



Severe damage inflicted on an unborn baby by her mother’s heavy drinking during pregnancy was equivalent to an attempt at manslaughter, the court of appeal has been told.

Opening a claim for compensation on behalf of the girl, now seven, lawyers argued that she was entitled to payments from the Criminal Injuries Compensation Authority (CICA).

The test case raises complex questions about whether the mother’s drinking constitutes a criminal act and whether the child was legally an individual within the law at the time she suffered injury. As many as 80 other claims on behalf of children suffering from foetal alcohol spectrum disorder are awaiting the outcome.

Neither the child nor the local authority in the north-west of England can be identified. The court was told that the mother ignored warnings from social workers and antenatal medical staff that her heavy alcohol consumption risked harming her unborn baby.

The claim has been filed by the local authority, which cares for the child, against the CICA. It maintains the mother’s action constituted the crime of poisoning under section 23 of the Offences Against the Person Act 1861.

John Foy QC, for the authority, told the court of appeal: “It’s not disputed that the mother administered a noxious thing, it could be described as a destructive thing, to her daughter and it inflicted grievous bodily harm on her. The child was born with foetal alcohol spectrum disorder … We say it’s on all fours with manslaughter.”

The mother began drinking alcohol at the age of 13, the appeal court was told. By 17, she was consuming significant amounts every day. She also took cannabis, LSD and amphetamines regularly before becoming pregnant with her first child when she was 18. She told her social worker she stopped taking drugs when she became pregnant.

Foy said: “She was seriously addicted to alcohol by the time she conceived [her second child]. She explicitly discussed with her social worker on two occasions the dangers of drinking excessively.

“She was drinking an enormous amount. It was, on her own account, half a bottle of vodka and eight cans of strong lager daily. That amounts to 40-57 units of alcohol a day. The [health] guidelines from Nice [the National Institute for Health and Care Excellence] are that 7.5 units may damage a foetus.”

The mother is no longer in contact with the child, who has suffered developmental problems. Foetal alcohol syndrome can result in babies being born with brain damage as well as distorted facial features. The local authority won its claim in the initial hearing but lost in the upper administrative tribunal on the grounds that an unborn child is not a person in law and therefore no criminal offence could have been committed.

The case has provoked a wide-ranging debate about the rights of the foetus and calls for women who drink excessively during pregnancy to be prosecuted.

The Department of Health advises that pregnant women avoid alcohol, or, if they do opt to drink, to consume no more than two units up to twice a week. A unit is roughly equivalent to one small glass of wine.

Neil Sugarman of GLP Solicitors, who is representing the local authority, said before the hearing: “This is not about the criminalisation of women. It is about whether a foetus that is damaged in the womb but goes on to be born with life-changing injuries has been the victim of a crime within the strict definitions of the statutory Criminal Injuries Compensation Scheme.

“It is highly unlikely to lead to prosecutions and the birth mother plays no active part in the claim process. Compensation would open up new avenues to treatments and support not readily available on the NHS, and to provide at least some improvement to the quality of life of a group of very badly damaged children and young people.”

The British Pregnancy Advice Service (Bpas) and the Pro-life Research Unit have intervened in the case. Similar cases in the US have led to women being jailed.

Ann Furedi, chief executive of Bpas, and Rebecca Schiller, co-chair of Birthrights, said: “Viewing these cases as potential criminal offences will do nothing for the health of women and their babies. There is a strong public interest in promoting the good health of pregnant women and babies, but, as longstanding government policy recognises, this interest is best served by treating addiction and substance abuse in pregnancy as a public health, not criminal, issue.”

One of the three appeal court judges hearing the case, the master of the rolls, Lord Dyson, described the law as “a bit incoherent” because it prevented a child from suing its mother for what appeared to be a “prima facie case” of negligence.

He added: “Could the child bring a private prosecution against the mother? It’s not an entirely fanciful suggestion. We are told the prosecuting authorities are reluctant to prosecute mothers in these circumstances. But you have a family breakdown. It’s not totally impossible to imagine a child bringing a private prosecution against its mother. There’s nothing to stop that.”

Another of the judges, Lord Justice Treacy, questioned whether the comparison with manslaughter was sustainable since “manslaughter is not a complete offence unless a death takes place”.

Ben Collins, for CICA, agreed that compensation could be paid if it could be shown that an individual had suffered a crime of violence. But he said a foetus was not treated as a person in either civil or criminal law.

Collins questioned 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.

Judgment has been reserved.

• This article was amended on 6 November 2014 to correct the spelling of Lord Justice Treacy’s name, from Lord Justice Treacey as an earlier version said.

