Can a child claim compensation caused by mother’s drinking during pregnancy? Vicki Wright, Solicitor at Swain & Co, comments on the current position.

It is widely known that drinking alcohol during pregnancy may damage the unborn baby. And yet, despite knowing the consequences, some women continue to drink excessively – with tragic consequences.

So, what can be done?  The Criminal Injuries Compensation Authority (CICA) is a Government run agency responsible for compensating victims who have suffered injury as a result of a violent crime.  But can the unborn baby be the victim of a violent crime under the CICA scheme?

A test case which involves a 6 year old girl born with foetal alcohol syndrome (FAS) is before the Court of Appeal in November 2014.  As a result of her mother drinking alcohol to excess, the child has suffered serious injuries including brain damage, distorted facial features, together with learning, emotional and behavioural difficulties.  Her mother had been warned by the local authority that unless she stopped drinking, she was at risk of damaging her baby but she continued to drink.

An application was made on behalf of the child to the CICA and it was decided by the CICA that the child had indeed sustained personal injury “directly attributable to a crime of violence” and was therefore eligible for compensation.  However, the CICA successfully challenged this decision on the grounds that the child was “not a person” in legal terms because she was in the womb at the time injury was caused. Significantly, in 2012, the CICA scheme was changed to specifically exclude damage done to unborn babies “by the ingestion of harmful substances”.

In November, the case will be in the Court of Appeal with a view to securing compensation from the CICA for the 6 year old girl. If the case is successful, it could open the door for thousands of other children to claim compensation for injuries caused by their mother’s excessive drinking during pregnancy.

Vicki Wright, personal injury solicitor at Swain & Co says, “The dangers of drinking alcohol and certainly of drinking to excess whilst pregnant are well-known. The injuries suffered by children whose mothers drink to excess can be appalling.  I sincerely hope that the Court of Appeal rule in favour of the child which will help not only her but potentially thousands of other children in similar situations”.