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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Crowter & Ors, R (On the Application Of) v Secretary of State for Health And Social Care [2021] EWHC 2536 (Admin) (23 September 2021) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2021/2536.html Cite as: [2022] WLR 2513, (2021) 182 BMLR 1, [2021] ACD 125, [2021] EWHC 2536 (Admin), [2021] WLR(D) 495, 182 BMLR 1, [2022] 1 WLR 2513 |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
MRS JUSTICE LIEVEN
____________________
The Queen (on the Application of (1) HEIDI ![]() (2) ![]() (3) A (by his mother and litigation friend, Maire Lea-Wilson)) |
Claimants |
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-and- |
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SECRETARY OF STATE FOR ![]() ![]() |
Defendant |
____________________
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
____________________
Crown Copyright ©
Lord Justice Singh and Mrs Justice Lieven:
Introduction
The Claimants
"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."
Down's Syndrome
The domestic legislation
"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 mentalhealth
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. …"
"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."
"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 mentalhealth
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 mentalhealth
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
"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 nor serious handicap is defined, each can be interpreted on a largely subjective basis. As a result, it would be difficult if not impossible to demonstrate that a decision to terminate the pregnancy was not taken in good faith.
It has also been suggested that, if the doctor's mistake is factual, for example, if they thought the risk was 50% when it was 25%, 'their honest beliefs' (good faith) will protect them under the Act. The same commentator suggests that, if their mistake is not factual but rather whether the 25% is a 'substantial' risk, their 'good faith' will not protect them under the Act if a court takes the view that that is a misinterpretation of the Act. They will, simply, have misdirected themselves in law.
Serious handicap
The law does not define serious handicap. The view has been expressed that 'provided the condition is not trivial, or readily correctable, or will merely lead to the child being disadvantaged, the law will allow doctors scope for determining the seriousness of a condition. At a minimum it is suggested a "serious handicap" would require the child to have physical or mental disability which would cause significant suffering or long-term impairment of their ability to function in society. The most serious genetic or other conditions which manifest themselves at birth or almost immediately thereafter are by and large likely to fall within the scope of Section 1(1)(d)'.
The authorities dealt with a case in which a curate of the Church of England sought judicial review of a failure to prosecute after an abortion was carried out on a foetus with a cleft palate. The challenge was adjourned when the local police agreed to reinvestigate the case but this resulted in a decision from the West Mercia Chief Crown Prosecutor as follows:
'I consider that both doctors concluded that there was a substantial risk of abnormalities that would amount to the child being seriously handicapped. The evidence shows that these two doctors did form this opinion and formed it in good faith. In these circumstances, I have decided there was insufficient evidence for a realistic prospect of conviction and there should be no charges against either of the doctors.'
This falls short of saying that a cleft palate constitutes a serious handicap, the test being that the doctors formed the view in good faith that there was a substantial risk of serious handicap.
The 1996 RCOG report drew attention to the WorldHealth
Organization's definition of disability: 'any restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range considered normal for a human being'. It quoted a scale of severity of disability and those with disability at the higher points of the scale would be considered by most people to be seriously handicapped. These include the following two categories:
● assisted performance: the need for a helping hand; that is, the individual can perform the activity or sustain the behaviour, whether augmented by aids or not, only with some assistance from another person
● dependent performance: complete dependence on the presence of another person; that is, the individual can perform the activity or sustain the behaviour but only when someone is with him or her most of the time.
The 1996 RCOG report also provided helpful guidance on the scaling of severity, noting that both the size of risk and the gravity of the abnormality are important. Our advice is that doctors should continue to weigh up the following factors when reaching a decision:
● the potential for effective treatment, either in utero or after birth
● on the part of the child, the probable degree of self-awareness and of ability to communicate with others
● the suffering that would be experienced
● the probability of being able to live alone and to be self-supportive as an adult
● on the part of society, the extent to which actions performed by individuals without disability that are essential forhealth
would have to be provided by others.
Doctors will be better able to demonstrate that their opinions were formed in good faith if they have sought advice from appropriate specialists. These may not be obstetricians but may be specialists in the management of the particular condition. For example, in the case of cleft palate, the woman should be referred to the surgical team that specialises in its treatment. In other cases, the appropriate specialist may be a neonatologist, paediatrician or neurologist. If it is their opinion on which reliance is based, it may be appropriate for them to provide one of the signatures under the Act. In complex cases, it may be appropriate to hold a multidisciplinary team meeting.
A further issue unresolved by the law concerns the time when the handicap will manifest itself. Children born with a correctable congenital abnormality, such as diaphragmatic hernia, may be deemed to be seriously handicapped until they receive effective surgical treatment; others suffering from a genetic condition, such as Huntington's disease, are unlikely to manifest the condition until later in life.
