We have previously written about the Archie Battersbee litigation here and here. This post highlights the latest developments including recent litigation and court applications. As a quick reminder, the case concerns a 12-year-old boy who sustained catastrophic brain injuries in April this year. 

The early litigation considered whether Archie could be declared brain stem dead. The Court of Appeal confirmed that he should not have been declared brain stem dead by the High Court and the case was sent back to the High Court for a best interests assessment, where it was confirmed that it was not in Archie’s best interests for life-sustaining treatment to continue.

Court of Appeal 21 and 22 July 2022

This High Court decison was upheld by the Court of Appeal, who handed down their judgment on 25 July. The appeal did not engage with any new points of law, but considered the manner in which the judge had conducted the best interests assessment. 

This judgment acknowledged the parents’ argument that there were some aspects of the best interests analysis that had not been described by the High Court judge, and that it was the medical evidence that was the determining factor. Nevertheless, the Court of Appeal considered that the lower court’s judgment, which needed to be read as a whole, had been made in accordance with the law. Countervailing factors such as the child’s religious beliefs were described as ‘insufficient to avoid a finding that the continuation of life-sustaining treatment was no longer in [Archie’s] best interests’ [at 71]. 

Supreme Court 28 July 2022

Permission to appeal was refused by the Supreme Court. 

Following this judgment, a stay was put upon the operation of the order of the court for 48 hours, and then a further 24 hours due to some factors about Archie’s father’s health. 

Court of Appeal 1 August 2022

Archie’s parents then went to the UN Committee on the Rights of Persons with Disabilities. An application was made to the Court of Appeal for a further stay to be granted to give the UN Committee time to consider the case. The Court of Appeal refused, stating that the UN Convention of the Rights of Persons with disabilities is not a part of domestic law. Further, they emphasised that the courts have already considered the case in line with the European Convention on Human Rights and it was stated that a stay, even for a short amount of time, would be against Archie’s best interests, as each day that he continues to receive life sustaining treatment is contrary to his best interests.

Supreme Court 2 August 2022

The parents made a last-minute application to the Supreme Court for the stay to be authorised. This was rejected and the full statement is available here. The Supreme Court expressed deep sympathy for Archie’s parents but emphasised that it is the role of the court to make the welfare of the child the paramount consideration. They explained that they can overturn the refusal of the Court of Appeal ‘only if it is satisfied that the Court of Appeal has made an error of law or principle or has otherwise fallen into error in that exercise.’ They further added that even if they do have jurisdiction, there is no arguable case against the Court of Appeal’s findings. The Supreme Court outlined four reasons for this decision:

  • The Court of Appeal have already reached a decision compatible with the European Convention on Human Rights and Archie does not have any further right in international law under Articles 10 and 12 of the UN Committee on the Rights of Persons with Disabilities. 
  • A decision by the courts in Archie’s best interests not to give effect to a request by the Committee to the UK Government for a stay does not breach international law.
  • The UN Convention on the Rights of Persons with Disabilities is not part of domestic law.
  • The Court of Appeal, in exercising its discretion on this latest application, included in its balancing exercise the fact that Archie’s parents had made the application to the Committee and the Committee’s request. Nonetheless, it concluded for reasons that are sadly all too clear, that it was not in Archie’s best interests or in accordance with his welfare that he continues to receive life–sustaining treatment.

Application to the European Court of Human Rights

On the morning of Wednesday 3 August, the parents submitted an application to the European Court of Human Rights. This evening, that court said it will not intervene – it cannot deal with any application that is substantially the same as a matter that has already been submitted to another procedure of international investigation or settlement.

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