A child who was born with birth defects due to her mother's 'grossly excessive' drinking during pregnancy is not entitled to criminal injuries compensation, the Court of Appeal has ruled today.
Three judges presided over a one-day hearing in November, which pitted the seven-year-old girl's representative against the Criminal Injuries Compensation Authority (CICA) to determine whether she should receive compensation for her mother's damaging behaviour.
During her pregnancy, the unnamed mother was drinking an 'enormous amount', the court heard, including eight cans of strong lager a day washed down with large quantities of vodka - more than six times the amount which can damage a foetus.
As a result, the child, born in June 2007, was diagnosed with Foetal Alcohol Spectrum Disorder. This diagnosis includes a range of alcohol-related birth defects, which can include physical, mental and emotional impairment.
The court heard that the girl, referred to only as CP, suffered severe brain damage as well as other disabilities caused by FASD.
However, the court upheld a 2013 ruling that a crime could only be committed against a person, and that a foetus was not a legal person and therefore could not be the victim of a criminal offence.
Ben Collins, arguing on behalf of CICA, which rejected the girl's application for criminal injuries compensation in 2009, said that to rule in her favour would set a dangerous precedent for policing the behaviour of pregnant women.
Telling the judges that there was a 'conflict of ideas' about exactly what constituted dangerous behaviour, Collins warned that ruling in favour of the girl could theoretically criminalise pregnant women who ate unpasteurised cheese or a soft-boiled egg.
However, Neil Sugarman, the managing partner of the solicitors firm representing the girl, said such fears were misplaced, and that mothers need not be criminalised for children to receive compensation.
Describing the case as a 'theoretical exercise', Sugarman explained that 'it turns on the legal status of a foetus in the womb and whether it is possible, in law, to commit a crime against a foetus'.
It is believed that there are dozens of similar cases currently awaiting a court hearing.
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