Nottingham University Hospitals NHS Foundation Trust v Indi Gregory & Ors

The court may revisit a final welfare decision where there is no strict issue estoppel, but should loyally give effect to earlier findings. Reopening is ordinarily justified only by a material change of circumstances or compelling new evidence capable of affecting the earlier conclusion. The court should focus on what has changed and avoid rehearing evidence already scrutinised.

Parental responsibility does not confer an unfettered right to determine a child’s medical treatment. Where a proposed transfer to another clinical team is bound up with the treatment decision, the court may override parental wishes. The governing consideration remains the child’s best interests, assessed holistically and with particular care.

The Trust had obtained an order authorising withdrawal of invasive life-sustaining treatment for Indi Gregory. The Court of Appeal refused permission to appeal, and the European Court of Human Rights declined to consider the case.

Shortly before the planned extubation, Indi’s father applied to reopen the decision. He relied on new medical reports and a proposal to transfer Indi to Bambino Gesù Children’s Hospital in Rome for further treatment. The Trust and the Children’s Guardian opposed the application.

The central issues were whether the new evidence justified reconsideration, whether the court could override parental consent to a transfer, and whether the proposed treatment and transfer were in Indi’s best interests.

1. Reopening the earlier decision. Although there is no strict issue estoppel, the court should give loyal effect to previous findings and avoid reopening findings which subsequent circumstances cannot undermine. A rehearing may be appropriate where there is a material change, compelling new evidence, or an earlier evaluation that does not clearly cover the new decision. The focus should be on what has changed, using proportionate case management and avoiding repetition of evidence already scrutinised: An NHS Trust v AF (by his Litigation Friend the Official Solicitor) and SJ [2020] EWCOP 55.
2. Parental responsibility and jurisdiction. Parental responsibility under Children Act 1989 s 3(1) concerns responsibility for the child’s welfare, but does not give parents an unfettered right to make welfare decisions. Under s 8(1), and under the inherent jurisdiction, the Family Division may determine questions arising from parental responsibility by applying its independent and objective judgment of the child’s best interests.
3. Where a proposed transfer is intrinsically connected with the treatment in issue, the court has power to sanction or refuse it, including where refusal overrides parental wishes. The sole guiding principle is the child’s best interests. Human-rights interference must, where relevant, be necessary and proportionate to that outcome.
4. The proposed evidence did not amount to compelling new evidence. The reports were largely based on assumptions inconsistent with the earlier findings, were not founded on direct assessment of Indi, and did not demonstrate any treatment capable of beneficially altering her prognosis.
5. The Rome proposal lacked sufficient detail and contemplated treatment which the court had already found inappropriate, burdensome and incapable of producing meaningful benefit. Transfer itself carried additional risks because of Indi’s instability and the limited knowledge of the proposed transporting team.
6. The application to transfer Indi to Rome, and any application to admit the new reports and letters, was dismissed. There was no material change of circumstances or other compelling reason to justify reconsidering the original order.

• High Court (Family Division): The original order authorising withdrawal of invasive life-sustaining treatment was made on 13 October 2023.
• Court of Appeal: The father’s application for permission to appeal was refused after an oral hearing on 23 October 2023.
• European Court of Human Rights: A further application was declined.
• High Court (Family Division): The subsequent application to reopen the decision and transfer Indi to Rome was dismissed.