Private Law
July 2022

Summary:

Hayden J determined that it would not be in the best interests of a 12-year-old boy, who had suffered brain stem death, to continue to receive treatment from the treating physicians due to the severe level of treatment required to keep him alive. It was also determined that, in this case, protecting the child’s human dignity would be more in line with the child’s best interests than prolonging his life.

Background:

Archie Battersbee, a 12-year-old boy, suffered a catastrophic hypoxic ischaemic brain injury in April 2022, after having suffocated. Arbuthnot J, who heard an application to determine whether the child had suffered from brain stem death found that the child had suffered brain stem death on the civil standard of proof; the Court of Appeal determined that this approach was wrong in law and Hayden J in this judgement stated that it was also wrong clinically. Hayden J explained that a conclusion of death requires more certainty and seems to go a stage beyond diagnosis. This rehearing, before Hayden J, proceeded on the basis that Archie was alive and that the court would need to require where his best interests lie.

A previous application had been heard by the court to determine whether the treating physicians could undertake the testing for brain stem death, as this could involve some level of risk to Archie. The court on that occasion determined that the applicant could undertake the testing for brain stem death; this testing concluded that Archie met the neurological criteria for brain stem death.

The court examined the various medical evidence which explained the significant and substantial care that is required to keep Archie alive and also explained the prognosis that there was no scenario that could be envisaged where Archie could demonstrate any meaningful neurological recovery.

The court also heard from Archie’s parents who explained to the court who Archie was before the brain injury occurred.

Decision:

Hayden J confirmed that he needed to survey the entire canvas of available evidence, particularly when considering what weight should be afforded to Archie’s dignity and autonomy. It was also confirmed that where a child’s best interests lie in this situation is not solely a medical issue and requires the court to place his personality and wishes at the centre of the process.

The court confirmed that when considering the child’s needs and wishes it must also confront the importance of protecting his dignity; it was confirmed that each case is situational and person specific and so the court would need to take a subjective approach and approach the examination of best interests from the patient’s point of view.

Hayden J then considered the interrelation of the right to life and explained that the focus is on whether it is in the best interests of the patient to give them the treatment, not whether it is in the best interests of the patient to take the treatment away.

Hayden J ultimately determined that it would not be in Archie’s best interests to continue to receive treatment. The court considered that the treatment being received was intrusive, burdensome and intensive and that in this situation, where there was no possibility of recovery, continuing treatment would compromise Archie’s dignity, deprive him of his autonomy and be inimical to his welfare. Hayden J confirmed that here, the treatment only serves to protract death but is unable to prolong his life.

Summary:

Peel J determined that the child, ‘S’, should be returned to the care of the mother, ‘M’, and that, following a 6-week period of stability for S, there should be contact between S and the father, ‘F’, and S and the paternal aunt and uncle, but that this needed to be supervised and supported respectively due to the findings that the court had made and there being a tangible risk of abduction.

Background:

S, who is nearly 2 years old, is a Portuguese national of Pakistani origin. Proceedings arose due to S being removed from M’s care by F and being placed in the care of the paternal aunt and uncle in November 2020 when he was 2 months old, as well as M departing from Portugal to Pakistan the day after S was removed, accompanied by F’s brother and wife.

Peel J made the following findings at the fact-finding hearing in January 2022:

• S was forcibly removed from M’s care in Portugal and taken to England without M’s consent;
• M was taken to Pakistan against her will and stranded there;
• F, with the complicity of extended family, had exerted a powerfully controlling and coercive pull over M’s life, undermining her to the extent that she had minimal autonomy and that F’s intentions had been to write M’s existence out of S’s life;
• F was guilty of physical abuse to M during their relationship;
• F and his family have no intention of returning S to the care of M or permitting her to be involved in S’s life, which had been their intention throughout; and
• F and his family had perpetrated unspeakable cruelty to M and S.

Peel J also made an order for the return of S to Portugal, but this was suspended pending M obtaining a visa to re-enter Portugal. Peel J then gave directions for the filing of evidence, rather than making immediate orders under the wardship jurisdiction, as there was very limited evidence around welfare presented at that hearing. Following two further hearings, contact between S and M progressed on an interim basis. This hearing was listed to consider where S should be placed.

M sought for S to be returned to her care. F did not put himself forward to care for S and instead sought for the aunt and uncle to care for S. S had been in the care of the aunt and uncle since he was removed from M’s care and the court heard that S refers to the aunt and uncle as his parents and to F as his uncle. The aunt and uncle had been joined into proceedings and sought to care for S as his primary carers, to also include adopting him. The guardian’s view was that there was no reason why S could not reside with M and that, due to the concerns that F and the aunt and uncle do not recognise M’s role in S’s life, S should move to M’s care straight away.

Decision:

The court found that M’s evidence was reliable and truthful but was not satisfied with the evidence of F and the aunt and uncle.

