Appeals Court judgement reveals “significant omissions” in forced abortion ruling

12 July 2019


Royal Courts of Justice 2 main article image
The appeals judges detailed several errors in the orignal judgement.

The three judges who overturned a Court order to forcibly abort the 22 week baby of a woman with learning difficulties have revealed their reasons for doing so.

Lord Justice McCombe, Lady Justice King and Lord Justice Peter Jackson overturned the decision made by Mrs Justice Lieven on 24th June, but the judgement, written by Lady Justice King and agreed to by the others, was released yesterday.  

Lady Justice King concludes that while Justice Lieven “made her decision having heard the oral evidence and having written a careful and thoughtful judgment produced under considerable pressure of time”, she nonetheless erred in several respects.

Ignoring the wishes of the woman

First, the Judge did not give due consideration to the feelings of the woman (called AB in the judgement). The judgement says: “Whilst it is clear that the judge did not apply any “automatic discount” to AB’s view, in my judgement she failed to take sufficient account of AB’s wishes and feelings in the ultimate balancing exercise. The fact that they might in the end be outweighed by other factors does not alter the fact that this was a significant omission.”

This is reiterated in the Appeals Court conclusion, which states: “The judge placed emphasis on the fact that AB’s wishes were not clear and were not clearly expressed. She was entitled to do that but the fact remains that AB’s feelings were, as for any person, learning disabled or not, uniquely her own and are not open to the same critique based upon cognitive or expressive ability. AB’s feelings were important and should have been factored into the balancing exercise alongside consideration of her wishes.”

And her mother...

Secondly, the views of CD (AB’s mother) were not properly considered. Judge Lieven noted CD’s strong opposition to abortion and her concern that “AB would be very upset by having a termination and not know what had happened to the baby,” but “nowhere did she thereafter weigh [her views] in the balance when considering what outcome was in AB’s best interests.” Lady King said: “The judge, in my judgement, was in error in failing to make any reference in her ultimate analysis to CD’s views about AB’s best interests when, as the judge found, she knew AB better than anyone and had her best interests at heart.”

...and social worker and solicitor

The judgement goes on: “The judge similarly failed to give any weight to the opinion of AB’s social worker, Ms T. Ms T, whilst not a psychiatrist, is an expert in her field, namely social work, and has known AB and been her social worker since July 2017. Unlike CD, Ms T also has the benefit of professional objectivity. She said that, in her view, it would be in AB’s best interests to have her baby.”

“Finally, the Official Solicitor’s representative, it must be recalled, spent a considerable amount of time with AB and, the Official Solicitor having had in addition, the benefit of considering all the expert evidence, submitted on behalf of AB that the termination should not take place.”

Lady King sums this up in her conclusion when she writes: “In many of the passages set out above, and in particular in her conclusion at [62], the judge made no mention of AB’s wishes and feelings or of the views of CD, the social worker or the Official Solicitor This was, in my opinion a significant omission.”

Insufficient evidence

The report also notes that Judge Lieven overstepped what the evidence supported in saying that AB would lose her home with her mother, by assuming that CD would be granted custody of the baby.

The three judges also explored whether termination or giving birth would be the most traumatic outcome for AB. While the three medical experts agreed that an abortion would be the best outcome, ultimately the view they expressed was only “on balance”, and Lady King concluded that “In my judgement, that medical evidence, without more, did not in itself convincingly demonstrate the need for such profound intervention.”

The judgement ends: “However, in my judgement, [Justice Lieven] clearly gave inadequate weight to the non-medical factors in the case, while the views expressed by the doctors were necessarily significantly predicated upon imponderables. In the end, the evidence taken as a whole was simply not sufficient to justify the profound invasion of AB’s rights represented by the non-consensual termination of this advanced pregnancy.”

What else does the judgement reveal?

The judgement gives new details of just what AB would have been subjected to in having a non-consensual late-term abortion. It says:

“There are few units specialising in late surgical terminations and the plan put before the judge necessitated AB being taken to one of those units. The complexity of the procedure is demonstrated by the fact that the whole process was to take place over three days; the first day was for pre-operative assessment which was in fact being carried out whilst the parties were in court at the hearing of this appeal; the following day AB would be brought back to hospital for the first of a two-part procedure which would be carried out over the following two days. Each part would necessitate a general anaesthetic.”

Lady King says that this would be “on any view a highly invasive and, for a woman lacking capacity, bewildering procedure.”  (The procedure would in fact probably involve piecemeal removal of the baby following a lethal injection to the heart;  however, this was not described.)

Pro-choice?

The disturbing logic of Judge Lieven’s original ruling was also revealed. Putting aside the usual rhetoric of abortion being about a woman’s choice, she seemed to say that the abortion would be less upsetting precisely because AB couldn’t consent to it.  

“It is very difficult to predict the emotional/psychological risks to AB from the termination. She undoubtedly knows she is pregnant and understands that she will give birth to a baby. She may forget quickly, as Professor S thought might happen, she may not. But for AB the impact of having a termination under a general anaesthetic would be the same as a miscarriage, that might be very upsetting, but she will not go through the emotional, philosophical and moral dilemmas of a termination as might some women who were making a “choice”. There is a real danger in this case of everyone imposing their own moral or philosophical views on termination onto a woman who operates with a mental age of about a 6-9 year old. Concepts of choice, guilt and cultural norms are not ones which I suspect mean anything to AB.”

While this may be true of someone lacking certain capacities, the very disturbing nature of forced abortions and the lack of concern for the bodily integrity and existing motherhood of very vulnerable women is ignored by such statements.