Re: AB (Termination of Pregnancy) [2019] EWCA Civ 1215: When a fine balance of uncertainties is not enough....

Parishil Patel QC, Victoria Butler-Cole QC and Fiona Paterson of 39 Essex Chambers appear for the appellant and respondents in landmark Court of Appeal termination case.

The Court of Appeal has handed down judgment today reversing a declaration by the Court of Protection that it was in a learning-disabled woman's best interests to undergo a termination of her pregnancy at twenty-three weeks.

The facts of AB are tragic and emotive in equal measure. Learning disabled and twenty -two weeks pregnant, the Court of Protection (CoP) had found it was in AB's best interests to undergo a late termination of her pregnancy. Two treating psychiatrists believed that AB would be traumatised by the almost inevitable removal of her baby and risked developing post-partum psychosis, if the pregnancy continued to term. Accordingly, the Trust had applied for and obtained declarations that it was in AB's best interests to undergo a termination.

An appeal, by AB's adoptive mother, CD (supported by the Official Solicitor) was convened on two hours' notice before the Court of Appeal, less than twenty- four hours before the termination was due to be performed. The Court of Appeal described Mrs Justice Lieven's task of deciding whether AB, should undergo the termination as "unenviable." However, despite their sympathy for the judge, the Court of Appeal held that she had not balanced AB's best interests properly and over-turned the declarations, she had made.

The Court of Appeal recognised that it should "not take into account the interests of the foetus but only those of the mother "…[but that did] not mean that [it] should not be cognisant that the order sought [by the Trust would]  permit a irreversible, invasive medical intervention, leading to the termination of an otherwise viable pregnancy. Accordingly, such an order should be made only upon clear evidence and … fine balance of uncertainties [was] not enough…"

AB's treating team believed that the test s1(1)(a) of the Abortion Act 1967 was met ie that the pregnancy had not exceeded its twenty-fourth week and that its continuance would involve risk of injury to the physical or mental health of AB. Consequently, the Court's role "was to consider, by way of an evaluation of all of the material factors, whether it would be in the best interests of AB to provide the consent necessary in order for the proposed termination to take place. It [followed] that, whilst the Court's task in identifying the best interests of AB may overlap with the task of the doctors in applying the Abortion Act 1967, they are not one and the same: Re X (A Child) [2014] EWHC 1871."

The CoP had heard evidence from AB's treating obstetrician, perinatal psychiatrist and learning disabilities psychiatrist, all of whom believed, that it was in her best interests to undergo a termination. However, they accepted that there could never be complete certainty about how AB would respond either to a termination or a caesarean section, followed by a likely separation from the baby. All the parties agreed that AB could not look after a baby, but her adoptive mother, CD, a retired midwife had indicated that she wanted to care for AB's child. At the time of the hearing, there was considerable uncertainty about how realistic that was, given that CD was the subject of both an investigation by the police and the Local Authority regarding the circumstances in which AB had become pregnant. She had also handed over AB's care (without any warning) to the NHS Trust at an antenatal appointment, but by the time of the COP hearing had indicated that she was willing to have her back.

AB's treating team had opined  that they considered it would be unsafe for AB to live in the same household as the baby, so it appeared inevitable that if the pregnancy proceeded, AB would either lose her home (if CD was allowed to keep the baby) or the baby, if he/she was taken into care. However, both CD and AB's social worker still believed that it was in her best interests to have the child.

What about AB's views? The Court heard evidence from all the witnesses which suggested "that AB was, and is, at the very least 'engaged' with the pregnancy and [that she had] indicated on occasions that she likes the idea of having a baby."

Reviewing Lieven J's analysis of AB's best interests, Lady Justice King acknowledged that "however one looks at it, carrying out a termination absent a woman's consent is a most profound invasion of her Article 8 rights, albeit that the interference will be legitimate and proportionate if the procedure is in her best interests."

Whilst AB had been brought up in a community whose religious and cultural beliefs were strongly opposed to termination, King LJ held that as she had never had capacity those views should not be imported into a best interests analysis. That would amount to speculation as AB may have rebelled "against the tenets of her community by the time she reached her twenties."

However, the Court of Appeal still held that Lieven J had ultimately fallen into error as she had failed to take sufficient account of AB's wishes and feelings in the ultimate balancing exercise of her best interests.  "[The] fact they might in the end be outweighed by other factors [did]  not alter the fact that this was a significant omission." That error was compounded by Lieven J's apparent further failure to give sufficient weight to the views of CD and AB's social worker regarding her best interests. Even thought the treating psychiatrists had carried out "lengthy, caring and careful assessments" of AB, the Court of Appeal considered that the judge had failed to weigh their views properly against the views of those who knew AB best. "The medical evidence alone, did not convincingly demonstrate the need for such profound intervention as a termination of a pregnancy."  Accordingly, they held that the declaration that it was in AB's best interests to undergo a termination should be overturned.

Finally, the Court of Appeal advised that applications in termination cases should be treated with the utmost urgency by treating clinicians and court listing officers. Where there was any concern that an application may become necessary, the treating Trust should make an application, obtain a listing (for a final hearing) and then withdraw the application, if a consensus with the Official Solicitor/patient's family was reached.

This is an unusually sad case which the Court of Appeal had to consider at great speed against a background of considerable press interest; both national and international. The Court announced its decision very shortly after submissions were concluded. The judgment followed ten days later. Although arguably very fact specific, it still provides helpful steers in relation to best interests and the management of applications to the CoP concerning terminations.

See here for the full judgment.