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Family Law

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18 JUN 2014

Re X (Capacity to Consent to Termination) [2014] EWHC 1871 (Fam)

Re X (Capacity to Consent to Termination) [2014] EWHC 1871 (Fam)

(Family Division, Sir James Munby, the President of the Family Division, 9 June 2014)

Capacity – Abortion – 13-year-old pregnant child with cognitive impairments – Whether she had capacity to consent to a termination – Whether a termination was in her best interests

The full judgment is available below.

The 13-year-old girl, who was cognitively impaired, became pregnant during her relationship with a 14-year-old boy. Care proceedings were ongoing in relation to the girl and an urgent application was made to the court for a determination as to whether she should be compelled to undergo a termination.

The President adopted the guidance set out in Re SB (A Patient: Capacity to Consent to Termination) [2013] EWCOP 1417, [2013] COPLR 445. Those principles were applied to an adult who lacked capacity but the same applied with respect of a child in these circumstances.

The first question was whether the conditions of the Abortion Act 1967 were satisfied and, if so, the second question was whether the court could consent, on behalf of the mother, with the ultimate determinant being her best interests. If the conditions of s 1 of the 1967 Act were satisfied then it followed that the court could proceed on the assumption that the interests of the mother might well be best served by authorising the termination.

The wishes and feelings of the mother were also vitally important and potentially determinative. This was not a case where the mother had so little appreciation of what was going on so as to be able to express any wishes and feelings. Each case had to be determined on its own specific facts but the court had the power to authorise the use of restraint or physical force to compel a child to undergo a surgical procedure although only the most compelling cases could justify imposing a termination on an unwilling mother or to compel a mother to continue with an unwanted pregnancy.

The consultant in obstetrics and gynaecology gave evidence that in the case of this child a termination could only be considered if she were compliant and accepting. Mere acquiescence in the face of asserted State authority would not be enough. The psychological and psychiatric evidence was clear that she was not Gillick competent and that she was a damaged and impaired child. Initially she was not willing to have a termination but by the time of the hearing her feelings had changed. She had consistently expressed a wish to have a termination.

Taking all of the evidence into account a termination would be in the child’s best interests. The President made a declaration that the girl did not have capacity to consent to a termination or to the fitting of a contraceptive implant.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law. __________________________________________________________________

Neutral Citation Number: [2014] EWHC 1871 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION (In open court)

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 9 June 2014

Before :

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION

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In the matter of X (A Child)

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The date of the hearing and the names of the parties and of their solicitors are omitted in the interests of preserving X’s anonymity and privacy

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Judgment

Sir James Munby, President of the Family Division :

[1] Some time ago I heard an urgent application relating to a girl who at the date of the hearing before me was aged 13 years and 9 months. She was at the time the subject of ongoing care proceedings being heard by another judge. She was approximately 14 weeks pregnant. The father of the unborn child was aged 14. The issue before me was whether or not the pregnancy should be terminated. The care proceedings have not yet come to a conclusion but I do not think that I should further delay giving judgment explaining my decision and my reasons for it.

[2] It is important that my judgment be given in public. But it is also important in X’s best interests that I say nothing in public that might lead to her identification and that I say no more in public than is necessary for a proper understanding of my decision. I shall therefore say very little about X’s personal circumstances and nothing about the detail of the care proceedings. I recognise of course that public authorities and experts are not entitled to anonymity and (see paragraph 20(i) of the Practice Guidance on Transparency in the Family Courts issued on 16 January 2014) that expert witnesses should be named in judgments approved for publication “unless there are compelling reasons why they should not be so named”. In the present case there is a compelling need to ensure that nothing is published that might lead, even if only on a ‘jigsaw’ basis, to the identification of X. It is for this reason that, apart from the advocates, no-one is referred to in this judgment by name.

[3] Before going any further it is important to be clear as to what the function of the court is in a case such as this. I say this because the termination of a pregnancy is regulated by the Abortion Act 1967, as amended, compliance with the provisions of which makes lawful what might otherwise be unlawful, indeed criminal, by virtue of sections 58 and 59 of the Offences Against the Person Act 1861.

[4] So far as material in the present case (where X has no other children and there was no suggestion of any abnormality in her unborn child) section 1(1) of the 1967 Act provides as follows:

“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;
… ”

[5] In relation to this I gratefully adopt what Holman J said in Re SB; A Patient; Capacity to Consent to Termination) [2013] EWCOP 1417, [2013] COPLR 445, paras 3-12, an analysis with which I respectfully agree. That was a case involving an adult, but the same general principles apply whether the mother is a child or an adult who lacks capacity. The most important point for present purposes is this passage (para 6) in Holman J’s judgment:

“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 s 1 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”.

