Jersey Unreported Judgments

[2003]JCA050

court OF APPEAL

 

14^th March, 2003.

 

 

 

 

 

Appeal by the Attorney General against the judgment of the Royal Court of 18th October, 2002, whereby the Royal Court dismissed the Attorney General's representation, seeking a declaration that the Health and Social Services Committee would not be acting unlawfully if it released samples in the custody of the Committee  from an aborted foetus, the mother of which was a girl under the age of  sixteen years ("X"), so as to enable the States of Jersey Police to carry out DNA tests to establish the paternity of the foetus, the parents of X having consented to the release of the samples and X having refused her consent.

 

The Solicitor General;

Advocate V. Stone, Guardian ad Litem of X.

 

judgment

the pRESIDENT:

1.        This is an appeal from the Royal Court by the Attorney General.  The facts are summarised in the judgment of that Court of 18 October 2002 as follows:

"2.      ...  On 30th April 2001, an abortion was carried out at the General Hospital on a girl born in July 1986, to whom we shall refer as 'X'.  At the time of conception X was aged 14.  At the request of X's father, the aborted foetus was retained by the Committee.  The abortion was legally performed in accordance with the provisions of the Termination of Pregnancy (Jersey) Law 1997.  Article 4 of the Loi (1895) modifiant le droit criminel makes it a criminal offence to have sexual intercourse with a girl who is over the age of 13 years but below the age of 16 years.

3.        The parents of X were divorced in 1997.  Custody, care and control were granted to the mother but, by agreement between the parents, X is living with her father.

4.        Both parents complained to the police when it became known that their daughter was pregnant.  They informed the police of the identity of the man whom they believe to be the father of the aborted foetus.  He has given the police a DNA sample which is stored at Police Headquarters and has, we assume, denied committing the offence.  If the police were able to obtain tissue from the aborted foetus it would be possible to establish beyond reasonable doubt whether the man in question is the father of the foetus.

5.        The police are, of course, under a duty imposed by Article 2 of the Police Force (Jersey) Law 1974 to take all such lawful measures as may be necessary to bring offenders to justice.  They accordingly seek to obtain tissues from the aborted foetus so as to discharge their statutory duty.

6.        Both the parents of X wish the Committee to release such tissues to the police.  The Committee is willing to do so provided that it is lawful; in short, they rest upon the wisdom of the Court.  X is, however, resolutely opposed to the transfer of these tissues to the police and has declined to give her consent.

7.        This representation was accordingly brought by the Attorney General seeking a declaration in the following terms:

           "... that the Health and Social Committee will not be acting unlawfully if it releases samples from the aborted foetus to the Chief Officer of Police for the purpose only of carrying out tests to ascertain whether the suspect is the father of the aborted foetus and for the purpose of any subsequent investigation or prosecution (including any appeal) arising therefrom, and not for any other purpose without the leave of the Court".

The representation was brought before the Court on 12 July 2002 when the Court ordered the appointment of a guardian ad litem to X and adjourned the matter to 26 July.  On 26 July, at the request of the guardian ad litem, Advocate Valérie Stone, the representation was again adjourned to 20 September for argument."

2.        The state of the evidence before the Royal Court was unsatisfactory.  There was affidavit evidence from both the father and the mother of X in which both gave their consent to the release to the police of sample tissues from the aborted foetus for the carrying out of DNA tests, and expressed their wish that the man responsible should be identified and prosecuted.  Apart from their affidavits there was no other evidence at all before the Royal Court, whether evidence in support of the Attorney General's representation, for example, from the police, or evidence relating to X's interests.  It is unfortunate that the Royal Court did not take the normal step of giving directions for the filing of affidavit evidence in advance of the hearing.

3.        This Court has, however, benefited from affidavit evidence from X which Mrs Stone sought leave to introduce without opposition from the Solicitor General who appeared for the Attorney General, and for which this Court gave leave.  In her evidence X explained that the abortion took place while she was still 14, that she was told by the staff of the General Hospital that the foetus would be destroyed according to the normal procedure and was not told that the foetus would be retained, that the sexual intercourse took place with her consent, but there is no continuing relationship with the man, that the abortion and the continuing requests to consent to the DNA tests have been upsetting for her, that on several occasions in the period of 15 months between the abortion and the start of these proceedings such requests were made to her through Child Care Officers, that continuing concern about the foetus has affected her life since the abortion, and has caused friction between her and her separated parents, and that since she is now well over 16 years old, and 2 years have gone by since the abortion, she considers that her best interests will be served by now finally laying this matter to rest.  She wishes this to happen, and considers that her wishes and feelings should be respected.  None of this evidence was challenged by the Solicitor General.

4.        The first question for this Court to consider is what is the jurisdiction of the Jersey Courts in such a matter as this.  The case was argued before the Royal Court solely on the basis of the inherent jurisdiction of the Court to protect the interests of children.  I understand that another member of this Court considers that that is the basis of the Courts' jurisdiction in this matter.  In my judgment, however, the jurisdiction is not so confined.  There is in such a case as this a clash between, on the one hand, the duty of the police to investigate and prosecute those believed to have committed serious crimes, and the powers which the police can exercise (including the power to enter premises and seize articles which are or may be evidence of such crimes), and on the other hand, the interests of a child and the duty of the Courts to protect those interests.  Such a clash can be resolved (unless there is agreement) only by the Courts.  It cannot be supposed that the police must actually take steps to exercise those powers, and the child or those acting in her interests seek to restrain the police, before the issue can become one for the Courts to determine.  The Courts have jurisdiction to grant declarations in advance, after weighing all the relevant factors, including the duties and powers of the police, and the interests of the child.  For my part I would therefore reject the notion that the Court has no jurisdiction to act in such a case as this otherwise than in the exercise of the parental jurisdiction in relation to children.  On the contrary, in my judgment the Courts have a two-fold jurisdiction, both (i) to uphold the exercise by the police of their duties and powers, and (ii) to protect children's interests.  In the interplay between these potentially competing jurisdictions, the Courts have the difficult task of finding the right path between them.

