Re B. (A Minor) (Wardship: Sterilisation)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hailsham of St. Marylebone,Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Templeman,Lord Oliver of Aylmerton |
| Judgment Date | 30 April 1987 |
| Judgment citation (vLex) | [1987] UKHL J0430-1 |
| Date | 30 April 1987 |
| Court | House of Lords |
[1987] UKHL J0430-1
House of Lords
Lord Chancellor
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Templeman
Lord Oliver of Aylmerton
My Lords,
Were it not for the extensive public interest shown in this case I would have been content to say that having read every word of the evidence in it and the judgments of Bush J. at first instance, and of the Court of Appeal I agree with every word of them and have nothing to add to any of them, and that in consequence this appeal stands to be dismissed.
In view, however, of the public interest, and of one additional point which was not argued before the Court of Appeal I desire to give my own reasons in the most compendious form I can frame. I forbear to recite the facts and the history of the proceedings. These are contained in the speech about to be delivered by my noble and learned friend, Lord Oliver of Aylmerton, which I have had the advantage of reading in draft.
There is no doubt that, in the exercise of its wardship jurisdiction the first and paramount consideration is the well being, welfare, or interests (each expression occasionally used, but each, for this purpose, synonymous) of the human being concerned, that is the ward herself or himself. In this case I believe it to be the only consideration involved. In particular there is no issue of public policy other than the application of the above principle which can conceivably be taken into account, least of all (since the opposite appears to have been considered in some quarters) any question of eugenics. The ward has never conceived and is not pregnant. No question therefore arises as to the morality or legality of an abortion.
The ward in the present case is of the mental age of five or six. She speaks only in sentences limited to one or two words. Although her condition is controlled by a drug, she is epileptic. She does not understand and cannot learn the causal connection between intercourse and pregnancy and the birth of children. She would be incapable of giving a valid consent to contracting a marriage. She would not understand, or be capable of easily of supporting, the inconveniences and pains of pregnancy. As she menstruates irregularly, pregnancy would be difficult to detect or diagnose in time to terminate it easily. Were she to carry a child to full term she would not understand what was happening to her, she would be likely to panic, and would probably have to be delivered by Caesarian section, but, owing to her emotional state, and the fact that she has a high pain threshold she would be quite likely to pick at the operational wound and tear it open. In any event, she would be "terrified, distressed and extremely violent" during normal labour. She has no maternal instincts and is not likely to develop any. She does not desire children, and, if she bore a child, would be unable to care for it.
In these circumstances her mother, and the local authority under whose care she is by virtue of a care order, advised by the social worker who knows her, a gynaecologist, and a paediatrician, consider it vital that she should not become pregnant, and in any case she would not be able to give informed consent to any act of sexual intercourse and would thus be a danger to others. Notwithstanding this, she has all the physical sexual drive and inclinations of a physically mature young woman of seventeen which is what in fact she is. In addition, she has already shown that she is vulnerable to sexual approaches, she has already once been found in a compromising situation in a bathroom, and there is significant danger of pregnancy resulting from casual sexual intercourse. To incarcerate her or reduce such liberty as she is able to enjoy would be gravely detrimental to the amenity and quality of her life, and the only alternative to sterilisation seriously canvassed before the court is an oral contraceptive to be taken daily for the rest of her life whilst fertile, which has only a 40 per cent. chance of establishing an acceptable regime, and has serious potential side effects. In addition, according to the evidence, it would not be possible in the light of her swings of mood and considerable physical strength to ensure the administration of the necessary daily dose. As her social worker put it "If 'B') is … in one of her moods … there is no way" she would try to give her a pill.
In these circumstances, Bush J. and the Court of Appeal both decided that the only viable option was sterilisation by occlusion of the fallopian tubes (not hysterectomy). Apart from its probably irreversible nature, the detrimental effects are likely to be minimal. For my part, I do not myself see how either Bush J. or the Court of Appeal could sensibly have come to any other possible conclusion applying as they did as their first and paramount consideration the correct criterion of the welfare of the ward.
