Heidi Crowter v Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Mrs Justice Lieven |
| Judgment Date | 23 September 2021 |
| Neutral Citation | [2021] EWHC 2536 (Admin) |
| Docket Number | Case No: CO/2066/2020 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2536 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Singh
and
Mrs Justice Lieven
Case No: CO/2066/2020
The Queen (on the Application of
Mr Jason Coppel QC and Ms Emma McIlveen (instructed by Sinclairs) for the Claimants
Sir James Eadie QC, Ms Julia Smyth and Mr Yaaser Vanderman (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 6 & 7 July 2021
Approved Judgment
Lord Justice Singh and
Introduction
In this claim for judicial review the Claimants seek a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“ HRA”) in respect of section 1(1)(d) of the Abortion Act 1967 (“the 1967 Act”). The Claimants contend that section 1(1)(d) is incompatible with Articles 2, 3, 8 and 14 of the European Convention on Human Rights (“ECHR”), which are all “Convention rights” as set out in Sch. 1 to the HRA. They also seek related declarations.
The essence of the claim is that it is impermissible to differentiate, as the 1967 Act does, between pregnancies where there is a substantial risk that, if born, a child would be “seriously handicapped” (the terminology used in that Act) and those where it would not. The Claimants focus on cases of Down's Syndrome (“DS”) but accept that their arguments would apply to any case where there had been found to be a risk of “serious handicap”.
Permission to bring this claim for judicial review was granted by Morris J on 9 October 2020.
We have had detailed written submissions on behalf of both parties, both before and (in order to address some recent decisions of the Supreme Court) after the hearing. At the hearing we heard from Mr Jason Coppel QC, who appeared with Ms Emma McIlveen, for the Claimants; and from Sir James Eadie QC, who appeared with Ms Julia Smyth and Mr Yaaser Vanderman, for the Defendant. We are grateful to them all for their excellent submissions.
The issues which have given rise to this claim are highly sensitive and sometimes controversial. They generate strong feelings, on all sides of the debate, including sincere differences of view about ethical and religious matters. This Court cannot enter into those controversies; it must decide the case only in accordance with the law.
The Claimants
The First Claimant is a 25 year old woman with DS. She pursued her studies up to NVQ level, is employed and lives in her own flat. She recently got married. She has campaigned to change attitudes towards people with DS and in particular for the removal of what she considers to be the discriminatory provisions of the 1967 Act.
The Second Claimant is the mother of the Third Claimant. During her pregnancy with the Third Claimant, at 35 weeks' gestation, he was identified as being very likely to have DS. She says in her witness statement that she felt that:
“the pressure she was put under, the lack of support offered to her, the guilt she was made to feel for not having undergone screening, the impression conveyed that by going ahead with the pregnancy she would be going against medical advice, the negativity about DS and the fear engendered about having a child with DS all conveyed the message to her that a life with DS was of no value. [A] was born on 6 June 2019, at 36 weeks gestation.”
The Third Claimant is now two years old and has DS. He is developing very well and has met all his developmental milestones.
Down's Syndrome
DS is also known as Trisomy 21. People with DS have a third copy of chromosome 21, which leads to intellectual and physical disability. There can be a range of severity, from mild cases to much more severe. There is an increased risk of stillbirth, which affects 2.6–5.4% of babies with DS. 6.5% of babies with DS will die in their first year. Professor Wyatt (who has filed evidence on behalf of the Claimant) records that, of the babies born alive with DS, 16.6% died in childhood. The majority live to adulthood, with a life expectancy of 50–60 years.
There are screening tests for DS during the early stages of pregnancy.
In relation to DS specifically, in 2018, 56% of DS diagnoses were made antenatally, with 44% of women opting out of screening and/or diagnoses. Of the 1,570 DS diagnoses, there were 722 live births compared to 799 terminations of pregnancy.
The domestic legislation
Abortion is a criminal offence in England and Wales under the Offences Against the Person Act 1861 (“the 1861 Act”). Section 58 makes it a criminal offence to administer drugs or use instruments to procure an abortion; and section 59 makes it a criminal offence to supply or procure drugs or any instrument for the purpose of procuring an abortion. Both offences carry a maximum sentence of life imprisonment.
As originally introduced, section 1(1) of the 1967 Act provided as follows:
“Medical termination of pregnancy
(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
(a) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated; or
(b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. …”
As originally enacted, the 1967 Act did not contain any time limit for abortions. However, it was subject to the provisions of the Infant Life Preservation Act 1929 (“the 1929 Act”). Section 1 of the 1929 Act provides, and at the material time provided, as follows:
“Punishment for child destruction
(1) 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.
(2) For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive.”
The 1967 Act was amended in a number of respects by section 37 of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”). After debate, Parliament decided to lower the upper time limit from 28 weeks to 24 weeks generally but to remove the upper time limit for abortions on grounds of foetal abnormality. Section 5 of the 1967 Act was amended to provide that no offence would be committed under the 1929 Act by a registered medical practitioner who terminated a pregnancy in accordance with the provisions of the 1967 Act.
As now in force, s.1(1) of the 1967 Act provides as follows:
“Medical termination of pregnancy
(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.”
Guidance on the Abortion Act 1967
In 2014 the Department of Health and Social Care (“DHSC”) published ‘Guidance in relation to the Requirements of the Abortion Act 1967’ for those responsible for commissioning, providing and managing health service provision. This does not give specific guidance in relation to section 1(1)(d) of the 1967 Act and there is no other guidance produced by the Department on that issue. Whether an abortion should be carried out under section 1(1)(d) is a matter between the responsible clinicians (to agree that in their good faith opinion the grounds for an abortion are met), the pregnant patient and, where relevant, her family.
The Royal College of Obstetricians and Gynaecologists (“RCOG”), commissioned by the DHSC, has issued detailed guidance for clinicians: ‘Termination of Pregnancy for Foetal Abnormality in England, Scotland and Wales’ (May 2010) (“the RCOG Guidance”).
The most relevant parts of the RCOG Guidance are as follows:
“Substantial risk
There is no legal definition of what comprises a ‘substantial’ risk. Whether a risk is substantial depends upon factors such as the nature and severity of the condition and the timing of diagnosis, as well as the likelihood of the event occurring. It has been argued that, since neither substantial risk...
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