Navigating the legal process that follows the birth of a child with a disability requires clear guidance and support. When this is compounded by the belief that medical negligence may have played a part in this outcome, parents often have many questions. One of the most pressing is whether they can still seek compensation, even years later.

When considering whether or not a wrongful birth claim can be made in these instances, the answer will depend on the specific circumstances of your case. While the standard time limit for such claims is three years, the law recognises that each case is unique, and there are important exceptions to consider.

A wrongful birth claim is a sensitive area of medical negligence law. It is not about questioning the value of a child’s life, but about addressing a failure in medical care that deprived parents of the ability to make informed decisions about their pregnancy. Understanding your legal position is the first step towards finding a resolution.

What Is a Wrongful Birth Claim?

To understand the time limits, we first need to be clear about what constitutes a wrongful birth claim in England and Wales. These are specific types of medical negligence claims brought by the parents of a child.

A wrongful birth is a legal term for a claim that arises when medical negligence results in the birth of a child. This typically occurs in two main scenarios:

1. Failed sterilisation or contraception: This includes failed sterilisation procedures, a failed vasectomy, or receiving incorrect contraceptive advice from a GP or family planning nurse, leading to an unplanned pregnancy and the subsequent birth of a child.
2. Failure during antenatal screening: This is when sonographers, consultants, or other medical specialists fail to diagnose or adequately warn parents about foetal abnormalities or a significant genetic condition during pregnancy. Conditions like Down's syndrome, spina bifida, or serious heart defects can often be identified through scans and tests. A failure to perform these tests correctly, interpret the results, or communicate them to the parents can form the basis of a wrongful birth claim.

The core of these claims is that the parents were denied their right to make an informed choice about the pregnancy. Had they been given the correct advice or information, they would have chosen to terminate the pregnancy.

It is crucial to understand that wrongful birth claims are brought by the parents, as they were the ones who received the negligent treatment or advice. This is a key distinction from birth injury claims, which are made on behalf of the child for an injury they sustained during or around the time of their birth.

What Is the Standard Time Limit for Wrongful Birth Claims?

For any medical negligence claim, there are strict time limits within which court proceedings must be started. Understanding these is essential to answering whether a claim is possible when a child is, for example, 10 years old.

In England and Wales, the general rule is that you have a time limit of three years to make a claim for wrongful birth compensation. This three-year period typically starts from one of two points, whichever is later:

• The date of the child's birth
• The date of knowledge, which refers to the date you became aware of the medical negligence

Therefore, if the time limit started from the date of the child’s birth, the three-year window for the parents to bring a wrongful birth claim would have long since passed by the time the child is 10. However, the date of knowledge is the critical exception here.

In What Circumstances Could You Make a Wrongful Birth Claim for an Older Child?

The law allows for flexibility in certain circumstances because the impact of negligence is not always immediately apparent.

The date of knowledge is the date when you first knew, or could have reasonably been expected to know, that the birth was connected to a potential failure on the part of a doctor, sonographer, or midwife.

For example, parents may only discover that a test result was misinterpreted or that a congenital condition should have been identified during pregnancy when their child is older and undergoing further medical investigation. If the parents only became aware of the potential negligence when the child was, for instance, nine years old, their three-year time limit would start from that point. In this scenario, it may be possible to pursue a claim even though the child is 10.

Under Section 33 of the Limitation Act 1980, the court has the discretion to allow a claim to proceed even if the standard time limit has expired. However, this is not common and is only granted if there is a compelling reason and if it is fair to both parties. The court will consider factors such as the length of the delay, the reasons for it, and what evidence is still available - you should speak to a solicitor about whether this could apply in your case, but in most instances this will not be an option.

How Do Time Limits for Wrongful Birth Differ from Birth Injury Cases?

It is vital not to confuse wrongful birth claims with birth injury claims, as the time limits are very different. This distinction could be highly relevant if you are considering a claim involving a 10-year-old child.

A birth injury claim is made on behalf of a child who has sustained an injury due to medical negligence during pregnancy, labour, or shortly after birth. This could involve, for example, a brain injury caused by a lack of oxygen during delivery. These claims focus on the direct injury to the child.

Because a birth injury claim is made on behalf of the child, the time limits are much longer. Parents or a legal guardian can bring a claim on behalf of a child at any point before their 18th birthday. Once the child turns 18, they then have until their 21st birthday to bring their own claim.

Therefore, if your child experienced a birth injury, a claim can still be brought on their behalf when they are 10 years old. If the child lacks the mental capacity to manage their own affairs as a result of their injury, there is generally no time limit to make a claim.

What Does a Successful Wrongful Birth Claim Involve?

Pursuing compensation through wrongful birth claims requires demonstrating that negligence occurred and that it led to the birth.

To have a successful claim, our medical negligence team must establish three key points:

1. Breach of duty: We must show that the care provided by the doctor, consultant, or sonographer fell below the standard of a reasonably competent medical practitioner. This could involve a failure to offer screening, mistakes in interpreting scans, or providing incorrect advice about the risks of a failed vasectomy.
2. Causation: We need to prove that this failure directly led to the birth of the child. For wrongful birth claims involving a child's disability, it must be established that had the parents been properly informed, they would have chosen to terminate the pregnancy.
3. Loss: We must demonstrate the losses incurred as a result.

Evidence from medical records and independent medico-legal experts is essential to building a strong case.

Compensation for wrongful birth claims aims to put the parents back in the financial position they would have been in but for the negligent treatment. A crucial legal principle, established in the case of McFarlane v Tayside Health Board, is that the ordinary costs of raising a healthy child are not recoverable in cases of failed sterilisation.

However, the situation is different for wrongful birth cases where a child is born with a significant disability. In these challenging circumstances, wrongful birth compensation can cover the additional costs associated with raising the child for their entire life expectancy. This can include:

• The costs of providing care and support for the child.
• Medical expenses, therapies and treatment.
• Costs of specialist equipment and aids.
• Adapting the family home to meet the child's needs.
• Loss of earnings if a parent has to stop working to provide care.
• Compensation for the psychological impact on the parents.

How Our Medical Negligence Team Can Help

Wrongful birth cases require sensitive handling and specialist legal knowledge. It is essential to seek expert advice from solicitors who understand the nuances of this area of law. Our dedicated medical negligence team provides compassionate and clear guidance to families navigating these situations. We work with leading independent medical experts to investigate your concerns thoroughly and determine if you have a valid claim.

JMW’s team includes members of the Law Society's specialist panel of clinical negligence solicitors and the Action against Medical Accidents (AvMA) solicitors’ panel. We are here to provide the support and legal advice you need to secure the best possible future for your child and your family.

If you believe you may have a wrongful birth claim, regardless of your child's age, we encourage you to discuss your circumstances with our experienced legal team. We provide a free, confidential assessment of your situation and advise you on your options.

To speak to a member of our team, visit our wrongful birth claims page. You can also call us on 0345 872 6666, or fill in our online contact form to request a call back.