Girl of 13 has the capacity to decide to have an abortion, High Court rules

A High Court judge has declared that a 13 year old girl has the capacity to decide for herself to have an abortion and that an NHS trust may perform the procedure on the basis of her consent.

The girl, named only as A, conceived when she was 12, and the case came to court shortly after her 13th birthday, when she was more than 21 weeks pregnant. She told the psychiatrist who assessed her capacity that she wanted an abortion because she “would not be able to cope” with carrying on with the pregnancy.

The unnamed NHS trust sought a declaration that she had the capacity to decide for herself—or, if not, that it would be in her best interests to carry out a termination. Mr Justice Mostyn, who heard the case at the High Court in London, said that the trust wanted a declaration so that “the position is put beyond doubt and that any later criticisms of the trust, in taking the steps that they did, can be deflected.”

The judge said that he was giving his judgment in open court after a hearing in private “so that anyone who later reads the transcript of this judgment understands that proceedings of this nature are not done in secret by some mysterious court determined to prevent the public from knowing what is being done in its name.”

He was satisfied that A had the necessary capacity to make her own decision. “The consequence of that declaration is that if a termination is performed, there is no question of any liability, either civil or criminal, being imposed on the trust or any of the clinicians who are involved in the procedure.”

The judge cited the “famous” decision in the Gillick case, brought by a mother who unsuccessfully argued that her underage daughters should not be given contraceptive advice without her consent. He quoted a passage from the judgment that said, “There is no law which compels me to hold that a girl under the age of 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.”

A consultant child and adolescent psychiatrist, Sarojit Ganguly, interviewed A together with a consultant obstetrician. Her mother and grandmother were also in the room.

Ganguly told the judge that the options of continuing with the pregnancy and keeping the child or having the child taken away were discussed with A, as were the risks of pregnancy and termination. “She understood the gist of it to the extent that it would be necessary for her to reach a decision,” he said.

“A was clear in telling us that this decision was her own, that she had made up her mind,” he added. “Independently, the mum and grandma said that they did not in any way coerce her into this decision.”

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