Court: New South Wales Supreme Court.
Year: 1999
Summary: Blood transfusion dispute over 7 month old baby with Leukemia.
------------------------------------------------------------------------------
Director General of the Department of Community Services v "BB" [1999] NSWSC 1169 (19 November 1999)
Last Updated: 1 December 1999
NEW SOUTH WALES SUPREME COURT
CITATION: Director General of the Department of Community Services v "BB" [1999] NSWSC 1169 revised - 01/12/99
CURRENT JURISDICTION: Equity
FILE NUMBER(S): 4636/99
HEARING DATE{S): 12/11/1999, 19/11/1999
JUDGMENT DATE: 19/11/1999
PARTIES:
Director General of the Department of Community Services (Plaintiff)
"BB" (Defendants)
JUDGMENT OF: Santow J
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
M Adofaci (Sol/Advocate) (Plaintiff)
S Teece (Sol) (Defendants)
SOLICITORS:
Anthea Tomlin (Senior Sol) Crown Solicitor (Plaintiff)
Stephen Teece (Defendants)
CATCHWORDS:
SUPREME COURT -- Inherent jurisdiction in relation to welfare of children -- Blood transfusion for an infant where parents have strong religious convictions to the contrary -- Difference between statutory power for emergency medical intervention under s20A of Children (Care and Protection) Act 1987 and orders sought to alleviate an appreciable risk of serious damage to the child's health -- Extent of Court's jurisdiction and factors affecting the exercise of its discretion, as arise in the context of a life threatening condition -- form and scope of orders.
ACTS CITED:
Children (Care and Protection) Act 1987 s20A
DECISION:
Orders made authorising medical treatment by way of blood transfusion.
JUDGMENT:
REVISED -- 1 December, 1999
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITY
SANTOW J
No. 4636/99
DIRECTOR GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES
Plaintiff
"BB"
Defendants
JUDGMENT -- ex tempore
19 November 1999
INTRODUCTION
1 In relation to an infant of seven months "GG" with acute lymphoblastic leukaemia ("ALL") diagnosed on 2 November 1999, the director General of the Department of Community Services ("DOCS") seeks two orders. The first is an order allowing the Executive Director of the New Children's Hospital at Westmead ("the Hospital") to be authorised to render medical treatment, including the transfusion of blood or blood products and a reinfusion of the child's own blood. I will describe that as "order 1".
2 The second is an order that the Defendants, parents of baby "GG", comply with any reasonable direction given by the qualified staff of the Hospital as to treatment and attendance for treatment of "GG". I shall describe that as "order 2".
3 The parents I shall describe collectively as "BB", and the infant as "GG". I do so to preserve the confidentiality of the child's situation, being satisfied that this is necessary for the child's welfare.
4 "BB" are members of the Jehovah's Witnesses. Through their legal representatives and by affidavit, they have made clear that for deeply held religious reasons and also as a matter of civil liberty, they would be opposed to any form of blood transfusion or reinfusion of the child's own blood. It has been made clear that this opposition extends particularly to orders 1 and 2 in their present form. Without prejudice to that position, the Defendants have indicated that a form of order 1 modified to make it more precise and less onerous, being in the form appended to this judgment, would be less objectionable though still opposed. This is particularly insofar as it avoids any suggestion that authorisation is required for treatment not involving blood transfusions, which the parents fully support. They oppose order 2 because they see it as both unnecessary and as "stripping the parents of any right to have any input into the care of their child".
5 As to order 2, I have particularly noted the parent's devoted concern for their child and the fact that to date the parents have brought their child to a hospital when first there was concern about "GG's" health. They have fully co-operated in the treatment regime, though making absolutely clear their opposition to blood transfusions. I have given consideration to a modified form of order 2 that ensures the parents are consulted if available and which acknowledges that devoted concern. Furthermore, the order would come into operation only if there were a failure to comply with any reasonable direction. The Defendants' legal representatives still oppose such an order, but agree it is less objectionable in that modified form.
SALIENT FACTS
6 Baby "GG" was born 19 April 1999. On 2 November 1999 "GG" was diagnosed with Acute Lymphoblastic Leukemia ("ALL") and was admitted to The New Children's Hospital at Westmead.
7 Tests conducted on 3 November 1999 indicated that the child was at a "high risk of morbidity".
8 On 3 November 1999 Dr Peter Shaw, indicated to the Defendants that "GG" would need transfusions of blood and blood product if she was to be treated to the internationally recognised protocol for treatment of infant ALL.
9 The Defendants indicated that they would not give permission for such transfusions. The parents are Jehovah's Witnesses and would not consent to the blood transfusions.
10 On the morning of 4 November 1999 "GG" was in a critical condition and Dr Shaw decided that a blood transfusion should be performed. It was so performed. It is not in dispute that s20A of the Children (Care and Protection) Act 1987 authorised that medical treatment. This is on the basis of Dr Shaw's "opinion that it [was] necessary, as a matter of urgency, to carry out the treatment on the child in order to save the child's life or to prevent serious damage to the child's health".
11 DOCS became involved on 5 November 1999.
12 The Defendants have indicated to doctors treating their daughter that they would prefer each situation where transfusion may take place to be judged separately and that their expressed wishes in relation to transfusions only be overrode in emergency situations.
13 The treatment protocol established for "GG" does not allow for that kind of crisis management of her condition but rather provides a regime to avert such emergency situations where possible.
14 Platelet (a blood component) transfusions are a necessary part of the preventative medicine involved in the protocol.
15 There is considerable risk, according to Dr Peter Shaw, that without transfusions, a fatal haemorrhage may occur (e.g. in the brain).
16 It is not in dispute that the alternative treatment held out by the parents as available in Perth at the King Edward Memorial and Princess Margaret Hospital is essentially the same as that at the Hospital as it is now carried out. That is to say, as confirmed by the principal treating doctor, Dr Shaw, the regime in place at the New Children's Hospital specially designed for baby "GG" is a conservative one so far as blood transfusions are concerned respecting the parents' concern in that regard, though placing the welfare of the child as paramount. In particular, the Hospital has adopted so far as it can the supportive therapy which "BB" as parents have put to the hospital including the use of EPO (erythro poietin) and the potential use of an as yet unlicensed product interleukin 11 to encourage the natural generation of platelets. This is subject in the latter case to there being no undesirable side-effects for "GG" including counteraction of the chemotherapy treatment. It is fair to say that the parents "BB" acknowledge with gratitude that the Hospital has in that way shown sensitivity to their concerns.
17 It is also not in contention that to transport "GG" to Perth, certainly inside of the next month and possibly for some time after, would endanger "GG's" life or health and in any event would not be acceptable to the Perth hospital.
