Alcoholic
Mommas, You better stop drinking while you are expecting your offspring. Your
inability to stop drinking might drag you to the Court and you might be sued for
your misdeeds you have committed while your baby was still a ‘unique organism’.
Though, the good news is that in a recent Judgment, the court of appeal
(civil division), the Royal Court of Justice while adjudicating the question,
regarding, the ability of a child, to claim criminal injuries compensation from
the Criminal Injuries Compensation Authority, as a result of being born with
Foetal Alcohol Spectrum Disorder (FASD) as a direct consequence of her mother’s
excessive drinking while pregnant in circumstances where it was asserted that
the mother was aware of the danger of harm to her baby being caused by drinking
to excess, the Court has answered negative.[1] Moreover, it is once again
reiterated that in English law women do not owe a duty of care in tort to their
unborn child.
To
understand the Judgment in its full light we need to know what is the scheme of
CICA.
There
is a scheme which considers claims for compensation “from people who have been physically
or mentally injured because they were the innocent victim of a violent
crime…”
The
scheme is the 2008 Criminal Injuries Compensation Scheme made by the Secretary
of State pursuant to s1 of the Criminal Injuries Compensation Act 1995.
Under paragraph 6 of the Scheme, dealing with
eligibility, compensation may be paid in accordance with the Scheme to an
applicant who has sustained criminal injury on or after 1st August
1964.
Paragraph
8 of the Scheme provides:
“For
the purposes of this Scheme, criminal injury means one or more personal
injuries as described in paragraph 9, being an injury sustained in and directly
attributable to an act occurring in Great Britain…which is:
(a)
a crime of violence (including arson, fire-raising or an act of poisoning); …”
Paragraph
10 of the Scheme provides:
“It is not necessary for the assailant to have
been convicted of a criminal offence in connection with the injury”…
The
offence that the drunkard mother is said to have committed is that set out in
Section 23 of the Offences Against the Persons Act 1861. This provides:
“Maliciously
administering poison, etc so as to endanger life or inflict grievous bodily
harm.
Whosoever
shall unlawfully administer to… any other person, any poison or
destructive or noxious thing, so as thereby…to inflict upon such person any
grievous bodily harm, shall be guilty of felony, and being convicted there of
shall be liable…to be kept in penal servitude for any term not exceeding ten
years”
The
Court has concentrated on the question whether embryo or foetus can be sustained
and qualified the definition of a ‘person’, given that the victim was a foetus
at the time the alcohol was ingested. A reference is made to Attorney General’s
Reference (No 3 of 1994)[2]. In
the said reference the House of Lords considered the case of a defendant who
stabbed a woman in the stomach, knowing her to be pregnant. Shortly afterwards
she went into labour and gave birth to a grossly premature child, which
survived for only 121 days. The stabbing set in train events which caused the
premature birth, which itself led to the child’s death, its chances of survival
being very significantly reduced by the fact of the premature birth. Thus, a
chain of causation between the stabbing and the death of the child was
established. The issue was whether in those circumstances the crimes of murder
or manslaughter could be committed. In this context the Lords has held that
Their
Lordships held that a foetus was a unique organism and at that stage was
neither a distinct person nor an adjunct of the mother. It is further held that
whilst there could not be a conviction for murder, there was sufficient for a
conviction for manslaughter. The defendant in stabbing, had intended to commit
an act which was unlawful and which any reasonable person would recognise as
creating a risk of harm to some other person. Although a foetus was not a
living person, the possibility of a dangerous act directed at a pregnant woman
causing harm to a child to whom she subsequently gave birth, made it
permissible to regard that child as within the scope of the defendant’s mens
rea for the purposes of manslaughter when committing the unlawful act.
Accordingly the crime of manslaughter could be committed even though the child
was neither the intended victim nor could it have been foreseen as likely to
suffer harm after being born alive.
The
Court has also relied on the decision of the Court of Appeal Criminal Division[3] where the court had to
consider whether a foetus was capable of being a third person against whom a
threat could be made. The court said in terms that a foetus was not “another
person” distinct from its mother to whom the threatening words had been
uttered.
Relying
upon these authorities, the court did not find any reason to disturb the view
taken by the lower tribunal.
Cheerssss….
You Drunkards Ladies. Party Hard!
