Landmark case on Fetal Alcohol Syndrome

Posted by Patricia Wakeford on

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Frances Gibb, Legal Editor for the Times has reported on 5th August that a case involving children born with Fetal Alcohol Syndrome which could ensure compensation for 80 children will be heard in the Court of Appeal in November this year.

The test case is based on one child who was taken in to care. The child suffered from Fetal Alcohol Syndrome related to alcohol consumption by their mother during pregnancy. The consequences were severe and resulted in distorted facial features, brain damage, learning, emotional and behavioural issues.

A first tier court previously ruled that as the mother was warned about her drinking but continued to drink it was tantamount to poisoning and a crime of violence. The Criminal Injuries Compensation Authority asked for judicial review and the decision was over turned. Judge Levenson felt it was not possible to commit a crime against a foetus. The scheme was changed in 2012 to make it clear that ingestion of harmful substances whilst pregnant was not a crime of violence that could attract compensation.

Doctors have estimated that there may be as many as 7,000 cases across the country. This case could have a significant impact. If compensation can be awarded it would allow treatment privately such as speech and occupational therapy which are not normally provided on the NHS in these cases. Certain groups are concerned that women could be criminalised for drinking in pregnancy. However, it is felt that it is unlikely that the CPS would become involved in such prosecutions.

It will be interesting to follow this case and I will report back once it has been heard. Compensation could improve the life of these children who have suffered an avoidable injury. However, the public policy argument is also considerable in this case. I wonder how the Court will deal with these conflicting issues.

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About the Author

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Patricia is a Senior Associate, in our Clinical Negligence team, and is also a qualified midwife with many years of experience working in the NHS.

Patricia Wakeford
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