England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
(Mr. Justice Johnson)

		Royal Courts of Justice Friday, 3rd November 2000

1. LORD JUSTICE WARD: After a hearing which ended at about 6.30pm last Friday, 3 November, we dismissed an application made on behalf of Mr Bruno Quintavalle for permission to appeal from an order of the President of the Family Division made at about 1.30pm that day. We now give our reasons for our decision.
2. The conjoined twins, Jodie and Mary, were born on 8 August 2000. The basic facts about their condition are well known and we need not repeat them. We must however summarise recent events leading up to the applications heard last Friday.
3. This court (Ward, Brooke and Robert Walker LJJ) handed down its judgment on 22 September dismissing the parents' appeal from the order of Johnson J. The appeal had been supported by the Official Solicitor on behalf of Mary. It had been opposed by the Central Manchester Health Area NHS Trust and by Jodie's guardian ad litem. Counsel instructed by the Attorney-General had appeared to assist the court but made clear that the Attorney-General did not either actively support or actively oppose the appeal.
4. At the hearing on 22 September this court readily granted permission to appeal to the House of Lords on applications for permission made on behalf of the parents and Mary. Ward LJ indicated that he had already communicated with Lord Bingham of Cornhill and that the House of Lords were making arrangements to hear an appeal as a matter of urgency. In making the application on behalf of Mary leading counsel instructed by the Official Solicitor made clear that the Official Solicitor had not then taken any decision whether or not to appeal, but wished for time to consider the matter, and regarded the parents' attitude to a further appeal as a material consideration.
5. The Official Solicitor considered the matter in consultation with leading and junior counsel on 27 September. The consultation lasted about four hours. By then the Official Solicitor had been informed that the parents had decided not to appeal, and the Official Solicitor had been provided on a confidential basis with what he has described as "some, albeit not full, information" as to the parents' reasons and wishes.
6. The Official Solicitor decided not to appeal and his and the parents' decision were made public in a press statement on 28 September. It was by then widely known that the surgical operation to separate the twins would probably be undertaken when they were about three months old, that is in the first or second week of November, unless a deterioration in Jodie's cardiac function indicated earlier surgery (the latest report dated 1 November stated that some deterioration had become apparent in the last ten days).
7. On 30 October, following a letter before action dated 26 October, solicitors acting for Mr Quintavalle issued a summons seeking the removal of the Official Solicitor as guardian ad litem for Mary "on the ground that he improperly refuses or neglects to present an appeal to the House of Lords" and for the appointment of Mr Quintavalle in his place. That is the application which was heard and dismissed by the President on 3 November.
8. Mr Quintavalle is 29 years of age and is a member of the English bar. He is a director of the Prolife Alliance ("the Alliance") which he describes as a not-for-profit unincorporated association, based in London, which campaigns for absolute respect for innocent human life from the time of fertilisation until natural death. The Alliance repudiates violence and harassment of individuals. It was given permission to submit written submissions to this court on the appeal from Johnson J, and the submissions (prepared by Mr David Anderson QC) were of considerable assistance to the court.
9. These facts raise obvious questions as to why, in a matter of this urgency Mr Quintavalle (who had taken a very close interest in the matter and had been present in court on 22 September) waited for four weeks before making his application; and as to whether Mr Quintavalle, as the director of a pressure group (however sincere and high-principled) could possibly be an appropriate person to act as guardian ad litem in a case of this sort. The President noted these obvious difficulties in her judgment but did not decide the application on that basis, partly because the Official Solicitor indicated in his affidavit that he opposed the application on its merits and did not take any technical objection to the application.
10. A little over three hours elapsed between the close of the President's extempore judgment and the beginning of the hearing before us. It is regrettable that, despite all the resources which might have been expected to be available, we were provided with only a manuscript note of the judgment which had not been approved by the President, and was corrected by counsel in the course of the hearing before us. Any criticisms of the judgment advanced before us have to be approached on the basis that we had what may be an imperfect text of an extempore judgment on which the President had little time to reflect.
11. Mr Allan Levy QC (appearing with Miss Barbara Hewson for Mr Quintavalle) put forward four grounds of appeal. We address these in turn. The first ground was that the President erred in law "in finding that the test for removing the Official Solicitor was 'negligence or incompetence'; she should have found that the test was a lower one of improper conduct objectively assessed". In fact the manuscript note of judgment placed before us contained no reference at all to negligence or incompetence. However after some debate counsel agreed that the note was wrong and that the President had made such a reference in her introductory description of the basis on which the application was made.
12. It was not necessary for the President, in order to dispose of the application, to attempt any comprehensive statement of the circumstances in which it might be expedient to remove a guardian ad litem, and the President wisely did not embark on that course. Neither Rule 4.10(9) of the Family Proceedings Rules 1991 nor the corresponding provision of the Civil Procedure Rules (Rule 21.7(1)) specifies any limit on the court's power to terminate the appointment of a guardian ad litem or litigation friend. The President focused on the particular situation in which the court is asked to replace a guardian ad litem because the guardian has in the conduct of litigation taken a course of action (in which we include an omission), or is about to take a course of action, which is manifestly contrary to the best interests of the child whose interests it is the guardian's duty to safeguard. If the guardian (or litigation friend) does act manifestly contrary to the child's best interests, the court will remove him even though neither his good faith nor his diligence is in issue.
13. An instructive example is Re Taylor [1972] 2 QB 369, which was concerned with a group settlement of litigation arising out of the Thalidomide tragedy. A small number of parents who were their children's litigation friends (then called next friends) opposed a settlement on the terms proposed, and this court reversed a first-instance decision to remove them. Lord Denning MR said (at p.380)

"If he is to be removed, it should only be done if the proposed settlement is so clearly beneficial for his child that he is acting improperly in refusing it."

