Victims of Foetal Alcohol Syndrome- no right to compensation

The Court of Appeal’s recent decision in CP (A Child) [2014]All ER (D) 48 (Dec) has now made it clear that children born with foetal alcohol spectrum disorder will have no recourse to criminal injuries compensation as they have not, in law,  been the victim of a criminal act.

In this landmark decision the Court of Appeal court rejected CP’s contention that a foetus was capable of being ‘any other person’ within the meaning of theOffences Against the Person Act 1861, s 23 (OATPA 1861) and held that, if the foetus was not another person at the time of the administration of the noxious substance, the offence could not be complete at that point.

The ruling, subject to any appeal, concluded that a pregnant woman who drinks heavily through her pregnancy, injuring her unborn child, is not committing a criminal offence and the child, once born, therefore has no right to compensation from CICA.

 There was no dispute that CP’s pregnant mother drank excessive quantities of alcohol or that CP had suffered grievous bodily harm. The issue the Court of Appeal focused on was whether CP was ‘any other person’. The case for CP was that CP was ‘any other person’, distinct from their mother.  The Court of Appeal,  reaffirmed earlier cases that a foetus was generally not capable of being another person.

The Court of Appeal recited the clear authority that in law a foetus is not a ‘person’, and that ‘rather it is a sui generis organism’.

This decision makes it clear that children born with FASD will have no recourse to criminal injuries compensation as they have not been, in law, a victim of a criminal act. Lord Dyson also recited, in support of the finding that a foetus is not an independent ‘person’, the settled proposition that in civil law, pregnant women owe no duty of care to their unborn child. In other words, a child cannot sue their mother for compensation for acts or omissions while she was pregnant that later adversely impacted on her child, save for very narrow exceptions provided for by Parliament. A third party who through negligent acts harms an unborn child such that the child is born with disabilities can be held to account through civil law, but not the mother.