Court backs mother in alcohol case
A mother who drank excessively while pregnant and gave birth to a baby with serious, alcohol-related problems has been cleared of claims that she committed a criminal offence.
In a ruling described as "important to women everywhere", three Court of Appeal judges rejected a bid by the woman's brain-damaged daughter "CP", now aged seven, for criminal injuries compensation.
The judges ruled a foetus in the womb was not a "person" who could be unlawfully harmed.
They 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".
Janet Fyle, professional policy adviser for the Royal College of Midwives, said: "We welcome this ruling as it reinforces the current law on the status of the foetus and offers protection to pregnant women, rather than criminalising them for engaging in behaviour which is legal but is likely to cause harm to her."
But she added: "It is important to give a clear message about alcohol avoidance in pregnancy because of the risks it presents to the health of both the mother and baby."
Today's ruling in London was a blow to a local authority in the North West of England which now cares for CP and fought for compensation.
She was born in June 2007 with foetal alcohol spectrum disorder (FASD), also referred to as foetal alcohol syndrome (FAS), which can cause retarded growth, facial abnormalities and intellectual impairment.
CP suffers with learning, development, memory and behaviour problems.
The appeal judges heard that a large number of similar claims for compensation by children allegedly harmed by alcohol in the womb were awaiting the outcome of CP's appeal, with solicitors already instructed in around 80 cases.
Lord Dyson, the Master of the Rolls, sitting with Lord Justice Treacy and Lady Justice King, considered the case recently at a one-day hearing.
The judges were told that the mother was drinking "an enormous amount" while pregnant with CP, including a half-bottle of vodka and eight cans of strong lager a day, and the child was born with an alcohol-related disease.
John Foy QC, appearing for CP, said that was the equivalent of 40-57 units of alcohol a day. Guidelines issued by the National Institute for Health and Care Excellence (Nice) were that 7.5 units might damage a foetus.
He said the mother "was aware of the dangers to her baby of her excessive consumption during pregnancy" and "foresaw that harm might be caused but went on to take the risk."
CP's compensation claim was based on the assertion that her mother had committed an offence against her as defined under the Offences Against the Person Act 1861 by drinking excessively during pregnancy.
Ben Collins, appearing for the Criminal Injuries Compensation Authority (CICA), asked the court to reject CP's legal challenge.
He told the judges: "There is a conflict of ideas about what is or is not dangerous, not only in terms of drink but also in terms of smoking and food."
Mr Collins asked whether "a pregnant mother who eats unpasteurised cheese or a soft boiled egg knowing there is a risk that it could give rise to a risk of harm to the foetus" might also find herself accused of a crime.
Dismissing CP's appeal, Lord Justice Treacy said an "essential ingredient" for a crime to be committed "is the infliction of grievous bodily harm on a person - grievous bodily harm on a foetus will not suffice".
The judge said CP was born with limited growth potential. He added: "All the suffering that CP has endured and will continue to endure during her life is the consequence of the harm that was inflicted on her when she was in her mother's womb."
Any further harm she suffered after her birth was a result of what had occurred while she was still a foetus.
The judge said Mr Foy's argument "breaks down" because Parliament had not expressly said a foetus was "a person" against whom a criminal offence could be committed.
He said Parliament could have legislated to criminalise the excessive drinking of a pregnant woman in such circumstances but chosen not to do so.
The judge said the role of the state should be "to provide care and support for the child who has suffered harm to the extent that this is necessary.
"It should not be to pay compensation on the basis that the child is the victim of a crime by her mother."
Lawyers for CP expressed "disappointment" with the ruling and said they were now considering their options.
The only legal avenue left open is to seek to go to the Supreme Court, the highest court in the land.
Neil Sugarman, managing partner of GLP Solicitors of Bury, Greater Manchester, who represented CP, said: "This is an extremely complex and challenging case, but it was undertaken with the best interests of the child at heart.
"Everyone involved with the case is disappointed with the outcome and will need time to digest the judgment and consider their options."
Ann Furedi, chief executive of the Bpas, and Rebecca Schiller, co-chair of Birthrights, welcomed the court's unanimous decision, saying: "This is an extremely important ruling for women everywhere.
"The UK's highest courts have recognised that women must be able to make their own decisions about their pregnancies."
FASD was diagnosed 252 times in England in 2012 to 2013.
CP's compensation application was initially rejected by the CICA in November 2009 on the grounds that she had not sustained an injury "directly attributable to a crime of violence", as required by the Offences Against the Person Act.
A first-tier tribunal allowed her initial appeal but the Upper Tribunal of the Administrative Appeals Chamber ruled last December that the law required a crime to be committed against an individual "person" - and a child did not become a person until birth.
The Upper Tribunal concluded: ''If (the girl) was not a person while her mother was engaging in the relevant actions then, as a matter of law, her mother could not have committed a criminal offence.''
Asking the appeal judges to quash the Upper Tribunal decision, Mr Foy argued CP had been a person entitled to compensation while still a foetus and the crime committed against had similar ingredients to manslaughter.
Alternatively, she became entitled to an award when she was born and was suffering the continuing consequences of her alcoholic mother's drinking.
Mr Foy said CP was the young mother's second pregnancy and the woman was well aware of the risks.
But she had recklessly "administered a noxious thing - a destructive thing" to her unborn daughter and inflicted grievous bodily harm for which the child should be compensated.
The appeal judges rejected the appeal on all grounds.