RESOLUTION OF THE ISSUES
18 It is well settled that this Court has a common law jurisdiction as parens patriae to safeguard the welfare of children and it is that jurisdiction which the present application invokes. It extends to authorising medical treatment for an infant, even against the parents' wishes (Department of Health and Community Services v J.W.B. and S.M.B. ("Marian's case") (1991-2) 175 CLR 218 by way of exception to what is described as the right to personal integrity. But that jurisdiction is to be exercised "in the best interests of the child" Dalton v Skuthorpe (McLelland J, SCNSW, 27 November 1989, unreported). The paramount concern is the best interests and welfare of the child.
19 The Defendants in their comprehensive submissions for which I express my indebtedness, have pointed out that authorisation for a medical procedure of the sort here contemplated of blood transfusions, requires that the Court be firmly satisfied upon convincing evidence that such procedure is justified; Briginshaw v Briginshaw (1938) 60 CLR 336. The Court should in exercising its judgment in the matter be conscious that the orders sought override the conscientiously held belief of the parents. Nonetheless the Court must place the welfare of the child as paramount.
20 It is clear from the evidence that unless the regime in place permits blood transfusions, "GG's" chances of survival are seriously impaired and her life placed in jeopardy; this is even with the regime of supportive therapy now in place. This is because one effect of the chemotherapy on a child with "GG's" condition is the likelihood that it will bring about a reduced haemoglobin and platelet level. There is an appreciable risk of serious damage to the child's health if such intervention is not permitted until an emergency situation occurs, as Dr Shaw's evidence makes clear, as I explain.
21 For the Defendants it was said that s20A of the Children (Care and Protection) Act 1987 (NSW), already invoked on 4 November 1999 adequately safeguarded the situation. This was because that Act permits intervention by way of blood transfusion where the medical practitioner is of the opinion that it is necessary as a matter of urgency to carry out the treatment on the child in order to save the child's life or to prevent serious damage to the child's health.
22 However, the orders sought, for reasons elaborated by Dr Shaw in his evidence before me, go further than this in seeking to alleviate appreciable risk of serious damage to the child's health. According to Dr Shaw, whose evidence I accept, to leave matters to the point where intervention was only possible under s20A ran firstly the risk that the intervention would be too late. Secondly, it left the child at continuing risk of cranial haemorrhage once platelets dropped to a low enough level, a condition that could occur without warning and with fatal consequences. Essentially, what Dr Shaw explains is that the regime is not just for life-saving intervention but to avoid the need for it by removing the life-threatening event before matters reach that extremity.
23 The Defendants in their comprehensive submissions relied upon a number of authorities and in particular to the case of Re Marion (No. 2) (1993-4) 17 FamLR 336, where Nicholson CJ (at 351) discusses the factors that may be relevant in deciding the best interests of the child, in cases where orders concerning a particular medical procedure are sought. He sets out these factors in terms conveniently summarised below:
(i) the particular condition of the child which requires the procedure or treatment;
(ii) the nature of the procedure or treatment proposed;
(iii) the reasons for which it is proposed that the procedure or treatment be carried out;
(iv) the alternative courses of treatment that are available in relation to that condition;
(v) the desirability of and effect of authorising the procedure or treatment proposed rather than the available alternatives;
(vi) the physical effects on the child and the psychological and social implications for the child of:
(a) authorising the proposed procedure or treatment
(b) not authorising the proposed procedure or treatment
(vii) the nature and degree of any risk to the child of:
(a) authorising the proposed procedure or treatment
(b) not authorising the proposed procedure or treatment
(viii) the views (if any) expressed by:
(a) the guardian(s) of the child;'
(b) a person who is entitled to the custody of the child;
(c) a person who is responsible for the daily care and control of the child;
(d) the child;
to the proposed procedure or treatment and to any alternative procedure or treatment."
24 It should be noted however that that case involved compulsory sterilisation of an intellectually disabled child rather than the kind of considerations that may dictate blood transfusion for a child whose life is at risk without it. While the factors to be taken into account may not be significantly different, the application of those factors is in the present context affected by the life-threatening consequences if no such medical treatment were authorised. It is in that context that I have considered those factors, in particular taking into account the matters dealt with in para 29 below. I conclude that none of these factors are such as to persuade me against modified orders of the kind I have foreshadowed, having reached the necessary level of satisfaction as to the best welfare of the child.
CONCLUSIONS
25 It follows from what I have said that I am satisfied that order 1 should be made, though in the qualified form that I have earlier indicated.
26 As to order 2, I have given considerable thought to whether it is justified in circumstances where the parents have to date at all times complied with the reasonable directions of the Hospital and whose devotion is not in doubt. They indeed initiated the treatment that has led to the present application, though perhaps without appreciating in the first instance the likelihood of blood transfusions. The concern which I have if no such order is made is that it may place the parents in an agonising dilemma, particularly at the stage the child may no longer be in hospital but receiving treatment as an outpatient. That dilemma could arise if the child displayed symptoms which led the parents to conclude, correctly, that a blood transfusion was likely. The parents through their legal advisers have made clear their deep convictions in such circumstances against a blood transfusion though they have properly acknowledged that they would respect such a Court order.
27 Nor do I think that it is fair to DOCS, the Hospital, or the parents, nor is it compatible with the paramount welfare of the child, to have no version at all of order 2, and instead place a burden on the first two parties to seek such an order as and when the occasion arises. Apart from the strain on those involved, the welfare of the child could be jeopardised by the delay entailed in seeking a further order. However, I do agree with the parents as to consultation. I have so expressed it by referring to consultation with the parents "if available" having regard to the need to avoid delay if this might put at risk the health of the child.
28 In all the circumstances, I believe a modified form of order as appended to this judgment is warranted, primarily for the reasons I have mentioned but also recognising that such an order may actually assist all concerned in that difficult situation.
29 I should conclude by noting the concerns that have been put by the father in his affidavit of 19 November 1999 and repeated and developed in the Defendants' helpful written submissions. These concerns include matters going to the welfare of the child brought up in a household of adherents to the beliefs of the Jehovah's Witnesses though the father was careful to emphasise, and I of course accept, that the parents would love the child no less if a blood transfusion were to have to take place. These concerns also include civil liberties and the medical risks inherent in blood transfusions. I have carefully weighed those concerns but conclude that the paramount welfare of the child is best served by the orders that I have now to make. In modifying the orders sought by DOCS I acknowledge that they were properly concerned to do what they considered best in the circumstances.
ORDERS
30 1. That the Executive Director of the New Children's Hospital at Westmead ("the Hospital") be authorised to carry out, by
(a) any qualified member of the staff of the Hospital; or
(b) any qualified medical practitioner visiting the Hospital;
the following:
(i) the transfusion of blood or blood products and the reinfusion of the child's own blood; and
(ii) any treatment ancillary to (i)
that any qualified medical practitioner on the staff of the Hospital or any qualified medical practitioner visiting the Hospital, believes at the time to be necessary to prevent serious damage to the health of the child "GG", including the alleviation of appreciable risk of serious damage to the child's health.
