Evans & Anor v Alder Hey Children's NHS Foundation Trust & Anor (Rev 1)

A final welfare declaration concerning withdrawal of life-sustaining treatment will not be reopened unless an asserted development materially changes the circumstances on which the decision rested. Continued survival during an anticipated palliative-care period does not itself establish such a change, particularly without medical evidence that it alters the child’s condition or best interests.

The child’s best interests remain the determinative standard. A proposed transfer abroad, a foreign citizenship, asserted rights to obtain treatment in another state, and possible consequences for clinicians under foreign law cannot displace a concluded best-interests assessment. Jurisdiction over the child remains with the state of habitual residence.

The hospital had obtained declarations that it was in Alfie Evans’s best interests for ventilation and other intensive treatment to be withdrawn. Earlier challenges to that conclusion, including an appeal and later habeas corpus proceedings, had failed.

After ventilation was withdrawn, Alfie continued to breathe with low-level oxygen and fluids under the palliative-care plan. The parents applied to set aside the earlier declarations and to take him to a hospital in Italy. They relied on his continued survival, his newly acquired Italian citizenship, and a more developed proposal for treatment in Italy. The mother also advanced new grounds based on free movement, jurisdiction and asserted Italian criminal-law consequences.

Hayden J refused the application: [2018] EWHC 953 (Fam). The parents separately sought permission to appeal. The central issue was whether the new matters justified reopening the concluded assessment of the child’s best interests.

1. Applications for permission to appeal refused. The proposed appeals had no reasonable prospect of success.

2. The continued breathing of a child after removal of ventilation was not a material change of circumstances. The palliative-care plan had always contemplated an unquantifiable period of survival after withdrawal of intensive treatment. The length of that period could not be predicted. Hayden J, fully informed of the child’s current condition, had found that there had been no change. No medical evidence suggested that continued breathing altered the medical understanding, prognosis, or welfare assessment.

3. Italian citizenship and additional detail concerning transfer to a Vatican hospital did not materially alter the position. A proposed Italian intensive-care regime, transport, and parental accommodation had already been considered. The earlier decision was that continuing artificial life-sustaining treatment was no longer in the child’s best interests; it did not turn on an absence of an overseas facility.

4. The child’s best interests were the mandatory and decisive standard. The court rejected the contention that an asserted European Union right to free movement or to access medical services abroad could erode that standard. Even if welfare were characterised as a primary consideration in a wider proportionality exercise, there was no basis for treating it as disproportionate to refuse transfer where it had been determined that further life-sustaining treatment was not in the child’s best interests.

5. Under the Brussels II Revised Regulation, jurisdiction to determine the child’s welfare depended upon habitual residence. The child was habitually resident in England and Wales. Italian authorities could not make a conflicting best-interests decision. Nor could a possible risk of foreign criminal proceedings against clinical staff affect the only relevant consideration, namely the child’s best interests.

• Court of Appeal (Civil Division): refused the parents permission to appeal against the refusal to reopen the welfare declarations.
• High Court (Family Division): Hayden J refused the parents’ application to set aside the earlier declarations and permit transfer to Italy: [2018] EWHC 953 (Fam).
• Earlier proceedings: the original best-interests determination had been unsuccessfully challenged in the Court of Appeal and the Supreme Court; a later habeas corpus challenge was also dismissed on appeal, with permission to appeal to the Supreme Court refused.