C v S and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE STEPHEN BROWN,LORD JUSTICE RUSSELL
Judgment Date25 February 1987
Judgment citation (vLex)[1987] EWCA Civ J0225-1
Date25 February 1987
Docket Number87/0151

[1987] EWCA Civ J0225-1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(MRS. JUSTICE HEILBRON)

Royal Courts of Justice.

Before:

The Master of the Rolls

(Sir John Donaldson)

Lord Justice Stephen Brown

and

Lord Justice Russell

87/0151

C.
and
S.

MR. GERARD WRIGHT, Q.C. and MISS TONYA PINSENT (instructed by Messrs. Gamlens, London agents for Messrs. Clifford Poole & Co. of Salford) appeared on behalf of the Appellant.

MR. PETER SHERIDAN, Q.C. and MISS C. HARRY THOMAS (instructed by Messrs. Edwin Coe & Calder Woods, London agents for Messrs. Rigbey Loose & Mills of Birmingham) appeared on behalf of the Respondent.

MR. ALLAN LEVY (instructed by the Official Solicitor) appeared as amicus curiae.

1

Tuesday, 24th February, 1987.

THE MASTER OF THE ROLLS
2

In this appeal the court has been concerned with an application for an injunction to restrain the termination of a pregnancy. The applicants are the putative father, Mr. C, and, if this is permissible in English law, "a child en ventre sa mere" suing by its father. The respondents are Miss S, the mother, and the health authority under whose aegis any termination is likely to take place.

3

An ex parte application for such an injunction was refused both by Mr. Justice Turner and, on appeal, by this court. The application was renewed last week on an inter partes basis before Mrs. Justice Heilbron, who refused it in a judgment given yesterday morning. In view of the possible danger to the health of the mother if this application remained unresolved for longer than was absolutely necessary, we offered to hear the appeal within an hour of the learned judge having completed giving judgment and, with the consent of the parties, have begun to do so.

4

The urgency precludes our giving full reasons for our conclusion that any injunction should be refused but the public interest also requires that, so far as possible, we indicate the basis of this conclusion. Expanded reasons dealing more fully with the arguments of Mr. Gerard Wright, QC, appearing for the appellants, on this first issue will be delivered at a later date.

5

There is more than one way of measuring the duration of a pregnancy, but it is common ground that, however measured, this pregnancy has continued for between 18 and 21 weeks. Shortly after the time when conception must have taken place, Miss S was prescribed and took medicine designed to prevent pregnancy developing. Later she was prescribed and took anti-depressant drugs. Later still, in ignorance that she was pregnant, she was twice subjected to X-ray examination for a chest infection. On one such occasion there was no shielding to prevent damage to the foetus whose presence was unknown. The pregnancy was revealed by a later body scan.

6

All these treatments could damage a foetus and Miss S wishes to terminate the pregnancy. It is common ground that all the steps required by the Abortion Act 1967 as a precondition to such a termination have been taken and, in particular, that in accordance with section 1(1)(a) of the Act it has been certified by two doctors that in their opinion the continuance of the pregnancy would involve risk of injury to the physical or mental health of Miss S greater than if the pregnancy were terminated.

7

What is said by Mr. Wright is that termination of a pregnancy at this stage will necessarily involve the commission of a criminal offence under section 1(1) of the Infant Life (Preservation) Act 1929, the provisions of which are unaffected by the Abortion Act 1967.

8

That section is in the following terms:

"Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life:

Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother."

9

The key words for present purposes are "destroy the life of a child capable of being born alive."

10

We have received affidavit evidence from three doctors, none of whom has examined Miss S. Their evidence is thus necessarily directed at the stage in the development of a foetus which can normally be expected to have been reached by the 18th to 21st week. On this, as one would expect, they are in substantial agreement. At that stage the cardiac muscle is contracting and a primitive circulation is developing. Thus the foetus could be said to demonstrate real and discernible signs of life. On the other hand, the foetus, even if then delivered by hysterotomy, would be incapable ever of breathing either naturally or with the aid of a ventilator. It is not a case of the foetus requiring a stimulus or assistance. It cannot and will never be able to breathe. Where the doctors disagree is as to whether a foetus, at this stage of development, can properly be described as "a child capable of being born alive" within the meaning of the 1929 Act. That essentially depends upon the interpretation of the statute and is a matter for the courts.

11

We have no evidence of the state of the foetus being carried by Miss S, but if it has reached the normal stage of development and so is incapable ever of breathing, it is not in our judgment "a child capable of being born alive" within the meaning of the Act and accordingly the termination of this pregnancy would not constitute an offence under the Infant Life (Preservation) Act 1929.

12

I say no more at this stage because that disposes of the first issue, and Mr. Wright, with the agreement of Mr. Sheridan, wishes us to continue and deal with the other issues.

13

MR. SHERIDAN: My Lord, we have in the time that your Lordships were out of court made inquiries of the second defendants (the hospital) whose stance is that they will not carry out this operation on Thursday or at all if there is any question of appeal to the House of Lords. If we have to wait out time because the House of Lords cannot sit for some time, we will be run out of time. Accordingly, our suggestion is that your Lordships may favour a two-stage approach to these questions: that if there is to be an appeal to the House of Lords on the first—the terminative—matter, that should proceed now if leave is given, and we do our best to see if somebody can hear us over there. That is the only way that we can keep our date for next Thursday or within a period of time which is still, according to this judgment, uncontroversial. Otherwise we simply will not have our operation and the effect of the plaintiffs' application will be as if they had obtained an injunction here.

14

( )

THE MASTER OF THE ROLLS
15

Mr. Sheridan, I am bound to say that all three of us are astonished at the attitude of the regional health authority. It is a fact that some 1,000 appeals are heard by this court every year, of which about 50 go to the House of Lords, either because the House of Lords does not consider them appropriate or because there may be other reasons, but it is a tiny proportion which go to the House of Lords. So in practical...

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