Background on the case so far
The case concerns 12-year-old Archie, who is currently receiving mechanical ventilation in hospital following an accident in the home in April 2022, which led to brain damage. In May, the court granted permission for Archie to receive brain stem testing following parental refusal to consent to the tests. Although clinicians could lawfully carry out the test at this point, they were unable to as Archie did not respond to peripheral nerve stimulation tests, which are a precursor to brain stem testing. Alternatively, a number of other scans were carried out in order to ascertain brain function. Court intervention was sought to determine whether it was in Archie’s best interests for mechanical ventilation to continue.
Arbuthnot J made an order that Archie had died on 31 May 2022, the date of his last MRI scan, and that, had that not been the case, she nevertheless would have declared that it was not in his best interests for mechanical ventilation to be continued. The parents appealed to the Court of Appeal, where the judges decided that the case should be remitted to the High Court.
Some key points discussed at the hearing on 29 June
Counsel for the parents stated that the judge wrongly approached the matter of best interests, arguing that the lower court was wrong to conclude that it was not in Archie’s best interests to continue life sustaining treatment. It was argued that the judgment of the lower court did not place enough focus on best interests and that there was a deficiency in evidence in this regard before the court. It was suggested that a comprehensive analysis of the child’s wider welfare considerations did not happen and the lack of evidence meant that the court was not able to comprehensively address the question of best interests. It was argued that a case of this gravity would need more than simply a hypothetical determination of best interests. In particular, it was argued that the lower court did not give sufficient weight to Archie’s express wishes and feelings in light of his age and understanding. It was argued that, in order to uphold Archie’s right to a fair trial, the matter should be remitted and a fair, comprehensive assessment of his best interests should take place.
Ancillary matters were also raised, which questioned whether there should be a new Cafcass guardian and whether there should be two new experts in the ethics of natural death.
Counsel for the Trust argued that the applicable standard of proof in a case like this is the balance of probabilities, relying on Lieven J in Manchester University NHS Trust v Midrar Namiq  EWHC 5 (Fam). The trust further submitted that the judge applied the correct principles in relation to best interests and had carried out a careful balancing exercise. They further suggested that the claim that the family’s religious beliefs in the definition of death had not been accommodated had no factual basis.
Counsel for the child’s Guardian stated that we are in ‘uncharted waters’ as this was the first time a case had come before the courts where brain stem testing could not be performed. In other cases, there has been no question about whether or not the child was alive. Counsel for the Guardian explained, in response to an interjection from the judge questioning whether the guardian had stepped outside of her role, that a declaration of death is a legal assessment rather than a medical one and that the Guardian was assisting the court by providing her view in a step-by-step manner. Although agreeing that it would have been preferable for the judge in the lower court to be explicit that she was engaging in a best interests analysis, there had still been consideration of the benefits and burdens and matters relating to sanctity of life. Counsel suggested that the earlier judgment related to the welfare checklist in section 1(3) of the Children Act 1989, even though not explicitly mentioned, arguing that the substance was relevant to the welfare checklist, with Arbuthnot J’s analysis highly pertinent and relevant to best interests. Counsel reminded the court of the compelling medical evidence which was described as being of ‘magnetic importance’. Counsel also pointed out that the Guardian considered that the judge in the lower court had got it right, albeit without explicit reference to statute – that the best interests analysis was there, but under different headings.
Final comments from the judges
In deciding that the case be remitted to the High Court, the judges agreed that there should be a new guardian but did not grant permission to allow ethics experts on natural death.
The hearing ended with judges thanking all parties including the family for their behaviour in court, and the lawyers who have worked long hours, including some on a pro bono basis. They emphasised that this case is harrowing and difficult for everyone and ended with a reminder to the court that this case is about Archie.
It’s perhaps also worth noting that issues of the correct standard of proof for the question of whether death has occurred, were specifically not decided by the Court of Appeal. This issue did not arise given that the Court accepted that there was no medical evidence to support a declaration of brain stem death (Edit 060722).
060722 – See also the judgment now published from Barts Health NHS Trust v Dance & Ors (Re Archie Battersbee)  EWCA Civ 935 (06 July 2022)
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