IV

Family Law.

1. The test for overriding the parents' refusal.

This is trite law. In In Re B. (A Minor) (Wardship: Sterilisation) [1988] A.C. 199, 202 Lord Hailsham of St. Marylebone L.C. said:-

"There is no doubt that, in the exercise of its wardship jurisdiction the first and paramount consideration is the well being, welfare, or interest (each expression occasionally used, but each, for this purpose, synonymous) of the human being concerned ..."

Insofar as these proceedings are brought under the inherent jurisdiction of the court, that is the test that governs. In any event the position is regulated by Section 1(1) of the Children Act 1989 under which these proceedings are also brought. That provides:-

"When a court determines any question with respect to -

(a) The upbringing of a child; ...

the child's welfare shall be the court's paramount consideration." Emphasis added.

The peremptory terms of this section should be noted. It places the court under a duty to do what is dictated by the child's welfare.

2. The meaning of welfare.

In J. v C. [1970] A.C. 668, 710 Lord MacDermott addressed the question of construction as to the scope and meaning of the words in the Guardianship of Infants Act, 1925, "... shall regard the welfare of the infant as the first and paramount consideration", and he said:-

"I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood."

In Re M.B. (Medical Treatment) [1997] 2 F.L.R. 426, 439 Butler-Sloss L.J. said:-

"Best interests are not limited to best medical interests."

In Re A (Male Sterilisation) [2000] 1 F.L.R. 549, 555 Dame Elizabeth Butler-Sloss, as President, said that:-

"In my judgment best interest encompasses medical, emotional and all other welfare issues."

3. The interface with the criminal law.

It should not need stating that the court cannot approve of a course of action which may be unlawful. The stark fact has to be faced in this case that to operate to separate the twins may be to murder Mary. It seems to me, however, that the question of what is in the best interests of the child is a discrete question from whether what is proposed to be done is unlawful. A patient in terminal decline, racked with pain which treatment may not be able fully to alleviate, may beg to die and it may be said - at least by some - that it is in his best interests that he should be allowed to do so, but that would not justify unlawfully killing him. In my judgment, although the nature of what is proposed to be done has a bearing on how one ascertains where the patient's best interests lie, the ascertainment of those interests is the first but a separate stage of the court's task. If the operation is in the best interests of a child patient, then the court can, as Stage 1 of the task which it has to undertake, give leave for the operation to be undertaken provided, and this will become Stage 2 of the court's task, it can be lawfully done.

4. The main issues in this appeal.

On the basis of foregoing analysis, the crucial questions which arise in this appeal are:-

(1) Is it in Jodie's best interests that she be separated from Mary?

(2) Is it in Mary's best interests that she be separated from Jodie?

(3) If those interests are in conflict is the court to balance the interests of one against the other and allow one to prevail against the other and how is that to be done?

(4) If the prevailing interest is in favour of the operation being performed, can it be lawfully performed?

5. But first, a preliminary issue: is this a fused body of two separate persons, each having a life in being?

All parties took for granted in the court below that Mary is a live person and a separate person from Jodie. In the literature which was placed before us, some commentators had questioned whether this was the right approach to adopt. Consequently we invited counsel to address the question. Before dealing with the law, I should set out the facts, including further material placed before us by the hospital on this particular point.

There is no unanimity of view in answer to the hypothetical question: if Mary had not been joined to Jodie, would she have been born alive? The neonatologist said:-

"Had Mary been born with very tiny lungs she could well have been born alive but would then have been unresuscitatable."

The consultant radiologist said:-

"There would have been a significant risk of her dying of heart failure during the pregnancy ... Mary may well have deteriorated further and died in pregnancy, though I am unable to quantify the risk of this."

The obstetrician felt that:-

"With the degree of abnormalities of the circulatory system I feel that probably Mary would have been born dead."

The cardiologist expressed the firmest view:-

"If Mary and Jodie had been separate and Mary's cardio-respiratory system in utero was as weak as it is now, I think it is 100% likely she would have died at birth had she survived the pregnancy."

Nevertheless he was equally emphatic about her present position:-

"I first reviewed Mary at 72 hours of age, (not at birth) and at that stage although her heart was very large and weak, it was pumping, but contributing probably less than 10% of the circulatory requirements of Mary."

The neonatologist was also clear:-

"When Mary was born the clinicians' judgment was that she did have functions indicative of life. Her heart was beating regularly, she did make some spontaneous respiratory efforts and there were movements of all her limbs."

There was total unanimity about their individuality. The neonatologist said:-

"The twins are considered to be separate individuals. There are two heads, two brains and at different times of the day and night they exhibit different states of wakefulness/alertness and clearly their feeding abilities and patterns are very different."

The cardiologist said:-

"Although the twins share some common tissue, they each have separate hearts, brains, etc., and thus medically I feel are separate individuals."

In the face of that evidence it would be contrary to common-sense and to everyone's sensibilities to say that Mary is not alive or that there are not two separate persons. It is, therefore, unnecessary to examine the law in any depth at all. In one of the early cases, R. v Poulton (1832) 5 C. & P. 329 Littledale J. in his summing-up to the jury in a murder trial stated:-

"With respect to the birth, being born must mean that the whole body is brought into the world ... Whether the child was born alive or not depends mainly on the evidence of the medical men."

In R. v Handley (1874) 13 Cox 79, 81 Brett J. told the jury they would have to consider whether the child was born alive:-

" ... i.e. whether it existed as a live child, breathing and living by reason of breathing through its own lungs alone, without deriving any of its living or power of living by or through any connection with its mother."

