Clinical Negligence & Catastrophic Injury Solicitors
CICA bid rejected by Court of Appeal.
In a highly-anticipated ruling, the Court of Appeal has decided that a six-year-old girl born with lifelong damage after excessive drinking by her mother during pregnancy is not entitled to criminal injuries compensation.
In the ruling, handed down by Lord Justice Treacy, it was confirmed that the mother had not committed a criminal offence by her drinking while pregnant with her daughter.
The case went to the Court of Appeal after a North West local authority sought criminal injuries compensation under the Offences Against the Persons Act 1861 for care of the girl who was born with foetal alcohol syndrome (FAS) the symptoms of which include restricted growth, facial abnormalities and intellectual impairment.
The British Pregnancy Advisory Service (bpas) and another charity, Birthrights, had opposed the potential criminalisation of expectant mothers and the ruling sets a clear precedent for women’s rights.
Lord Justice Treacy said the central reason for dismissing the appeal was that: “a mother who is pregnant and who drinks to excess, despite knowledge of the potential harmful consequence to the child of doing so, is not guilty of a criminal offence under the law if her child is subsequently born damaged as a result.”
He said that the main reason for dismissing the application was that the damage caused to the unborn baby by heavy drinking was inflicted at an early stage of the pregnancy when the child did not have a separate existence under the law.
“The time at which harm, acknowledged in this case to amount to grievous bodily harm, occurred was while the child was in the womb,” he said in his judgment. “At that stage the child did not have legal personality so as to constitute ‘any other person’.”
In the judgment, the Master of Rolls, Lord Justice Dyson, said: “Parliament could have legislated to criminalise the excessive drinking of a pregnant woman but it has not done so. Since the relationship between a pregnant woman and her foetus is an area in which parliament has made a limited intervention, I consider that the court should be slow to interpret general criminal legislation as applying to it.”