A young child is not entitled to criminal injuries compensation after her mother drank excessively while pregnant, the British Court of Appeal has ruled.
Three appeal judges unanimously ruled: “The central reason is that we have held that a mother who is pregnant and who drinks to excess despite knowledge of the potential harmful consequence to the child of doing so is not guilty of a criminal offence under our law if her child is subsequently born damaged as a result.”
The ruling was a blow to a local authority which had fought the compensation battle on behalf of CP, now aged seven, who suffers with learning, development, memory and behaviour problems.
If the appeal had succeeded it could have paved 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 was "misplaced speculation".
Ann Furedi, chief executive of the Bpas, and Rebecca Schiller, co-chair of Birthrights, welcomed the court's unanimous decision, saying: "This is an extremely important ruling for women everywhere.
"The UK's highest courts have recognised that women must be able to make their own decisions about their pregnancies."
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, and the child was born with an alcohol-related disease.
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 was seeking 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."
CP was born in June 2007 with foetal alcohol spectrum disorder (FASD), also referred to as foetal alcohol syndrome (FAS). It can cause retarded growth, facial abnormalities and intellectual impairment.
Her compensation claim was based on the assertion that her mother had committed an offence against her as defined under the Offences Against the Person Act 1861 by drinking excessively during pregnancy.
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.
FASD was diagnosed 252 times in England in 2012 to 2013.
CP's compensation application was initially rejected by the 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 Person Act.
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 and the crime committed against had similar ingredients to manslaughter.
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.
Dismissing CP's appeal, Lord Justice Treacy said an "essential ingredient" for a crime to be committed "is the infliction of grievous bodily harm on a person - grievous bodily harm on a foetus will not suffice".
The judge said CP was born with limited growth potential. He added: "All the suffering that CP has endured and will continue to endure during her life is the consequence of the harm that was inflicted on her when she was in her mother's womb."
Any further harm she suffered after her birth was a result of what had occurred while she was still a foetus.
The judge said Mr Foy's argument "breaks down" because Parliament had not expressly said a foetus was "a person" against whom a criminal offence could be committed.
He said: "Parliament has identified certain circumstances where criminal liability arises if a mother causes injury to her foetus.
"Thus the offence of a pregnant woman using poison, with intent to procure her own miscarriage (section 58 of the Offences Against the Person Act 1861), specifically provides for circumstances in which a woman administers poison or a noxious thing to herself.
"This offence does not apply to the circumstances of the present case because it requires intent (to harm).
"Section 1 of the Infant Life (Preservation) Act 1929 provides that it is an offence to destroy the life of a child capable of being born alive before it is born.
"Parliament could have legislated to criminalise the excessive drinking of a pregnant woman, but it has not done so outside these offences.
"Since the relationship between a pregnant woman and her foetus is an area in which Parliament has made a (limited) intervention, I consider that the court should be slow to interpret general criminal legislation as applying to it."
The judge added that, in English law, women did owe a duty of care to their unborn child.
But "a competent woman cannot be forced to have a caesarean section or other medical treatment to prevent potential risk to the foetus during childbirth."
If a third party inflicted harm on an unborn child, they could be liable for damages if the child was born with disabilities under the Congenital Disabilities (Civil Liability) Act 1976.
But claims could not be brought against the child's mother unless the harm was caused by her when she was driving a motor vehicle.
The judge said: "The law would be incoherent if a child were unable to claim compensation from her mother for breach of a duty of care owed during pregnancy, but the mother was criminally liable for causing the harm which gave rise to damage and a right to compensation under the 1995 Criminal Injuries Compensation Act."
He added: "In my view, the role of the state in these circumstances should be to provide care and support for the child who has suffered harm to the extent that this is necessary.
"It should not be to pay compensation on the basis that the child is the victim of a crime by her mother."
Lawyers for CP expressed "disappointment" with the ruling and said they were now considering their options.
The only legal avenue left open is to seek to go to the Supreme Court, the highest court in the land.
Neil Sugarman, managing partner of GLP Solicitors of Bury, Greater Manchester, who represented CP, said: "This is an extremely complex and challenging case, but it was undertaken with the best interests of the child at heart.
"Everyone involved with the case is disappointed with the outcome and will need time to digest the judgment and consider their options."
Before the ruling, Mr Sugarman had commented: "There has been a great deal of speculation about whether this will lead to the criminalisation of women, but that is misplaced."
He 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."