Brooke J., as he then was, in Rance v Mid-Downs H.A. [1991] 1 Q.B. 587, 621 adopted a similar definition, saying that a child is born alive:-

"... if, after birth, it exists as a live child, that is to say, breathing and living by reason of its breathing through its own lungs alone, without deriving any of its living or power of living by or through any connection with its mother."

I think I can guarantee that when My Lord said that, he did not relate his observations to Siamese twins.

Here Mary has been born in the sense that she has an existence quite independent from her mother. The fact that Mary is dependent upon Jodie, or the fact that twins may be interdependent if they share heart and lungs, should not lead the law to fly in the face of the clinical judgment that each child is alive and that each child is separate both for the purposes of the civil law and the criminal law.

I would not wish to leave this topic without saying firmly that the notions expressed in earlier times that Siamese twins were "monsters" is totally unacceptable, indeed repugnant and offensive to the dignity of these children in the light of current medical knowledge and social sensibility. I deprecate any idea of "monstrous birth".

6. Jodie's welfare: where do her best interests lie?

Mr Taylor, on the parents' behalf, faces an uphill struggle to persuade this court that Johnson J. was wrong to find that the operation would be in Jodie's best interests, and to be fair to him, he recognises the difficulty. There was abundant evidence before the judge to justify his conclusion which could not be attacked on appeal unless it was plainly wrong, that is to say unless it fell outside the generous ambit within which reasonable disagreement is possible. Far from being plainly wrong, Johnson J. was in my judgment plainly right to conclude that the operation would be in Jodie's best interest.

The salient facts are these. The operation itself carries a negligible risk of death or brain damage. On the contrary the operation is overwhelmingly likely to have the consequence that Jodie's life will be extended from the period of 3-6 months or a little more to one where she may enjoy a normal expectancy of life. Prolonging her life is an obvious benefit to her. In general terms, she will live a normal or fairly normal life. Her present intellectual functioning is good and there is no reason to think that she will not have the mental capacity fully to enjoy her life. There is every chance that she will walk reasonably normally though future operations cannot be ruled out. She will have her own bladder and should be capable of controlling it. There is no certainly about bowel control though it is interesting to note that the opinion of Great Ormond Street is hopeful in this respect. At worst she will have to wear a colostomy bag. She is expected to be capable of satisfactory sexual functioning. I will deal separately with the problems that will or may arise in the parents or others giving care to Jodie but in the context of the argument which has dominated this case, namely the sanctity of life and the worthwhileness of life, it seems to me impossible to say that this operation does not offer infinitely greater benefit to Jodie than is offered to her by letting her die if the operation is not performed.

7. A more difficult question - Mary's welfare: where do her best interests lie?

7.1 The difficulties in the judge's approach.

The steps in the analysis of Mary's best interests as carried out by Johnson J. are:-

(i) her "pitiable" state will never improve;

(ii) there is no reliable way to test whether she is hurting or in pain; but,

(iii) linked as they are, Jodie's wish to move "pulling Mary with her" would hurt Mary: this was an "horrendous scenario";

(iv) accordingly the remaining few months of her life if not separated would not simply be worth nothing - they would hurt Mary;

(v) to prolong Mary's life for those few months would be very seriously to her disadvantage.

The careful criticisms of counsel have revealed some flaws in these propositions and lead me to the preliminary conclusions that:-

(i) I agree with the judge's assessment: one pities Mary because her position is utterly dire for she exists pathetically on borrowed time.

(ii) Although there may be no reliable way of telling whether she can differentiate between pleasure and pain, the Great Ormond Street observations would suggest that she tends ordinarily to be quite comfortable.

(iii) The evidence seized on by the judge (given, one has observed, in answer to his promptings) may sit a little uneasily with his main finding of the uncertainty of the extent to which her primitive brain can register pain. The horror of the scenario is more likely, therefore, to impinge upon Jodie who, being sentient, may find it more difficult to cope with this hindrance to her instincts and development.

(iv) The conclusion that the ensuing months of Mary's life are worth nothing brings the dichotomy between quality of life and sanctity of life into critical focus.

(v) Whether the operation to separate the twins is properly to be viewed in terms of a prolongation of her life, as opposed to its termination, is again a critical element of the analysis.

7.2 The welfare assessment.

The question of Mary's best interest is one of the key and one of the difficult issues in the case and it calls for thorough exposition.

That Mary's welfare is paramount is a trite observation for family lawyers. Welfare dictates the outcome of the question relating to her upbringing which is before the court. It means no more and no less than that the court must decide what is best for her, taking all her interests and needs into account, weighing and then bringing into balance the advantages against disadvantages, the risks of harm against the hopes of benefit which flow from the course of action under consideration.

The first step must be to characterise that course of action. Here it is proposed to operate to separate Mary from Jodie. So the first question is what are the gains and losses from that intervention? I would judge the answer by application of the test expressed by Lord Brandon of Oakbrook in In Re F. at p. 55 F:-

"The operation or other treatment will be in their best interests if, but only if, it is carried out in order either to save their lives, or to ensure improvement or prevent deterioration in their physical or mental health."

The only gain I can see is that the operation would, if successful, give Mary the bodily integrity and dignity which is the natural order for all of us. But this is a wholly illusory goal because she will be dead before she can enjoy her independence and she will die because, when she is independent, she has no capacity for life. The operation is not capable of ensuring any other improvement to her condition or prevent any deterioration in her present state of health. In terms of her best health interests, there are none. To be fair to the hospital, they do not pretend that there are.

