Mervyn Smith holds a picture of his wife Christine and six-week-old son Andrew.SALISBURY parents who discovered their dead babies' organs were taken without their permission say a High Court ruling means they have "won the battle but not the war".

More than 2,100 families, including Mervyn and Christine Smith, of Bishopdown, took their fight for compensation to court after the extent of unauthorised organ retention became known.

Following the month-long hearing, judge Mr Justice Gage ruled on Friday that removing body parts without permission was "morally and ethically objectionable", and parents whose babies' organs were stripped by hospitals would be entitled to sue the NHS.

However, in more than a third of the cases where coroners ordered the post mortem, grieving parents could be left without a penny, after a test claim was rejected. This decision has angered Mr Smith, who established the support group Legacy.

"What difference does it make whether the hospital or the coroner ordered the post mortem?" he said. "All the families have suffered, not knowing what happened to their children.

"About two thirds will get something, although they have to prove the extent of their suffering, which will be very difficult, because everyone has been affected in different ways - although I know it destroyed us."

Mr and Mrs Smith learned 37 years after the death of their son, Andrew, in 1965, that his brain, eyes, central nervous system and spine had been retained at the John Radcliffe Hospital, in Oxford.

They said they were "casually" offered his organs during a meeting with hospital representatives and were finally given a casket, but many other parents, including Marion Joyner, of Wilton, discovered their babies' body parts had already been destroyed by the time they learned the truth.

Mrs Joyner, whose daughter Alice was buried without her brain, said she hoped the NHS would now accept liability for the suffering it had caused.

But in a test case, an Oxford mother was awarded only £2,750, and Mr Smith said it would be a long time before all the parents were compensated.

"We are not giving up," he said. "We shall fight to ensure that all families get what they are entitled to. We have won the battle but not the war - this is a huge scandal and, when it is over, we want the Human Tissue Act in place to stop it ever happening again."

A statement from the NHS Litigation Authority said: "This case arose because society decided it wished its doctors to be more candid about what was involved in a post mortem, as a result of which normal hospital practice up to about 1999 became outmoded.

"This did not mean that the doctors of the preceding 30 years had been doing anything other than acting bona fide in the interests of patients and their relatives. What the court has found, however, is that the practice which was standard until 1999 is unacceptable in 2004."

Following the ruling, a department of health-funded helpline has been set up, on 0117 9554055, or Legacy can be contacted on 01993 706001.