Legal Update: In a Nutshell - Access to abortion for 13-year-old girl

Why did the case come to court?

The case, A (A Child) [2014] EWFHC 1445 (Fam), concerned the capacity of a 13-year-old girl to consent to an abortion and was brought to court for "declaratory relief" by an NHS trust.

Declaratory relief refers to a judgment that determines a legal issue without any court order or relief (e.g., compensation). Normally, it is sought to clarify a legal issue in order to prevent further litigation.

The child in this case was brought to a GP by her grandmother, when her grandmother noticed that she had a bump at her waist. A pregnancy test carried out at the GP's practice confirmed that she was pregnant.

The following day, she was examined urgently by a consultant pediatrician, who assessed her gestational age and estimated that she was 21 weeks pregnant. She was then reviewed in an antenatal clinic by a consultant obstetrician and gynaecologist and a senior midwife. A consultant paediatrician had also been consulted and there had been meetings with the Trust Safeguarding Team.

In meetings with the child, the specialists found her to be "uncommunicative" and doubt was raised about whether she had the necessary competence to consent to the treatment. Therefore, the case was brought to court for a determination of A's capacity to consent to an abortion.

What did the court decide?

The court decided that A had the necessary competence to consent to an abortion. The law relating to consent to medical treatment is not set out in legislation, but is contained in common law.

The court, in making its decision, applied the well known case, Gillick v West Norfolk and Wisbech Area Health Authority & Anr, [1986] 1 FLR 224, which set out the criteria that should be used to determine whether a young person under 16 years old has the competence to consent to medical treatment ("The Fraser Guidelines").

According to the court in the Gillick case, which concerned the capacity for under-16s to receive advice and treatment on contraceptives without parental consent, "there is no statutory provision which compels me to hold that a girl under 16 lacks the legal capacity to consent to contraceptive advice, examination and treatment provided that she has sufficient understanding and intelligence to know what they involve".

The court held that, should A be found to have sufficient understanding and intelligence to know what an abortion would involve, she will be deemed competent to consent. Following an independent consultation with a psychiatrist, who determined that "A had a very clear understanding of her position and of the options that were available to her", and she fully understood the implications of the options and the risks that were involved with each, the court was satisfied, therefore, that A had the necessary capacity to make the decision.