X (A Child)

Where a child lacks capacity to decide whether to terminate a pregnancy, the court’s function is limited. Doctors must independently decide whether the statutory conditions in the Abortion Act 1967 are satisfied. If they are, the court may supply the necessary consent on the child’s behalf by applying the best-interests test.

Very considerable weight must be given to the mother’s clear wishes and feelings. A termination should not ordinarily be compelled against her wishes without powerful evidence of a very grave risk to her life or long-term health. Conversely, where she wishes termination and the statutory conditions are satisfied, compelling continuation of the pregnancy requires very strong justification. A child lacking legal capacity must nevertheless be compliant and accepting of the procedure; mere helpless submission to state authority is insufficient.

The court heard an urgent application concerning a 13-year-old girl, approximately 14 weeks pregnant, who lacked Gillick capacity. The issue was whether termination of the pregnancy could lawfully proceed and whether the court should provide the necessary consent on her behalf.

The court considered the division of responsibility between doctors under the Abortion Act 1967 and the court exercising its inherent jurisdiction. It also considered the girl’s wishes and feelings, the medical and psychological evidence, the likely consequences of continuing the pregnancy, and the possibility that the child would be removed after birth.

1. The court declared that X lacked capacity to decide whether her pregnancy should continue or be terminated. The statutory conditions under section 1 of the Abortion Act 1967 were matters for two registered medical practitioners acting in good faith. The court could neither authorise nor direct an unlawful termination, and its declaration did not relieve clinicians of their statutory duties.

2. Where the doctors were satisfied that section 1 was complied with, the court’s role was to supply the consent required for the procedure, applying the mother’s best interests. The court could proceed on the assumption that the statutory risks identified in section 1 were satisfied if a termination were to occur. It was not required to determine issues reserved to the doctors.

3. The mother’s wishes and feelings were a vitally important factor. Although a child lacking capacity had no strict legal autonomy, the court had to attach very considerable weight to clear wishes about a personal and intimate matter such as pregnancy. Only the most compelling circumstances could justify compelling a mother who wished to continue the pregnancy to undergo termination. Conversely, very strong justification would be required to force continuation where she wanted termination and section 1 was satisfied.

4. The court accepted that its inherent jurisdiction could permit restraint or physical force for medical treatment, but held that only a clear and present risk to the mother’s life or long-term health could justify such compulsion in this context. X therefore had to be both compliant and accepting of the procedure. Mere acquiescence or helpless submission was insufficient.

5. The evidence, including expert evidence, showed that termination was in X’s best interests apart from her wishes and feelings. By the end of the hearing she had consistently expressed a wish for termination. The court accordingly declared that termination would be lawful and in her best interests, subject to compliance with section 1 and to X being compliant and accepting. It made a corresponding declaration concerning reversible contraception, provided that X did not object. The termination subsequently took place, so the Schedule was not required.