Mother who drank heavily when pregnant not guilty of crime, court rules

A mother who inflicted lifelong damage on her child after drinking heavily during her pregnancy did not commit a criminal offence, the court of appeal has ruled.

The unanimous decision sets clear limits on the legal rights of the unborn child and dispels fears that women could become liable to prosecution for their lifestyles during pregnancy.

The claim was brought by a local authority in the north-west of England which now cares for the young girl, now seven, who is suffering from foetal alcohol spectrum disorder. She was not identified.

The council argued that the girl, known as CP, was entitled to payments from the Criminal Injuries Compensation Authority. The authority declined to compensate on the grounds that there had been no crime of violence.

The case revolved around section 23 of the Offences Against the Person Act 1861, which created the offence of poisoning and requires the victim to be “another person”. The three judges – Lord Justice Dyson, Lord Justice Treacy and Lady Justice King – agreed for the purposes of the law the unborn baby was a “unique organism” but not a person.

Treacy explained that the main reason for dismissing the application was that the damage caused to the unborn baby by heavy drinking was caused while the child did not have a separate existence in law.

“The time at which harm, acknowledged in this case to amount to grievous bodily harm, occurred was whilst [the child] was in the womb,” he said in his judgment.

“At that stage the child did not have legal personality so as to constitute ‘any other person’.”

He added: “A mother who is pregnant and who drinks to excess despite knowledge of the potential harmful consequence to the child of doing so is not guilty of a criminal offence under the law if her child is subsequently born damaged as a result.”

The master of the rolls, Lord Justice Dyson, said: “Parliament could have legislated to criminalise the excessive drinking of a pregnant woman but it has not done so … Since the relationship between a pregnant woman and her foetus is an area in which parliament has made a (limited) intervention, I consider that the court should be slow to interpret general criminal legislation as applying to it.”

As many as 80 other claims on behalf of children suffering from foetal alcohol spectrum disorder had been awaiting the outcome of the case.

An earlier hearing was told that the mother is no longer in contact with the child, who has suffered developmental problems. Foetal alcohol syndrome can result in babies being born with brain damage as well as distorted facial features. The mother, who had been warned by her social worker about the dangers of excessive drinking, was said to have been consumed half a bottle of vodka and eight cans of strong lager a day.

Neil Sugarman, head of GLP solicitors, the firm that represented the child, said: “This has been an extremely complex and challenging case, but it was undertaken with the best interests of the child at heart. Everyone involved with this case is disappointed with the outcome and will need time to digest the judgement and consider their options.”

The British Pregnancy Advisory Service had opposed the potential criminalisation of expectant mothers. In their legal submission to the court, the BPAS and Birthrights said: “Imposition of criminal liability … would inevitably deter some of those who needed support with addiction from disclosing their condition or contacting health professionals during pregnancy … If the appeal succeeds, women with substance addictions may avoid engaging with health services or feel compelled to terminate their pregnancy rather than continue and face potential sanctions.”

The Labour MP Mary Glindon, who supported the appeal and is a member of the parliamentary pro-life group, said: “Is it reasonable to claim that a baby minutes before birth is a mere organism? No. A baby minutes before birth is a baby and should be protected.

“The position of UK law is now that you can permanently injure an unborn child with impunity but if you kill and unborn child, you may get a life sentence. This doesn’t make sense. In attempting to sidestep the abortion issue, the court has made a complete nonsense of the law.”

The Conservative MP Fiona Bruce, also a member of the parliamentary pro-life group, commented: “The pro-abortion movement did their best to prejudice this judgment. Their false spin labelled this case as being about criminalising drinking during pregnancy. In fact, it was nothing of the kind.

“It is a civil case about whether a child should be offered compensation after excessive drinking during pregnancy rendered her disabled for life. The law is hopelessly unclear on the status of the unborn child, and this judgment makes it even more incoherent.

“The only loser in this case is the child who has been denied compensation to help with her care costs. I find no cause for rejoicing in that.”