Ben Rodgers on Another CoA decision on CICA claim for pre-birth injury

Articles | Wed 22nd Mar, 2017

A father rapes his daughter and the daughter conceives a child. For the purposes of the CICA scheme, is the child a victim of the rape? The Court of Appeal says ‘no’: CICA v FTT and Y (by his litigation friend) [2017] EWCA Civ 139. To hold that the child is a victim would be tantamount to saying that his very life is an injury to him.

The child’s father and grandfather are the same person. The child’s genetic material derives from a precariously small pool. In consequence, he is born with a severely disabling congenital illness. Has he suffered an injury in consequence of the rape? The Court of Appeal says he has not since his genetic inheritance is part and parcel of his conception; if his conception does not render him a victim of the rape then neither does his genetic disorder.

The 2008 Scheme said, at para.9:

“For the purposes of this Scheme, personal injury includes physical injury (including fatal injury), mental injury (that is temporary mental anxiety … or a disabling mental illness…) and disease (that is a medically recognised illness or condition). Mental injury or disease may either result directly from the physical injury or from a sexual offence or may occur without any physical injury.

Compensation will not be payable for mental injury or disease without physical injury, or in respect of a sexual offence, unless the applicant:

(a) was put in reasonable fear of immediate physical harm to his or her own person; or

(b) had a close relationship of love and affection with another person at the time when that person sustained physical and/or mental injury … and

(i) that relationship still subsists (unless the victim has since died) and

(ii) the applicant either witnessed and was present on the occasion when the other person sustained the injury or was closely involved in its aftermath; or

(c) in a claim arising out of a sexual offence, was the nonconsenting victim of that offence (which does not include a victim who consented in fact but was deemed in law not to have consented).” (Emphasis added.)

The CICA rejected the child’s claim. The FTT dismissed the child’s appeal on the basis that (a) it was a claim for wrongful birth which the common law would not contemplate, and (b) it would be impossible to quantify the claim. The UT allowed the child’s appeal, holding that the 2008 Scheme was intended to be practical, self-contained, workable and pragmatic; it was inappropriate to consider its provisions in the context of deep philosophical discussions about the nature of life and existence. The Scheme provided that compensation was payable to ‘an applicant’. Clearly, at the time of the claim, the child was a person. There was 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 the child had suffered injuries in a crime of violence.

The Court of Appeal allowed the CICA’s appeal, holding that the child did not sustain an injury and was not a victim. The child was a person who, of necessity, had never had any existence except as the genetic product of the union between his mother and her father. This union involved the commission of a crime of violence, of which the mother was undoubtedly a victim. But the child 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 complained was, 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 the law cannot recognise or assess compensation for.

This was a strong CoA: Leveson P, McFarlane and Henderson LLJ. These were not questions with straightforward answers. McFarlane LJ is an eminent family lawyer and judge and said he admired the mother for bringing this claim against the CICA. Leveson P said that the government should change the Scheme. One gets the impression that the CoA were worried about where a decision in favour of the child might take our law of tort, given that it would be inconsistent with the common law cases on the philosophically fraught issue of wrongful birth.

But this is not tort law, it is construction of a CICA scheme which is nowadays more in the nature of a social security safety net. And anyway para. 9 of the Scheme is inclusive, not definitive. Would it really have done that much damage to our private law to have upheld the decision of the UT judge?

It would, most unfortunately, have cost the CICA and the taxpayer a great deal of money on this and similar cases, and there would have been a worry that all children conceived of rape might say they should have CICA compensation. But given the extreme gravity of the offence here, and the consequences to this child, one cannot help but wish that it had been possible to stake out a small exception.

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