Court of appeal rules son of woman abused by her father since childhood is not eligible for criminal injuries compensation scheme award
A disabled man born with a serious genetic disorder, due to an incestuous rape, has failed to obtain compensation for his medical condition.
The court of appeal on Tuesday dismissed his claim against the Criminal Injuries Compensation Authority (CICA) on the grounds that he did not exist at the time the crime took place.
The highly unusual application raised difficult legal questions about the extent of the compensation authoritys liabilities.
The 29-year-old man, identified by the court only as Y, had won his claim in the lower tribunals. He was born in 1987 after his mother was repeatedly sexually abused by her father from the age of nine.
All three judges on the court of appeal bench, Sir Brian Leveson, Lord Justice McFarlane and Lord Justice Henderson, agreed that the CICA should not have to pay out.
Delivering judgment, Leveson said: To suggest that Y, who had not been conceived at the time of the crime, was himself a victim of crime or that it is possible to assess compensation [supposing] that Y would otherwise have been born without disability and so should be compensated for the genetic disorder from which he suffers is to go beyond that which the [CICA] scheme was seeking to cover.
Expressing profound sympathy for the mother and son, Leveson said that she should receive compensation to reflect the undeniable difficulties she experienced in caring for her child.
The mother has already received compensation for her personal injuries as a victim of the crime.
Explaining the dilemma faced by the court, Leveson said: The issues were, first, whether it was possible to identify an injury without there having been a person who had been injured, existing in a pre-injured state.
The second issue was whether [the schemes regulations] precluded an applicant from obtaining compensation in respect of a sexual offence unless he or she was a non-consenting victim of that offence.
Malcolm Johnson of BL Claims Solicitors, who represented Y, said: This is a bitter result for Y and his mother, who fought long and hard for the compensation needed to provide the care and support he deserves. However, we are pleased that the court of appeal acknowledged that the CICA scheme should address the position of mothers who find themselves caring for a disabled child born as a result of a sexual crime.