Drinking alcohol while pregnant is not criminal, Court of Appeal rules

Seven-year-old with foetal alcohol syndrome not entitled to criminal compensation

A seven-year-old girl who was born with learning difficulties because her mother drank heavily while pregnant is not entitled to criminal injuries compensation, the Court of Appeal has ruled.

The decision was welcomed by campaigners who had warned the case might set a precedent for the criminalisation of drinking during pregnancy.

Lawyers for the child, who were seeking compensation from the Government on behalf of a local authority in the north-west of England, said they were “disappointed” and that the fears surrounding the case had been “misplaced speculation”.

The case rested upon whether the harm caused by excessive alcohol consumption during pregnancy could be classified as doing criminal injury to the child.

However, three Court of Appeal judges unanimously ruled that “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 our law if her child is subsequently born damaged as a result”.

The girl, known as CP, was born with learning, development, memory and behavioural problems caused by foetal alcohol syndrome (FAS).

The judges were told that her mother was drinking a half-bottle of vodka and eight cans of strong lager a day while pregnant. John Foy QC, appearing for CP, told the court that the mother “was aware of the dangers to her baby of her excessive consumption during pregnancy”.

However, Lord Justice Treacy said that for a crime to be committed an “essential ingredient” was “the infliction of grievous bodily harm on a person” and that grievous bodily harm on a foetus “will not suffice”.

Ann Furedi, chief executive of the British Pregnancy Advisory Service (BPAS), and Rebecca Schiller, co-chair of Birthrights said it was “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.”

FAS is a rare condition that causes problems in the growth and development of children, and can also lead to facial abnormalities. It was diagnosed 252 times in England between 2012 and 2013.

The appeal judges heard that a large number of similar claims for compensation by children allegedly harmed by alcohol in the womb were awaiting the outcome of CP's appeal, with solicitors already instructed in around 80 cases.

Neil Sugarman, managing partner of GLP Solicitors, who represented CP and the council responsible for her care, said that the “extremely complex and challenging case” had been “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,” he said.

Lord Justice Treacy said that Parliament had not legislated to criminalise excessive drinking of a pregnant woman expect in cases of intent to procure a miscarriage, or to destroy the life of a child capable of being born alive, before it is born.

He added: "In my view, the role of the state in these circumstances should be to provide care and support for the child who has suffered harm to the extent that this is necessary.”