I (A Child)

When deciding whether life-sustaining treatment should be withdrawn from a child, the court must determine the child’s best interests, with welfare paramount. Welfare includes medical, emotional and other welfare considerations. A strong but rebuttable presumption favours prolonging life. The court must balance all relevant factors, and a balance sheet may assist. Where death is inevitable and continued treatment causes intolerable suffering without realistic overall benefit, withdrawal and palliative care may accord with the child’s best interests. An appellate court should respect trial findings based on oral evidence absent special circumstances and should not interfere where the correct law was applied and the conclusion was open on the evidence.

An NHS Trust sought a declaration that withdrawing the life-support devices sustaining an 11-year-old child would not be unlawful. On 2 October 2015, Bodey J heard medical and parental evidence and concluded that no intervention could save the child, while continued treatment would prolong a painful decline. He declared that withdrawal was in the child’s best interests.

The parents applied for permission to appeal, challenging the medical evidence, the benefits-and-burdens assessment, the findings about the child’s condition and the availability of alternative treatment. The central issue was whether there was an arguable basis for interfering with the judge’s decision.

1. The Court of Appeal unanimously refused permission to appeal. The proposed appeal had no real prospect of success and there was no other compelling reason to grant permission.

2. The court admitted updated medical evidence concerning the child’s deterioration since the hearing below. It satisfied the requirements of Part 52 of the Civil Procedure Rules and the Ladd v Marshall requirements.

3. Absent special circumstances, the appellate court was bound to accept the trial judge’s findings of fact because Bodey J had heard oral evidence from the principal medical witness and the father. The judge had not adopted the wrong legal approach, ignored relevant material or reached a conclusion that was unavailable on the evidence.

4. The governing approach was set out in Portsmouth Hospitals NHS Trust v Wyatt [2005] EWCA Civ 1181; [2005] 1 WLR 3995. The child’s welfare is paramount. Best interests include medical, emotional and other welfare considerations. There is a strong presumption in favour of prolonging life, but it is rebuttable. The court must balance all relevant factors, for which a balance sheet may be helpful.

5. The court also considered the Royal College of Paediatrics and Child Health guidance discussed in In re Jake (A Child) [2015] EWHC 2442 (Fam). Where death is inevitable, continued life-sustaining treatment may provide little or no overall benefit. Where illness causes intolerable pain and distress and there is no overall benefit in continued life despite appropriate measures, further treatment should not be provided.

6. On the accepted evidence, the child was dying, beyond effective medical help and suffering from painful and invasive treatment with no realistic prospect of recovery or transplantation. The order permitting withdrawal of life-sustaining treatment accorded with his best interests. Permission to appeal was therefore refused.

• High Court of Justice, Family Division: Bodey J, on 2 October 2015, granted the NHS Trust a declaration permitting withdrawal of life-sustaining treatment.
• Court of Appeal (Civil Division): on 6 October 2015, the parents’ application for permission to appeal was refused.