The Children Act – my verdict

Her Honour Lady Justice Elspeth will present her findings on the case in the novel by Ian McEwan

 

No need to rise (thanks for being willing).

 

The son of a Jehovah’s witness couple is deemed a minor by the law and therefore his and his parent’s wishes can be overruled by the court, where the court feels that the welfare of the statutory child is at stake, as per section 1 (a) of The Children Act (1989).

 

Adam is three months off being 18 and has leukaemia. He is advised by Edith Cavell Hospital that he needs an urgent blood transfusion to save his life. Indeed, this court has been called at short notice today because the consultant haematologist states that after tomorrow, Adam’s chances of living are small.

 

A blood transfusion is against the beliefs of the family, including Adam, and is therefore being refused. Adam is well aware that he will likely die, and so his are family and community.

 

We have heard about the deeply held beliefs of the Henry family.

We have heard the consultant’s view of the likely suffering and unpleasant death that will befall Adam if he continues without the transfusion.

 

We have heard the precedents of previous judges who allow for statutory minors to make their own decisions, and we have deliberated whether Adam passes this non statutory test of being capable – ie that of being “Gillick competent”; whether it is better for the court and hospital to intervene, and what is the meaning of ‘welfare’. No-one has framed welfare as a developmental or spiritual path. This is a significant oversight in my view.

 

We have noted that Adam’s church circle is narrow. We have considered whether Adam has been able to make his own commitment and decision; and if he is aware of the kind of death he will suffer. Lady Justice Maye has suggested to intervene would be saving the boy from himself and his religion, though she states that the court must have no view on religions or the afterlife. However, it surely does and that has affected the ruling.

 

It appears that no-one in the court shares a view with the Henrys about God and death; Mr Carter the consultant states his Anglicanism, yet he saw Jehovah Witnesses – a related and derivative faith – as a cult.

 

As judge, I am presented with but two options: either I force Adam to have the transfusion, and he will live; or I let him have his apparent wishes, and he dies horribly.

 

But we have not considered other options, nor taken apart the beliefs on both sides.

 

Mr Carter is used to being consulted with, but not in consulting others. It is his dearly held belief, bolstered by a world he is entrenched in, as are truly many of us in the legal world, living in gated nearby communities, socialising with our own, reinforcing the ideas we have long held and rarely having them challenged. As we rise to the top of our profession, we are in a position to distil these beliefs into others, and have less to influence us from above.

So my first point is that a Jehovah’s Witness is no more in a bubble world than many of us, including those who seek a ruling against the Jehovah’s Witnesses here today.

 

Secondly, those who would have me find against the Henry family are of a rational bent, if not an atheistic one. Mr Berner QC, representative of the hospital, may I ask if you have any form of faith or spirituality? Mr Carter, is your Anglicanism one based on prevalent modern science and rationalism, or do you believe in an intervening God who can heal though means other than hospitals? Do you believe in any other kind of medicine save allopathic – that is, your own medicine? I thought as much.

 

You see, we have an issue, that most people involved in this case do not see the world as Adam’s family do. It is assumed that I too would be on the rational side, as Lady Justice Maye was, whose decision I am reconsidering.

 

Although we say that courts do not comment on faith, they do, for we quote Lord Justice Purchas who claims that religions are allowed as long as they are “legally and socially acceptable” and more colourfully and emotively, Lord Justice Scarman precludes those that are “immoral and socially obnoxious”. Could those quotes not be used to crush dissent? For faith is a powerful impetus for civil disobedience, believing in a higher power and cause than earthly authorities, which of course means secular law. For those invested in status quo and their own hegemony, religions are an anathema at best and a threat at worst. Although of course, religions can be used for hegemony and status quo keeping and we must consider if the beliefs in this case are a case in point.

 

Mr Carter, may I ask, what is at stake for you? What do you gain from carrying out a transfusion – money or a commission for example? We are aware that procedures carry a fee for medical staff, and could the drugs involved also be influenced by the profit seeking companies that made them?

 

Mr Carter, how and why does the death of Adam affect you? Is it something you would be upset by – surely not as much as the parents here, and his other loved ones? Do you really care about the affect it would have on your staff?

Is death a failure for you – personally, professionally, on your statistics?

In your view, is death the worst that can happen?

 

And Mr and Mrs Henry – is death the worst for you? Of course not, you believe you go to paradise, reunited with loved ones and God. But how do you feel about the actual loss?

 

I have another thought on a crucial matter that has been erstwhile omitted: the transfusion is deemed necessary because of the drugs being administered for Adam’s anaemia. So these drugs have such a serious side effect that they require an intrusive, risky and to some, taboo procedure to correct it? And we have heard from the family’s counsel that transfusions are not always successful or safe, something that Mr Carter nor Mr Berner has taken seriously.

 

Whilst we heard about the beliefs of the family, no-one articulated that actually several ancient mandates, including the Bible’s Levitical injunctions, are actually often shown to be wisdom that the modern world might be wise to listen to. Aren’t Jews without many of the illnesses that befall their all meats and all animal parts eating counterparts? Perhaps we don’t think enough about life stuff and its sacredness; and only in a world where blood is no more than the oil of the body could we think of swapping it and other parts with those of others?

