England and Wales Court of Appeal (Civil Division) Decisions

B e f o r e:

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(Computer Aided Transcript of the Palantype Notes of

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MR. R. FRANCIS QC & MR. A. HOCKTON (Instructed by Messrs Pannone & Partners, Manchester, M3 2BU) appeared on behalf of the Appellant 1st Defendant

MR. D. HARRIS QC & MISS Y. COPPELL (Instructed by Susan Orrell, Manchester City Council, Manchester, M60 2LA) appeared on behalf of the Respondent Plaintiff

MR. G. MURDOCK QC & MR. H. LLOYD (Instructed by the Official Solicitor, 81 Chancery Lane, London, WC2A 1DD) appeared on behalf of the Guardian ad Litem

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(As approved by the Court )

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©Crown Copyright

LADY JUSTICE BUTLER-SLOSS:

C. was born on the 10th April 1995 suffering from biliary atresia, a life-threatening liver defect. The unanimous medical prognosis is that he will not live beyond the age of two to two and a half without a liver transplantation. It is equally the unanimous clinical opinion of the consultants that it is in his interests to undergo the operation when a donor liver becomes available. The parents, who were trained as health care professionals and are both experienced in the care of young sick children do not wish the operation to take place. The main issue before the judge and on appeal before this Court is whether the Court should overrule the decision of the parents and consent to the operation. It arises as a specific issue in respect of which the Court is asked to exercise its inherent jurisdiction.

The background to this tragic and deeply worrying case is as follows. The parents are not married but have a stable relationship. They decided to apply for jobs in a distant Commonwealth country, (Country AB). The father went to Country AB in September 1995 while C. and his mother remained in England with her family. In February 1996 the mother took C. to visit his father but returned with him in April to England. They went back to Country AB in June 1996 and remain there now. The mother gave evidence to Connell J in the proceedings, the subject of this Appeal, by video link.

Once C.´s liver defect was diagnosed the medical advice at the local hospital was for him to undergo an operation called "Kasai" with the hope that this would improve his condition. The parents agreed and he underwent the operation at the age of three and a half weeks but the outcome was unsuccessful. The mother´s view of the proposed liver transplantation operation has been much influenced by the circumstances of the "Kasai" operation and the pain and distress caused to the baby both by it and by the consequential treatment. She and the father came to the conclusion, having sought medical advice, that if the "Kasai" operation proved unsuccessful, they would not wish their baby to undergo major transplant surgery.

The mother and child were then referred to one of the few hospitals which carry out liver transplantation operations, (which I shall call Hospital X). She met the consultant paediatrician, (Dr A) and her team and between September and November 1995 C. was assessed for his suitability and found to be suitable to have the transplantation operation. The mother was supplied with printed information about the operation,(called Liver Transplantation An Introduction Fact Sheet 10). It said that it was:-

"one of the most major forms of surgery. It is more complicated than other transplant operations on other organs and is only considered when other forms of treatment no longer maintain a good quality of life....

The team will discuss the results of the tests with the parents and tell them whether their child or baby is a suitable candidate for transplant. It is a very big decision to make on the part of the family and every assistance will be given to help to make the decision. If the family choose not to proceed with the transplantation once they are acquainted with the facts, the decision is respected. The child and family will continue to receive the necessary medical and nursing care to give him/her the best quality of life."

The mother did not consent to the carrying out of the operation. Dr A made it clear to the mother that it was in the best interests of C. that the operation be carried out and could not accept the mother´s reasons for refusing to consent. Inevitably the relationship between Dr A and the mother became strained. Dr A told the mother that the hospital would seek legal advice if the mother did not consent. The mother obtained a second opinion from a consultant paediatrician, Dr P. at Hospital Y, another centre of liver transplant operations. Dr P. set out his conclusions in a letter dated 6th December 1995 which was sent to the mother´s GP. Despite referring to adverse factors, which are no longer of significance in the light of later evidence, Dr P wrote:-

" I would consider an excellent result of transplantation to be many years of life with normal growth with no treatment necessary other than immuno-suppression, and there is certainly a good chance that such an outcome could be achieved."

He and his team strongly urged the mother to consent to the offer of transplantation at Hospital X, but said that if she and the father after further consideration did not consent, that decision should be respected.

