Abandoning a newborn in a 'baby hatch' as a foundling

[Johnboy007]

Re: Abandoning a newborn in a 'baby hatch' as a foundling

Now I would hazard a guess and say that, if a UK pregnant woman did go to Germany to have and then to leave her baby there.
She has still committed an offence under the above act.
The baby was conceived here and Mother did abandon it while it was under two years old.
I cannot differentiate between abandoning a baby in Germany, the USA or wherever. It is still abandoning the baby.
A good one for some smart arsed lawyer me thinks Des.

[Johnboy007]

Re: Abandoning a newborn in a 'baby hatch' as a foundling

The mother could only be prosecuted if the pregnancy was known about (ie the hatch is a secret so it would never be known who dropped off the baby unless she chose to return or identify herself) so the plot falls down I think, unless you add a confidant in The father would have rights too if he is known/aware.

I think possibly think about things like Dignitas and how people who assist with airfairs/travel arrangements can be prosecuted for helping UK nationals to attend.

Trust you to complicate the issue Boss Lady. xx

[Kati]

Re: Abandoning a newborn in a 'baby hatch' as a foundling

I'm a writer of fiction and one of my characters is in the position as described earlier. Ideally, she would be prosecuted by UK law (in order for the plot to work) so I'm hoping for a response from someone that confirms this.

do we get to proof read the final draft :tinysmile_twink_t2:

[des8]

Re: Abandoning a newborn in a 'baby hatch' as a foundling

Regarding the moral stand being taken, understandably, by others, whilst I do not condone the abandonment of children, neither do I judge the actions of those who feel the best interest of the child is served by use of a "baby hatch". The desperation of that person must be unbearable.

[Kati]

Re: Abandoning a newborn in a 'baby hatch' as a foundling

Now I would hazard a guess and say that, if a UK pregnant woman did go to Germany to have and then to leave her baby there.
She has still committed an offence under the above act.

I'd hazard a guess she would be committing an offence under German law too ...

In Germany, the baby hatch system only just borders on the legal; normally a mother who abandons her child is committing a criminal act. However, according to the German social laws, parents are allowed to leave their child in the charge of a third party for up to eight weeks, for example if the parents need to go into hospital. After eight weeks, however, the youth welfare office must be called in.
German law considers babies left in the baby hatch as if they have been left in the charge of a third party. This loophole is extremely controversial as there have been some cases in Germany where the baby hatches have been used to abandon disabled children or babies already three months old. Several attempts have been made to clear up the legal basis for baby hatches and how to treat the children left in them, but as yet the situation is still not clearly regulated.

[Amethyst]

Re: Abandoning a newborn in a 'baby hatch' as a foundling

To be honest, I'm not sure if I was ever in such a desperate situation I would trust a baby hatch, particularly one attached to a hospital, because I would be concerned about CCTV, plus there must be some system to let those on the other side of the baby hatch to alert them a baby has been left there.

[des8]

Re: Abandoning a newborn in a 'baby hatch' as a foundling

The problem for prosecutors is that where offences cross borders there may be conflicting jurisdiction.
Generally, an offence will only be triable in the jurisdiction in which the offence takes place, unless there is a specific provision to ground jurisdiction, for instance where specific statutes enable the UK to exercise extra-territorial jurisdiction:

• murder and manslaughter (subsection 9 and 10 of the Offences Against the Person Act 1861)
• And others such as sexual offences against children, Fraud, Terrorism, Bribery, but nothing about offences against the person

Anyway pleased this was only an exercise and not a real life problem this time.

[Johnboy007]

Re: Abandoning a newborn in a 'baby hatch' as a foundling

Hi JB,

I had thought about providing some more background as to why I'm asking this question but was a little anxious I wouldn't be taken seriously. But since you explicitly ask: I'm a writer of fiction and one of my characters is in the position as described earlier. Ideally, she would be prosecuted by UK law (in order for the plot to work) so I'm hoping for a response from someone that confirms this.
As for the moral implications of all this: I agree with you that abandoning a baby is morally wrong. But who are we, especially as males, to judge a woman who is so desperate she sees no other solution. As the article posted by Des points out, there are enough situations that would drive even the strongest souls among us to utter despair.
Cheers,
C.P.