5.        Though in my judgment that would be the correct starting point, it is convenient to examine the issues which the Royal Court raised for its determination.  The Royal Court identified four issues, and I will refer to each of these in turn.

6.        The Royal Court's issue (i) was:

"(i)       What is the status in law of the foetus?  Is it a person or a thing, or neither?  If a thing, is it capable of being owned?  In any event who has a power of disposition over the foetus after abortion?"

The Royal Court referred to various authorities, and particularly to the first instance decision of the Supreme Court of the State of Tennessee in Davis v Davis (1992).  There was not provided to this Court a copy of that decision.  It appears that in Davis v Davis the court was considering the status of a "pre-embryo", the collection of cells up to 14 days after the fertilisation of an egg, and that the Tennessee court concluded that a pre-embryo is neither a person nor property, but in a category which entitled it to special respect because of its potential for human life, so that the interest of the man and the woman who created the pre-embryo was in the nature of ownership, giving them decision-making authority concerning the disposition of the pre-embryo, within the scope of the law.  The Royal Court concluded that X has in respect of the aborted foetus an interest in the nature of ownership giving her "authority, within the bounds of public decency and the general law, to make decisions concerning its disposition".

7.        In Annex B to the Interim Report of the Bristol Royal Infirmary Inquiry there is a helpful discussion of the right to possession of bodies or foetuses and the duty to dispose of them.  It appears from the cases there cited that in English law:

(i)        There is no property in a dead body:  Williams v Williams (1882) 20 Ch D 659 Kay J., though there can be such property in a anatomical specimen preserved for exhibition or teaching purposes:  R v Kelly [1999] QB 521 CA.  But Dobson v North Tyneside Health Authority [1996] 4 All ER 474 CA shows that there are limits to this exception.

(ii)       Similarly it seems that there is no property in an aborted or still-born foetus, which is not to be equated with the body of a dead person:  Doodeward v Spence (1908) 6 CLR 406 High Court of Australia (though as held in Doodeward there can be property in a still-born foetus preserved and held as a specimen for many years).

(iii)      Nevertheless English law recognises a possessory right to take possession of a dead body (and similarly it seems of a foetus) and a duty to dispose of it lawfully.  This possessory right is in England and Wales in the coroner in the first place, and then in the personal representatives of the deceased in the case of a dead body (Williams v Williams), or failing such representatives, probably the parents (if any) or the children (if any), and finally the hospital or local authority.

(iv)      Presumably the parents in the case of an aborted foetus would be persons having the right to possession coupled with the duty to dispose of it lawfully.  If the father had not been identified, then it would be the mother alone who would have this right and duty.

8.        In the absence of any other assistance from authority, in my judgment the Royal Court was entitled to hold that X does not own the foetus, but she has a right to possession, a duty to dispose lawfully of the foetus, and the authority to make decisions as to its disposition, subject to limits imposed by public decency and the general law, and naturally to any material decision of the Jersey courts.

9.        The Royal Court's issue (ii) was:

"(ii)      If X owns or has a power of disposition over the foetus after abortion, is her consent required before the Committee can release tissues from it to the police?"

The Royal Court held that X's consent is required.  But that conclusion by itself begs the ultimate question which the Courts have to decide in this case, whether the Courts have jurisdiction to order release of the foetus for the purpose of taking tissues from it  so that a DNA test can be carried out, and if so, whether the Courts should order release.

10.      The Royal Court's issue (iii) was:

"If the answer to (ii) is in the affirmative, can refusal [by X] to grant that consent be displaced either by X's parents or by the Court."

X was 14 years old at the time of conception.  X is 16 years old now.  She is still a minor and living with her father.  Her parents wish the foetus to be released, but X does not.

11.      The Royal Court took an analogy from the ability of a minor to consent to medical treatment.  It referred to the Consent to Medical Treatment (Jersey) Law 1973, Article 1, under which a person who has attained the age of 16 years can consent to medical treatment.  It referred also to Gillick v West Norfolk and Wisbech AHA [1988] 3 All ER 402 in which the question was whether a parent could prevent medical treatment (by the prescription of contraceptives) in the case of a girl who was under 16.  The House of Lords by a majority held that at common law a child of sufficient understanding could consent to such treatment, in the absence of her parents' knowledge or consent, or in the face of their express prohibition.

12.      The Royal Court expressed the view that, though at this point the question in this case is whether the parents can consent to the use of the foetus despite X's refusal to give consent, "this is but the other side of the same coin".  That seems to me with respect not to be correct.  The question in this case is an entirely different question from that in Gillick, and I derive from Gillick only the broad general proposition that in matters affecting the health of a child of sufficient understanding, the child's view should normally prevail over the views of the parents.

13.      In the present case we are concerned not with the health of a child, but with what is to happen to the foetus aborted from the child.  I can see no basis on which the parents can simply overrule the child and grant consent.  But the parents' views are in my judgment one relevant factor to be taken into account when the Court reaches the ultimate question, whether or not it should order the release of the foetus.

14.      Turning to the Court's powers, what the Royal Court said, in paragraph 22, was this:

"Neither counsel suggested however that this Court did not have power to override X's refusal to grant consent.  That power stems from the Court's inherent jurisdiction in relation to minors.  The jurisdiction was asserted in Re an Infant 1995 JLR 296 when the Court authorised the Health and Social Services Committee and its medical staff to discontinue medical treatment to a five year old child who was in a vegetative state.  It has its counterpart in England in the parens patriae jurisdiction asserted by the High Court in relation to children."

In my judgment this conclusion is both right and wrong.  It is right that the Courts have power to override a child's views if that is decided by the Court to be in the true interests of the child.  But the Court does not, when exercising its parental jurisdiction over a child, have power to override a child's views in the interests of others, whether the interests of the child's parents, or the child's family, or (relevantly to this case) the interests of the police.  The reason why the Courts have power (but only in appropriate cases) to place the interests of combating serious crime above the interests of a child, in a case such as this, is because the Courts have a second jurisdiction, that of supporting the exercise by the police of their duties and powers.  The Courts have to balance the interests of the child assessed by the courts under their parental jurisdiction, against the interests of the public or the community assessed by the Courts under its jurisdiction as to the duties and powers of the police.  As I have already indicated, in this case and in cases like it, there is a direct clash between the interests of the child and the interests of the community, and between the parental jurisdiction and what I will call the communal jurisdiction.  It is for the Courts to undertake the difficult task of resolving this clash.  I emphasise that in my judgment the interests of the child could not be said to encompass the interests of the community in a case such as this.  They are rival interests, and the Courts are the arbiters between them.

