Sir Andrew McFarlane and two other judges concluded there should be no further postponement to the termination of his life-sustaining treatment.
01 August 2022
Archie Battersbee’s life support will be terminated on Tuesday after a last-ditch bid for the withdrawal of the 12-year-old’s treatment to be further postponed was rejected by the Court of Appeal.
Hollie Dance and Paul Battersbee made an urgent application to the United Nations (UN) Committee on the Rights of Persons with Disabilities last week after their court battle against Barts Health NHS Trust over his treatment ended.
The youngster was due to have his life-support at the Royal London Hospital in east London ended at 2pm on Monday, after a High Court judge ruled this to be in his best interests and the family exhausted all routes of appeal.
However, the UN committee issued a request to the UK Government on Friday, asking that it “refrain from withdrawing life-preserving medical treatment, including mechanical ventilation and artificial nutrition and hydration” from Archie while his case is under consideration by the committee.
The Government’s legal department then wrote an urgent letter on Sunday on behalf of Health Secretary Steve Barclay, asking the courts to urgently consider the committee’s request.
Sir Andrew McFarlane, sitting with Lady Justice King and Lord Justice Moylan, said: “My decision is that, save for granting a short stay until 12 noon tomorrow, the parents’ application for any further stay is dismissed.”
The judge said the Convention on the Rights of Persons with Disabilities, under which the UN committee made its request, is an “unincorporated international treaty”.
He said: “It is not part of the law of the United Kingdom… and it is not appropriate for this court to apply an unincorporated international treaty into its decision-making process.”
He added: “Every day that (Archie) continues to be given life-sustaining treatment is contrary to his best interests and, so, a stay, even for a short time, is against his best interests.”
The judge said that was the decision that has been taken in the courts of England and Wales.
The judges refused to grant permission to appeal against their ruling at the Supreme Court.
Archie’s parents may now ask Supreme Court justices to consider their application for permission to appeal directly.
In his ruling, Sir Andrew referred to the medical evidence before Mr Justice Hayden, who ruled on July 15 that Archie’s life-sustaining treatment should be withdrawn.
He said: “In short, his system, his organs and, ultimately, his heart are in the process of closing down. The options before the court have always been stark.”
The judge added that the options before the courts on previous occasions were either that treatment was withdrawn immediately, resulting in Archie’s death a short while later, or the option favoured by his parents that he would die at some time in the coming weeks – in their words at a time “chosen by God”.
Edward Devereux QC, acting for Ms Dance and Mr Battersbee, had argued that the committee’s request is “binding” under international law.
However, lawyers representing both the trust and Archie’s guardian – an independent expert appointed to make submissions about his welfare – argued the request was not enforceable.
Archie’s case was first heard in May, by a High Court judge who concluded treatment should be withdrawn, but that decision was overturned by the Court of Appeal on the basis that the wrong legal test had been applied and sent for reconsideration by a different judge.
Following a second High Court hearing, Mr Justice Hayden ruled that it was in Archie’s best interests for treatment to be withdrawn and that doing so would be ‘lawful’.
The Court of Appeal refused permission to appeal against that decision and the Supreme Court refused to grant a further stay to the withdrawal of life support on Thursday last week.
Archie’s parents then made an application to the UN committee and received a letter on Friday which included a request for “the state party to refrain from withdrawing life-preserving medical treatment, including mechanical ventilation and artificial nutrition and hydration” while it considered Archie’s case.
The trust wrote to the family over the weekend to inform them it intended to end treatment on Monday afternoon, but the Government then referred the UN’s request to the court for “urgent consideration” on Sunday.
Ms Dance said previously that the family felt “relieved” that the Government had taken the UN’s intervention seriously.
She said: “The anxiety of being told that Archie’s life-support will be removed tomorrow at 2pm has been horrific.
“We are already broken and the not knowing what was going to happen next is excruciating.”
Archie’s parents are being supported by campaign organisation the Christian Legal Centre.
The trust previously said in a letter to Ms Dance and Mr Battersbee, who are separated but both live in Southend, Essex, that the withdrawal process will aim to “preserve Archie’s dignity”.
The trust said in the letter: “We understand that any discussions around the withdrawal of Archie’s treatment are very difficult and painful.
“However, we want to ensure that you and your family are involved as much as you wish to be.”
It added: “You or any of the family may wish to lie on Archie’s bed with him or have him in your arms, if that should be practically possible.”
Ms Dance said this would amount to “extraordinary cruelty” and a “flagrant breach of Archie’s rights as a disabled person”.
She said: “Archie is entitled to have the decisions about his life and death, taken by the NHS and UK courts, to be scrutinised by an international human rights body.
“Hastening his death to prevent that would be completely unacceptable.”
Judges heard that Ms Dance found Archie unconscious with a ligature over his head on April 7, after she believes he took part in an online challenge.
Doctors believe Archie is brain-stem dead and say continued life-support treatment is not in his best interests.
A spokesman for the Department of Health and Social Care said: “We recognise this is an exceptionally difficult time for Archie Battersbee’s family and our thoughts are with them.
“The Government asked the High Court to urgently consider the request from the UN Committee on the Rights of Persons with Disabilities.”