Drinking during pregnancy

Alcohol shutterstock 190326683 146x219A council has challenged a decision by the Criminal Injuries Compensation Board to refuse compensation to a child born with foetal alcohol syndrome as a result of his mother's heavy drinking. Paul Coppin analyses the case.

Foetal Alcohol Syndrome (FAS) is a condition that is said to affect as many as 1% of births and can lead to lifelong disabilities and disadvantage for the children affected. 

The case before the Court of Appeal is a challenge by a local authority in the North West to the Criminal Injuries Compensation Board's (CICA’s) decision to refuse compensation under the Criminal Injuries Compensation Scheme - a government funded scheme which compensates victims of violent crime who would otherwise go uncompensated. 

The argument presented was that by recklessly continuing to drink large quantities of alcohol despite warnings as to the effect on the child she was carrying, the mother was committing the offence of maliciously administering poison so as to endanger life or inflict grievous bodily harm, a crime under section 23 of the Offences Against the Person Act 1861. 

The Courts have consistently taken the position that the unborn foetus is not “person” in a legal sense. the consequence of this is that the unborn child cannot therefore be a victim of a violent crime. 

If the Court of Appeal changes its approach it will have far reaching consequences for local authorities who have legal responsibility for the many children suffering from FAS (who are proportionately more likely to be in care). If successful applications can be made on behalf of such children then it is likely that many such claims will follow and given the serious nature of the condition in many cases there is scope for substantial awards being made. 

Pre-emptive steps have been taken to limit the scope of such claims following the amendment of the terms of the Scheme in October 2012 to specifically exclude from the definition of a crime of violence any injury that “was sustained in utero as a result of harmful substances willingly ingested by the mother during pregnancy, with intent to cause, or being reckless as to, injury to the foetus”. This amendment, which was clearly intended to limit the potential for such claims in the future and hence the cost to the government who fund the awards, has been the subject of challenge in the House of Commons and may not be sustainable if public opinion turns against it as a result of the present case.

There are wider social implications of a finding that an unborn child could be classified as a legal person in their own right which the Court of Appeal may well wish to avoid including opening the way for any number of ill advised activities  on the part of the mother suddenly becoming criminal offences. How the police and courts would respond to this in practice is difficult to foresee and it seems that much the better way through these difficult issues is for them to remain in the domain of public health rather than the law. 

These wider implications will no doubt form a central part of the Court of Appeal’s thinking as they seek to come to a decision in this case. However, if they rule in favour of compensation then the impact on the social services teams throughout the country will extend far beyond the issue of seeking compensation for children in their care under the Scheme. 

Paul Coppin is a Partner
 at Eversheds. He can be contacted on 0845 497 2567 or This email address is being protected from spambots. You need JavaScript enabled to view it..