The Court of Appeal has today given judgment in CICA v FTT and Y, a ruling with wide significance for cases concerning the rights of the unborn child.
Y is a very sad case, and all those involved (including the CICA and all three members of the Court of Appeal) expressed profound sympathy for the position of Y and his mother (M). M was a victim of abuse for many years at the hands of her father, and Y was born as a result of unlawful sexual intercourse between M and her father. He was convicted and imprisoned for the crime of incest, but the CICA accepted that the facts in reality disclosed the crime of rape.
Y was born with significant disabilities. The undisputed expert evidence from a Consultant Clinical Geneticist was that those disabilities arose because of the consanguinity of his parents. The expert evidence was that there was a 50% chance of those disabilities arising from an incestuous relationship, compared with only a 2-3% chance in the general population.
M brought an application for criminal injuries compensation arising out of the rape. Her claim was accepted and she received compensation. Subsequently an application for compensation was brought, with her assistance, on Y’s behalf under the 2008 Scheme. The CICA rejected the claim and the First-tier Tribunal upheld that decision on appeal. It held that Y had not sustained an injury because he “did not have and could never have had an uninjured state”.
Y sought judicial review of the FTT’s decision. The Upper Tribunal allowed his claim and quashed the decision of the FTT (see  UKUT 202 (AAC)), holding that,
“The 2008 Scheme provides that compensation be payable to “an applicant”. Clearly, at the time of the claim the applicant is a person. There is no provision in the scheme that the applicant must have been “a person” at the time that the crime of violence was committed. In everyday terms and in common parlance it seems to me that he has suffered injuries. Those injuries have been sustained in and are directly attributable to a crime of violence.”
The CICA appealed and on 14 March 2017 the Court of Appeal upheld the appeal, quashing the decision of the UT and restoring that of the FTT. The key reasoning of the Court is to be found in the judgment of Sir Brian Leveson, President of the Queen’s Bench Division. He held that:
McFarlane and Henderson LJJ agreed. Henderson LJ summarised the position thus:
“Y cannot claim to have sustained a personal injury in and directly attributable to that same crime of violence, within the meaning of “criminal injury” in paragraph 8 of the 2008 Scheme, because he had no prior existence when the crime was committed. The injury of which he complains is, in truth, a complaint about the genetic inheritance which made him the unique person who he is. That is not a complaint of an injury sustained by him, because he, the person allegedly injured, has never existed in an uninjured state. On analysis, his real complaint would have to be that he should never have been conceived at all. A complaint of that nature, however, is not a claim for personal injury, but a claim for wrongful existence, which as this court explained in McKay v Essex Area Health Authority is not one which the law can recognise, or for which compensation could be assessed.”
The Court therefore concluded unanimously, notwithstanding its profound sympathy for both Y and his mother, that there could be no such claim as a matter of law.
This appeal makes it clear that a person born disabled as a result of the circumstances of their conception is unable to bring a claim for compensation, since it is impossible for them to establish an injury. In this respect the law of criminal injuries compensation follows that which governs civil claims – see, for example the “wrongful life” cases such as McKay v Essex Area Health Authority  1 QB 1166.
Different considerations arise where harm is suffered not in the course of conception but while the child is in the womb. Some of those considerations were addressed by the Court of Appeal in the foetal alcohol litigation (CICA v FTT  QB 459), although the Court in Y was careful to emphasise that the foetal alcohol cases turn on different issues arising from the criminal law – and the 2012 Scheme has in any event made express provision to prevent such claims in future.
The judgment provides a valuable analysis of the concept of “injury” in the difficult and complex context of conception and birth. Irrespective of the legal analysis, however, it is impossible to think of the case with anything other than the greatest sadness and sympathy for M and Y, whose suffering was rightly recognised by both the CICA and the Court.
To see some of the news coverage, please click below:
To read the full judgment, please click here.
CICA, unborn child, MoD, Ben Collins
William Meade (Senior Clerk)