Re S (Minors)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,LADY JUSTICE BUTLER-SLOSS,Order |
| Judgment Date | 08 February 1995 |
| Neutral Citation | [1995] EWCA Civ J0208-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 94/1264/F |
| Date | 08 February 1995 |
[1995] EWCA Civ J0208-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (FAMILY DIVISION)
ON APPEAL FROM WREXHAM COUNTY COURT
(Miss Assistant Recorder J Case)
Before: Lady Justice Butler-Sloss and Lord Justice Ward
94/1264/F
MRS J FRANCE-HAYHURST (instructed by Longueville Gittins, Shropshire SY11 2NU)) appeared on behalf of the Appellant.
MISS H MANNERS (instructed by Minshall Pugh and Company, Shropshire SY11 2NU)) appeared on behalf of the Respondent.
( )
Wednesday, 8th February 1995
This is an appeal by a mother against Orders made by the learned Assistant Recorder, Mrs Janet Case, at the Wrexham County Court in September last year, in respect of the four daughters of the marriage between this mother and the father. The children are aged 12, 8, 6 and 3. The Orders made were firstly, Prohibited Steps Orders, relating to each child and expressed in these terms:
"… that [the mother] is forbidden whether by herself, her agents or otherwise whosoever, to cause or permit the said child… to carry cards which purport to restrict or limit any medical treatment."
Secondly, the court ordered that:
"The consent of the [mother] to Medical Treatment of the said children … shall be dispensed with."
and that:
"The [mother] shall inform all medical personnel of the terms of this Order; namely —Her consent to Medical Treatment has been dispensed with."
The mother's appeal is primarily directed at the wide terms of that second Order.
The material facts can be stated quite shortly. These parents married in 1979 and by the time that they separated, early in 1992, there was an established pattern of the mother taking some of the children, on some occasions, to Kingdom Hall, there to engage with her in the practice of her faith as a Jehovah's Witness. She had joined that Church some time during the course of the marriage and it had not met with any, or any serious, objection from the father.
After the separation, and as difficulties arose about contact, he became more concerned, or more vociferous at least, about a heavier involvement by the children in the practices of their faith. He brought proceedings in 1992 in which he asked for Orders both to define his contact and for a Specific Issue Order, the precise terms of which was nowhere to be found in the application.
It is quite clear from the evidence which he filed in support of those proceedings, that his real concern was that the children had been discovered by him, early in 1993, to be carrying identity cards which were pinned to their coats. Those cards, which were printed, identified the child by name. There was provision on the printed card for the parents to be identified. The mother had deleted the "S" in that word, giving the impression, therefore, that there was but one parent (herself) and her address was given. The card then stated that "As parents", amended to "parent":
"…we are deeply interested in the welfare of our child [whose name is given]. Because of our family's convictions as Jehovah's Witnesses we do not accept blood transfusions. We do accept non-blood expanders and other medical treatment. In case of accident, please contact us immediately. We likely can provide information as to doctors who respect our religious convictions and may already have provided medical care for us."
The card urged the reader to look inside. Inside was printed:
"MEDICAL DIRECTIVE/RELEASE (Child)"
"I the undersigned…" and then the mother gives her name "…the lawful parent of [the child concerned] born [on the relevant date] being one of Jehovah's Witnesses with firm religious convictions have resolutely decided to obey the Bible command "Keep abstaining… from blood" (Acts 15: 28, 29). With full realisation of the implications of this position I HEREBY:
1. CONSENT (subject to the exclusion of the transfusing of blood or blood components) to all such necessary emergency treatment to the child including general anaesthesia and surgery as the doctors treating the child may in their professional judgment deem appropriate to maintain life.
