Old Law, Equal Standards: Mental-Health Defences, Accountability and the Question of Consistency

Fathers United. Rights Respected. Every Dad Matters.

Mental health, accountability and equality are not competing values. A fair legal system must take serious illness seriously while also requiring credible evidence, clear legal tests and consistent standards.

This article explains how selected mental-health-related routes operate in England and Wales. It asks a focused question: can compassion and accountability both be real? The answer must be yes.

1. What the law actually provides

The Infanticide Act 1938, section 1, creates a specific statutory route. In practical terms, it applies where a biological mother causes the death of her own child under 12 months while the balance of her mind was disturbed because she had not fully recovered from childbirth or because of lactation following the birth.

Where the statutory conditions are met, the offence is treated as infanticide and dealt with as manslaughter rather than the most serious homicide offence.

Legal element	What it requires
Defendant	A woman who is the biological mother
Child	Her own child, under 12 months old
Conduct	A wilful act or omission causing the child’s death
Mental state	The balance of her mind was disturbed
Cause of disturbance	Incomplete recovery from childbirth or the effect of lactation
Legal result	Infanticide, dealt with as manslaughter

The route is different from diminished responsibility under section 2 of the Homicide Act 1957.

Diminished responsibility requires proof that the defendant had:

An abnormality of mental functioning;
Arising from a recognised medical condition;
Which substantially impaired the ability to understand the nature of the conduct, form a rational judgment or exercise self-control; and
Which provided an explanation for the acts or omissions.

The infanticide route does not, in those statutory terms, require proof of a recognised medical condition with a causal link to the conduct. Medical evidence may still be highly important, but the legal test is framed differently.

That makes infanticide a status-based and age-limited provision. The sex of the defendant and the age of the child are built into the law itself. It applies only to a mother of a child under 12 months. It cannot apply to a father.

The current reform position

Infanticide has already been reviewed. The Law Commission considered it in its 2006 review of homicide law and recommended retaining the offence, alongside procedural changes that were not taken forward.

The current homicide law review began in 2025. The Law Commission’s June 2026 consultation paper proposes retaining the offence and defence of infanticide unchanged within a proposed three-tier structure of first-degree homicide, second-degree homicide and manslaughter.

Further work on defences and sentencing is expected in a later consultation, anticipated in summer 2027. A final report is anticipated in 2028.

The accurate position is therefore straightforward:

Infanticide has been reviewed before.
It has been retained.
It may be revisited during later stages of the current review.
Abolition has not been proposed in the June 2026 consultation.

2. What the medicine actually shows

Postpartum psychosis is uncommon but serious. It affects roughly one to two women in every 1,000 births. It is treatable, but it commonly requires urgent specialist care and hospital admission, ideally in a mother and baby unit.

Treatment may include:

Antipsychotic medication;
Mood stabilisers;
Antidepressants where clinically appropriate;
Close psychiatric and safeguarding support; and
Electroconvulsive therapy in some situations where other treatment has failed or the situation is life-threatening.

MBRRACE-UK has consistently identified psychiatric causes as a leading contributor to maternal deaths, particularly during the period from six weeks to one year after pregnancy. That evidence supports early identification, rapid assessment and properly funded services.

Father in a calm wellbeing setting representing mental-health support

But a diagnosis is not a defence in itself. The legal question is whether the evidence satisfies the relevant legal test and connects the illness to the conduct at the relevant time.

Both things can be true:

Genuine illness needs early identification, treatment and support.
The law must distinguish a clinically evidenced condition from a label applied without sufficient proof.

That is not a lack of compassion. It is the foundation of reliable decision-making.

3. The scale, honestly stated

Statistics should be presented accurately, without exaggeration. ONS data show that most victims of domestic homicide are women. Male victims nevertheless matter, both as individuals and when considering whether the law is designed consistently.

ONS measure	Number
Male victims of domestic homicide in the year ending March 2025	36
Male victims over the three years to March 2024	107
Of those 107 male victims, cases with a female perpetrator	39
Of those female perpetrators, a female partner or ex-partner	33

These figures represent a small share of domestic homicide overall. Most victims of domestic homicide are women. No honest analysis claims an epidemic based on these figures.

The important point is different: scale and principle are separate questions. A small number of cases can still raise a legitimate question about legal design, evidence standards, access to treatment or whether a route is available by reason of status rather than demonstrated mental impairment.

Statistics should inform reform, not replace careful legal analysis.