The Working Party sees little reason to change the current law regarding the definition of serious abnormality and concludes that it would be unrealistic to produce a definitive list of conditions that constitute serious handicap. Precise definition is impractical for two reasons. Firstly, sufficiently advanced diagnostic techniques capable of accurately defining abnormalities or of predicting the seriousness of outcomes are not currently available. Secondly, consequences of an abnormality are difficult to predict, not only for the foetus in terms of viability or residual disability but also in relation to the impact in childhood as well as on the family into which the child would be born."
"… provided the condition is not trivial, or readily correctable, or will merely lead to the child being disadvantaged, the law will allow doctors scope for determining the seriousness of a condition. At a minimum it is suggested a 'serious handicap' would require the child to have physical or mental disability which would cause significant suffering or long-term impairment of their ability to function in society."
- The potential for effective treatment, either in utero or after birth;
- On the part of the child, the probable degree of self-awareness and of ability to communicate with others;
- The suffering that would be experienced; and,
- The probability of being able to live alone and to be self-supportive as an adult.
Evidence on late abortions
"less than half of the congenital anomalies could be classified as an FFA [Fatal Foetal Anomaly]; however, all were fatal. This acknowledges the complexity of these cases. In isolation, the congenital anomaly may not be fatal, but combined as multiorgan system anomalies, it is. Knowledge is required to inform clinical practice and counselling of parents who receive such a diagnosis."
Provision for "differential" terminations in other European States
Parliamentary consideration of amendment of section 1(1)(d) of the Abortion Act
The decision of the Supreme Court in NIHRC
"It is more difficult to articulate the legitimate aim. It cannot be protecting the rights and freedoms of others, because the unborn are not the holders of rights under the Convention (Vo v France (2004) 40 EHRR 12) or under domestic law (In re MB (Medical Treatment) [1997] 2 FLR 426). But the community undoubtedly does have a moral interest in protecting the life,health
and welfare of the unborn - it is that interest which underlies many areas of the law, including the regulation of assisted reproduction, and of the practice of midwifery, as well as of the termination of pregnancy. But the community also has an interest in protecting the life,
health
and welfare of the pregnant woman - that interest also underlies the regulation of assisted reproduction, of midwifery and of the termination of pregnancy. And pregnant women are undoubtedly rights-holders under the both the Convention and domestic law with autonomy as well as
health
and welfare rights. The question, therefore, is how the balance is to be struck between the two."
UN Convention on the Rights of Persons with Disabilities 2006 ("UNCRPD")
"1. States Parties recognise that all persons are equal before and under the law and are entitled without discrimination to the equal protection and benefit of the law.
2. States parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds…."
Convention on the Elimination of Discrimination Against Women 1979 ("CEDAW")
"A human rights-based approach to sexual and reproductivehealth
acknowledges that women's decisions on their own bodies are personal and private, and places the autonomy of the woman at the centre of policy and law-making related to sexual and reproductive
health
services, including abortion care. States should adopt effective measures to enable women, including women with disabilities, to make autonomous decisions about their sexual and reproductive
health
and should ensure that women have access to evidence-based and unbiased information in this regard. It is also critical that these decisions are made freely and that all women, including women with disabilities, are protected against forced abortion, contraception or sterilization against their will or without their informed consent. Women should neither be stigmatized for voluntarily undergoing abortion nor forced to undergo an abortion or sterilization against their will or without their informed consent.
States parties should fulfil their obligations under articles 5 and 8 of CEDAW and CRPD Conventions respectively by addressing the root causes of discrimination against women and persons with disabilities. This includes challenging discriminatory attitudes and fostering respect for the rights and dignity of persons with disabilities, in particular women with disabilities, as well as providing support to parents of children with disabilities in this regard.Health
policies and abortion laws that perpetuate deep-rooted stereotypes and stigma undermine women's reproductive autonomy and choice, and they should be repealed because they are discriminatory.
In order to respect gender equality and disability rights, in accordance with the CEDAW and CRPD Conventions, States parties should decriminalize abortion in all circumstances and legalize it in a manner that fully respects the autonomy of women, including women with disabilities. In all efforts to implement their obligations regarding sexual and reproductivehealth
and rights, including access to safe and legal abortion, the Committees call upon States parties to take a human rights based approach that safeguards the reproductive choice and autonomy of all women, including women with disabilities."
Article 2 European Convention on Human Rights
"1. Everyone's right to life shall be protected by law. …
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection."
