Published Tuesday, 19 March 2013
A High Court judge said he would consider the proposals surrounding the inquest. (© UTV)
Mr Justice Treacy was urged to overturn a decision taken by Northern Ireland's senior coroner, John Leckey, not to investigate the death of a baby at Altnagelvin Hospital more than 10 years ago.
Axel Desmond was one of more than 112 stillbirths recorded in NI in 2001. His mother Siobhan went into labour two weeks after her due date in October of that year.
She was taken to the Londonderry hospital after developing complications at her home. Ms Desmond underwent an emergency caesarean section and Altnagelvin staff tried unsuccessfully to resuscitate baby Axel.
Last year, Attorney General John Larkin QC directed Mr Leckey to hold an inquest, but the coroner said he did not have the legal authority to oversee a tribunal into the stillbirth.
Inquests into stillbirths are not held anywhere in Britain or Ireland, and the case of Axel Desmond centres on the interpretation of whether a death occurred.
Appearing for the Attorney General, David Scoffield QC said a ruling on the case could set a precedent.
He told Mr Justice Treacy: "This is an issue which does fall to Your Lordship it seems for the first time to determine."
Mr Scoffield said there was evidence of life before birth and argued an inquest should be held for a stillborn child who was capable of being born alive.
He explained that the Coroners Act (Northern Ireland) 1959 does not prohibit inquests being held.
"There was a foetal heartbeat in the womb," Mr Scoffield told the court.
"We say in the absence of any express statutory conclusion what the Coroner ought to have done in this case is proceed to hold the inquest.
"It's absurd that there can be an inquest into the death of a child who dies one minute after delivery but not one minute before delivery.
"The court should strive to avoid should an anomalous result," added Mr Scoffield.
Fiona Doherty said her client, Ms Desmond, was no different to a mother whose child dies after birth.
"She has been bereaved, her grief is the same, her need for answers is the same, her need for closure is the same," Ms Doherty explained.
Counsel for Mr Leckey said although he recongised the bereavement Ms Desmond has gone through, he contended that legislation only covers death after a live birth.
"The deceased did not have independent life," said Nicholas Hanna QC.
"That's the crucial point. Therefore there is no jurisdiction to hold an inquest.
"If the law is to be changed it should be dealt with by the legislature and not by the courts."
Mr Justice Treacy said he would consider his decision, and he described the case as "very important [...] and it raises extremely interesting issues".
Outside the court Ms Desmond told how she hoped others could benefit from the legal challenge.
She said: "I spoke to other parents in similar circumstances and the common thread is that there is no straight forward way to get clear answers so they can be sure in their own mind that lessons could be learned and the same thing won't happen again."