A man who was born as the result of an abusive and incestuous relationship between his mother and her father has been told he can't claim for personal injury damages for his impairments and health problems.
The man, who can only be referred to as "Y", has severe learning and developmental difficulties, epilepsy, and hearing and sight problems, which are all likely to have been caused by his parents' incestuous intercourse.
On Tuesday, the Court of Appeal in London upheld an appeal from the Criminal Injuries Compensation Authority (CICA), which argued that Y could not claim for personal damages because the rape of his mother was not specifically an attack against him.
A lawyer acting for Y's family has described the ruling as "a bitter result".
The case has considered whether it is possible to claim for "wrongful life" and whether the fact someone was born to an abusive, incestuous relationship is in itself an actionable injury.
CICA admitted that Y's disability was the result of a human action in this country – the basis for normal personal injury claims – but it argued that when the action took place Y was not alive and could not have been injured by it.
After the CICA refused his claim, the decision was upheld by the First-Tier Tribunal. Then in April 2016 Judge H Levenson in the Upper Tribunal ruled that Y was in fact entitled to compensation under the current rules – but Tuesday's ruling backs CICA's appeal against that decision.
Y, now 29, has a sibling born to the same parents who has no developmental disabilities – there is around a 50% chance of a genetic defect occurring in someone born as the result of incest, compared with 2–3% in the general population.
Y's mother, "M", was abused by her father, "KM", from the age of 9. Ten years later, in 1987, she gave birth to him. The father later pleaded guilty to incest and was sentenced to three years in jail. The mother successfully claimed compensation from CICA for the crimes against her.
Sir Brian Leveson, president of the Queen's Bench, said in the ruling:
For my part, I would construe the 2008 [compensation] Scheme to mean that the victim of the crime of violence in this case could only be M. To suggest that Y, who had not been conceived at the time of the crime, was himself a victim of crime ... so should be compensated for the genetic disorder from which he suffers is to go beyond that which the Scheme was seeking to cover.
Leveson added: "I cannot leave this case without again repeating my profound sympathy for M and the difficulties that Y experiences."
Y's solicitor advocate, Malcolm Johnson of BL Claims Solicitors, 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."
Lord Justice McFarlane, also sitting in the Court of Appeal, said in the ruling:
We know little of their circumstances, but I strongly suspect that M’s action in bringing this claim on behalf of Y is but one example of the way that she has stood up for him, and stood by him, throughout this long period.
Although, as a matter of law, we have, in my view, no option but to decide against this claim, I fully understand why M has brought it and I admire her for doing so. She is a survivor who continues to care for her needy and highly disabled son and is a lady who, despite my tenuous encounter with her, commands my great respect.
Patrick Smith is a senior reporter for BuzzFeed News and is based in London.
Contact Patrick Smith at firstname.lastname@example.org.
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