2. That in the event that the First and Second Defendants fail to comply with any reasonable direction following consultation with the Defendants if available, given by any qualified member of the staff of the Hospital or any qualified medical practitioner visiting the Hospital from time to time as to the treatment and attendance for treatment of "GG" (it being acknowledged at all times that the First and Second Defendants have so complied) then it is ordered that they do so comply, such order taking effect only in the event of such failure as aforesaid.
3. Liberty to apply on reasonable notice.
LAST UPDATED: 01/12/1999
Expatbrit's miscellaneous legal stuff thread
by expatbrit 15 Replies latest watchtower scandals
-
expatbrit
-
expatbrit
Court: Supreme Court of British Columbia
Year: 1994
Summary: Custodial dispute. JW father seeks order to allow him to take children to meetings. DF'd mother disputes on grounds that doing so would harm her relationship with her daughters. (Note: Interestingly, the Court paid close attention to WT publications on disfellowshipping).
------------------------------------------------------------------------------Date of Release: October 4, 1994 No. 2419
Nelson Registry
In the Supreme Court of British Columbia
Between: )
)
MARY FRANCES HEWITT ) REASONS FOR JUDGMENT
)
PETITIONER ) OF THE HONOURABLE
)
And: ) MR. JUSTICE HUNTER
)
JEFFREY BOB HEWITT )
)
RESPONDENT )
Appearances:
DONALD W. SKOGSTAD - Counsel for the Petitioner
ROD McLEOD - Counsel for the Respondent
Date of Hearing: August 24, 1994
At issue is the nature and extent of the respondent father's right of access to the two youngest children of the marriage, their daughter, Carinna, born September 7th, 1984, and their son, Adriel, born April 8th, 1986. This is a perplexing and difficult matter. The evidence suggests that both parties are good parents who enjoy an excellent relationship with these two youngsters.
The parties were married in December of 1974. They separated on October 25th, 1991 and were divorced on September 27th, 1993. As I understand it, two older children, Nathanael, born April 5th, 1976, and Jacob, born December 29th, 1977, reside with their father.
The parties have joint custody and joint guardianship of all children. Under the terms of a separation agreement dated August 19th, 1993, the primary residence of the eldest, Nathanael, is with the father and the primary residence of the other three children is with the mother. At some later date and by consent, the second child, Jacob, went to live with his father and that continues.
At the time of the birth of the oldest child, Nathanael, both parents were members of the Jehovah's Witness faith. In fact, all four children have been raised in the Jehovah's Witness faith.
As I have mentioned, the parties separated on October 25th, 1991. The mother has, for some time, been involved in a relationship with another man, although her evidence is that they do not live together. In September of 1993, the mother was "disfellowshipped" from the Jehovah's Witness church to which the parties and their children belonged.
On November 2nd, 1992, a consent order was filed confirming the terms of the separation agreement as to joint custody and guardianship.
One year later, on November 4th, 1993, the father filed a notice of motion seeking sole custody of the four children with supervised access to the mother. On November 26th, 1993, Master Joyce made an order requiring the parties to attend before a Family Court Counsellor to determine the issues in dispute and to mediate. On December 9th, 1993, the father filed a notice of motion seeking sole custody of the children, Carinna and Adriel. On January 13th, 1994, this court ordered that the father have access to the children Carinna and Adriel every Wednesday from the close of school until Thursday at 5:00 p.m. until further order. On July 11th, 1994, this court by order provided that the father have certain additional access in the months of July and August of this year and also provided that the father have access to Carinna and Adriel from 4:00 p.m. on Friday until 4:00 p.m. on Sunday each second weekend commencing August 27th, 1994. That order also provided that the father, while exercising access to the children, Carinna and Adriel, was not to cause or permit the children to attend meetings of the Jehovah's Witnesses until further order.
The concern of the mother is that if the father is permitted to take these two young children to Jehovah's Witness Church proceedings, in the circumstance of her having been "disfellowshipped" by the church, that the effect would be to destroy the otherwise sound and loving relationship which they currently enjoy with their mother. Her concern is that by their attending the church, they will be further indoctrinated as to what their relationship should be to their "disfellowshipped" mother and that it is probable that this will have a serious detrimental effect on that relationship.
The mother, in her affidavit filed on December 9th, 1993, attaches as Exhibit C, a number of Jehovah's Witness publications which purport to advise and direct members as to how they should treat a former member who has been expelled. In an issue of the Jehovah's Witness publication The Watchtower dated September 15th, 1981, there is an article entitled "Disfellowshipping __ how to view it." At page 24, the following appears:
" SPEAK WITH A DISFELLOWSHIPED OR DISASSOCIATED PERSON?
Would upholding God's righteousness and his disfellowshiping arrangement mean that a Christian should not speak at all with an expelled person, not even saying 'hello'? Some have wondered about that, in view of Jesus' advice to love our enemies and not 'greet our brothers only.' __ Matt. 5:43-47.
Actually, in his wisdom God did not try to cover every possible situation. What we need is to get the sense of what Jehovah says about treatment of a disfellowshiped person, for then we can strive to uphold His view. Through the apostle John, God explains:
' Everyone that pushes ahead and does not remain in the teaching of the Christ does not have God. . . . If anyone comes to you and does not bring this teaching, never receive him into your homes or say a greeting to him. For he that says a greeting to him is a sharer in his wicked works. '
The apostle who gave that wise warning was close to Jesus and knew well what Christ had said about greeting others. He also knew that the common greeting of that time was 'Peace.' As distinct from some personal 'enemy' or worldly man in authority who opposed Christians, a disfellowshiped or disassociated person who is trying to promote or justify his apostate thinking or is continuing in his ungodly conduct is certainly not one to whom to wish 'Peace.' (1 Tim. 2:1, 2) And we all know from our experience over the years that a simple 'Hello' to someone can be the first step that develops into a conversation and maybe even a friendship. Would we want to take that first step with a disfellowshiped person? "
On p.25 of the same publication, the following appears:
" NOT SHARING IN WICKED WORKS
All faithful Christians need to take to heart the serious truth that Got inspired John to write: ' He that says a greeting to [an expelled sinner who is promoting an erroneous teaching or carrying on ungodly conduct] is a sharer in his wicked works. ' __ 2 John 11.
Many of Christendom's commentators take exception to 2 John 11. They claim that it is 'unchristian counsel, contrary to the spirit of our Lord,' or that it encourages intolerance. Yet such sentiments emanate from religious organizations that do not apply God's command to 'remove the wicked man from among yourselves,' that seldom if ever expel even notorious wrongdoers from their churches. (1 Cor. 5:13) Their 'tolerance' is unscriptural, unchristian. __ Matt. 7:21-23; 25:24-30; John 8:44.
