Evans & Anor v Alder Hey Children's NHS Foundation Trust & Ors

Decisions about a child’s medical treatment are governed by an objective assessment of the child’s best interests. Parents have no unfettered right to require treatment, or a transfer to another hospital, where that course has been judicially determined to be contrary to those interests.

A habeas corpus application cannot reopen the same question under a different legal label. A hospital patient is not deprived of liberty merely because illness and necessary treatment restrict movement. In any event, continued hospital care authorised by a best-interests order is lawful for the purposes of Article 5 of the European Convention on Human Rights.

The parents of a terminally ill child appealed from Hayden J’s order of 11 April 2018. The order authorised withdrawal of artificial ventilation and provided that palliative care should take place at Alder Hey Hospital. It followed earlier best-interests decisions rejecting the parents’ proposal to transfer the child to a hospital in Italy.

The parents’ further application for habeas corpus asserted that the child was being unlawfully detained because they were not permitted to remove him from hospital. The appeal was confined to that issue. The central questions were whether the parents’ wishes could displace the best-interests determination and whether the child was unlawfully deprived of liberty.

1. Appeal dismissed. The habeas corpus application was wholly misconceived. The parents sought the same practical outcome as in the earlier proceedings: permission to remove their child from Alder Hey for treatment elsewhere. The court had already determined, after a thorough best-interests assessment, that transfer was contrary to his interests and that his treatment and care should take place at Alder Hey.

2. Changing the legal label to habeas corpus did not permit the parents to re-litigate that determination. A child’s medical-treatment decisions are governed by an objective assessment of the child’s best interests. Those interests are determinative where they conflict with parental wishes. The parents therefore had no unfettered right to remove the child or to require a treatment course which the court had found irreconcilable with his best interests.

3. The court additionally addressed Article 5 of the European Convention on Human Rights. Habeas corpus requires both a deprivation of liberty and unlawfulness. Applying R (Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31, the restrictions resulting from the child’s profound physical condition and his necessary treatment were ordinary consequences of hospital care, not a deprivation of liberty. The reasoning in Nielsen v Denmark (1989) 11 EHRR 175 supported the same conclusion.

4. Even if there had been a deprivation of liberty, it was lawful. The purpose of the substantive proceedings had been to determine the lawfulness of care at Alder Hey, and the court had expressly authorised it as being in the child’s best interests. Preventing removal from the hospital did not infringe the parents’ rights; permitting removal contrary to the prior determination would undermine the child’s right to a best-interests decision.

• Court of Appeal (Civil Division) — dismissed the parents’ habeas corpus appeal in the present judgment, [2018] EWCA Civ 805 .
• High Court, Family Division — on 11 April 2018, Hayden J declared that withdrawal of ventilation at the specified time was lawful and made no order on the parents’ habeas corpus application.
• Supreme Court — refused the parents permission to appeal from the earlier Court of Appeal decision, holding the proposed challenge unarguable.
• Court of Appeal (Civil Division) — on 6 March 2018, dismissed the parents’ appeal from Hayden J’s February best-interests order.
• High Court, Family Division — on 20 February 2018, Hayden J held that continued ventilation and transfer abroad were not in the child’s best interests, and that ventilation could lawfully be withdrawn with palliative care at Alder Hey.