Hi Carl,
I certainly took you serious my friend
I know that desperation does force some women to take, what is for any mother, unnatural actions and abandon their babies.
I was probably a bit critical, on this very delicate subject.
If I offended you in any way, then I apologise.
Right that's the niceties out of the way, so very much unlike me

It's a tricky one this one, I supose the first question to ask is 'when is the baby first recognised in law, as a human being?'
If at conception then I would say , Mum has committed an offence under the 1861 act, regardless of where the baby was abandoned.
But I may be wrong here, having just found this out on a medical website

Overview

‘Foetus’ is generally taken to mean the embryo from 8 weeks (56days) post fertilisation to birth.
The foetus has imprecise status under English law.
• A foetus is not a person in the eyes of the law.
• A foetus is not simply part of the mother.
• (A foetus is a)…unique organism
a

Cases

Over the years the law has slowly evolved through a series of cases that refer specifically to the foetus:
Paton v. BPAS (1979)

• It is not possible to bring proceedings in the name of the fetus

Re F (In Utero) (1988)

• A foetus cannot be made a ward of court.

S v. St George’s NHS Trust (1998)

• A foetus has interests which are protected by the law.

Vo v. France (2004)

• A foetus is not directly protected by the European Convention on Human Rights

a

Currently

In summary it appears that the foetus is recognised to have interests in English law but it is not equivalent to a person. As such when a persons interests conflict with those of the fetus it is reasonable to assume the interests of the person will be upheld. As it is not a person, it does not have a direct right to life. Even if it were a person (and under English law it is not) the interests of the mother could still reasonably be taken to have precedence. a

Case study

Case: St George’s Healthcare NHS Trsut v. S [1998] Summary: S was 35 weeks pregnant when she was informed that she required a Caesarean section operation. Without it the doctors believed it highly probable that either she and or the foetus would die. She refused to consent to the procedure. Her doctors deemed her legally competent to make the decision but sort legal approval to perform the operation anyway. The judge gave permission to go against the wishes of S and perform the operation. After the operation S appealed the decision and won. A women who all believed to be competent was refusing what was thought to be a life-saving procedure and was therefore acting against the best interests of herself and the foetus. English law normally allows a competent adult to make choices that go against their own best interests but not those of a child. The issue here was whether the foetus could be considered a child. Another route the doctors could have taken was the competency of the mother but they all agreed she was competent to make this decision. It is worth taking a minute to consider which principles you think should win here, personal autonomy or best interests of the mother and/or foetus. The final legal decision was that it is unlawful to detain and perform a C-section on a woman competent to refuse. Her right to refuse treatment, if competent, is absolute whether she is pregnant or not. This holds even if she and/or the foetus may die.

In other words... I can offer no Prima Facie evidence, so no case to answer.

[Carl Philip]

Re: Abandoning a newborn in a 'baby hatch' as a foundling

Thank you all for your great responses and ideas, especially, if I may, Celestine. I agree it seems unlikely the UK police would pursue such a case, if if it were against UK law.
One other scenario for those who are still interested: the father (UK national) has strong-armed the mother to travel to Germany, give birth there to the child and subsequently abandon it there in a baby hatch. We're 20 years later. The mother has passed away and father is still alive. The story about the abandoned baby comes to light and can be proved with a DNA test. What cannot be proved is whether the father really coerced the mother or not, however it's 'proven' that he was aware of it and assisted her in the act. Could he be prosecuted?
Again, personally my guess is we're arriving back at Celestine's response, where it's unlikely for the UK police to take interest in this. However, any thoughts or info is very welcome.
Thank you all!
C.P.

[Johnboy007]

Re: Abandoning a newborn in a 'baby hatch' as a foundling

To be honest, I'm not sure if I was ever in such a desperate situation I would trust a baby hatch, particularly one attached to a hospital, because I would be concerned about CCTV, plus there must be some system to let those on the other side of the baby hatch to alert them a baby has been left there.

Trust you to think of CCTV.........
What's up?
Your hair in a mess?
No makeup on?

