Court of Appeal in Northern Ireland Decisions

The statutory framework

General Duty of Ministry

4. It shall be the duty of the Ministry –

(a) to provide or secure the provision of integrated health services in Northern Ireland designed to promote the physical and mental health of the people of Northern Ireland through the prevention, diagnosis and treatment of illness;

(b) to provide or secure the provision of Personal Social Services in Northern Ireland designed to promote the social welfare of the people of Northern Ireland

and the Ministry shall so discharge its duty as to secure the effective co-ordination of Health and Personal Social Services.

Provision of accommodation and medical services, etc

5.-(1) The Ministry shall provide throughout Northern Ireland, to such extent as it considers necessary, accommodation and services of the following descriptions –

(a) hospital accommodation, …

(b) premises, other than hospitals, at which facilities are available for all or any of the services provided under this Order;

(c) medical, nursing and other services whether in such … premises, in the home of the patient or elsewhere.

(2) In addition to its functions under paragraph (1), the Ministry may provide such other accommodation and services not otherwise specifically provided for by this Order as it considers conducive to efficient and sympathetic working of any hospital or service under its control, and, in relation to any person and notwithstanding anything contained in Article 4(a), to provide or arrange for the provision of such accommodation or services, and in connection therewith, to incur such expenditure as is necessary or expedient on medical grounds.

(3) Where accommodation or premises provided under this Article afford facilities for the provision of general medical … services … they shall be made available for those services on such terms and conditions as the Ministry may determine.

Provision of general health services

6. The Ministry shall secure the provision of general medical … services in accordance with Part VI.

Prevention of Illness, Care and Aftercare

7.-(1) The Ministry shall make arrangements, to such extent as it considers necessary, for the purposes of the prevention of illness, the care of persons suffering from illness, or the aftercare of such persons.

8.-(1) The Ministry shall make arrangements, to such extent as it considers necessary, for the care, including in particular the medical … care, of expectant and nursing mothers, and of young children.

Health Education

14. The Ministry may disseminate, by whatever means it thinks fit, information relating to the promotion and maintenance of health and the prevention of illness.

General Social Welfare

15.-(1) In the exercise of its functions under Article 4(b) the Ministry shall make available advice, guidance and assistance, to such extent as it considers necessary and for that purpose shall make such arrangements and provide and secure the provision of such facilities … as it considers suitable and adequate.

Under Part III of the Order the Ministry shall by order establish bodies to be called Health and Social Services Boards which shall exercise such functions with respect to the administration of such health and personal social services as the Ministry may direct. Under Article 43 the Ministry may conduct or promote or assist (by grant or otherwise) any person in conducting research into (a) any matter, relating to the causation, prevention, diagnosis or treatment of illness, or into such other matters relating to the health services as it thinks fit and any matter relating to the other personal social services.

Powers of Ministry where services are inadequate

51. If the Ministry is satisfied, after such investigation as it thinks fit, that any list prepared under this Order –

(a) of medical practitioners undertaking to provide general medical services; or

(b) … ; or

(c) …; or

(d) …; or

(e) of persons undertaking to provide any other services; is not such as to secure the adequate provision of the services in question, or that for any other reason any considerable number of persons are not receiving satisfactory services under the arrangements in force under this Order the Ministry may authorise a Health and Social Services Board to make such other arrangements as the Ministry may approve, or may itself make such other arrangements as appears to the Ministry to be necessary.

Default Powers of Ministry

53.-(1) Where the department is of opinion on representations made to it or otherwise, that any Health and Social Services Board, special agency or HSS Trust or The Agency has failed to discharge any functions conferred or imposed on it under the Health and Personal Social Services legislation, or has in carrying out those functions failed to comply with any regulations, schemes, proposals or directions relating thereto, the Ministry may after holding an inquiry make an order declaring it to be in default.

Under Part VI of the Order provision is made for General Health Services: see, for example, Article 56(1).

Services free of charge

98. –(1) The services provided under this Order or the 1991 Order or the Health Services (Primary Care) (Northern Ireland) Order 1997 shall be free of charge, except where any provision contained in or made under this Order … expressly provides for the making and recovery of charges.

Interpretation

Under Article 2 "Health Services" means any service or services designed to secure any of the objects of Article 4(a) …

"Illness" includes mental disorder and any injury or disability requiring medical … treatment or nursing.

