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8 December 2014

UK: Drinking in pregnancy not a crime, court rules

A child born with Fetal Alcohol Syndrome is not legally entitled to compensation after her mother drank excessively while pregnant, the Court of Appeal has ruled.

The seven-year-old girl, referred to in court as CP, was born with severe brain damage and is now in care, BBC News Online reports. Lawyers argued her mother had poisoned her fetus but appeal judges ruled she had not committed a criminal offence.

The case was brought by a council in the North West of England, which cannot be named for legal reasons. It had been argued the woman ignored warnings and drank a “grossly excessive” amount of alcohol while pregnant. She consumed eight cans of strong lager and half a bottle of vodka a day, the court heard.

Three appeal judges at the Court of Appeal had to rule on whether or not the girl was entitled to a payout from the government-funded Criminal Injuries Compensation Scheme as a victim of crime. But Lord Justice Treacy said an “essential ingredient” for a crime to be committed “is the infliction of grievous bodily harm on a person - grievous bodily harm on a fetus will not suffice”.

BBC News legal correspondent Clive Coleman said the case was significant because it centred on whether or not a fetus was considered a person, independent of its mother. He said: “This case was hugely important, because campaigners argued that if the Court of Appeal had said it was possible for a mother to commit a crime by poisoning her fetus with excessive alcohol, it would have had the effect of criminalising pregnant women who drank excessively, knowing the dangers of alcohol to their fetus.”

John Foy QC, representing the council that has responsibility for CP, told the court her mother drank the equivalent of 40-57 units of alcohol a day. National Institute for Health and Care (Nice) guidelines suggest 7.5 units daily might damage a fetus.

Mr Foy said the young mother, for whom it was a second pregnancy, was aware of the dangers, adding: “She was reckless as to whether there would be harm to the fetus. She foresaw that harm might be caused but went on to take the risk.”

Ben Collins, appearing for the Criminal Injuries Compensation Authority (CICA) had asked the court to reject the legal challenge, telling the judges: “There is a conflict of ideas about what is or is not dangerous, not only in terms of drink but also in terms of smoking and food.” He asked whether “a pregnant mother who eats unpasteurised cheese or a soft boiled egg knowing there is a risk that it could give rise to a risk of harm to the foetus” could be accused of a crime.

The British Pregnancy Advisory Service (bpas) and Birthrights intervened in the case because they believed it would establish a legal precedent which could be used to prosecute women who drink while pregnant and would do nothing for the health of alcoholic mothers and their babies. The two women’s charities welcomed the ruling today, following a hearing last month.

Ann Furedi, chief executive of the British Pregnancy Advisory Service and Rebecca Schiller, co-chair of Birthrights, said:

“This is an extremely important ruling for women everywhere. The UK’s highest courts have recognised that women must be able to make their own decisions about their pregnancies.

“Both the immediate and broader implications of the case were troubling. In seeking to establish that the damage caused to a fetus through heavy drinking was a criminal offence, the case called into question women’s legal status while pregnant, and right to make their own decisions. Any ruling which found that drinking while pregnant constituted a ‘crime of violence’ could have paved the way to the criminalisation of pregnant women’s behaviour – an alarming prospect given the ever expanding list of activities women are warned may pose a risk to the health of their baby.

“A small number of women drink very heavily throughout their pregnancy. Their problems will not be helped either by the threat of prosecution - making them even less likely to seek help - or through ever more warnings about the dangers of ‎drinking while pregnant. Women in this situation need rapid access to specialist help and support, as do children born with disability caused by alcohol abuse. This case was brought by the council in order to win compensation for a child born with Fetal Alcohol Syndrome, which could be used to fund her care. We must find a way to ensure that the small number of children born with this condition have the resources they need to live their lives to the full without resorting to criminalising their mothers.”

Neil Sugarman, the solicitor acting for CP, said the decision was “clearly disappointing” and that the case was not about women’s rights or “criminalising women”. He said GLP Solicitors, of which he is managing partner, represents about 80 other children with FAS and that they would now be looking at the implications of the ruling. The only legal option left is to seek to take the case to the Supreme Court, BBC News Online reports.

Julia Brown, chief executive of the Fetal Alcohol Spectrum Disorders (FASD) Trust, told the BBC the case highlighted the need for pregnant women to be given advice about drinking, and support to stop drinking if necessary. “There are no winners in a case like this,” she added, saying she hoped it would be a “wake-up call” to make people think about the dangers of drinking when pregnant.

The BPAS/Birthrights intervention is available to read here.

Foetal alcohol syndrome case dismissed by Court of Appeal. BBC News Online, 4 December 2014

UK: Why pregnant women’s drinking should not be a criminal offence. Reproductive Review, 5 November 2014

Analysis: Drinking in pregnancy – what do we know? Reproductive Review, 5 February 2014