Brian Lenihan Jnr (Dublin West, Fianna Fail)

The Minister, Deputy McDowell, mentioned on Committee Stage in the Dáil that he was considering whether to change certain aspects of the law on infanticide set out in the Infanticide Act 1949. Having examined the matter in consultation with the Office of the Attorney General, he proposed two amendments to the Bill on Report Stage to amend the 1949 Act. A further amendment made an appropriate change in the Long Title of the Bill to accommodate these provisions. The 1949 Act, like its 1938 antecedent in England and Wales, was based on the medical belief that mothers face special physical and psychological challenges shortly after giving birth. Such challenges include the condition loosely referred to as postnatal depression, the stresses inherent in being responsible for a new life, new financial and relationship pressures and, in some cases, the added strain of being in an abusive relationship or being a single mother in difficult circumstances. Those factors may, together or individually, lead to a mother killing her child. The 1949 Act created a separate crime of infanticide in recognition of the fact that a conviction for murder may not be appropriate in such circumstances. Although the legislation introduced an early form of the defence of diminished responsibility, it now looks somewhat outdated, especially in its references to "punishment" and to one of the conditions precedent for the defence relating to "the effect of lactation consequent upon the birth of the child". The Minister presumes that modern thinking places less emphasis on the physical element of this matter than on what may be termed "environmental factors", like those I have mentioned.

Amendment No. 21, which provides for the inclusion of subsection (3) in section 5 of the Bill, is in line with the recommendations of the Henchy report. It was pointed out on Committee Stage that the only existing recognition of diminished responsibility in our law is found in the 1949 Act, which simultaneously allows it to be used as a defence to murder and provides for it to be considered as an offence in its own right. The 1949 Act provides for the use of such a defence by a mother who kills a child under the age of 12 months, on the basis that the balance of her mind was disturbed when she did it because she had not fully recovered from giving birth to the child or, as I have said, because of the effect of lactation after the birth of the child. The Act allows juries to return verdicts of infanticide, rather than murder, in such cases, with the "punishment" being the same as that for manslaughter.

The 1949 Act allows the prosecution to prefer a charge of infanticide rather than murder in the first instance, whereas section 5 of this Bill, which deals with diminished responsibility, requires that the accused be charged with murder and that the defence of diminished responsibility be raised by the defendant. The Henchy committee favoured the retention of the 1949 Act on humane grounds, so that the accused would be dealt with as if she had been found guilty of manslaughter on grounds of diminished responsibility. The Minister's second amendment, No. 47, is in line with that approach. It also removes the reference to "punishment", which is objectionable in such unfortunate circumstances. That amendment also provides for the removal of the reference to "lactation" from the 1949 Act and its replacement with a reference to mental disorder resulting from the consequences of birth, within the meaning of this legislation.

Amendments Nos. 21 and 47 give rise to a consequential amendment to the Long Title of the Bill, which I mentioned some moments ago. That is the purpose of the Minister's amendment No. 49, which amends the Long Title to reflect that the Bill amends the Infanticide Act 1949.