15.      In the course of the illuminating arguments well presented by the Solicitor-General and Mrs Stone, the question was raised whether the Courts would also have the jurisdiction to overrule the wishes of an adult woman in circumstances similar to the present.  Suppose that a woman has been raped, and a foetus resulting from the rape has been aborted.  Suppose that the woman refused consent to the foetus being released so that tissues can be taken for DNA testing to identify the man who raped her (and who may have raped other women).  It seems to me to be arguable that in those circumstances the Court might have jurisdiction to override the woman's refusal of consent if the public interest in the release of the foetus was clearly stronger.  But that is a matter to be argued and decided in a later case.

16.      The Royal Court's issue (iv) was:

"(iv)     If the Court has that power, how is the discretion to be exercised?"

It is at this point that I finally part company with the Royal Court.

17.      There are two reasons for this.  The first is that the Royal Court had before it no evidence as to the circumstances affecting X.  The statements by Mrs Stone as counsel were not evidence, and the Court should have given directions for the filing of evidence by the guardian ad litem.  Mrs Stone's position was rendered the more difficult because Mrs Stone herself was appointed guardian ad litem, and strictly she could not as counsel give evidence herself, other than formal evidence:  see Hirschfield v Sinel [1999] JLR 55 at pp.65-66.  In future cases it would be appropriate for a Child Care Officer to be appointed as guardian and represented by counsel.

18.      The second reason is that the Royal Court failed to have due regard to the competing jurisdiction to be exercised in respect of the duties and powers of the police, in short to the public interest.  The Royal Court rejected the submission that in deciding whether or not to order the release of the foetus the Court had to balance the private interests of X against the interests of the public.  In my judgment the Royal Court erred in this respect.

19.      What the Royal Court had to do was to take account of all relevant factors, one of which, and an important factor, is the interest of the public in prosecuting paedophiles and ensuring that they are not able readily to seduce under-age girls again.  The offence of which X was a victim is a serious crime.  This is made the clearer by the recent raising by the States of Jersey of the maximum sentence to 5 years' imprisonment.

20.      It is in my judgment to be regretted that the Royal Court did not have before it any of the cases in England in which the Court of Appeal has had to decide whether or not to release to the police evidence obtained or given in court in civil proceedings relating to the care and custody of children.  The analogy is not a direct one, but the approach taken in England is of assistance.

21.      The principal authority in England is the Court of Appeal decision in Re C (A Minor) (Case Proceedings: Disclosure) [1997] Fam. 76.  In that case Swinton Thomas LJ in delivering the leading judgment summarised some of the factors to be taken into account at pp.85-86.  I will not cite the passage in full, but it is helpful to quote some parts of his summary and to comment on them and I quote:

"(1)     The welfare and interests of the child or children concerned in the care proceedings.  If the child is likely to be adversely affected by the order in any serious way, this will be a very important factor".

Similarly in the present case, if X were likely to be adversely affected "in any serious way", then this would be a very important factor.  I will return to X's interests later.

"(2)     The welfare and interests of other children generally."

Here this is a factor of some importance.  If the man who seduced X is, as suspected, an older man, he may have paedophile tendencies and he may strike again with another under-age girl.

"(3)     The maintenance of confidentiality in children cases."

This is a factor to be taken into account in the present case.  But it seems to me not to be a factor of any considerable importance.

"(6)     The public interest in the prosecution of serious crime and the punishment of offenders, including the public interest in convicting those who have been guilty of violent or sexual offences against children.  There is a strong public interest in making available to the police material which is relevant to a criminal trial.  In many cases, this is likely to be a very important factor."

In my judgment this is in the present case a very important factor.  The need to bring sex offenders, particularly those who prey on under-age girls, to trial is of obvious importance at the present time.

"(7)     The gravity of the alleged offence and the relevance of the evidence to it.  If the evidence has little or no bearing on the investigation or the trial, this will militate against a disclosure order."

Here the offence is a serious one.  The DNA evidence from the foetus is of central importance to criminal proceedings against the suspect man, and might ensure that X did not have to give evidence in any such proceedings.

22.      It is not necessary to make much further citation from the English authorities.  The summary of relevant factors by Swinton Thomas LJ in Re C has been adopted by the English courts as indicating, in cases where disclosure is sought, the main factors to be brought into account.  But I give one further quotation from Re V and Re L (Sexual Abuse: Disclosure) [1999] 1 FLR 267 and from the judgment of Butler-Sloss LJ (now President of the Family Division) at page 270:

"From the guidelines in Re C and the earlier decisions it is clear that the court in family proceedings is likely to disclose relevant information to the police or to a defendant to criminal proceedings unless there are powerful reasons to the contrary."

That in my judgment ought to be the approach of the Courts of Jersey also.

23.      This approach needs, however, to be put in the context of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 8, Right to respect for private and family life, which provides:

"1.      Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

24.      The Article 8.1 right is relevant, because X's private life and her right to respect for it are important factors to be taken into account.  The Article 8.2 qualification on this right is also important.  X is entitled not to have her right interfered with by the court and the police unless that is both in accordance with the law, and "necessary" for one of the purposes stated in Article 8.2.  Here the relevant purposes are "the prevention of crime" and "the protection of the rights and freedoms of others", that is of other under-age girls who might be seduced by the suspect man.

