Director of Social Welfare v. Tam and Chan

CACV000129/1986

BETWEEN

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Coram: Sir Alan Huggins, V.-P. & Fuad, J. A.

Date of Hearing: 24th September 1986

Date of Judgment: 24th September 1986

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an appeal against a decision of Hopkinson, J. in chambers, whereby he refused to give leave for a surgical operation to be performed on an infant who had been made a ward of court. This infant is only a matter of days old. It was born with spina bifida and developed hydrocephalus and meningitis.

2. The evidence before the judge was that of a neuro-surgeon who said that the hydrocephalus was not severe at the time of birth but was then increasing day by day. He said that it was uncertain how the meningitis would develop, if at all. He urged that an operation be permitted immediately, and he was not sure whether he would even advise an operation on the following day, because he did not know what the condition of the patient would be and he thought that it was quite possible that he would not advise the operation then.

3. The father of the child said to the judge, although he did not give evidence, that he understood the position to be that the child would die in the near future if the treatment was not carried out, and that seems to have been at the root of the judge's decision. He set out all the difficulties, indignities and other troubles that the child would undergo if the operation were carried out but he ended up with these words:

"In these circumstances it seems to me that the future of the child is so uncertain and his life is likely to be so full of misery and suffering, even if this operation is successful that I do not think it is in his interest that the operation should be performed upon him."

4. The judge had been referred to the decision In re B (a Minor) 1981 1 W. L. R. 1421. That was a case where a child was born with Down's syndrome and, in addition, an intestinal blockage. The blockage, in particular, required an operation to relieve the obstruction if she was to live more than a few days. The circumstances there were, as I think Hopkinson, J. appreciated, very different and they are certainly different from the position which now exists, for we have allowed further evidence to be given of the child's present condition, and the same doctor has appeared before us and explained that the hydrocephalus, which was never severe,appears to have been arrested: there is no sign that it is progressing. There is at present no evidence of brain damage, although it is impossible at this stage to say whether there has been brain damage. The child is not at present in pain. The chances' of success of the operation are good: he puts it as high as 90%. He does not anticipate that the hydrocephalus will progress and, if it does' not, there will be no further deterioration from that cause. He says if these cases survive through the early period they have a good chance to live into adulthood. He then deals with the meningitis and he says that has been controlled by the use of antibioties and that as the child gets older the chance of episodes of meningitis will disappear. It is his view that if the operation is carried out this child will be able to attend a normal school unless unhappily it later be found that brain damage has affected his intellectual capacity.

5. The position now is entirely different from In re B (a Minor) for there is no immediate prospect that this child is going to die. The risk if the operation is not carried out is that the child will be at greater risk from meningitis, but even if there are further episodes of meningitis it is clear that a treatment exists. One cannot say whether the treatment would be successful and  how often it would be successful, but there does seem to be a real possibility that this child may live a considerable number of years and even reach adulthood without the operation, but without the operation his condition is going to be even more serious than it is at the present time, and that seems to me to put a very clear answer to the question which we have to answer. We are concerned of course with the interests of the child and not with the interests of the parents save in so far as the effect on the parents may impinge upon the child itself. The family's situation is a very unhappy one in the sense that the father is working in Peking, the mother is working in Hong Kong and the family home is not one (as few homes in Hong Kong are) really suitable for the nursing of a patient such as this child is inevitably going to be. Nevertheless it seems to me that we cannot say - to use the words of Dunn, L.J. in In re B (a Minor) - that there is "evidence that this child's short life is likely to be an intolerable one". Its life is going to be a very difficult one indeed but it is going to be even more difficult if the operation is not carried out, and, in my view, it is our duty - painful as it may be - to disagree with the parents and to order that the operation be performed.

Fuad, J.A.:

6. I agree. This is a tragic case and I do not wish any decision that I assist this court to reach to imply any condemnation of the parents of the child, for they had an agonizing decision to make, but I have no doubt whatever, in the light of the additional evidence that Dr. CHAN Sze-tong gave us with the consent of the parties, that the best interests of the child demand that the operation he seeks to make be performed. I would therefore allow the appeal and permit the Director of Social Welfare to authorize and direct the operation on the child.

24th September 1986

Representation:

Wingfield for Appellant.

Miss Leong for Defendants.