England, Wales and Northern Ireland.

8. To give a more accurate picture of the number of children killed in any one year the Office of National Statistics should produce a fresh table within Mortality Statistics showing the total child homicides over the past five years with the numbers of deaths awaiting the outcome of criminal proceedings (category E988.8) outstanding in each year. [30]

Training for coroners and coroners' officers

9. The NSPCC is concerned that coroners and coroners' officers receive very little, if any, training in child protection issues, and believes that—in common with all professionals who work with children and their carers—they would benefit from a greater understanding of child maltreatment and child homicide. There is a need for improved training which:

— Enables all professionals who work with children and their carers to recognise the factors that increase the vulnerability of babies and young children;

— Enables investigative and medical practitioners to develop the expertise and skills so that they can inquire into unexplained child deaths in an informed way that is both sensitive and rigorous;

— Integrates lessons from inquiries into child deaths into all levels of inter-agency training.

10. We thus strongly recommend that coroners should receive training in understanding child maltreatment, and child protection processes, and in the complexities involved in determining why a child has died, including the part that can be played by abuse and neglect. An important element of such training should be awareness that the ability to define a child's death as suspicious is informed by the process of investigation itself, including post mortems.

We would like the Government to implement the Luce Review[31] recommendation that in each coroner area there should be at least one coroner's officer with some specialisation in handling children's deaths.

POST MORTEMS

11. The NSPCC considers that coroners' decisions about post mortems should be informed by an unequivocal requirement to accord priority to the rights and interests of the child, and other children in the family, recognising that the interests of the "family" are not necessarily those of children, nor of the public, wider, interest in gaining a greater understanding of why children die.

12. It is important to understand that the post mortem is integral to the process of gaining a fuller understanding of the death in question, including whether any aspects of the death are suspicious. A study conducted in an American teaching hospital found that cases of suspected child abuse and neglect were at times confused with deaths by natural causes; importantly, the final diagnosis of most child abuse and neglect was not made until autopsy stage. The authors of this study concluded: "The frequency of misleading history, missed subtle findings on clinical examination, and unsuspected evidence of trauma at autopsy emphasise the need for thorough physical evaluation, including autopsy in all cases of unexpected child deaths." [32]

13. For this reason, we consider that post-mortems should be carried out in all cases of unexpected child death.

14. All post mortems on children should be carried out by a pathologist with recent expertise and training in paediatric pathology. [33]We are aware, and concerned, that there is a continuing national shortage of paediatric pathologists, as is evidenced by the problems for coroners of ordering post mortems where the nearest paediatric pathologist is over 100 miles away and the law has to be broken in that a body must be moved beyond the neighbouring jurisdiction. [34]We recommend that the workforce strategy being developed as part of the Every Child Matters Change for Children Programme should consider what action should be taken to rectify this situation.

THE MEDICAL EXAMINER

15. The Home Office Position Paper states that the medical examiner and their staff will have a clinical background. However, research on child deaths emphasises the importance of assessing not only the medical evidence relating to the death in question, but also family and social factors, including the child's relationships, in order to determine the cause of death and develop meaningful strategies for preventing future deaths. In The relationship between child death and child maltreatment—a research study on the attribution of cause of death in hospital settings, May-Chahal and colleagues highlight the danger of over-reliance on clinical interpretations of death, and the need for these other factors to be considered. Issues of hierarchy in the medical profession can also come into play when considering cause of death.

16. We therefore recommend that the proposed regular training and continuous professional development[35] of the medical examiner and their staff should include appropriate training in child maltreatment, child protection processes and child homicide similar to that recommended for coroners. In addition, this should also enable them both to assess the type of information that is required about a child's family and social circumstances and enable them to interpret such information with well-informed confidence. Consideration should also be given to the background and qualifications of the medical examiner's staff and whether additional experience/expertise in social care and paediatric knowledge is required—either as part of the formal team, or as a resource to be drawn on when considering child deaths.

