Our son's death was made worse by the law

Published on 05/02/2005 01:57

THE sense of loss in the Graham household is tangible. Kirstie Graham is used to getting on with life, cooking meals, playing with her children, with grief as her constant companion. Whenever she speaks about her son Alexander, her eyes brim over with tears.

"I can talk about all the legal stuff quite calmly," she says, fiddling nervously with a ball of tissue, "but when I actually talk about him, the person that he was, it’s just impossible to hold it together."

When Alexander, aged one, died in the care of a childminder, Tina McLeod, in July 2001, Mrs Graham and her husband Steve found themselves swept into a waking nightmare which they believe will never end.

Shortly afterwards, Mrs McLeod was charged with Alexander’s murder, but after an agonising wait of 19 months for the case to come to trial, a jury returned a "not proven" verdict. The Grahams then raised a civil action against Mrs McLeod which ended this week when they accepted, reluctantly, a financial settlement from her insurance company.

The Grahams have never spoken about their experiences except in written statements issued through the police. Mrs Graham decided to speak to The Scotsman to voice her anger at the legal system which she believes has failed her family, and to put the case for "urgent reform of the criminal justice system to prevent further suffering".

Her fight for justice for Alexander is now at an end, yet for the Grahams the conclusion is "hugely unsatisfactory".

Kirstie Graham and her husband say they had no choice but to accept the financial settlement offered, although it was significantly less than the amount they petitioned for. To go on would have meant they risked paying the costs of a civil jury trial, which could run to many thousands of pounds. However, they believe their case has been "bought off".

"Unless you’re a millionaire, you have no option but to settle," Mrs Graham says. "It’s such an anticlimax to fight as we did and for it to come to this."

It was never about money, she insists. "When we raised the civil action, we knew all it would ever come down to was money, but we just felt we had to do something. In a way we knew it was a pointless thing to do, but we felt we were still fighting Alexander’s corner in some small way.

"My son is dead," she says, through tears, "and nothing is ever going to change that. Nothing is ever, ever going to bring him back, or alter what happened that day. Even if she [Mrs McLeod] had been found guilty and gone to prison, it would never have brought Alexander back. But on top of Alexander dying, it was made so much worse for us by the legal system."

It is a system which, she believes, is more concerned with the rights of the defendant than the victim. "It’s completely uneven. If you are the victim of a crime, it’s frightening how much everything is weighted against you. There’s nothing for victims, no official government body, no services, just a few voluntary organisations like the Compassionate Friends [a support group for bereaved parents]. There is so much to rehabilitate criminals and support them. Nothing for victims, people just don’t want to know."

She said that the start of the murder trial was delayed nine times at the request of the defence. "We were poised for this trial, and it would be cancelled sometimes with a week’s notice, or even a day’s notice. You can imagine, you’re going for the murder trial of your son, you know you’re going to have to give evidence. You have to keep getting keyed up for that every time. It was like torture. The criminal justice system was allowed to torture us.

"We felt that the defence had everything their way. It was as if they were playing a game with the system, in order to get the best advantage for them. It’s all very well playing their little legal games, but real people are having to suffer as a consequence."

And she hit out the "not proven" verdict, a legal anomaly only available in Scotland. "A ‘not proven’ verdict is a terrible thing, it’s unique to the Scottish legal system and we think it should not exist. As a verdict, it’s unsatisfactory all ways round. It just left completely open the issue of what had happened to Alexander. Nobody was prepared to stand up and say: ‘This is what happened to your son’.

"We felt it was the easy way out for the jury. It allows them to avoid the fundamental question of guilt or innocence. They didn’t have to make a decision, it was a non-decision. They should have had to make a decision and live with the consequences, as we’ve had to live with the consequences of their lack of decision."

It was just another ordinary day on 26 July, 2001, when Mrs Graham dropped off Alexander and his older sister Morven at the childminder’s on her way to work. Around lunchtime she received a call saying that Alexander had been taken to Royal Hospital for Sick Children. She rushed there in a taxi, hoping it was nothing serious. But soon she and Steve learned the worst: Alexander had suffered head injuries and multiple haemorrhaging. A day later, they agreed to switch off his ventilator.

A tribute by the Grahams, read at Alexander’s funeral, spoke of a beautiful, sunny child who "never really stopped smiling". He was "thrilled and content with life", and his brief life was "a year of perfect days". They realised straight away that his loss would change their lives forever.

They moved out of their home in Wardie, Edinburgh, almost immediately. "Alexander was born in that house. It was just too painful to carry on living there once he’d gone," Mrs Graham says. After living in a rented cottage for a year, they have now settled in Perthshire.

