Is a child, harmed by the mother’s drinking during pregnancy, entitled to compensation

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Created on Tuesday, 08 April 2014 09:24

Written by Jim Orford

Is a child, harmed by the mother’s drinking during pregnancy, entitled to compensation, and what are the implications for harmed family members more generally?

The following is taken, slightly adapted, from the BBC News website 5th March 2014.

A council – which cannot be named for legal reasons but is located somewhere in the north-west of England – is set to argue that a child who was born with serious health defects as a result of her mother's drinking habits should be given a compensation payout for being the victim of a crime. The child, who also cannot be named, was diagnosed with foetal alcohol syndrome (FAS) at birth. She is now six years old and living with foster parents.

Her mother has never been convicted of any offence, but during an earlier tribunal hearing 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. An earlier tribunal hearing found she had "consumed grossly excessive quantities of alcohol" and had been "using drugs". The case has been going on for four years and the solicitor representing the unnamed council, says if the judge finds in its favour it could set a precedent. "This is an unusual and horrific case," he said. "It centres around whether by drinking while pregnant, and knowing it would affect the baby, a crime has taken place."

In 2011, a hearing ruled that the mother's drinking was "directly attributable to a crime of violence" and so the child was eligible for a payout. However, this decision was overturned on appeal after the Criminal Injuries Compensation Authority challenged the judgement. On Tuesday the case was given permission to be heard in the Court of Appeal. No date has yet been set for the hearing.

A question for AFINet

I don’t know what you think, but my view is that criminalising drinking in pregnancy is inappropriate, unjust and vindictive, amounting to ‘blaming the victim’. But I do think it raises a wider issue about which there might be more debate. The issue I think is this: To what extent is it fair to say that family members harmed by the excessive drinking (or drug use or gambling) of others – the unborn foetus is a special case of family harm you might say – have been abused by the other’s drinking (by their drinking not by them personally is an important distinction I would want to make) and are entitled to some compensation?