25.      The Solicitor General helpfully referred to the decision of the European Court of Human Rights in Z v Finland (1997) 25 EHRR 371.  Z was married to a man referred to as X.  It was discovered, when investigating X in relation to a number of sexual offences, that X was HIV positive.  He was consequently tried on several counts of attempted manslaughter.  In order to discover when X knew that he was HIV positive, the police seized medical records concerning his wife Z, and orders were made obliging the doctors treating Z to give evidence.  Z complained about violations of her rights in (inter alia) these two respects.  The Court accepted, in paragraph 97 of its judgment:

"that the interests of a patient and the community as a whole in protecting the confidentiality of medical data may be outweighed by the interest in investigation and prosecution of crime and in the publicity of court proceedings."

The Court held that, with the safeguards for the confidentiality of the evidence afforded by the laws of Finland, there was an appropriate and reasonable relationship of proportionality between the interference with her rights and the legitimate aim of enabling the authorities successfully to prosecute X, and there was therefore no violation of Z's Article 8 rights in these respects (though there were in other respects, particularly in the release of evidence of her medical history from confidence, violations of her Article 8 rights).  In my judgment the decision in Z v Finland makes it clear that there can be a reasonably proportionate interference with Article 8 rights where this is necessary for the prosecution of criminal offences.  I emphasise the words "there can be", because here we have to weigh in the balance all the factors to which I have referred, including the private interests of X to which I now turn.

26.      In paragraph 3 of this judgment I have summarised the affidavit evidence of X.  This shows that X has clear interests in bringing this matter to a close, so that it does not continue to affect her life.  I distinguish in this respect between her interests, and her wishes which may or may not coincide with her interests as determined by this Court.  X's interests as described in her affidavit are a major factor for this Court to take into account.  But it is not the only factor.  Taking the list of factors in Re C (paragraph 21 above) I have set out those which in my judgment are most relevant in the present case.  The principal factors in the end are X's interests and the public interest in bringing criminal offenders to justice, which this Court has to weigh in the balance. 

27.      I also take account of the delay.  Mrs. Stone urged that this is a strong factor against the release of the foetus.  That is a point which I recognise and respect, but on the other side such delay as there has been has led to X being older, more experienced and potentially better placed to endure any publicity (if any) which may flow from a prosecution of the man identified by a DNA test of tissues from the foetus.

28.      Weighing these factors carefully, and giving the fullest weight to X's interests and her present position, I have no doubt that the right course is for this Court to declare that the foetus be released to the police so that DNA tests can be carried out, and that once such tests have been completed the foetus should be returned to the hospital for destruction in accordance with the hospital's usual procedures.  The need to assist the police in the prosecution of this criminal offender is in my judgment a much stronger factor in the present case, having regard to the potential impact on other under-age girls.

29.      Finally, I emphasise that in future cases of this kind involving children

(i)        it is incumbent on the police and the Attorney General to proceed as speedily as they reasonably can;

(ii)       as soon as the matter is placed before the Royal Court, an order as to the early filing of affidavit evidence should be made; and

(iii)      the hearing should be given reasonable priority, given that the life of a child may be affected by any undue delay.

SMITH JA:

30.      This case concerns the impregnation of a fourteen-year-old girl, referred to as "X" in order to protect her identity.  On the 30^th April, 2001, a legal abortion was carried out on X and, at the request of X's father, the aborted foetus was retained by the Health and Social Security Committee.  On the 12^th July, 2002, the Attorney General, on behalf of the Chief Officer of Police, presented a Representation to the Royal Court seeking a declaration that,

"...the Health and Social Services Committee will not be acting unlawfully if it releases samples from the aborted foetus to the Chief Officer of Police for the purpose only of carrying out tests to ascertain whether the suspect is the father of the aborted foetus and for the purpose of any subsequent investigation or prosecution (including any appeal arising there from) and not for any other purpose without the leave of the Court".

The tests referred to involve matching the DNA from the samples with a sample of DNA already furnished to the police by the suspect.  If the samples were to match this would indicate that the suspect had been guilty of the criminal offence of having sexual intercourse with a girl over the age of thirteen years but below the age of sixteen years, an offence which is punishable by imprisonment for a  maximum of five years.

31.      X had refused to consent to the sampling of the foetus.  However, her parents had given their consent.  The arguments advanced to the Royal Court on behalf of the Attorney General sought to have the parents' consent recognised as legally effective to permit the sampling and subsequent steps or to have the Royal Court under its inherent jurisdiction consent on the minor's behalf.

32.      The Royal Court, the Bailiff presiding, refused to grant the declaration sought.  It defined four issues which are set out in the Bailiff's judgment as follows:

"(i)      What is the status in law of the foetus?  Is it a person or a thing, or neither?  If it is a thing, is it capable of being owned?  In any event, who has the power of disposition over the foetus after abortion?

(ii)       If X owns or has a power of disposition over the foetus after abortion, is her consent required before the Committee can release tissues from it to the police?

(iii)      If the answer to (ii) is in the affirmative, can a refusal to grant that consent be displaced either by X's parents or by the Court?

(iv)        If the Court has that power, how is a discretion to be exercised?"

33.      In relation to issue (i) the Royal Court concluded, after a careful analysis of the limited material available bearing on the issue, that

"... the foetus in this case is not capable of forming the subject of a true property interest.  However X has an interest in it that is in the nature of ownership in the sense that she has authority, within the bounds of public decency and the general law, to make decisions concerning its disposition."

34.      The Royal Court's conclusion on issue (i) has not been challenged before us and I do not think it necessary for me to consider it further.  As far as the other issues are concerned, the Royal Court decided that X's consent was required for the release of the tissue, that X's refusal to grant consent was not displaced by the consent of either of her parents and that although it could be displaced by the consent of the Court in the circumstances of the case the Royal Court should not over-ride X's refusal.

35.      The grounds of the Attorney General's appeal are set out in the Notice in the following terms:

"1.       that the Court was wrong in Law in failing to find that the parents were competent to give a consent which would authorise the release of the samples despite the refusal of X to give her consent.

2.        that the Court did not give any or sufficient weight to the express wishes of the parents.

3.        that the Court gave too much weight to the wishes of X and failed to distinguish them from her interests.

4.        that the Court erred in failing to find that the interests of X justified the release of the samples.

5.        that the Court failed to give any or sufficient weight to the public interest which requires that offenders are brought to justice.

