Unforced errors by Archie’s lawyers
Archie Battersbee died on Saturday. His parents deserve our deepest sympathy.
As I wrote here on 26 July, the legal challenges they brought against the proposed withdrawal of his life support could have been better handled by the two High Court judges who dealt with the case in its earlier stages.
Since then, though, Archie’s parents have made several unforced legal errors. By contrast, lawyers acting for the hospital trust and for the guardian appointed to represent Archie’s interests acted with great skill and sensitivity. Judges sat at short notice during the legal vacation — and in one case, worked through the night — to ensure that justice was delivered swiftly and fairly.
Archie’s parents were supported by an organisation called the Christian Legal Centre, part of a group called Christian Concern. Four years ago, the group assisted the parents of a toddler called Alfie Evans. At that time, I made a programme for Radio 4 about the Christian Legal Centre and its involvement in the case which can be heard on BBC Sounds.
I am in no position to assess the relationship between the Christian Legal Centre and Archie’s parents. What I can do, though, is discuss the arguments put by their lawyers.
Court records show that the legal teams have changed over the past four months. But leading counsel in the Court of Appeal on 21 and 22 July was Edward Devereux QC, a leading family specialist who won the first appeal in June with his junior Rob George.
At the end of last week, while Devereux may have been on holiday, leading counsel for the parents was James Bogle. His junior was Bruno Quintavalle, who also appeared at earlier hearings. They were briefed by Andrew Storch solicitors.
All counsel and solicitors were acting on the instructions of Archie’s parents and no criticism of any individual lawyer is implied or should be inferred from anything I say in this piece.
Update: Devereux and Bogle have both responded to this piece in the comments below.
Hayden ruling 15 July
The key judgment in this case was delivered by Mr Justice Hayden on 15 July. He concluded that continuing Archie’s life-sustaining treatment would be futile and unlawful. The treatment, he said, “serves only to protract his death, whilst being unable to prolong his life”.
Permission to appeal refused 25 July
The Court of Appeal refused permission to appeal on 25 July. But Sir Andrew McFarlane, presiding, praised Devereux for his “skilful oral submissions” on behalf of Archie’s parents and conceded that his primary ground of appeal was “plainly not without some foundation”.
As I explained in my piece the next day, no further appeal against Hayden’s ruling was possible. However, the judges gave Archie’s parents until 27 July to lodge an urgent application at the European Court of Human Rights. In the meantime, they issued what’s called a “stay” on Hayden’s order.
Supreme Court dismisses application 28 July
Although there could be no appeal against the Court of Appeal’s substantive decision, the family asked the Supreme Court to extend the stay beyond 27 July. That application was refused on 28 July. The hospital had made it clear that they would not withdraw Archie’s treatment while legal challenges were continuing.
UN request 29 July
Nothing was heard from the human rights court in Strasbourg before the end of July. That was because Archie’s parents had chosen instead to approach the Committee on the Rights of Persons with Disabilities, a United Nations human rights body based in Geneva that monitors implementation of a treaty called the UN Convention on the Rights of Persons with Disabilities.
In a request issued on 29 July, the committee asked the UK government to “refrain from withdrawing life-preserving medical treatment”. I discussed this in a piece on 1 August and argued that “the committee’s request does not displace or supersede rulings by the UK’s highest courts”.
Application dismissed 1 August
That turned out to be correct. The Court of Appeal had been asked to enforce the disability committee’s request for a further stay. Giving judgment, McFarlane said:
Despite the firm and clear submissions in which Mr Devereux put the parents’ case in the highest possible terms using phrases such as “mandatory requirement” or “the court has no discretion” or “there would be a flagrant breach of international law” by the court were his application to be refused, I am satisfied that those submissions are, with respect to him, of no foundation whatsoever.
This is an unincorporated international treaty and it is not part of the law of the United Kingdom and, for the reasons set out by Lord Reed in the case of SC, it is not appropriate for this court to apply an unincorporated international treaty into its decision making process, or to investigate whether the UK is in some way in breach of any duty, in particular under UN Convention on the Rights of Persons with Disabilities….
Separately, and with respect to him, the submission that the Equality Act 2010 mandates this court to grant a stay because it incorporates the UN Convention on the Rights of Persons with Disabilities in some manner simply does not get off the ground.
