A child who developed foetal alcohol syndrome as a result of her mother’s excessive drinking during pregnancy is not eligible for help under the criminal injuries compensation scheme (CICS), the Court of Appeal has held.
The Court dismissed the claim that the mother was responsible for poisoning her child because a foetus is not a legal person, in CP (A Child) v First-tier Tribunal (criminal injuries compensation) [2014] EWCA Civ 1554.
The court heard that the mother drank eight cans of strong lager and half a bottle of vodka a day. The local authority now cares for the child, who has severe brain damage.
Campaigners welcomed the decision, which they warned could have criminalised mothers who drink during pregnancy or even, by extension, engage in other behaviour that could harm the unborn child.
However, Kim Harrison, principal lawyer, PI serious injury group, Pannone part of Slater & Gordon, says: “This result is disappointing for the victim herself, who needs a high level of care and can’t access criminal injuries compensation.
“Our view is that people are not looking at the right question, which is whether a compensation scheme could be used to help these victims. This is not about creating a new crime to penalise mothers.
“Ideally, we should be supporting women but, in certain circumstances, the existing crime of ‘malicious’ administration of poison so as to endanger others under the Offences Against the Persons Act 1861 could be used. Comparisons could be made to thalidomide victims or unborn children who are injured in a road traffic accident.
“In theory, an alternative route to compensation would be to sue the mother in negligence but, as mothers don’t take out insurance, that would not work.”
