Kelly v Kelly
| Jurisdiction | England & Wales |
| Judgment Date | 24 May 1997 |
| Date | 24 May 1997 |
| Court | Court for Divorce and Matrimonial Causes |
Inner House of the Court of Session
Before the Lord Justice-Clerk (Lord Cullen), Lord McCluskey and Lord Wylie
Scots law - abortion - foetus has no independent legal existence or rights
To cause a foetus to be aborted was not a civil wrong that was actionable at the instance of the foetus.
The Second Division of the Inner House of the Court of Session so held, refusing a reclaiming motion by Mr James Kelly against an interlocutor of the Lord Ordinary recalling an interim interdict granted against the estranged wife of the petitioner, Mrs Lynn Falconer or Kelly, from instructing, consenting or submitting to a termination of pregnancy.
Mr Colin Sutherland, QC and Mr Daniel Kelly for the petitioner; Mrs Anne Smith, QC and Mr Brian Fitzpatrick for the respondent.
THE LORD JUSTlCE-CLERK, delivering the opinion of the court, narrated the effect of the Abortion Act 1967 and went on to say that its provisions were not of themselves determinative of the question of whether carrying out an abortion might violate any person's legal rights. The main arguments which Mr Sutherland presented broke down into five points:
1 An action of damages lay at the instance of a child's guardian, including the father of a legitimate child, in respect of wrongful injury sustained by that child while in utero: see Elliot v JoiceySC(1935 SC (HL) 57); Hamilton v Fife Health BoardSC (1993 SC 369) and compare B v Islington Health AuthorityELR ([1991] 1 QB 638); De Martell v Merton and Sutton Health AuthorityELR ([1993] QB 204).
2 Such an injury was actionable at the instance of the child, acting through his or her guardian, and not at the instance of the mother as an individual: see section 2 of the Children (Scotland) Act 1995.
3 If such an injury created an actionable wrong, it had to be a wrong not merely sounding in damages after the event but also a wrong capable of prevention by interdict in advance of the wrong occurring: see Burn-Murdoch Interdict p1.
4 In that connection, the wrong which was capable of being interdicted could not be confined to one which was only capable of causing injury to, and not the death of the child.
5 In regard to what he described as a peripheral issue, there should be no fiction that injury to a child caused ante-natally only occurred in law at the child's birth. The reality was that harm occurred when the foetus suffered damage. It did not occur at birth.
Their Lordships observed that the latter submission ran counter to what had been said by Lord McCluskey in Hamilton.
Their Lordships had no difficulty in accepting the proposition that the remedy of interdict would be available at the instance of a person or his representative to prevent damage being deliberately caused to that person, being damage which, if it occurred, would sound in an award of damages in favour of that person.
Second, if an abortion was an actionable wrong to the foetus as such, their Lordships agreed that the father would be entitled to take
proceedings on behalf of the foetus.
However, the critical question was...
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