[Johnboy007]

Re: Abandoning a newborn in a 'baby hatch' as a foundling

A question for Carl Phillips........

If I have in some small way, contributed to what will be a very successful book....
DO I QUALIFY FOR ROYALTIES? :tinysmile_twink_t2:

[Carl Philip]

Re: Abandoning a newborn in a 'baby hatch' as a foundling

Hi Carl,
I certainly took you serious my friend
I know that desperation does force some women to take, what is for any mother, unnatural actions and abandon their babies.
I was probably a bit critical, on this very delicate subject.
If I offended you in any way, then I apologise.
Right that's the niceties out of the way, so very much unlike me

It's a tricky one this one, I supose the first question to ask is 'when is the baby first recognised in law, as a human being?'
If at conception then I would say , Mum has committed an offence under the 1861 act, regardless of where the baby was abandoned.
But I may be wrong here, having just found this out on a medical website

Overview

‘Foetus’ is generally taken to mean the embryo from 8 weeks (56days) post fertilisation to birth.
The foetus has imprecise status under English law.
• A foetus is not a person in the eyes of the law.
• A foetus is not simply part of the mother.
• (A foetus is a)…unique organism
a

Cases

Over the years the law has slowly evolved through a series of cases that refer specifically to the foetus:
Paton v. BPAS (1979)

• It is not possible to bring proceedings in the name of the fetus

Re F (In Utero) (1988)

• A foetus cannot be made a ward of court.

S v. St George’s NHS Trust (1998)

• A foetus has interests which are protected by the law.

Vo v. France (2004)

• A foetus is not directly protected by the European Convention on Human Rights

a

Currently

In summary it appears that the foetus is recognised to have interests in English law but it is not equivalent to a person. As such when a persons interests conflict with those of the fetus it is reasonable to assume the interests of the person will be upheld. As it is not a person, it does not have a direct right to life. Even if it were a person (and under English law it is not) the interests of the mother could still reasonably be taken to have precedence. a

Case study

Case: St George’s Healthcare NHS Trsut v. S [1998] Summary: S was 35 weeks pregnant when she was informed that she required a Caesarean section operation. Without it the doctors believed it highly probable that either she and or the foetus would die. She refused to consent to the procedure. Her doctors deemed her legally competent to make the decision but sort legal approval to perform the operation anyway. The judge gave permission to go against the wishes of S and perform the operation. After the operation S appealed the decision and won. A women who all believed to be competent was refusing what was thought to be a life-saving procedure and was therefore acting against the best interests of herself and the foetus. English law normally allows a competent adult to make choices that go against their own best interests but not those of a child. The issue here was whether the foetus could be considered a child. Another route the doctors could have taken was the competency of the mother but they all agreed she was competent to make this decision. It is worth taking a minute to consider which principles you think should win here, personal autonomy or best interests of the mother and/or foetus. The final legal decision was that it is unlawful to detain and perform a C-section on a woman competent to refuse. Her right to refuse treatment, if competent, is absolute whether she is pregnant or not. This holds even if she and/or the foetus may die.

In other words... I can offer no Prima Facie evidence, so no case to answer.

Hi again, JB,

Great stuff! (even if that may not be an appropriate word to use concerning the nature of this topic), and of course, no offense taken at all!

Cheers,
C.P.

[Kati]

Re: Abandoning a newborn in a 'baby hatch' as a foundling

If the mother has passed away, then (IMO) it would be very difficult to prove the coercion against the father. He could quite easily deny forcing her to abandon the baby, and without the mother to say anything against him, it would be almost impossible to show any threats etc...

[des8]

Re: Abandoning a newborn in a 'baby hatch' as a foundling

As above (post 22) , the problem for the authorities would be one of jurisdiction

[Carl Philip]

Re: Abandoning a newborn in a 'baby hatch' as a foundling

A question for Carl Phillips........

If I have in some small way, contributed to what will be a very successful book....
DO I QUALIFY FOR ROYALTIES? :tinysmile_twink_t2:

If my book ever gets published, I'll take you all out for drinks, regardless of whether it sells or not! I'd better bookmark this page now so I find you guys back when the glorious moment arrives.