Further appeal dismissed 2 August
An appeal against that decision was dismissed a day later. The Supreme Court said:
First, as Sir Andrew McFarlane 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.
Human Rights Court refuses to intervene 3 August
This put Archie’s parents in the worst possible position to make the application to the European Court of Human Rights that they had announced the previous week.
An application for what are called “interim measures” was finally lodged on 3 August and dismissed by the court’s president, Robert Spano, later that day. Though he did not refer to it specifically, Spano clearly took account of what the Supreme Court had said about human rights. He announced that the European court would “not interfere with the decisions of the national courts to allow the withdrawal of life-sustaining treatment from [Archie Battersbee] to proceed”.
But Spano went further, declaring the family’s claim inadmissible. It’s well known that, under article 35 of the human rights convention, the Strasbourg court cannot hear an application until “after all domestic remedies have been exhausted”. But article 35 goes on to say that the court will not deal with any application that “has already been submitted to another procedure of international investigation or settlement and contains no relevant new information”.
While stressing that the question of jurisdiction remained undecided, Spano referred specifically to that provision. And although he didn’t spell it out, his message was clear: by approaching the UN committee a week earlier, Archie’s parents had forfeited their chances of getting an urgent order from the human rights court. They should have tried Strasbourg first.
Final High Court hearing 4 August
It was at this point that Archie’s family tried to get him moved to a hospice. A new application was made to the High Court on 4 August and a hearing was arranged that afternoon before Mrs Justice Theis. Although the hearing was held in private at the parents’ request, accredited journalists were allowed to attend in person or through a remote video link. Judgment was reserved overnight.
Final challenges dismissed 5 August
In her ruling, Theis explained that the parents were seeking to vary the order made by Hayden so that Archie could be moved to a hospice, where treatment would be withdrawn.
In support of that application, the parents’ lawyers wanted to call evidence from a consultant in paediatric respiratory medicine, referred to as Dr R. They had applied for permission just 20 minutes before the hearing. All they could produce in time was a CV which showed he had last worked in a paediatric intensive care unit some 14 years ago.
Unsurprisingly, the judge refused to grant permission for the expert to be called. It would have taken Dr R beyond the weekend to review Archie’s notes and there would have been a further hearing this week at which his report would be considered. That delay would be “inimical to Archie’s welfare”.
The judge considered oral evidence given to her by Dr F, a consultant paediatric intensivist who has been involved in Archie’s care. The risks to Archie were “major and unpredictable”, Dr F had testified.
Theis agreed. “I am satisfied,” she said, “that when looking at the balancing exercise again his best interests remain as set out on 15 July 2022, that he should remain at the hospital when treatment is withdrawn.”
Archie’s parents went straight to the Court of Appeal. Sir Andrew McFarlane, sitting with Lady Justice King and Lord Justice Moylan, considered the application without a hearing. On Friday afternoon, they refused permission to appeal.
As their reasons are not yet widely available, I am setting out their conclusions here:
Two grounds of appeal are advanced by the parents:
(1) That refusing permission to instruct Dr R was a breach of the parents’ right to a fair hearing; and
(2) That, in “making a best interests determination in relation to a person in a coma with no chance of improvement, the court breached the principle established by the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James that people in PVS and, thus a fortiori those in an irreversible coma, have no best interests”…
We have come to the clear conclusion that there is no merit in either ground.
As to (1), the judge was right to conclude that permission should not be given for the instruction of Dr R for the reasons she gave. The refusal to permit such instruction did not breach the parents’ right to a fair trial.
Whilst not recorded in the judgment, on being asked by the parents to consider transfer to a hospice, Hayden J stated on 11 July 2022 that this was not an option. It was at all times thereafter open to the parents to apply to the court for permission to instruct an expert. No such application was made until yesterday.
As to (2), this is a new argument which has not previously been advanced in this case.
In brief, it is flawed legally. It is also not easy to understand as it seeks to argue that Archie’s best interests have ceased to be relevant.The submission is said to be based on the Supreme Court’s decision in Aintree and the House of Lords in Airedale NHS Trust v Bland. The parents’ argument quotes from paragraph 36 in Aintree and paragraph 94 in Bland and submits, we quote:
“In adopting a best interests approach for someone in an irreversible coma, the learned judge erred in law and went contrary to the principle established unanimously by the Supreme Court in Aintree that a person in PVS has no best interests.”