If one looks to the operation as a means of meeting any other needs, social, emotional, psychological or whatever, one again searches in vain. One cannot blind oneself to the fact that death for Mary is the certain consequence of the carrying out of this operation.

7.3 Introducing Bland.

If the search is to find how, if at all, there can be any benefit from an operation which it is known will terminate her life, then one must look to Airedale N.H.S. Trust v Bland [1993] A.C. 789 for guidance because there, as here, it was known that the proposed course of action would terminate life. Tony Bland's awful predicament is well known. He was a young supporter of Liverpool F.C. who was caught in the Hillsborough crush which reduced him to a persistent vegetative state. The hospital applied for a declaration that it might lawfully discontinue all life-sustaining treatment and medical support measures designed to keep him alive in that state, including the termination of ventilation, nutrition and hydration by artificial means. That declaration was granted. The speeches in the House of Lords have been the subject of much academic scrutiny: see for example Kennedy and Grubb, Withdrawal of Artificial Hydration and Nutrition: Incompetent Adult (1993) 2 Med. L. Rev. 359; Kennedy and Grubb, Medical Law, 2nd Edn., Ch. 16; J. Finnis, Bland, Crossing the Rubicon, (1993) 109 L.Q.R. 329 and J. Keown, Restoring Moral and Intellectual Shape to the Law after Bland(1997) 113 L.Q.R. 481. Looking at the matter very broadly, the drift of their Lordships' thinking was along these lines.

(i) There was some recognition that the intention was to cause death.

(ii) Actively to bring a patient's life to an end is:-

"to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia - actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law": per Lord Goff at p. 865 F.

(iii) Withdrawal of treatment was, however, properly to be characterised as an omission.

(iv) An omission to act would nonetheless be culpable if there was a duty to act.

(v) There was no duty to treat if treatment was not in the best interests of the patient.

(vi) Since there was no prospect of the treatment improving his condition the treatment was futile and there was no interest for Tony Bland in continuing the process of artificially feeding him upon which the prolongation of his life depends.

We see shades of Bland in the way Johnson J. framed his vital fourth and fifth proposition, and the way in which he wrestled with the problems of acts and omissions. I must, therefore, examine his propositions (iv) and (v) in the light of the speeches in the House of Lords and the academic commentary thereon.

7.4. Would Mary's life if not separated from her twin "be worth nothing to her"?

The judge must have reached that conclusion by forming an assessment of the quality of her life. How did the quality of life argument enter the jurisprudence? As far as I can trace, it seems to have been introduced by In Re B. in 1981, the case of the Down's Syndrome baby with the intestinal blockage. It should be noted that that case came before the High Court judge in the morning and was decided by the Court of Appeal in the afternoon. The test adopted by Templeman L.J. at p. 1424 B was:-

"... whether the life of this child is demonstrably going to be so awful that in effect the child must be condemned to die."

Dunn L.J. observed at p. 1424 H that:-

"There is no evidence at all as to the quality of life which the child may expect. As Mr Turcan on behalf of the Official Solicitor said, the child should be put into the same position as any other Mongol child and must be given the chance to live an existence. I accept that way of putting it."

That was practically all I had to go on when deciding Baby C.'s future: In Re C. (A Minor) (Wardship: Medical Treatment) [1990] Fam. 26. That cruelly disadvantaged baby was dying. Although I (not for the first time nor for the last) failed to express myself with "felicity", the Court of Appeal did not appear to disapprove of the twin strands of my approach: firstly that no treatment would alter the hopelessness of the child's position and, secondly, that insofar as I was able to assess the quality of life "which as a test in itself raises as many questions as it can answer" I judged the quality of her life to be demonstrably awful and intolerable following In Re B.

In Re J. (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33 which followed shortly thereafter, was another damaged young baby case, though here she was not terminally ill. The court rejected the Official Solicitor's first submission, which was (see p. 42 B):-

"His first, or absolutist, submission is that a court is never justified in withholding consent to treatment which could enable a child to survive a life-threatening condition whatever the pain or other side effects inherent in the treatment and whatever the quality of life which it would experience thereafter." I add the emphasis.

Having rejected it, the court was left only with the quality of life argument and whether life would be intolerable to the child as judged from the perspective of the child. [Since a "substituted judgment" approach has been rejected by Bland, I doubt whether that view is still good law. That, however, is not the main point]. John Keown in his penetrating analysis of Bland seems to me correctly to identify that counsel in In Re J. was confusing the doctrine of vitalism on the one hand and the true principle of sanctity of life on the other. Vitalism holds that human life is an absolute moral value and that it is wrong either to shorten it or to fail to lengthen it. This is too extreme a position to hold.

The sanctity of life doctrine holds that human life is created in the image of God and is therefore possessed of an intrinsic dignity which entitled it to protection from unjust attack. The "right to life" is essentially a right not to be intentionally killed, according to John Keown. Taylor L.J. began his judgment in In Re J. by setting out three preliminary principles not in dispute. The first was that welfare is the court's paramount consideration.

"Secondly, the court's high respect for the sanctity of human life imposes a strong presumption in favour of taking all steps capable of preserving it, save in exceptional circumstances. The problem is to define those circumstances.

Thirdly, and as a corollary to the second principle, it cannot be too strongly emphasised that the court never sanctions steps to terminate life. That would be unlawful. There is no question of approving, even in a case of the most horrendous disability, a course aimed at terminating life or accelerating death. The court is concerned only with the circumstances in which steps should not be taken to prolong life."