6.        that the Court gave too much weight to the time which had elapsed between the date of the abortion and the date of the bringing of the representation."

36.      Before us, the Solicitor General, Miss Stéphanie Nicolle Q.C., on behalf of the Attorney General developed the grounds adumbrated in the Attorney General's Notice of Appeal.  Advocate V Stone, guardian ad litem of X, who opposed the Attorney General's application for the declaration in the Royal Court, sought before us to support the Royal Court's decision.  I am indebted to both of them for their helpful submissions.

37.      In relation to the first ground set out in the Attorney General's Notice of Appeal, the Solicitor General reminded us that both parents had stated in affidavits that they consented to the release of samples for the purpose indicated in the Attorney General's Representation.  Miss Nicolle criticised the reasoning of the Royal Court on this point which, after a quotation from the speech of Lord Fraser of Tullybelton in Gillick -v- West Norfolk and Wisbech Area Health Authority and another [1985] 3 all E.R. 402, is set out in the following terms:

"She is now sixteen and entitled, as a matter of law, to consent to sexual intercourse.  We were told that she was no longer at school.  She has reached that stage of development where her right to privacy and indeed her own views, particularly in so far as her own body is concerned, are entitled to respect.  Her parents may properly try to influence her choices but in this sphere her decisions are essentially her own.  We reach the conclusion that her parents are not empowered to over-ride her refusal to grant consent for tissues from the foetus to be made available to the police.  This is not to say that the parents' wishes are to be ignored.  Albeit that the authority of a parent dwindles until that moment when the child attains his majority at the age of eighteen, a parent retains the right and duty to be heard as to what is in the best interests of a child even of sixteen or seventeen."

         At the date of the hearing of the representation before the Royal Court X was sixteen years of age.

38.      The Solicitor General drew our attention to the judgment of Lord Donaldson MR in Re R (a minor) [1991] 4 All E.R. 177 and quoted to us certain passages from it.  That case involved a fifteen- year-old girl who was mentally ill and who had refused medication and treatment.  The English Court of Appeal held that, in exercising its wardship jurisdiction, the High Court had power to consent to medical treatment of a minor ward of court who was competent to consent to treatment but who had refused consent or was not asked.  Lord Donaldson went on, however (at p. 185 (e)) to indicate that even where a child who is recognised in law as capable of consenting ("Gillick competent" - a reference to the criteria for a child's legal capacity to consent set out in the Gillick case cited above) refuses consent medical treatment would be lawful if undertaken on the foot of parental consent.   Lord Donaldson expressed the same opinion in the later case of Re W (a minor) Medical Treatment [1992] 4 All E.R. 627 at p. 639j.

39.      I am not convinced that consent to medical treatment and consent to the sampling of tissue can properly be equated and, therefore, I am not persuaded that Lord Donaldson's observations are in point.  However, I do not consider it necessary to rule on their applicability to the present case for the following reason.

40.      In my opinion, once the inherent jurisdiction of the court is invoked in relation to a minor the consent of the parents becomes subject to the court's judgment as to whether or not that consent was soundly based.  As far as parents are concerned the only consideration they can take into account is the well-being and welfare of the minor.  In a passage in the judgment of the Royal Court the Bailiff says the following:

"Both [of the parents] have stated in their respective affidavits that they have been informed that the father of the aborted foetus has committed a criminal offence by having sexual intercourse with their daughter whilst under the age of sixteen and it is their wish that this man be identified and prosecuted.  This is an entirely understandable desire with which the court has great sympathy.  But........ the desire to bring an offender to justice is not necessarily relevant to what is in the best interests of X.  Neither affidavit contains any reference to a reason why the wishes of X should be over-ridden in the interests of her welfare."

And later in the judgment, under the heading "Conclusions" the Bailiff states of the parents that:

 "We know only that they wish to see the man who impregnated their daughter prosecuted and brought to justice.  We have found that this is not a relevant consideration in determining what is in the best interests of X."

41.      It is clear that these statements amount to a finding of fact by the Royal Court to the effect that the material in the parents' affidavits is deficient in that each parent's decision to give consent was based on a consideration other than the well-being and welfare of X.  In my view this was a finding open to the Royal Court and I consider that this Court is bound by it.  Accordingly, in my judgment, it is not open to us to allow this appeal on the ground that X's parents have consented to the sampling of the foetus.  Thus, as I have already stated, further consideration of Lord Donaldson's view of the efficacy of parental consent is otiose.

42.      It follows from what I have just said that the second ground relied on by the Attorney General cannot be sustained.  The Royal Court would only have been entitled to give weight to the wishes of the parents if they had been grounded on a factor tending to foster the well-being and welfare of X.  The Court held that the parents' understandable desire to see the perpetrator of the offence against their child prosecuted did not, without more, fulfil this requirement and, therefore, in my opinion and in the absence of any other material emanating from the parents it was permissible for the Royal Court to leave the parents' wishes out of account.

43.      For a reason I will explain later in this judgment I now move to the Attorney General's fifth ground which, I believe, lies at the heart of this appeal.  The Royal Court expressly rejected the proposition that its task in this case was to conduct a balancing exercise between the interests of X and the public interest in bringing a person who has committed a criminal offence to justice.  As the Bailiff succinctly put it "We are concerned to do what is in the best interests of X".

44.      I must confess that, at first blush, I found the proposition that the public interest is not to be brought into account in a case of this sort somewhat startling.  Without seeking to over-colour it, this case involves the abuse of a child.  Across the English-speaking world public authorities and great institutions have been shaken by the fury that has erupted upon it becoming apparent that those authorities and institutions have been less than effective in dealing with adults in their midst who were found to have abused children.  It is not suggested that X's interests should not be taken into account.  But that the community's anxiety that those who gratify their desires by having sexual intercourse with under-age girls should be brought to justice may not even be considered in a case of this sort seems to me to require a compelling justification before it can be accepted.

