The facts of the case and summaries of day 1 and 2 can be viewed here:

Day 3 of the hearing continued with Katie Gollop QC’s submissions for Barts NHS Health Trust. She asserted that the running theme within this case is that, if Tafida is treated in Italy, then they would be treating the parents and not the child. She submitted that those who are minimally conscious should not have any less protection. She stated that ‘The independence of the child’s rights has always been at the heart of the trust.’

On the question as to whether Tafida has been denied her right to freedom of movement and services according to EU law, Gollop questioned – What about the child’s right to exercise free movement of treatment that is not in her best interests? She highlighted that there is no jurisprudence of this issue and maintained that the conflict in this case is between the parents’ exercise of parental responsibility and what is actually in the best interests of the child. Gollop emphasised that the health trust in this case had acted in a way that was compliant with human rights and EU law.

Additionally, Gollop told the court that the application for judicial review had not only added additional litigation and distress but also denied Tafida of the independent representation that she would have had if this case was being heard entirely in the family courts.

Counsel for the child and counsel for the parents then had the opportunity to reply. Mr Sachdeva QC, for the child, submitted that, if T had been Italian, we wouldn’t be asking these questions, suggesting that she would have already been transferred to Italy. He alleged that Tafida’s misfortune is that she is not Italian. He argued that if Tafida had been Italian and not English, then her parents’ request to transfer her would not have been opposed. Sachdeva submitted that judicial review was appropriate in this case and argued that it is perfectly acceptable for the parents to want their child to be treated in a different medico-ethical environment, that is more consistent with their own values. He argued that the health trust was not justified in preferring the British system of medical ethics to that of Italy.

In his reply, David Lock QC, representing the parents as interested parties, submitted that, ‘The court is required to assume that which ought to have happened did happen because no party is entitled to an advantage by virtue of a breach of law.’ He argued that the trust ought to have facilitated the transfer to the Gaslini Hospital because it could not object to transfer as per her rights to freedom of moment and services as an EU citizen. Therefore, he stated that, we must assume that the child ought to have been transferred and must, at this stage, be assumed to be within Italian law. Thus decision to withdraw treatment is unlawful as per Italian law, which dictates that treatment can only be withdrawn if the patient is brain stem dead and requires parental consent. Lock continued by submitting that there is a difficult jurisdictional question as to whether to continue to apply the UK approach to best interests or the Italian system of medical ethics, given that the child must be assumed to be Italy.

The second case, which considers the Health Trust’s application to withdraw Tafida’s treatment in light of the medical team’s assessment of her best interests, is being heard on Thursday. Tafida’s mother will be providing evidence.