There was added tension in the already highly-charged case yesterday morning when Anne Smith QC, for Mrs Kelly, stunned Edinburgh High Court by saying that a termination might be being carried out at an unknown hospital at the same time as the hearing. But in the afternoon, Wendy Sheehan, solicitor for Mrs Kelly's husband, James, said it had not taken place. She said outside the court she could not reveal the reasons because it would break her client's confidentiality.
Yesterday's ruling by the Lord Justice Clerk, Lord Cullen, and Lords Sutherland and Wylie, prevents doctors from carrying out the procedure before a full appeal by Mr Kelly is heard today.
Mrs Kelly, who is 12 weeks pregnant, has been walking a legal tightrope since Mr Kelly learned of the planned termination. The ban was first granted on 15 May, a day before she was scheduled to have the abortion, lifted by the same judge on Wednesday then reinstated by the three appeal judges yesterday.
Mr Kelly is trying to make legal history by persuading the court to stop the abortion and give him custody of the unborn baby and the couple's 18-month-old daughter Hazel. He is believed to be the first father in Britain to be granted a temporary court order delaying a termination.
The couple, from Inverkeithing, Fife, married in 1995 but separated a few weeks ago, each claiming the other was violent and neglected their daughter. Both sides have given extensive and opposing views of their situation to the tabloid press.
The legal wrangle has provoked extremes of opinion on both sides of the debates on abortion and fathers' rights. Lord Eassie's ruling on Wednesday confirmed what most legal commentators understood to be the law, at least south of the border where the House of Lords has resolved the issue in favour of women - that the foetus has no legal rights of its own and that neither fathers nor courts have the power to override the opinions of doctors under the abortion legislation.
Mrs Kelly insists that no one can force her to have a child. But anti- abortion groups condemned Wednesday's decision as a "travesty of justice" and a denial of the unborn child's "right" to life. An interpretation in favour of fathers would be tantamount to treating pregnant women as mere receptacles for child-bearing and could open the way for litigation questioning the opinions of doctors.
Jane Roe, of the Abortion Law Reform Association, said: "The injunction should never have been granted in the first place. To delay a woman like this is intolerable."Reuse content