4. How planning and state-of-mind evidence are weighed

Courts must assess the evidence as a whole. No single feature automatically determines a person’s mental state.

Concept	General legal principle
Premeditation and planning	Preparation, organisation or steps taken beforehand may be relevant evidence. They are not automatically conclusive of a particular mental state.
Intent	The prosecution may need to prove the required intention for the offence. Intention is assessed from all the evidence, including conduct and surrounding circumstances.
Automatism	This concerns involuntary conduct or a loss of conscious control. It is a distinct legal concept and is not established simply because a person has a psychiatric diagnosis.
Diminished responsibility	This requires the statutory test under section 2 of the Homicide Act 1957, including a recognised medical condition, substantial impairment and an explanatory connection.
Insanity	This is a separate legal route with its own test. It is not interchangeable with modern medical diagnosis or diminished responsibility.
Burden and standard of proof	The prosecution bears the burden of proving the elements of the offence. The criminal standard is proof beyond reasonable doubt, often expressed as being sure.

Some defences place an evidential burden on the defendant. That means sufficient evidence must be raised before the issue is considered properly. Other defences, including statutory routes such as diminished responsibility, may place a legal burden on the defence. Where that applies, the relevant legislation determines the standard, commonly the balance of probabilities.

The presumption of innocence remains fundamental. An allegation is not a finding. A charge is not a conviction. A discontinued trial is neither an acquittal nor a conviction.

Planning and medical evidence are not necessarily inconsistent. A person may carry out organised or purposeful acts while experiencing serious mental illness. Conversely, planning may be evidence that a person retained particular abilities relevant to the legal test. The court must decide what weight to give each piece of evidence, rather than applying a simple rule that planning disproves illness.

Balanced scales and legal documents representing equal standards

The key question is always the defendant’s state of mind at the legally relevant time, supported by credible evidence.

5. Where the equality question genuinely bites

Status-based defences

Infanticide is available only to a mother. There is no equivalent infanticide route for a father.

Whether that distinction is justified is a legitimate question of legal design. Another legitimate question is whether any revised postpartum provision should be available to a father or another parent where a qualifying birth-related mental condition is medically established.

This is not an argument about women as a class. It is a question about whether legal consequences should turn on status, clinical evidence, the parent-child relationship, or a combination of those factors.

Funding and recognition gaps

Policy must consider the availability of:

Perinatal mental-health services;
Mother and baby units;
Emergency psychiatric assessment;
Support for fathers and other non-birth parents; and
Recognition of paternal perinatal mental illness.

Paternal mental-health difficulties can arise during the perinatal period, yet fathers may be less likely to be asked about their wellbeing or offered a clear route to support. Equal standards require meaningful access to assessment, not merely equal wording in legislation.

Research gaps

More comparative research is needed into paternal mental health during pregnancy and the first year after birth. Research should examine symptoms, risk factors, treatment access and outcomes across mothers, fathers and other carers.

It is also reasonable to ask whether advocacy framing shapes which harms receive policy attention. That question should be considered neutrally, without criticism of any organisation or group.

6. What fathers should actually do

When family or criminal legal issues arise, practical discipline matters.

Comply with court orders. If an order is unworkable, seek a formal variation rather than ignoring it.
Keep dated, factual records. Save messages, attendance information, applications and responses. Avoid speculation and inflammatory language.
Obtain regulated legal advice. A solicitor can explain the relevant procedure, evidence and available applications.
Use proper channels. Concerns may need to be raised through the family court process, an appropriate regulator or a formal complaints route.
Avoid public accusations. Posting allegations online can damage credibility, create legal risk and make resolution harder.

Father organising dated notes and legal records at a desk

Our Fathers Rights blog library offers practical information for fathers navigating difficult family-law processes. Join us in pursuing evidence-led reform, equal respect and stronger parent-child relationships.

7. Crisis signposting

If you or someone close to you may be at immediate risk:

Call 999 in an emergency.
Contact Samaritans on 116 123 for confidential emotional support.
Ask a GP, maternity team or NHS service about perinatal mental-health support.
If there is an urgent psychiatric concern, request immediate professional assessment.

You do not have to manage a crisis alone. Asking for help early is a responsible step.

8. Sources

Important disclaimer

This article is general information, not legal advice. It is written for England and Wales and does not provide advice on an individual situation. Scotland and Northern Ireland have different legal systems, offences and procedures, so specialist advice is required there.

This piece identifies no protected parties and discusses no real case, defendant, victim, child, doctor, expert or court location.