Archie Battersbee’s parents have lost a Supreme Court bid to delay the withdrawal of his life-sustaining treatment pending a review of his case by a UN committee.
The 12-year-old has been in a coma since he was found unconscious by his mother in April and is currently being kept alive by a combination of medical interventions, including ventilation and drug treatments, at the Royal London Hospital in Whitechapel, east London.
His parents, Hollie Dance and Paul Battersbee, were granted a Court of Appeal hearing on Monday after the Government asked judges to urgently consider a request from a UN committee to keep treating Archie while it reviews his case.
However, after considering the matter, three judges refused to postpone the withdrawal of life-sustaining treatment beyond midday on Tuesday.
They also refused to grant permission to appeal against their ruling at the Supreme Court.
Ms Dance and Mr Battersbee filed an application directly with the Supreme Court, asking for his treatment to continue so the UN Committee on the Rights of Persons with Disabilities (UNCRPD) could have time to consider their complaint, made last week.
But, refusing permission to appeal, a panel of three justices concluded the Court of Appeal “made the correct decision”.
On Tuesday evening, Ms Dance said Barts Health NHS Trust will begin to withdraw Archie’s life support on Wednesday at 11am unless the family has submitted an application to the European Court of Human Rights by 9am.
She said in a statement: “Heartbreakingly, the hospital trust have told us this evening that we cannot move Archie to a hospice.
“We want to make an urgent application to the European Court of Human Rights, but the trust are saying that that has to be submitted at 9am, which gives us and our lawyers no time to prepare it.
“They also demand to see a copy of it, which they have no right to see. However if this does not happen, they say they will withdraw treatment tomorrow morning at 11am. This is cruel and we are absolutely appalled.”
In a lengthy statement announcing their decision, Lords Hodge, Kitchin and Stephens, at the Supreme Court, said: “As this panel stated in its note of determination last week, the justices have great sympathy with the plight of Archie’s devoted parents who face a circumstance that is every parent’s nightmare – the loss of a much-loved child.”
The judges continued: “It has to be borne in mind that, sadly, the central issue between Archie’s parents on the one hand and the NHS trust, which is supported by Archie’s very experienced guardian, has not been about Archie’s recovery but about the timing and manner of his death.
“As Sir Andrew MacFarlane recorded in his earlier judgment of July 25, there is no prospect of any meaningful recovery.
We will fight until the end
“Even if life-sustaining treatment were to be maintained, Archie would die in the course of the next few weeks through organ failure and then heart failure.
“The maintenance of the medical regime, as (Mr Justice Hayden) held in his very sympathetic judgment, ‘serves only to protract his death’.
“That conclusion was one which the judge reached only ‘with the most profound regret’.”
The panel concluded: “According to the law of England and Wales, Archie’s best interests and welfare are the paramount consideration.
“The panel reaches this conclusion with a heavy heart and wishes to extend its deep sympathy to Archie’s parents at this very sad time.”
Ms Dance said she and Mr Battersbee were “extremely disappointed” with the Supreme Court’s decision.
In a statement issued by the Christian Legal Centre, which is supporting the legal action by Archie’s parents, she said: “No authorities, other than the UN CRPD, have shown any compassion or understanding to us as a family.
“We will fight until the end.”
Speaking outside the hospital she left the door open to another legal challenge to stop her 12-year-old son’s life support being cut off.
Ms Dance told reporters the family is exploring one more legal option but “that really is sort of the end”.
She added: “I can honestly say that Archie would be very, very disappointed in our justice systems.
“This is somebody’s child … they’re not just taking a child away from me and Paul, they’re destroying the whole family.
“It’s not right, it’s not right, and something needs to be done – reform desperately needs to be taking place in this country.”
Alistair Chesser, chief medical officer for Barts Health NHS Trust, said: “Our deepest sympathies remain with Archie’s family.
We do not understand what the rush is and why all of our wishes are being denied
“As directed by the courts, we will now work with the family to prepare for the withdrawal of treatment.
“We aim to provide the best possible support to everyone at this difficult time.”
Ms Dance said earlier on Tuesday: “We are having to battle over every decision with the hospital.
“There is nothing dignified in how we are being treated as a family in this situation. We do not understand what the rush is and why all of our wishes are being denied.
“I know Archie’s still with us. Archie’s showing very different signs to what the clinicians are actually putting over to the courts.
“He’s very much there, he’s progressing in so many ways.”
A spokesman for the Christian Legal Centre said Barts Health NHS Trust, which runs the hospital, had confirmed it would not take any steps to withdraw treatment until the Supreme Court reached a decision.
Archie’s treatment had been due to be withdrawn on Monday, after a High Court judge concluded that would be “lawful” and in his best interests, and the family had exhausted all routes of appeal.
The Court of Appeal refused permission to challenge that ruling last week, but the case was brought back before the court on Monday after the UNCRPD requested that the Government “refrain from withdrawing” Archie’s treatment while it considers the complaint from his parents.
A letter sent on Sunday on behalf of Health Secretary Steve Barclay asked the court to urgently review the matter in light of the committee’s request.
However, Sir Andrew McFarlane, president of the Family Division of the High Court, said on Monday that the Convention on the Rights of Persons with Disabilities, under which the UN committee made its request, is an “unincorporated international treaty”.
Sir Andrew said: “It is not part of the law of the United Kingdom … and it is not appropriate for this court to apply an unincorporated international treaty into its decision-making process.
“Every day that (Archie) continues to be given life-sustaining treatment is contrary to his best interests and so a stay, even for a short time, is against his best interests.”
The judge said that was the decision taken in the courts of England and Wales.
Archie was found unconscious at his home by his mother on April 7 and has not regained consciousness since. She believes he was taking part in an online challenge.