But it is not wrong to be loyal to the righteous and just God of the Bible. He tells us that he will accept 'in his holy mountain' only those who walk faultlessly, practice righteousness and speak truth. (Ps. 15:1-5) If, though, a Christian were to throw in his lot with a wrongdoer who has been rejected by God and disfellowshiped, or has disassociated himself, that would be as much as saying 'I do not want a place in God's holy mountain either. ' If the elders saw him heading in that direction by regularly keeping company with a disfellowshiped person, they would lovingly and patiently try to help him to regain God's view. (Matt. 18:18; Gal. 6:1) They would admonish him and, if necessary, 'reprove him with severity.' They want to help him remain 'in God's holy mountain.' But if he will not cease to fellowship with the expelled person, he thus has made himself 'a sharer (supporting or participating) in the wicked works' and must be removed from the congregation, expelled. __ Titus 1:13: Jude 22,23; compare Numbers 16:26. "
On page 22 of this publication is a pictorial of a number of people sitting around a table with food on it at mealtime. Below it is the caption " 'Not even eating with' a disfellowshiped person."
The father, in paragraph 6 of his affidavit filed January 5th, 1994 denies the mother's allegation that she was disfellowshiped at his insistence. He says, in part, in that paragraph:
" . . . . It is not by the insistence of any one person or group of persons that one can be disfellowshipped. It is only after extensive meetings by a body of elders that such a recommendation can be made. If a decision is made to disfellowship a member, a discreet announcement is made to the congregation. It would not have been possible for me to arrange or influence in any way the disfellowshiping of the Petitioner, nor would I have known at which meeting it would have been announced. I certainly did not arrange for the children to be present at the meeting where the Petitioner was disfellowshipped. "
The father goes on to say in that affidavit that at no time would he condone the indoctrination of the children so they would have nothing to do with their mother.
I have had the benefit of viewing the 3-page report of Mr. Busby, Family Court Counsellor, dated June 23rd, 1994. He refers to having interviewed the parties, the four children, and numerous others referred by the parties, and says there was never any indication that either parent was unfit or incapable of caring for or providing for their children. He reported favourably on interviews with teachers at the schools attended by the two younger children.
Mr. Busby makes comments with regard to this issue on page 2 of his report which are helpful and which I reproduce below:
" Both Nathanael and Jacob are members of Jehovah's Witnesses and stressed their anger and discomfort with their mother's situation is related solely to the situation the younger children find themselves in and the problems that Mrs. Hewitt has created for their father by severely restricting access by Carinna and Adriel to their father and the meetings with other Jehovah's Witnesses.
I interviewed several members of the Jehovah's Witnesses who assure me the children are instructed to respect and honour their mother as blood ties may never be severed. I am further assured by those members the children are not taught to shun or avoid their mother. Disfellowshipping is a means of disciplining a member of the Jehovah's Witnesses who has seen fit to leave the group or denounce their teachings. No member of the group may have any contact with a person who has been disfellowshipped unless they happen to be elders. Should a person who has been disfellowshipped speak to or attempt to contact any member the elders will contact that person with a view to determine whether or not that person wishes to return to become a practicing Jehovah's Witness.
One Jehovah's Witness expressed her anguish at the loss of a good friend Mary Hewitt but stated she must not have contact with that person because of the teachings of Jehovah and the group.
It is difficult to accept that two children as intelligent as Carinna and Adriel would not understand the concepts and practices of disfellowshipping and relate them to their mother's situation. As one Witness described it, disfellowshipping in Mrs. Hewitt's case relates to her immoral lifestyle. The confusion that would result with the teachings of Jehovah's Witnesses to honour and respect your mother but have nothing to do with someone who has been disfellowshipped could create problems for Carinna and Adriel in the relationship with their mother. "
Also, near the bottom of page 2, Mr. Busby states:
" Both Adriel and Carinna were clear that they wish to spend more time with their father. Adriel stated he wished to serve Jehovah, go to the meetings, and learn more about Jehovah. Carinna wants to do more things with her father including going to meetings because she likes learning about things that they teach and she enjoys being with friends who attend the meetings. Both children enjoy the time they spend with their father in the family home playing in the house and around the property as well as spending time with their brothers and with neighbouring friends. "
In concluding his letter, Mr. Busby makes certain recommendations with regard to access, but is silent on the question of whether these two young children should be precluded from attending church meetings during the father's access time.
Counsel for the father has referred me to Young v. Young, unreported, October 21, 1993) No.22227, (S.C.C.), and particularly to the reasons for judgment of McLachlin J. speaking for the majority at page 25:
" . . . . A custody order does not, however, give the custodial parent the 'right' to limit the access parent's ability to share his or her religious views with the child, unless that is shown on the evidence not to be in the child's best interest. Viewed thus, the notions of custody and access unite in a common purpose of promoting the child's best interests. "
Significantly, McLachlin J. goes on to say in the next paragraph:
" The majority held that an access parent's conduct with his child may be limited where the evidence shows the existence of, or potential for, real harm to the child, or where the child does not consent to the instruction. "
Reference to "the majority" in the last paragraph is a reference to the judgment of the Court of Appeal in that case.
In another decision of the Supreme Court of Canada handed down on the same day as Young v. Young, that court reached a different conclusion in somewhat different circumstances. I refer to D.P. v. C.S. unreported, (October 21, 1993) No. 22296 (S.C.C.). The parties co-habited for a period of three years and then ceased living together and at that time agreed in writing that the respondent would have legal custody of their child and the appellant would exercise access rights. This agreement was ratified by judgment of the court. Subsequently, the appellant began practising the Jehovah's Witness religion. The respondent, a Roman Catholic, objected to the appellant on access visits indoctrinating this 3½-year-old child in the Jehovah's Witness religion. The trial judge referred to the appellant's "religious fanaticism" which he found to be disturbing to the child. The trial judge directed that access by the appellant should continue and the appellant should be allowed to continue to teach the child the Jehovah's Witness religion, but should not have the right to indoctrinate the child continually with the precepts and religious practices of Jehovah's Witnesses and could not take the child to certain activities in which that church engaged. That judgment was upheld on appeal, and again in the Supreme Court of Canada.
My paramount duty is to consider what is in the best interests of the children. I have concluded that it is in their best interest to limit the activities of the father with these children during the access times. I am concerned about the potential for real harm to the children of interference with their relationship with their mother which may result from their attending, with or without their father, church services and other activities of that faith. The father shall be entitled to continue to teach these children in the Jehovah's Witness faith but they shall not be allowed to attend Jehovah's Witness church services, ceremonies or conferences, or to do door-to-door church communications or engage in like matters. I recognize that as the children grow older they will reach an age where they are capable of making a decision on the extent to which they will abide by the strictures of this faith, particularly that of the disfellowship of their mother. Accordingly, I make this order with a right in the father to apply to vary after two years. The dates and times of access by the father will remain as previously ordered.
I make no order as to costs.
"R.B. Hunter"
HUNTER J.
