Life and existence in the Court of Appeal
Jonathan Wheeler considers an exceptional case on the question of whether a child born as the result of incest is able to recover compensation
The most recent attempt in the Court of Appeal to define and shape the approach of the Criminal Injuries Compensation Authority is a fascinating exposition on the nature of life and existence.
In CICA v First Tier Tribunal (Social Entitlement Chamber) and Y  EWCA Civ 139, the sympathy of the court was with the applicant Y, but the lord justices would not bend the rules to compensate him for his very unfortunate circumstances in life.
Y was born on 14 October 1987, the product of an incestuous and abusive relationship between his mother and her father (i.e. Y's grandfather). He had a serious genetic disorder. The evidence showed that people born as a result of incest were 50 per cent likely to have developed this condition, as against a chance of 2 to 3 per cent in the general population. It was accepted then that Y's genetic disorder probably arose as a result of the circumstances of his conception.
In due course, Y's father/grandfather was convicted of incest and served a prison sentence. Y's mother was successful in applying to the CICA for compensation for the harm done to her by her father's sexual abuse but this did not include any compensation for Y, nor did it take account of the additional care and upbringing Y required.
A claim was made to the CICA on Y's behalf in his own right under the 2008 scheme. This was rejected on the basis that Y's condition was not as the result of a crime of violence but because of the genetic similarities of his parents. This decision was upheld on review and on appeal to the First Tier Tribunal. However, the Upper Tribunal found for Y in judicial review proceedings, and the CICA appealed to the Court of Appeal. The case brought up some fascinating questions for the appellate bench.
The Criminal Injuries Compensation Act 1995 puts the scheme on a statutory footing and '“ at section 9 '“ says: 'Compensation will not be payable... in respect of a sexual offence, unless the applicant... (c) was the non-consenting victim of that offence (which does not include a victim who consented in fact but was determined in law not to have consented).'
Who consents to being born? But how widely can one define the victims of rape? The Court of Appeal found that the only victim who could recover under the scheme was Y's mother '“ only she had been the victim of a crime of violence. Y did not legally exist at the time of the assault: 'the question had to be articulated whether, prior to the assault, there was a person or entity 'Y' upon whom the impact of the crime of violence could be measured. The answer was that there was not.'
Further, Y was never someone in 'an uninjured state' so for what injuries could he be compensated? It was not a case where it could be said that 'here is Y before the injury, and here he is afterwards, and the difference in circumstances can be evaluated in monetary terms'.
Compensation for 'wrongful life' is not allowed in our common law, let alone by the CICA. Sir Brian Leveson, who gave the leading judgment in Y's case in the Court of Appeal, quoted with approval Ackner LJ in McKay v Essex Health Authority  QB 1166 when faced with the same question. That case concerned a claim for damages by someone who alleged that a failure to allow her mother a termination resulted in her being born in a severely disabled state and was negligent; the claimant would rather never have been born at all:
'But how can the court begin to evaluate non-existence, 'the undiscovered country from whose bourn no traveller returns'? No comparison is possible and therefore no damage can be established which a court could recognise.'
Where, as a result of negligence, a child is born who happens to be disabled with needs over and above that of a healthy child, the additional costs of bringing up that child are compensatable '“ as in MacFarlane v Tayside Health Board  2 AC 59 (failed vasectomy) and Parkinson v St James and Seacroft University Hospital NHS Trust  QB 266 (failed sterilisation). But these are claims brought by the parents, not the child. Y's mother could have had a claim against Y's father/grandfather for the additional costs of Y's upbringing, but such a claim does not feature in the CICA tariff. The court felt that that was unfair, expressing extreme sympathy for the plight of Y and his mother, but ultimately said it was a matter for the secretary of state to address.
Jonathan Wheeler is managing partner at Bolt Burdon Kemp