A birth injury claim arises when a mother or baby is harmed during pregnancy, labour or delivery by care that fell below a reasonable standard. Not every difficult birth is negligent. Labour carries risks that no amount of good care removes, and a claim depends on showing that something avoidable went wrong.
These claims are unusual in one important way: there may be two separate claims arising from the same birth. The baby has their own claim for injury to them, and the mother has her own claim for injury to her. The time limits for each are different, and the difference is large.
A claim for a child is not subject to the ordinary three-year limitation period in the way an adult claim is, so a claim can often be investigated years after the birth. A mother's own claim follows the ordinary adult rules and can expire much sooner.
| Where the child is injured | Where the mother is injured | |
|---|---|---|
| Time limit | Does not run against a child in the ordinary way, so a claim can generally still be investigated long after the birth | Ordinary adult rules — generally three years from discoverability, with a twelve-year long-stop |
| Who brings it | A parent or litigation guardian acts on the child's behalf | You bring the claim yourself |
| What compensation reflects | A lifetime of therapy, care, equipment and lost earning capacity | Your own treatment, care, lost income and pain and suffering |
The rules for children and people under a disability are technical. Treat this as orientation, not as the position in your case.
What do you have to prove?
- Below-standard care. The care provided by the midwife, obstetrician, hospital or other practitioner fell below what a competent practitioner in that role would have provided.
- Harm. The mother or baby suffered a real injury or adverse outcome — not simply a difficult birth, but identifiable physical or developmental harm.
- Causation. The substandard care caused or materially contributed to the harm. This is often the most contested element, because complications in birth can have several possible causes.
The full framework is set out in How to establish a medical negligence claim.
What are the most common birth injury failures?
- Foetal distress not monitored or not acted on, leading to oxygen deprivation
- A caesarean that was clearly indicated being delayed or not performed
- Forceps or vacuum delivery causing head or nerve injury
- Pre-eclampsia or gestational diabetes not diagnosed or not managed
- Medication errors during labour, including anaesthetic complications
- Failure to explain the risks of vaginal birth where a caesarean was an option
How long do you have to bring a claim?
Where the injured person is the child, time does not run against them in the ordinary way, and a claim can generally be investigated well beyond the usual three-year window. Where the injured person is the mother, the ordinary adult rules apply: generally three years from the date the claim becomes discoverable, with a twelve-year long-stop.
The rules are technical and depend on the circumstances, so check rather than assume, particularly if the mother has her own claim. See Time limits for medical negligence claims.
What compensation can you claim?
- Past and future medical treatment, therapy and rehabilitation
- Ongoing care and support, including unpaid care provided by family
- Lost income for a parent unable to work as a result of the injury
- Pain and suffering, where the injury meets the threshold set by the Wrongs Act 1958 (Vic)
- Equipment, home modifications and specialised education where a child has a lasting disability
Where a child has a lifelong disability, compensation is calculated over their lifetime rather than as a single event, which is why these claims take longer to assess. What compensation can you recover explains how each category works.
How Clever handles birth injury claims
These are among the most document-heavy claims in the field. The records are extensive, several practitioners are usually involved, and causation often needs expert input across obstetrics, neonatology and sometimes neurology.
Our technology does the organising. Our lawyers review the evidence and make every legal decision. If the evidence supports a claim, we act on no win, no fee, fixed for each stage of work, capped at 20% of what you recover. If it does not, you are told plainly why.
Common questions
Is a difficult birth the same as negligence?
No. Labour carries real risks even with careful care, and a traumatic or frightening birth is not by itself evidence of a failure. The question is whether the care met the standard of a competent practitioner: whether monitoring was done and acted on, whether a decision was made in time, and whether the harm would have been avoided with reasonable care.
How long do you have to claim for a child's birth injury?
Longer than for an adult claim. Time does not run against a child in the ordinary way, so a birth injury claim on behalf of a child can generally still be investigated years afterwards. That is not a reason to wait, because records and recollections deteriorate, but it does mean an older birth is often still worth asking about.
Does a cerebral palsy diagnosis mean something went wrong?
No. Cerebral palsy has many causes, and a significant proportion are unrelated to the care given during labour and delivery. Establishing a claim requires showing that a specific failure in care caused or materially contributed to the injury, which usually needs expert evidence about the timing and mechanism of the harm.
Can a mother claim as well as the baby?
Yes. They are separate claims and they can both be pursued. A mother may have her own claim for injuries suffered during or after delivery, and that claim runs on the ordinary adult time limits rather than the longer period that applies to a child. It is worth raising both when you first seek advice.
Get your own answer
If you believe your birth, or your child's birth, involved care that caused harm, start a free assessment. There is no obligation and no guaranteed outcome, and you will get a plain answer on where your situation stands.