"Medical" includes surgical;

"Personal Social Services" means any service or services designed to secure any of the objects of Article 4(b) …

Submissions by the parties as to the duties and powers of the Respondent and the Department

(i) 'Integrated health services' include reproductive health services involving the lawful termination of pregnancies as part of the "prevention, diagnosis and treatment of illness".

(ii) Article 4 imposes a general duty on the respondent to secure the adequate provision of health and personal social services including termination of pregnancy services in Northern Ireland. Article 14 empowers the respondent to disseminate health information. Article 15 imposes a positive duty on the respondent, to such extent as is considered necessary to make guidance available in the discharge of the general duty under Article 4(b). Article 51 empowers the respondent to make alternative arrangements where satisfied, after such investigation as he thinks fit, that services provided pursuant to the Order are inadequate or unsatisfactory.

(iii) The respondent has positive as well as negative obligations under the 1972 Order and at Common Law. The physical and mental health of the people of Northern Ireland under Article 4(a) includes the physical and mental health of women faced with unwanted pregnancies where there is a real risk to the life of the mother or risk of real and serious long-term damage to the physical or mental health of the mother or where the foetus is non-viable.

(iv) Article 4(b) requires the department to look after the social welfare of women faced with unwanted pregnancies, including counselling needed for a woman following a termination.

The respondent is under a Common Law duty to exercise the powers and to perform the duties contained in the Order in a way which promotes rather than frustrates the statutory purposes of the Order and involves exercising his discretionary powers to achieve these purposes rather than abdicating his discretion. He is also under a Common Law duty to act rationally and proportionately, including acting without discrimination in the discharge of his statutory functions.

(v) Article 4 contains a positive obligation for the respondent either to provide or to secure the provision of adequate services in this respect.

The respondent cannot simply turn a blind eye, frustrating and stultifying the statutory purposes of the Order in this area, and in effect abdicating his discretionary powers by refusing to investigate whether the services provided under his statutory authority are, in fact, sufficient to comply with his statutory duty. It is irrational and lacking in a sense of proportion for him to assert that he is performing his duties without investigating or otherwise obtaining proper and sufficient information about the actual position on the ground, especially in the light of (a) the fundamental and basic rights at stake, and (b) evidence giving rise to legitimate concerns about the lack of proper and sufficient provision of the relevant services, including information and guidance, to health care professionals and women of child-bearing age.

(vi) The respondent is under a further duty pursuant to the general common law principle of equality, which is an axiom of rational behaviour, and a fundamental principle of justice to ensure that like cases are treated alike and different cases differently unless there is sound justification for not doing so. It is a discriminatory difference of treatment for the respondent to fail to issue guidance on the application of common law to termination of pregnancy, and on the procedures governing the provision of this type of service, when he has issued such guidance in relation to the provision of other health services in Northern Ireland, presumably after appropriate investigation of the situation.

(vii) In performing their functions the department has wide discretionary powers but their discretion is not unlimited. It is the task of the Courts to ensure that the duties are performed in practice, that administrative discretion is exercised so as to promote rather than to frustrate the purposes for which these functions and powers have been vested in the department, and that the department's decisions are rational and proportionate and take into consideration all relevant factors.

The Case Law

(a) for providing primary education …

It was argued on behalf of the applicants that the duty was absolute. Wolff LJ, as he then was, stated at p828:-

"In order to arrive at the correct interpretation of S.8, it is important to recognise that the duty which it places upon the local education authority is in very broad and general terms. It is a counterpart of the even wider duty placed upon the Secretary of State by section 1. It is the type of duty which is a common feature of legislation which is designed to benefit the community: see, for example, S1 of the National Health Service Act 1977. This type of duty can be described as a "target duty". In the language of Mr Goudie (counsel for the ILEA) there is built into S.8 "a degree of elasticity". While there are a number of standards which are required to be achieved by the local education authority, the setting of those standards is, in the first instance, for the local education authority alone to determine as long as those standards are not outside the tolerance provided by the section. There are going to be situations, some of which can and others which cannot reasonably be anticipated, where the education provided falls below the statutory standard and the standards which the local education authority would set for itself. It is undoubtedly the position that within the area for which ILEA is responsible at the present time, the statutory standards are not being met but this does not mean that ILEA are necessarily in breach of their duty under S.8. The question is whether ILEA has taken the steps which the statute requires to remedy the situation which exists."

