The court of appeal has refused to postpone the withdrawal of life-sustaining treatment from 12-year-old Archie Battersbee beyond midday on Tuesday, rejecting an application by his parents.
Hollie Dance, 46, and Paul Battersbee, 57, from Southend-on-Sea in Essex, had asked the court to extend a legal stay on the decision by a high court judge allowing treatment of Archie, who suffered a catastrophic brain injury on 7 April, to be stopped. The couple have been fighting a legal battle against Barts NHS trust since May, asking that their son be allowed to die as “natural” a death as possible.
Speaking outside the Royal London hospital after the verdict, Dance said they would challenge the ruling. She said: “We made a promise to Archie, we will fight to the end. And Archie’s still fighting.
“If tomorrow’s the last day then so be it, but we will be applying to the supreme court.”
The latest hearing was granted after a rapporteur for the UN Committee on the Rights of Persons With Disabilities (CRPD) submitted a request, following an application by Archie’s parents, that he continue to receive life support treatment while it considered his case. The UK government then wrote a letter urging the court to consider the request.
But giving the court of appeal’s judgment, Sir Andrew McFarlane, sitting with two other judges, said: “Every day that [Archie] continues to be given life-sustaining treatment is against his best interests and, so, a stay, even for a short time, is against his best interests.
“I concluded that there should be no stay other than a short stay for the parents to take stock and consider whether they want to make any further application to the supreme court.”
Archie sustained brain damage when, his mother believes, he choked while taking part in a viral social media challenge. The Royal London hospital in Whitechapel, east London, had been intending to end his treatment at 2pm on Monday, following previous judgments by the high court and court of appeal but the deadline was suspended while the fresh appeal was heard.
Edward Devereux QC, representing Archie’s parents, argued that the court had “no discretion” to ignore the CRPD or the convention on the rights of persons with disabilities, which it based its request on, as doing so “would be in flagrant and unacceptable breach of international law”.
He asked the court to grant a stay to allow the CPRD to consider Archie’s case or, given the uncertainty as to how long that would take, to grant a stay of within a week to seek information from the committee as to the likely timescale for its decision.
Fiona Paterson, for Barts NHS trusts, said it would not be a breach of international law to ignore the request as the relevant treaty had not been incorporated into domestic law through legislation.
The court of appeal agreed with Paterson. McFarlane said: “This is an unincorporated international treaty. It is not part of the law of the United Kingdom … it is not appropriate for this court to apply an unincorporated international treaty into its decision-making process.”
He added that, for the same reasons, it was not appropriate for the court to determine whether the UK government was in breach of the convention.
Before giving their decision, the judges had expressed concern at how long it might take the CPRD to consider the case. They noted that the committee usually sits only twice a year and that the government had six months to respond to its request.
Claire Watson QC, for Archie‘s court-appointed guardian, whose job is to represent him, told the court of appeal there has been no change to the guardian’s view that, in light of Archie‘s “parlous” condition, it was no longer in his best interests for treatment to continue.
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Mr Justice Hayden ruled on 15 July that continuing Archie’s treatment was “futile” as he was brain stem dead. He was the second high court judge to reach that conclusion, after Mrs Justice Arbuthnot in May.
But on that occasion court of appeal judges upheld a challenge made by Archie’s parents, and sent the case back to the high court for reconsideration. On 25 July, the court of appeal refused permission to appeal against Hayden’s judgment but granted a stay until 27 July, which was later extended.