A child born with foetal alcohol syndrome is not legally entitled to compensation after her mother drank excessively while pregnant, the Court of Appeal has ruled.

The seven-year-old girl was born with severe brain damage and is now in care. The court heard how her mother had ignored warnings to drink eight cans of strong lager and half a bottle of vodka a day.

The council now caring for the girl (referred to as CP)* argued that the mother’s behaviour had made her daughter a victim of violence.

But the appeal judges declared that the council was not entitled to a payout from the Criminal Injuries Compensation Scheme. Lord Justice Treacy said an “essential ingredient” for a crime to be committed “is the infliction of grievous bodily harm on a person – grievous bodily harm on a foetus will not suffice”.

The British Pregnancy Advisory Service (Bpas) and the childbirth charity Birthrights welcomed the ruling.

Rebecca Schiller, co-chair of Birthrights, and Bpas chief executive Ann Furedi said it was “an extremely important ruling for women everywhere”.

“The UK’s highest courts have recognised that women must be able to make their own decisions about their pregnancies,” they said.

“Both the immediate and broader implications of the case were troubling. In seeking to establish that the damage caused to a foetus through heavy drinking was a criminal offence, the case called into question women’s legal status while pregnant, and right to make their own decisions.”

NeilSugarman, the solicitor acting for CP, said the decision was “clearly disappointing” and that the case was not about women’s rights or “criminalising women”.

He said GLP Solicitors, of which he is managing partner, represents about 80 other children with FAS and that they would now be looking at the implications of the ruling.

The only legal option left is to seek to take the case to the Supreme Court.

The NHS recommends that pregnant women should not drink at all – adding that those who choose to have a drink should have no more than two units of alcohol once or twice a week. Please view the Foetal Alcohol Spectrum Disorders (FASD) Trust website for more information on the dangers of FASD.

* Both the council and the girl cannot not be named for legal reasons.