Kings College Hospital NHS Foundation Trust v Haastrup & Ors (No 2) (Permission to Appeal and for Stay)

Permission to appeal should be refused where the proposed grounds have no real prospect of success. A further expert adjournment is unnecessary under section 13 of the Children and Families Act 2014 where the evidence already permits the court to resolve the proceedings justly. A short stay may nevertheless be granted where implementing the order would render an appeal nugatory, even though a stay would continue treatment found not to be in the patient’s best interests. The court must balance all relevant factors, including the exceptional nature of a stay, prospects of appeal and prejudice to each party.

The court had previously granted declarations concerning the treatment of an 11-month-old child receiving intensive care. The child’s father applied for permission to appeal, relying on alleged failures to hear further expert evidence, breach of article 6, failure to consider community treatment and breach of article 3 arising from planned extubation.

The father also sought a stay pending an application to the Court of Appeal. The Trust opposed a stay and proposed an alternative recital, while seeking further treatment declarations. The issues were whether permission should be granted, whether the order should be stayed, and whether further declarations could properly be made without notice.

1. Permission to appeal. Permission was refused because none of the proposed grounds had a real prospect of success.
2. The court had been entitled under section 13 of the Children and Families Act 2014 to refuse a further adjournment for additional expert evidence. The totality of the evidence enabled the proceedings to be resolved justly. The father had participated fully in the final hearing, including cross-examination and closing submissions. The refusal therefore did not breach article 6 of the European Convention on Human Rights.
3. The court had considered the possibility of continuing treatment in the community. The evidence indicated that this would, in principle, require Level 2 intensive-care treatment, while the child’s brain injury was irreversible and would not improve through treatment. The third ground accordingly had no real prospect of success.
4. The article 3 argument had not been advanced at the hearing. In any event, the medical evidence indicated profoundly depressed consciousness, at most minimal awareness, and no objective evidence of pain or pleasure. Extubation would occur under a comprehensive palliative-care plan designed to minimise symptoms. The proposed breach of article 3 therefore had no real prospect of success.
5. Stay. The court applied the factors identified in NB v Haringey LBC [2011] EWHC 3544 (Fam), including the exceptional nature of a stay, the need for cogent evidence that an appeal would otherwise be rendered nugatory, the balance of harm and the prospects of success. Although the appeal prospects were weak, refusing a stay would make any appeal nugatory because implementation of the order would lead to withdrawal of life-sustaining treatment and death. A short stay was therefore granted until 2 pm on 2 February 2018. Any extension had to be sought from the Court of Appeal.
6. The further declarations sought by the Trust were refused because the other parties had not received notice and had not made submissions on them.

The judgment followed the court’s substantive judgment handed down on 29 January 2018, in which declarations concerning the child’s treatment were granted. The present judgment determined the father’s application for permission to appeal and for a stay.

• High Court (Family Division): permission to appeal refused; stay granted until 2 pm on 2 February 2018; further declarations sought by the Trust refused.