This is a flawed argument because neither Bland nor Aintree established any such proposition. On the contrary, they made clear that best interests is the relevant test. This can be seen from the following passage Baroness Hale’s judgment [in Aintree] (with whom all the other Supreme Court justices agreed):
In Bland’s case, Lord Goff of Chieveley (with whose judgment Lord Keith of Kinkel and Lord Lowry expressly agreed) pointed out that
“the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment.”
To the same effect was Lord Browne-Wilkinson:
“the critical decision to be made is whether it is in the best interests of Anthony Bland to continue the invasive medical care involved in artificial feeding. That question is not the same as, ‘Is it in Anthony Bland’s best interests that he should die?’ The latter question assumes that it is lawful to perpetuate the patient’s life: but such perpetuation of life can only be achieved if it is lawful to continue to invade the bodily integrity of the patient by invasive medical care.”
Hence the focus is on whether it is in the patient’s best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it [end of Hale quotation].
By section 1 Children Act 1989, the welfare of a child is the court’s paramount consideration. That that is equally the case where the issue relates to the withdrawal of medical treatment was made clear by the Supreme Court who stated in March 2018 (when dismissing an application for permission to appeal by the parents of Alfie Evans), that the “gold standard” by which decisions are made in respect of children is “an assessment of (the child’s) best interests”: See Evans v Alder Hey Childrens’ NHS Trust.
In all respects, Theis J’s judgment deals comprehensively with each of the points raised on behalf of the parents. We have reached the clear conclusion that each of her decisions was right for the reasons she gave. It follows that the proposed appeal has no prospect of success and there is no other compelling reason for the Court of Appeal to hear an appeal.
There were two unforced errors by the family here: failing to apply for permission to instruct an expert in time — even though Archie’s mother had been talking about a hospice for some days — and misconstruing the two leading cases in this area of law.
This ruling was reportedly followed by another attempt to involve the European Court of Human Rights, inevitably without success.
Comment
In a statement issued through the Christian Legal Centre on Sunday, Archie’s family said:
Yesterday we lost our beautiful boy, Archie. He has fought against all the odds since April, and we are so proud of him.
We are thankful for the huge amount of support we’ve received from so many different people. We are grateful to our legal team and others who have stood with us as we have faced these difficult challenges.
We want something good to come out of this tragedy and the horrendous experience we have been put through by the system.
No parent or family must go through this again. We have been forced to fight a relentless legal battle by the hospital trust while faced with an unimaginable tragedy.
We were backed into a corner by the system, stripped of all our rights, and have had to fight for Archie’s real “best interests” and right to live with everything stacked against us.
If the family really believe they have been stripped of all their rights, then what we are hearing is the grief of the newly bereaved. The reality is that courts at all levels have ensured that they could exercise all the rights they undoubtedly had.
I can see little point in a public inquiry, despite the parents’ wish that “something good” should come out of this. The judgments are public documents. The law is clear and settled. Though parents have responsibilities for their children, nobody is seriously suggesting that parental responsibility should bring with it unlimited powers.
Of course these cases should be settled out of court, by mediation if necessary. But as Rachel Clarke, a palliative care doctor, confirms in an excellent piece for the Guardian today,
it is rare for parents and doctors to be at loggerheads, despite the disproportionate media coverage such cases can provoke. Usually, they navigate the desperately painful process of withdrawing a child’s treatment together.
The Royal London Hospital deserves credit for showing great patience and forbearing. It chose not to take irreversible action even when this was its right and, some would say, its duty. It should have the last word.
On Saturday, Alistair Chesser, chief medical officer at Barts Health NHS Trust, said:
Archie Battersbee passed away on Saturday afternoon at The Royal London Hospital after treatment was withdrawn in line with court rulings about his best interests.
Members of his family were present at the bedside and our thoughts and heartfelt condolences remain with them at this difficult time.
The trust would like to thank the medical, nursing and support staff in the paediatric intensive care department who looked after Archie following his awful accident. They provided high quality care with extraordinary compassion over several months in often trying and distressing circumstances.
