Embodying Ethics
Unit 2: The Developing Ethical Child
Reading for 18th Nov. Child Law
Extracts from Re E (A minor) (Wardship: Medical Treatment) [1993] 1 FLR 386. (abridged)
Extracts from the court case Re C (A minor) (Leave to seek section 8 orders) [1994] 1 FLR 26 (
abridged)
Questions for Discussion
1. Do the parents and the children in each case agree?
2. What weight does the judge place on the child’s expressed wishes in each case? Are they the
determining factor?
3. Does the court see the child as a rational decision maker in either case?
4. What level of understanding of the issues is expected from the child in each case?
5. How does that compare to the level of understanding you might expect from an adult?
6. Does the seriousness of the decision to be made affect the way in which the court sees the
child as a decision maker?
RE E (A MINOR) (WARDSHIP: MEDICAL TREATMENT)
[1993] 1 FLR 386
Family Division
Ward J
21 September 1990
Medical Treatment — Wardship — Hospital authority sought leave to give blood transfusions to Jehovah's
Witness aged 15¾ — Freedom of choice to refuse medical treatment in adults and minors— Whether
ward's welfare was to be decided by the objective standard of the ordinary father and
mother — Emergency legal aid.
The hospital authority sought leave of the court to treat a young man, A, with leukaemia in such
manner as they considered necessary, including the transfusion of blood and blood products. A,
aged 15¾, and his family were devout Jehovah's Witnesses and refused to consent to transfusions.
He had been admitted to hospital 13 days earlier and had deteriorated rapidly. It was a matter of
hours, perhaps a few days, before haemoglobin and platelets in his blood would fall to dangerous
levels. It was argued by his parents that, as he was so close to his 16th birthday, an age when his
consent to treatment would be required under s 8 of the Family Law Reform Act 1969, and bearing
in mind Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] AC 112, [1986]
1 FLR 224, which says that a child below 16 can make his own decision on medical treatment when
he achieves a sufficient understanding and intelligence to enable him to understand fully what is
proposed, it was wrong for the court to interfere and exercise the interventionist jurisdiction vested
in a judge in wardship.
WARD J:
This matter comes before me on the application of a hospital authority which seeks the leave of
the court to treat a young boy, A, in such manner as they consider necessary, including the
transfusion of blood and blood products.
The matter is one of life and death, and it is for that reason that I give judgment at this late hour
on this Friday evening.The facts which give rise to this unique application are these. A will be 16 on
6 December 1990, having been born. He is a boy of ordinary average intelligence, a boy of
considerable athletic prowess – big and strong and, until the catastrophic events of the last few
weeks, fit and healthy. He proudly proclaimed that he had scarcely ever been ill in his life. He was
on holiday during the summer when he first felt certain pains in his stomach. They grew
progressively worse and on a Saturday when he was watching his favourite football team the pain
was so severe that medical intervention was clearly necessary. Although the general practitioner
may not have been able to diagnose what was at fault, when A was admitted to hospital on 8
September 1990 he was diagnosed to be suffering from leukaemia.
The hospital have been unable to follow the conventional treatment, because A and his family
are devoted and strongly devout members of the Jehovah's Witness belief, and it is contrary to the
tenets of their faith to permit transfusions of blood. A indicated his refusal to that blood parents
who likewise refuse to give that consent, although in all other respects they consent to the
treatment of the hospital. A percentage of the cancerous cells have been effectively killed, but the
haemoglobin index is falling to that low dangerous level. It is difficult to assess when the worst
fears of the hospital might be realised, when the levels may fall to such dangerous points that the
boy might die from heart attack or stroke rather than from leukaemia. It may be no more than
hours, although the better view seems to be that we have perhaps a day, but certainly by Monday
the hospital would be extremely anxious indeed.
The parents oppose this application with a quiet but powerful reliance upon their religious beliefs.
Because A is so close to his 16th birthday it has been suggested that it would be wrong for me to
interfere with his express wishes. Section 8 of the Family Law Reform Act 1969, provides:
‘The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental
treatment which in the absence of consent would constitute a trespass to his person, shall be as
effective as it would be if he were of full age.'
I find that A is a boy of sufficient intelligence to be able to take decisions about his own well-being,
but I also find that there is a range of decisions of which some are outside his ability fully to grasp
their implications. Impressed though I was by his obvious intelligence, by his calm discussion of the
implications, by his assertion even that he would refuse well knowing that he may die as a result,
in my judgment A does not have a full understanding of the whole implication of what the refusal
of that treatment involves.
