Raqeeb v Barts NHS Foundation Trust

A public NHS body must consider an EU citizen child’s directly effective right to receive healthcare in another Member State. Refusal to agree to transfer, pending a domestic best-interests determination, is an interference with that right. It may nevertheless be justified where the domestic procedure is non-discriminatory, pursues imperative public interests, is suitable, and is proportionate. An unresolved dispute between parents and treating doctors about treatment must be put before the court. In deciding best interests, the court independently balances the child’s welfare in the widest sense. There is a strong but rebuttable presumption in favour of preserving life. Absence of pain or awareness does not by itself remove possible benefits of continued life, including family, cultural and religious benefits. The child’s wishes and feelings receive weight according to age and understanding.

The proceedings concerned a five-year-old child with catastrophic brain injury who was receiving life-sustaining ventilation at an NHS hospital. Her parents sought transfer to Gaslini Hospital in Italy, which offered continued treatment and a possible route to home care. The Trust declined to agree to transfer pending a court decision and sought declarations under the Children Act 1989 and the inherent jurisdiction that treatment should be withdrawn.

The child’s judicial review claim alleged that the refusal unlawfully interfered with her directly effective rights under article 56 TFEU, and also raised human-rights, discrimination and NHS Constitution arguments. The court had to determine whether the refusal was unlawful and whether continued treatment and transfer were in the child’s best interests.

Judicial review. The Trust’s refusal to agree to transfer was a public decision amenable to judicial review. The existence of a statutory route for resolving the best-interests dispute did not immunise the decision. Under R v Human Fertilisation and Embryology Authority ex parte Blood [1999] Fam 151, the Trust first had to consider whether its decision interfered with the child’s directly effective article 56 right to receive medical treatment in another Member State and, secondly, whether the interference was justified.

The refusal made the exercise of that right impossible. The Trust had not considered the right or its justification and was therefore prima facie unlawful. The applicable public-policy test required equal application, a legitimate imperative public interest, suitability and proportionality. The established domestic procedure was equally applicable, protected the child’s best interests, ensured independent judicial determination, gave the child an independent voice and was suitable and proportionate. It therefore constituted a justified temporary derogation. No relief was granted because the Trust would inevitably have reached the same decision, remittal would serve no practical purpose and relief was barred by section 84 of the Criminal Justice and Courts Act 2015.

Medical dispute and best interests. Where disagreement between a parent with parental responsibility and treating doctors about a child’s medical treatment cannot be resolved, it must be placed before the court under section 8 of the Children Act 1989 or the inherent jurisdiction. The court must make an independent, objective assessment of best interests, considering welfare in the widest sense, the treatment’s nature and prospects, the child’s likely attitude, parental views, human rights, and the balance of benefit and burden. Wishes and feelings, including values and beliefs, receive weight according to age and understanding; they have no pre-assigned priority, and principles from the Mental Capacity Act 2005 should not be imported wholesale.

There was a strong presumption in favour of preserving life, but it was rebuttable. The absence of pain or awareness did not establish that continued life had no benefit. Family care at home, cultural and religious values, dignity and the sanctity of life were relevant. On the fine balance of the evidence, continued treatment was in the child’s best interests. The Trust’s applications for declarations and a specific issue order were dismissed, and the judicial review claim received no relief.

not stated in the judgment.