The discovery of a baby’s body and the arrest of the parents led to a local authority placing the mother’s other children under interim care orders. Supporters of Dame Diana Johnson’s amendment for abortion decriminalisation, NC1, are using this as a campaigning headline: “Children of a British woman suspected of illegal abortion removed from her care”. As one might expect, the full story is much more complex than that.
On 04 March 2024, Ms Justice Henke published her approved judgment regarding the reporting of this case.[i] Reporting restrictions remain, details shared below are taken from the published judgment.
In 2023, police discovered the body of a newborn and subsequently charged the parents with concealing the birth of a child contrary to s.60 of the Offences Against the Person Act 1861 (OAPA). In October 2023, the parents were told that the police were dropping these charges, however they were notified that they remain under investigation, with the possibility of the same or other charges being brought in the future. The Family Court received a position statement on behalf of the police and Crown Prosecution Service (CPS) stating, it is the position of the [police] and the CPS that the charge should remain under consideration pending thorough investigation including receipt of a full pathology report, review of digital devices and witness accounts.
The discovery of the body and the parents’ arrest led to the interim care orders. The local authority told the Family Court that the threshold criteria asserted relied on many intertwined issues, not solely the circumstances of the arrest. These include: the circumstances of the baby’s death; the relationship between these parents; the use of alcohol by the father; alleged domestic abuse by mother to father, and by father to mother; and failing to protect the children. The parents have not yet responded to these allegations.
The children were placed within their extended family, and the local authority continues to provide support, ensuring that the children receive the day-to-day comfort and support they need.
The mother declined an opportunity to challenge the interim care orders in a hearing set for 07 February 2024 – one reason given was that more time was needed to review the latest set of information and evidence released by the police.
Ms Justice Henke acknowledged the public interest in the details of this case and noted the proposals in Parliament to decriminalise abortion and the expected debate of NC1 in the coming weeks. In regard to this, she says more than once that the local authority asserts that this is not a single-issue case, it is not solely about the use of s.60 of the OAPA. She also says that the evidence disclosed to her by the police is much wider than that already in the public domain, and the investigation is not yet finished.
The Family Court will determine whether the threshold criteria for the initial care orders were met and if so, it will then consider the future welfare orders for the children. It is likely that these proceedings will be completed before the full investigations by the police, and when noting this, Ms Justice Henke deprecates the ‘long and inordinate delays’ in the police investigation.
Tortoise et al wanted to report the details surrounding this case now, before determination and judgment by the Family Court and before completion of the police investigations and conclusion of any criminal proceedings that might be brought. There is little doubt that they wanted to use emotive headlines to leverage support for NC1 in the upcoming debate, regardless of the facts that there is a lot more to this case than a possible breach of s.60 and that NC1 does not call for a change to s.60. Notwithstanding Ms Justice Henke’s judgment that there should be no publication until after completion of all investigations and court proceedings, we still get to read the somewhat misleading headline, “Children of a British woman suspected of illegal abortion removed from her care”.
Consider for a moment what might happen if NC1 is enacted and women are removed from the criminal law related to abortion; in this scenario, the discovery of a newborn’s body, the local authorities would still act and, if threshold criteria were met, an interim care order would be made for any other children – we would expect nothing less than that. It is therefore disingenuous for Tortoise et al to present this case as justification for abortion decriminalisation.
The debate about such a critical matter as abortion law should not take place based on media headlines and cherry-picked emotive details – MPs should be provided with all of the details, and in this case, these are many and intertwined, not all in the public domain and definitely not solely about the prosecution of women for breach of the abortion laws.
[i] Tortoise Media Limited v A Local Authority & Ors – Find case law – The National Archives. https://caselaw.nationalarchives.gov.uk/ewfc/2024/50
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