Blogging ex-judge gives exclusive insight into one of most influential cases of past 150 years
Former Court of Appeal man reveals what it was like to decide Re A (conjoined twins)
Lawyers have been given backstage access to one of the Court of Appeal’s most influential judgments, thanks to an ex-judge’s entry into the legal blogosphere.
Earlier this month, Legal Cheek revealed that former Court of Appeal judge Sir Henry Brooke had tried his hand at blogging, and had caused controversy by arguing that great advocates are born, not made.
Since then, Brooke has treated readers to a full, honest account of one of the most influential cases in recent history — the Conjoined Twins case.
The case — full name Re A (Children) (Conjoined Twins: Surgical Separation) — will be well known to LLB students studying criminal law, family law or medical law modules.
Recently, the iconic judgment has been pushed back into the spotlight — the Conjoined Twins case now sits alongside fellow law school favourites Donoghue v Stevenson, Carlill v Carbolic Smoke Ball and High Trees as one of the Incorporated Council of Law Reporting’s top cases of the past 150 years.
Now readers have been offered an insider’s view of the case, above and beyond the accounts offered by law textbooks, thanks to Brooke’s blog.
The ex-Court of Appeal judge reveals in his post that he struggled to grapple with the complex legal issues unearthed by the case, and that the hearing coincided with a difficult period of his personal life — his mother’s funeral.
The Court of Appeal case, heard in September 2000, concerned two baby twin girls, Mary and Jodie, who were born conjoined, sharing a common aorta. The key issue was whether it was lawful for doctors to sever this, to give the healthier sister the prospect of a normal life. The other twin was, in the famously morbid words of Lord Justice Walker, living a parasitic existence, only alive because “she sucks the lifeblood of Jodie and she sucks the lifeblood out of Jodie.”
The court’s involvement in the decision to operate was rooted in Mary and Jodie’s parents’ unwillingness to consent to surgery. As devout Roman Catholics, Brooke notes that the parents were unwilling to interfere with God’s plan, and said:
We have faith in God and we are quite happy for God’s will to decide what happens to our two young daughters.
The picture often painted in law textbooks of an ugly conflict between parents and doctors regarding children’s medical treatment is, in this case, unfounded, with Brooke reporting:
One of the happiest features of the case was the warmth of the relationship between the children’s parents and the clinical team at the hospital despite their strongly conflicting views on the desirability and propriety of an operation.
Instinctively, the Conjoined Twins case brings to light a number of complex legal issues — and even the top judges were stumped. Described by Brooke as “the most difficult criminal law problem I had ever seen”, he reports that court officials reached out to judges across the commonwealth for advice, who were as equally bemused, explaining:
During the hearing members of the court contacted judges in the Supreme Court of Canada, the High Court of Australia, and the Constitutional Court of South Africa. None of them could think of any comparable decided cases in their jurisdictions. The only positive comment we received was that it sounded like an extremely difficult exam question.
The complexity of the issues at hand is further evidenced by the number of legal personnel at the hearing. Brooke reveals:
Seven counsel appeared at the start of the hearing in the Court of Appeal (two for the hospital, one for the parents, and two each representing Jodie and Mary’s interests)… By the time the hearing ended nine days later, twelve counsel (including five leading counsel) were engaged, the extra places being filled by a team of three criminal lawyers instructed by the Attorney-General as “friends of the court”, a criminal law QC joining the team who represented Jodie, and a human rights specialist QC representing an organisation called the Pro-Life Alliance, whom we allowed to make written submissions.
Despite the number of counsel present, Brookes recalls that he struggled to confront the legal issues at hand and piece together his judgment:
I remember that when the three of us [judges] met at the start of the week in which we had to give judgment, the other two were far further down the track to a solution than I was. I told them then that I still couldn’t see the wood for the trees.
Eventually, the issues were unravelled and the court gave their much-anticipated judgment: the doctors were permitted to operate, as the surgery was lawful under the doctrine of necessity. The operation was performed in early November, after which the weaker twin “died very quickly”.
And how does Brooke reflect on his part in the iconic case? Describing the judgment as “an unfinished symphony”, he expresses some dissatisfaction that a case of this difficulty was not considered multiple times, at first instance and in the appellate courts. He notes:
As the case goes upwards, arguments become more refined, opportunities widen for considering comparative law solutions, and imperfect reasoning in the first appellate court is shredded in the more intense scrutiny of the higher court. And academic commentators have a chance to join in, too. We did not have the time for any of this.
Brooke does, however, look back at the court’s efforts fondly, ending his analysis of the case with:
So we did our best, from a standing start, in the time available to us.
The surviving twin, real name Gracie Attard (the twins were given pseudonyms in the various published judgments), is now 15-years-old, and has high hopes of becoming a doctor.