The dead children our ‘caring’ country would rather forget

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By Kenneth Roy

A rather odd thing happened yesterday afternoon as I was about to write this piece. I had intended to start it with a reference to the Lanark school bus crash of March 2010 and ask why there had not been a fatal accident inquiry into the death of 17-year-old Natasha Paton, a pupil of the town’s Grammar School and one of the 39 on the bus. These opening thoughts were forming as the news came through: there is to be an inquiry after all.

Two years four months have elapsed – a very long delay considering that the head of the Scottish Fatalities Investigation Unit, Mike Bell, said when he took up the post that he was ‘determined to deal with cases quickly’. It would be interesting to know if Mr Bell regards two years four months as quick. But better late than never, for if ever there was a fatal accident which cried out for ‘a searching investigation’ – the words used in this column at the time – it was this one.

In the final week before the Easter break, Natasha and her mates went to school on Tuesday. They were wakened from their beds in the early hours of Wednesday – between 4 and 5am – in order to undertake a nine-hour round trip, longer in bad weather, to Alton Towers, a theme park in Staffordshire. Unfortunately the weather was indeed bad – very bad. At 6am, the sleep-deprived young people were put aboard a bus and driven off in treacherous conditions. It had been snowing heavily for hours, it was still snowing, but the school trip went ahead. The driver lost control of the vehicle with fatal results.

Many questions are posed by this specific incident, questions that will – belatedly – be fully and publicly aired, but there is a more general issue about fatal accident inquiries in Scotland which needs to be re-assessed.

Last week SR revealed that Kayleigh Scott, the 15-year-old who was killed after falling 60 feet from a roof in Ayr, was a ‘looked after’ child in the care of the local authority, although she was being supervised and supported while still living in the family home. ‘Looked after’ – yet Kayleigh, a girl well-known to the local Children’s Panel, whose sister died of a drugs overdose only a year ago, was on the roof of a tenement block, in the company of older men, a few minutes before midnight after an evening of heavy drinking. A week later SR’s diclosure about the dead girl’s status as a ‘looked after’ child has not been officially confirmed. But it remains indisputably true.

There has been no word of a fatal accident inquiry into Kayleigh’s death. Will we have to wait two years four months before Mr Bell’s unit gets around to dealing ‘quickly’ with the unexplained reasons for her death? Or might there be no fatal accident inquiry in her case? There is no mandatory requirement for one. If the procurator fiscal, advised by the Scottish Fatalities Investigation Unit, decided that Kayleigh’s death merited an inquiry, it would be entirely at the fiscal’s discretion.

Three years ago Lord Cullen, a High Court judge, conducted a review of FAIs. He looked in particular at the types of cases in which inquiries were mandatory and found, for example, that it was not mandatory to have an FAI into the death of a person sectioned under the Mental Health Act – although it was (and remains) mandatory to hold one in the case of a death in prison or young offenders’ institution.

ENABLE, a mental health charity, told Cullen: ‘Those individuals who have been deprived of their liberty [under the Mental Health Act] should have the same protection as those detained in prison or police cells’. Cullen agreed: ‘In my view it is in the public interest that an FAI should be held into the deaths of those detained by the state, especially those who are most vulnerable’. He was rightly concerned that mental health patients had fewer human rights than prisoners.

Nothing was done by the Scottish Government to deal with this flagrant anomaly. It remains the case that families of patients being compulsorily held in mental institutions are not entitled to an inquiry into the circumstances of their loved one’s death, yet families of prisoners are. Where is the logic in this? Where is the justice?

Cullen also considered the deaths of children in care – a wide category which includes children in care who are living at home, as Kayleigh was. He acknowledged that a ‘significant number’ of interested parties were in favour of mandatory inquiries in all such cases, but he chose to draw a distinction between children in local authority accommodation and children free to live with their families under a supervision order.

‘Making an FAI mandatory for such cases [children in care living at home] seems to me to be inappropriate’, he concluded. ‘Inappropriate’ is the cop-out word of our time. It is intended to convey meaning – it is often uttered as the last word on a subject – yet it signifies nothing. Inappropriate in what way, exactly? Having been invited by his lordship to do nothing about these children, the Scottish Government gratefully agreed to do nothing.

The law on fatal accident inquiries is a mess: a tangle of exceptions and loopholes, and as Cullen recognised, an affront to human rights; the English system of inquests is more transparent as well as more efficient. I repeat what I said here last week: in England a cause of death in Kayleigh Scott’s case would already have been publicly established.

It is inhumane that the family of Natasha Paton has had to wait so long for the announcement of an inquiry; it now faces the ordeal of a further delay before the inquiry begins, to say nothing of the time it will take to produce findings. In the case of the girls who committed suicide off the Erskine Bridge in October 2009, there was a lapse of 21 months before the first witness gave evidence. Bad enough, very bad indeed, but a model of expeditious practice compared with the Lanark case.

In a civilised society we owe it to the dead, and we owe it to those left bereft by their absence, to account for their death, to account for it without unnecessary delay and to account for it without obfuscation. In a week when there has been so much jubilation over the surprising discovery that we live in a caring Britain, too many dead children reproach us from their graves.

Courtesy of Kenneth Roy – read Kenneth Roy in the Scottish Review