2. DIRECT (a) that such consent is temporary and only effective until such time as I am contacted and am able to discuss further proposed treatment and give informed consent
(b) that such consent and any subsequent consent that I may give EXCLUDES the transfusion of blood or blood components but includes the administration of non-blood volume expanders such as saline, dextran and Haemaccel, hetastarch and Ringer's solution
and (c) that this express refusal of blood is absolute and is not to be overridden in ANY circumstances by a purported consent of a relative or other person or by Court Order. Such refusal remains irrevocably in force even though the doctor(s) treating the child consider that such refusal may be life threatening.
3. ACCEPT full legal responsibility for this decision and RELEASE all those treating the child from any liability or any consequences resulting from such exclusion."
The cards were dated 14th January and signed by the mother and witnessed by two who state their religion to be ministers, presumably of the Church.
In her response to the father's evidence the mother stated that:
"I note the Respondent objects to not being named on the children's identity cards and I put his name and address on it. He is all too well aware that he would, of course, be contacted if there was anything wrong with any of the children. I am all too well aware that it is not my decision alone concerning medical treatment for the children. I have never tried to exclude the Respondent from his parental responsibility."
The father was not wholly satisfied and he claimed that with regard to blood transfusions:
"In case of a serious accident endangering the lives of our children I do require our children to have a blood transfusion which would save their lives and/or improve their chances of recovery."
He had, however, not yet given any indication of the specific issue which we wished the court to resolve. His Honour Judge Eifion Roberts QC defined it in January 1984 as being an issue expressed in these terms:
"… namely whether the said child shall be brought up in the faith of a Jehovah's Witness…"
and he gave consequential directions, including the ordering of the Court Welfare Officers' reports.
The Court Welfare Officer duly reported to the court that, having met the parties, and engaged in discussion with them, there appeared to be:
"…discussion about a specific issue concerning Jehovah's Witness identification cards but [the father] said that the matter had been resolved and was no longer an issue. It was therefore not addressed in my report."
He insisted on asking for a decision as to whether or not the children should be brought up as Jehovah's Witnesses and the mother in turn asserted her belief that the interests of the children demanded that they did not have these transfusions of blood.
The matter came before the learned Assistant Recorder, even though it had been directed that it should be heard by a County Court Judge, but she took on the responsibility, quite properly in the circumstances, of dealing with the matters which came before her. It was by then no clearer what issues she specifically had to decide. It was noted, limited though the note may be, that the nub of the matter was father's concern as to the effect of the identification card ruling against blood transfusions. She decided this:
"The Court is today required by the Children Act to give first and prime consideration for the welfare of the child. It is in the best interests of the children to have blood transfusions.
No one should seek to interfere with their right to live and that includes receiving full and proper treatment for disease and accidental injury. It is essential that these children are never placed in jeopardy by a parent or the Court. I am concerned to take into account her preference not to have blood. The terminology of the card is to overrule anyone and even a court order. In my judgment these are seriously against the interests of the child and I am prohibiting them in respect of each child. I forbid any of these four children to carry these cards and therefore this solves that problem. When they arrive at the hospital, if in the care of the Father then no problem will arise. On his arrival at the hospital the Father will give his consent. When in [the mother's] care, on her arrival at the hospital she, because of her religious beliefs, is placed in a dilemma to refuse blood. This is wholly against the interest of the child and therefore I direct that [the mother] shall inform any hospital at which any of these children are taken that whilst she may indicate her own refusal, but she also has to explain to the hospital staff this court order requiring her consent to be dispensed with. I accept the sincerity of her religious beliefs."
I do not know whether these cards are now universally issued on the advice of and with the active encouragement of the church. They must feel understandably disappointed that the views of their members have so seldom prevailed when the issues of blood transfusion of their children have come before the courts in a series of cases that may have begun with the judgment of mine in Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 F.L.R. 386 and followed by many others such as Re S (A Minor) (Medical Treatment) [1993] 1 F.L.R. 376, a judgment of Thorpe J; Re O (A Minor) (Medical Treatment) [1993] 2 F.L.R. 149, a judgment of Johnson J; Re R (A Minor) (Blood Transfusion) [1993] 2 F.L.R. 757, Booth J and Re S (A...
To continue reading
Request your trial