This tragic case not only affected the family and his carers but touched the hearts of many across the country.
Note to readers: unlike some publications, this blog will not be taking a break in August. However, I shall be taking a couple of days off towards the end of September and some more time in the first half of October.
The words “— even, it appears, at the hearing yesterday before Theis J” appeared in the original order at this point. They were deleted by the Court of Appeal under the “slip rule” on 11 August. I am grateful to James Bogle for alerting me to the amendment (see his comments below). This piece was updated on 15 August.
Dear Joshua,
I must correct your report of the Court of Appeal’s final judgment in the Battersbee case. Contrary to your post, the argument at Ground 2 was, indeed, advanced before Mrs Justice Theis and that by me with an acknowledgement by the judge herself. Paragraph 13 of the Court of Appeal’s judgment has, upon request, since been amended by the court, accordingly.
Given, as you must know, that it is difficult for counsel to comment publicly (and thus, perhaps, a little unfair to single us out in the way you do), I must say that I agree with Edward Devereux that your heading is unfortunate and misplaced.
Almost every time a judge is successfully appealed there will be “error” of some kind but, though entirely voluntary, few would describe that as an “unforced error”. It need be no different for lawyers. And I note that your phrase is, so far as I am aware, not one that any of the judges have used in this case.
In his reply, Edward explained the pressures he and his team worked under and that they were successful before the Court of Appeal (I might add that he was praised by the President). The pressures continued until the end of the case.
However, I should add that I was not involved in the earlier parts of the case but only in the later application for a move to a hospice. This was a reasonable application for the family to make, albeit refused.
Moreover, as you must be aware, lawyers are, to a large extent, the captives of their instructions. Reporters cannot know what those instructions are since they are, by definition, confidential and it is unfair to criticise without knowing the full picture.
I am not sure if you were present at that hearing (the judge required us to continue until 10.45pm and most of the journalists who did attend remained to the end), so you may not have been aware that considerable very late evidence was filed, shortly before the hearing, on behalf of the hospital.
The family’s application was simply to be allowed to respond to that evidence, hence their making it at very short notice. You do not mention this in your article.
Hence, also, the reason why they had not applied earlier (for which you criticise them). But how could they apply to respond to evidence that had yet to be filed?
The best witness that could be found at such extreme short notice was Dr R who, a transportation as well as a respiratory expert, was permitted to hear Dr F’s evidence and to comment. That was all that was permitted. He disagreed with important elements of Dr F’s risk assessment, but his evidence was nonetheless excluded.
You make scant mention of any of this. Instead, you say “unsurprisingly the judge refused to grant permission”, seemingly unaware of the full background. You also do not mention that Dr R said he could produce a report by the following evening.
The family were then given less than 2 hours to file grounds of appeal (the usual time period is 21 days), no time to file a skeleton argument and the court ordered a stay until 2pm, leaving later stays to be ordered by the Court of Appeal who, despite not ordering a further stay, did not give judgment until 6pm or thereabouts. Again, you make but scant mention of this.
As to the appeal grounds, it is rare to allow one side to provide comprehensive and very late evidence, without giving the other side an opportunity to respond and, at trial, that can, indeed, impeach fairness. Accordingly, for the family to make that application was far from an “unforced error” as you (and not the judges) seek to characterise it.
Ground (2) was, indeed, new, but then the whole application (to move to a hospice) was new and it is wrong to say it was not put to the judge below. As I stated at the beginning, it was.
That ground simply adopted the undissented dictum of Lady Hale at paragraph 36 of her judgment in Aintree (not recited in the Court of Appeal judgment and therefore, again, seemingly missed by you) in which, under the heading “Discussion” (where one would often expect to find the reasons for deciding a case) she said this:
“36. The courts have been most reluctant to lay down general principles which might guide the decision. Every patient, and every case, is different and must be decided on its own facts. As Hedley J wisely put it at first instance in Portsmouth Hospitals NHS Trust v Wyatt [2005] 1 FLR 21, ‘The infinite variety of the human condition never ceases to surprise and it is that fact that defeats any attempt to be more precise in a definition of best interests’ (para 23). There are cases, such as Bland, where there is no balancing exercise to be conducted…”
Hedley J, in considering a definition of best interests, refers to the usual “balancing exercise” and Lady Hale reprises that there was “no balancing exercise” in Bland, meaning he had no best interests at all. Indeed, Lord Mustill expressly said in that case “the proposed conduct is not in the best interests of Anthony Bland, for he has no best interests at all”.