[6] In a case such as this there are ultimately two questions. The first, which is for the doctors, not this court, is whether the conditions in section 1 of the 1967 Act are satisfied. If they are not, then that is that: the court cannot authorise, let alone direct, what, on this hypothesis, is unlawful. If, on the other hand, the conditions in section 1 of the 1967 Act are satisfied, 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. In relation to this issue the ultimate determinant, as in all cases where the court is concerned with a child or an incapacitated adult, is the mother’s best interests.

[7] An important practical consequence flows from this. In determining the mother’s best interests this court is not concerned to examine those issues which, in accordance with section 1 of the 1967 Act, are a matter for doctors. But the point goes somewhat further. Since there can be no lawful termination unless the conditions in section 1 are satisfied, and since it is a matter for the doctors to determine whether those conditions are satisfied, it follows that in addressing the question of the mother’s best interests this court is entitled to proceed on the assumption that if there is to be a termination the statutory conditions are indeed satisfied. Two things flow from this. In the first place this court can proceed on the basis (sections 1(1)(a) and (c)) that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, to the life of the pregnant woman or of injury to her physical or mental health or (section 1(1)(b)) that the termination is necessary to prevent grave permanent injury to her physical or mental health. Secondly, 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.

[8] There is another vitally important factor that in many cases such as this may well end up being determinative and which in this particular case is, in my judgment, determinative: the wishes and feelings of the mother.

[9] I leave on one side cases where the mother has for whatever reason so little appreciation of what is going on as not to be able to express any wishes and feelings. This, I emphasise, is not such a case. The point is very simple and profoundly important. This court in exercise of its inherent jurisdiction in relation to children undoubtedly has power to authorise the use of restraint and physical force to compel a child to submit to a surgical procedure: see Re C (Detention: Medical Treatment) [1997] 2 FLR 180 and Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083. I say nothing about how this power should appropriately be exercised in the case of other forms of medical or surgical intervention. In the case of the proposed termination of a pregnancy, however, the point surely is this. Only the most compelling arguments could possibly justify compelling a mother who wished to carry her child to term to submit to an unwanted termination. It would be unwise to be too prescriptive, for every case must be judged on its own unique facts, but I find it hard to conceive of any case where such a drastic form of order – such an immensely invasive procedure – could be appropriate in the case of a mother who does not want a termination, unless there was powerful evidence that allowing the pregnancy to continue would put the mother’s life or long-term health at very grave risk. Conversely, it would be a very strong thing indeed, if the mother wants a termination, to require her to continue with an unwanted pregnancy even though the conditions in section 1 of the 1967 Act are satisfied.

[10] 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.

[11] There appears to be no clear authority on the point in this particular context (the cases in point all concerned other forms of surgical intervention) but counsel for X’s mother helpfully reminded me of something Lord Donaldson MR said in In Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64, 79, which is in line with the approach I adopt:

“Hair-raising possibilities were canvassed of abortions being carried out by doctors in reliance upon the consent of parents and despite the refusal of consent by 16- and 17-year-olds. Whilst this may be possible as a matter of law, I do not see any likelihood taking account of medical ethics, unless the abortion was truly in the best interests of the child. This is not to say that it could not happen.”

[12] In his oral evidence (see below) the Consultant in Obstetrics and Gynaecology captured the point, as it seemed to me, very compellingly. He said, and I agree, that 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. So the mother in a case such as this must be compliant. But mere acquiescence – helpless submission in the face of asserted State authority – is not enough. “Consent”, of course, is not the appropriate word, for by definition a child of X’s age who, like X, lacks Gillick capacity, cannot in law give a valid consent. But something of the nature of consent or agreement, using those words in the colloquial sense, is required. The Consultant’s word “accepting” in my judgment captures the nuance very well.