Peel J highlighted the history of the matter, including the proceedings in Portugal, and examined Article 13 of 1996 Hague Convention. When determining the powers available to the court and whether the court had ability to make final orders in this jurisdiction, Peel J confirmed that there is a requirement of active consideration by the first contracting state and that, if there was no active consideration or action by that state, then the jurisdiction of the second contracting state (in this case, the courts in England and Wales) can be exercised. In this case, Portugal hold jurisdiction as S was habitually resident at the time of removal and an application was first made in Portugal, but as the Portuguese courts are currently taking no action and seemingly waiting for determination by the court in this jurisdiction, the Court in England and Wales can make a final determination. Peel J determined that the lis pendens provision under Article 13 does not apply and proceeded to make final orders.

It was acknowledged by the court that there are no concerns about the physical care provided to S by the aunt and uncle, but that there is a far greater risk of emotional and psychological harm if a child grows up in the care of extended family whom the child believes to be his parents, rather than his actual parents. Peel J confirmed that F and the aunt and uncle were denying S the fundamental right to grow up with his mother and did not trust that they would ensure that S have any knowledge or understanding of M’s role in his life.

Peel J ultimately determined that it is preferable for a child to be brought up by one or both parents and that S should move into M’s care almost straight away. The court also concluded that contact between S and F should be once per month, supervised at a contact centre and contact between S and U/A should be once per month, supported at a contact centre; the court made this decision based on the seriousness of the findings made at the fact-finding hearing, the narrative which these parties may try to impart to S and the real and tangible risk of S being abducted.

Peel J also set aside the order made which ordered S’s return to Portugal as M is living in this jurisdiction and it is agreed that S should live in this jurisdiction.

Summary:

Sir Andrew McFarlane heard an application made in relation to S, a child born in November 2020, who had never left Antigua apart from a 10-day period in which her father, ‘F’, covertly removed her. The President was required to consider the Family Law Act 1986 and whether there was a clear and substantial basis for the court in England and Wales to have jurisdiction regarding a child’s welfare when that child is habitually resident in another jurisdiction and where those courts are fully engaged in substantive proceedings.

Background:

S was born in Antigua in November 2020; M and F both have dual British and Antiguan citizenship and have lived together in Antigua since 2014. S has never left Antigua save for a 10-day period where F covertly removed her and took her to England. Matters concerning S’s welfare have been before the High Court of Justice (Antigua and Barbuda) of the Eastern Caribbean Supreme Court since December 2021.

Following the discovery that F had taken S to England in December 2021, M commenced proceedings under the inherent jurisdiction of the High Court of England and Wales, seeking S’s immediate return home. Russell J granted permission for M to return S immediately to Antigua in December 2021 on the basis that M undertook to return S to this jurisdiction if ordered to do so; these proceedings were adjourned to consider the question of jurisdiction.

In January 2022, F made an application for a live with and a spend time with order in respect of S. M made an application in May 2022 seeking for proceedings to be concluded in this jurisdiction and that the existing orders and undertakings be discharged.

Decision:

It was accepted by F that S had never been habitually resident in England and Wales and so, any jurisdiction of this court must be founded upon an alternative basis. As Antigua is not a contracting state to the 1996 Hague Convention, there is no default jurisdiction granted to the UK and so the court was required to consider the Family Law Act 1986.

Following consideration of the Act, it was determined that the court does have jurisdiction to make orders under s.8 of the Children Act 1989 within inherent jurisdiction proceedings and that, if an application is made on the relevant date and the child is physically present within the jurisdiction on that relevant date, then the court can retain jurisdiction and proceed to make orders under s.8. It was accepted that no formal application was made by F whilst S was physically present in England, however, F advanced an argument that an oral application for contact was made at the hearing in December 2021, and so the court in England and Wales should retain jurisdiction to make further s.8 orders.

M’s position was that any reference to contact within the hearing in December 2021 was extremely limited and did not amount to an application for contact; the position statement of F vaguely referenced that F wished to re-establish contact and the court order from that date did not include a recital that an application for contact had been made.

McFarlane P confirmed that an issue of jurisdiction is an important and significant matter. The court in England and Wales would need to identify a clear and substantial basis to have continuing jurisdiction in a matter where the child has never been habitually resident in England and Wales and the court within the jurisdiction where the child is habitually resident is fully engaged in substantive proceedings regarding the child’s welfare.

The President confirmed that he was not satisfied that anything said within the December 2021 hearing amounted to an application for contact and that, if it had of amounted to a formal application, albeit oral application, then this would have been recorded on the order. McFarlane P also came to the view that an oral application was not sufficient to amount to an application that could be considered under the Family Law Act 1986 due to the lack of certainty of an oral application, the need for a relevant date to be established and because FPR 2010 rule 5.3 denotes an application being made on a form and does not reference an oral statement as being treated as an application.

The President confirmed that the court no longer held jurisdiction on any issues relating to the welfare of S and that the proceedings must conclude and any existing orders and undertakings be discharged.