"80. It follows from this recapitulation of the case law that in the circumstances examined to date by the Convention institutions—that is, in the various laws on abortion—the unborn child is not regarded as a 'person' directly protected by Art.2 of the Convention and that if the unborn do have a 'right' to 'life', it is implicitly limited by the mother's rights and interests. The Convention institutions have not, however, ruled out the possibility that in certain circumstances safeguards may be extended to the unborn child. That is what appears to have been contemplated by the Commission in considering that 'Article 8 § 1 cannot be interpreted as meaning that pregnancy and its termination are, as a principle, solely a matter of the private life of the mother' and by the Court in the above-mentioned Boso decision. It is also clear from an examination of these cases that the issue has always been determined by weighing up various, and sometimes conflicting, rights or freedoms claimed by a woman, a mother or a father in relation to one another or vis-à-vis an unborn child.
…
82. As is apparent from the above recapitulation of the case law, the interpretation of Art.2 in this connection has been informed by a clear desire to strike a balance, and the Convention institutions' position in relation to the legal, medical, philosophical, ethical or religious dimensions of defining the human being has taken into account the various approaches to the matter at national level. This has been reflected in the consideration given to the diversity of views on the point at which life begins, of legal cultures and of national standards of protection, and the state has been left with considerable discretion in the matter, as the opinion of the European Group on Ethics at Community level appositely puts it:
'the … Community authorities have to address these ethical questions taking into account the moral and philosophical differences, reflected by the extreme diversity of legal rules applicable to human embryo research … It is not only legally difficult to seek harmonisation of national laws at Community level, but because of lack of consensus, it would be inappropriate to impose one exclusive moral code.'
It follows that the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that states should enjoy in this sphere, notwithstanding an evolutive interpretation of the Convention, a 'living instrument which must be interpreted in the light of present-day conditions'. The reasons for that conclusion are, first, that the issue of such protection has not been resolved within the majority of the Contracting States themselves, in France in particular, where it is the subject of debate and, secondly, that there is no European consensus on the scientific and legal definition of the beginning of life."
"186. The Court has already held that the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that states should enjoy in this sphere, notwithstanding an evolutive interpretation of the Convention, a 'living instrument which must be interpreted in the light of present-day conditions'. The reasons for that conclusion are that the issue of such protection has not been resolved within the majority of the contracting states themselves and that there is no European consensus on the scientific and legal definition of the beginning of life. However, the Court considers that there is indeed a consensus amongst a substantial majority of the contracting states of the Council of Europe towards allowing abortion and that most contracting parties have in their legislation resolved the conflicting rights of the foetus and the mother in favour of greater access to abortion."
"It follows from these authorities that it is not the function of our domestic courts to establish new principles of Convention law. But that is not to say that they are unable to develop the law in relation to Convention rights beyond the limits of the Strasbourg case law. In situations which have not yet come before the European court, they can and should aim to anticipate, where possible, how the European court might be expected to decide the case, on the basis of the principles established in its case law. … The application of the Convention by our domestic courts, in such circumstances, will be based on the principles established by the European court, even if some incremental development may be involved. …"
"On the present appeal, there is in law no question of a balance being struck between the interests of two different living persons. The unborn foetus is not in law a person, although its potential must be respected. In addition, the current legislation already recognises important limitations on the interests and protection of the unborn foetus. It permits abortion of ahealthy
foetus in circumstances where the mother's life would be at risk or where she would suffer serious long-term damage to her physical or psychological
health.
There is therefore no question of any absolute protection of even a
healthy
foetus. …"
Article 3
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Article 8
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection ofhealth
or morals, or for the protection of the rights and freedoms of others."
"There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish State in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under art.8 of the Convention."
"For me, as a severely disabled person, section 1(1)(d) drives a coach and horses through everything Parliament professes to believe in concerning disability equality. Its continued application and indeed active promotion stigmatise disabled human beings before we are even born because its specific purpose is precisely to prevent us from being born … We are life unworthy of life."
International materials
"[Counsel] … is not inviting the Court to decide the appeal on the basis of principles established in the case law of the European Court, but on the basis of a principle which, he argues, ought now to be adopted in the light of a body of material concerned with other international instruments. That approach is not open to this court under the Human Rights Act, and his argument must therefore be rejected."
"In accordance with the law"
"The case put to me finally by Mr. Rankin … is that while he cannot say here that there is any suggestion of a criminal abortion nevertheless if doctors did not hold their views, or come to their conclusions, in good faith which would be an issue triable by a jury (see Reg. v. Smith (John) [1973] 1 W.L.R. 1510) then this plaintiff might recover an injunction. That is not accepted by Mr. Denny. It is unnecessary for me to decide that academic question because it does not arise in this case. My own view is that it would be quite impossible for the courts in any event to supervise the operation of the Abortion Act 1967.
