A High Court judge has heavily criticised the delay in hearing an application by a pregnant woman to be allowed a termination – with the decision made just one day before the limit for the procedure.

Her Honour Judge Hilder also made clear that such sensitive subjects should usually be heard in person, after the time constraints forced the matter to a remote hearing.

The applicant in S v Birmingham Women’s and Children’s NHS Trust had brought proceedings following a decision by health professionals that she lacked the capacity to consent to termination of her pregnancy. She had been sectioned at the end of January and had voiced doubts about continuing with the 19-week pregnancy.

The legal limit for a termination was the end of the day on 1 March, but the court heard that a ‘best interests’ meeting was not held until 18 February, where it was decided that the woman lacked capacity. She instructed mental health tribunal solicitors four days later and made a request for an urgent hearing.

The matter was listed for 28 February with the judge ruling that the applicant had the capacity to make her own decision.

As a postscript, the judge said the issue should have been referred to the court ‘much more promptly’ by one or both of the health bodies involved. She added it was ‘deeply regrettable’ that the woman was left to bring the proceedings herself, despite being detained by the state and having to incur personal debt.

Failure to issue proceedings earlier meant the court had to make a decision of such gravity and sensitivity ‘under extreme time pressure’. This also forced the hearing to be conducted remotely, despite the judge’s misgivings. ‘Remote conduct of hearings of this nature was a matter of necessity in circumstances of global pandemic,’ she said. ‘However, as we emerge from pandemic, the limitations of such hearings are more difficult to accept.’

The woman followed proceedings from a room on her own in hospital, although her camera failed on several occasions.

‘It is my view that hearings of issues such as arose in this case are much better determined at a face to face hearing,' the judge said.