Manslaughter: Should bereaved parents pay twice over?

The death of a child is always tragic. But the drive to apportion blame can make matters more distressing still

When will parents be prosecuted after the death of children in their care? The manslaughter conviction of Gareth and Amanda Edwards followed the tragic death of two young girls last July on the single track line between Machynlleth and Aberystwyth. A jury found the couple guilty of causing death by gross negligence. The charges shocked many, not least the grieving pair, who are to be sentenced later this year.

Sophie George, aged 7, was Mrs Edwards's daughter, the other girl her best friend Kymberley, aged 8. Swansea Crown Court heard how they and their brothers, aged 9 and 11, were taken by the Edwards for a picnic beside the railway. The accident occurred while the adults were occupied with their baby. Meanwhile, the youngsters were allowed to play on the track.

The Edwards received considerable local support and there were mitigating factors. Many others crossed this stretch of the line. Also, a stile enabled the family to clamber over the fence bordering the railway. The Health and Safety Executive confirms that it intends to launch proceedings against Railtrack and the local council, the former because of the stile and the latter for allegedly displaying inadequate warnings.

The case is striking, because it proves that parents are not immune to prosecution. Will Courtney Barker, whose car plunged into a lake near Luton on 29 July, face a similar ordeal? His partner's three children drowned. The Crown Prosecution Service (CPS) confirms that there are no special rules in family tragedies: all cases are dealt with in accordance with its code.

But if the facts suggest that parents are to blame, the real issue becomes one of policy. It is inevitably difficult to form an opinion on whether prosecution of parents in accident cases can ever be in the public interest. A CPS spokesperson says that they will take into account factors that both mitigate towards and against prosecution. One of the most important considerations is whether there are aggravating features. The effect on the parents themselves and on siblings, particularly if the latter would be required to give evidence, are also relevant.

When children die in accidents, the police investigate whether there is sufficient information to either press charges or to refer the file to the Crown Prosecution Service. The papers are reviewed by CPS lawyers, who decide whether to proceed. Their evaluation is based on the two-fold test in the Prosecutors Code, which provides guidance on general principles to be applied when bringing prosecutions.

The first job involves asking if there is enough evidence to provide a "realistic prospect of conviction". Only if there is a sufficient factual basis to show that death was caused by the person looking after the child, do they need to consider whether it is in the public interest to prosecute.

Occasionally, child fatalities result in murder charges. Eight-year-old Anna Climbie's aunt and her boyfriend were found guilty of the murder of Anna. Systematic physical abuse was the likely cause of death. In another case, the solicitor Sally Clark was found guilty of murdering her two babies.

Manslaughter charges are generally brought against local authorities when youngsters are killed in freak incidents. A decision to prosecute in France or the UK is awaited in Lambeth after 11-year-old Bunmi Shagaya drowned on a school trip. But are family members treated, for legal purposes, like teachers? Parents are not professionals, but must safeguard the children in their care. Concluding that they were seriously at fault involves emotive public policy issues.

Some of the public interest factors that the CPS considers are set out in the Prosecutors Code. These include use of a weapon or threat of violence, the motive for attack or whether the offence was committed against a public servant. None of these is obviously relevant to family accidents, save the vulnerability of the "victim" and the disparity in ages of the defendant and victim.

It is tempting to regard the Edwards case as unusual. Kymberley's father pressed for prosecution, having obtained a full account of the outing from his son. It is difficult to know if proceedings would have been brought, but for his efforts.

Leighton Davies QC, who represented the crown at the Edwards trial, says that manslaughter cases involving parents are rare. Mr Davies describes manslaughter as "where someone unintentionally causes death. One of the species of the offence is causing death by gross negligence". He says that "most manslaughter prosecutions involve doctors", though he cites an example where a boy died when the car driven by his father crashed. He was well over the alcohol limit. Barker passed his blood test. This will have a bearing on whether he is prosecuted for dangerous driving.

The Prosecutors Code cites as a factor militating against prosecution the situation where "the offence was committed as a result of a genuine mistake or misunderstanding (these factors must be balanced against the seriousness of the offence)". It is extraordinary carelessness or recklessness that count in child manslaughter cases. So it must be highly unlikely, on the basis of information in the public domain about the Luton case, that proceedings will be brought here.

Each set of circumstances depends on its own facts. The stile, Mr Davies says, did not exonerate the Edwards. He explains that gross negligence means "an act or omission which is so bad in the terms of negligence, so far a departure from what a reasonable adult would do that it deserves to be condemned as criminal". The family knew the line was not disused. The decision to pitch camp "aside the track within the boundary to the railway" was compounded by the adult/child ratio. This was "a recipe for disaster".

Railway Safety's annual Safety Performance Report states that in the year 2000-2001, eight children were killed after straying on to the line. A Railtrack spokesperson says the company has "done a considerable amount of research to try to understand why children trespass on the railway, and devised a number of specific campaigns to deter them". Railtrack supports the Edwards conviction. Its chief executive, Rod Muttram said that he hopes the case "will make people, especially parents, aware of the need to treat the railway with respect". Charitable organisations play a role, too. Joy Isaacs of the Suzie Lamplugh Trust says: "The trust is well known for promoting the education of children and parents in finding ways of ensuring their personal safety."

Children cannot be supervised continuously – as James Bulger's mother knows all too well. Parents recognise that it could have been their child who was abducted. The sanction of criminal law is designed to administer a level of justice in quite different situations, where accidents are caused by extreme parental negligence.