LINKS BETWEEN THE CORONER AND CHILD PROTECTION SYSTEMS AND PROCESSES

17. Since the publication of the Home Office Position Paper in 2004, there have been welcome developments in child death investigation and review. Section 14 (2) of the Children Act 2004 has given the new Local Safeguarding Children Boards (LSCBs), which replace Area Child Protection Committees from April 2006, powers of investigation and review. Regulations and guidance will require LSCBs to have in place by April 2008 an agreed multi-agency protocol for investigating all unexpected child deaths, and to have established a child death review team to review all child deaths.

18. The reform of the coroner system needs to take full account of these developments, and clarify how coroners will work with LSCBs on child deaths. The Luce Review recommended that there should be standing protocols in all areas between the coroner and child protection agencies setting out how the children's agencies should be involved in death investigations and how the coroner and his staff should work with them. [36]The NSPCC supports this recommendation.

19. An important area that would benefit from such clarification is the status of serious case reviews (case management reviews in Northern Ireland) which are carried out by local agencies when a child dies and abuse or neglect is known or suspected to be a factor in the death.

20. The purpose of such case reviews is to:

— establish whether there are lessons to be learned from the case about the way in which local professionals and agencies work together to safeguard children;

— identify clearly what those lessons are, how they will be acted upon, and what is expected to change as a consequence, and

21. The Area Child Protection Committee (from April 2006 the Local Safeguarding Children Board), which is responsible for such reviews, must produce an executive summary of the review and make this publicly available. Disclosure of the full report, however, has the potential not only to breach the confidentiality of the personal information it contains, but also to compromise the capacity to secure full and open participation in such reveiws from the different agencies and professionals involved.

22. The NSPCC is thus concerned that the proposal to give coroners new powers to obtain information to help their investigations should not result in unhelpful disclosures of full case review reports. A national [that is, England, Wales and Northern Ireland] memorandum of understanding between the Coroners and the Department for Education and Skills, the Welsh Assembly Government and the Department of Health Social Services and Public Safety (DHSSPS) in Northern Ireland would be very helpful to address this issue. We are aware that work is being developed on such a memorandum in Northern Ireland, and the potential for adapting this for application across all three jurisdictions should be explored.

23. In 2003, the Which of you did it? report[38], which addressed the problems of achieving criminal convictions when a child dies or is seriously injured by parents or carers, recommended that a national protocol should be introduced for the management of parallel civil and criminal proceedings to both improve the quality of risk analysis in specific decisions and to reduce delay in civil processes. This recommendation should be considered as part of the reform of the coroner system.

CRITERIA FOR PUBLIC INQUESTS INTO CHILD DEATHS

24. Public scrutiny is an important element of the judicial process. Inevitably, concerns arise when inquiries are announced as being private, or "administrative", rather public, as commentators question whose interests are being served by conducting proceedings in private. This is especially the case when proceedings are being paid for by public money, and when their findings contribute important knowledge both to the way in which public services are delivered, and to collective human experience within communities. While we recognise that it can be traumatic for families for proceedings to be held in public, such a process arguably serves the public interest more effectively than holding proceedings in private. Where children are concerned, this is perhaps of even greater importance, as they are a very vulnerable group in society, without any voice of their own. They depend and rely on others to act in their best interests. When this does not happen, systems must be in place to investigate and understand how and why failures have occurred, in the interests of preventing future harm to children.

25. The DCA briefing paper states that "In limited and specific cases, such as some suicides and child deaths, coroners will have a new discretion to complete their investigations and decide on the facts without holding inquests, where no public interest is served in doing so". We are concerned about the basis on which such decisions may be made. It is crucial for those making decisions about public and administrative proceedings, where the death of a child is concerned, to adopt a child-focused perspective, and undertake full and effective inquiries with the joint aims of:

— achieving justice for the dead child

— serving the interests of any surviving or future siblings and

— serving the wider interests of children as a whole.

26. The NSPCC fully concurs with the recommendation of the Luce Review that all traumatic and unexplained deaths of children should be the subject of a public inquest, "unless the Statutory Medical Assessor certifies beyond reasonable doubt that the death is from natural disease, without any evidence of abuse and neglect". In addition, we consider that inquests into the deaths of certain children should always be the subject of a public inquest, namely:

— children who die while in foster or residential care

— children who are, or have been, `in need' as defined by s17 of the Children Act 1989

— children who are the subject of a statutory care, supervision or emergency protection order and

— children whose names are, or have been, on the child protection register. (When the register ceases to exist, this group will constitute children who are, or who have been, the subject of a child protection plan.

