Foetal Alcohol Syndrome (FAS): Drinking alcohol during pregnancy could be ruled a crime in the UK

UK Lawyers plan to take a test case to the UK Court of Appeal over claims that children harmed in the womb by their mother's drinking should receive compensation as victims of crime

Harming an unborn child by consuming alcohol during pregnancy could be classified as a crime in the UK, if an unusual legal challenge succeeds.

An English council is planning to go to the UK Court of Appeal in an attempt to secure criminal injuries compensation for a six-year-old girl who was born with foetal alcohol spectrum disorder (FAS) as a result of her mother’s drinking while she was in the womb.

A UK tribunal ruled in 2011 that the unnamed child had sustained personal injury “directly attributable to a crime of violence” and so was eligible for a payout.

Her mother, who drank “grossly excessive quantities of alcohol” during her pregnancy, was never convicted of any offence.

But she was alleged to have maliciously administered poison so as to endanger life or inflict grievous bodily harm, a crime under section 23 of the UK Offences Against the Person Act 1861.

However, the UK Criminal Injuries Compensation Authority challenged the judgment, and it was overturned in December 2013 by the upper tribunal of the UK Administrative Appeals Chamber.

Judge Howard Levenson found that there had been “administration of a poison or other destructive or noxious thing, so as thereby to inflict grievous bodily harm”.

However, he concluded that the girl was “not a person” in legal terms at the time because she was still a foetus.

The judge added: “I conclude that the section 23 offence cannot be committed by a pregnant woman drinking alcohol during her pregnancy and thereby causing damage to her unborn child and that, in the present case, no evidence or argument has been offered in respect of the commission of any other offence.”

Now the council in north-west England which brought the original application for compensation on behalf of the girl, who is now in foster care, is preparing to take the case to the UK Court of Appeal.

Neil Sugarman, a managing partner at GLP Solicitors in Greater Manchester, who is handling the case, told the paper: "Sadly, we act for many, many children who have been damaged by excessive alcohol intake during pregnancy.

We were approached by a local authority with responsibility for a child very badly damaged as a consequence of foetal alcohol spectrum disorder (FAS).

“They considered making an application under the criminal injuries compensation scheme because they thought there was an argument that the child had been damaged by being victim of a crime. The crime being; the birth mother carrying on drinking knowing that it could damage the child.”

He added: "In all the cases we have, there is good evidence that warnings have been given either by social workers or treating consultants and nurses to say, 'you cannot go on doing this, you are going to damage your child'."

There is a history of similar cases being brought to the courts in the US but with limited success.

Listen to a spokeperson from the American Bar Association. This Podcast discusses what US legal representatives need to know about Fetal Alcohol Syndrome or Spectrum Disorder.