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Three years ago the trial of a couple accused of murdering their foster son collapsed because it was impossible to prove which of them had dealt the fatal blow. Public outcry over the death of John Smith, by no means an isolated case, led politicians to set about closing a legal loophole.

Under Clause 5 of the Domestic Violence, Crime and Victims Bill, which completed its parliamentary journey last week, anyone who fails to take "reasonable steps" to protect a child or vulnerable adult could be found guilty of allowing their death - even if it cannot be proven that they actually caused it.

But now there are concerns that the changes about to become law might lead juries to wrongfully convict women who are themselves the victim of a violent partner.

If a violent man kills a child, and his partner is too terrified to stop him or call for help, is it right to prosecute her too?

Liberal Democrat MP David Heath argues that abused women would be "doubly a victim" if they are convicted in such circumstances.

His amendment, which would have allowed domestic violence to be a mitigating factor for the defence, was rejected by the House of Lords, causing alarm among women's rights campaigners.

"There's a very clear link - a bully will be a bully to everyone around," says Heath, who tried to restore the domestic violence clause. "It's unreasonable not to take into account that a person might have been beaten into submission or was too afraid to do anything."

But Home Office minister Baroness Scotland of Asthal says that the mitigation clause risked undermining the requirement that the defendants took all "reasonable steps" to prevent a child's death.

Any steps they took, however limited and constrained by their circumstances, would be considered by the court, she says.

A domestic violence defence could also be open to abuse, she suggests. "We do not want to encourage unfounded accusations of abuse to be made simply to muddy the waters of the case."

Paediatrician Dr Jean Price notes in the NSPCC report Which of You Did It? that domestic violence is very closely linked with child abuse. Three-fifths of children suffering from abuse also have mothers suffering from violence in the home.

But Heath notes that ministers have indicated that the new offence is intended more as a deterrent against defendants choosing to remain silent than as a measure that prosecutors would regularly use.

Eleri Butler, head of policy for the charity Women's Aid, is hoping that abused women can be protected in other ways. "What we need to do is look at how they are going to issue guidance to the Crown Prosecution Service, the courts and the police on evidence gathering, as it would flag up early on if this is happening.

"We know from experience that women who kill violent partners don't really talk about the violence until the appeal stage. So it all depends on the availability of support and advocacy."

Behind the legal change is the aim of preventing child killers escaping murder or manslaughter charges. The NSPCC's report details four other trials where judges ruled that there was "no case to answer" because it was impossible to prove which parent or guardian was to blame.

Among them was a manslaughter charge against a couple named Lane, which was quashed in 1987 because it was not possible to prove who was present when a single blow killed their 22-month-old baby. They were instead convicted of child cruelty.

Only in cases where prosecutors can prove that both parents were present when the injury was caused is it possible to use the legal concept of "joint enterprise" against them.

Another problem is that parents often exercise their right to silence, although attempts to remove this right in cases of child death have foundered against human rights legislation.


On the other hand, trials of parents accused of murdering their children are highly emotive, receive massive media attention, and may lead juries to seek "scapegoats," warns a report by the Law Commission.

The new legislation may close a loophole, but as the NSPCC report shows, it cannot address the greater difficulties in prosecuting parents and guardians who kill their children.

A trawl by 40 police forces identified 492 cases where children under 10 had been unlawfully killed or seriously injured in their parents, or guardians' care, and in the vast majority the child had been under two. Sixty-one per cent of these infants died from head injuries - a very different pattern to that for older children.

However, there were successful prosecutions in just 27 per cent of these cases (compared with a 90 per cent conviction rate in killings by strangers). In 61 per cent there was no action taken, with the remainder leading to acquittals or dismissals.

The NSPCC report says that most cases fail because there is insufficient evidence, and there are concerns that a lot of evidence of previous violence against the child is not reaching the courts.

A study by the Association of Chief Police Officers found that only one-third of child homicide cases are referred to area child protection committees. In many cases social services had evidence of abuse, but not enough to prompt a statutory investigation.

"A criminal or murder investigation which is managed as an isolated incident runs the risk of overlooking vital contextual information which might have been supplied by child protection or interagency investigation methods," writes Cheshire social services director Andrew Webb, in the NSPCC report.

"The history of child death cases is littered with examples of personnel in a range of agencies failing to take account of information held by others."

It would seem that difficulties in deciding which parent struck the fatal blow is relevant to only a tiny number of cases. Whether the new legislation fixes the problem or creates new miscarriages of justice remains to be seen. But beyond this lies the much larger issue of gathering enough evidence to convict parents who kill.

The John Smith Case    

Four-year-old John Smith died on Christmas Eve in 1999 from a severe brain haemorrhage, in the care of his foster parents Simon and Michelle McWilliam. 

There were 54 injuries on his body, including cuts to his penis, burns on his face and three adult bite marks. A murder trial failed at the committal stage because it was not possible to prove which guardian was responsible. 

The McWilliams were eventually jailed for eight years for child cruelty and neglect. A court report found that social workers failed to get doctors to examine his injuries on at least seven occasions because they were led to believe he was self-harming. 

The case received massive publicity in the local press in Brighton, which had been campaigning for a change in the law since a similar murder trialcollapsed in 1997. 

In that case murder charges were dismissed against a couple accused of killing three babies, two of them their own children, by suffocation. Both were given two-year sentences for cruelty and neglect.