Tafida Raqeeb (by her Litigation Friend XX) v Barts NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 03 October 2019 |
| Neutral Citation | [2019] EWHC 2531 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2767/2019 |
| Date | 03 October 2019 |
and
and
and
[2019] EWHC 2531 (Admin)
THE HONOURABLE Mr Justice MacDonald
(Sitting in Public)
Case No: CO/2767/2019
Case No: FD19P00378
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
AND FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Katie Gollop QC and Mr Eliot Gold (instructed by Kennedys LLP) for the Applicant in FD19P00378 and Defendant in CO/2767/2019
Mr David Lock QC and Mr Bruno Quintavalle (instructed by Sinclairs Law) for the First and Second Respondents in FD19P00378 and Interested Parties in CO/2767/2019
Mr Vikram Sachdeva QC, Ms Nicola Kohn and Mr Alan Bates (instructed by Irwin Mitchell LLP) for the Claimant in CO/2767/209 and the Interested Party in FD19P00378
Mr Michael Gration (instructed by CAFCASS Legal) for the Third Respondent in FD19P00378
Hearing Dates: 9 to 13 September 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
The dilemma presented by cases concerning, as this case does, the withdrawal of life sustaining treatment from a child rests on the fact that they address what many see as an appalling present, but a present that for many also remains sanctified morally or as an article of religious faith because life subsists. For the treating doctors involved in such cases, seen through the prism of medical best interests life is at best a barely wakeful shadow burdened by futile medical treatment or, at worst, mere oblivion. For parents, seen through the prism of abiding love and fierce devotion and the amplifying effect on those emotions of the flattering voice of hope, life is still a faded jewel that has not yet been robbed away from the body and one that may yet regain its lustre. Within this context, the decision for this court in these concurrent proceedings is a grave, multifaceted and complex one.
I recognise at the outset of this judgment that such cases, touching as they do on the very nature, purpose and value of human life, raise emotive, complex and contentious issues that generate strong feelings on both sides of the litigation and in the wider public and professional sphere. Be that as it may, it is important to state at the beginning that the duty of this court is to decide the applications before it by reference to the law. The court must, and does disregard the urging of media and social-media campaigns, petitions, and pressure groups and the views of informed and uninformed commentators and opinion writers. The court does so not because the views and opinions of those diverse constituencies are in any way unwelcome or invalid, but rather because the decisions of the High Court in these most challenging of cases are determined solely by application of the law, in order to reach a decision on the seminal question of best interests.
Within the foregoing context, the court has before it two sets of proceedings concerning Tafida Raqeeb, a little girl born on 10 June 2014 and now aged five years old. The first set of proceedings, issued on 16 July 2019, concerns an application by Tafida for judicial review of what is said to be the decision by the Barts Health NHS Trust (hereafter ‘the Trust’) not to agree to Tafida being transferred to a hospital in Italy for continued medical treatment pending the determination of an application to the High Court for a declaration regarding her best interests. The second set of proceedings, also issued on 16 July 2019, concerns an application by the Trust for a specific issue order pursuant to s. 8 of the Children Act 1989, and an application for a declaration pursuant to the inherent jurisdiction of the High Court, that it is in Tafida's best interests for her current life-sustaining treatment now to be withdrawn, a course of action that will lead inevitably to her death.
In the application for judicial review Tafida acts through her litigation friend, XX. On 5 September 2019, I dismissed an application by the Trust to remove XX as the litigation friend for Tafida. My reasons for so doing will be set out in a separate judgement. Tafida is represented in the application for judicial review by Mr Vikram Sachdeva, Queen's Counsel, Ms Nicola Kohn and Mr Alan Bates of counsel. The Trust is the defendant to the application for judicial review and is represented by Ms Katie Gollop, Queen's Counsel. Tafida's parents, Shelina Begum and Mohammed Abdul Raqeeb are interested parties in the application for judicial review, represented by Mr David Lock, Queen's Counsel and Mr Bruno Quintavalle of counsel. The Trust is the applicant in the applications made pursuant to the Children Act 1989 and the inherent jurisdiction and the parents and XX are respondents to those applications, each party with the same legal representation as set out above. Tafida is a party to the application under the inherent jurisdiction and is represented by Mr Michael Gration of counsel through her Children's Guardian, Kay Demery.
In this case I have also had the benefit of written representations from the Bangladesh High Commissioner to the United Kingdom (the parents each also being citizens of the People's Republic of Bangladesh), and a fatwa (being a ruling on Islamic law given by a recognised authority) from the Islamic Counsel of Europe, obtained and filed and served by the parents. In addition, the parents obtained, and I admitted into evidence with the consent of the parties, a legal opinion authored by Dr Giacomo Rocchi, a Judge of the Italian Supreme Court of Cassation, provided in his capacity as an acknowledge expert in Italy on issues of the type with which this court is concerned. This court extends its gratitude to those who have provided the aforesaid documents, to which it has given careful consideration.
