Mr Thomas Evans v Alder Hey Children's NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice McFarlane,Lord Justice Coulson |
| Judgment Date | 25 April 2018 |
| Neutral Citation | [2018] EWCA Civ 984 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: 2018/PL/10809 |
| Date | 25 April 2018 |
[2018] EWCA Civ 984
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR JUSTICE HAYDEN)
The Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lady Justice King
and
Lord Justice Coulson
Case No: 2018/PL/10809
Mr P Diamond (instructed by the Christian Legal Centre) appeared on behalf of the First Applicant father
Mr J Coppel, QC (instructed by Tom Ward of TEW Solicitors) appeared on behalf of the Second Applicant mother
Mr M Mylonas, QC (instructed by Hill Dickinson) appeared on behalf of the Respondent Alder Hey Hospital
Ms S Roper (instructed by CAFCASS) appeared on behalf of the Children's Guardian
Judgment (Approved Judgment)
The court has before it what are now two separate applications for permission to appeal against a decision made by Hayden J as recently as yesterday evening, 24 April, in the course of these now long-running proceedings relating to the welfare of a young and profoundly ill child, Alfie Evans. Alfie was born on 9 May 2016 and so approaches now the end of his second year. As the judgments in the court below indicate in full detail, and the neutral citation of the main judgment given by Hayden J on 20 February is [2018] EWHC 309 (Fam), tragically, Alfie, after an entirely normal pregnancy, normal birth and normal early weeks and months of his life, developed a brain condition which is as yet undiagnosed with any precision, which led regrettably and, once it became established, very swiftly to the total disintegration of the substance of his brain. By February 2018, when the judge, in a final attempt to see whether there was the possibility of any change for the better in the child's brain, commissioned yet a further MRI scan, the substance of that scan indicated that there had been at that time yet further disintegration, so that in reality the scan signals indicated an entirely fluid content to the area that would be occupied by the child's brain, the fluid either being water or cerebral spinal fluid.
Alfie has been a patient throughout the period leading from the beginning of his decline at the Alder Hey Children's Hospital, and it was their application to the court for a declaration as to his best interests that triggered the proceedings. The decision of the judge, after hearing evidence not only from the treating clinicians but also from independent experts instructed by the court and other medical opinion sought by the parents, was that there was a unanimous medical view that the condition of Alfie's brain was irreversible. If it was possible for it to deteriorate yet further, and no treatment to bring a turnabout in that condition was identified at all, thus his future was either to continue to have his viability maintained by artificial means, namely the continuation of ventilation and the introduction of nutrition by way of fluids and the administration of other supportive treatments by fluid in a paediatric intensive care unit or that it was in his best interests for that intrusive, intensive treatment to be withdrawn, with the inevitable result (on the medical evidence unanimously before the judge) being that the child would within a short time die. The judge determined that the latter course was in Alfie's best interests.
The parents, as is their right, sought to appeal to this court. The court granted permission to appeal, heard the legal arguments then put forward on the parent's behalf but dismissed the appeal. The parents sought permission to appeal from the Supreme Court, but permission was refused. The Court of Human Rights in Strasbourg considered the parents' application but declared it to be inadmissible.
Matters moved on. The parents sought an alternative mode of legal challenge, namely issuing a writ of habeas corpus to achieve the release of the child into their care. Their plan has been for a long time now for Alfie to be released from the care of Alder Hey Children's Hospital, so that he might travel to a world-renowned children's hospital in the Vatican, where treatment would be afforded to him which would in effect continue the intensive care regime that he has experienced to date at Alder Hey, but without any further plan to remove that treatment and operate a palliative care regime leading to his death. The habeas corpus application was refused by the judge. An appeal was heard by this court in a different constitution on 16 April and dismissed, and an application for permission to appeal to the Supreme Court was refused later that week on 20 April. It is of note that in the course of the Supreme Court's decision, and it was the decision of three justices of the court, the President of the court, Lady Hale, together with Lord Kerr and Lord Wilson, the following is said at paragraph 2:
“But they [the parents], and we, have to face the facts. Alfie looks like a normal baby, but the unanimous opinion of the doctors who have examined him and the scans of his brain is that almost all of his brain has been destroyed. No-one knows why, but that it has happened and is continuing to happen cannot be denied. It means that Alfie cannot breathe, or eat, or drink without sophisticated medical treatment. It also means that there is no hope of his ever getting better. These are the facts which have been found after a meticulous examination of the evidence by the trial judge.”
And then at paragraph 4:
“On the first occasion that an application came before us, we held that Alfie's best interests were the ‘gold standard’ against which decisions about him had to be made. It had been decided, after careful examination of the evidence, that it was not in his best interests for the treatment which sustained his life to be continued or for him to be taken by air ambulance to another country for this purpose. Hence we refused permission to appeal and the European Court of Human Rights found the parents' application inadmissible.”
And then at the conclusion of the short note of the decision, this:
“13. It has been conclusively determined that it is not in Alfie's best interests, not only to stay in Alder Hey Hospital being treated as he currently is, but also to travel abroad for the same purpose. It is not lawful, therefore, to continue to detain him, whether in Alder Hey or elsewhere, for that purpose. The release to which he is entitled, therefore, is release from the imposition of treatment which is not in his best interests.
14. Every legal issue in this case is governed by Alfie's best interests. These have been conclusively and sensitively determined by the trial judge. There is no arguable point of law of general public importance in this case.
15. There is also no reason for further delay. There will be no further stay of the Court of Appeal's order. The hospital must be free to do what has been determined in Alfie's best interests. That is the law in this country. No application of the European Court of Human Rights Strasbourg can or should change that.”
An application was made immediately by the parents to Strasbourg, but in a very short space of time that too was declared inadmissible.
The timetable for the removal of intensive treatment was clarified by the judge, and Alfie was disconnected from the ventilator at 9.45 pm on Monday of this week. We sit now at half past six on Wednesday evening. Alfie is still alive. From the time the ventilator was removed, he breathed, in the sense that his lungs functioned and drew in sufficient air to maintain his viability. After some six or seven hours, at around four o'clock in the morning, the hospital introduced (as part of the planned palliative care plan) modest access to oxygen by two nasal prongs inserted into his nose, connected with a low-pressure oxygen supply to augment the oxygen that he had available to him. In addition some fluids were introduced to him at the same time, and that has been, as we understand it, the regime that has continued. Alfie remains in that condition now so, far as this court understands.
The fact that Alfie did not die very soon after the ventilator was removed enabled the parents to say, as undoubtedly I accept will have been their reaction, that this was not what was expected by them. They therefore instructed their lawyers to apply back to the judge in order for the judge to revisit the decision to take their child off the ventilator. They applied to set aside the declaration that he had made in February and asked the court to make ancillary orders allowing the parents to take the child immediately to Italy.
In the course of this week a further development should be recorded, namely that on Monday (23 April) Alfie was declared by the Italian state to be an Italian citizen. We have also been told that at this moment the necessary physical facilities and resources are available to take him by air ambulance to, as I understand it, a military plane that is available in this jurisdiction that would fly him immediately to Rome and that, during the course of this process, he would be attended by Italian clinicians. He would then be, we are told, admitted to the intensive care unit at the Vatican Hospital. The parents would be accommodated in suitable accommodation provided for them, and Alfie's care would then be maintained under that regime by the Italian state or the Vatican state, whichever is the appropriate authority.
The application to the judge therefore was put on two separate bases, albeit...
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