Posted by Rebecca Stevens, Partner
Drinking while pregnant could soon be a criminal offence
Harming an unborn child by drinking alcohol during pregnancy could soon be classified as a crime if an unusual legal challenge succeeds.
A local council is planning to go to the Court of Appeal in an attempt to secure Criminal Injuries Compensation* for a six-year-old girl who was born with ‘Foetal Alcohol Spectrum Disorder’ as a result of her mother drinking while pregnant.
Photo credit: Kjersti Magnussen – Bardaga https://www.flickr.com/photos/bardaga/
The case comes amid a 50% rise in Foetal Alcohol Syndrome (FAS) in the past three years, with 313 babies damaged from exposure to alcohol in the womb in 2012/2013. Figures from the Department of Health show in total around 1 in 100 babies are now born with alcohol-related disorders.
In 2011 a tribunal ruled that this child had sustained personal injury ‘directly attributable to a crime of violence’ and so was eligible for a pay-out. Her mother, who drank ’grossly excessive quantities of alcohol’ during her pregnancy, was never convicted of any offence but she was alleged to have ‘maliciously administered poison so as to endanger life or inflict grievous bodily harm’, a crime under section 23 of the Offences Against the Person Act 1861.
However, the Criminal Injuries Compensation Authority challenged this judgment, and it was overturned in December 2013 where it was concluded that the girl was ‘not a person’ in legal terms at the time because she was still a foetus and section 23 was not committed even though the mother was drinking while pregnant.
Now the council in North West England which brought the original application for compensation on behalf of the girl (who is now in foster care) is preparing to take the case to the Court of Appeal.
If the Court decides that the mother was guilty of an offence at appeal, in other cases to follow, Local Authorities may also initiate care proceedings in relation to the children, once born, to ask the Court to determine whether the child should be removed from their mother’s care.
* The Criminal Injuries Compensation Authority is a government organisation that can pay money to people who have been physically or mentally injured because they were the blameless victim of a violent crime.
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