Day 2 of the hearing (Tuesday) saw David Lock QC, counsel for the parents continue his submissions, and Katie Gollop QC commence hers on behalf of Barts NHS Health Trust.

David Lock QC stated that medical decision-making is about more than just medical best interests. He submitted that the religious rights of the parents must also be considered. He argued that the Gaslini Hospital in Italy would provide a treatment regime which respects the religious values of the family. Additionally, Lock emphasised the supremacy of EU law and submitted that the parents’ entitlement to exercise their rights cannot be based on a best interest assessment. He argued that, in this instance, there was an infringement of the parent’s rights under EU law.

Katie Gollop QC stated that it is astonishing that counsel for the parents and child have tried to ‘drive a coach and horses through S1 of the Children Act 1989’. This provision enshrines the ‘welfare principle’ and states that the welfare of the child must be the ‘paramount consideration’ in any decision concerning a child. Gollop submitted that counsel for the child and parents has approached the issue the wrong way round by looking at rights to free movement and services under EU law prior to addressing the best interests of the child: ‘This is a simple case which has been made complicated’. Gollop made clear in her submissions that parents cannot insist on treatment that is not in the child’s best interests and that they cannot pick and choose between different jurisdictions. Furthermore, she submitted that the fact that this case concerns a parental wish to transfer their child to an EU state is immaterial and does not make this case distinguishable from others such as Gard, Haastrup and Evans.

Gollop’s argument emphasised that the best interests of the child must always be at the heart of the case and that the assessment of best interests must be made on a case-by-case basis: ‘A bespoke determination of best interests is essential’. Furthermore, she submitted that there is no dispute about best interests in this case, reminding the court that the Italian doctors have agreed that Tafida will never come off a ventilator because her brain stem has been so badly damaged. Gollop made clear that the best interests of the child will be the same regardless of the location of the child: “If not in her best interests in London, it is not in her best interests in Cornwall or Leeds or Manchester or Canada or Rome or anywhere else.” In response to Lock’s argument that religious views need to be taken into account in addition to the medical assessment of best interests, Gollop submitted that, where there is a stark binary choice between treatment and no treatment, the assessment is going to be overwhelmingly medically driven. She maintained that if the parents’ religious interests conflict with what is in Tafida’s best interests, then this must be resolved in favour of Tafida’s best interests.

Gollop also submitted that clinical decisions could not be subjected to judicial review and said that we cannot allow best interests to be limited via the back door. She made a plea to the judge for legal certainty in these types of cases so that doctors and parents no longer have to experience so much anxiety and uncertainty. 

The case continues.