C. was placed on the urgent transplant list at Hospital X. The mother then took him to Country AB against the advice of Dr A. Whilst there C. was under the care of a consultant paediatrician, but there are no facilities for a liver transplant operation in that country. A suitable liver became available at Hospital X while the mother was abroad with the baby , but the hospital was unable to get in touch with the mother and the opportunity was lost. Dr A´s team formed the view that the mother was not acting in the best interests of C. and they took legal advice. The matter was referred to the local authority of the mother´s area who involved their child protection team. The police in Country AB were informed and visited the mother. The child was found to be well and happy. They concluded, supported by the local social services that no action was needed. On the return of the mother and C. to England in April they were again referred to Hospital Y and Dr P was asked to take over the care of C. The mother continued to oppose the carrying out of the operation. Dr P discussed the matter with her at length on several occasions. He and his team formed the view that she was a loving and devoted mother, and, from her professional background, an unusually well- informed parent. They concluded that her reluctance to submit her son to the operation was founded in love and care for him. She was to the best of her ability discharging her duty of trust to her child and her decision should be respected.

The mother then returned to country AB with C. and on the 17th July 1996 the local authority sought the leave of the court to commence proceedings under the provisions of section 100(3) of the Children Act 1989. Their application was granted by Hollis J on the 27th August 1996. The Official Solicitor was appointed Guardian ad litem of the child and he instructed a consultant surgeon, Mr R from Hospital Z.

At the substantive hearing of the application of the local authority, Connell J heard evidence from Dr P, Mr R and Dr A, all distinguished consultants in this specialist field. Dr P accepted the opinion of Mr R as to the likely success of the transplant operation. In their reports and in their oral evidence the three doctors were unanimous that the prospects of success were good and that this operation was in the best interests of the child. Dr A and her team were prepared to carry out the operation without the consent of the mother if the court gave consent. The judge felt that the breakdown in the relationship between the mother and the team of Dr A made Hospital X unsuitable in the best interests of C. Dr P and his team, while strongly recommending the operation, would wish to respect the decision of the mother and would not be prepared to perform the operation without her consent. Mr R was prepared to carry out the operation but could not answer for his team in the event that the mother did not consent.

The local authority in their originating summons sought the answers to three specific questions:-

whether it was in the best interests of C. to undergo surgery for a liver transplantation,

for permission to be granted to perform the surgery notwithstanding the refusal of the mother to consent, and

for the child to be returned to the jurisdiction for the purpose of such surgery. They were neutral before the judge and the proposed surgery was strongly advocated by C.´s Guardian ad litem.

Connell J, on the 17th September 1996, in a careful, comprehensive and sensitive judgment reviewed the reasons for the mother´s refusal to consent and said at page 12:-

"In my judgment it has proved impossible for this mother to accept the main burden of the advice of the doctors, which is to the effect that if C does not undergo a transplant he will die within the next 12 to 18 months. Clinging to her own ability to provide expert care for this little boy and observing his apparent improvement in health, I am satisfied that she has not as yet really been able to face up to the clear and unanimous conclusion of the doctors that transplantation would be in his best interests. Whilst I can understand her difficulties, I conclude that her refusal to accept the unanimous advice of the doctors is not the conduct of a reasonable parent."

He answered the three questions posed by the local authority in the affirmative and directed the return of the mother with C. to the jurisdiction within 21 days in order to undergo the surgery for liver transplantation. He directed that the child be presented to Hospital Y or Hospital Z for assessment for transplantation. He concluded at page 20:-

"In reaching a decision in cases such as this case the Court is required to balance a number of factors. I have considered that quality of life which is likely to be available to the little boy post transplantation, and I have considered the pain and suffering which is likely to be undergone either with or without transplantation. There is of course a strong presumption in favour of preserving life, but this is not an absolute rule. It is clear that C. will die without transplantation, that treatment is available to him, and it is recommended as in his best interests by the three doctors who gave evidence to the Court. In all the circumstances, and in the light of all the evidence, I reach the clear conclusion that it is appropriate to make orders as sought."

He expressed the hope that the mother might change her mind and consent to the operation. He gave leave to appeal.