14. He then referred to Re Birchall (1880) 16 Ch D 41, 42, where Sir George Jessel MR had put the matter in a similar way.
15. These authorities were referred to in Mr Levy's and Miss Hewson's skeleton argument before the President and we think she must have had this approach well in mind when she said (as reported in the note of judgment)

"If the Official Solicitor made the wrong decision the question is whether he fell below the standard to be expected of a guardian ad litem. It is not a question of his personal propriety."

16. In referring to whether the Official Solicitor had fallen below the standard to be expected the President must in the context have been referring to a manifest failure to discharge his duty, not to a responsible and considered decision on which another mind might possibly have taken a different view.
17. The second ground of appeal was that the President had erred in law and in fact in concluding that the Official Solicitor had acted disinterestedly in the best interests of Mary, and had properly directed himself in the argument which he put to the Court of Appeal, and in his decision not to appeal to the House of Lords. Before us Mr Levy made clear that this ground of appeal, although widely expressed, did not impugn either the good faith or the competence of the Official Solicitor or his counsel. The criticism was that the Official Solicitor had in his affidavit referred to his "broader responsibilities" as explaining a particular short passage in his counsel's skeleton argument on the appeal from Johnson J. That reference, it was said, showed that the Official Solicitor had not showed single-minded dedication to Mary's best interests.
18. The President rejected that argument and in our view (having ourselves heard the skilful submissions made by Mr David Harris QC, instructed by the Official Solicitor, on behalf of Mary) she was clearly right to do so. The Official Solicitor does have broad and heavy responsibilities since it falls to him to act in a wide variety of cases which raise difficult legal and ethical issues. The passage in the skeleton argument was not encouraging this court to develop the law (as Mr Harris made plain when asked about it during his oral submissions) but to urge that, if the law was to be developed, it should be in a cautious and principled manner. That did not amount to any breach of the Official Solicitor's duty towards Mary.
19. The third ground of appeal was that the President erred in law in concluding that Mary's prospects of success before the House of Lords were nil, and concluding that Mary's appeal to the House of Lords would raise no point of public importance. This is the only ground of appeal which has caused us any anxiety, but we suspect that much of the difficulty may be caused by the absence of a proper approved transcript.
20. We have not identified any passage in the transcript which supports the suggestion that the President did express the view that there was no issue of public importance. She recorded the submission made on behalf of the Official Solicitor that the facts of the case were very special and unlikely to recur, but she stated her own view that it was a case of public importance. She also said she had little doubt that

"the reason for sending the case to the House of Lords was because of the great public importance",

21. and that the House of Lords might give general guidance for the future.
22. The President does appear to have taken the view that an appeal on behalf of Mary would have had little or no real chance of success. She is recorded as having expressed this view in different ways in the course of her extempore judgment. She quoted or summarised the Official Solicitor's reasons for his decision as set out in paragraph 14 of his affidavit:

"I considered with care and anxiety the prospects of success before the House of Lords and concluded they were low. I took into account that if, as appeared probably, the parents would not actively support, and perhaps would even oppose the appeal, the chances of persuading the House of Lords to overrule the decision of the Court of Appeal, would be further diminished. With regard to paragraph 18 of Mr Quintavalle's affidavit, I do not accept that the parents' approach to the appeal, and wishes in relation to the separation procedure, are irrelevant, although I agree that they are not determinative. The wishes of the parents are not directly material to the issue of the lawfulness of the proposed [operation], but, as the Court of Appeal made clear, they are a very important consideration in relation to other aspects of the case: ... " (Emphasis added.)

23. The President said that she entirely agreed with these views.
24. The President is then recorded as having said,

"On the balance of probabilities I would assess the prospects of success as nil."

25. Later, twice, she said that there was no real prospect of the decision of the Court of Appeal being overturned. We take these to be expressions of the personal view of the President, who has unparalleled experience in family law. It is unnecessary to debate whether the overall effect of these expressions of opinion is correctly summarised in the proposed grounds of appeal, or even whether the President was right in taking a firmer and more definite view than the Official Solicitor about the likely failure of an appeal to the House of Lords. The real issue was whether, in not proceeding with the appeal for which permission had been granted, the Official Solicitor was manifestly failing in his duty. The President concluded her judgment by saying that she had no doubt whatever that the Official Solicitor acted with total propriety. We are very firmly of the same view. In all the circumstances we see no prospect of a failure of duty on his part being established on appeal.
26. The fourth ground of appeal proceeds on the premise that the Official Solicitor was compromising the appeal to the House of Lords, and that he should therefore have sought the approval of the court before deciding not to proceed with an appeal. This ground is based on a false premise. A decision not to appeal, where permission has been obtained on the express understanding that the possible appellant needs time to consider the matter, and with no consideration moving from the possible respondents, cannot be called a compromise and does not require the approval of the court. No doubt the Official Solicitor could have decided, as a matter of his discretion, to seek directions from a judge of the Family Division, but he cannot be criticised for omitting to do so. Had he done so, the judgment of the President gives the clearest possible indication of the likely outcome.
27. For these reasons we concluded that an appeal from the President's order would have no prospect of success, and we refused permission to appeal. The President relied to some degree on the lateness of Mr Quintavalle's application but did not base her decision on his leading position in the Alliance making it inappropriate that he should in any circumstances be appointed as guardian. We have not heard argument on the point, but note that if the point had been taken it would have raised a further serious obstacle in the way of the application.
Order: Application refused; First and Fourth Respondents to have their costs; detailed assessment of the First and Fourth Respondents' costs.