CORONER'S AUTHORITY OVER TISSUE RETENTION

27. The NSPCC is concerned that the Coroners Rules 9 and 12 have been amended[39] so that the period for retaining tissues after post-mortem cannot extend beyond the point when the death is either certified on pink form B, or an inquest is concluded, unless parental consent is given. This is because it is considered at this stage that the coroner is functus officio, that is, that he or she has no further legitimate authority over the death, and their decisions about tissue retention periods are thus annulled.

28. Our concerns centre principally on unexpected deaths in infancy. We know from experience that some infant deaths, originally thought to be natural, have subsequently been found to be caused unnaturally. [40]This knowledge may result from further investigation undertaken after the death of a sibling infant, during which archived tissue, retained after the post-mortem conducted on the first infant, is re-examined.

29. It is also the case that tissue archived in this way may exonerate parents, who may be under strong suspicion of having killed their infants.

30. The Kennedy report[41] recommended prolonged tissue retention periods in all cases. This was also the view of Carpenter et al who, in their Lancet paper on repeat sudden infant death, state that "adequate post-mortem material must be retained from every unexplained infant death for re-examination in the event of recurrence".[42]

31. We believe it is self-evident that the parents least likely to consent to such retention are those involved in cases where such retention is most warranted. This is not in children's best interests. In the interests of protecting and securing justice for children who have been killed, and for parents who may be unjustly accused of homicide, the NSPCC believes that coroners must retain the authority to order, if necessary without consent, the retention of tissues for prolonged periods to enable any re-examination that may be required by future events and knowledge pertaining to individual cases.

32. We are concerned that the new arrangements could increase both the risk that unnatural infant deaths will be missed, and the potential for wrongful convictions of parents for killing their children.

"RULE 43" COMMENTS

33. The NSPCC strongly supports the Luce Review's proposal that coroners "Rule 43" comments should have more impact, and should be the subject of regular and consistent monitoring of the public (or private) services at which they are directed, such as in the reports of relevant inspectorates.

34. We propose that Rule 43 comments that relate to children should be routinely submitted to the Children's Commissioners in England, Wales and Northern Ireland, and that their offices should have a function to ensure that such comments are appropriately monitored and followed up.

NSPCC

February 2006

24 Home Office (Cm 6159) (March 2004) Reforming the Coroner and Death Certification Service: A Position Paper, London: The Stationery Office Back

25 Department for Constitutional Affairs (February 2006) Coroners Service Reform Briefing Note Back

26 May-Chahal, C., Hicks, S. and Tomlinson, J. (unpublished report, 2002) The Relationship between Child Death and Child Maltreatment. London: NSPCC, p 41, and also NSPCC (2001) Out of Sight, London: NSPCC Back

27 Op. cit. (May-Chahal, C., Hicks, S. and Tomlinson, J.) p 41 Back

28 Op. cit., p 241 Back

29 Creighton, S. (January 2003). NSPCC briefing paper on Child Killings in England and Wales Back

30 Op. cit p 241 Back

31 Throughout this submission the Fundamental Review of Death Certification and Investigation in England, Wales and Northern Ireland, chaired by Tom Luce, is referred to as the Luce Review, for ease of reference. The complete reference is Death certification and Investigation in England, Wales and Northern Ireland: The Report of a Fundamental Review 2003. (Cm 5831), London: The Stationery Office Back

32 Cristoffell, KK., Zieserle, J. and Chiaromonte, J. (1985) `Should child abuse be considered when a child dies suddenly? American Journal Dis.[sic] Children, 139, 876-880, cited in op.cit. at note 3, p41 Back

33 Sudden unexpected death in infancy (September 2004). The report of a working group convened by The Royal College of Pathologists and The Royal College of Paediatrics and Child Health. Chair: The Baroness Helena Kennedy, p 38 Back