4th Dec 2014

CICA avoids pay out for Foetal Alcohol Syndrome 

In 2007 a girl was born with foetal alcohol syndrome. It was her mother’s second pregnancy and the mother was well aware of the risks of drinking during pregnancy. Nonetheless the mother had been drinking upwards of 50 units of alcohol a day. Guidelines issued by the National Institute for Health and Care Excellence were that 7.5 units might damage a foetus.

The girl now suffers from learning difficulties that doctors attribute to her mother’s excessive drinking during pregnancy.  The girl is in care and currently looked after by her local authority.

The local authority applied to the CICA for an award of compensation on behalf of the girl alleging that she was the victim of a violent crime, namely poisoning, caused by excessive drinking during pregnancy.  At the time of the drinking, although the girl was then a foetus, it should be treated as a person with legal rights.

In November 2009 the CICA heard the application for an award made by the local authority.  However, the application was rejected, principally on the grounds that the girl had not suffered an injury that could be said to be directly attributable to a crime of violence.  In short, the CICA concluded that although the effects of drinking were catastrophic, the act of drinking, albeit to excess, was not a violent crime.

The local authority appealed and at a First Tier Tribunal Hearing, the Appeal was allowed on the basis that the excess consumption of alcohol during pregnancy was akin to the administration of a noxious substance and therefore a crime.

The CICA appealed this decision, on materially different grounds, alleging that a CICA award can only be paid out to a person and that a foetus did not become a person until its birth.

The Appeal became a lead case.  The Court heard that there were 80 or so other cases involving children suffering foetal alcohol syndrome as a result of their mother’s excessive drinking during pregnancy whose outcome depended on this ruling.

The Local Authority Appealed to the Court of Appeal.  The Local Authority alleged that the mother was well aware of the risks of heavy drinking during pregnancy as social services had warned her of the risks.

Notwithstanding the advice, the mother had:-

“acted recklessly as to whether there would be harm to her foetus. She foresaw that harm might be caused but went on to take the risk..........”

"By virtue of her excess drinking the mother had administered a noxious and destructive thing to her unborn daughter and inflicted grievous bodily harm for which the child should be compensated...........”

The CICA submitted the Court should reject the Appeal.  Counsel for the CICA told the Court that in everyday life there is;

“a conflict of ideas and medical advice about what is, or is not, dangerous not only in terms of drink but also in terms of smoking and food”.

Counsel asked the court to consider whether;

“a pregnant mother who eats unpasteurised cheese or a soft boiled egg knowing that it could give rise to a risk of harm to a foetus might also find herself accused of a criminal offence”

The Court of Appeal agreed with the CICA and rejected the appeal for compensation, stating;

“The central reason is that we have held 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 our law if her child is subsequently born damaged as a result."

Underlying this Judgment is a reaffirmation of the doctrine that a foetus does not have a distinct legal personality before birth.  As the foetus was not ‘another person’ at the time of the administration of the drink a criminal offence cannot have taken place.

The appeal was therefore dismissed and the local authority could not recover any compensation on behalf of the child. 

Campaign groups on behalf of mothers have welcomed the decision.  To have ruled that excessive drinking is a criminal offence would have put undue responsibility on pregnant mothers and could have exposed innocent people to criminalisation.

For specialist advice about the CICA scheme contact us on a confidential, free, no obligation basis at enquiries@robsonshaw.uk

Category: News Updates