Posted on Mar 15, 2017 in Personal Injury by Caroline Kelly
Caroline Kelly, Personal Injury Partner discusses the judgement of a recent case in which a disabled man was born from incestuous rape.
The Court of Appeal yesterday issued its judgement in the sad case of Y, a 29 year old who was born with a serious genetic disorder which was likely to have been as a result of the incestuous rape of his mother.
From the age of 9, his mother (M) had been sexually abused by her father and at 19, gave birth to Y, who suffered a serious genetic disorder. M had received compensation under the Criminal Injuries Compensation Scheme for the sexual abuse and incestuous rape. 5 years ago, she made a claim on behalf of her son for compensation under the scheme on the basis that his condition was a result of the incestuous rape, a crime of violence under the Scheme. The application was refused by the Criminal Injuries Compensation Authority, as was a review of the decision. An appeal to the First-tier Tribunal was also unsuccessful and an application for judicial review was sought. This application was successful but the Authority were granted permission to appeal.
Having heard the appeal, the three judges unanimously granted the appeal, meaning that Y is not entitled to compensation under the scheme. The questions the court required to address were :-
- Was it possible to identify an injury, in this case the genetic disorder, without there having been a person who had been injured existing in an uninjured state prior to the incident;
- Could an applicant only obtain compensation in respect of a sexual offence of which he or she was a non-consenting victim?
The court took the view that the only victim in this case could be M, Y’s mother as Y had not been conceived at the time of the crime and that the outcome sought by Y was beyond that which the CICA seeks to cover. The court did however express a view that it was clear that M had experienced and would continue to experience undeniable difficulties in caring for Y and that the common law position of being able to recover the extra costs of bringing up a disabled child should be incorporated as part of the scheme.
That of course is a matter for the Secretary of State to address in any further versions of the Scheme but to my mind, doing so would go some way to assisting in cases such as this, where the child conceived as a result of rape cannot recover compensation directly under the Scheme.
The purpose of the Scheme is to compensate “victims of violent crime in recognition of a sense of public sympathy for the pain and suffering of the victim”. In the particular circumstances of this case, it is difficult not to have sympathy for both M and Y, given the circumstances in which they find themselves through no fault of their own. We will have to wait and see whether any account is taken of this case when a new version of the Scheme is produced.