Re S (A Minor) (Blood Transfusion: Adoption Order Condition)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAUGHTON,LORD JUSTICE WAITE,LORD JUSTICE PETER GIBSON |
| Judgment Date | 21 April 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0421-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No. CCFMF 94/0023/F |
| Date | 21 April 1994 |
[1994] EWCA Civ J0421-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(ON APPEAL FROM WANDSWORTH COUNTY COURT)
(His Honour Judge Collins)
Before Lord Justice Staughton Lord Justice Waite and Lord Justice Peter Gibson
No. CCFMF 94/0023/F
In the Matter of:
MISS V. MAYER (instructed by Messrs. Milford McBain, London) appeared on behalf of the Appellants.
MR. SPON-SMITH (instructed by the Official Solicitor) acted as an amicus curiae.
There is a girl, whom I will call "E", who was born on 16th November 1988. She is now nearly 5 1/2 years old. Her parents were not married. The mother had a history of mental illness. Eventually, in August 1990, her mother killed herself. The father, in the words of the Judge, is "not on the scene". Nothing has been heard of him since September 1990. Attempts have been made to contact him since, but they have failed.
Meanwhile, in May 1990, E was made a ward of court. Initially she was placed in the care of the London Borough of Wandsworth and with foster parents known to them, Mr. and Mrs. G. They were of mature years. Mr. G was not in good health so the child came to know their daughter, Mrs. H, and her husband and their three children, who were somewhat older than E. So it came about that the Court gave leave to place E for adoption on 8th July 1991.
On 24th July Mr. and Mrs. H applied to the London Borough of Wandsworth, saying that they wanted to adopt her. On the 11th March 1992 they were approved as prospective adopters. She was placed with them on the 1st June 1992. She has been there ever since. That is nearly two years. Everybody agrees that this was a happy solution —E, the child, Mr. and Mrs. H and their own children.
There is one problem. Mr. and Mrs. H are committed Jehovah's Witnesses.
The Judge, His Honour Judge Collins, in the Wandsworth County Court, felt concern that at some time in her life E might need a blood transfusion before she was of an age to consent or refuse consent for herself. The Judge was concerned that Mr. and Mrs. H, in accordance with their beliefs, would refuse consent. In passing, I would say that I suppose that it is distinctly unlikely that such a situation would ever arise before the child attains the age of maturity. But, as Miss Mayer points out, if it did arise it would be a situation of great importance.
Mr. H is a dentist by profession and therefore has some knowledge of medicine. He and his wife are faced with a dilemma. They evidently love the child, E, and wish to adopt her, but they must observe their religious beliefs. His attitude, broadly speaking, has been that he would not impede a blood transfusion if doctors were lawfully able to give one and decided to do so, but he would not consent on behalf of the child.
In those circumstances, if the choice were between adoption or no, then it seems to me that the answer would be clear. It would be far better for the child to remain where she has been for the last two years, and in effect rather longer, than to be torn away from this family and put out for adoption somewhere else, or even to be left merely as a fostered child. To adopt that solution, merely because of a risk which is probably very small that at some stage before she grows up she will need a blood transfusion and legal difficulty would arise, would not seem to me to be right.
Some might think that children should not be placed with Jehovah's Witnesses for adoption. That was the view of the mother of a child in the case of Re. J [1987] 1 FLR 455. There, the mother opposed adoption on that ground. It was held that she was not being unreasonable in her opposition.
In this case the placement of the child with these parents has, so far as I can tell, been a conspicuous success, and it is too late to go back on that now. What the Judge did was to turn to section 12(6) of the Adoption Act 1976. That provides:
"An adoption order may contain such terms and conditions as the Court thinks fit".
At the trial the father gave evidence. This problem was put to him in the course of his evidence. The Judge said:
"The condition which was suggested in the 1990 case, which was the one I am putting forward for discussion now, is a condition which has the effect of instead of making the poor old doctor decide whether or not he is going to court, it makes you decide. That puts the obligation on you. If the situation arises where a doctor says that a blood transfusion is necessary, then instead of arguing with the doctors about it you are going to have to go to court for a ruling. It puts the obligation on you to do it and it will always go to a High Court Judge at short notice on matters of this kind.
Answer: I would be very happy to do that".
In his judgment the Judge said he was imposing a condition. When the order of the Court was drawn up it turned out that what was required was an undertaking. That was recorded as having been given. The undertaking was that the adoptive parents would not withhold consent to a blood transfusion being given to the child during her minority, as may be advised as necessary by a registered medical practitioner, without application where practicable to a court competent to give or refuse consent.
Mr. and Mrs. H now appeal from that order.
At first sight they face the difficulty that they gave an undertaking. Indeed, Mr. H said that he was happy to do so. They now say that they gave it under duress, that it is unnecessary, and they should be released from it.
I can well understand the anxious feeling of prospective adoptive parents in coming to this Court and being asked questions of this kind. Also, it seems to me that this is a case of some importance; and in law, as I shall presently show, the welfare of the children is the first consideration.
On all those grounds I do not think that we should simply turn Mr. and Mrs. H away on the ground that they agreed to the course which the Judge took. I would release them from their agreement if it is right to do so.
We have today the assistance of Mr. Spon-Smith, as a friend of the Court, instructed by the Official Solicitor. The Judge did not have that assistance below. He might have done under r. 18 of the Adoption Rules, in which case there could have been appointed a Guardian for the lawsuit. On reflection it would perhaps have been better if the Judge had taken that course in this case, where there was only one side of the argument before him.
Mr. Spon-Smith starts, as we all should, by referring to section 6 of the Adoption Act.
"In reaching any decision relating to the adoption of a child a court or adoption agency should have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood".
Is it best for the child that there should be such an undertaking as there was in this case? Or, should she be in all possible respects the lawful child of Mr. and Mrs. H, as near as maybe in a similar situation to her three new brothers and sisters. Or are Mr. and Mrs. H to be second class parents as far as she is concerned?
The aim of the Adoption Act is stated in the case of Re. H [1985] FLR 519 by Sir John Arnold at page 527.
"The statute requires that an adoption should be such that all rights, duties, obligations and liabilities of the parents or guardians of infants in relation to the future custody, maintenance and education of the infant should be extinguished and all such rights, duties, obligations and liabilities should vest in...
To continue reading
Request your trial