Kamloops, B.C.
October 3, 1994 -
expatbrit
Court: England and Wales Court of Appeal
Year: 1997
Summary: Evidence of child abuse going on amongst Jehovah's Witnesses in the 1970's
--------------------------------------------------------ELVET HARRIES, R v. [1997] EWCA Crim 1232 (16th May, 1997)
No: 9607465 Z4
CRIMINAL DIVISION
The Strand
London WC2
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 831 3183 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
The Crown was not represented
JUDGMENT
( As Approved )
MR JUSTICE SMEDLEY: On 14th October last year at the Crown Court at Cardiff this appellant was sentenced for offences of indecent assault on a male, to which he had earlier pleaded guilty. He received sentences of two years' imprisonment on each count. On counts 2, 3 and 4, which related to one boy, the sentences were two years to be served concurrently. On counts 5, 6 and 7, which related to another boy, the sentences were two years to be served concurrently with each other by consecutively to the sentences on counts 2 and 3, and on counts 8 and 9 two years concurrently to each other, but consecutive to the above sentence, making a total sentence in all of six years. He now appeals against that sentence by leave of the single judge.
The appellant is aged 39. He has no previous convictions. He maintained when interviewed that as a boy he himself had been sexually abused, both by his brother and various members of the family. And in about 1973 when he was only 16 he commenced a course of conduct of indecent assault with a young boy who was then aged eight, and a son of a fellow member of the Jehovah's Witness church, to which the appellant belonged.
The indecent assaults took the form of mutual masturbation and oral sex. They continued until the victim was 15, by which time of course the appellant was in his early twenties.
Counts 2, 3 and 4 of the indictment represent activity from 1973 to 1981. It was said by the Crown in opening that the effect of these offences had been devastating on the victim, and indeed there was a statement served from that victim, now of course a man who is himself grown up married and with young children of his own, indicating the way in which his life had been affected. At the same time that he was involved in indecent assaults with that young man, the appellant was also indecently assaulting his second victim and counts 5, 6 and 7 are specimen counts representing activity with that second young man which began when he was six and continued until he was 14. They are of a similar nature involving mutual masturbation and oral sex. Finally counts 8 and 9 concerned the appellant's stepson. In his case they commenced in 1992 when the victim was seven, but they ended in July 1995 when he was nine. In his case the indecent assaults were acts of masturbation and on one solitary occasion an act of attempted oral sex.
The appellant was arrested on 20th June last year as a result of a complaint to the police by the first of the victims, who we do not find it necessary to name. In the course of being interviewed he admitted the offences, stating that he had been abused himself as a child and it seemed natural for him at that young age to do it to others. During the course of the interview he volunteered the information regarding the second victim who had not at that time made any complaint to anybody, and certainly not the police. Because of the nature of the complaints made by the man I have called victim no. 1, the police spoke to the appellant's stepson. He confirmed that he had been similarly assaulted. The appellant admitted assaulting him and said he had been unable to stop himself and acknowledged that he needed professional help.
There was before the court a pre-sentence report in which the author felt that the appellant appeared to have no awareness of the consequences of his offending on the victims and felt that the risk of his reoffending was high. There were two psychiatric reports, one by Dr Croy dated 26th September last year, and a further one from a consultant psychiatrist Dr Williams dated 8th October. Both of those psychiatrists felt that there was an element of risk to young boys when the appellant is released. It was suggested that he should be, if possible, in a prison when a Sexual Offender Programme is available, and we have been told that he is about to undergo such help. There were also before the court letters from the appellant's wife saying that it is her intention to stand by him and another letter, a rather moving letter from his stepson, the victim in counts 8 and 9, who also says that he wants his father home.
The learned judge described the offences as very serious. He observed that they covered nearly the whole of the appellant's adult life since he was 16. He gave him credit for the fact that he had pleaded guilty at the first opportunity and cooperated fully with the police. He accepted that the appellant had made efforts to apologise to the victims in counts 2 to 7 inclusive and indeed letters were produced which he had written to those two young men in April 1996 before the involvement of the police when his activities had been revealed within the community church where he regularly attended. The learned judge felt that it was desirable for the appellant to be placed somewhere within the prison system where he could take advantage of the Sex Offenders Treatment Programme. What is said today is that the total sentence passed was excessive. In granting leave the single judge observed that given the level of cooperation and the plea of guilty at the first opportunity it may be that the mitigation was not fully reflected in the length of the total sentence. As we have indicated, the appellant was very frank with the police in the course of his interviews. He admitted offences which had taken place some 20 years before. He identified the second of the victims in circumstances where it was unlikely that had he not done so any charges would have been brought in relation to his conduct with him and that, despite the unpleasantness of the incidents, there was no violence or threats used to any of the young men concerned, and a suggestion made that the sentences should run concurrently. That is not a course that we feel could properly be taken. These were three quite separate victims. The offences occurred over three distinct periods and in our judgment it is perfectly right that the sentence should be served consecutively. The only question is whether by imposing a sentence of two years' imprisonment for each of the offences the total of six years is too long. We feel that it is. In our view an appropriate sentence for each of the offences would be 18 months imprisonment, and the sentences on counts 2, 3 and 4 to be concurrent with each other and 18 months' imprisonment on counts 5, 6 and 7 to be concurrent with each over but consecutive to those passed on counts 2, 3 and 4 and the sentences on counts 8 and 9 to be 18 months' concurrently with each other, but to be served consecutive. The total sentence in those circumstances becomes one of four and a half years' imprisonment. To that extent the appeal is allowed. -
expatbrit
Court: England and Wales Court of Appeal
Year: 1998
Summary: Evidence of Child Abuse amongst Jehovah's Witnesses happening in the 1960's.
-------------------------------------------------Archibald MCGARVIE, R v. [1998] EWCA Crim 2264 (9th July, 1998)
No: 9800991/W3
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
JUDGMENT
( As Approved by the Court )
Crown Copyright
He is now 64 years old. The offences were made all the worse from the fact that the victims were two young girls who were his step nieces, but on the other side of the coin these were extremely old offences, all but the last having taken place during the 1960s.
The appellant, who appeals against that sentence by leave of the learned single judge, is a Jehovah's witness as are all the family. The offences started when the elder complainant was six. The appellant would place her on his knee, put his hand inside her underwear, tickle the outside of her vagina, even while other adults were in the room, although he managed to conceal what he was doing by enjoining his victim to silence. Later when the first victim was about seven and a half he used to guide her hand onto his penis and on one occasion while that was semi-erect and unclothed. This course of conduct went on for seven years until she was 13. The second complainant was also six years of age when the appellant started to assault her indecently in precisely the same fashion as he had done to her sister.
In 1973 matters came to a head. The complainant's parents suspected that something was wrong and the story came out from the girls, whereupon there was a family row which also involved formal complaints being made to the church elders. There were several meetings. The appellant denied any impropriety but he did later send a note which led the reader to suppose that he was admitting indecency. At that time no complaint was made to the police, but not surprisingly the rest of the family ostracised the appellant from their circle.
