Hollie Dance & Anor. v Barts Health NHS Trust & Anor.

The Court considered an application by the parents for a stay of an order permitting withdrawal of life‑sustaining treatment from their son pending consideration of a communication they had made to the United Nations Committee on the Rights of Persons with Disabilities (CRPD) under the Optional Protocol. The court held that the CRPD communication and the Committee’s interim request do not form part of domestic law because the Convention and its Optional Protocol have not been incorporated; consequently the court was not bound to grant a stay by international obligations. The Children Act 1989 duty to give paramount consideration to the child’s welfare and the High Court judgment that continuing treatment was not in the child’s best interests remained determinative. The court declined to join the Secretary of State and rejected submissions that the Equality Act 2010 or authorities under the European Convention on Human Rights compelled a stay.

This was an urgent application in the Court of Appeal for a further stay of the High Court order authorising withdrawal of life‑sustaining treatment from Archie Battersbee, a twelve year old boy in a prolonged coma. The parents had applied to the UN Committee on the Rights of Persons with Disabilities (CRPD) under the Optional Protocol and the Committee had transmitted an interim request that the State refrain from withdrawing life‑preserving treatment while the communication was considered. The parents sought a stay pending the Committee’s consideration and, alternatively, time for the court to obtain information from Geneva and for the Secretary of State to be joined.

Procedural history:

• High Court (Mr Justice Hayden) determined it was not in Archie’s best interests to continue life‑sustaining treatment and that withdrawal would be lawful; judgment 15 July 2022 ([2022] EWFC 80).
• Parents sought permission to appeal to the Court of Appeal; permission was refused by the Court of Appeal on 25 July 2022.
• Parents sought permission to appeal to the Supreme Court; that application was refused on 28 July 2022.

Issues before the Court of Appeal:

• Whether the Court was obliged as a matter of domestic law to grant a stay in response to the CRPD Committee’s interim request under Article 4 of the Optional Protocol.
• Whether domestic law (including the Equality Act 2010) or decisions under the European Convention on Human Rights required a stay or the joinder of the Secretary of State.
• How to balance any international request against the child’s best interests under the Children Act 1989.

Reasoning and conclusions:

• The court emphasised that the CRPD and its Optional Protocol are unincorporated international instruments: they are not part of domestic law and cannot be applied as such by domestic courts. The Court relied on the principle in the Supreme Court authority cited (R (on the application of SC, CB and 8 children) v Secretary of State for Work and Pensions and others) that domestic courts do not determine whether the United Kingdom has breached obligations under unincorporated treaties.
• The Committee’s interim request under Article 4 was a request for urgent consideration, but it did not create a domestic legal obligation to stay the High Court order. The court distinguished the procedural framework and remedies available under the European Convention on Human Rights (for example Article 34 and Rule 39 and authorities such as Mamatkulov v Turkey) from the CRPD regime.
• The application was assessed against Archie’s welfare. The court accepted the High Court’s findings that continuing treatment was causing progressive organ decline and that continuation was contrary to his best interests; any further stay, even short, would be contrary to his welfare.
• Accordingly the parents’ application for a further stay was dismissed except that a short stay was granted until noon on 2 August 2022 to enable the parents to consider further steps.

The court therefore refused the broader relief sought: it declined to treat the CRPD Committee’s interim request as binding in domestic proceedings and declined to join the Secretary of State.

The Court dismissed the parents’ application for a further stay of the High Court order, save for a short stay until noon on 2 August 2022. Rationale: the UNCRPD and its Optional Protocol are unincorporated international instruments and do not create domestic legal obligations to require a stay; domestic decision‑making must proceed under domestic law with Archie’s welfare under the Children Act 1989 paramount, and on the facts any further stay would be contrary to his best interests.

High Court (Family Division) decision: Mr Justice Hayden [2022] EWFC 80 (15 July 2022). Application to the Court of Appeal for permission to appeal refused by the Court of Appeal (judgment delivered 25 July 2022). Application for permission to appeal to the Supreme Court refused on 28 July 2022. This judgment (Court of Appeal) determined the parents’ application for a further stay on 1 August 2022 ([2022] EWCA Civ 1106).