He cited as confirmation that this was the correct approach a passage from the judgment of Diplock LJ in Bradbury and Others v Enfield London Borough Council [1967] 1 WLR 1311.

"Furthermore, even where there is a breach of section 8, the court in their discretion may not intervene if by the time the matter comes before the court the local education authority is doing all that it reasonably can to remedy the situation. The situation is best left in the hands of the bodies to whom Parliament has entrusted performance of the statutory duty if they are seeking to fulfil that duty."

He then reviewed the authorities as to the jurisdiction of the courts. At p835 he said:-

"The considerations which would make it inappropriate for the court to grant mandamus, where what is complained of is a breach of statutory duty by inactivity, may not apply to the grant of a declaration as opposed to an order of mandamus or an injunction. The reason for the inactivity could, for example, be because the public body concerned is under a misapprehension as to the relevant law. A declaration clarifying the legal position could be of considerable value in establishing what the obligations of the public body are."

At p835 he said:-

"On an application for judicial review the existence of a default power certainly does not exclude the jurisdiction of the court and may not, even where (as here) the breach of duty can be described as nonfeasance, deprive the court of the ability to provide a remedy. The default power, will, however, still be highly relevant as to whether or not the court should grant relief as a matter of discretion."

"In my judgment, the individual rights afforded under section 29 of the 1948 Act (at least in the sense of a sufficient interest to seek judicial review of failures of provision) militate against the existence of any locus standi to assert a failure in the target duty created by the section. If there has been such a failure it will show, so far as material, in a want of personal provision which is separately justifiable … Miss Richards' (counsel for the applicant) argument involves on analysis an impermissible process of adjudicating on a target duty by reference to individual cases – something against which the law at present sets its face."

This case was relied on by the respondent.

"I think that the correct analysis of section 17(1) is that it set out duties of a general character which are intended to be for the benefit of children in need in the local social services authority's area in general. The other duties and the specific duties which then follow must be performed in each individual case by reference to the general duties which section 17(1) sets out. What the subsection does is to set out the duties owed to a section of the public in general by which the authority must be guided in the performance of those other duties: see R v Barnet London Borough Council, ex parte B [1994] ELR 357".

The 1972 Order

Is there a group with a "sufficient interest" to bring proceedings for judicial review?

"The term `sufficient interest' is surely broad enough to recognise … an expertise, and there are cases where bodies such as the Child Poverty Action Group have been treated as having the standing to make applications concerning subjects on which they specialise in giving assistance to a section of the public. It is possible for there to be situations where there are persons who are directly affected by administrative action who are for reasons of poverty, ignorance or lack of an incentive incapable of bringing proceedings. There are other situations where if a public interest body or pressure group are not in a position to bring proceedings nobody would be in a position to do so …"

What is the law relating to abortion in Northern Ireland?

"Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable . . ."

"Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof shall be liable …"

"… Any person who, with intent to destroy the life of a child incapable 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 a child was no done in good faith for the purpose only of preserving the life of the mother."

"But the words of that section, ie Section 58 of the 1861 Act, are that any person who 'unlawfully' uses an instrument with intent to procure miscarriage shall be guilty of felony. In my opinion the word `unlawfully' is not, in that section, a meaningless word. I think it imports the meaning expressed by the proviso in Section 1, subsection (1), of the Infant Life (Preservation) Act 1929, and that Section 58 of the Offences Against the Person Act 1861 must be read as if the words making it an offence to use the instrument with intent to procure a miscarriage were qualified by a similar proviso."

In other words a person who procures an abortion in good faith for the purpose of preserving the life of the mother shall not be guilty of an offence. On the issue of what is meant by "preserving the life of the mother" the judge said this to the jury:

"… Those words ought to be construed in a reasonable sense, and if, the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequences of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor, who under those circumstances and in that honest belief, operates, is operating for the purpose of preserving the life of the mother."

The legal principles established by this case were applied in England and Wales until the enactment of the Abortion Act 1967 and continue to be applied in Northern Ireland. See paragraph 32 of Kerr J's judgment from which I have taken this summary.

