Hospital deserves credit for patience and forbearing
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  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:
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)
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)