Re J (A Minor)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BALCOMBE,LORD JUSTICE NOLAN |
| Judgment Date | 10 July 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0710-1 |
| Docket Number | 92/0637 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 July 1992 |
[1992] EWCA Civ J0710-1
The Master of The Rolls
(Lord Donaldson)
Lord Justice Balcombe
Lord Justice Nolan
92/0637
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE THORPE)
Royal Courts of Justice
MR ALLAN LEVY Q.C. and MISS DEBORAH SAWHNEY, instructed by J.M. Somerton Esq. (Cambridge), appeared for the Appellant (Second Defendant).
MR JOHN SAMUELS Q.C. and MISS CAROLINE BUDDEN, instructed by The Solicitor, Cambridgeshire County Council, appeared for the Respondent (Plaintiff).
MRS F (First Defendant) appeared in person.
MR JAMES MUNBY Q.C. and MR RODERIC WOOD, instructed by the Official Solicitor, each appeared as amicus curiae.
Background
Fate has dealt harshly with J. She is now aged 16, having been born on 31st March 1976. She has an older sister, now aged 18, and a younger brother, now aged 13. In November 1981, when she was five, her father died of a brain tumour and in September 1984, when she was eight, her mother died of cancer.
An aunt had been named as the testamentary guardian of the children but, through no fault of hers, was unable to care for them and they were received into the care of the local authority. That authority arranged for them to be temporarily fostered by a local doctor and three months later, in December 1984, they were moved to the home of their first permanent foster parents. Again J. was singularly unlucky. She was bullied by an older child of the foster family and did not receive the protection from the foster parents which she deserved. As a result, in November 1987, she had to be referred to a family consultation clinic suffering from depression and a nervous tic.
In August 1988, when J. was 12, it was appreciated that this fostering arrangement could not continue and she and the other children were moved to new foster parents. True to form, fate struck again when in December 1989 the new foster mother had to undergo surgery for breast cancer. This was followed in February 1990, when J. was almost 14, by the death of her grandfather to whom she was greatly attached. Indeed it may be that this was "the last straw" for J.
Anorexia nervosa, which is J.'s current problem, first manifested itself in June 1990 when J. became obsessive about her schoolwork, wanted to leave school and began losing weight. It should be stressed that anorexia nervosa is an illness which is not the fault of the sufferer. In this it is no different from pneumonia or appendicitis. It is, however, much more difficult to treat and cure, not least because one of its clinical manifestations, which is part and parcel of the disease, is a firm wish not to be cured, or at least not to be cured unless and until the sufferer wishes to cure herself. In this sense it is an addictive illness although, unlike other addictions such as drug taking, the sufferer is not to be blamed for having allowed herself to become addicted.
In September 1990 J. was referred back to the clinic which had seen her three years before and began sessions with a clinical psychologist. Unfortunately this did not resolve the problem and in January 1991, when J. was coming up towards her 15th birthday, it was necessary to resort to in-patient treatment. For this purpose she was admitted to a specialist residential unit for children and adolescents under the care of Dr M., a consultant psychiatrist whom she had first met when she had been referred to the family consultation clinic in 1987. Treatment was continued by the clinical psychologist who had previously been treating J. Whilst at this unit J. displayed violence towards the staff and began injuring herself by picking her skin. This again is a symptomatic consequence of suffering from anorexia nervosa.
To add to J.'s problems, as if she had not enough already, the clinical psychologist treating J. left the area in March 1991, J. then being 15, and was not replaced for five months.
By August 1991 J.'s condition had deteriorated to the point at which for a short time she had to be fed by nasogastric tube and have her arms encased in plaster. Although this was undoubtedly artificial feeding, contrary to some newspaper reports it was not "forced feeding", because J. consented to the insertion and use of such a tube. Again, contrary to those reports, J.'s arms were not encased in plaster without her consent. It was done to prevent her giving way to a compulsive wish to injure herself by picking at her skin.