"The law about the use of instruments to procure miscarriage is this: such use of an instrument is unlawful unless the use is made in good faith for the purpose of preserving the life or health of the woman. When I say health I mean not only her physical health but also her mental. But although I have said that 'it is unlawful unless' I must emphasise and add that a burden of proving that it was not used in good faith is on the Crown."

Again I have taken this summary from paragraph 33 of Kerr J's judgment.

"Unfortunately due to what is perceived by the medical profession and others as uncertainty in the law relating to abortion in Northern Ireland, no surgeon can be found in this jurisdiction who is prepared to carry out the operation. I am informed by Mr Toner, counsel for the Board, that the solicitors to the Board have spoken to the Senior Consultant Obstetrician/Gynaecologist in the Royal Victoria Hospital and that he has stated that, like Dr R…. and his colleagues, no consultant will be found in this jurisdiction who will be prepared to carry out the operation to terminate the minor's pregnancy because of her mother's objection thereto and their perceived uncertainty with regard to the present state of the law relating to abortion in Northern Ireland.

This is most regrettable particularly where, as in the present case, the minor is already in hospital recovering from an operation to remove her appendix. It will now be necessary for her to travel to Liverpool tomorrow, the operation to be carried out on the following day at a special clinic run by the British Pregnancy Advice Centre."

"I am satisfied that the statutory phrase, `for the purpose only of preserving the life of the mother' does not relate only to some life-threatening situation. Life in this context means that physical or mental health or well-being of the mother and the doctor's act is lawful where the continuance of the pregnancy would adversely affect the mental or physical health of the mother. The adverse effect must however be a real and serious one and there will always be a question of fact and degree whether the perceived effect of non-termination is sufficiently grave to warrant terminating the unborn child."

"Mr Weatherup QC … questioned the use of the words, 'or well-being' in the dictum and also submitted that the adverse effect must be permanent or at least long-term, and certainly could not be short term. …. I consider that MacDermott LJ did not intend to mean by 'or well-being' to indicate that 'life' meant something more than physical and mental health such as happiness and these words could have been omitted by him without detracting from what was being said; I would point out that these words were omitted at the end of the same sentence when he again referred to the mental health and physical health of the mother. I also accept that the adverse effect must be permanent or long-term and cannot be short term; I consider that this is what MacDermott LJ was indicating when he spoke of the real and serious adverse effect which was sufficiently grave to warrant termination. Mr Weatherup further submitted that the adverse effect must be a probable rather than a possible risk if the pregnancy is not terminated; Mr Toner took much the same approach when he submitted that there must be a serious risk of a long-term adverse effect. I consider that, as indicated by MacDermott LJ, the seriousness of the perceived adverse effect cannot be separated from the chance of that effect occurring; in most cases the adverse effect would need to be a probable risk of non-termination but a possible risk might be sufficient if the imminent death of the mother was a risk in question."

"Finally I wish to stress …. that each case of this nature depends on its own circumstances and therefore that I have directed the termination of this minor's pregnancy is no indication that a similar order will be made in respect of the pregnancy of some other minor with a similar mental handicap."

1. 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.

2. The "life" of the mother in this context has been interpreted by the courts as including her physical and mental health.

3. A termination will therefore be lawful where the continuation of the pregnancy threatens the life of mother, or would adversely affect her mental or physical health.

4. The adverse effect on her mental or physical health must be a "real and serious case" one, and must also be "permanent or long-term".

5. In most cases the risk of the adverse effect occurring would need to be a probability, but the possibility might be regarded as sufficient if the imminent death of the mother was the potentially adverse effect.

6. 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.

It was apparent that he was unaware of the other cases.

"The legal principles are, therefore, clear and are easily absorbed. It might well be difficult in some circumstances to decide whether the facts of an individual case can be accommodated within the principles as outlined but this is not due to a lack of clarity in the principles themselves. Rather this reflects the fact that a value judgment of some subtlety and complexity may be required. That judgment must be made by the clinician who is responsible for the care of the woman who seeks a termination."

"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" fit a criminal prosecution?

How is a jury to understand what this means?

Is there to be no statement of principle about non-viable foetuses?