The Archbishop puts as his first "overarching moral consideration":-

"Human life is sacred, that is inviolable, so that one should never aim to cause an innocent person's death by act or omission."

The report of the Select Committee of the House of Lords on Medical Ethics (HL Paper 21-I, Para. 237) similarly provides:-

"The (prohibition of intentional killing) is the cornerstone of law and social relationships. It protects each one of us impartially, embodying the belief that all are equal. We do not wish that protection to be diminished ..."

A joint statement by the Anglican and Roman Catholic Archbishops in the aftermath of the House of Lords' judgment in Bland included the following passage to which the Archbishop of Westminster has helpfully drawn our attention:-

"Those who become vulnerable through illness or disease deserve special care and protection. Adherence to this principle provides a fundamental test as to what constitutes a civilised society ... Because human life is a gift from God to be preserved and cherished, the deliberate taking of life is prohibited except in self-defence or the legitimate defence of others ... a pattern of care should never be adopted with the intention, purpose or aim of terminating life or bringing about the death of a patient."

What the sanctity of life doctrine compels me to accept is that each life has inherent value in itself and the right to life, being universal, is equal for all of us.

The sanctity of life doctrine does, however, acknowledge that it may be proper to withhold or withdraw treatment. The Archbishop points out that in Roman Catholic moral theology one is justified in declining "extraordinary" treatment where the prospective benefits of treatment do not clearly warrant the burdensome consequences it is likely to impose such as physical pain, psychological stress, social dislocation, and financial expenditure.

John Keown argues, to my mind very persuasively, that:-

"The question is always whether the treatment would be worthwhile, not whether the patient's life would be worthwhile. Were one to engage in judgments of the latter sort, and to conclude that certain lives were not worth living, one would forfeit any principle basis for objecting to intentional killing." He has added the emphasis.

In my judgment, that is essentially what the court was doing in In Re J. and what I was trying to do in In Re C. Lord Goff makes the point in Bland at p. 868 E-H:-

"But if the question is asked, as in my opinion it should be, whether it is in his best interests that treatment which has the effect of artificially prolonging his life should be continued, that question can sensibly be answered to the effect that his best interests no longer require that it should be.

Even so, a distinction may be drawn between (i) cases in which, having regard to all the circumstances (including, for example, the intrusive nature of the treatment, the hazards involved in it, and the very poor quality of life which may be prolonged for the patient if the treatment is successful), it may be judged not to be in the best interests of the patient to initiate or continue life-prolonging treatment, and (ii) cases such as the present in which, so far as the living patient is concerned, the treatment is of no benefit to him because he is totally unconscious and there is no prospect of any improvement in his condition. In both classes of case, the decision whether or not to withhold treatment must be made in the best interests of the patient. In the first class, however, the decision has to be made by weighing the relevant considerations. For example, in In Re J. (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33, the approach to be adopted in that case was stated by Taylor L.J. as follows, at p. 55:

"I consider the correct approach is for the court to judge the quality of life the child would have to endure if given the treatment and decide whether in all the circumstances such a life would be so afflicted as to be intolerable to that child.""

In Keown's analysis:-

"From the standpoint of the sanctity doctrine, a central objection to the Quality of life philosophy is that it denies the ineliminable value of each patient and engages in discriminatory judgments, posited on fundamentally arbitrary criteria such as physical or mental disability, about whose lives are "worthwhile" and whose are not. The arbitrariness is highlighted when it is asked which disabilities, and to which degree, are supposed to make life not worth living?" Again it is his emphasis.

7.5 Conclusions as to the worth of Mary's life.

Given the international Conventions protecting "the right to life", to which I will return later, I conclude that it is impermissible to deny that every life has an equal inherent value. Life is worthwhile in itself whatever the diminution in one's capacity to enjoy it and however gravely impaired some of one's vital functions of speech, deliberation and choice may be. I agree with the Archbishop that:-

"The indispensable foundation of justice is the basic equality in worth of every human being."

This accords with the observation of Lord Mustill in Bland at p. 894 D:-

"... whilst the fact that a patient is in great pain may give him or her a powerful motive for wanting to end his or her life, to which in certain circumstances it is proper to accede, is not at all the same as the proposition that because of incapacity or infirmity one life is intrinsically worth less than another. That is the first step on a very dangerous road indeed, and one which I am not willing to take. "

Neither am I. In my judgment Johnson J. was wrong to find that Mary's life would be worth nothing to her.

7.6 Johnson J.'s fifth proposition: "To prolong Mary's life ... would be very seriously to her disadvantage."

My difficulty with that proposition lies in the characterisation that the treatment under consideration is a course of action which will prolong Mary's life. This again derives from Bland. It is best seen in Lord Goff's speech. At p. 865 D he points out that the law draws a crucial distinction between cases in which a doctor decides not to provide life-prolonging treatment, and those in which he decides, for example by administering a lethal drug, actively to bring his patient's life to an end. The latter course crosses the Rubicon (p. 865 F). At the heart of the distinction is the difference between acts and omissions. He says at p. 866 F:-

"The distinction appears, therefore, to be useful in the present context in that it can be invoked to explain how discontinuance of life support can be differentiated from ending a patient's life by a lethal injection. But in the end the reason for that difference is that, whereas the law considers that discontinuance of life support may be consistent with the doctor's duty to care for his patient, it does not, for reasons of policy, consider that it forms any part of his duty to give his patient a lethal injection to put him out of his agony."

