Friday 5 December 2014

The Unborn Child and its Legal Rights

In my Blog posting on 11 November I mentioned the case before the Court of Appeal concerning a child (CP) born with Fetal Alcohol Syndrome who is in local authority care. This is not directly a Religion Law case but since Abortion and the rights of the Unborn Child are of  concern to many religious believers it is appropriate to cover it here.

In the case of CP (A Child) v First-Tier Tribunal (Criminal Injuries Compensation) [2014] EWCA Civ 1554 the Local Authority brought the claim on behalf of CP in order to claim claim Criminal Injuries Compensation for her.  To succeed they first had to establish that CP's mother had committed a criminal offence contrary to s23 Offences Against the Person Act 1861. 

23 Maliciously administering poison, &c. so as to endanger life or inflict grievous bodily harm.
Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty

There did not have to be a Criminal prosecution of the mother in order for there to be a Criminal Injuries Compensation claim but in order for an award to be made the Criminal Injuries Compensation Authority (CICA) had to be satisfied that a crime had been committed

The claim for Criminal Injuries Compensation had been dismissed by the Upper Tribunal in CICA v FTT and CP (CIC) [2013] UKUT 638 (AAC) and was also dismissed by the Court of Appeal.  The core question for the Court was whether CP was in law "any other person" at the time the "poison or other destructive or noxious thing" ie was "administered" to her.  It was agreed that CP's  mother had drunk a grossly excessive amount of Alcohol during her pregnancy and it was this alcohol that had caused CP's disabilities however was CP a "person" before she was born. Sadly but perhaps predictably the Court of Appeal said No. 

Counsel for CP relied heavily on the House of Lords case of Attorney General's Reference (No 3 of 1994) [1998] A.C. 245  which involved 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, who survived for only 121 days.  The House of Lords held that a foetus was an unique organism and at that stage was neither a distinct person nor an adjunct of the mother and therefore there could not be a conviction for murder however there was sufficient for a conviction for manslaughter.

It was argued on behalf of CP that since the House of Lords had decided that the foetus becomes a person when it is born and had decided that manslaughter was a continuing act running from the moment of the attack on the mother to the death of the child after birth, there was no good reason why the criminal law should not equally protect a foetus from conduct resulting from deliberate acts causing foreseeable harm and which resulted in grievous bodily harm evident after birth.

For the CICA it was argued that the Upper Tribunal had reached the right decision in para 16 of its decision where it said:

16: If CP was not a person whilst her mother was engaging in the relevant actions, then she was not another person for the purposes of s23 and as a matter of law her mother could not have committed a criminal offence contrary to s23 in relation to her unborn child.

The Court of Appeal took the same approach  

40:Thus in the case of a foetus, it was legitimate to find a chain of causation extending from the initial insult to the foetus which triggered its premature birth through to the point of death some time after birth, by which stage the child had undoubtedly achieved legal personality. A close examination of the language used by Lords Mustill and Hope shows clearly firstly that it has to be seen in the context of homicide, and secondly that it was used in the context of a foetus which suffered injury and which subsequently died after birth. It was common ground that violence done to a foetus resulting in a still birth could not found criminal liability. In cases where the child is born alive, the actus reus cannot crystallise until the time of death.

41: I consider that the situation is rather different in relation to the s23 offence. If the foetus is not another person at the time of the administration of the noxious substance then the offence cannot be complete at that point. The situation is distinct from the crime of manslaughter which requires death in order to complete the crime.

The Court also took into account the fact that in section 1 of the Congenital Disabilities (Civil Liability) Act 1976 Parliament had specifically legislated that a Mother could not be sued for damage caused to her child by actions of the Mother during pregnancy and concluded  

66: The law would be incoherent if a child were unable to claim compensation from her mother for breach of a duty of care owed during pregnancy, but the mother was criminally liable for causing the harm which gave rise to damage and a right to compensation under the 1995 Act.

On the basis of the law as it stands I can understand the decision and I respect the fact that the Court of Appeal made it clear that it was open to Parliament to legislate for the unborn child to have legal rights in this situation but it was not the task of the Courts to do so.

As someone who was involved as an Intervenor in this case solely in response to the the, completely unnecessary, decision by BPAS to become an Intervenor I am sorry to read that BPAS are trumpeting the decision as some sort of victory for Womens Autonomy.  At the end of the day we have a Child severely injured by the actions of her mother and a child who will probably require care and help for the rest of her life.  There is no victory in this case and there are no winners  


John F H H said...

I have a very hazy memory that a testator could (can still?) leave a legacy to a child unborn at the time of the testator's death but cannot recall the exact circumstances or limitations. I just wondered if this had a relevance to the status in law of the unborn?

David England said...

Hi Neil,

Thanks for updating us on this case. It was in the papers here in Australia when it first happened, but our papers haven’t kept up with its progress.

I must say that I’m not surprised by the decision, but I wonder if this decision would have been different if the UK had ‘foetal homicide’ laws?

For example, in Queensland where I live under "The Criminal Code Act 1889" (Qld) s313 ‘Killing unborn child’ (2) states:
“Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to, or transmits a serious disease to, the child before its birth, commits a crime.
Maximum penalty—imprisonment for life.” (

I realise this is not your jurisdiction, but do you think that a case like this would have a different outcome under this Queensland law? Especially since the language in this section is “a child” not “a person” and the disabilities you described would certainly amount to GBH…

Thanks again for your blog – it’s really helpful!

Queensland, Australia