Concealing Birth of Child

Concealing Birth of Child

Under section 48 of the Offences against the Person Ordinance: 

Any person who in any manner disposes of the dead body of a child with intent to conceal the fact of its birth, whether the child died before, or during, or after birth, commits an offence and is liable on conviction to imprisonment for 2 years. 

Under section 48, any person who, by any means, disposes of the dead body of a child, with intent to conceal the fact that the child had been born, commits an offence, punishable by up to 2 years' imprisonment. The scope of this offence is fairly wide—it applies whether the child died before, during or after birth. 

Child 

The law imposes a certain threshold on the definition of a "child". To constitute this offence, the child must, at birth, have reached a stage of maturity sufficient to be capable of survival, that is, to have the potential to be a live child. The prosecution must generally find and identify the dead body of the child in order to prosecute this offence; however, where the defendant has made admissions as to the relevant facts, the court may in some circumstances consider a conviction even without the body. 

Conceal 

A mere denial that the child was ever born is not sufficient to constitute this offence—the law requires that the defendant actually carried out some act of secret disposal of the body. What amounts to "secret disposal" depends on the particular circumstances of the case. The key question is the likelihood of the body being discovered—if the body was placed in a secluded and hidden spot, it may constitute secret disposal even if it was not entirely concealed from view. It is to be noted that, even if the mother had let some people know of the child's birth, this does not wholly exclude an intent to conceal, and the jury may still treat it as one of the factors for consideration. 

The Act of Disposal Must Take Place After the Child's Death 

The law requires that the defendant carried out the act of secretly disposing of the body only after the child's death. There is, however, one exception: if a person places a living child in a hidden spot, and later returns to find that the child has died, and then leaves the body in place and restores the concealment, this conduct may also constitute concealment.