…
That does not now arise in this case. The two doctors have given a certificate. It is not and cannot be suggested that the certificate was given in other than good faith and it seems to me that there is the end of the matter in English law." (Emphasis added)
Justification
(1) Is the aim or objective of the interference sufficiently important to justify the limitation of a fundamental right?
(2) Is the interference rationally connected to such aim or objective?
(3) Could a less intrusive measure have been used?
(4) Having regard to these matters and to the severity of the interference, has a fair balance been struck between the rights of the individual and the general interests of the community?
"The third fundamental feature of the case is that there is no decision of the Strasbourg court which suggests the interpretation advanced by the appellants. The approach which the courts take under the HRA is in general to keep pace with the jurisprudence of the Strasbourg court but not to go beyond it: see R (Ullah) v Special Adjudicator [2004] 2 AC 323, para 20 (Lord Bingham of Cornhill) and R (Al-Skeini) v Secretary of State for Defence (The Redress Trust intervening) [2008] AC 153, paras 105-106 (Lord Brown of Eaton-under-Heywood)."
"80. That point is relevant to what the Strasbourg court describes as the 'margin of appreciation' to be afforded to the contracting states in the application of the Convention. The concept of a margin of appreciation is not directly relevant when courts in this country apply the HRA. This is because it is a concept of international law and not domestic law, governing the relationship between an international court and contracting states. Nevertheless, it is well established that there is an analogous concept which does apply in domestic law under the HRA, which has been variously described as a 'discretionary area of judgment', a 'margin of discretion' or in other ways, for example to refer to the appropriate weight which is to be given to the judgment of the executive or legislature depending upon the context: see e. g. R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 381 (Lord Hope of Craighead); and A v Secretary of State for the HomeDepartment
[2005] 2 AC 68, para 39 (Lord Bingham of Cornhill). For convenience we will refer here to the 'margin of judgment'.
81. This brings us to an important aspect of this case. The margin of judgment which is to be afforded to Parliament in the present context rests upon two foundations. First, there is the relative institutional competence of the courts as compared to Parliament. The court necessarily operates on the basis of relatively limited evidence, which is adduced by the parties in the context of particular litigation. Its focus is narrow and the argument is necessarily sectional. In contrast, Parliament has the means and opportunities to obtain wider information, from much wider sources. It has access to expert bodies, such as the Law Commission, which can advise it on reform of the law. It is able to act upon draft legislation, which is usually produced by the Government and often follows a public consultation exercise, in which many differing views can be advanced by members of the public. Both Government and Members of Parliament can be lobbied by anyone with an interest in the subject in hand. The political process allows legislators to acquire information to inform policy decisions from the widest possible range of opinions. …
82. The second foundation is that Parliament enjoys a democratic legitimacy in our society which the courts do not. In particular, that legitimises its interventions in areas of difficult or controversial social policy. That is not to say that the courts should abdicate the function required by Parliament itself to protect the rights which are conferred by the HRA. The courts have their proper role to play in the careful scheme of the HRA, as Lord Bingham emphasised in A v Secretary of State for the HomeDepartment,
at para 42. In appropriate cases that can include making a declaration of incompatibility under section 4 in respect of primary legislation where an incompatibility between domestic legislation and Convention rights has been established and the interpretative tool provided by section 3 does not provide a solution. Democratic legitimacy provides another basis for concluding that the courts should be slow to occupy the margin of judgment more appropriately within the preserve of Parliament."
"As Horner J pointed out, many children born with disabilities, even grave disabilities, lead happy, fulfilled lives. In many instances they enrich and bring joy to their families and those who come into contact with them. Finally, the difficulty in devising a confident and reliable definition of serious malformation is a potent factor against the findings of incompatibility. For these and the other reasons given by the judge, I would refuse to make a declaration of incompatibility in the case of serious malformation of the foetus."
Article 14
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"The general approach adopted to article 14 by the European court has been stated in similar terms on many occasions, and was summarised by the Grand Chamber in the case of Carson v United Kingdom (2010) 51 EHRR 13, para 61 ('Carson'). For the sake of clarity, it is worth breaking down that paragraph into four propositions:
(1) 'The court has established in its case law that only differences in treatment based on an identifiable characteristic, or 'status', are capable of amounting to discrimination within the meaning of article 14.'
(2) 'Moreover, in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations.'
(3) 'Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.'
(4) 'The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background.'"
"It is more useful to think of there being a range of factors which tend to heighten, or lower, the intensity of review. In any given case, a number of these factors may be present, possibly pulling in different directions, and the court has to take them all into account in order to make an overall assessment."
"… Where the European Court would allow a wide margin of appreciation to the legislature's policy choice, the domestic courts allow a correspondingly wide margin …"
Remedies
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if –
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of … primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."
Conclusion