Re J (A Minor)
| Jurisdiction | England & Wales |
| Judgment Date | 15 March 1993 |
| Date | 15 March 1993 |
| Court | Family Division |
JOHNSON, J
Child – medical treatment – baby needing blood transfusions to save life – parents Jehovah's Witnesses – refusing to agree to blood transfusions – whether court should give leave for treatment – application to be made to the High Court.
Medical treatment – child – emergency treatment and blood transfusions – parents refusing treatment because of sincerely held religious beliefs – contested issues to be transferred to High Court.
Procedure – application for medical treatment to be given to child – parents opposing treatment from sincerely held religious beliefs – emergency protection order and interim care order inappropriate – application to be made to High Court.
A child was born prematurely on 18 January 1993. She suffered from a condition which rendered blood transfusions necessary to save her life. The child's parents were Jehovah's Witnesses and would not agree to blood transfusions. The consultant paediatrician sought help from the local authority. On 22 January 1993, on the ex parte application of the local authority, the local family proceedings court made an emergency protection order. The court stated as its reasons for making the order:"… there is reasonable cause to suspect that the child is suffering or is likely to suffer significant harm because the parents are withholding their permission to give urgent medical treatment and unless this treatment is received the child may die."
Following the making of the order blood transfusions were given to the child.
On 25 January 1993 the local authority applied to the family proceedings court for a care order. On 27 January 1993 the justices' clerk transferred the application for hearing in the High Court. The matter was heard by the Judge on 28 January 1993. He gave directions which would have the consequence of ensuring that whenever medical need arose the child would receive blood transfusions. The Judge reserved judgment as to the appropriate legal framework for such decisions.
Held – (1) Where a child's parents were caring, committed and capable, and the only issue which arose for decision was whether blood transfusions should be given to the child against the sincerely held religious beliefs of the parents, it was wholly inappropriate to
make an emergency protection order or an interim care order. The most appropriate legal framework was to invoke the inherent jurisdiction of the High Court. This would enable a ruling to be given which would have the authority of the High Court to the exclusion of the views of parents, social workers, or others.
(2) The Judges of the Family Division operated arrangements by which at any time at least one of those Judges was available to deal with emergency applications. The hearing should, whenever possible, be inter partes. The flexibility of the system was also sufficient to enable directions to be given for a hearing before a High Court Judge on circuit or before a circuit Judge attached to one of the care centres around England and Wales. If an inter partes hearing was not possible, the gravity of such applications was such that they should be dealt with by a Judge of the Family Division. They should ordinarily be dealt with under the inherent jurisdiction but if made under the Children Act 1989 should be transferred to the Family Division as a matter of urgency.
Per curiam: By s 8 of the Children Act 1989 a specific issue order was defined as "an order for giving directions for the purpose of determining a specific question". It appeared to be at least arguable that before the specific question was determined the statute envisaged the preliminary step of giving directions. Further, an "issue" could not be effectively "determined" on an ex parte application.
Statutory provisions referred to:Children Act 1989, ss 2(6), 3(1), 8, 44(4)(c), 45(8), (9) and (10) and 100(5).
Cases referred to:Devon County Council v S[1992] 2 FCR 827.
E (A Minor) (Wardship: Medical Treatment), Re[1992] 2 FCR 219.
J v C [1970] AC 668; [1969] 1 All ER 788.
Andrew McFarlane for the local authority.
Richard Daniel for the parents.
Robert Warnock for the guardian ad litem.
MR JUSTICE JOHNSON.J was born on 18 January 1993. Her arrival was premature by no less than 12 weeks. She weighed just 1.28 kilograms, 2lbs 13oz. Thanks to advances in medical science and the skill and commitment of the doctors and nurses who were at hand to help her, J's chance of survival was good but, let it be emphasized, by no means assured. At the hearing before me in Birmingham on 28 January 1993 little J's bodily functions were those of a child who was still within the womb and heavily dependant upon the support system that...
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