On the appeal Mr Francis QC for the mother, informed us that the mother has not changed her mind and that she continued to be supported in her views by the father. He challenged the judge´s conclusion that the mother´s refusal to consent was unreasonable. He relied heavily upon the opinion of Dr P that he and his team respected the mother´s decision and would not seek to go behind it and their view of the enormous importance of the total co-operation of the mother to the operation and the consequential treatment. In most medical situations there was more than one answer. The doctors view was based upon clinical grounds, but where the welfare of a child required a family decision that decision if reasonable ought to be respected and the inherent jurisdiction of the court ought not to be exercised to overrule it. The more borderline the decision the more weight should be given to the parent´s view. He stressed the possibility of further operations and further treatment and the effect upon the mother and upon the child. The choice was to allow the child a short life where he was well and happy for most of the time and would be likely to die peacefully or to cause him to undergo major invasive surgery with a good success rate but all the risks, discomfort and distress for a young child and a lifetime of drugs and the possibility of further invasive surgery and other treatment. The consequence of the decision was to commit the mother to a lifetime of care of the child with the requirement of total commitment to the treatment. The importance of the element of morale was not to be under-estimated. The mother would find it very difficult to support the treatment, despite her specialist training and her devotion to the child. Since transplant operations have only been performed for 14 years on children, the statistics were inadequate as a guide for the future. He drew a distinction between extending life and allowing a child to die prematurely. The mother´s decision was within that band of reasonable decisions with which the court should not interfere and coerce the mother.

Mr Harris QC for the local authority and Mr Murdoch QC for the Official Solicitor as Guardian ad litem of C. strongly supported the decision of the judge that the transplant operation was in the best interests of C. They argued that the judge was entitled to come to the conclusion that the mother´s refusal of consent was unreasonable in the light of unanimous medical opinion that this was the accepted treatment and the surgery gave the child a good chance of an extended and a reasonable quality of life. The test was welfare of the child and not the reasonableness of the parent. The view of the parents was only one factor in the welfare test.We were reminded of the enormous strides which continue to be made in medical knowledge and techniques which supported the good prospects of success for the child. There was no reason to suppose that, if the operation was carried out, this mother with her special abilities would not respond to the needs of the child and care for him with devotion and competence. Mr Murdoch stressed that the practical difficulties were not insuperable and should be met if or when they arose.

I turn to consider previous decisions which set out the principles to be followed in an application such as this which invokes the inherent jurisdiction of the High Court. In recent years the medical profession and local authorities have increasingly sought declarations or directions from the High Court in difficult medical issues which involve ethical as well as medical considerations, for instance, abortion or sterilisation. Applications have also been made to the Court in a number of cases which might affect the continued life of the child or adult. In the past applications in respect of children were made within the ambit of wardship. It is however clear that wardship is a mechanism within which to seek the decision of the High Court and it is not necessary to make the child a ward in order to invoke the inherent jurisdiction of the court.[see Sir Thomas Bingham MR in Re Z [1996] 2 WLR 88 at page 113

A line of cases from 1981 has, in my judgment, clearly established the approach of the court to these most difficult and anxious questions. In Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421, the child was born suffering from Down´s Syndrome and from an intestinal blockage which required to be relieved by an operation if she were not to die within a few days. The surgeon respected the wishes of the parents not to consent to the operation and decided not to operate. The judge took the same view. This Court allowed the appeal and held that the question for the court was whether it was in the best interests of the child that she should have the operation and not whether the wishes of the parents should be respected. In that case the evidence disclosed that if the operation was performed the child would live the normal span of life of a mongol.

The House of Lords in Re B (A Minor) [Wardship: Sterilisation] [1988] AC 199 held that a court exercising wardship jurisdiction, when reaching a decision on an application to authorise an operation for sterilisation of the ward, was concerned with only one primary and paramount consideration, the welfare of the child.

This Court in Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33 considered the future medical management of a severely brain-damaged premature baby with a considerably shortened life expectancy. Lord Donaldson MR said at page 41:-

"......it is sensible to define the relationship between the court, the doctors, the child and its parents.

The doctors owe the child a duty to care for it in accordance with good medical practice recognised as appropriate by a competent body of professional opinion: see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. This duty is, however, subject to the qualification that, if time permits, they must obtain the consent of the parents before undertaking serious invasive treatment.

The parents owe the child a duty to give or to withhold consent in the best interests of the child and without regard to their own interests.

The court when exercising the parens patriae jurisdiction takes over the rights and duties of the parents, although this is not to say that the parents will be excluded from the decision-making process. Nevertheless in the end the responsibility for the decision whether to give or to withhold consent is that of the court alone.

He concluded at page 46:-

"In Re B (supra) seems to me to come very near to being a binding authority for the proposition that there is a balancing exercise to be performed in assessing the course to be adopted in the best interests of the child. Even if it is not, I have no doubt that this should be and is the law.