And I note how those who refuse or query are seen as outdated, cranky, if not dangerous.

 

Her Ladyship is observing all this.

 

So my first conclusion is – why has no alternative healing been considered, such as faith healing, or non allopathic methods, such as herbal and energy based medicines?

I understand that these can be miraculously effective, even from a scientific view.

What else has the allopathic world got in its medicine chest?

 

Also, I rule that an urgent enquiry and temporary ban be put into place on these anti anaemia drugs which are clearly so harmful. I must say that I am shamed that no other person on this case has flagged up or shown alarm on this matter.

 

My next main area is that of the minor’s choice. We arbitrarily place a legal coming of age, now quite late considering history and culture. Adam would be a man already in many other times and places. We have a set standard threshold that is measurable – that quantitative, rational, empirical based mindset again – and not one that is based upon a person’s maturity and insight. We know that Adam has both of those.

 

We claim to care for the welfare of children, but yet there is a great conundrum:

To force bodily acts and fluids on another is assault; to do so, even consensually under the age of 16 is automatically seen as rape by the law.

 

And yet – up to the age of 18, law can support medicine in doing so, against the wishes of the person concerned and their next of kin.

 

What kind of parent are we, the establishment, on behalf of our nation’s young people?

 

We are giving alarming ‘facts’ – I must empathise the inverted commas around the word – about the urgency of the procedure, the death that will befall Adam without it, the likelihood of success. But have we really had those statements scrutinised? Are we allowing the pressure from the hospital to let us overlook the paucity of strong evidence, the manipulation of the arguments against the Henrys’ view, or attempted to uncover underlying motives and views of those against the family’s wishes?

 

I am of the mind that state nor institution has the power over the body and fate of another, and that this should never be supported in law. The transfusion would be a medical rape with much in common with a sexual one, both physically and psychologically damaging.

 

We must urgently consider what else might help Adam.

 

I also state that death, for many believers, is not the end or the ultimate worst. The ancient Mayans called death “an act of creation”, part of life’s cycle. We assume in science that a long life is our rightful life, and any other is a cheat, a failure, a tragedy; death is a nuisance and an error to bat away for as long as possible. This is an immature view of death, forgetting the spiritual and personal development’s role in life, for those who die and those who witness and grieve.

 

I must here return to a line of enquiry that Lady Justice Maye took, which is if the Henry’s beliefs are helpful or harmful; are they freely held or enforced? Is this truly standing up for one’s beliefs and going home to God, or a more sinister and unnecessary martyring?

Is this God speaking, or your church’s elders? I note that the suggestions about alternative healing have been mine, not the Kingdom Hall’s. They have not spoken of faith or natural healing; it is assumed that death is the outcome of obedience to God’s mandate against blood transfusion. I have not heard anyone suggest that God might save Adam without the transfusion. The Almighty seems to concur with the more science based consultants here. Might that be a fault in the defence’s counsel, or does it belie something significant about the religion – and this branch of it as relating to the Henry family?

 

I do find something concerning and significant here, and as much as my own beliefs may be largely inappropriate to the case (and yet still drive my ruling), I would like to share that I am well aware, both personally and with the knowledge of the faiths of others, that the kind of God being presented is not one that many believers would recognise. To critique the Jehovah’s Witnesses, or even this particular branch and its leaders, is not the remit of this court; but I do note that powerful leaders seem to pressure the Henrys into this view, and I wonder how loving and wise a leaders they can be if they impose an obedience that could be fatal and yet offer no succour save the next world – not much succour for Adam’s parents – and no alternative to the transfusion; not even the laying on of hands or anointing of oil common in other Christian circles.

 

The Henrys are asked to put Adam’s life into someone’s hands – God’s or Mr Carter’s; God may work through the transfusion and the elders may be at work through the supposed will of God. I trust my ruling is aware of both and finds a third way.

 

Thus I summarise my ruling:

 

I require that alternative healing for Adam be urgently sought – tonight – if the Henrys choose it; and that no procedure can be forced on animal or human without their and their next of kin’s consent. I will convene a party to propose changes to the laws.

I would like Mr Carter to be invited to be involved in the alternative healing. I make clear that a rejection of transfusion is not a rejection of him or a sleight on his work.

 

I recommend a greater working between allopathic and so called alternative medicine, particularly regarding non intrusive and less profit driven forms of medicine, including energy and faith healing. This may be an area for the Jehovah’s Witnesses to consider.

 

I also recommend a query into the statutory age limit – for were this case three months later, we would not be here today.

 

As said, I declare the need for the urgent recalling and investigation into the drugs and procedures, and further research into transfusion, not just is efficacy but its safety, and the research into alternatives.

 

It is very much my hope that Adam will live, and that he might enjoy a wider view and circle than he has thus far – and that so might all of us, for a small, self serving view is all too common. I admire the courage of all the Henrys and their steadfastness, but I might suggest that their God is less exacting than their pastors.

 

Case dismissed. You may rise this time.

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