E, a child aged 21 months, had suffered since birth from a progressive, fatal, neurodegenerative condition as a consequence of which his brain was entirely beyond recovery. He was being kept alive by a ventilator at a hospital. E’s parents refused to accept the hospital trust’s proposal that treatment should be limited and that E’s notes be marked with “do not resucitate”. The parents sought to remove E to a hospital in Rome that had agreed to continue his treatment, but which had accepted that further testing would not provide a cure or bring a different treatment plan to the one he was receiving and that transportation involved a risk to E of continuous seizures and further brain damage. On the trust’s application to the High Court under the court’s inherent jurisdiction, the judge granted a declaration that the trust would be acting lawfully and in the best interests of E by withholding certain medical treatment including all forms of ventilation and thereafter providing only palliative care. The parents applied for permission to appeal, contending, inter alia, that the readiness of the court to override parental choice under its inherent jurisdiction, in the absence of proof of “significant harm”, discriminated against the parents, in breach of article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms read with article 8, in that parents were treated more favourably in care proceedings under the Children Act 1989, which had a requirement of “significant harm”, than in proceedings under the inherent jurisdiction, where decisions were made on the basis of the “bests interests” of the child.
On the application—
Held, application granted but appeal dismissed. The parents of a child with serious medical issues who was the subject of medical declaratory proceedings under the inherent jurisdiction were not in an analogous or relevantly similar position to parents faced with state intervention in care proceedings under the Children Act 1989. It would be inappropriate for a local authority to use section 33(3)(b) of the 1989 Act (giving a power to a local authority to overrule the way in which the parents exercised their parental responsibility following the making of a care order) as a means to override the wishes of parents by consenting to the withdrawal of treatment in circumstances where the parents wished to oppose such a course. If an issue as to serious medical treatment arose within care proceedings, the relevant NHS trust, seeking a medical declaration in respect of a child, would issue proceedings under the inherent jurisdiction in the normal way. Care proceedings were part of the picture in medical treatment cases only in rare exceptional circumstances and as an adjunct of, or precursor to, an application under the inherent jurisdiction. They should be issued only where there were significant additional issues of concern in respect of the care given by the parents to the child over and above a disagreement with the clinicians as to future care and treatment. If there was any comparison to be drawn between the inherent jurisdiction and the statutory code found in the 1989 Act it was between the inherent jurisdiction and section 8 child arrangement orders. An NHS trust could (with leave) seek a specific issue order under section 8 in a serious medical treatment case, as an alternative or more usually and preferably in parallel with an application under the inherent jurisdiction. There was in those circumstances a proper analogy, that was to say children and/or their parents in respect of whom medical treatment declarations were sought by NHS trusts. Each were judged by the same criteria, whether under the statutory scheme found in section 8 or under the inherent jurisdiction of the High Court, and there was therefore no discrimination under article 14. The making of a declaration for the withdrawal of medical treatment against the wishes of the parents under the inherent jurisdiction could not therefore be said to be discriminatory against the parents and the child under article 14 of Convention. Even if care proceedings and inherent jurisdiction proceedings were comparable and the parents had been in an analogous situation in that respect, there had not in fact been discrimination because proceedings under the inherent jurisdiction had an objective and reasonable justification and pursued a legitimate aim, namely the care and treatment of desperately ill children. Even if there had been discrimination, the need to place the best interests of a seriously ill child (objectively, and independently assessed) ahead of the wishes of even the most devoted and caring of parents provided objective justification for any difference between care proceedings and the inherent jurisdiction. For all those reasons the law as applied to applications under the inherent jurisdiction for declarations that it was lawful to withdraw treatment was not in breach of article 14 (paras 87–90, 93, 100, 101, 107, 111, 112, 118, 120, 127–129, 130, 131).
Stephen Knafler QC, Leon Glenister and Sophy Miles (instructed by MSB Solicitors, Liverpool) for the parents.
Michael Mylonas QC (instructed by Hill Dickinson) for the hospital trust.
Sophia Roper (instructed by CAFCASS Legal) for the child.