Does the Department propose to make arrangements to enable a court to declare when, if at all, termination of a pregnancy is lawful in respect of a non-viable foetus?

Is there to be silence about abnormal foetuses which are viable?

(1) that the person who procured the miscarriage did not believe that there was a risk that the mother might die if the pregnancy was continued; or

(2) did not believe that the mother would probably suffer serious long-term harm to her physical or mental health; or

(3) did not believe that the mother would probably suffer serious long-term harm to her physical or mental health if she gave birth to an abnormal child. But I consider that the jury needs assistance with the meaning of the word 'long –term'.

(4) a person who is a secondary party to the commission of the criminal offence referred to above is liable on conviction to the same penalty as the principal.

(5) it follows that an abortion will be lawful if a jury considers that the continuance of the pregnancy would have created a risk to the life of the mother or would have caused serious and long-term harm to her physical or mental health.

"In line with recommendations from your department we offer screening to help identify congenital abnormalities ante-natally. Throughout the whole of Northern Ireland the vast majority of pregnancies are subjected to an ultrasonic examination between 18 and 22 weeks to detect structural abnormalities in markers of trisomy. In our own unit … we offer the double test which is a bio-chemical blood test offered to all mothers. The sample is taken at 16 weeks, it is sent to Birmingham for analysis and 5% of the population screened will be shown to be at `higher risk' for trisomy abnormalities. I became a Consultant with responsibility for Foetal Medicine in 1986. At the time of my appointment Professor Thompson, myself, Dr George Monaghan and Mr George Brangam from the Central Services Agency met to discuss the implications of diagnosis of congenital deformities. I was informed that we should not change our clinical practice and that termination of pregnancy could be carried out for lethal abnormalities or abnormalities where there would be a major physical or mental problem for the foetus prior to the stage of viability. (At that time 28 weeks, now considered to be 24 weeks). We were also advised that termination could be offered and performed on a pregnancy that could have a serious mental or physical effect on the mother. Therefore for the past decade, terminations of pregnancy for the above abnormalities have been offered to mothers and are carried out on mothers from throughout Northern Ireland in our unit. We are also aware that terminations are carried out in some of the other units throughout Northern Ireland but not in all of them. However I can verify that we have had patients regularly referred to us from all four boards. We very much appreciate the support we have had from our midwifery, anaesthetic, paramedical colleagues and ancillary staff, who deal with this most difficult and sensitive issue. However we are aware of increasing unease amongst our staff as to `where we stand'. We would therefore be reassured if you could verify that your department supports the continued management of the conditions described above in the manner described above."

"If a lethal abnormality is diagnosed after 24 weeks again it is possible by lethal injection to the foetus to cause a termination to occur prior to birth. … We would wish to have guidance as to what advice we should give to mothers who request this management and who are aware that the facility is available in England, Scotland and Wales."

"Since the Department believes that, under the law of Northern Ireland, the lawfulness of any proposed termination depends on the clinical judgment of the medical practitioner who is to carry out the termination, the Department can only contemplate the provision of a termination where a medical practitioner has advised, in good faith, that in his opinion, it is necessary to carry out a termination of the pregnancy to preserve the life of the woman, where continuation of the pregnancy would involve risk of serious injury to her physical or mental health (as this has been interpreted by the courts). The Department believes that this consideration applies even in cases of foetal abnormality so that a woman could not be assured of a termination in every case of foetal abnormality in Northern Ireland. Inevitably, however, the practitioner himself remains responsible and answerable for his actions under the criminal law. While it can refer a practitioner to the relevant provisions of statute law and to material case law, the Department is unable to give any advice or guidance which would assist the practitioner in deciding whether in any particular case it would be lawful for him to carry out the termination of a pregnancy." (See File 2 section J).

I also consider that their failure to provide clinicians with sufficient guidance to enable them to ensure that women who consent to abortions in Northern Ireland give an informed consent is in breach of Article 4. I consider that the department ought to give written guidance to clinicians on this issue of consent.

