Family Law

The Court of Protection has authorised the termination of a young woman's pregnancy on the basis that she lacked capacity to decide and that it was in her best interests.

The young woman in Re CS (Termination of Pregnancy) [2016] EWCOP 10 had two children and was in a relationship characterised by domestic violence. When she became pregnant with a third child she informed friends and relatives that she did not wish to keep this baby because of her current circumstances and that she would like her sister to accompany her to have a termination.

She was thereafter violently assaulted by her partner and sustained serious injuries including skull fractures, intracranial bleeding and brain damage. Her partner was arrested and remanded in custody. She remained in hospital receiving treatment but her injuries continued to cause concern and her prognosis was uncertain.

A week before the expiration of the time limit for a surgical termination the NHS Trust applied to the court seeking a declaration that the woman lacked capacity to consent to a termination being carried out and that it was in her best interests to do so. The Official Solicitor was invited to represent the woman.

It was clear from all of the medical evidence available that the woman currently lacked capacity to decide for herself whether to have a termination. There was also very clear evidence that, shortly before sustaining her injuries, the woman voiced her wish to have a termination. The Official Solicitor’s representative visited the woman who stated she wished to keep the baby but, when it was suggested by the woman’s mother that she was actually referring to her 12-month-old child, the judge determined that no weight should be given to the view expressed to the Official Solicitor’s representative. Taking into account the medical advice that as her pregnancy continued she would be more likely to experience falls and cause herself significant injury, it was clear that the woman's best interests lay with authorising a termination. That decision accorded with her wishes prior to the injury and her overall health and welfare.

The full judgment is available to view here.