A child born with serious, alcohol-related problems after her mother drank excessively whilst pregnant has been refused permission to take her battle for compensation to the Supreme Court in England.
Lawyers for brain-damaged “CP”, who cannot be identified, argued her mother drank to such an extent as to be guilty of the crime of “unlawful and malicious wounding”, or of inflicting grievous bodily harm, entitling the child to criminal injuries compensation.
In a ruling described as ”important to women everywhere”, three Court of Appeal judges rejected the claim last December and ruled that a foetus in the womb was not a ”person” who could be unlawfully harmed.
They unanimously agreed 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 appeal court ruling on CP, aged seven, was a blow to a local authority in the North West of England which now cares for her and launched the battle for compensation on her behalf.
Having lost in the appeal court, CP’s lawyers applied to the Supreme Court, the highest court in England, to give a final ruling.
They argued CP was entitled to compensation from the UK's Criminal Injuries Compensation Authority (CICA) as the victim of her mother’s crime of unlawful and malicious wounding, or inflicting grievous bodily harm upon “another person”, contrary to section 20 of the Offences Against the Person Act 1861.
But the Supreme Court has refused permission to appeal on the grounds that the application “does not raise an arguable point of law”.
CP was born in June 2007 with foetal alcohol spectrum disorder (FASD), also referred to as foetal alcohol syndrome (FAS), which can cause retarded growth, facial abnormalities and intellectual impairment.
She suffers with learning, development, memory and behaviour problems.
A large number of similar claims for compensation by children allegedly harmed by alcohol in the womb have awaited the outcome of her case, with solicitors already instructed in around 80 similar damages claims.
Judges have heard 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.
John Foy QC, appearing for CP, told the appeal court 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 said the mother ”was aware of the dangers to her baby of her excessive consumption during pregnancy” and ”foresaw that harm might be caused but went on to take the risk”.
Ben Collins, appearing for the Criminal Injuries Compensation Authority (CICA), said: ”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.