Ruling due over womb ‘violence’

Published: Thursday 4th December 2014 by The News Editor

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The Court of Appeal gives its judgment today 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, said the seven-year-old was born severely brain damaged and with a disorder caused by alcohol abuse.

They asked three judges to rule in a test case that the girl, who suffers with learning, development, memory and behaviour problems, is legally entitled to compensation as a victim of crime.

If her 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.

Lawyers for the child say that view is “misplaced speculation”.

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.

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 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 the application on behalf of the child 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.

Neil Sugarman, managing partner of GLP Solicitors of Bury, Greater Manchester, who represent the CP on behalf of the local authority that took her into care, said: “There has been a great deal of speculation about whether this will lead to the criminalisation of women, but that is misplaced.

“Under the Government’s scheme, there is no need for anybody to have been prosecuted or convicted of an offence.

“It is a theoretical exercise and it turns on the legal status of a foetus in the womb and whether it is possible, in law, to commit a crime against a foetus.

“That is to say, the court would have to be satisfied that the foetus can have the characteristic of ‘a person’. It also requires a finding that the birth mother was both drinking excessively and had been warned that this might damage her baby.”

Mr Sugarman added: “Whatever the outcome, I am pleased that this case has raised awareness of the dangers of drinking during pregnancy both in this country and round the world.

“I have been contacted by many people who have adopted or care for children damaged by FAS and a number of charities who support them. It has raised the profile of the damage that can be done.”

Published: Thursday 4th December 2014 by The News Editor

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