However in 1995, now fully adult, the first complainant, who had obviously suffered psychological damage through these experiences, sought psycho-sexual counselling and decided to report the matter fully to the church elders, they having been told only a part of the story before. After a lengthy formal meeting, which the appellant attended, he apologised but nevertheless the complainant decided to report the matter to the police out of fear that he still might be abusing others.
He was arrested and interviewed. He said that he had no recollection of the offences but the allegations must be true because the girls would not tell lies. The learned sentencing judge gave him credit for his plea describing it as "brave" in the circumstances.
The grounds of appeal are, in general, that the sentence was manifestly excessive. In particular we are urged to say that the learned judge failed to take sufficient account of the age of the offences. That, to a certain degree, is true, but there is a limit to which any person guilty of indecent assault can shelter behind the fact that it has taken his victim some time to recover from the trauma and the embarrassment and bring the matter out into the open; that is all part and parcel of the original offence. However it is a matter to which we must pay some attention, all the more so because the appellant might well have had reason to believe that the affair had been closed back in 1973.
It is further alleged that there had been no digital penetration and the pleas, the basis on which they were entered, made these offences at the lower end of indecent assault. We are not entirely able to agree with that because the most serious aspect of the matter lies in the age of the two complainants and the family relationship with the appellant. However, bearing in mind that the maximum sentence at the time was one of five years, it is submitted that the sentence failed to reflect fully the guilty pleas, described as we have already said as "brave".
The appellant is relatively elderly and, perhaps most important of all, we have been provided with medical reports which show that he is indeed gravely ill. This therefore seems to us to be one of those cases where it would not be unjust to apply the balm of mercy to what would otherwise be an appropriate sentence.
The learned single judge, in our respectful judgment, put the matter succinctly when he said in giving leave: -
expatbrit
Court: England and Wales Court of Appeal
Year: 1999
Summary: Jehovah's Witness elder submits letter in support of serial sex offender.------------------------------------------------------
AM, R v. [1999] EWCA Crim 803 (23rd March, 1999)
No: 9805558 X3
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
MR JUSTICE MITCHELL
( acting as a judge of the CACD )
- - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
JUDGMENT
( As Approved by the Court )
- - - - - - - - - - - -
Crown Copyright
What had happened was that this appellant worked for a firm of builders, who, amongst other things, did roof repairs and, as would be normal in such circumstances, quotations would be given to potential customers. So it was that on 20th January 1998 this appellant went to the complainant's home, an appointment for him to do so having been made the previous evening. Having inspected the roof, he told her that some tiles would need to be replaced and that the cost to her would be £95. Her insurance policy had a £100 excess and accordingly she asked him, quite wrongly, to put up the price so that she would not have to pay for this herself. His response to that was that there had to be something in it for him. She agreed, thinking that what he wanted was extra money for himself. The appellant said he would get some cigarettes from his van and, when he had done so, they would come to an arrangement. He did go to the van but as he did so he put his arms round her and went to kiss her on the mouth. She turned her head away and he in fact kissed her on the cheek. At that time she was seven months pregnant and, according to the evidence of the police officer who was there at the time the appellant was arrested, that pregnancy was there for all to see.
The complainant said that she had frozen on the spot. The appellant went out the front door and came back from his van. She was, as one might well suppose, confused and shocked at that time. She accepted a cigarette from him. He lit his own cigarette but held his hand down low in order to light her cigarette. She put her hand on his arm in order to raise the cigarette lighter but he took hold of her arm and said, "No, you come down for it", and spoke to her in a suggestive manner. She left the room feeling anxious and fearful. The appellant told her that if the price was going to go up there had to be something in it for him. She said she was not prepared to do him any sexual favours and emphasised her pregnancy. Further suggestions of a sexual nature were made by this appellant before he left the house. As he had left the house, he said to her, "I don't do this very often as I would be out of a job". The police were informed subsequently. The appellant was arrested in his home.
When he was interviewed he admitted going to the house and that there had been discussion about repairs. He had joked about the woman propositioning him. He accepted that he had put his arm on her shoulder and kissed her, and he had asked her to masturbate him but she had declined.
The appellant was in fact due to have appeared before the Crown Court at Teesside on 26th June 1998. He did not appear and so it was that, a warrant having been issued in the ordinary way for his arrest, he in fact came before the court on 27th July and pleaded guilty in the way which we have already noted.
This appellant is now 56. Over a period of 14 years, between 1970 and 1984, he had committed offences of various kinds with considerable frequency. So far as this appeal is concerned, it is noteworthy that his convictions during that period included seven for indecent exposure and four for indecent assault. However, it needs to be emphasised that by the time he came before the Crown Court all those offences were spent and the last of them was 18 years ago.
The learned trial judge had before him a Pre-sentence Report dated 18th August prepared by Mr Warden from which it is clear that the appellant had made it plain, and had accepted to the author of that report, that his purpose in holding his cigarette lighter low down was to get this woman to masturbate him. His previous history of sexual offending is examined and set out in the Pre-sentence Report. It is unnecessary for us to go into the detail.
The author of that report carried out, as he was required to carry out, a risk assessment, and on that issue he concluded:
".....there is a risk of harm to female members of the community."
In dealing with that point during the course of his helpful submissions to us today, Mr Soppitt has pointed out that whilst that was the view of the author of that report, in fact the last time that this appellant had been involved in any offence of a sexual nature was 18 years ago.
The learned trial judge also had before him a letter from a prison officer saying that there had been no problems regarding discipline. There was also a letter from the prison medical officer saying that there were no relevant physical or mental illness issues to be raised, and there was also a letter from a Mr Robinson, an elder of the Jehovah's witnesses, who said that this appellant was attending Mr Robinson's Bible study courses and was helping to build up his Christian qualities and principles in his life.
The features of this case which cannot be ignored, as has been made plain by Mr Soppitt in his submissions to us, were that this was a complainant who was vulnerable and heavily pregnant and in her own home, and rightly, in our judgment, Mr Soppitt accepted that there was some degree of intimidation of her. However, it is important to note that once he had tried to kiss her on the mouth and that had not succeeded, he did not go further than that, and at the time when he was charged with this offence he made plain his abject apologies.
The submission is made to us that this sentence of three years was far too much and that sufficient credit was not given for the features which have been urged upon us, including the remorse shown, his plea of guilty and the fact that he had been out of trouble for so many years.
In passing the sentence the learned trial judge had said:
"This is a very serious breach of trust and, in my view, merits a sentence which is both deterrent and exemplary, to demonstrate to you and to others that conduct of this kind by tradesmen admitted to the house of a woman, where they are admitted to carry out repairs, will be regarded by the court as very serious."