The decision to discontinue treatment which prolongs life is governed by the patient's best interests (p. 867 C). The question at the heart of the case is on what principle the doctor can justifiably discontinue the process (p. 867 H). He continues on p. 868 A:-

"It is crucial for the understanding of this question that the question itself should be correctly formulated. The question is not whether the doctor should take a course which will kill his patient, or even take a course which has the effect of accelerating his death. The question is whether the doctor should or should not continue to provide his patient with medical treatment or care which, if continued, will prolong his patient's life. The question is sometimes put in striking or emotional terms, which can be misleading. For example, in the case of a life-support system, it is sometimes asked: should a doctor be entitled to switch it off, or pull the plug? And then it is asked: can it be in the best interests of the patient that a doctor should be able to switch the life support system off, when this will inevitably result in the patient's death? Such an approach has rightly been criticised as misleading, for example by Professor Ian Kennedy in his paper Treat Me Right, Essays in Medical Law and Ethics and by Thomas J. in Auckland Area Health Board v Attorney-General [1993] 1 N.Z.L.R. 235, 247. This is because the question is not whether it is in the best interests of the patient that he should die. The question is whether in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care."

He concludes at p. 869 D:-

"But for my part I cannot see that medical treatment is appropriate or requisite simply to prolong a patient's life, when such treatment has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition ... But in the end, in a case such as the present, it is the futility of the treatment which justifies its termination."

 

Finally, at p. 837C he says:-

"To me, the crucial point at which I find myself differing from Mr. Munby was that I was unable to accept his treating the discontinuance of artificial feeding in the present case as equivalent to cutting a mountaineer's rope or severing the airpipe of a deep sea diver. Once it is recognised, as I believe it must be, that the true question is not whether the doctor should take a course in which he will actively kill his patient, but rather whether he should continue to provide his patient with medical treatment or care which, if continued, will prolong his life, then as I see it, the essential basis of Mr Munby's submission disappears."

7.7 Act or omission in this case?

I set out earlier (I realise with embarrassment a lot earlier) how this operation would be performed. The first step is to take the scalpel and cut the skin. If it is theoretically possible to cut precisely down the mid-line separating two individual bodies, that is not surgically feasible. Then the doctors have to ascertain which of the organs belong to each child. That is impossible to do without invading Mary's body in the course of that exploration. There follow further acts of separation culminating in the clamping and then severing of the artery. Whether or not the final step is taken within Jodie's body so that Jodie's aorta and not Mary's aorta is assaulted, it seems to me to be utterly fanciful to classify this invasive treatment as an omission in contra-distinction to an act. Johnson J.'s valiant and wholly understandable attempt to do so cannot be supported and although Mr Whitfield Q.C. did his best, he recognised his difficulty. The operation has, therefore, to be seen as an act of invasion of Mary's bodily integrity and unless consent or approval is given for it, it constitutes an unlawful assault upon her.

7.8 Is the course of action one which can be characterised as not continuing to provide the patient with treatment which will prolong the patient's life?

The answer to that has to be no. Mary is not receiving treatment (or any substantial treatment) at the present time. Such care as she receives in hospital will of course prolong her life but there is no question of withdrawing that care or that treatment. What is under consideration is the active invasion of her body. That will not prolong her life. It will terminate it. With respect to the judge he asked the wrong question. The question is not: is it in Mary's best interests that the hospital should continue to provide her with treatment which will prolong her life? This case is not about providing that kind of treatment. What is proposed should be done and what the court is being asked to sanction demands that the question be framed in this way: is it in Mary's best interests that an operation be performed to separate her from Jodie when the certain consequence of that operation is that she will die? There is only one answer to that question. It is: no, that is not in her best interests. In my judgment the judge's approach is fatally flawed and his assessment of Mary's best interests falls with it.

7.9 Conclusion as to Mary's best interests.

The question is whether this proposed operation is in Mary's best interests. It cannot be. It will bring her life to an end before it has run its natural span. It denies her inherent right to life. There is no countervailing advantage for her at all. It is contrary to her best interests. Looking at her position in isolation and ignoring, therefore, the benefit to Jodie, the court should not sanction the operation on her.

8. On the horns of dilemma: what does the court do now?

I have found this a very difficult question to answer. Subject to having regard to the parents' wish, which I will consider shortly, the operation will be in Jodie's interests but not in Mary's. Can that conflict be resolved and if so how?

In the course of argument I speculated that Mary's interests may not be overborne and that consequently approval for the operation can not be given. Miss Parker Q.C. on Jodie's behalf submits very strongly that it can. She submits that judges in the Family courts are frequently presented with a clash of interests between children whose upbringing they have to regulate and that when that arises the judges balance the interests of one against the other and choose the least detrimental alternative. So they do, but is it right that they do so and can one's right to life be traded against another's?

There is no clear authority on the point. In Birmingham City Council v H. (A Minor) [1994] 2 A.C. 212 the House of Lords was invited to express its opinion of this question but was able to avoid doing so. In that case the local authority applied for a care order in respect of a young baby. The mother was only 15 and was a "child" herself. Application was made pursuant to Section 34(4) of the Children Act 1989 for an order authorising the local authority to refuse contact between the baby and the mother. No conflict arose because the question to be determined by the court related to the baby's upbringing and it was the baby's welfare that was to be the court's paramount consideration, even where the mother herself was a child in care. Section 34(3) enabled the court to "make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person". Lord Slynn of Hadley said at p. 222:-

"For this purpose, "the child" is the child in care in respect of whom an order is sought by one of the four categories of person. That child is the subject matter of the application. The question to be determined relates to that child's upbringing and it is that child's welfare which must be the court's paramount consideration. The fact that the parent is also a child does not mean that both parent's and child's welfare is paramount and that each has to be balanced against the other."

