The parents of 12-year-old Archie Battersbee have lost a Supreme Court bid to block the withdrawal of his life-sustaining treatment pending a review of his case by a UN committee.
Lord Hodge, the court’s deputy president, considered the application for permission to appeal alongside Lords Kitchin and Stephens – the same panel of Supreme Court justices who rejected an appeal bid by Archie’s parents last week.
Announcing the court’s refusal to hear the appeal, the judges said: “As this panel stated in its note of determination last week, the justices have great sympathy with the plight of Archie’s devoted parents who face a circumstance that is every parent’s nightmare – the loss of a much-loved child.”
The judges continued: “It has to be borne in mind that, sadly, the central issue between Archie’s parents on the one hand and the NHS trust, which is supported by Archie’s very experienced guardian, has not been about Archie’s recovery but about the timing and manner of his death.
“As Sir Andrew MacFarlane recorded in his earlier judgment of July 25, there is no prospect of any meaningful recovery. Even if life-sustaining treatment were to be maintained, Archie would die in the course of the next few weeks through organ failure and then heart failure.
“The maintenance of the medical regime, as (Mr Justice Hayden) held in his very sympathetic judgment, ‘serves only to protract his death’. That conclusion was one which the judge reached only ‘with the most profound regret’.”
The Supreme Court’s announcement continued: “While there was evidence that Archie was a child with religious beliefs, was very close to his mother and would not have wished to leave her alone, those are only some of the factors which the courts have to consider in their evaluation of where Archie’s best interests lie.
“It was against that background that Mr Justice Hayden held that it would not be lawful to continue life-sustaining treatment. The Court of Appeal upheld that judgment and this court refused permission further to appeal.
“Now the application is for a stay of the order authorising the withdrawal of life-sustaining treatment to give time for the (UN) committee to consider Archie’s case, as the committee has requested. The panel is satisfied not only that the Court of Appeal has not erred in the sense mentioned above but that it made the correct decision.”
Setting out their reasons, the panel of justices added: “First, as Sir Andrew MacFarlane has stated in his careful judgment, the courts have reached a decision which is compatible with Archie’s rights under the European Convention on Human rights, which has been incorporated in part into domestic law by the Human Rights Act 1998.
“It is not clear that Archie has any more extensive rights in international law under article 10 and 12 of the UN convention under which the committee operates.
“Secondly, contrary to Mr Devereux’s submission, 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 involve what he called ‘a flagrant breach of international law’. It is not clear that such a decision involves any breach of international law, and it is not for this court to rule on such an issue.
“The Court of Appeal treated the committee’s request with great respect. But to give effect to the application for a stay in the circumstances of this case would be to act unlawfully in conflict with the court’s duty under domestic law to treat Archie’s best interests as paramount as the committee envisages a procedure for its consideration of the application which will extend into 2023.
“Thirdly, and in any event, the convention under which the committee operates is an unincorporated international treaty which binds the UK Government on the international plane and is not part of our domestic law.
“That is the result of our dualist system by which international treaties become part of our domestic law only if legislation is passed to that effect. The courts do not apply an unincorporated international treaty because it is not part of our domestic law.
“Fourthly, 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.”
The panel concluded: “According to the law of England and Wales, Archie’s best interests and welfare are the paramount consideration. The panel reaches this conclusion with a heavy heart and wishes to extend its deep sympathy to Archie’s parents at this very sad time.”
