E (A Child) (Rev 1)

In serious medical treatment cases concerning children, the governing question is whether treatment is in the child’s best interests. The court must assess welfare broadly, including medical, social and psychological factors, treatment burdens and prospects, likely outcome, the child’s attitude where ascertainable, and parental views. Respect for parental wishes does not displace the child’s interests.

Parents in care proceedings are not in an analogous situation to parents in medical-treatment proceedings under the inherent jurisdiction. Care proceedings require significant harm attributable to parental care, whereas medical-treatment applications are determined by best interests without that threshold. Even if the situations were comparable, the difference is objectively justified by the need to protect the child’s welfare.

This was an application for permission to appeal, with an appeal to follow if permission was granted, from an order of Hayden J in the Family Division: [2018] EWHC 308 (Fam). The judge declared that it would be lawful and in the child’s best interests for Alder Hey Children’s NHS Foundation Trust to withdraw ventilation and provide palliative care.

The parents challenged the decision on grounds concerning parental views, alternative care arrangements, the assessment of best interests, and alleged discrimination under Article 14 of the European Convention on Human Rights. The central issue was whether a significant-harm threshold should apply before the court could override parental choices in a serious medical-treatment case under the inherent jurisdiction.

1. Disposition. Permission to appeal was refused on all grounds except Ground 1, paragraph 2. Permission was granted on that sub-ground, but the appeal was dismissed.
2. Best interests. The court endorsed the approach in Aintree University Hospital NHS Trust v James [2013] UKSC 67. The question is whether the proposed treatment is in the child’s best interests. Welfare must be considered in its widest sense, including medical, social and psychological factors, the nature and prospects of treatment, its likely outcome, the child’s attitude, and the views of those concerned with the child’s welfare. Parental views require careful respect, but the child’s best interests remain paramount.
3. Application to treatment and transfer. The medical evidence established that the child’s condition was catastrophic, progressive and untreatable. Continued ventilation was futile and imposed burdens and risks, including possible pain, seizures and the risks of transport. Once continued ventilation was found not to be in the child’s best interests, transfer abroad and tracheostomy or gastrostomy could not be in his best interests either.
4. Article 14. Applying the approach in R v The Secretary of State for Work and Pensions ex parte Carson [2005] UKHL 37, the court held that care proceedings were not an appropriate comparator. Care proceedings involve parental-care concerns, attribution and the significant-harm threshold under the Children Act 1989. Medical-treatment disputes under the inherent jurisdiction, like specific-issue disputes under section 8, are determined by the child’s best interests without that threshold. The court also held that, even on the assumed comparator, the difference was objectively justified and proportionate. The child’s objectively assessed interests could properly prevail over parental wishes.
5. Postscript. The court condemned clandestine medical examinations arranged during proceedings. It stated that the permission and admissibility provisions in section 13 of the Children and Families Act 2014 made such conduct wholly unacceptable. Evidence obtained in that way was likely to be excluded or given little weight, and those involved could face criminal, disciplinary or contempt consequences. These observations did not form part of the determination of the appeal.

• Court of Appeal (Civil Division): Permission to appeal was refused except on Ground 1, paragraph 2. Permission was granted on that sub-ground and the appeal was dismissed.
• High Court of Justice, Family Division: Hayden J declared that withdrawal of ventilation and provision of palliative care would be lawful and in the child’s best interests: [2018] EWHC 308 (Fam).