Sands Month – Finding Your Way 2019 – Can Fathers Claim Following Stillbirth?

This month is Sands Month, highlighting the work being done by the stillbirth and neonatal death charity. Their focus for 2019 is on raising the level of support given to dads following the loss of their baby, as their current research suggests that for many men, embracing the grieving process will not be a priority.

Our Taunton team specialise in helping families affected by baby loss, and this article collects some of their recollections about working with bereaved dads. It also looks at the legal requirements which a father will need to meet in order to successfully bring a legal claim, which we hope will be useful if you are thinking of contacting a lawyer. To read the full recollections from our team, please visit our Facebook page.

Working with bereaved fathers

Adele Wilde is an associate in our Taunton team, and she has worked with many fathers who lost a child to stillbirth. Adele says:

“Although I’ve worked closely with bereaved fathers for a number of years, I am still surprised and saddened by how many have been made to feel their grief is ‘less important’. I was instructed by one father who felt excluded from the hospital investigation as he was not named on any of the correspondence. He confided in me that, at a time when his whole world was falling apart, such an oversight had a massive impact on him.”

Helping fathers to deal with emotion

Claire Stoneman is a partner in the Taunton team, and has found that sometimes bringing a legal claim can have an unexpected benefit for fathers:

“There’s quite often a lot of anger when I first speak with Dads, and I have to earn their trust and respect after the traumatic journey they have been on. I feel like I am in a privileged position in that they are ready and wanting to share their story with me.

“I find that when Dads ring me they use that as a way of downloading not only the information about what happened, but their grief and frustration as well. Quite often they will be supporting their partner and won’t have any support themselves.

“It all comes back to the typical stereotype of Dad being the breadwinner, the provider and protector of the family. I know times have moved on but when it comes to baby loss this seems to revert to type and Dads are often left isolated with no one to talk to outside of their immediate family.”

Finding an outlet for grief

Nicola Rawlinson-Weller is an associate in the Taunton team, and she believes that the claims process can sometimes help dads to find a way to channel their grief:

“My experience of working with bereaved Dads is varied, but the common theme that comes through is their desire to protect their wife and fight for their child. Both of their lives were turned upside-down when they heard those devastating words ‘I’m sorry, your baby has died’. Nobody prepared them for this.

“Nobody could have prepared them for the overwhelming devastation. Their fight or flight instinct often kicks in, but Dads know they can’t run from the situation so I find they do the only thing they can, they try to protect their partner and search for a ‘fix’ to what has happened. They try to fight for justice for their child.”

Not just dads

Our Katherine Pearce has helped many couples affected by stillbirth and neonatal death, and believes it is important to remember that it is not just dads who can be side-lined in the grieving process:

“The issue are not exclusively for dads either. In same sex couples, the birth parent is often seen as the most vulnerable and the same culture of support, or lack thereof, can prevail. However, things do not have to be this way. There are charities like Daddys with Angels, #babylosshour and #LGBTbabyLOSS on Twitter run by Jess at The Legacy of Leo and Rich who blogs on the Shoebox of Memories. They provide communities to enable all parents to be open, to share, to find comfort, help signpost for support and are all encouraging men to share their experiences and raising awareness of baby loss.”

Who can make a stillbirth or neonatal death claim?

In any claim involving childbirth, it is expected that the mum will be the “primary victim”, the person who is the patient at the hospital. If someone, such as a dad or a grandparent, witnesses the negligence or its consequences and suffers psychological damage as a result, it is possible for them to claim as well. This is called a “secondary victim claim”.

What do you need to prove to bring a claim as a secondary victim ?

It is much more difficult in law to bring a claim as a secondary victim. You need to be able to prove:

• There was a close tie of love and affection with the primary victim – if the injured person is your spouse or child, then this is automatic.
• The injury was reasonably foreseeable – This sounds complex, but all it really means is that it’s reasonable for the hospital or clinician to expect the witness to be affected by seeing what they saw.
• You have a recognisable psychiatric injury – Clues might be persistent nightmares, flashbacks, and trouble sleeping, although this list is not exhaustive and a psychologist or psychiatrist is required to confirm this.
• Your psychiatric injury was caused by shock – there has to have been something sudden and horrifying which violently agitated your mind when your loved one was injured or died.
• You were present at the time the effect of negligence took place, for example, seeing your baby be resuscitated in a chaotic scenario.
• You perceived the death or injury with your own senses – ie you saw or heard it yourself, you weren’t told about it by someone else.

The courts say that normal grief is not enough to pass these tests. It’s understandable that anyone would be horrified when learning of the death or injury of a loved one, but the way in which you learn that also has to be horrifying – being present in the delivery room where there are clinical staff rushing in or lots of blood would be a likely example.

The law around secondary victim claims can require expert knowledge to navigate, so if you believe you may have a claim then it is a good idea to talk to a solicitor first. Our specialist team of stillbirth and neonatal death lawyers are always happy to help – contact us today.