In the matter of X (A Child)  EWHC 1871 (Fam) (Munby J)
Practice and Procedure – Other
This was an urgent application relating to a 13 year old girl who was subject to ongoing care proceedings. At the time of the hearing she was approximately 14 weeks pregnant. The issue before the court was whether or not the pregnancy should be terminated.
The President first highlighted the tension between the need for the judgment to be given in public and the requirement that X’s identity should not be revealed. In this case the judge held that there was a compelling need to ensure that nothing was published that might lead, even if only on a ‘jigsaw’ basis, to the identification of X. Consequently, only the advocates were named.
The judge began by setting out the function of the court in such a case. He adopted the approach of Holman J in Re SB; A Patient; Capacity to Consent to Termination  EWCOP 1417 (which related to an adult who lacked capacity, the same general principles applying):
“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.”
In such a case, the first question was for the doctors: are the conditions in section 1 of the 1967 Act met. If they are not, then that is the end of the matter. The court cannot authorise (and certainly could not direct) the doctors to act unlawfully. If the conditions of 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 is a prerequisite to the lawful performance of the procedure. The ‘ultimate determinant’ in cases concerned with a child or an incapacitated adult is the mother’s best interests.
In addressing the question of the mother’s best interests, the court is entitled to proceed on the basis that if there is to be a termination, the conditions in s.1 of the 1967 Act are satisfied. This allows the court to proceed on the basis firstly 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 that the termination is necessary to prevent grave permanent injury to her physical or mental health. Secondly, if any of the conditions are satisfied the court was already in a position where on the face of it, the interests of the mother may well best be served by the court authorising the termination.
Another vitally important factor and one which may well end up being determinative (and which in this case was determinative) is the wishes and feelings of the mother:
“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.”
The evidence was clear that X lacked Gillick capacity. X was initially against having an abortion. Save for X’s initial wishes and feelings, the preponderance of evidence was that it would be in her best interests to have a termination. One factor which was important to take into account was the likelihood of X being able to keep her baby if there was no termination. The judge expressed the view that there was ‘very little chance’ that X would be able to keep her baby if it was born. Having given that view, the judge considered that he should not be further involved in the care proceedings and he recused himself.
By the end of the hearing, X’s views had changed and she was in favour of a termination. Given that X’s expressed wishes accorded with the judge’s assessment of her best interests it was appropriate to supply the necessary consent to enable the termination to proceed.
This case is a useful reminder of just how determinative the child or incapacitated adult’s wishes and feelings are in cases where the court is providing consent for the termination of a pregnancy. Only the most powerful and compelling factors could displace expressed wishes and feelings on such a personal and intimate matter.
Less central to the case (but interesting for parallels in the COP) is the application of the Practice Guidance on Transparency in the Family Courts. The need to protect X’s privacy in this case provided a compelling reason why only the advocates names were published as it may otherwise have been possible to piece various elements together to identify X.