Wrongful life issues? Claim by child fathered by an undercover police officer.

TBS v Metropolitan Police Commissioner [2017] EWHC 3094 (QB) is an interlocutory decision dealing with an application by the defendant to have the claim struck out. The facts of the matter are (to say the least) unusual, but to some extent touch on wrongful life topics. As stated at [1] -[2]:

The Claimant was born in September 1985. His mother was a political activist who is referred to as ‘Jacqui’. His father was Bob Lambert. Lambert was an undercover police officer who, using the pseudonym Bob Robinson, pretended to share Jacqui’s political views and formed a liaison with her which resulted in the Claimant’s birth. It is pleaded that Lambert continued to fulfil (or purported to fulfil) a father’s role until late 1988 when he pretended that he had to leave to avoid prosecution. Thereafter the Claimant had no contact with Lambert until after 2012 when Lambert’s role as a police officer was revealed.

By these proceedings the Claimant seeks compensation for, among other things, the Adjustment Disorder with Depressed Mood which he says he has suffered as a result of finding out that his father was not a political activist but a police officer, from Lambert purporting to assume a father’s role under a false identity and from Lambert abandoning his parental role towards him relying upon a false explanation.

The Claimant’s mother, Jacqui, brought her own claim in 2013 which was settled in 2014 for £425,000. The present claim by the child alleged misfeasance in public office and negligence. In relation to the negligence claim, at [37] – [38]:

The Defendant argues that the claim regarding the Claimant’s conception cannot succeed because, if he had not been conceived he would not be alive. In effect, Mr Skelton argues, this is a ‘wrongful life’ claim, but such claims are contrary to public policy. That was the decision in McKay v Essex Area Health Authority [1982] 1 QB 1166 CA. The Court gave two reasons for its decision. The first was that such a claim would be contrary to the principle of the sanctity of human life – see for instance Ackner LJ at p.1188C. The second reason was a practical one. The plaintiff was a child whose mother had contracted rubella while she was pregnant. The plaintiff alleged that the doctors had been negligent in not identifying his mother’s condition and said, that, if it had been, he would have been aborted. The plaintiff could give evidence of his condition with the congenital deformities from which he suffered as a result of his mother’s illness. But the logic of his claim was that this had to be compared with the position if the doctors had not been negligent. In those circumstances, he would not have been born. Yet there was no way the court could assess non-existence or put a value on it.

Ms Williams argues that the comparison with McKay is inapt. The Claimant does not say he should never have been born. Rather he seeks compensation for the psychiatric injury which he has suffered as a result of the deception practised on his mother and on him about his father’s circumstances. Such a claim does not offend the principle of the sanctity of life. Nor does it engage the same practical difficulties as existed for the plaintiff in McKay. She observes that the child plaintiff in McKay had an alternative claim for failure to treat the mother’s rubella. Such treatment, it was said, could not have reversed or ameliorated damage already done to the unborn child, but it could have reduced the likelihood of further damage. At 1185B-C Ackner LJ said,

‘It has not been contested that if the facts set out above are established, Mary has an arguable cause of action against the doctor. In fact, without it being in terms conceded, it was assumed on those facts she would indeed recover damages.’

The court did not accept the argument by the defendant, saying at [40] that the claimant is not aggrieved at having been born, but he does complain that the circumstances of his father mean that he has suffered the Adjustment Disorder.

The existence of an arguable duty of care in negligence was also discussed at [36]. The court held at [47] that the pleaded duty of care need not inevitably fail, so refused to strike out the claim.

No doubt the matter will require further attention from the courts in due course.