No step has been taken by the department to find out what, if any, abortion services are provided by the individual Health Service Boards (set up by the department) or the hospitals under their control. The assertion by Ms Simpson that one major hospital in Belfast carries out most of the abortions in Northern Ireland remains unchallenged and unexplained, despite questions from the Court to Counsel for the department. If proper statistics were kept, these would show not merely the health boards and the hospitals, obstetricians and gynaecologists and psychiatrists which or who provide services but, also the grounds on which abortions are carried out by them. The Court has no means of telling whether they are carried out lawfully and I very much doubt whether the department has any information. Certainly none has been divulged, although sought by the court. These failures cannot be explained away by lack of resources or by other priorities. The collation of statistics and the manner in which they should be kept has been under consideration by the department since 1994, according to the available evidence.

The European Convention

The statistics

(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 medial 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 pregnancy 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 pregnancy 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 to be seriously handicapped.

I agree with the submission of the respondent and with the view of Kerr J that the conditions under which a lawful abortion may be carried out in Northern Ireland approximate to section 1(1)(b) and (c) of the Abortion Act 1967. I reject the argument advanced by Lord Lester that section 1(1)(a) accords with the law in Northern Ireland. What I do say, however, as he submitted, is that in my opinion section 1(1)(a) is used in England and Wales because it is by far the easiest heading under which a registered medical practitioner can fill in whatever form he does fill in to supply the statistics. It only requires a very small percentage of the women stated to be resident in Northern Ireland to have long-term harm to her mental health, as distinct from 'a risk of injury to her mental health' if the pregnancy continued to establish that her abortion could and should have taken place in Northern Ireland. It seems to me highly likely that the clinics in England, to which women from Northern Ireland go, as distinct from the NHS hospitals, provide a service which does not involve psychiatric assessment and which may not involve even an over-night stay. It may be argued that this is mere speculation on my part. But I consider that the available statistics justify it as an inference. I do not mean to suggest that the majority of those resident in Northern Ireland who seek abortion in England could have it lawfully performed in Northern Ireland. But it only requires 2 or 3 per cent to equal the figures for lawful abortion in Northern Ireland.

[105A] The principal statistics supplied are to be found in exhibits to the first affidavit of Ms Simpson on behalf of the appellant and by Ms Lorraine MacDermott. It is apparent that the department only commenced to keep statistics of abortions in Northern Ireland in 1996 or thereabouts and have not collated any information as to the grounds on which the medically induced abortions were carried out. The figures given in a Parliamentary Answer (Exhibit AAS9) were that of abortions which took place in Northern Ireland hospitals in 1997-1998 1594 were recorded as spontaneous and 77 as medical or induced abortions. Therefore the number of such abortions between 1972 and 1996 cannot be established nor has any investigation been carried out by the department about "amateur abortions", it appears.

[105B] No investigation has been carried out as to the reasons for "amateur abortions". But there was a survey conducted by Dr Colin Francome in 1994 that 11% of GPs selected at random had treated patients suffering from the consequences of amateur abortions and, presumably, this survey was known to the department shortly after it was published. A set of eleven questions sent to the respondent by the appellant on 11 January 2001 (Exhibit AAS14) remain unanswered. The research note of Dr Francome for 1997 is to be found in Exhibit AAS16 where he expressed the view that the prevalence of illegal abortions in Northern Ireland had declined as women increasingly travelled to England for the procedure.

[105C] In a fact sheet (Exhibit AAS18) issued by the appellant it is stated that the department published the first official statistics on abortions performed in 1997-1998 and 1998-1999 at the end of the 1990s. Spontaneous and medical abortions for 1997-1998 were as stated in the Parliamentary Answer. For 1998/99 they were 1507 and 78 respectively. Other/unspecified abortions were 12 for 1997/1998 and 8 for 1998/1999. Medical abortions were defined as "the interruption of pregnancy for legally acceptable, medically approved indications". As the department is apparently unaware what the legal reasons were - counsel was unable to provide the information for the court – this was not a very helpful set of statistics, not least as other/unspecified abortions were defined as including "cases where an abortion occurs as a result of medical or personal intervention, for example, where the person requires treatment for a life-threatening condition and as a consequence an abortion occurs."

