Baby damaged in womb by mother’s drinking isn’t GBH, court rules

An unnamed local authority has been left disappointed following the Court of Appeal’s recent decision that a seven year old girl born with foetal alcohol syndrome as a result of her mother drinking excessively during pregnancy cannot recover criminal injuries compensation. Hannah Young gives her view.

The government funded Criminal Injuries Compensation Authority (or CICA for short) pays out to victims of crime who have suffered injury as a result. However, in this landmark decision, Lord Justice Treacey said an “essential ingredient” for a crime to be committed “is the infliction of grievous bodily harm on a person” and that “grievous bodily harm on a foetus will not suffice”.

The British Pregnancy Advisory Service (Bpas) said the ruling was “extremely important” for women everywhere and welcomed it on the basis that women must be able to make their own decisions about their pregnancies. 

Whilst this decision accords with other authorities (such as the fact that parents cannot recover a standard ‘bereavement’ award for a stillborn child, but can if the child is born alive but dies shortly afterwards), it has been received with surprise by some given the evidence that the mother drank 40-57 units of alcohol per day during pregnancy. 

I’m personally disappointed that the court chose to duck the issue regarding a mother’s responsibility not to cause harm to her unborn child by relying on the distinction between a live child and a foetus. Although there would undoubtedly be difficulties in setting the parameters of any legislation, given the potential harm to unborn children as a result of alcohol (and also the additional burden on the NHS), Parliament should be prompted by this decision to at least look into the possibility of criminalising excessive drinking during pregnancy, and therefore allowing, in extreme cases, disabled children to receive compensation to cover the costs of their future care.

For more information or advice, please contact Bedford solicitor Hannah Young.

Tagged under: