A Case Crying Out For Reform

Archie Battersbee

THE TABLET, 13 August 2022

The tragic story of Archie Battersbee has again highlighted the potential for an excruciating conflict between judges and doctors, on the one hand, and loving and determined parents, on the other. This is in nobody’s interests, and the legal situation cries out for reform. Archie suffered irreversible brain damage after what appears to be a child’s game that went wrong. In hospital, his vital bodily functions such as breathing were sustained artificially, giving the appearance that he was still alive, though the medical evidence indicated that his brain had died. Mrs Justice Arbuthnot, to whom the case was referred under the 1989 Children Act, ruled that his death occurred on 31 May, though virtually all the media reported, in accordance with his parents’ announcement, that he died on 6 August after life-supporting treatment was withdrawn by the hospital.

This case, and previous cases where similar issues arose, are an unintended consequence of the Children Act of 1989. That states, unambiguously, that whenever a court “determines any question with respect to the upbringing of a child … the child’s welfare shall be the court’s paramount consideration”. Legislators at the time had in mind so-called “tug-of-love” cases, where parents had quarrelled over issues such as custody; and also the hypothetical possibility that parents who were, say, Jehovah’s Witnesses, might refuse to allow their child to have a blood transfusion. This famous Clause 1 of the 1989 Act, which established the so-called “paramountcy principle”, was an enlightened shift in the law relating to the welfare of children, which other jurisdictions have copied. But it was also, in an unfortunate sense, an anomaly.

Parents have a natural and legal right and duty to care for their children, to love them, to decide where they shall live, their religion, education, language, medical care and so on. The law usually only intervenes where these duties are being neglected. But if a child becomes terminally ill, the parents, suddenly find themselves sidelined from decision-making. They are allowed merely to express an opinion. Their control over their child’s welfare goes from 100 per cent to zero, not in the name of the paramountcy principle, but because it is no longer for them to decide how to apply it.

Parents should not have an absolute veto over whether to continue or to withdraw medical treatment, but some way has to be found to grant proper legal acknowledgement of their natural rights – a right, for instance, to ask for early and independent mediation between them and the medical teams dealing with their child. They should not have to suffer as Archie’s parents have suffered, and many before them. It is as if they are being unfairly punished for being loving parents. The experience can be devastating. It is unjust.