I am quite satisfied that A does not have any sufficient comprehension of the pain he has yet to
suffer, of the fear that he will be undergoing, of the distress not only occasioned by that fear but
also – and importantly – the distress he will inevitably suffer as he, a loving son, helplessly watches
his parents' and his family's distress. They are a close family, and they are a brave family, but I find
that he has no realisation of the full implications which lie before him as to the process of dying.
He may have some concept of the fact that he will die, but as to the manner of his death and to the
extent of his and his family's suffering I find he has not the ability to turn his mind to it nor the will
to do so. Who can blame him for that?
If, therefore, this case depended upon my finding of whether or not A is of sufficient understanding
and intelligence and maturity to give full and informed consent, I find that he is not. Both,
therefore, because section 8 of the Family Law Reform Act 1969 8 does not apply and because, as
I find, his veto is not a binding one, he not being in the position to take the decision. The welfare
of the child therefore dominates my decision, and I must decide what A's welfare dictates.
In considering what his welfare dictates, I have to have regard to his wishes. What he wishes is an
important factor for me to take into account and, having regard to the closeness to his attaining
16, a very important matter which weighs very heavily in the scales I have to hold in balance.
He is of an age and understanding at least to appreciate the consequence if not the process of his
decision, and by reason of the convictions of his religion, which I find to be deeply held and genuine,
he says ‘no' to a medical intervention which may save his life. What weight do I place upon this
refusal? I approach this case telling myself that the freedom of choice in adults is a fundamental
human right. He is close to the time when he may be able to take those decisions. I should therefore
be very slow to interfere. I have also to ask myself to what extent is that assertion of decision, ‘I
will not have a blood transfusion', the product of his full but his free informed thought? Without
wishing to introduce into the case notions of undue influence, I find that the influence of the
teachings of the Jehovah's Witnesses is strong and powerful. The very fact that this family can
contemplate the death of one of its members is the most eloquent testimony of the power of that
faith. He is a boy who seeks and needs the love and respect of his parents whom he would wish to
honour as the Bible exhorts him to honour them. I am far from satisfied that at the age of 15 his
will is fully free. He may assert it, but his volition has been conditioned by the very powerful
expressions of faith to which all members of the creed adhere. When making this decision, which
is a decision of life or death, I have to take account of the fact that teenagers often express views
with vehemence and conviction – all the vehemence and conviction of youth! Those of us who have
passed beyond callow youth can all remember the convictions we have loudly proclaimed which
now we find somewhat embarrassing. I respect this boy's profession of faith, but I cannot discount
at least the possibility that he may in later years suffer some diminution in his convictions. There is
no settled certainty about matters of this kind.
In my judgment, A has by the stand he has taken thus far already been and become a martyr for
his faith. One has to admire – indeed one is almost baffled by – the courage of the conviction that
he expresses. He is, he says, prepared to die for his faith. That makes him a martyr by itself. But I
regret that I find it essential for his well-being to protect him from himself and his parents, and so
I override his and his parents' decision. In this judgment – which has been truly anxious – I have
endeavoured to pay every respect and give great weight to the religious principles which underlie
the family's decision and also to the fundamental human right to decide things for oneself. That
notwithstanding, the welfare of A, when viewed objectively, compels me to only one conclusion,
and that is that the hospital should be at liberty to treat him with the administration of those
further drugs and consequently with the administration of blood and blood products.
RE C (A MINOR) (LEAVE TO SEEK SECTION 8 ORDERS)
[1994] 1 FLR 26
Family Division
Johnson J
30 June 1993
Residence order — Specific issue order — Applications for leave to make s 8 applications by 15-yearold— Application by child to live away from her parents — Application by child to go on holiday with
friend's family for 2 weeks — Principles to be applied — Whether in child's interests for leave to be
given regarding specific issue order.
C was nearly 15 years of age. She became unhappy at home and asked her parents if she could stay
at her friend's house for the Easter holidays. Her parents agreed. At the end of the period, C refused
to return home. There was a confrontation between the friend's father and C's father, and the
police were called. The social services became involved and they suggested legal representation
for C. C made an application for leave to apply for an order to enable her to remain living away
from her parents. C also made an application for permission to apply for an order to enable her to
go on holiday with her friend's family to Bulgaria. C's parents objected to C going on holiday with
that family.