45.      The Solicitor General argued that it is implicit in the Royal Court's approach, encapsulated in a sentence "It is the well-being and welfare of X that is the first and paramount consideration" that that is not the only consideration and that another is the public interest.  The use of the word "paramount" in a similar context is also to be found (for example) in the speech of Lord Hailsham in Re B [1987] 2 All E.R. 206, in the speech of Lord Scarman in Gillick (op.cit. at p.420) and in the judgment of Balcombe LJ in Re W (a minor) [Medical Treatment} (op.cit. at p. 643).  However, I can find no indication that the significance to which the Solicitor General sought to attribute to the use of that word has been recognised in any of those cases, or for that matter, any other case.  The overwhelming thrust of the authorities put before us is that the inherent jurisdiction over minors is exercisable only in the interests of the minor.  To my mind, the authorities do not support the proposition that the minor's interests and the public interest are, as it were, parallel considerations that fall to be reconciled, in cases in which they both arise, by some sort of balancing exercise.  My understanding is that the use of the word "paramount" is intended merely to permit the court to hear, for example, the view of parents but yet to ensure that those views are not elevated above their legitimate place in the decision-making process.

46.      Having said all this, in my judgment the public interest does come into play in a case of this sort although not in the way contended for by the Solicitor General.  In a polity governed by the Rule of Law all of the actors involved in the administration of justice, including, and in particular the courts, must I believe approach any case in which it appears that a crime may have been committed with the predisposition to do all in their power to bring the perpetrator to justice.  The present case is no exception.  Thus, the Royal Court's starting point ought to have been that it would make the order sought unless this objective was displaced by credible evidence demonstrating that the making of the declaration would be liable to be injurious to the well-being or welfare of X.  Although I do not suggest for one moment that any of those who from time to time constitute the Royal Court are other than totally committed to bringing offenders to justice in accordance with law it seems to me that the repeated emphasis on the interests of X in the Bailiff's judgment indicates that the approach I have outlined above was not the one adopted in the instant case.

47.      It will be observed that the approach I have taken to the resolution of this appeal differs from that of the President of this Court, Southwell JA, whose judgment I have had the advantage of reading in draft.  To my mind the recognition of what Southwell JA has called "a second jurisdiction" would involve vesting in the courts, if not the police, a right to over-ride the wishes of the individual which appears never to have been recognised before in the courts of this Island.  And, in my view, the logic of the recognition of this second jurisdiction in the instant case must necessarily lead to the recognition of a jurisdiction to over-ride the decision of an adult to refuse consent to the seizure and use by the police of material in which that adult has a quasi-proprietary interest (for example, the sort of material the subject matter of this case) or (by logical extension) a right of ownership. 

48.      It may well be that a general jurisdiction of the sort identified by Southwell JA would be highly desirable.  The example he gives of the potency of the public interest in taking DNA samples from an aborted foetus resulting from a rape is compelling.  But the Royal Court appears to have thought that its provision is a matter for the States and not the Courts.  As the Bailiff put it "If the police lack the power to obtain the evidence that they seek from the foetal remains, that is a matter for consideration by the legislature".  For my part, I would be reluctant to recognise a general jurisdiction to interfere with private rights over property vested in an adult on the basis of the limited argument we have heard on this issue in the instant case.  The courts have long recognised what have been called the elemental rights of the adult citizen over his or her property.  Any potential infringement of those rights seems to me to require the most careful scrutiny in a setting in which the holder of the rights in question has an opportunity to argue fully his or her case.

49.      It follows from the above that I do not share Southwell JA's view that In Re C (a minor) [1997] Fam 76 is an applicable authority in this case.  In Re C, and a bundle of English authorities put before us by Advocate Stone, concerned the release to the police of information relating to family proceedings which either preceded those proceedings or had been generated by them.  Those cases did not involve the invocation of the inherent jurisdiction in relation to a minor in respect of the sort of quasi-proprietary interest we are considering here.  In my opinion the methodology adopted in In re C and the other English cases would only be applicable if there was, indeed, the wider jurisdiction accepted by Southwell JA vested in the Court.  As I have already said and for the reasons given I consider that, in the circumstances, the correct approach in the instant case is for this court to remain within the four corners of the inherent jurisdiction exercisable in respect of minors.

50.      In dealing with the Attorney General's fifth ground I have, I believe, also dealt sufficiently with grounds 3 and 4 and I say no more about them.  Ground 6 relates to the delay in bringing the Representation and I deal with this in the context of the decision as to what is to be done now - a question to which I now turn.

51.      In normal circumstances the usual course of action where the Royal Court has, as it were, applied the wrong test would be to remit the matter to that Court for reconsideration.  It is, after all, the primary tribunal of fact and the application of the test I have adumbrated is essentially a factual process.  However, I, like the Royal Court, am concerned about the length of time it has taken for this matter to reach the courts (it is now nearly two years since the abortion).  Therefore, I consider that it is appropriate in the exceptional circumstances of this case to depart from the usual course and for this Court to decide afresh whether or not the declaration sought by the Attorney General should be made. 

52.      As Southwell JA has pointed out we now have available to us an affidavit from X explaining her reasons for refusing her consent to the taking and use of the DNA samples from the foetus.  I recognise that she has been the victim of a crime and that she has gone through a traumatic experience.  I can readily understand her wish to put the whole business behind her and I am concerned to note that the difference of opinion between X and her father in relation to the sampling is a continuing source of friction.  I appreciate that the delay in bringing this matter to court has compounded these factors.

53.      On the other hand X is now 16 and may reasonably be expected to bear greater burdens than a young child.  There is no evidence to suggest that a prosecution, even participation in a prosecution, would damage X's health or, for that matter, disrupt her life to a significant extent.  In my opinion whatever risk there is to the well being and welfare of X is not sufficient to displace the powerful public interest in the facilitation of a prosecution.  Accordingly, I would allow this appeal.

54.      I should, I think, add that I accept and adopt the reasoning of Southwell JA in relation to Article 8 of the European Convention of Human Rights in so far as it is consistent with my own analysis of the issues in this case.