The case was decided on that narrow basis.

The Court of Appeal had proceeded differently: see the report in [1993] 1 F.L.R. 883. The Court of Appeal considered that the upbringing of both mother and daughter was involved and that Section 1(1) of the Act governed the position. Balcombe L.J. said at p. 890-2:-

"So the question of contact between R (the baby) and M (the mother) relates to the upbringing of each of them and in each case the Act requires that their welfare shall be the court's paramount consideration. But this is an impossibility. "Paramount" means "above all others in rank, order or jurisdiction; supreme" - see the Shorter Oxford Dictionary (3rd Edn.) On one and the same issue, contact between them, M's welfare cannot rank above R's welfare and his above hers. This potential difficulty which may occur when cases of two or more siblings come before the court, was foreseen by the Law Commission in their studies leading up to the 1989 Act - see Working Paper No. 96, para. 6.16 and Report No. 172, paras. 3.13 and 3.14 and s 1(2) of the Draft Bill appended to the Report.

However, for whatever reason, the draughtsman of the 1989 Act did not adopt the Law Commission's recommendations on this point, and we have to resolve the dilemma ourselves.

Where the court is faced with what appears to be an impossibility, it must try and give the statutory provision such meaning as it can sensibly bear, having regard to any other provisions of the Act which may throw light on the intention of the legislature.

...

In my judgment, therefore, we are thrown back upon the words of s 1(1) of the 1989 Act. I can think of no reason why Parliament should have intended, when a question with respect to the upbringing of two children is before the court, that the court should regard one child's interests as paramount to that of the other. Accordingly, in my judgment, while the welfare of M and R, taken together is to be considered as paramount to the interests of any adults concerned in their lives, as between themselves the court must approach the question of their welfare without giving one priority over the other. You start with an evenly balanced pair of scales. Of course, when you start to put into the scales the matters relevant to each child - and in particular those listed in s 1(3) - the result may come down in favour of one rather than the other, but that is a balancing exercise which the court is well used to conducting in cases concerning children."

Kennedy L.J. and Evans L.J. agreed but Evans L.J. added this at p. 896:-

"The question in issue in this case is whether contact should be allowed between M, the child's mother, and R, her son, who is now aged 15 months. This question concerns the upbringing of R and is therefore subject to s 1(1) of the Act, which provides that the child's welfare shall be the court's paramount consideration. The problem arises because M herself is a child, 16 years, and is herself in care of the same local authority as R. If the same question is also one "with respect to her upbringing", then s1(1) makes her welfare the court's paramount consideration and on the judge's findings, her welfare and R's are in conflict ... The Act does not provide expressly for the case where the parent is herself a child nor for the situation where the question of welfare may arise between two children in other circumstances, for example, between siblings. The Law Commission drew attention to the latter problem ... but the Act is silent. We therefore have to attempt to apply the general provisions of the Act to the exceptional, though unhappily not unique, circumstances of this case.

It seems that there is no reported authority, whether before or after 1989, where this or any similar question has arisen between a child and a parent who is herself a child ...

The starting point must be the correct interpretation of ss 1 and 34 of the Act ..."

He concluded at p. 899:-

"But the welfare of the two individuals cannot both be "paramount" in the ordinary and natural meaning of that word. If that is the requirement of s 1(1) in the circumstances, then the Act presents the court with an impossible task. For this reason, I agree with Balcombe L.J. that the requirement must be regarded as qualified, in the cases where the welfare of more than one child is involved, by the need to have regard to potential detriment for one in the light of potential benefit for the other. Only in this way, it seems to me, can the section be applied and the manifest objects of the Act achieved."

The House of Lords expressed no view as to the correctness or otherwise of that approach. It seems to me, therefore, that it must stand as at least persuasive, if not binding, authority. Moreover the question arises directly in this case and because it is the right to life of each child that is in issue, the conflict between the children could not be more acute. If the duty of the court is to make a decision which puts Jodie's interests paramount and that decision would be contrary to the paramount interests of Mary, then, for my part, I do not see how the court can reconcile the impossibility of properly fulfilling each duty by simply declining to decide the very matter before it. That would be a total abdication of the duty which is imposed upon us. Given the conflict of duty, I can see no other way of dealing with it than by choosing the lesser of the two evils and so finding the least detrimental alternative. A balance has to be struck somehow and I cannot flinch from undertaking that evaluation, horrendously difficult though it is. Before doing so, I must decide what weight to give to the parents' wishes.

9. Giving due weight to the parents' wishes.

9.1 The parents and the courts.

Since the parents have the right in the exercise of their parental responsibility to make the decision, it should not be a surprise that their wishes should command very great respect. Parental right is, however, subordinate to welfare. That was the view of the House of Lords in In Re K.D. (A Minor) (Ward: Termination of Access) [1988] 1 A.C. 806, 824-5 where Lord Oliver of Aylmerton said:-

