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

An unincorporated international treaty forms no part of domestic law. A domestic court cannot determine whether the United Kingdom has breached it or allow it to dictate a decision which domestic law requires the court to make.

A request for interim measures under Article 4 of the Optional Protocol to the Convention on the Rights of Persons with Disabilities must be considered respectfully, but it does not compel a stay. Whether to grant a stay is fact-sensitive. The child’s best interests remain a central and powerful consideration, although they are not the sole consideration in every procedural application.

Archie Battersbee, a 12-year-old child in a deep coma after catastrophic brain injury, was receiving life-sustaining treatment. The High Court held that continued treatment was not in his best interests and that withdrawal would be lawful: [2022] EWFC 80.

The parents’ earlier application for permission to appeal that substantive decision was refused. They then applied to the United Nations Committee on the Rights of Persons with Disabilities, which requested that the United Kingdom refrain from withdrawing treatment while it considered their complaint. The parents sought a further stay pending that process, or alternatively time for further information and joinder of the Secretary of State.

The issue was whether that request required, or justified, a further stay despite the domestic best-interests determination.

1. The parents’ application for a further stay was dismissed, save for a short stay until noon on 2 August 2022. The court was unanimous: Lady Justice King and Lord Justice Moylan agreed with the President.

2. The Convention on the Rights of Persons with Disabilities is an unincorporated international treaty. It is not part of United Kingdom domestic law. Applying the principle in R (SC, CB and 8 children), the court could not decide whether the United Kingdom had breached obligations under that Convention, nor permit an alleged obligation under it to govern its decision.

3. The Equality Act 2010 did not alter that conclusion. It contained no provision incorporating the Convention or requiring the court, as a matter of procedure, to grant a stay in response to the Committee’s request.

4. Article 4 of the Optional Protocol described the Committee’s communication as a request for urgent consideration and any necessary interim measures. It did not create a mandatory domestic requirement to continue treatment. The enforcement mechanism associated with Article 34 and Rule 39 in proceedings before the Strasbourg court had no equivalent in the Convention process.

5. The court nevertheless gave respectful weight to the outstanding request. A stay was not determined solely by best interests in every case, and the short stay granted in the Charlie Gard proceedings did not establish an automatic precedent. Each application required a fact-sensitive assessment.

6. On that assessment, there was no factor of substance favouring a further stay. Continuing life-sustaining treatment was contrary to Archie’s best interests, and each additional day of treatment was therefore against his welfare. Granting a stay by reference to an unincorporated treaty would contradict the domestic determination of his best interests.

1. Supreme Court of the United Kingdom: On 28 July 2022, permission to appeal the earlier Court of Appeal decision concerning a stay was refused.

2. Court of Appeal (Civil Division): In the present determination, the court dismissed the parents’ application for a further stay, subject to a short stay: [2022] EWCA Civ 1106. An earlier Court of Appeal decision had refused permission to appeal the substantive best-interests decision.

3. High Court, Family Division: Mr Justice Hayden held that continued life-sustaining treatment was not in Archie’s best interests and that it was lawful for the Trust to withdraw it: [2022] EWFC 80.