The ward becomes of age (18) on 20 May next. There seems some doubt as to whether some residual parens patriae jurisdiction remains in the High Court after majority. (c.f, Hoggett, Mental Health Law, 2nd ed. (1984), p. 203 and Halsbury's Laws of England, 4th ed., vol. 8 (1974), at paragraph 901, note 6). I do not take this into account. It is clearly to the interest of the ward that this matter be decided now and without further delay. We should be no wiser in twelve months' time than we are now and it would be doubtful then what legal courses would be open in the circumstances.
We were invited to consider the decision of Heilbron J. in In Re D. (A Minor) (Wardship: Sterilisation) [1976] Fam. 185, 193, when the judge rightly referred to the irreversible nature of such an operation and the deprivation, which it involves, of a basic human right, namely the right of a woman to reproduce. But this right is only such when reproduction is the result of informed choice of which this ward is incapable. I have no doubt whatsoever that that case was correctly decided, but I venture to suggest that no one would be more astonished than that wise, experienced and learned judge herself if we were to apply these proper considerations to the extreme and quite different facts of the present case.
We were also properly referred to the Canadian case of Re. Eve (1986) 31 D.L.R. (4th) 1. But whilst I find La Forest J.'s history of the parens patriae jurisdiction of the Crown at pp. 14-21 extremely helpful, I find, with great respect, his conclusion at p. 32 that the procedure of sterilisation should never (sic) be authorised for non-therapeutic purposes" totally unconvincing and in startling contradiction to the welfare principle which should be the first and paramount consideration in wardship cases. Moreover, for the purposes of the present appeal I find the distinction he purports to draw between "therapeutic" and "non-therapeutic" purposes of this operation in relation to the facts of the present case above as totally meaningless, and, if meaningful, quite irrelevant to the correct application of the welfare principle. To talk of the "basic right" to reproduce of an individual who is not capable of knowing the causal connection between intercourse and childbirth, the nature of pregnancy, what is involved in delivery, unable to form maternal instincts or to care for a child appears to me wholly to part company with reality.
In the event, I am quite sure that the courts below had jurisdiction, and applied the right criterion for the right reasons, after careful consideration of all the evidential material before them. I would certainly have come to the same conclusion myself had I been dealing with the question de novo, but even if I were not certain of this I would be extremely loath in these circumstances to differ from the experienced first instance judge, and the strong Court of Appeal who supported his decision. In the circumstances this appeal should be dismissed. There must be the usual legal aid taxation in the case of the first defendant.
My Lords,
The facts on which this appeal depends, which are fully recounted in the judgment of Dillon L.J. in the Court of Appeal and in the speech of my noble and learned friend Lord Oliver of Aylmerton, emerge with the utmost clarity from the evidence of the ward's mother, the social workers who have been most closely concerned in the day to day care of the ward, the consultant paediatrician whose patient she has been since February 1981 and, quite independently, the consultant psychiatrist and consultant gynaecologist who have examined the ward on behalf of the Official Solicitor as guardian ad litem. It is wholly appropriate in such a case as this that the Official Solicitor should safeguard the interests of the ward by ensuring, in particular, that the court has the benefit of independent medical opinions. The Official Solicitor also acted with complete propriety in bringing the case first to the Court of Appeal and then to your Lordships' House in view both of the public interest aroused by the decision and of its apparent conflict with the views expressed by the Supreme Court of Canada in Re Eve (1986) 31 D.L.R. (4th) 1.
It is unfortunate that so much of the public comment on the decision should have been based on erroneous or, at best, incomplete appreciation of the facts and on mistaken assumptions as to the grounds on which the decision proceeded. I can only join with others of your Lordships in emphasising that this case has nothing whatever to do with eugenic theory or with any attempt to lighten the burden which must fall on those who have the care of the ward. It is concerned, and concerned only, with the question what will promote the welfare and serve the best interests of the ward.
There is no reason to doubt that the Canadian decision in Re Eve was correct on its own facts. La Forest J., delivering the...
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