"My Lords I do not, for my part, discern any conflict between the propositions laid down by your Lordships' House in J. v C. and the pronouncements of the European Court of Human Rights in relation to the natural parent's right of access to her child. Such conflict as exists, is, I think, semantic only and lies only in differing ways of giving expression to the single concept that the natural bond in the relationship between parent and child gives rise to universally recognised norms which ought not to be gratuitously interfered with and which, if interfered with at all, ought to be so only if the welfare of the child dictates it. The word "right" is used in a variety of different senses, both popular and jurisprudential ... Parenthood, in most civilised societies, is generally conceived of as conferring upon parents the exclusive privilege of ordering, within the family, the upbringing of children of tender age, with all that that entails. That is a privilege which, interfered with without authority, would be protected by the courts, but it is a privilege circumscribed by many limitations imposed both by the general law and, where circumstances demand, by the courts or by the authorities upon whom the legislature has imposed the duty of supervising the welfare of children and young persons. When the jurisdiction of the court is invoked for the protection of the child the parental privileges do not terminate. They do, however, become immediately subservient to the paramount consideration which the court has always in mind, that is to say, the welfare of the child. That is the basis of the decision of your Lordships' House in J. v C. [1970] A.C. 668 and I see nothing in R. v United Kingdom (Case 6/1986/104/152) which contradicts or casts any doubt upon that decision or which calls now for any re-appraisal of it by your Lordships. In particular the description of those familial rights and privileges enjoyed by parents in relation to their children as "fundamental" or "basic" does nothing, in my judgment, to clarify either the nature or the extent of the concept which it is sought to describe."

In J. v C. at p. 175 Lord MacDermott set out the rule which has served the test of time:-

"While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over other considerations, such rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases. The parental rights, however, remain qualified and not absolute for the purposes of the investigation the broad nature of which is still as described in the fourth of the principles enunciated by FitzGibbon L.J. in In Re O'Hara [1900] 2 I.R. 232, 240."

That fourth principle which itself was derived from Reg. v Gyngall [1893] 2 Q.B. 232, is stated thus:-

"4. In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded."

Finally, it is perhaps useful to repeat the passage in the judgment of Sir Thomas Bingham M.R. in In Re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam. 1, 32, in accordance with which Johnson J. approached this part of the case. The Master of the Rolls said:-

"I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. It should certainly not be disregarded or lightly set aside. But the role of the court is to exercise an independent and objective judgment. If that judgment is in accord with that of the devoted and responsible parent, well and good. If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment. That is what it is there for. Its judgment may of course be wrong. So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and give the best judgment that it can"

That is the law. That is what governs my decision. That is what I am desperately trying to do. I do not discern any very significant difference between the law, as set out above, and the Archbishop's fifth overarching moral consideration which he expresses in these terms:-

"Respect for the natural authority of parents requires that the courts override the rights of parents only when there is clear evidence that they are acting contrary to what is strictly owing to their children."

9.2 The role of the court: reviewer or decision-maker?

Is the court reviewing the parental decision as it reviews an administrative decision or does the court look at the matter afresh, in the round, with due weight given to the parental wish? If there was doubt about that, it has been resolved in favour of the latter approach by the decision of this court in In Re T. (Wardship: Medical Treatment) [1997] 1 W.L.R. 242. That was an agonising decision for the court to take. The baby, a year old, had a life threatening liver defect. An operation when he was 3 weeks old was unsuccessful. The unanimous medical opinion was that without a liver transplant he would not live beyond the age of 2 years. His parents refused to consent to that operation. Their wish eventually prevailed. On this particular point Butler-Sloss L.J. said at p. 250 F:-

"... The first argument of Mr Francis that the court should not interfere with the reasonable decision of a parent is not one that we are able to entertain even if we wish to do so. His suggestion that the decision of this mother came within that band of reasonable decisions within which a court would not interfere would import into this jurisdiction the test applied in adoption to the refusal of a parent to consent to adoption. It is wholly inapposite to the welfare test and is incompatible with the decision in In Re Z."

Waite L.J. said at 254 C:-

"An appraisal of parental reasonableness may be appropriate in other areas of family law (in adoption, for example where it is enjoined by statute) but when it comes to an assessment of the demands of the child patient's welfare, the starting point - and the finishing point too - must always be the judge's own independent assessment of the balance of advantage or disadvantage of the particular medical step under consideration. In striking that balance, the court will of course take into account as a relevant, often highly relevant, factor the attitude taken by the natural parent, and that may require examination of his or her motives. But the result of such an enquiry must never be allowed to prove determinative. It is a mistake to view the issue as one in which the clinical advice of doctors is placed in one scale and the reasonableness of the parent's view in the other.

...

It can only be said safely that there is a scale, at one end of which lies the clear case where parental opposition to medical intervention is prompted by scruple or dogma of a kind which is patently irreconcilable with principles of child health and welfare widely accepted by the generality of mankind; and that at the other end lie highly problematic cases where there is genuine scope for a difference of view between the parent and the judge. In both situations it is the duty of the judge to allow the court's own opinion to prevail in the perceived paramount interest of the child concerned, but in cases at the latter end of the scale, there must be a likelihood (though never of course a certainty) that the greater the scope for genuine debate between one view and another the stronger will be that inclination of the court to be influenced by a reflection that in the last analysis the best interests of every child include an expectation that difficult decisions affecting the length and quality of its life will be taken for it by the parent to whom its care has been entrusted by nature."

Roch L.J. expressed a similar view.

9.3 The weight to be given to these parents' wishes.

I would wish to say emphatically that this is not a case where opposition is "prompted by scruple or dogma". The views of the parents will strike a chord of agreement with many who reflect upon their dilemma. I cannot emphasise enough how much I sympathise with them in the cruelty of the agonising choice they had to make. I know because I agonise over the dilemma too. I fear, however, that the parents' wish does not convince me that it is in the children's best interest:-

(i) From Jodie's point of view they have taken the worst possible scenario that she would be wheelchair bound, destined for a life of difficulty. They fail to recognise her capacity sufficiently to enjoy the benefits of life that would be available to her were she free and independent.

