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Judges hear pregnancy 'crime' case

The Court of Appeal has reserved its judgment on whether a pregnant woman committed "a crime of violence" against her child when she drank a "grossly excessive" amount of alcohol while pregnant.

Lawyers for child "CP", who cannot be named for legal reasons, asked three judges to rule in a test case that the girl, now aged seven, is entitled to compensation after being born with an alcohol-related disorder.

If the appeal succeeds, it could pave the way for pregnant women's behaviour to be criminalised, according to the British Pregnancy Advisory Service (bpas) and Birthrights,

After a day-long hearing Lord Dyson, the Master of the Rolls, sitting with Lord Justice Treacy and Lady Justice King, said the court would take time to consider its decision.

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.

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.

Mr Foy was representing a council in the North West of England which now has responsibility for CP and is fighting for an award on her behalf under the Criminal Injuries Compensation Scheme.

He said the mother "was aware of the dangers to her baby of her excessive consumption during pregnancy".

He added: "She was reckless as to whether there would be harm to the foetus. She foresaw that harm might be caused but went on to take the risk."

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.

The appeal court heard 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.

The judges were told CP, who was born in June 2007, suffers from foetal alcohol spectrum disorder (FASD) which can cause retarded growth, facial abnormalities and intellectual impairment.

FASD was diagnosed 252 times in England in 2012 to 2013.

Doctors say CP's condition is a consequence of her mother's excessive drinking.

But her application for compensation was rejected by the Criminal Injuries Compensation Authority (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 Persons Act 1861.

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.

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.

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