J.'s chapter of misfortunes continued when, in September 1991, Dr M. suffered a heart attack and contact between him and J. was necessarily severed for some three months. Furthermore J.'s foster parents indicated at about this time that if J. were discharged they could not continue to offer her a home. It is not wholly surprising, and is certainly not J.'s fault, that she remained in the grip of the disease, gradually losing weight or that on one occasion she used violence towards a member of the staff in circumstances which led to the police being called.
These proceedings
It is against this background that the local authority rightly decided that, if it were lawful, it might well become necessary to give J. medical treatment to which she did not consent. They did not necessarily have any particular treatment in mind, and certainly not forced feeding which is always a measure of last resort, designed to maintain life rather than to cure. But it was clearly possible that J. might at any time decide to refuse consent to some form of treatment, even if it was only the oral administration of medicines, because one of the symptoms of anorexia nervosa is a desire by the sufferer to "be in control" and such a refusal would be an obvious way of demonstrating this.
Before the coming into force of the Children Act 1989, the appropriate step would have been an application to make J. a ward of court. Since that Act came into force, a child who is the subject of a care order, as J. was and is, cannot be made a ward of court (see section 100 (2) (c) of that Act). Instead the appropriate procedure is for the authority to apply to the court for leave under section 100 (3) to make an application for the exercise by the court of the inherent jurisdiction of the High Court.
Since there seems to be some doubt about the matter, it should be made clear that the High Court's inherent jurisdiction in relation to children—the parens patriae jurisdiction—is equally exercisable whether the child is or is not a ward of court ( In re M & N (Minors) (Wardship: Publication of Information) [1990] Fam. 211, 223G). Indeed the only additional effect of a child being a ward of court stems from its status as such and not from the inherent jurisdiction, e.g. a ward of court cannot marry or leave the jurisdiction without the consent of the court and no "important" or "major" step in a ward's life can be taken without that consent.
On 24th January 1992 Cazalet J. granted the local authority the necessary leave and gave various directions which are not material for present purposes. In the ensuing proceedings the local authority were the applicants, J.'s aunt was first respondent since she had parental responsibilities concurrently with those of the local authority and J. was the second respondent by the Official Solicitor as her guardian ad litem. In March 1992 J. reached the age of 16 and exercised her right to cease to be represented by the Official Solicitor and instead to instruct solicitors and counsel of her own choice. Very helpfully the Official Solicitor continued to take an interest in the proceedings as amicus curiae.
The hearing before Thorpe J.
The primary issue before Thorpe J. was whether, in the light of the provisions of section 8 of the Family Law Reform Act 1969, and the fact that J. was by then 16 years old, he had any jurisdiction to make orders concerning J.'s medical treatment which conflicted with J.'s expressed wishes. The secondary issue, although one of supreme importance in terms of J.'s well-being, was what treatment should be authorised, if the court had the necessary jurisdiction.
The Authority's application was for (1) leave to move the minor to [a named treatment unit] or such other establishment as the Official Solicitor might approve, without the minor's consent and (2) leave to give the minor medical treatment without her consent. I do not know quite what at that time was the stance adopted by J.'s aunt as first respondent. Before us she made it clear that she was faced with an appalling dilemma. Naturally she was deeply involved emotionally. She very much wanted to respect J.'s wishes, but feared that some of the other adolescents in the Unit were not helping J. She was also worried about the effect which the publicity might have on J.'s younger brother as well as on J. herself. However, she was adamant that J. must not be allowed to die.
Thorpe J. held that he had the necessary jurisdiction and authorised the removal of J. to and her treatment at a specialist London unit, subject to arrangements first being made for the approval of new foster parents.
Section 8 of the Family Law Reform Act 1969
I turn therefore to section 8 and to the common law against the background of which the section was enacted. The common law was authoritatively considered and defined in Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112 and there is no suggestion that it had altered significantly since 1969.
Section 8 is in these terms:
"Consent by persons over 16 to surgical, medical and dental treatment
(1) The consent...
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