Re A (Children) (Conjoined Twins) (No 2)
| Jurisdiction | England & Wales |
| Judgment Date | 2001 |
| Date | 2001 |
| Year | 2001 |
| Court | Court of Appeal (Civil Division) |
Medical treatment – Children – Invasive surgery – Conjoined twins J and M – Court authorising separation inevitably causing death of M – Official Solicitor as guardian ad litem not appealing decision to separate – Third party applying to remove Official Solicitor as guardian ad litem for M – Whether Official Solicitor failing in duty to child.
The applicant was a director of the Prolife Alliance, a non profit making unincorporated association based in London, that campaigned for absolute respect for innocent human life from the time of fertilisation to natural death. On 22 September 2000 the Court of Appeal had ordered that it was lawful to perform an operation to separate conjoined twins, J and M, in circumstances where if the operation was not performed J’s heart, which circulated oxygenated blood to both children, would fail and both would die, probably within three to six months, but if the operation was performed M would die forthwith as a consequence. Permission had been granted to appeal to the House of Lords, though it was made clear at the time that the application was made that the Official Solicitor had not yet decided whether or not to appeal. On 28 September 2000 a press statement was issued making public the decision of the Official Solicitor and the parents not to appeal. On 30 October 2000 the applicant issued a summons seeking the removal of the Official Solicitor as guardian ad litem for M on the ground that he improperly refused or neglected to present an appeal to the House of Lords and for the appointment of the applicant in his place. That application was refused on merit and the applicant sought permission to appeal.
Held – If the guardian ad litem had manifestly acted contrary to the child’s best interests, the court would remove him even though neither his good faith nor his diligence was in question. In the present case the guardian had made a responsible and considered decision which had not breached his duty to the child and there was no question but that he had acted with total propriety. A decision not to appeal where permission to appeal had been obtained on the express understanding that the possible appellants needed to time to consider the matter, and where no consideration moved from the possible respondents, could not be called a compromise and did not require the approval of the court. Accordingly the application would be refused.
Cases referred to in the judgment of the courtA (children) (conjoined twins: surgical separation), Re[2000] 3 FCR 577, [2000] 4 All ER 961, [2001] 1 FLR 1, 9 BHRC 261, CA.
Birchall, Re, Wilson v Birchall (1880) 16 Ch D 41, CA.
Taylor’s Application, Re [1972] 2 QB 369, [1972] 2 All ER 873, [1972] 2 WLR 1337, CA.
Application for leave to appealBruno Quintavalle, the director of the Prolife Alliance, sought leave to appeal from the order of Dame Elizabeth Butler-Sloss P made on 3 November 2000 whereby she refused his application for the removal of the Official Solicitor as guardian ad litem for a child, M, and the appointment of the applicant in his place. The facts are set out in the judgment of the court.
Allan Levy QC and Barbara Hewson (instructed by Brown Cooper) for the proposed intervenor.
Adrian Whitfield QC (instructed by Hempsons) for the applicant.
David Harris QC (instructed by the Official Solicitor) for the first respondent.
Judith Parker QC (instructed by Bindmans) for the fourth respondent.
At the conclusion of the argument the court dismissed the application for reasons to be given at a later date. 6 November 2000 the following judgment of the court was delivered.
WARD LJ.1. After a hearing which ended at about 6.30 pm last Friday, 3 November, we dismissed an application made on behalf of Mr Bruno Quintavalle for permission to appeal from an order of the President of the Family Division made at about 1.30 pm that day. We now give our reasons for our decision.
2. The conjoined twins, Jodie and Mary, were born on 8 August 2000. The basic facts about their condition are well known and we...
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