This brings me face to face with the problem of formulating the critical equation. In truth it cannot be done with mathematical or any precision. There is without doubt a very strong presumption in favour of a course of action which will prolong life, but, even excepting the ´cabbage´ case to which special considerations may well apply, it is not irrebuttable. As this court recognised in Re B account has to be taken of the pain and suffering and quality of life which the child will experience if life is prolonged. Account has also to be taken of the pain and suffering involved in the proposed treatment itself.....

In the end there will be cases in which the answer must be that it is not in the interests of the child to subject it to treatment which will cause increased suffering and produce no commensurate benefit, giving the fullest possible weight to the child´s and mankind´s, desire to survive."

In Re Z (A Minor) (Identification: Restrictions on Publication) [1996] 2 WLR 88 the main issue was whether the child was to be identified and allowed to participate in a television film about her upbringing. The question whether the courts should intervene in a situation where a mother exercised her parental responsibilities bona fide and reasonably was directly before this Court. Sir Thomas Bingham MR said at page 113:-

"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 express the best judgment it can."

From the decisions to which I have referred which bind this Court it is clear that when an application under the inherent jurisdiction is made to the court the welfare of the child is the paramount consideration. The consent or refusal of consent of the parents is an important consideration to weigh in the balancing exercise to be carried out by the judge. In that context the extent to which the court will have regard to the view of the parent will depend upon the court´s assessment of that view. But as Sir Thomas Bingham MR said in Re Z, the court decides and in doing so may overrule the decision of a reasonable parent.

Applying those principles to the present appeal, 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 wished 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 Re Z.

In my view however, the judge erred in his approach to the issue before the court. He accepted the unchallenged clinical opinion of the three consultants and assessed the reasonableness of the mother´s decision against that medical opinion. Having held that the mother was unreasonable he accepted that the liver transplant would be likely to prolong the life of C. and in the absence of any reasonable argument to the contrary he came to the clear conclusion that he should consent to the operation. Since he had already decided the mother´s approach was unreasonable he did not weigh in the balance reasons against the treatment which might be held by a reasonable parent on much broader grounds than the clinical assessment of the likely success of the proposed treatment. Some of the objections of the mother, such as the difficulties of the operation itself, turned out, from the evidence of Mr R, to be less important than the mother believed. Underlying those less important objections by the mother, was a deep-seated concern of the mother as to the benefits to her son of the major invasive surgery and post operative treatment, the dangers of failure long term as well as short term, the possibility of the need for further transplants, the likely length of life, and the effect upon her son of all these concerns. The judge did not assess the relevance or the weight of such considerations in his final balancing exercise.

In particular he did not consider at that stage the evidence of Dr P and his strong reservations to the effect of coercing, (as Dr P put it) this mother into playing the crucial and irreplaceable part in the aftermath of major invasive surgery not just during the post-operative treatment of an eighteen month old baby but also throughout the childhood of her son. She would inevitably be the primary carer, (no-one suggested that this baby should be taken into care) and would be expected to care for him for many years through surgery and continuing treatment while she, on her present view, believed that this course was not right for her son. The total commitment of the caring parent, in Dr P´s view, was essential to the success of the treatment. Mr Harris suggested to us that Dr P´s evidence supporting the mother´s approach lacked logic and was woolly. That suggestion is, in my view, to under-estimate the experience of a distinguished consultant paediatrician in a specialist and still experimental area of medicine. Moreover his evidence was supported by the advice given to parents by Hospital X in its Fact Sheet 10.

I have well in mind the important principles set out by the House of Lords in G v G and that this most experienced judge saw the witnesses and in particular the mother. If the decision in this case was a matter of assessing the clinical opinions of the doctors, the judge was clearly right to prefer their views to the mother who could not be as well qualified to give an opinion. But this matter has to be looked at more broadly. The mother certainly told the judge that she recognised her son had only a short time to live if no operation was performed. She was focusing, it seems to me, on the present peaceful life of the child who had the chance to spend the rest of his short life without the pain, stress and upset of intrusive surgery against the future with the operation and treatment taking place. That is an alternative point of view to that to which the judge came and with some hesitation, I doubt that he was right to deem the mother to be unreasonable in her assessment of the broader perspective of whether this operation should be carried out. But in any event the reasonableness of the mother was not the primary issue. This mother and this child are one for the purpose of this unusual case and the decision of the court to consent to the operation jointly affects the mother and son and it also affects the father. The welfare of this child depends upon his mother. The practical considerations of her ability to cope with supporting the child in the face of her belief that this course is not right for him, the requirement to return probably for a long period to this country, either to leave the father behind and lose his support or to require him to give up his present job and seek one in England were not put by the judge into the balance when he made his decision.

