The case X (A Child) [2014] EWHC 1871 (Fam) has provoked adverse reaction from a number of pro-life commentators and others, who have suggested that the High Court ordered the child in question^[1] to have an abortion, for example: High Court Orders 13-Year-Old Girl To Have Abortion (Huffington Post UK); The abomination of judicially-enforced abortion (Archbishop Cranmer); and Judge orders abortion on girl, 13, with intellect of 7 year old (John Smeaton, SPUC). However, the role of the court is more nuanced than these reports might at first suggest, and although the consequence of the court hearing was that Child X did undergo a termination, this was with her consent which was given following the discussion procedure outlined by the judge, i.e. the court’s decision that a termination would be in her best interests was not enforced.

The role of the court

In explaining the operation of the Abortion Act 1967, as amended, the President of the Family Division, Sir James Munby cited with approval the judgement of Holman J in Re SB (A patient; capacity to consent to termination) [2013] EWHC 1417 (COP) 21 May 2013, paras 3-12.  Of particular relevance to the instant case was paragraph 6, in which Mr Justice Holman said:

“there is no question in this case, or indeed in any case, of a court, by order, requiring any doctor to perform an abortion or termination. An abortion will only happen in this case if, as s1 of the Abortion Act 1967 requires, two registered medical practitioners are of the opinion, formed in good faith, that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman. Further, it will only happen if a doctor or doctors, in the exercise of their own professional judgment, voluntarily decide to perform the abortion”.

Sir James continued by stating that in a case such as this there are ultimately two questions: whether the conditions in section 1 of the 1967 Act are satisfied, [emphasis added],

“Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith:

(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman … ; or

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; … ”

This is for the doctors to decide, not the court, and if the two doctors are not so satisfied, “the court cannot authorise, let alone direct, what, on this hypothesis, is unlawful.

However, if these conditions are met, then the role of the court is to supply, on behalf of the mother, the consent which, as in the case of any other medical or surgical procedure, is a pre-requisite to the lawful performance of the procedure, [para 6].

Furthermore, with regard to determining the mother’s best interests, the court is not concerned to examine those issues which, in accordance with section 1 of the 1967 Act, are a matter for doctors. The court is therefore entitled to proceed on the assumption that: if there is to be a termination the statutory conditions are satisfied; and the termination is necessary to prevent grave permanent injury to her physical or mental health. If any of these conditions is satisfied, “the court is already at a position where, on the face of it, the interests of the mother may well be best served by the court authorising the termination”.  He further noted that another vitally important factor that may well end up being determinative, as in this case, was the wishes and feelings of the mother, [para. 8].

With regard to the capacity of child X, the judge stated [paras 10 to 12]:

“A child or incapacitated adult may, in strict law, lack autonomy. But the court must surely attach very considerable weight indeed to the albeit qualified autonomy of a mother who in relation to a matter as personal, intimate and sensitive as pregnancy is expressing clear wishes and feelings, whichever way, as to whether or not she wants a termination.

[…]

 . . . . . it would not be right to subject X to a termination unless she was both “compliant” and “accepting”. Both, in my judgment, are important. Only the most clear and present risk to the mother’s life or long-term health – neither even hinted at in the present case – could justify the use of restraint or physical force to compel compliance.”

Written evidence was provided by a Consultant Clinical Psychologist, a Consultant in Adolescent Psychiatry and a Consultant in Obstetrics and Gynaecology, and submissions made by counsel representing the local authority, X’s step-father, X’s step-mother, X’s mother and counsel for her guardian.  All of these submissions

“had been prepared on the basis that X was opposed to a termination. By the beginning of the hearing it appeared that X was wavering and by the end of the hearing the position was that X had been consistently expressing a wish to have a termination for the previous two days. Much of the excellent submissions from counsel . . . . had therefore been overtaken by events” [para. 15].

Sir James concluded [at paras. 18 and 19]

“Given that X’s expressed wishes at the end of the hearing thus accorded with my assessment of her best interests, it was clearly appropriate for me to supply the necessary consent to enable the termination to proceed. I attach the relevant parts of the order I made.

I record that, in the event, the termination took place as envisaged in the recitals to my order, so recourse to the Schedule proved unnecessary.”

The Schedule stated:

(a) On the basis of the evidence presently available, the allocated social worker shall be entitled and expected to explain to X that there is ‘very little chance that you will be able to keep the baby if it is born’;

(b) X may need a couple of days to digest this information;

(c) The allocated social worker should then discuss with X the prospect of a termination with the involvement of [X’s step-mother] as support; at the discretion of the social worker and [step-mother], the question of subcutaneous or intrauterine contraception should also be discussed with her;

(d) The allocated social worker and [step-mother] should decide whether the issue of X’s placement with … should be discussed at the same time as a termination;

(e) In the event that X consistently expresses a wish over a period of two days that she would like to have a termination (in accordance with the view expressed by Dr …) then [the step-mother] is entitled to make arrangements for X to be seen by the British Pregnancy Advisory Service (BPAS) … and

(f) The clinicians at BPAS can then make their decisions in accordance with their professional guidance as to whether they believe that the statutory criteria are satisfied and that it is in X’s best interests to proceed with a termination.

SAVE THAT, if the criterion at (e) above is satisfied, notwithstanding that the events at (a) to (d) have not all taken place, then the course at (f) may still take place and paragraph 2 of the Declaration is nonetheless valid.”

Comment

The judgment distinguished between those aspects which under the 1967 Abortion Act are subject to the consideration of two registered medical practitioners, and those which are to be determined by the court, [paras. 6 to 8].  It also stressed that the wishes and feelings of the mother were vitally important, and possibly determinative, in this and other cases, [para. 8]. A number of commentators have interpreted the statement “leaving on one side X’s own wishes and feelings”, [para. 16], as “disregarding X’s own wishes and feelings”, a conclusion which does not seem to be consistent with other statements within the judgement.

With regard to the outcome, in addition to the Schedule, paragraph 15 is important since it describes the change in X’s initial “unambiguous” hostility to a termination to the point at which she “had been consistently expressing a wish to have a termination for the previous two days”.

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[1] Child X was aged 13 years and 9 months, and was approximately 14 weeks pregnant, [para.1].