In this case Tafida and her parents argue that, before any issue of best interests is considered, Tafida is entitled to what has been termed an “anterior procedural ruling” in the claim for judicial review that the decision of the Trust to refuse her transfer to Italy is unlawful and that, accordingly, the decision of the Trust should be quashed, a mandatory order made requiring the Trust to retake the decision or a mandatory order made requiring the Trust to permit the transfer of Tafida with a declaration that the Trust may not prevent that transfer, following which decision the court would be functus as to Tafida's wider best interests. Within this context, with respect to the order of proceedings, over the first two and a half days of the final hearing, I heard the submissions in the application for judicial review. Having been satisfied that it was necessary and appropriate to do so, I then moved to hear the oral evidence of the mother and submissions in the application under the Children Act 1989 and the inherent jurisdiction in respect of Tafida's best interests. Given the gravity, complexity and range of the issues engaged in this case, I thereafter reserved my judgment and now set out the decisions I have made, and the reasons for those decisions, in each set of proceedings before me. Given the court has heard and determined two sets of proceedings in one hearing and given the gravity, complexity and range of the issues engaged in each set of proceedings, this judgment is, of regrettable necessity, lengthy.
BACKGROUND
Tafida was born on 10 June 2014 and is the daughter of Shelina Begum and Mohammed Abdul Raqeeb. Each parent holds parental responsibility for Tafida. Tafida has a brother and a large extended family, many of whom live on the same street as Tafida and her parents. The parents are committed Muslims and were raising Tafida in the Islamic religious tradition. The applications before the court concerning Tafida arise in what all parties acknowledge is a truly mournful situation. The brevity with which the genesis of that situation can be stated articulates starkly the sudden and devastating manner in which it arose early on the morning of 9 February 2019.
Prior to that date, Tafida was a happy, joyful little girl, as is so evident from the description of her provided to me by her parents and relatives and in the videos of Tafida I have seen from before February 2019. She was the helping hand monitor in her class, her favourite film was ‘Frozen’, she attended ballet lessons and she was always running everywhere. She was bilingual in English and Bengali, had learnt some verses from the Quran and was due to attend Arabic classes in September 2019. She had already, at her young age, travelled widely across the world. At approximately 5.15am on 9 February Tafida woke her mother and complained of a headache. Shortly afterwards Tafida stopped breathing. The mother immediately summoned an ambulance, which arrived promptly and conveyed Tafida to Newham University Hospital. Examination revealed a large blood clot on Tafida's brain considered to be life threatening and requiring urgent surgical intervention. Some three hours later an operation was carried out at Kings College Hospital. The cause of the bleeding in Tafida's brain was identified as a ruptured arteriovenous malformation (hereafter AVM). This is a rare condition and was undetected and asymptomatic in Tafida. The ruptured AVM has resulted in extensive and irreversible damage to Tafida's brain.
Following surgery on 9 February 2019 Tafida was treated in the paediatric intensive care unit of Kings College...
To continue reading
Request your trial
-
AC (A Minor) & Ward of Court
... ... nearly twenty years ago in Airedale NHS Trust v. Bland [1993] A.C. 789 at p. 863 :- ... in the English High Court in the case of Raqeeb v. Barts NHS Foundation Trust [2019] EWHC 2531 ... ...
-
Mrs Fixsler v Manchester University NHS Foundation Trust
...25 This distinction was considered by MacDonald J in another recent case, Raqeeb v Barts NHS Foundation Trust [2019] EWHC 2530 (Fam), [2020] 3 All ER 663, which concerned a child whose circumstances were in some respects similar to Alta's. Tafida Raqeeb was a 5-year-old girl who was being ......
-
Paula Parfitt v Guy's and St Thomas' Children's NHS Foundation Trust
...appeal. The only other authority to which I should refer at this stage is Raqeeb v Barts NHS Foundation Trust [2019] EWHC 2530 (Fam), [2020] 3 All ER 663, (“ Raqeeb”), which was cited at a number of points in the appellant's submissions. It concerned a five-year-old girl, Tafida, who was be......
-
Manchester University NHS Foundation Trust v Fixsler and Others
...re Gard (A Child) (Child on Life Support: Withdrawal of Treatment) [2018] 4 WLR 5, CA applied.R (Raqeeb) v Barts NHS Foundation Trust [2020] 3 All ER 663 considered.Summary of principles applicable in cases concerning the provision of medical treatment tochildren lacking “Gillick” competenc......
-
Re‐Evaluating ‘Best Interests’ in the Wake of Raqeeb v Barts NHS Foundation Trust & Anors
...Law, London School of Economics.∗∗Associate Professor in Law,University of Oxford and Fellow and Tutor in Law, St Anne’s College.1 [2019] EWHC 2531 (Admin).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 F......