Yates & Anor v Great Ormond Street Hospital For Children NHS Foundation Trust & Anor (Rev 1)

In a dispute over a child’s medical treatment, the court must make an independent, child-centred decision on best interests. A parent’s choice, including a proposed alternative therapy, is an important factor but does not displace that assessment. There is no separate significant-harm threshold for choosing between treatment options. The threshold in the Children Act 1989 applies to local-authority intervention, not to a hospital’s application. The court evaluates the realistic benefits and burdens of each option. Where proposed treatment has no identifiable benefit and would only prolong a life that should not otherwise be sustained, it is not a viable option. A declaration may accordingly prevent that treatment, wherever it would be provided.

Charlie Gard had a severe progressive mitochondrial disorder, irreversible brain damage and total dependence on mechanical ventilation. His parents wished to take him to the United States for experimental nucleoside therapy. The treating hospital and the other medical evidence considered that therapy futile and sought declarations permitting withdrawal of ventilation and palliative care only.

Francis J granted those declarations in the Family Division: [2017] EWHC 972 (Fam). The parents appealed, contending principally that a distinct significant-harm threshold applied where parents proposed an alternative viable treatment, and that the court lacked jurisdiction to prevent treatment overseas. The central issue was whether the ordinary best-interests test governed that choice.

1. Appeal dismissed. Permission was refused on the challenges to the factual best-interests evaluation and procedural fairness. Permission was granted on the proposed significant-harm and jurisdiction grounds, but those grounds failed. The declarations made by Francis J therefore remained in force.
2. The sole governing principle in a medical-treatment dispute concerning a child is the child’s best interests. The court makes its own independent and objective assessment. Parental views are important and may carry substantial weight, particularly where there is genuine scope for choice, but they are not determinative. The court followed the principles in Re J (a minor) (wardship: medical treatment) [1991] Fam 33, Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 WLR 242 and Re Z (Identification: Restrictions of publication) [1997] Fam 1.
3. There is no separate category of cases in which the court may override a parental treatment choice only on proof of significant harm. Re King [2014] EWHC 2964 (Fam) concerned an agreed and reasonable treatment plan. Its references to significant harm concerned the local authority’s earlier intervention and did not establish a test for the judicial choice of medical treatment.
4. The strong but rebuttable presumption in favour of preserving life did not assist the parents on the judge’s unchallenged findings. Applying Aintree University Hospitals NHS Foundation Trust v James [2014] AC 591, the court recognised that treatment may benefit a patient without curing the underlying disease. Here, however, nucleoside therapy had no identifiable benefit, was futile, and was not a viable alternative.
5. Sections 31 and 100(4) of the Children Act 1989 restrict local-authority intervention. They did not restrict the hospital’s access to the inherent jurisdiction. The decision was court-led, not an imposition of the hospital’s preference; the court could declare that overseas nucleoside therapy was not in Charlie’s best interests.

• Court of Appeal (Civil Division) — dismissed the parents’ appeal and left the declarations in force: [2017] EWCA Civ 410.
• High Court of Justice, Family Division — Francis J declared that withdrawal of artificial ventilation, palliative care only, and no nucleoside therapy were lawful and in the child’s best interests: [2017] EWHC 972 (Fam).