Despite the conclusion of the judge at page 20 which I have set out above, I do not believe that he put into the balance these broader considerations. Consequently in my view his exercise of discretion was flawed and I am satisfied that his decision cannot stand.

It falls therefore for this Court to make the decision whether to consent to the operation and require the return of the child to the jurisdiction. I agree with Mr Murdoch that this Court ought not to make a decision on so difficult and delicate an issue mainly on the problems of ordering the return of the child when he is out of the jurisdiction, or in ignorance of whether Hospital Z would in fact carry out the operation if the mother continued in her refusal to consent. But they are none the less relevant considerations which, in my judgment, have to be taken into account in the balancing exercise, although they are not determinative. More important than those considerations is to my mind the evidence of Dr P and the emphasis he placed throughout his evidence upon the requirements both of the consent of the parents and of a total commitment by the caring parent to the proposed treatment. He foresaw grave difficulties in carrying out the operation and the treatment without that wholehearted support of the mother.

In Re W (A Minor)(Medical Treatment: Court´s Jurisdiction) [1993] Fam 64, a case about the medical treatment of a girl of 16 suffering from anorexia nervosa, Lord Donaldson MR said at page 76 that there were two purposes to seeking consent, clinical and legal:-

"The clinical purpose stems from the fact that in many instances the co-operation of the patient and the patient´s faith or at least confidence in the efficiency of the treatment is a major factor contributing to the treatment´s success."

That passage applies, in my judgment, with equal force to the need for the confidence in and the commitment to the proposed treatment by the principal carer on the unusual facts of this case. Unlike the intestinal obstruction of the Down´s Syndrome baby which could be cured by a simple operation, C.´s problems require complicated surgery and many years of special care from the mother.

The reservations of Dr P, to which he held despite concessions he made in his evidence, remain of great significance and importance. His view that the decision of a loving, caring mother should be respected, ought to be given great weight, and are reinforced by the Fact Sheet 10 provided by Hospital X. The alternative of the Court giving the consent and passing back the responsibility for the parental care to the mother and expecting her to provide the commitment to the child after the operation is carried out in the face of her opposition is in itself fraught with danger for the child. She will have to comply with the court order; return to this country and present the child to one of the hospitals. She will have to arrange to remain in this country for the foreseeable future. Will the father stay in Country AB and work or come with her to England, giving up his job and having to seek another job? If he does not come she will have to manage unaided. How will the mother cope? Can her professionalism overcome her view that her son should not be subjected to this distressing procedure? Will she break down? How will the child be affected by the conflict with which the mother may have to cope? What happens if the treatment is partially successful and another transplant is needed? The mother may not wish to consent to the further surgery. Is the court to be asked again for consent to the next operation?

The welfare of the child is the paramount consideration and I recognise the "very strong presumption in favour of a course of action which will prolong life" and the inevitable consequences for the child of not giving consent. But to prolong life, as Lord Donaldson MR recognised in somewhat different circumstances, is not the sole objective of the court and to require it at the expense of other considerations may not be in a child´s best interests. I would stress that, on the most unusual facts of this case with the enormous significance of the close attachment between the mother and baby, the court is not concerned with the reasonableness of the mother´s refusal to consent but with the consequences of that refusal and whether it is in the best interests of C. for this Court in effect to direct the mother to take on this total commitment where she does not agree with the course proposed. The effect of the evidence of Dr P respecting the mother´s decision and the prospect of forcing the devoted mother of this young baby to the consequences of this major invasive surgery lead me to the conclusion, after much anxious deliberation, that it is not in the best interests of this child to give consent and require him to return to England for the purpose of undergoing liver transplantation. I believe that the best interests of this child require that his future treatment should be left in the hands of his devoted parents. Once the pressure of this litigation is over it may be the parents will reconsider whether they should remain in Country AB or should return to this country and attend at Hospital Y with a view to a further assessment for the purpose of carrying out the operation. That however will be a matter for them and not for this Court.

I would allow this appeal and would answer the three questions posed in the originating summons in the negative and would set aside the orders of the judge.

