Can a child make a claim to the Criminal Injuries Compensation Authority in circumstances where it has been injured by its mother’s excessive alcohol consumption during pregnancy? What duty of care is owed by a mother to her unborn child? The Court of Appeal ruled that a child could not claim compensation from the CICA. It was not disputed that the child suffered from an injury. The difficulty the Court of Appeal identified was that the child was not ‘any other person’ for the purposes of s 23 of the Offences Against the Person Act 1861.

It was argued by counsel for the appellant that the foetus should be regarded as a live being with rights and capable of having an existence separate to its mother long before it is born but, even if not, the criminal law should protect a foetus from conduct resulting from deliberate acts causing foreseeable harm and which resulted in grievous bodily harm evident after birth. On the first argument counsel was trumped by House of Lords authority. As to the second, if the foetus is not another person at the time of the mother’s alcohol consumption then the offence could not be complete.

The Master of the Rolls added that in English Law women do not owe a duty of care in tort to their unborn child. The negligent acts of a third party tortfeasor, which inflict harm on an unborn child, are actionable by the child on birth if the child is born with disabilities under section 1(1) of the Congenital Disabilities (Civil Liability) Scot 1976. But claims cannot be brought under this Act against the child’s mother unless (section 2) the harm is caused by her when she is driving a motor vehicle. Thus he reasoned, 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 Criminal Injuries Compensation Act 1955.

Some 80 other applications for compensation were dependent on the outcome of the appeal and according to today’s Metro newspaper about 3,000 babies are born in Britain with Foetal Alcohol Spectrum Disorder, a condition which causes intrauterine growth retardation and limited growth potential. It can cause central nervous dysfunction and many children with the disorder have severe learning difficulties.

Our laws have to grapple with the conflicts between the rights of two individuals and seek to attain a measure of balance (e.g. the smoker’s right to smoke and the non-smoker’s right to enjoy a smoke-free environment). They also have to deal with the cost to society of damage to the health caused by the behaviour of individuals (again, smoking is a good example). In the case of the unborn child, has the balance tipped too far one way and is the cost to society such that parliament should now act?