Protecting human rights in childbirth

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Taking responsiblity for fetal alcohol syndrome: Criminal Injuries Compensation Authority case

Elizabeth Prochaska discusses the recent court decision about criminal compensation for fetal alcohol disorder

Recent reports of a legal case concerning compensation for children affected by fetal alcohol syndrome raised the worrying prospect that women might be criminalised for drinking in pregnancy. Criminalisation for drug and alcohol abuse is common in the United States, but to date, the UK has not sought to make mothers-to-be criminally responsible for behaviour that might endanger their fetus. Zoe Williams has done a good job explaining why the criminal law should have no place in policing pregnancy, so I won’t repeat the myriad problems with the idea here. But I will clarify the legal background to the case that has prompted today’s debate.

In 2009, a local authority made an application on behalf of a 2 year old child in its care for compensation to the Criminal Injuries Compensation Authority (CICA), which provides financial compensation to the victims of crime. The local authority claimed that the child had been damaged in utero by her mother’s reckless consumption of alcohol and suffered from Fetal Alcohol Spectrum Disorder. In order to obtain compensation from CICA, it’s necessary to show that a ‘crime of violence’ has been committed. The local authority argued that the mother’s actions constituted the crime of poisoning under section 23 of the Offences Against the Person Act 1861:

Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony.’

The mother had not been subject to any criminal investigation. Indeed as far as I am aware there has never been a prosecution of a mother in England for poisoning her fetus (unless it led to fetus’s death, which would constitute an illegal abortion, see the Sarah Catt case). But it is not necessary for a prosecution to have occurred to obtain compensation for a crime from CICA.

CICA refused to pay compensation on the grounds that the mother’s actions did not constitute a crime. The local authority appealed the decision to the First-tier Tribunal, which held that there had been a crime within the definition of s.23 of the 1861 Act. CICA then appealed to the Upper Tribunal. It overturned the First-tier Tribunal’s decision. You can read the Upper Tribunal decision here. In essence, the Upper Tribunal found that the fetus did not constitute ‘another person’ under s.23. The local authority has made an application to appeal to the Court of Appeal. That application has not yet been accepted, so the Upper Tribunal’s decision may be the last word on the issue.

It’s important to clarify the implications of the case for the criminal law. Any decision relating to CICA’s payment of compensation does not have direct legal consequences for the interpretation of s.23 in the criminal law. Whether or not the mother’s consumption of alcohol constitutes a ‘crime of violence’ for the purpose of compensation does not mean that it would be considered a crime for which a mother could be prosecuted. If a prosecutor sought to bring a prosecution against a mother under s.23, the criminal courts would have to make their own decision about whether a crime had been committed. The prosecution would also have to establish, beyond a reasonable doubt, that drinking led to the disorder.

Nonetheless, any court decision which rests on the assumption that a mother could be criminally responsible for harm to her fetus is deeply troubling. If the case reaches the Court of Appeal, I hope that the Court appreciates the broader ramifications of the issue and recognises that a fetus does not have legal personhood that can be invoked against its mother.

For a discussion of current guidance on drinking in pregnancy and the evidence base for fetal alcohol spectrum disorder, see this comprehensive article in bpas Reproductive Review.