7th Nov 2014

Can a child obtain compensation from the CICA for injuries caused by its mother whilst pregnant?

A claim against the CICA has been brought by a Local Authority who now cares for a child who suffered foetal alcohol syndrome.  Lawyers pursuing a compensation claim on behalf of the child allege the mother’s heavy drinking during pregnancy constitutes a crime of poisoning and therefore the CICA is liable to compensate the child.

To be eligible for compensation the CICA compensation scheme requires a victim to:-

• To have been subject to a crime of violence
• Be an individual at the time of the injury

The Local Authority won its claim to the CICA on the basis the drinking constituted poisoning of the foetus.  The CICA appealed and won, on the grounds that an unborn child is not a person in law and therefore no criminal offence could have been committed.

The Court of Appeal has been asked to consider the following issues;-

• Whether the mothers heavy drinking constitutes a crime of violence?
• Whether a foetus can be legally considered to be an individual?

If  the Court of Appeal decide these critera are met, the CICA are facing claims from 80 or so other applicants who suffered foetal alcohol syndrome.

A Crime of Violence?

It is accepted that the mother repeatedly ignored warnings about her heavy drinking during pregnancy and knew the potential risks to her unborn child.  It is also accepted that the mother’s excessive drinking caused the injuries to her daughter.  Indeed the mother was drinking half a bottle of vodka and eight cans of strong lager daily. That amounts to 40-57 units of alcohol a day. The National Institute for Health and Care Excellence advise that 7.5 units may damage a foetus. 

The Local Authority maintains the mother’s action constituted a crime of poisoning under section 23 of the Offences Against the Person Act 1861.

However, the real question is not whether the mothers drinking was a crime, but whether the crime was violent. 

A recent but unrelated case at the Court of Appeal helped define the legal test for crimes of violence in CICA cases.  Here the owner of a dangerous dog committed a criminal offence by allowing his dog to escape from the garden and bite a child in the street.  However, in this case the CICA was not liable for the injuries caused to the child.  The Court stated that the act of the owner in letting the dog escape was a criminal act, but it was careless and not violent.  The Court must look at the action that constitutes the crime (letting the dog escape) and not the outcome of the crime (an injured child) to see if there has been violence.

So if the Court is satisfied that the mothers drinking was a crime but not a violent crime, then the CICA will not be liable to compensate the child in this case.

Is a Foetus an Individual?

This is emotive. However, it is undeniably the case that foetuses do not enjoy all the rights of individuals.  For instance, the Abortion laws can only apply to foetuses.  If extended to individuals, any surgeon carrying out an abortion would be guilty of murder.  It is difficult to predict how the Court will approach this point.

Should there be a Public Policy Decision?

Courts sometimes recognise that if the law were applied literally then an injustice would occur, or the law would have unintended consequences.  If so, public policy decisions dictate the Courts can apply the law more sensibly.  

As the Barrister for the CICA pointed out, there is a problem of the “slippery slope” in this case.  The law does not want to criminalise all mothers whose pregnancy is compromised.  Thus should a pregnant mother who eats unpasteurised cheese or a soft boiled egg knowing there is a risk that it could harm the foetus find herself accused of a crime?

The Court has heard the legal submissions and has reserved Judgment meaning that it will deliver Judgment in the next few weeks. 

At robsonshaw, we await the outcome of this important judgment with interest as it is likely to have far reaching ramifications for other CICA claims.  To contact robsonshaw, please email us on enquiries@robsonshaw.uk for confidential, free, no obligation advice on your CICA claim.

Category: CICA Claims