The same may be said of Archie (he being in a worse state) in which case, there being no best interests, it could not matter (to him) whether he remained in hospital, in a hospice or in the back of an ambulance.
However, it mattered very much to the family and, if best interests do not exist to override parental responsibility (s.3 of the Children Act 1989), it was not unreasonable for them to argue that the parents’ wishes should have been respected and Archie moved to a hospice.
I might also add that the hospital had already stated, earlier in the case, that there were no major resource allocation issues in treating Archie.
Thus, ground (2), whilst not accepted by the Court of Appeal, nevertheless could not be characterised as an “unforced error”, as you (and not the judges) describe it.
Regrettably, your article overlooks many of these important points.
Furthermore, the argument, whilst perhaps not understood by some, was well enough understood by others. Dominic Lawson outlined its lineaments and ramifications admirably in his own article – see here:
https://www.dailymail.co.uk/debate/article-11090365/DOMINIC-LAWSON-Archie-Battersbee-better-way-handling-tragic-cases.html
I respectfully suggest that he is right: we must find a better way of handling these very tragic cases in future.
I might add that reports of such cases are also important and should preferably avoid any “unforced errors” by journalists.
With all best wishes,
James Bogle (writing in a personal capacity)
Dear Joshua,
The central argument of your piece - confirmed by your unfortunate heading ‘Unforced errors by Archie’s lawyers’ - is that in the latter stages (although your heading sadly does not make this clear) of the proceedings concerning Archie, his lawyers made a number of unforced errors and that, by contrast, the lawyers for the NHS Trust and the Guardian acted with ‘great skill and sensitivity’. This is, I am afraid, an uncharacteristically simplistic and unbalanced analysis. It is one that does not do justice to the skill and the dedication of the legal team of the parents.
I would of course say that. Because I was part of the parents’ team (which consisted of various barristers and solicitors at different times because of reasons of availability): not only ringside at times, but for much of the time in the ring itself, presenting the arguments to the Court of Appeal on no less than three occasions.
Viewed from the beginning to the end of the proceedings, as any careful analysis of the publicly available judgments would easily identify, the legal team for the parents did a truly remarkable job. Indeed, it was far more remarkable and skilful than those acting for the other parties - who, as is so often the case, were at all times simply responding to the arguments created and deployed by the parents and who were able to simply refer back to the bleak medical opinion as to Archie’s position.
After all, if Mrs Justice Arbuthnot’s decision of 13 June 2022 had been allowed to stand then Archie would have had his life sustaining treatment withdrawn within a few days. Instead, the parents’ legal team managed to overturn that decision (a rare event in cases of this nature); came within a whisker of doing the same again in relation to the retrial before Mr Justice Hayden (as you rightly acknowledge); and managed to prevent Archie’s life sustaining treatment being withdrawn for a number of weeks thereafter. They also deployed a number of novel arguments - never before considered by the courts of England and Wales - in an attempt to ensure that no stone was left unturned in putting the case for the parents before the courts in an effective and fair way.
The legal team for the parents did all this without receiving any fee whatsoever (pro bono as we lawyers quaintly call it). They did it having to acknowledge at all times that Archie’s medical position was, as I have said, desperately bleak. They did it working to (in my view) wholly unreasonable deadlines (on a number of occasions mere hours) set by various orders of the courts. They did it while sensitively and realistically advising Archie’s family at a time when the family were in the throes of disbelief, anger, bewilderment, and grief.
It should be recalled that (as is clear from the publicly available judgments) it was the case for the NHS Trust and the Guardian before Mrs Justice Arbuthnot that Archie was dead. Mrs Justice Arbuthnot followed that approach and was found to be wrong by the Court of Appeal. Further delay resulted and a ‘best interests’ hearing then had to take place before Mr Justice Hayden.
Viewing the proceedings as a whole, therefore, if there are any errors to identify, it is not with the approach of the parents through their legal representatives.
Edward Devereux QC (writing in my personal capacity)