On 19 January 2023 the government announced that it intends to amend its upcoming Victims Bill to change the law to clarify that children born as a result of rape will now be recognised as victims of crime. This important change, which puts England and Wales among the first countries in the world to take such a step, will entitle such children to support from criminal justice agencies such as the police and courts.
Christopher Wilson, Associate in Keoghs abuse team, provides analysis of the change in the law and also considers the potential consequences of this in the context of both criminal injuries compensation and civil law.
When announcing the changes, the Deputy Prime Minister and Justice Secretary Dominic Raab said:
“No child born in these horrific circumstances should be left to suffer alone, which is why we must ensure that they can assess vital support whenever they may need it … Our Victims Bill will amplify their voices and boost support for all victims at every stage of the justice system.”
The changes will cover all sexual offences which can result in pregnancy and will entitle these individuals to make a complaint to the police in their own right as a victim and to receive information and access support in the same way as any other victim of crime in England and Wales. This help and support will be to address issues such as alcohol or drug dependency, education and/or housing benefit.
The Centre for Women’s Justice (CWJ) estimates that potentially thousands of children are being conceived as a result of rape each year and while such individuals are already eligible to claim Victims’ Code entitlements, the Code itself does not explicitly reference them as victims or specify which entitlements they may reasonably claim for. This legislation should change that and make it much easier for these individuals to seek the support they require.
The general rule is that a claim for a “wrongful life” is not recognised at common law, whether the child has been injured as a result of the circumstances of their birth or not (see McKay v Essex Area Health Authority). Accordingly, there is currently no redress for an individual born as a result of rape against either the individual responsible or, if the act was committed in an employment setting, an employer in vicarious liability.
The rationale for this position seems to be, on the face of it, consistent with the underlying principles of tort law – the main principle being that of looking to put the injured party back in the position it would have been in but for the tortious act. As a result the courts have considered that it is not possible to evaluate non-existence to allow a comparison which would establish a damage that is recognised by the court.
This position also applies to claims for compensation brought against the Criminal Injuries Compensation Authority (CICA). In Y, the Court of Appeal held that a child conceived with a genetic disorder as a result of the incestuous rape of his mother was not eligible to claim criminal injuries compensation as he could not be considered to be a “victim” of a crime that had been committed prior to his conception. Further, it was not possible for the court to assess compensation on the basis that he would otherwise have been born without a disability.
Although the government’s announcement does not directly address the issue of civil compensation, it is easy to see how Mr Raab’s comments, taken at their widest, could be considered to apply to such cases, especially where he talks about boosting support for all victims at “every stage of the justice system”. In particular, it is difficult to see how a court could now conclude that such individuals were not victims of a crime. At the very least, this should remove at least one barrier from such victims, especially in respect of seeking compensation from CICA.
Of course, the final hurdle would still appear to remain – that being the court’s reluctance to enter into an assessment of compensation when there is no uninjured state to be compared with. However, it must now be more difficult for a court to justify a conclusion that prevents acknowledged victims of crime from receiving compensation and it remains to be seen whether more such claims are advanced in the future.
  QB 1166
 Criminal Injuries Compensation Authority v First Tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation) v Y (by his Mother and Litigation Friend)
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