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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dance & Anor v Barts Health NHS Trust & Anor (Re Archie Battersbee)  EWCA Civ 1106 (01 August 2022)
Cite as:  EWCA Civ 1106
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ON APPEAL FROM THE HIGH COURT OF JUSTICE,
MR JUSTICE HAYDEN
 EWFC 80 (15 July 2022)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE KING
LORD JUSTICE MOYLAN
| (1) HOLLIE DANCE
(2) PAUL BATTERSBEE
|- and -
|(1) BARTS HEALTH NHS TRUST
(2) ARCHIE BATTERSBEE
(A child by his children's Guardian)
Storch Solicitors) for the Appellant Parents
Fiona Paterson (instructed by Kennedy's Law) for the Respondent NHS Trust
Claire Watson QC and Maria Stanley (instructed by Cafcass Legal) for the Child by his
Hearing date : 1 August 2022
Crown Copyright ©
President of the Family Division:
This is an extempore judgment, we will do our best to see if a note can be prepared after the hearing as swiftly as possible.
'The panel has great sympathy with the plight of Archie's devoted parents and recognises the emotional pain which they are suffering. But, having considered the careful judgment of the Court of Appeal delivered by Sir Andrew McFarlane, President of the Family Division and the application for permission to appeal the Court of Appeal's decision in relation to the stay, the panel refuses permission to appeal.
The panel is satisfied that (if the Supreme Court has jurisdiction to hear this application – a matter on which the panel has not been addressed) the application does not raise an arguable point of law that the Court of Appeal has fallen into error in exercising its discretion in the way in which it did.'
RELEVANT SUBSTANTIVE BACKGROUND
"In considering Archie's best interests, the judge and, now, this court must engage with the full detail of this 12 year old's medical condition. The judge summarised the evidence of Doctor F, a consultant paediatric intensivist. He considered that her evidence casts some light on "the reality of Archie's day-to-day experience". The summary is short but devastating in describing the all-embracing nature of the damage that has resulted from the original brain injury three months ago."
"She told me that with brain injury as devastating as that sustained by Archie, the loss of brain function, inevitably, causes adverse cardiovascular, respiratory, endocrine, metabolic and haematological change. This in turn creates instability in organ function and in the heart. In her statement, Dr F lists the treatments that seek to manage or mitigate this instability."
'States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.'
'States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.'
And so it continues over the course of five further paragraphs in total.
"Article 10 of the UN Convention on the Rights of Persons of Disability affirms the right to life of every human being and asserts a right for disabled people to ensure its effective enjoyment on an equal basis to others. By Art 12, disabled people should have equal status with others under the law. The parents' counsel's submission is that 'a decision to remove [life sustaining treatment] from someone who previously had capacity, can only be made on the basis of the person's will and preferences and failing this then according to the "best interpretation of will and preferences"'. These submissions, in the context of a person who is so disabled that they have no free-standing capacity for life without artificial and intensive medical intervention, appear to stretch the parameters of this convention beyond its intended boundaries. Be that as it may, it is clear from paragraphs 39 and 45 of Aintree, to which I have already made reference, and elsewhere, that the approach in domestic law does afford due respect to wishes and feelings in a manner that would be compatible with the principles of CRPD, Arts 10 and 12."
The parties' submissions
'1. At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State Party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation.
2. Where the Committee exercises its discretion under paragraph 1 of this article, this does not imply a determination on admissibility or on the merits of the communication.'
"17. We three members of this court find ourselves in a situation which, so far as we can recall, we have never previously experienced. By granting a stay, even of short duration, we would in some sense be complicit in directing a course of action which is contrary to Charlie's best interests.
18. But, from a legal point of view and in this very limited procedural context, are the best interests of Charlie necessarily always paramount? There is, says Mr. Gordon QC on behalf of the parents, another requirement in play, namely that such rights as they have under Articles 2 and 8 (and, added Mr. Gordon, possibly also under 5) should be effective. Until the ECtHR has had at any rate some opportunity to consider the application to be filed today, would not the court be violating their right to an effective remedy by taking the course suggested by Charlie's guardian?"
"There is, accordingly, no basis in the case law of the European court, as taken into account under the Human Rights Act, for any departure from the rule that our domestic courts cannot determine whether this country has violated its obligations under unincorporated international treaties."
DECISION AND REASONS
Lady Justice King: I agree
Lord Justice Moylan: I also agree.