CAREY JA :

55.      I have had the great benefit of reading in draft the Judgments of Southwell JA and Smith JA and I gratefully adopt Southwell JA's statement of the facts of this case.  I am not going to engage in a full review of the various arguments as those have been dealt with in the other judgments.  I too have come to a similar conclusion to that of my brothers that the Royal Court dealt with this matter on too narrow a basis and that the appeal should be allowed.  I am coming to a different conclusion from that of the learned Bailiff and the Jurats of the Court below, who, notwithstanding the criticisms of Southwell JA of the way in which the matter was allowed to proceed without formal evidence, in my view, approached this difficult matter with care and sensitivity.  I will try and explain quite briefly how I have approached this difficult problem and how I have reached my conclusions.

56.      The Representation on behalf of the Attorney General states his position succinctly. It recites the facts and the legislation which appears to have been infringed as a result of X becoming pregnant.  The complaint of the parents and the statutory duty of the Police to investigate are also referred to.  The relief sought is a declaration that the Health and Social Services Committee will not be acting unlawfully if it releases samples from the foetus to the Police for the purpose of investigating and prosecuting the offence.  I have considerable sympathy for the Court below and the way that it dealt with this matter in the light of the somewhat limited but admittedly restrained way in which the Crown Advocate appears to have put the case for the Attorney General.  It was clear from Crown Advocate Sharpe's outline submissions that the reason why the Court was being asked by the Attorney General to involve itself in this matter was because X was a minor.  In paragraph 2 there was stated: "The parents of the Child wish the samples to be released, but the Child has declined to give her consent. The Committee rests on the wisdom of the Court."

57.      The submissions then went on to review the Court's inherent jurisdiction over minors, issues of ownership of the foetus, confidentiality to which were attached issues of respect for private life and consent. On the latter issue "the best guidance" was to purportedly to be found in the cases relating to medical treatment and in particular Gillick v West Norfolk and Wisbech Area Health Authority. The material conclusions offered by Advocate Sharpe are to be found in paragraph 19 of the representations or the submissions as follows:

"The child has withheld her consent.  However, it is argued that her failure or refusal to give consent is irrelevant.  She has no "ownership" in the foetus and even if she did, her wishes can be over-ridden by her parents, notwithstanding, that she may be "Gillick competent".  It is in the public interest that the criminal investigation should not be hindered.  The police are under statutory duty to bring offenders to justice".

58.      Despite the apparent return in that paragraph of the argument to the broader basis of the application, it appears to me that the Court below understandably, but unfortunately, got drawn into treating the case essentially like any other child welfare case where it has ringing in its ears the principle that the interests of the child are paramount.  The best illustration of this failure by the Court to address the wider issues was in its ready acceptance without evidence and without independent verification of what Advocate Stone was saying on behalf of X.  I have reviewed the proceedings below and what was then being said on behalf of the Appellant Attorney General in some detail as where an unsuccessful appellant for relief wishes to appeal it is important to look at the way the original application was presented.

59.      I start from the point that the law of Jersey makes it an offence for men, subject to the statutory defence, to have sexual intercourse with girls under the age of 16 regardless of whether the girl consents.  X became pregnant at the age of 14.  A crime appears to have been committed.  Sadly X's parents have gone their separate ways, but there is no indication that they are not responsible parents having appropriate concerns for the welfare of X.  They were agreed that they wished to complain to the police that an offence had been committed against their daughter and wished the police to investigate and bring to justice the offender.

60.      X with the support of her parents, decided to have an abortion.  This took place at the hospital in Jersey.  The police who were seized of the complaint of an offence against X, wanted a DNA sample taken from the tissue of the foetus so that they could check it against that of an individual they had grounds of suspecting of the offence and whose DNA they had apparently obtained.  I adopt what Southwell JA has recorded in paragraph 7 of the Judgment summarising the conclusions of annexe B to the interim report of the Bristol Royal Infirmary enquiry.  Subject to the point made in Doodeward, there is no property in an aborted foetus.  Possession is taken by the doctor or hospital authority where the abortion is carried out and there is entrusted to them as the persons having possession, a duty to dispose of the foetus lawfully, normally, one suspects, by treating it in the same way as any other post-operative human waste.  The Bristol case shows clearly that if any other course is to be adopted by a hospital, consent of the patient or in the case of a dead body consent of the relatives must be sought.  It is hard to think that there can be "lawful disposal" other than in the way the hospital normally deal with other post operative waste except perhaps in cases where the foetus is required for medical research in controlled circumstances.  Certainly I would not without argument wish to suggest that a parent or indeed in the case of a juvenile, grandparents of a foetus would have any right to have it delivered to them after the termination operation.  I mention this solely because I think it is important to put in context the significance of what X and her parents are being asked to consent to.  They are merely being asked to agree that prior to lawful disposal, access will be granted to take a DNA sample, which is perhaps one of the least intrusive medical processes that one can envisage.  Accordingly many of the problems thrown up by the Bristol Infirmary case are not relevant here.

61.      The Attorney General does not appear to be claiming that there is any general right for the police to investigate pregnancies of 14 year old girls when there has been no complaint from any person or persons having parental responsibility for the young girl concerned.  How far down the line one goes in taking the view that complaints should be forthcoming from parents before an alleged act of paedophilia is investigated, is not a matter that we have to dwell on.  The point is that the Attorney General makes the concession in this case that the taking of the DNA sample should only be with the consent of the parents and the victim on the basis that the Court can if the victim refuses such consent over-ride the victim's wishes.  I personally am not at all sure that this is the right approach.  It seems to me that the law is there to protect young girls.  It is saying to them that however ready, mentally and physically they may personally feel for the sexual experience fulfilment of their desire must be discouraged by making the partner guilty of what, as Southwell JA points out, is a criminal offence of which the Legislature has taken an increasingly serious view over the years.  Underage girls are deemed in law incapable of consenting to intercourse.  If they do become pregnant and evidence is wanted as in this case to apprehend the criminal who has been the cause of the pregnancy, then it is highly probable that they will not have sufficient judgment to agree that the law must take its course and the necessary evidence gathered to mount a successful prosecution.