LORD JUSTICE WAITE:

I agree. The law's insistence that the welfare of a child shall be paramount is easily stated and universally applauded, but the present case illustrates, poignantly and dramatically, the difficulties that are encountered when trying to put it into practice. Throughout his clear and able judgment, the judge demonstrated his appreciation of the dilemma to which the case gives rise. Loving and devoted parents have taken, after anxious consideration, a decision to with-hold consent to operative transplant treatment. Although it is relatively novel treatment, still unavailable in many countries, doctors of the highest expertise have unanimously recommended it for this child on clinical grounds, taking the view that it involves a relatively minor level of risk which they regard as well worth taking in the child's long term interests (which in this instance include an extension of life itself). The parents' opposition is partly instinctive and (being based on their own awareness of the procedures involved) partly practical. It has sufficient cogency to have led one of the principal medical experts in the field of this operation to say that his team would decline to operate without the mother's committed support.

What is the court to do in such a situation? It is not an occasion - even in an age preoccupied with "rights" - to talk of the rights of a child, or the rights of a parent, or the rights of the court. The cases cited by Lady Justice Butler-Sloss are uncompromising in their assertion that the sole yard-stick must be the need to give effect to the demands of paramountcy for the welfare of the child. They establish that there are bound to be occasions when such paramountcy will compel the court, acting as a judicial parent, to substitute the judge's own views as to the claims of child welfare over those of natural parents - even in a case where the views of the latter are supported by qualities of devotion, commitment, love and reason. The judge, after anxious consideration, reached the conclusion that this case provides such an occasion. Was he right to do so?

Of course if his decision was founded on a correct application of legal principle, it is unassailable, however tempted individual members of an appellate court might be to substitute a judgment of our own. These decisions, not least because they are so difficult and finely balanced, are best left to the discretion of the experienced judges who have the task, often a lonely and worrying one, of weighing the numerous delicate elements (including the view taken of the parties and witnesses) which enable a cumulative picture to be formed of the demands of welfare in a particular case, and taking the momentous decision which the child patient cannot take for himself.

In this instance, however, in agreement with Lady Justice Butler-Sloss, I consider that the judge was betrayed into an error of law by his concern with the need to form a judgment about the reasonableness of the mother's approach. 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 judge will of course take into account as a relevant, often highly relevant, factor the attitude taken by a natural parent, and that may require examination of his or her motives. But the result of such an inquiry 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. Had the judge viewed the evidence more broadly from the standpoint of his own perception of the child's welfare when appraised in all its aspects, he would have been bound, in my view, to take significant account of other elements in the case. Those include the parents' ties in country AB, and - crucially - the evidence of Dr P. No one disputes that in the aftermath of the operation the child would remain in the primary care of the mother. Dr P maintained a very clear view that - even assuming that the operation proved wholly successful in surgical terms - the child's subsequent development could be injuriously affected if his day to day care depended upon the commitment of a mother who had suffered the turmoil of having her child being compelled against her will to undergo, as a result of a coercive order from the court, a major operation against which her own medical and maternal judgment wholeheartedly rebelled.

All these cases depend on their own facts and render generalisations - tempting though they may be to the legal or social analyst - wholly out of place. 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 parent and judge. In both situations it is the duty of the judge to allow the court's own opinion to prevail in the perceived paramount interests 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 the 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.

I too would allow this appeal and substitute the order proposed by Lady Justice Butler-Sloss.

LORD JUSTICE ROCH:

This is a desperately difficult case.

The medical evidence was, as the judge stressed, unanimous on the prognosis for this child if he did not receive a transplanted liver; he will die in a matter of months. The doctors went further and said that despite those matters which mean that the child is not the ideal recipient of a liver transplant, he was nevertheless a good candidate with good prospects for a favourable outcome.

On the other hand, no one suggests that the child’s parents are not responsible parents who are devoted to this child or that they have not spent much time and thought in reaching their decision that their son should not undergo a liver transplant and the treatment that will inevitably follow such an operation. The evidence indicated that because of their training and experience they are "uniquely well qualified" to make a decision. In my view, it cannot be said on the evidence that was before the judge that their decision was unreasoned.

What principles should apply to a case such as this? The paramount principle is that the court must make the decision which it considers to be in the best interests of the child. In reaching that decision how should the court treat the decisions of parents? I would gratefully adopt the words of Sir Thomas Bingham MR, as he then was, in the case of In re Z (identification) [1996] 2 WLR 88 at page 113E where His Lordship 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 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 express the best judgment it can."