(ii) She may indeed need special care and attention and that may be very difficult fully to provide in their home country.

This is a real and practical problem for the family, the burden of which in ordinary family life should not be underestimated. It may seem unduly harsh on these desperate parents to point out that it is the child's best interests which are paramount, not the parents'. Coping with a disabled child sadly inevitably casts a great burden on parents who have to struggle through those difficulties. There is, I sense, a lack of consistency in their approach to their daughters' welfare. In Mary's case, they are overwhelmed by the legitimate, as I have found it to be, need to respect and protect her right to life. They surely cannot so minimise Jodie's rights on the basis that the burden of possible disadvantage for her and the burdens of caring for such a child for them can morally be said to outweigh her claim to the human dignity of independence which only cruel fate has denied her.

(iii) They are fully entitled to recoil at the idea, as they see it, of killing Mary. That is wholly understandable. This lies at the core of their objection. Yet they came to this country for treatment. They were aware of the possibility that Mary might be stillborn and they seemed reconciled to an operation which would separate Jodie from her. They seemed to have been prepared, and presented their case to Johnson J. on the basis that they would agree to the operation if Mary predeceased Jodie. The physical problems for Jodie would be the same, perhaps even worse in such an event. The parents appear to have been willing to cope in that event, and the burdens for parents and child cannot have changed. Mary is lost to them anyway.

(iv) In their natural repugnance at the idea of killing Mary they fail to recognise their conflicting duty to save Jodie and they seem to exculpate themselves from, or at least fail fully to face up to the consequence of the failure to separate the twins, namely death for Jodie. In my judgment, parents who are placed on the horns of such a terrible dilemma simply have to choose the lesser of their inevitable loss. If a family at the gates of a concentration camp were told they might free one of their children but if no choice were made both would die, compassionate parents with equal love for their twins would elect to save the stronger and see the weak one destined for death pass through the gates.

This is a terribly cruel decision to force upon the parents. It is a choice no loving parent would ever want to make. It gives me no satisfaction to have disagreed with their views of what is right for their family and to have expressed myself in terms they will feel are harshly and unfairly critical of them. I am sorry about that. It may be no great comfort to them to know that in fact my heart bleeds for them. But if, as the law says I must, it is I who must now make the decision, then whatever the parents' grief, I must strike a balance between the twins and do what is best for them.

10. How is the balance to be struck?

The analytical problem is to determine what may, and what may not, be placed in each scale and what weight is then to be given to each of the factors in the scales.

(i) The universality of the right to life demands that the right to life be treated as equal. The intrinsic value of their human life is equal. So the right of each goes into the scales and the scales remain in balance.

(ii) The question which the court has to answer is whether or not the proposed treatment, the operation to separate, is in the best interests of the twins. That enables me to consider and place in the scales of each twin the worthwhileness of the treatment. That is a quite different exercise from the proscribed (because it offends the sanctity of life principle) consideration of the worth of one life compared with the other. When considering the worthwhileness of the treatment, it is legitimate to have regard to the actual condition of each twin and hence the actual balance sheet of advantage and disadvantage which flows from the performance or the non-performance of the proposed treatment. Here it is legitimate, as John Keown demonstrates, and as the cases show, to bear in mind the actual quality of life each child enjoys and may be able to enjoy. In summary, the operation will give Jodie the prospects of a normal expectation of relatively normal life. The operation will shorten Mary's life but she remains doomed for death. Mary has a full claim to the dignity of independence which is her human entitlement. In the words of the Rabbinical scholars involved in the 1977 case in Philadelphia, Mary is "designated for death" because her capacity to live her life is fatally compromised. The prospect of a full life for Jodie is counterbalanced by an acceleration of certain death for Mary. That balance is heavily in Jodie's favour.

(iii) I repeat that the balancing exercise I have just conducted is not a balancing of the Quality of Life in the sense that I value the potential of one human life above another. I have already indicated that the value of each life in the eyes of God and in the eyes of law is equal. Remember Lord Mustill's observation in Bland.

(iv) In this unique case it is, in my judgment, impossible not to put in the scales of each child the manner in which they are individually able to exercise their right to life. Mary may have a right to life, but she has little right to be alive. She is alive because and only because, to put it bluntly, but nonetheless accurately, she sucks the lifeblood of Jodie and she sucks the lifeblood out of Jodie. She will survive only so long as Jodie survives. Jodie will not survive long because constitutionally she will not be able to cope. Mary's parasitic living will be the cause of Jodie's ceasing to live. If Jodie could speak, she would surely protest, "Stop it, Mary, you're killing me". Mary would have no answer to that. Into my scales of fairness and justice between the children goes the fact that nobody but the doctors can help Jodie. Mary is beyond help.

Hence I am in no doubt at all that the scales come down heavily in Jodie's favour. The best interests of the twins is to give the chance of life to the child whose actual bodily condition is capable of accepting the chance to her advantage even if that has to be at the cost of the sacrifice of the life which is so unnaturally supported. I am wholly satisfied that the least detrimental choice, balancing the interests of Mary against Jodie and Jodie against Mary, is to permit the operation to be performed.

11. Conclusion on the Family Law aspect of this case.

I would grant permission for the operation to take place provided, however, what is proposed to be done can be lawfully done. That requires a consideration of the criminal law to which I now turn.

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