62.      I am bound by the Attorney General's concession.  X's views must be heard, but at the end of the day this Court has to weigh up all the competing factors and decide how far it should override the rationally expressed and entirely understandable views of X, views that inevitably call for greater respect now that X is 16.  However we cannot escape the fact that at the time this matter should have been dealt with X was 14.  In my judgment the views of the parents on this particular issue should clearly take precedence over the views of the child. That is not an end of the matter - the Court has to be final arbiter. No one would be seriously suggesting that if X was 11 or 12, her views would have necessarily been sought.  Asking the child in this case has regrettably caused friction between her and her parents at a vulnerable time.  Her extended involvement in these proceedings has no doubt caused her to relive moments that have been amongst the least happy in her life.  I regret that the law has deemed it necessary to explore her views in such detail, although I suggest no alternative; except to say perhaps an earlier move to dispense with her consent after a full report from a Guardian ad Litem might have been more humane.

63.      It may be thought that my conclusion is inconsistent with the decision of a majority of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority.  That case centred on the right of a girl under the age of 16 to obtain contraceptive advice from a doctor when the parents had specifically requested that such advice be not provided.  The law does not make it an offence for young girls to consent to intercourse when they are under the age of 16 years.  The offence is committed by the man who engages in the activity with them.  In the old days society punished unmarried mothers however young by applying social sanctions to them out of all proportion to the lapse that had occurred in their behaviour.  Happily we live in a more enlightened age.  The majority of the House of Lords recognised the problems unplanned pregnancies created for young girls but also recognised that despite the sanction that was applied to the male partner, young girls would increasingly feel able to engage in sexual relationships with young men.

64.      In my judgment the crux of the issue in Gillick is to be found in the judgment of Lord Scarman at the bottom of page 423 and the top of page 424:

"In the light of the foregoing I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.  It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.  Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances.  Emergency, parental neglect, abandonment of the child or inability to find the parent are examples of exceptional situations justifying the doctor proceeding to treat the child without parental knowledge and consent; but there will arise, no doubt, other exceptional situations in which it will be reasonable for the doctor to proceed without the parent's consent."

65.      Young girls who can meet the test laid down therein have since been described as "Gillick competent".  This case below proceeded on the basis that X was Gillick competent, although without evidence.  Even assuming X was Gillick competent for the purposes of deciding issues such as whether she should take a contraceptive pill or whether she should have surgery to stop her teeth sticking out, the question that X was being asked to express a view on had no bearing on her future health or wellbeing. It involved an issue, put at its simplest as to whether or not the law of the land should be upheld. I do not consider that the principles stated in Gillick and the other teenage medical treatment cases really assist here.

66.      I agree that help on the circumstances where Courts are likely to feel able to order disclosure is to be gained from the judgment of Swinton Thomas LJ in Re C which is quoted by Southwell JA but even that decision and the other family proceedings disclosure cases were involved with a very different question, namely where the line is to be drawn between keeping confidential in the interests of encouraging candour and openness, information which has been obtained in a child care investigation from a subsequent criminal investigation.  Issues of confidentiality do not arise in the same way in this case.

67.      The Judgments of Southwell JA and Smith JA reveal a different approach between them as to the extent of the Court's jurisdiction in this matter.  It is not for me at this stage to try and reconcile these views or indicate which I prefer.  I find no difficulty in the concept that a public authority such as the police or States Department should have the right to come to the Court and ask whether a particular course of action is legal and obtain declaratory relief.  With the growing enthusiasm for judicial review it is likely that the Court is soon going to be asked to rule the act proposed is illegal if the public authority go ahead without having sought guidance. However I do not wish to be drawn into a discussion of the extent of the jurisdiction to grant declaratory relief. Inevitably however for reasons I have explained this matter has to be taken out of the realms of a simple child welfare case because considerations outside the direct interest of the child have come into play.

68.      There is one further point I should mention in the light of Smith JA's view that we are bound by the Court below's finding that the parents had in some way not considered X's interests in deciding whether to complain and ask for the offence to be investigated.  The Court below found that whilst the parents properly felt that the father of the aborted foetus should be prosecuted they had not explained in their affidavits why X's views had to be over-ridden and why the taking of the samples would be in her best interests.  Southwell JA has already referred to the regrettable lack of formal evidence before the Court below and accordingly I do not feel the views of the Court below on the one piece of affidavit evidence which may indeed not be really complete inhibit me from the conclusion I have reached with regard to passing over X's views. 

69.      I also record my agreement with the analysis of the ECHR jurisprudence in paragraphs 22 and 23 of the judgment of Southwell JA.

70.      I would allow the appeal and make the declaration sought.  Whilst I hope this decision will assist in the investigation of crime I would not wish what I have said to be interpreted as in any way encouraging or discouraging the prosecution at this point in time of the man who allegedly violated X.  That decision is a matter for the Attorney General alone.

Authorities

Termination of Pregnancy (Jersey) Law 1997.

Loi (1895) modifiant le droit criminel: Article 4.

Police Force (Jersey) Law 1974: Article 2.

Advocate Nicola Davies: "The legal implications of the provision of IVF Services in Jersey" (1997) 1 JL Review 117.

Davis v Davis (1992) Tennessee Lexis 400.

Williams -v- Williams (1882) 20 Ch D 659.

R -v- Kelly [1999] QB 521 CofA.

Dobson -v- North Tyneside Health Authority [1996] 4All ER 474 CofA.

Doodeward -v- Spence (1908) 6 CLR 406.

Consent to Medical Treatment (Jersey) Law 1973: Article 1.

Gillick -v- West Norfolk and Wisbech Area Health Authority [1988] 3 All ER 402.

Hirschfield -v- Sinel [1999] JLR 55 at pp.65-6.

Re C (A Minor) (Case Proceedings: Disclosure) [1997] Fam 76.

Re V and L (Sexual Abuse: Disclosure) [1999] 1 FLR 267.

Convention for Protection of Human Rights and Fundamental Freedoms: Article 8.

Z -v- Finland (1997) EHRR 371.

Re an Infant (1995) JLR 296.

Re W (a minor)(medical treatment) [1992] 4 All ER 627.

Royal Liverpool Children's Hospital Inquiry (published by the House of Commons: January 2001).