Pregnancy drinking examined as possible crime in landmark case

Solicitors will argue it could be a crime to drink while pregnant

A long-running court case set to be heard in the Court of Appeal has reignited the debate over drinking while pregnant - and whether doing so to excess should be considered a crime.

A council - which cannot be named for legal reasons but is located somewhere in the north-west of England - is set to argue that a child who was born with serious health defects as a result of her mother's drinking habits should be given a compensation payout for being the victim of a crime.

The case was given permission by the upper tribunal of the Administrative Appeals Chamber on Tuesday to be heard in the Court of Appeal.

The child, who also cannot be named, was diagnosed with foetal alcohol syndrome (FAS) at birth. She is now six years old and living with foster parents.

Her mother has never been convicted of any offence, but during an earlier tribunal hearing 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 Offences Against the Person Act 1861.

Health experts say only regular alcohol intake would result in babies being born with FAS, which can cause facial deformities, problems with physical and emotional development, and poor memory or a short attention span.

The case has sparked a wider debate about the ethics of potentially criminalising pregnant women who turn to drink.

Susan Fleisher adopted a three-year-old girl who she later learned was suffering from FAS, and has since set up a charity - the National Organisation for Foetal Alcohol Syndrome UK - to help people deal with the condition.

The 67-year-old, whose daughter Addie is now 25, believes drinking while pregnant should never be considered a crime.

"No mother deliberately holds a gun to their child's head," Mrs Fleisher said.

'Widespread problem'

"I knew something was wrong with Addie when I couldn't find a bicycle helmet to fit her head. It was much smaller than the average size, and I had to put padding inside the helmet to make it fit.

"It was after this that I took her to the hospital, and sure enough, she was diagnosed with the syndrome."

Mrs Fleisher believes the problem is more widespread than experts realise, and blames inconsistent health advice.

Current guidelines do not explicitly prohibit the consumption of alcohol for expectant mothers.

The Department of Health guidance says that "women who are pregnant or trying to conceive should avoid alcohol altogether".

But then it goes on to say that "if they do choose to drink, to minimise the risk to the baby, we recommend they should not drink more than 1-2 units once or twice a week, and pregnant women should not get drunk".

The National Institute for Health and Care Excellence also concedes there is "uncertainty about how much alcohol is safe to drink in pregnancy".

However, in the case of the six-year-old girl at the centre of these ongoing proceedings, the mother did not adhere to anything close to these restrictions.

An earlier tribunal hearing found she had "consumed grossly excessive quantities of alcohol" and had been "using drugs".

The tribunal notes also explain that the mother did "engage with maternity services" and "had no learning disabilities... or other issues to affect her ability to understand the dangers to her baby of drinking during pregnancy".

The case has been going on for four years and solicitor Neil Sugarman, representing the unnamed council, says if the judge finds in its favour it could set a precedent.

"This is an unusual and horrific case," he said. "It centres around whether by drinking while pregnant, and knowing it would affect the baby, a crime has taken place."

In 2011, a hearing ruled that the mother's drinking was "directly attributable to a crime of violence" and so the child was eligible for a payout.

However, this decision was overturned in December by the upper tribunal of the Administration Appeals Chamber, after the Criminal Injuries Compensation Authority challenged the judgement.

No date has yet been set for the forthcoming Court of Appeal hearing.

Mr Sugarman said his firm of solicitors was representing 80 other children nationally, all of whom had suffered physical and mental damage from their mothers' drinking during pregnancy.

'Withdrawal'

Janet Fyle, professional policy adviser at the Royal College of Midwives, said while FAS was not common, it could have devastating effects.

She said: "It is rare. But when it does happen, it really does manifest itself in terms of developmental issues.

"The child does not reach its milestones like other children.

"It also has withdrawal symptoms when it's born."

She said it was midwives' job to show expectant mothers the benefits of a healthy lifestyle - including not smoking or drinking large amounts - rather than to judge them for their choices.

While she could not comment on the legal case specifically, she added: "It's wrong for a woman to consume large amounts of alcohol while she is pregnant.

"But let's get away from the moral judgement. It is sold over the counter, as are cigarettes. And the law says the foetus has no legal status as it cannot live independently of the mother."