[105D] Abortion performed in England on Northern Ireland residents between 1994-1998 were stated to be 1678, 1548, 1573, 1572 and 1581 respectively. On behalf of FPANI it was commented that figures, based on clients' addresses, were an underestimate as it was widely accepted that many women give false addresses for fear of detection. It may well be that they also give addresses of friends or relatives in England and Wales. The department does not appear to have investigated these troubling and tragic figures. Everyone must surely agree that it is tragic to have an unwanted pregnancy and even more tragic that it ends in abortion. Out of 419 cases known to the appellant in 1999 337 were single mothers, 19 were separated and 21 were divorced; of the same 419, 9 were under 16, 75 were between 16 and 19 , 140 were between 20 and 24 and 93 were between 25-29.

[105E] In official statistics published in Great Britain for 1998 1,581 whose usual residence was Northern Ireland were stated to have had legal abortions of whom 25 were 15 or younger, 280 were between 16 and 19, 476 between 20-24 and 346 were between 25-29. The statutory grounds for all non-residents (9531) showed 9302 as falling within section 1(1)(a). Figures for 1999 showed 9549 non-residents with 9194 falling within section 1(1)(a). The statistics for those residing in England and Wales are significantly greater.

The Director of National Statistics wrote to Mr Crispin Blunt MP on 28 October 1998 indicating that the statistics in England and Wales showed that out of 8000 abortions carried out on persons resident in Northern Ireland only 4 were performed on the grounds set out in section 1(1)(b) and (c) of the Abortion Act 1967.

[105F] I have had regard to the affidavit of Lorraine McDermott a general medical practitioner (see Section R, file 2) which confirms the figures set out in the written answer to Mr Crispin Blunt MP, especially paragraph 4 and 5. I note that suspected malformation in the foetus accounted for no abortions on non-resident women for the fourteen years up to 1999. The figures for residents of England and Wales tell the same story (see paragraph 7 of her affidavit) and to my mind suggest that ground (a) is used because it is convenient. But this does not mean that grounds (b) or (c) could have been relied on by more than a comparatively small percentage of women from Northern Ireland. It appears to me that neither the respondent's department nor its counterpart in England and Wales wishes to be involved in investigation about the statutes and that the latter has not investigated how the Abortion Act 1967 works in practice.

Aftercare

[105G] Of course it will be difficult to trace those who go to England for abortions under the Abortion Act 1967. But the evidence available to the court indicates that aftercare services provided at clinics in England, Wales and Scotland are not used by those from Northern Ireland who go there to have abortions. Since the numbers are significant, it is likely that a substantial number will be in need of aftercare. I do not believe that the provision of aftercare in Northern Ireland would increase the numbers going to England for an abortion. Information as to aftercare services could be provided by those to whom requests for information about abortion are made and could be provided to the clinics in Great Britain which must be known to provide abortion services which, in turn could pass on that information. It is my view that those who have lawful abortions in England are entitled to aftercare services in Northern Ireland. It is not enough to leave it to charities: see Article 7 of the 1972 Order; of course, this is subject to resources and priorities. The affidavit of Mr Craig Allen for the respondent referred to patients who had had an abortion in Northern Ireland. An inference is that the department does not regard itself under an obligation to provide aftercare for those who return to Northern Ireland after an abortion in England. If so, the department is in breach of Article 7 of the 1972 Order.

Guidance As To Matters Other Than The Law Alone And The Provision Of Other Services

The judgment of Kerr J

Kerr J also rejected the issuing of guidelines to the medical profession. I am not saying that guidelines should be issued. I am saying that the department ought to investigate whether guidelines should be issued, by consulting the RCOG and the Royal College of Psychiatrists and the medical practitioners, including GPs in Northern Ireland. If it transpires that the latter would not benefit from having them, then there would be no point in issuing them. But the fact of the matter is that the RCOG has issued guidelines relating to the Abortion Act 1967 and, if they were asked to advise, having been given an explanation as to the law in Northern Ireland, I consider that they might well be able to assist as might the Royal College of Psychiatrists.

I also consider that the department has a duty to investigate whether adequate aftercare is available not merely for those who have spontaneous abortions or therapeutic abortions in Northern Ireland but for those returning from having an abortion in England and finding that they need aftercare which may include professional counselling. Again I am not saying that guidelines are necessarily the answer but that the department has a duty to investigate. I am concerned with compliance with the law in Northern Ireland. I believe that the department may reduce the numbers of women going to England if the women are aware of all the choices. Unwanted pregnancies may not be eliminated by the law but they can be reduced by positive measures on the part of the department.