R A (by her litigation friend B) and Another v The Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | Mr Justice King |
| Judgment Date | 08 May 2014 |
| Neutral Citation | [2014] EWHC 1364 (Admin) |
| Docket Number | Case No: CO/656/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 May 2014 |
[2014] EWHC 1364 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT MANCHESTER
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice King
Case No: CO/656/2013
Mr Stephen Cragg QC and Dr Austen Morgan (instructed by Maxwell Gillott Solicitors) for the Claimants
Mr Jason Coppel QC (instructed by the Treasury Solicitor's Department) for the Defendant
Hearing dates: 10 th and 11 th July 2013 plus further written submissions of 8 th August, 11 th November and 28 th November 2013.
These proceedings came before me as a rolled up hearing. I grant permission and proceed to give judgment on the substantive claim.
This claim concerns the lawfulness of the extent of and limitations on the provision of abortion services by the National Heath Service ('NHS') in England to a person present in England but ordinarily resident in Northern Ireland. There are two claimants in this case: A, who is a minor, and B who is her mother. For ease of reading, A is referred to throughout as the claimant and B is referred to as her mother or litigation friend.
The claim does not however involve any challenge to the law of Northern Ireland on abortion or the extent of the provision of abortion services in Northern Ireland. The clamant does not seek to challenge the law of Northern Ireland as inadequate or contrary to her rights.
Nor does the claim involve a complaint that the claimant was not able to access abortion services in England as such. She was able to access such services, albeit they were those provided privately by an independent clinic, outside the NHS for a fee, and no obstacles were put in her way in this regard.
The real complaint here is that the claimant was unable to access in England abortion services free of charge.
The law on abortion as between the two jurisdictions
The law on abortion is stricter in Northern Ireland than it is in England and Wales. The Abortion Act 1967 ('the 1967 Act'), which liberalised the position in England and Wales when enacted, was expressly not extended to Northern Ireland (see section 7(3)). The liberalisation in the 1967 Act took effect by specifying the circumstances in which a person was not to be guilty of an offence 'under the law relating to abortion' when a 'pregnancy is terminated by a registered practitioner'. I accept the point emphasised by Mr Cragg QC on the part of the claimant that the key concept is termination by a registered practitioner. Section 1(1) of the 1967 Act provides as far is material:
'(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.'
The availability of lawful abortion in Northern Ireland is still governed by the legal framework equivalent to that which prevailed in England and Wales before the 1967 Act was passed, that is to say the statutory provisions of ss. 58 and 59 of the Offences Against the Persons Act 1861 creating offences relating to attempts to procure abortion (respectively, ' administering drugs or using instruments to procure abortion' and ' procuring drugs etc. to cause abortion') and s.25(1) of the Criminal Justice Act (Northern Ireland) 1945 which replicated the provisions applicable in England of section 1(1) of the Infant Life Preservation Act 1929 (creating a new offence of child destruction to cover a loophole between abortion and infanticide), and the common law, in particular the courts' interpretation of the defence recognised at common law and held to be incorporated into the 1861 Act offences (as well as expressly provided for by the 1929 and 1945 Acts) where the act was done for the purpose of preserving the life of the mother. (See R v Bourne [1939] 1 KB 687)
The effect of the law in Northern Ireland is summarised in the judgments of the Court of Appeal in Northern Ireland in Family Planning Association of Northern Ireland v Minister For Health and Social Services and Public Safety [2004] NICA 37, in particular at paragraph 12:
'Operations in Northern Ireland for the termination of pregnancies are unlawful unless performed in good faith for the purpose of preserving the life of the mother;
• The 'life' of the mother in this context has been interpreted by the courts as including her physical and mental health;
• A termination will therefore be lawful where the continuance of the pregnancy threatens the life of the mother, or would adversely affect her mental or physical health;
• The adverse effect on her mental or physical health must be a 'real and serious' one, and must also be 'permanent or long term';
• In most cases the risk of the adverse effect occurring would need to be a probability, but a possibility might be regarded as sufficient if the imminent death of the mother was the potentially adverse effect;
• It will always be a question of fact and degree whether the perceived effect of a non-termination is sufficiently grave to warrant terminating the pregnancy in a particular case.'
Not surprisingly, the differences in the legal position between the two jurisdictions, have led to a steady stream of pregnant women ordinarily resident in Northern Ireland travelling to England to access abortion services which would not be available to them in Northern Ireland. The statistics for 2011 (the latest available) show that notifications to the Department of Health indicate that there were 6,151 abortions for non-residents carried out in England in hospitals and clinics of which 1,007 were residents of Northern Ireland (some 4,149 were residents of the Irish Republic).
The background to this claim
The claimant at the material time was a 15 year old girl. She is ordinarily resident in Northern Ireland. In October 2012 she with her mother, her litigation friend, travelled to England to have her pregnancy terminated at an independent clinic (the Marie Stopes clinic) in Manchester at a cost of £600.00 plus travel costs of some £300.00, of which she (or rather her mother) had herself to contribute one half, the other half being provided by an Northern Ireland voluntary organisation (the Abortion Network) which had advised and assisted her in the process. They had advised her (accurately) that in their experience women who travel from Northern Ireland to England are not permitted to have a termination on the NHS and therefore have to make their own private arrangements.
The witness statement of the claimant's mother sets out the background to the claimant being denied a termination in Northern Ireland by the medical authorities and to her having to travel to England if she were to obtain a lawful abortion. She speaks of finding ' the whole experience and stress of not knowing whether it was going to be possible to have the procedure and raise the funds was harrowing and had a serious impact on (A) and myself. Had we known from the outset that we would be able to travel to the UK and that (A) could have the procedure free on the NHS, this would have significantly reduced the stress and trauma she experienced'.
That witness statement continues in these terms:
'Having now had the opportunity of taking legal advice in England, I understand that publicly funded health care services are intended to be free at the point of use for all UK residents. I feel my daughter has been treated most unfairly, because when she was required treatment in another part of the United Kingdom, she did not get it, and was offered no assistance by the state health care system. If my daughter had had some other health condition, which necessitated her travelling to another part of the UK for treatment I believe that no obstacles would been put in her way and that every effort would have been made to ensure that she was treated in an appropriate NHS facility and had assistance with travel costs.'
The emphasis is the emphasis of the court because the highlighted sentence reflects a misunderstanding of the legal position in England as regards access to abortion services on the NHS at the material time. Unless the claimant were an emergency case, she in all likelihood would have been denied treatment on the NHS (it appears she did not in fact seek out such NHS facility) but not because she was seeking an abortion as such, nor because she was a Northern Ireland resident as such, but because she was not ordinarily (or rather 'usually') resident in England (or more narrowly not ordinarily/usually resident in the area of the material local Primary Care Trust in Greater Manchester to which she went), which 'ordinary/usual residence' is, as explained below, the primary basis upon which the...
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