Kelly v Kelly
| Jurisdiction | Scotland |
| Judgment Date | 24 May 1997 |
| Date | 24 May 1997 |
| Docket Number | No. 38. |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Lord Eassie.
Children and young personsParent and childInterdictInterim interdictHusband seeking interdict from estranged wife having abortionWhether foetus legal personaWhether interdict appropriateWhether abortion a civil wrong actionable by father on behalf of the childAbortion Act 1967 (cap 87), sec 1(1)1
Section 1(1) of the Abortion Act 1967 enacts, inter alia, that: 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.
A husband sought to interdict his estranged wife from instructing, consenting or submitting to a termination of pregnancy. He also sought to interdict the hospital at which the proposed abortion was due to be undergone. Two doctors certified that the terms of sec 1(1)(a) of the 1967 Act had been satisfied in relation to the wife. Interim interdict was granted by the Lord Ordinary (Lord Eassie) after a hearing ex parte, but was later recalled by the Lord Ordinary after a full hearing of parties. The husband reclaimed.
Held (1) that the remedy of interdict would be available at the instance of a person or that person's 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; (2) that if an abortion was an actionable wrong to the foetus as such, the father would be entitled to take proceedings on behalf of the foetus, but the critical question was whether the abortion was, or could be, an actionable wrong; and (3) that while a child had a right of action in respect of injury caused by actions before his or her birth, an injury to the foetus was not actionable before the birth, Scots law conferring no right on a foetus to continue to exist in the mother's womb and the court could not be invoked to vindicate such a right; and reclaiming motion refused.
Observed (1) that to recognise a right of the foetus to continue in the womb would inevitably create a conflict with the policy of the 1967 Act to enable women to exercise their right to terminate the pregnancy in accordance with its terms; and (2) that if the foetus had a right to its own protection which could be vindicated on its behalf by interdict there would be no reason why it should be confined to cases of abortion.
James Kelly brought an action of interdict in the Court of Session against his estranged wife, Mrs Lynn Falconer or Kelly as first-named defender and the Royal Infirmary of Edinburgh NHS Trust, as second-named defenders. In the action the pursuer sought interdict against the carrying out of a termination under sec 1(1) of the Abortion Act 1967, of the first defender's pregnancy.
The cause called before the Lord Ordinary (Eassie) on ex partestatements. The Lord Ordinary granted interim interdict.
The first defender thereafter entered the process and the cause called before the Lord Ordinary (Eassie) for a hearing on an interim interdict motion.
At advising, on 21 May 1997, the Lord Ordinary recalled the grant of interim interdict previously made.
The pursuer reclaimed.
Cases referred to:
B v. Islington Health AuthorityELR [1991] 1 QB 638
Borowski v. Att Gen for Canada (1987) 39 DLR (4th) 731
C v. SELR [1988] QB 135
Dehler v. Ottawa Civic HospitalUNK (1979) 101 DLR (3d) 686
De Martell v. Merton & Sutton Health AuthorityELR[1993] QB 204
Elliot v. JoiceySC 1935 SC (H.L.) 57
F (In Utero), Re [1988] FCR 529
Hamilton v. Fife Health BoardSC 1993 SC 369
Medhurst v. Medhurst (1984) 9 DLR (4th) 252
Paton v. British Pregnancy Advisory Service TrusteesELR[1979] 1 QB 276
Paton v. United KingdomHRC (1980) 3 EHRR 408
Roe v. Wade 410 US 113 (1973)
Tremblay v. Daigle (1989) 62 DLR (4th) 634
Textbooks referred to:
Burn-Murdoch, Interdict, p 1
Gordon, Criminal Law (2nd ed), para 2801
The reclaiming motion called before the Second Division, comprising the Lord Justice-Clerk (Cullen), Lord McCluskey and Lord Wylie for a hearing.
At advising, on 24 May 1997, the opinion of the court was delivered by the Lord Justice-Clerk (Cullen).
Opinion of the CourtThe pursuer in this action seeks to have his estranged wife, the first defender, interdicted from instructing, consenting or submitting to a termination of pregnancy. He also seeks to interdict the Royal Infirmary of Edinburgh NHS Trust, the second defenders, by its servants or agents from carrying out any termination of that pregnancy. On 21 May 1997 the Lord Ordinary recalled the grant of interim interdict in terms of the conclusions which he had made after a hearing ex parte on 15 May. The pursuer's reclaiming motion against the recall of interim interdict was heard by this court on 23 May, when submissions were made on behalf of the pursuer and the first defender. The second defenders have not entered the process.
Where a court in Scotland requires to consider whether interim interdict should be granted or recalled, the first question is whether the party seeking that order has set forth a prima facie case. If so, the next question is whether the balance of convenience favours the granting of the order or not. The first of these questions does not normally make it necessary for the court to resolve a point on which the outcome of the case depends. However, the present case is unusual in a number of respects: the arguments in regard to interim interdict do not depend on questions of fact which have yet to be answered but upon questions of law which are fundamental to a consideration of the pursuer's case. Further the constraints of time are such that a decision in regard to interim interdict will obviously determine the outcome of the case. If interim interdict is recalled, the first defender will be able to exercise her right to terminate the pregnancy in accordance with the Abortion Act 1967. If interim interdict is to stand, abortion is ruled out and the first defender's pregnancy will take its course.
Before coming to the main arguments which were presented in the reclaiming motion we will refer briefly to the procedure under the Abortion Act 1967. Section 1 of the Act...
To continue reading
Request your trial
-
Rebecca J. Cook & Susannah Howard, Accommodating Women's Differences Under the Women's Anti-discrimination Convention
...Italy, 1988); Judgment of Feb. 15, 1978, Dec. No. 157/77, 3 Yugoslav Law 65 (Constitutional Court of Yugoslavia, 1979); Kelly v. Kelly, (1997) S.C. 285 (Court of Session, Scotland). 235 See, e.g., Paton v. United Kingdom, 3 E.H.R.R. 408 (1980) (Eur. Comm'n H.R.) (rejecting a father's attemp......