In all of this, their main concern was for their daughter Morven, now seven, who was also in McLeod’s home the day Alexander died. "She’s got to grow up with that, and we’ve got to help her through that as she gets older," Mrs Graham says. "This isn’t going away, we’ve got to live with it for the rest of our lives." They shielded her as much as possible from what was happening, but Mrs Graham says she is still nervous and fearful of sudden noises. "It has affected her, there’s no doubt, but having said that, she does tremendously well at school, she’s a lovely girl, very bright, very popular."

She says that Morven gave her and her husband a reason to keep on living. "We both said, if we could, we’d have just driven our car somewhere, put the exhaust through the window, and left it all behind when Alexander died. But Steve said that we must look after Morven, and that pulled us both through. He was right. After what she’d been through, it wasn’t fair to make her go through more."

Then, as the months passed, Mrs Graham discovered that she was pregnant. Imogen, now two, was born just a few months before the murder trial began. "The last thing we felt we could cope with was having another baby. The pregnancy was a very frightening time, I was worried about something going wrong and I didn’t know how I’d feel about having a baby, whether I’d be able to cope. But it turned out to be the most wonderful thing. We both fell in love with her, and Morven was just thrilled to have a little sister."

But Mrs Graham remains anxious. She has not worked since Alexander died, and will never again leave the children with a childminder. "The worst thing is the guilt - that someone I chose and trusted could then have been accused of doing this.

"As women, we’re put in a situation where we are all encouraged to go out to work. But I don’t think the reality of leaving your children with someone else is taken seriously, and if you really don’t want to do that, I think you should be just as much encouraged and supported to stay at home. There has been this huge push to get enough childcare so all women can work, and it’s got to be quality, state-regulated childcare.

"After something like this has happened, you’ll never look at life in the same way again. I can’t leave Imogen with anyone except my mum, my sister, and one friend. But it’s so difficult, because she will have to go to nursery when she’s three. When you’ve lost a child, you want to keep the other ones with you all the time, yet at the same time they have to lead a normal life.

"It’s impossible to describe the extent to which this has changed me, completely and forever: the way I look at life, the person that I am. Life is so fraught with risks. We all walk around in a bit of a bubble, thinking somehow it won’t happen to us, but when that’s taken away, everything is potentially a threat. Suddenly the world is a very threatening place.

"Alexander is still very much part of our family. I go to the cemetery every week with my mum, and I take Imogen, so that she’ll always know about her older brother. I love all my three children, but the pain doesn’t diminish."

It is hard, she says, to accept that there are no battles left to fight. "With the legal action, at least I felt I was doing something for him. It’s very hard to feel that we have reached the end of the road now. In a way you don’t want to let go, because it feels like letting go of Alexander. At least when you’re doing something, you feel that you’re keeping him close." She wipes her streaming eyes. "I suppose I feel I tried."

• The Compassionate Friends, which helps bereaved parents, can be reached on 0117 953 9639, or www.tcf.org.uk

Woman cleared of killing baby pays sum to parents

SUSAN MANSFIELD and IAN JOHNSTON

PARENTS who sued their former childminder after she was acquitted of their son’s murder have agreed to an out-of-court settlement, The Scotsman can reveal.

An undisclosed amount - understood to be substantially less than the 100,000 sought by the family of Alexander Graham - was paid out by insurers covering ex-childminder Tina McLeod, who was accused of repeatedly and violently shaking the child.

The criminal prosecution ended when the jury, which heard evidence that Alexander’s injuries could have been caused by a fall as Mrs McLeod claimed, found the case against her was "not proven".

The one-year-old’s parents, Kirstie, 37, and Steve, 36, considered suicide after his death in July 2001, but lived on for the sake of their daughter Morven. Then just months before the trial, Mrs Graham gave birth to Imogen.

Furious with the "not proven" verdict, the family took civil court action, claiming Mrs McLeod was responsible for their son’s death either by a deliberate act or through negligence.

The settlement does not admit any kind of guilt and the decision to pay was made by the insurance company, not Mrs McLeod. The Grahams, who moved from Edinburgh to Perthshire following Alexander’s death, have expressed their frustration with the outcome and said they felt let down by the legal system as they had "no option but to settle".

Mrs Graham said the settlement was "a lot less than we asked for" - according to reports this was 100,000.

She said that after Alexander died both she and her husband thought about taking their own lives, but decided against it because of their daughter Morven.

Now Mrs McLeod is understood to have taken a place on a teacher training course at Edinburgh University’s Moray House.

Shirley Wyles, the solicitor for Mrs McLeod's insurance company, stressed that the payment did not mean Mrs McLeod had admitted negligence or deliberately harming the child.