We have considered the case on its totality and the decision of this Court is as follows. In our judgment the sentence passed by the learned trial judge was manifestly excessive. Accordingly the sentence of three years' imprisonment will be set aside and in its place, to reflect the particular circumstances of this offence, there will be a sentence of nine months' imprisonment. The order made under section 44 of the Criminal Justice Act relating to his release on licence will remain.
Under the Sexual Offenders Act 1997 the sentencing judge was required by law to specify the period during which this appellant's name should remain on the sex offender's register. By an oversight that was not done. We correct that matter now. His name will remain on the register for the period of seven years, which is the appropriate period relating to a sentence of nine months' imprisonment.
To that extent, and that extent alone, this appeal against sentence succeeds.
"Subject to subparagraph (3) below, paragraph (a)(iv) to (ix) does not apply where the victim of or, as the case may be, the other party to the offence was 18 or over;....."
My Lords, that is subject to the overriding section there at subsection (3) of that Schedule, where it reinstates the obligation to register where a defendant has been sentenced to a term of imprisonment for 30 months or more.
say ----
Mr Soppitt, in the last case we point out the reporting restriction that applies to cases of that sort, and we apply the reporting restriction to that effect. -
expatbrit
Court: US Court of Appeals, Eleventh Circuit
Year: 1996
Summary: JW and mother sue hospital for $19million in compensation after they save his life with blood transfusions.
----------------------------------------------------------United States Court of Appeals,
Eleventh Circuit.
No. 94-8403.
Gregory Alan NOVAK, individually and by his next friend June Lowery Novak; June Lowery Novak, individually and on behalf of her son Gregory Alan Novak, Plaintiffs-Appellants,
v.
COBB COUNTY KENNESTONE HOSPITAL AUTHORITY d/b/a Kennestone Hospital; Samuel D. Bishop; Bradley E. Henderson; John David Tucker; Richard G. Gray; W. Grady Pedrick; Jerry A. Landers, Jr. and Robert D. Ingram, Defendants-Appellees.
Feb. 14, 1996.
Appeal from the United States District Court for the Northern District of Georgia. (No. 1:90-01316-CV-JEC), Julie E. Carnes, Judge.
Before TJOFLAT, Chief Judge, COX, Circuit Judge, and WELLFORD[*], Senior Circuit Judge.
TJOFLAT, Chief Judge:
I.
In the early morning hours of June 18, 1989, Gregory Alan Novak, then sixteen years old, fell asleep at the wheel of his automobile, crashed into a guard rail on I-575 in Cherokee County, Georgia, and was seriously injured. Novak was removed from the scene by ambulance and taken to Kennestone Hospital, a facility operated by the Cobb County Kennestone Hospital Authority. There, it was determined that Novak had sustained numerous injuries, including fractures of both legs and multiple lacerations.
Shortly after arriving at the hospital's emergency room, Novak, anticipating that a blood transfusion might be needed, told the staff not to give him any blood.[1] Novak said that he was a Jehovah's Witness and that it was against his religious beliefs to receive blood.
The orthopedic physician handling Novak's case, Dr. Bradley E. Henderson, concluded that surgery would be needed to repair Novak's fractured right leg. Novak's father, the only family member on the scene, consented to the surgery. He did so, however, with the understanding that Novak be given no blood during the procedure. (Novak's father was not a Jehovah's Witness, but his mother, in whose custody Novak had been since his parents' divorce, was. Novak's father knew that she, as well as his son, would object to any blood transfusion.) Dr. Henderson believed that Novak could withstand the surgical procedure without a blood transfusion; accordingly, in the early morning hours of June 18, he performed the operation.
Novak lost a considerable amount of blood as a result of his injuries and the subsequent triage and surgery. By the early afternoon of June 19, he had become severely anemic. Novak's blood count and blood pressure were falling at such a rate that Drs. Henderson and John David Tucker, the general surgeon on the case, after consulting Dr. Richard G. Gray, a hematologist, were convinced that, without a blood transfusion, Novak would likely die.[2] Mrs. Novak and her son knew this; they continued to reject the physicians' recommendations, however. A transfusion would be against their religious beliefs.
At this point, Drs. Henderson and Tucker informed the hospital's management of Novak's condition and of Mrs. Novak's refusal to allow a transfusion?even if necessary to save Novak's life. The matter was assigned to Samuel Bishop, the hospital's Director of Risk Management, and he immediately contacted the law firm that represented the hospital and explained the situation.[3] After consulting with Dr. Henderson and confirming the information they had received?that without a transfusion, Gregory Novak could die at any time?attorneys W. Grady Pedrick and Jerry A. Landers, Jr. decided to petition the Cobb County Superior Court for the appointment of a guardian ad litem. The person they had in mind for the appointment was Robert Ingram, a practicing lawyer in Cobb County. Landers contacted Ingram, advised him of Gregory Novak's condition and of his and his mother's refusal to allow a blood transfusion, and asked him whether he would to serve as guardian ad litem if appointed. Ingram said he would; the assignment would present no conflict of interest on his part.
They filed their petition in the afternoon of the 19th, at 4:49 p.m. The petition, which sought the appointment of a guardian ad litem for the sole purpose of determining whether the blood transfusion the physicians were recommending would be in Gregory Novak's best interest, was assigned to Judge P. Harris Hines. Because the petition presented a matter that needed immediate attention, Judge Hines considered it within minutes, without notice to Novak or his mother.[4] After hearing from Pedrick and Landers and reading Dr. Henderson's affidavit, Judge Hines granted the petition and appointed Ingram guardian ad litem for the limited purpose described in the petition.
At a little after 9:00 the following morning, June 20, Judge Hines telephoned Bishop, learned that Novak's condition had deteriorated during the night, and told Bishop that he was convening a hearing at the hospital as soon as he could get there. The hospital's attorneys and Novak's treating physicians were to attend the hearing.
The hearing began at 9:35 a.m. in the hospital's intensive care unit where Gregory Novak was confined. Judge Hines handled the hearing himself in that he, alone, examined the witnesses: Drs. Henderson and Tucker, Novak's primary treating physicians, and members of the hospital's staff. The hospital's attorneys, Pedrick and Landers, simply stood by. The physicians testified that Novak's condition was continuing to deteriorate and that, without a blood transfusion, he would probably die.
At the conclusion of the hearing, the guardian ad litem asked the court to order a transfusion. In response, the court noted for the record that Mrs. Novak had not changed her position?a blood transfusion would offend her and her son's religious beliefs?but held that her wishes could not be imposed on her minor child given the life or death situation at hand. An order authorizing the treating physicians to arrange for the blood transfusion was therefore entered.
The transfusion was promptly carried out; Gregory Novak received three units of packed red blood cells. His blood count improved significantly, and he suffered no untoward effects from the procedure. In due course, he fully recovered from his injuries.
II.