Extracts from Judgment:
JOHNSON J
C has been represented before the court by solicitors and counsel as, indeed, have her natural
parents. I am sure that everyone will agree that it is a great pity that a child albeit one aged nearly
15, should be involved in legal proceedings in this way.
The factual background to the applications is that C became unhappy at home. I make no findings
about the justification or otherwise for her view of the matter. The fact is that she asked her parents
if she could spend 2 weeks of the Easter holiday at the home of her girlfriend A, who is 15. The
parents agreed. A is one of the two children of the marriage of Mr F. He is 40. He was divorced 10
years ago. His two children, A, and a boy, P, who is 14, live with him. When the fortnight came to an
end and the time came for C to go home she said that she did not want to go. She has remained ever
since with Mr F and his two children.
I am concerned that the intervention of the court should not prejudice the continued improvement
of the relationship. However, C has been given statutory rights by the Children Act 1989, and I must
not seek to impede her in the exercise of those rights. Here, therefore, the principle that must guide
my consideration of the applications is that laid down by Parliament in s 1(1) of the 1989 Act, namely
that the child’s welfare shall be my paramount consideration.
C wants to remain with Mr F and his two children, at least for the time being. He is willing that she
should. It seems to me, therefore, that I should not make the order unless I consider that doing so
would be better for C than making no order at all. I am not satisfied that there is any identifiable
advantage to C in my making an order at this stage. Her parents want her to live with them, their
door is open, but C wants to stay away. I suspect that there might be possible disadvantages because
it would enshrine in a court order a state of affairs that, in my view, ought better to be resolved by
discussion between C and her parents than by an order of the court. I think in the circumstances, as
it would be more appropriate for me to adjourn the application giving either party the freedom to
return to court if the situation does not resolve. In saying that I seek not to encourage the
restoration of the application, simply that I think that it might in certain circumstances be better that
this application be adjourned rather than that a fresh application be made.
I turn now to consider the application for leave to apply for an order to allow the holiday in Bulgaria.
It may or may not be that initially C’s parents consented to her going. That is an issue that I have
thought it unnecessary to resolve and, indeed, the resolving of it would have involved the parents
giving evidence and, perhaps, C too giving evidence, and that I wish to avoid. It is, however, plain
that at the time that Mr F arranged for C to accompany him and his two children on this holiday he
knew that C’s parents objected. Mr F told me that he was acting on the advice of the social workers.
He said that they pointed out that in booking the holiday for C he was taking something of a risk
because the court might not approve. The sanction of the court is necessary because in order to go
to Bulgaria, C needs her passport and that can become available to her only with the consent of her
parents or an order of the court. Hence the application for an order.
I have not found this an easy question. In deciding whether to give leave for C to make the
application I must, as I have said, be guided by what I judge to be her best interests. It became clear
from the helpful discussion that took place this morning between the court and counsel that this
question of the holiday in Bulgaria had a significance for C and her parents rather greater than one
might have thought. Accordingly, it seems to me that there is advantage to C in my giving leave for
her to make the application and, indeed, for my deciding the substantive application in her favour so
that she goes to Bulgaria. If I follow that course, C would go to Bulgaria and this issue would cease to
be one which festered in her mind. What counsel, and indeed I, judged to be an obstacle to the
improvement of the relationship between C and her parents would be out of the way. On that basis,
there clearly is advantage to C in my giving the leave for which she asks. On the other hand, and
applying myself to the particular circumstances of this case rather than to what might be thought to
be general policy considerations, I doubt whether it would be to C’s advantage for me to give leave.
Whatever she may feel about the significance of the Bulgarian holiday, it does not seem to me that
this is the kind of issue that Parliament envisaged as being litigated in a court when it gave leave for
children to make applications such as this. Parliament recognised the importance of children being
heard in matters affecting their future. But it does not seem to me that the court should decide
whether a child goes on a particular holiday or not. Indeed, for me to give leave in this particular
case might, I think, be interpreted as an indication of the willingness of the court to entertain
applications of children, even children of the age of C, on any matter in which they were in
disagreement with their parents. In my view this jurisdiction is one which should be reserved for the
resolution of matters of importance. This is not a matter that I regard as important. I refuse leave.