Re‐Evaluating ‘Best Interests’ in the Wake of Raqeeb v Barts NHS Foundation Trust & Anors

Date01 November 2020
DOIhttp://doi.org/10.1111/1468-2230.12563
AuthorImogen Goold,Cressida Auckland
Published date01 November 2020
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Modern Law Review
DOI:10.1111/1468-2230.12563
CASES
Re-Evaluating ‘Best Interests’ in the Wake of Raqeeb v
Barts NHS Foundation Trust & Anors
Cressida Aucklandand Imogen Goold∗∗
In Raqeeb vBarts NHS Foundation Trust,the latest of a number of cases concer ning whether a
child can travel abroad for treatment that doctors in the UK do not consider to be in their best
interests, the High Court held that the hospital had acted unlawfully by failing to consider the
child’sr ights under EU law when refusingto allow her to travel. Although this derogationcould
be justied on public policy grounds,as such treatment was,on the facts, in her best interests, no
further interference with her rights was justied. In making this nding, the court recognised
the ‘stress’ that such a case placed on the best interests test, lending weight to the argument
for moving instead to a risk of signicant harm threshold for judicial intervention in parental
decisions, which better accounts for legitimate dierences of value and strikes a better balance
under Article 8 ECHR.
INTRODUCTION
Raqeeb vBarts NHS Foundation Trust & Anors1(Raqeeb) is the latest in a line
of cases in which parents and a hospital have disagreed over whether or not
a child ought to be permitted to travel abroad for treatment that doctors
in the United Kingdom do not consider to be in the child’s best interests.
In both of the preceding cases, Yates vGreat Ormond Street Hospital For Children
NHS Foundation Trust & Anor2(Gard)andAlder Hey Children’s NHS Foundation
Trust vEvans & Anors3(Evans),the cour ts refused the parents’ request, declaring
the withdrawal of life-sustaining treatment lawful, and making it clear that, if
necessary, they would be prepared to issue an injunction to prevent the par-
ents from taking the child abroad. Yet despite the lack of precedent for such
a move, neither judgment discussed the source of legal authority that would
permit them to do so, nor whether such power resides exclusively in the court,
or can be exercised by a hospital in the absence of a court order.
It is perhaps unsurprising, therefore, that only one year on, this issue has
once more come squarely before the High Court in the case of Raqeeb,in
Assistant Professor in Medical Law, London School of Economics.
∗∗Associate Professor in Law,University of Oxford and Fellow and Tutor in Law, St Anne’s College.
2Yat e s & An o r vGreat Ormond Street Hospital For Children NHS Foundation Trust & Anor [2017]
EWCA Civ 410.
3Alder Hey Children’s NHS Foundation Trust vEvans & Anors [2018] EWCA 984 (Civ).
© 2020 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2020)83(6) MLR 1328–1342
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium,provided the original work is properly cited.

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