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Re AB (Termination of Pregnancy), [2019] EWCA Civ 1215

A successful appeal from the Court of Protection against a declaration to terminate the (almost 23-week) pregnancy of AB, a woman with moderate learning disabilities. The judge gave inadequate weight to non-medical factors and the medical evidence did not convincingly demonstrate the need for such a profound and drastic intervention.

In terms of the background (set out in detail at §7-18), AB is a 24-year-old woman, with significant developmental delay and learning difficulties, functioning at a level of between 6-9 years old and with an IQ of between 35-49. She is incapable of caring for herself. Whilst staying with her family in Nigeria, AB became pregnant in unexplained circumstances. Upon her return to England in April 2019, this was discovered by AB's adoptive mother CD.
The NHS Foundation Trust responsible for the antenatal care of AB concluded that it would be in her best interests for the pregnancy to be terminated. It was uncontroversial that AB lacked capacity to consent, but CB was opposed to the termination (on religious and cultural grounds). Accordingly, the Trust issued an application to the High Court on 21 May 2019
By the time of the hearing on 20 and 21 June 2019, AB was almost 23 weeks pregnant. Having heard extensive evidence, Lieven J made a declaration that it would be lawful for the Trust to carry out a termination pursuant to s.1 of the Abortion Act 1967 notwithstanding AB's incapacity to provide consent.
CD, supported by the Official Solicitor, sought to appeal. Though the Local Authority was neutral, AB's social worker was opposed to the termination. The Trust alone opposed the appeal.
Given the 24-week deadline under the Abortion Act 1967 was imminent, the Court of Appeal heard the case urgently on 24 June 2019. At this hearing, permission to appeal was granted and the appeal allowed such that the termination will not take place.
Applicable Law
The applicable law is set out between §19-31. The Trust sought a termination pursuant to section 1(1)(a) of the Abortion Act 1967, that is to say the treating doctors had formed the view that continuing the pregnancy involves a greater risk to the mental health of AB than if the pregnancy was terminated. Where a termination of pregnancy is contemplated in respect of a woman who lacks capacity, if this is in the best interests of the woman, then the procedure will be a legitimate and proportionate interference with Art 8(1) ECHR as being carried out for the protection of health under Art 8(2).
Thus, the central issue was to consider, by way of an evaluation of all the material factors, whether it would be in the best interests of AB (rather than the foetus) to provide the necessary consent pursuant to the Mental Capacity Act 2005. It was noted that the court's task may overlap with (but is not the same as) the task of the doctors in applying the Abortion Act.
Grounds of Appeal
Set out at §32, the three grounds provide detail to the global submission that the judge failed properly to weigh up all the relevant factors in conducting AB's best interests analysis:
i) The judge erred in finding that if AB's pregnancy continued to term, her baby would be removed by way of protective order on the part of the local authority and/or placed too much weight on this factor in the best interests analysis. Such a finding materially impacted on her best interests analysis, such that it was wrong. The judge was wrong to go further than the view of the local authority in their email of 18 June 2019 (see below).
ii) The judge erred in failing to carry out a detailed and careful balancing exercise in respect of whether termination or planned caesarean section were in AB's best interests, having regard to the need for powerful evidence of risk to the mother's life or grave risk to the mother's long-term health of continued pregnancy.
iii) The judge erred in failing to have full regard to AB's wishes and feelings and/or her Article 8 right to motherhood.
Discussion and Conclusion
The competing factors and original judgment are discussed between §34-70. In doing so, the Court of Appeal considered that 1) the judge failed to take sufficient account of AB's wishes and feelings in the ultimate balancing exercise 2) the judge failed to make any reference in her ultimate analysis to CD's views about AB's best interests where she found that CD knew AB better than anyone and had her best interests at heart 3) The judge similarly failed to give any weight to the opinion of AB's social worker (who was opposed to the termination).
In conclusion (§71-80), the court recognised that, on any objective view, it may be regarded as being an unwise choice for AB to have her baby, a baby which she will never be able to look after herself and who will be taken away from her. However, AB wants her baby. Those who know her best, namely CD and her social worker, believe it to be in AB's best interests to proceed with the pregnancy (as does the Official Solicitor). Though the judge had the expert evidence of the psychiatrists on the one hand and the views of those who know AB best on the other, the judge did not weigh them up against each other. This was a significant omission.

The judge's conclusion as to what was in AB's best interests was substantially anchored in the medical evidence - which was an attempt (albeit by experts) to assess AB's likely emotional reaction to the two traumatic events (termination or birth & removal). However, the Court of Appeal's view was that, without more, the medical evidence did not convincingly demonstrate the need for such profound and drastic intervention.

Summary by Max Turnell, barrister, 1KBW

Full judgment on BAILII