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Barts Health NHS Trust v Dance & Ors (Re Archie Battersbee) [2022] EWCA Civ 935[30]

Arbuthnot J’s decision in respect of a 12 year old boy is successfully appealed by his parents and to be remitted for a fresh hearing before Hayden J and a new children’s guardian to be appointed.

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Introduction

The decision at first instance is set out here and this contains the relevant background to this tragic case. (Barts Health NHS Trust v Dance & Ors [2022] EWHC 1435 (Fam)).

At that hearing the judge granted permission for the parties to appeal her order on only one ground: that the making of a declaration of death was such an exceptional category of case that the judge should have applied the criminal, rather than the civil, standard of proof.

The Appeal

When the matter came before the Court of Appeal, the arguments were focused upon whether Arbuthnot J should have decided the case before her on Archie's best interests when it became apparent that a brain stem test could not be administered. The parents were permitted to add a further 5 grounds to their application but after an agreement was reached by the advocates as to the way forward, the central issue for this court to determine was whether Arbuthnot J had wrongly approached the determination of what was in Archie's best interests and if so, was there sufficient information before this court to do so or would it need to be remitted for a fresh trial before a new judge. A further matter for consideration was whether a new Guardian should be appointed.

The parents were clear that the case had gone wrong at first instance when the focus was on whether death had occurred rather than what was in Archie's best interests. Once the judge had formed the view that death had in fact occurred, she would have found it difficult to undertake a balanced best interests' assessment as set out in the decision of In Re M (Declaration of Death of Child) [2020] EWCA Civ 164 . It was further submitted on behalf of the parents that the guardian had also reached the same conclusion and as such their analysis would be flawed.

Whilst the Trust was of the view that the judge had all the relevant information when she reached her best interest conclusion, there was agreement between the parties that it would have been better for the judge to have preceded to consider best interests once it was clear that the brain stem test could not be undertaken.

Decision and discussion

The Court of Appeal determined that it is wrong for the judge to diagnose death on a basis which is not compliant with the Code of Practice for the Diagnosis and Confirmation of Death and where none of the medical witnesses before instructed in the case diagnosed death. Furthermore, they cautioned other judges from doing so henceforth.

This court determined that the judge at first instance understandably focused entirely upon the medical and legal question of whether a declaration of death could be made and as such very little attention was given to any dedicated assessment of Archie's best interests. Her judgment in this regard was brief and concluded that even if she hadn't found that Archie was in fact dead, she would have found it was in his best interests for ventilation to be withdrawn.

Rather unusually in a case where the s1(3) CA 1989 factors are paramount to the decision-making process of the court, a welfare assessment was not directed against the Guardian nor did she give oral evidence at final hearing.

The Guardian was clear in her analysis that Archie was "dead beyond any doubt" and sought a declaration of such at final hearing. This was despite the Trust acknowledging that they were not seeking it due to the absence of brain stem testing and the parents expressing concern at the Guardian's position.

The Guardian erred in seeking to conclude that Archie had died when that was a factual matter for the court to determine and not her. Whilst the medical evidence may point strongly to establish a child has died, this judgment reminds Guardians that they must still discharge their continuing duty to advise the court on best interests unless and until a declaration of death has been made.

When considering the lack of welfare analysis by both the Guardian and then the judge, it would not be reasonable for the parents to have confidence in the judge's best interest analysis. Whilst the Guardian offered to remain allocated and undertake a fresh analysis, the parents refused her offer!

The Court of Appeal decided not to determine the central issue of best interests absent an analysis from a new guardian and the matter was listed before Hayden J on 11th July 2022 for a fresh trial.

The parents were not granted permission to a) to appeal the judge's decision to refuse them an ethics expert, and (b) to call an expert in natural death at the hearing before Hayden J.

Case summary by Anna Walsh, Barrister and Arbitrator, Coram Chambers

For full case, please see BAILII