On June 18, 1990, Gregory Novak and his mother, June Lowrey Novak, brought this suit. They seek compensatory and punitive damages from (1) Gregory Novak's treating physicians, Drs. Henderson and Tucker, (2) Dr. Gray, the hematologist whom Dr. Henderson consulted on June 19, (3) the governmental authority that operates the hospital, (4) the hospital's Director of Risk Management, Samuel Bishop, (5) the attorneys, Grady Pedrick and Jerry Landers, who petitioned the Cobb County Superior Court for the appointment of a guardian ad litem, and (6) the guardian ad litem, Robert Ingram.
The Novaks' amended complaint, which is the pleading before us, contains eighteen counts; some of the counts, such as count one, assert several discrete causes of action.[5] In the first twelve counts, Gregory Novak seeks $12,500,000 in compensatory damages, plus punitive damages; in the remaining counts, June Novak seeks $6,500,000 in compensatory damages plus punitive damages. Some of the Novaks' claims allege federal constitutional violations and are brought under 42 U.S.C. § 1983. The remainder allege violations of Georgia constitutional, statutory, or common law rules.
The district court concluded that the Novaks' federal claims were meritless and gave the defendants summary judgment. Having disposed of the Novaks' federal claims in this fashion, the court dismissed their pendent state law claims without prejudice. We agree with the district court that the Novaks have no valid claim under the United States Constitution and thus affirm its summary disposal of their section 1983 claims.[6] Given this disposition, we also affirm the court's dismissal of the Novaks' pendent claims.
III.
In count one of his amended complaint, Gregory Novak alleges that the administration of the blood transfusion of June 20?over his mother's and his objection on religious grounds?deprived him of the following
rights, privileges, and immunities secured to him by the Constitution of the United States:
(a) His right to be free from the deprivation of life, liberty, or property without due process of law under the Fifth Amendment ... made applicable to the States by the Fourteenth Amendment....
(b) His right to be free from the deprivation of life, liberty, or property, without due process of law under the Fourteenth Amendment....
(c) His right of religious freedom under the First Amendment ..., made applicable to the States by the Fourteenth Amendment....
(d) His right of personal privacy protected by virtue of the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments....
(e) His right to equal protection of law under the Fourteenth Amendment....
(f) His right to freedom of contract, protected by the Fifth Amendment and/or the Fourteenth Amendment....
(g) His right to have his privileges and immunities as a citizen of the United States free from abridgement by the State of Georgia contrary to the Fourteenth Amendment ...; and
(h) His right to be free from deprivation of his liberty interest in maintaining his familial relationship with his mother under the Fourteenth Amendment....
Gregory Novak concedes, as he must, that the constitutional injuries he allegedly suffered would not have occurred had Judge Hines not issued the order authorizing the blood transfusion his physicians administered.[7] Moreover, if the issuance of the order constituted an independent act on the court's part, then it is of no moment whether, as the plaintiffs allege, Gregory Novak's physicians erred in believing that their patient's life was in jeopardy, the hospital and its attorneys erred in deciding to petition the superior court for the appointment of a guardian, and the guardian ad litem erred in asking the court to issue the order in question. On the record of this case, there can be no doubt that Judge Hines acted independently in issuing the order. Judge Hines, alone, decided to entertain the attorneys' petition, to appoint a guardian ad litem, to hold the hearing at the hospital, to summon and examine the witnesses, and to order the transfusion.
The Novaks' attorneys, anticipating this problem of causation, sought to avoid the problem by alleging that the transfusion Judge Hines authorized was the product of a conspiracy. By linking the defendants to the state actor, Judge Hines, through a conspiracy, counsel apparently believed that they could satisfy the requirements of 42 U.S.C. § 1983 and the Fourteenth Amendment. See Jones v. Preuit & Mauldin, 851 F.2d 1321, 1330 (11th Cir.1988) (en banc) (Tjoflat, J., specially concurring) (section 1983 requires proof of an affirmative causal connection between the action taken by the defendant and the constitutional deprivation), vacated on other grounds, 489 U.S. 1002, 109 S.Ct. 1105, 103 L.Ed.2d 170 (1989); Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.1990) (private defendants can be liable under section 1983 if they act in concert with state officials in depriving the plaintiff of constitutional rights), cert. denied, 500 U.S. 932, 111 S.Ct. 2053, 114 L.Ed.2d 459 (1991); see also Dennis v. Sparks, 449 U.S. 24, 27-29, 101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980) (though a judge may be immune from suit, private parties who conspire with him act "under color of state law" for purposes of section 1983). Counsel did not refer to Judge Hines as one of the conspirators by name; rather, they did so by implication?by alleging that the named defendants were either state actors or "private persons who acted jointly with, willfully participated with, or conspired with state actors or their agents under color of the statutes ... of the State of Georgia, and thereby caused Plaintiff Gregory Alan Novak ... to be subjected to the deprivation of [his constitutional rights]." (emphasis added).
Thus, in order to have caused Novak to suffer constitutional injury, the defendants had to have conspired with Judge Hines. At oral argument, the Novaks' attorneys were asked whether the record contained any evidence that any of the defendants conspired with Judge Hines to obtain a court- authorized transfusion. They said it did not. Having made that concession, the Novaks' counsel argued that the defendants should be held to have caused the plaintiff's injury because they obtained the order from a court that the defendants knew or should have known had no jurisdiction to grant it. Although the Cobb County Superior Court is a court of general jurisdiction, counsel contends that the only court with jurisdiction to authorize the transfusion was the Cobb County Juvenile Court.
The Novaks' amended complaint nowhere alleges that Judge Hines lacked jurisdiction to enter the order in question. Their attorneys concede this point but contend that their allegations raise the inference that Judge Hines lacked jurisdiction to issue the order. Drawing such an inference, they argue, would be consistent with the spirit of notice pleading. We refuse to draw the inference; we do not consider on appeal claims that are not presented to the district court. Glenn v. United States Postal Serv., 939 F.2d 1516, 1523 (11th Cir.1991); Lattimore v. Oman Constr., 868 F.2d 437, 439 (11th Cir.1989).
Mrs. Novak's federal constitutional claims, which are contained in count thirteen of the amended complaint, suffer the same shortcomings. Liability is predicated on the existence of conspiracy, and there is none.
IV.
In conclusion, we find no cognizable federal constitutional claims in this record and therefore affirm the district court's grant of summary judgment. We also affirm the court's dismissal of the Novaks' pendent state law claims without prejudice. Finally, because we find this appeal to be frivolous with respect to appellants' claims against Dr. Gray and the hospital's attorneys, we award them double costs and reasonable attorney's fees. Those fees shall be determined by the district court following receipt of our mandate. See Fed.R.App.P. 38; Pelletier v. Zweifel, 921 F.2d 1465, 1523 (11th Cir.); cert. denied, 502 U.S. 855, 112 S.Ct. 167, 116 L.Ed.2d 131 (1991).
SO ORDERED.