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Child born with congenital disabilities as a result of incestuous rape not entitled to compensation

Criminal Injuries Compensation Authority v First Tier Tribunal (Social entitlement Chamber) and Y by his mother and Litigation Friend [2017 EWCA Civ 139

The Court of Appeal held that a child born as a result of incestuous rape was unable to claim compensation under the Criminal Injuries Compensation Scheme (CICS) for his congenital disabilities.  These disabilities were 50% likely in the case of this child, compared to a 2-3% likelihood for the general population.

The child’s mother had been sexually abused by her father.  The child was therefore born as a result of rape, and with a serious genetic disorder likely caused by the incestuous nature of the relationship.  In 2012 the claim for compensation was rejected on the grounds that the child was not a victim of violent crime and the condition emanated from the incest.  The Upper Tribunal upheld the appeal and the CICS appealed that finding.

The Court of Appeal relied on Millar (Millar (Curator Bonis to AP) v Criminal Injuries Compensation Board 197 SLT 1180) in which Lord Osborne stated that, ‘the concept of injury presupposes a pre-injury state which is capable of assessment and comparison with the post-injury state…this…was a claim for wrongful life, which is not recognised in English law.’

The Court of Appeal found that the appellant’s ‘uninjured’ state could only be never to have been conceived.  Therefore, the appeal was dismissed.

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