[13] I had written reports from a Consultant Clinical Psychologist, a Consultant in Adolescent Psychiatry and a Consultant in Obstetrics and Gynaecology. The latter two also gave oral evidence. The evidence was clear that X lacked Gillick capacity. The Psychologist assessed her Full-Scale IQ as 54, the age equivalence of her comprehension as 7.10 years and her vocabulary as below a 6.2 year level. X has had many difficulties in her life. She attends CAMHS. She was described by the Psychiatrist as being “a very damaged and impaired young girl”, largely out of control a good part of the time. All that said, she is a healthy young girl, though physically immature and of slight build for her age. The Psychiatrist opined that although X would understand termination and its effect – the death of her baby – she did not have a full understanding of what the pregnancy would involve – the later stages and the birth – and only a very limited understanding of what having a child means, the responsibilities it entails and the impositions it would place upon her. At the time he saw her, X had set her mind against a termination. In those circumstances, and having evaluated the effects on X if she were to have the baby, especially if, as he thought very likely, it was removed from her after birth, he said this:

“If the pregnancy were terminated I believe that this would cause considerable harm to this young girl, who would see it as an assault … continuing the pregnancy … may have a less detrimental effect on X given her current circumstances.”

[14] The Consultant in Obstetrics and Gynaecology described the alternative methods of termination, recommending in this case surgical termination under general anaesthetic rather than a medical termination by the administration of oral medication and vaginal arbortifacients. Given what he described as X’s “unambiguous” hostility to a termination he expressed the opinion that “enforcement” of termination would probably not be in her best interests.

[15] I had written submissions from counsel for the local authority (Mr Mark Roscoe), counsel for X’s step-father (Ms Alexandra Scott), counsel for her step-mother (Mr Martin Kingerley), counsel for her mother (Mr William J Tyler) and counsel for her guardian (Ms Nassera Butt). All 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, for which I was most grateful, had therefore been overtaken by events.

[16] Leaving on one side X’s own wishes and feelings, the preponderance of all the evidence is clear that it would be in her best interests to have a termination. I do not think it either necessary or appropriate to explore this in any great detail, save to record my gratitude to counsel for X’s mother for having prepared Re A balance sheet analyses (see Re A (Male Sterilisation) [2000] 1 FLR 549, 560 per Thorpe LJ) of the relevant psychological and social factors, of the purely medical issues, and of the use of force to implement termination.

[17] One factor which it did seem important to take into account was the likelihood or otherwise of X being able to keep her baby if there was no termination. This required me, necessarily on the basis of incomplete information, to predict the outcome, not merely of the care proceedings already on foot in relation to X but also of the care proceedings in relation to her child which almost inevitably would be commenced after the birth. The need for a judicial view on a point which might be seen to be pre-judging the care proceedings was, in my judgment, inescapable. My view, which I expressed at the hearing and which was embodied in my order (see below) was that there was “very little chance” that X would be able to keep her baby if it was born. Having done so, however, it seemed to me that I should not be further involved in the care proceedings, so I recused myself.

[18] 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.

[19] 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.

[20] The order:

“UPON hearing live evidence from Dr … Consultant Obstetrician and Gynaecologist and Dr … Consultant Adolescent and Child Psychiatrist

AND UPON both medical experts expressing the view during the course of the evidence that a reversible contraceptive implant would in their respective opinions also be in X’s best interests …

AND UPON the court having been informed on Wednesday … that X has consistently expressed a wish to have a termination and the implant of contraceptives since Monday … and that a surgical procedure has been booked to carry these out … on Friday …

AND UPON it being recorded that in the event that a termination procedure does not take place on Friday … the court has indicated that the sequence of events in the Schedule hereto needs to occur in respect of X’s pregnancy as soon as possible (the President having recused himself in respect of hearing any future care proceedings relating to X’s conceived but as yet unborn child)

AND UPON it being emphasised that the permissive declaration at paragraph 2 (below) does not obviate treating clinicians from the duties imposed on them pursuant to section 1 of the Abortion Act 1967

AND UPON the Court observing that, subject to the satisfaction of the statutory criteria and those contained in the declaration at paragraph 2 (below), the termination of X’s pregnancy, if it is to take place, would in her best interests be better undertaken before … if possible

IT IS HEREBY DECLARED THAT:

1.X does not have the capacity to make the decision as to whether her pregnancy should proceed or be terminated, or whether she should have a contraceptive implanted in her.

2.It shall be lawful, as being in X’s best interests, for a doctor treating her to carry out a termination in accordance with the criteria as set out in section 1 of the Abortion Act 1967 notwithstanding her incapacity to provide legal consent, subject to her being compliant and accepting of such medical procedure.

3It shall be lawful, as being in X’s best interests, for reversible subcutaneous or intrauterine contraception to be administered to [her] at the same time as a termination of pregnancy, provided that [she] does not raise any objection to this course. …

SCHEDULE

(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.”

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