The issue then is what is in the best interests of the child? One factor in determining that issue to be taken into account by the court is the decision of devoted and responsible parents. It is, I would suggest, misleading to ask, once it is accepted that the parents are devoted and responsible, whether their decision is reasonable or unreasonable because parents who are responsible and devoted will almost certainly reach a decision which falls within the range of decisions which can be classed as reasonable. If the decision falls outside the range of permissible decisions, it is unlikely that the parents are responsible and devoted parents who have sought only to decide in the best interests of their child.

In my judgment the judge mislead himself by categorising the parents’ decision as being “unreasonable”. I can see nothing to justify the judge’s conclusion that the child’s mother is deluding herself that with her care the child miraculously will survive beyond that period of time forecast by the doctors, or that the parents have failed to grasp the improvements in operating technique and subsequent treatment which have taken place in the field of liver transplantation in recent years, particularly in view of Dr P’s evidence of the protracted and thorough discussions he has had with the mother.

If the proper stance for parents is that whenever there is a treatment which may prolong the life of their child, then that treatment should be accepted, a decision not to accept that treatment would be unreasonable. But in my opinion that cannot be and will not be the answer in every case. Nor are such decisions to be taken solely with medical factors in mind. The presumption in favour of the sustaining of life is not irrebuttable and perhaps has less weight where the issue is whether to prolong or not to prolong life by means of organ transplantation.

The view of the parents in a liver transplant case has two aspects. First, if, as here, the parents are devoted and responsible and have the best interests of their child in mind, then their views are to be taken into account and accorded weight and respect by the court when reaching its decision. Second, the views of the parents have a clinical significance because in the absence of parental belief that a transplant is the right procedure for the child, the prospects of a successful outcome are diminished. This factor explains the stance adopted at Hospital Y. It may also explain the passage in Fact Sheet 10, published by the Children’s Liver Disease Foundation and given to the mother in this case, in which this sentence appears:

"If the family choose not to proceed with the transplantation once they are acquainted with the facts, this decision is respected."

I have formed the view that the judge was wrong to categorise the parents’ decision as unreasonable and to disregard it in the balancing exercise he had to perform; the judge, therefore, misdirected himself, and we, in this court should exercise the Court’s inherent jurisdiction.

There are formidable practical difficulties in this case which stand in the way of implementing the Order which the judge in fact made. The child’s father works abroad. The mother and the child and the father at present are living together. If the mother does not comply with the order, it is not certain whether the Courts of the country in which they live will assist in any proceedings to oblige the mother to comply or how long such proceedings would take. The order involves the child and the mother returning to this country, although the financial ability of the family to pay for that is uncertain, particularly if it is necessary for a doctor to accompany the child during the journey. The return of the child to this country must involve both mother and child in distress which will arise from leaving the father and their home, and that must in turn increase the risk that such a journey poses for this child. On arrival in this country it is clear that the operation could not be performed at Hospital Y, the hospital that the mother would choose were she disposed to seek a transplant for her child, because that hospital will not perform such an operation without the mother’s willing consent. There is another possible centre at which such an operation might be performed, Hospital Z. Whereas the surgeon at that centre has indicated that he would be prepared to perform such an operation although the mother was not consenting, it is not clear whether the remainder of the medical team at that centre would be of his view or whether they would take the view set out in Fact Sheet No 10.

Then there is the question of treatment following the operation. Are the mother and child to stay in this country? If they are to stay for how long? If further transplant operations become necessary will the mother give or withhold her consent? What will be the position if at such time the mother and child have returned to Country AB?

At present the evidence indicates that this child has a happy and secure life with his parents in Country AB. It is true that that life will be a very short life which will end when the child is still a baby, but at a time before the child can become aware of the significance of his condition and its consequences. I do not consider that it is in the child’s best interests to disrupt his present life by the court giving its consent to his undergoing a liver transplant operation and ordering the mother to return with him to this country with all the distress and uncertainties that that will inevitably entail for the child in the special circumstances that exist in this case..

I agree that this appeal should be allowed.

Order: appeal allowed; the Court answers the three questions that were posed by the local authority in the negative; set aside the orders of the judge; order re costs in the court below stays; no order as to costs in respect of the Guardian ad Litem; Plaintiff to pay 1st Defendant's costs of this appeal; legal aid taxation of 1st Defendant's costs; Official Solicitor's application for leave to appeal to the House of Lords refused; injunction order continues until further order.