|
The price of everything; the value of
nothing….
11 December 2007
The annual "cost of a child" survey 2007,
recently published by friendly society Liverpool Victoria, tells us
that it now costs £186,000 to raise a child from birth to the age
of 21. Now that fertility is so heavily medicalised,
negligence in NHS provision of contraception/sterilisation or ante
natal screening can lead to the conception or birth of a child who
would not otherwise have existed. So can the parents claim
£186,000 for the costs of raising the child?
Such claims started appearing in the 1980s,
and the Courts generally allowed them, because on ordinary
principles financial losses incurred directly as a result of
negligence are usually recoverable. There were even cases in
which the NHS had to pay the costs of a private education, as that
was the expectation within the family into which the unplanned
child had been born as a result of negligence.
Everything changed in 1999 when the issue
first reached the House of Lords in the case of McFarlane. In
1989 George McFarlane had a vasectomy. Told that sperm
samples confirmed infertility, he ceased using contraception, but
Mrs McFarlane became pregnant again, and their fifth child, a
healthy girl named Catherine, was born in 1992. Mr and Mrs
McFarlane claimed for the pain and suffering of the pregnancy (put
at £10,000) and the costs of raising Catherine (put then at
£100,000).
The House of Lords rejected their claim.
Although each of the five judges came up with different reasons,
referring to various legal intricacies about the extent of the duty
of care, or the recovery of "pure economic losses", the underlying
rationale was best expressed by Lord Millet, who said that "it
is morally offensive to regard a normal healthy baby as more
trouble and expense than it is worth". A "healthy child"
is, in short "a blessing", not an injury giving rise to
compensation. The obvious question is: What about an
unhealthy child?
After a negligent sterilisation, Scott
Parkinson was born with severe autistic behavioural difficulties,
his parents' fifth child. In 2001 the Court of Appeal, after
McFarlane, decided that it was only fair that the House of Lords
decision applied only to the basic costs of raising a healthy
child, and the additional costs associated with a child's
disabilities should be recoverable.
The next interesting twist was the scenario of
a disabled mother. Katrina Rees didn’t feel able to
raise a child due to her own visual impairment, but had a healthy
son, Anthony, after a sterilisation negligently failed. The
Court of Appeal decided it was a case like Parkinson, in which the
"top slice" of additional expenses associated with the disability
(in this case the mother's) was recoverable. The House of
Lords over-ruled this in 2003. Full recovery of the costs of
raising the child, without some discount for the intangible
benefits of parenthood, would be over-compensation. No
appropriate discount can be calculated, and so the costs should not
be recoverable. Instead a standard sum of £15,000 for the
"loss of autonomy" was awarded.
The House of Lords' decision in Rees was a 4:3
majority, and did not explicitly deal with the scenario of a
disabled child. Even so, it is hard to see how the Court of
Appeal decision in Parkinson can stand. Regardless of the
fact that the costs of raising a disabled child are certainly
higher, it is the incalculability of the benefits of
parenthood, and the impossibility of the necessary discount to the
damages to reflect this, which bars recovery in Rees. The
boon of parenthood is no less incalculable in relation to a
disabled child, and no judge has been prepared to say that a
disabled child is worth less to his parents than a healthy
child. It remains to be seen how the Lords deal with this
when a case involving a disabled child reaches them.
In the meantime we are left with a standard
award of £15,000 for the parents' loss of autonomy in choosing how
to regulate the size of their family. This may be little
consolation to a family facing a bill of £186,000 to raise an
unplanned child, especially for those less financially secure than
someone on a Law Lord's salary (£198,700pa). As one judge in
the lower courts remarked, however lovely an infant may be,
"every baby has a belly to be filled and a body to be
clothed". In almost every other sphere, the ideas of
patient choice and autonomy seem to hold sway.
As regards the costs of raising a child born
from negligence, however, the law at present favours more
traditional values, often expressed in terms echoing Christian
ethics and the sanctity of life – "there should be rejoicing
not dismay [and certainly not a claim for compensation]
that the surgeon's mistake bestowed the gift of life on the
child". Parents in that situation will have to look to
Santa, rather than the NHS, for help with the cost of Christmas
presents.
For more information or advice, please contact
Ben or Simon.
The content of this bulletin is provided for
the purposes of general interest and information. It contains only
brief summaries of aspects of the subject matter and does not
provide comprehensive statements of the law. It does not constitute
legal advice and does not provide a substitute for it.