FD2500652 - [2025] EWHC 2782 (Fam)

A summary of the law in this area was set out in Re J (A Child) (Withdrawal of Ventilation) [2025] EWHC 2247 (Fam) at paragraphs 37 to 42. I set that out again for the sake of completeness. The law in the area of serious medical treatment for children is clear and settled. Where a parent is not willing to exercise parental responsibility to sanction the medical treatment (or its withdrawal), the court has the ultimate power to require treatment to be given, in accordance with a ‘best interests’ test. In considering such an application the Court must weigh up the advantages and disadvantages of providing or withholding the various treatment options within that plan, and to balance them in order to determine where the child’s best interests lie (Re J (a minor) (wardship: medical treatment) [1991] 2 WLR 140; 3 All ER 930; [1990] 2 Med LR 67.

The court’s approach to the child’s best interests will necessarily be highly fact-specific and the courts have been slow to set definitive guidance on how to approach the ‘best interests’ test in this context. For example, in NHS Trust v MB [2006] EWHC 507Holman J said at paragraphs 106-107:

“…this is a very fact specific decision taken in the actual circumstances as they are for this child and today… My sole and intense focus has been this child alone”.

MacDonald J has provided a helpful summary of the legal principles in Manchester University NHS Foundation Trust v Fixsler & Ors [2021] EWHC 1426 (Fam):

“56 The court may grant a declaration declaring that treatment in accordance with the recommendation of the child’s doctors can take place, on the grounds that it is in the child’s best interests (see In re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421). The jurisdiction of the court to make such an order arises where a child lacks the capacity to make the decision for him or herself, in the context of a disagreement between those with parental responsibility for the child and those treating the child (An NHS Trust v MB (A Child Represented by CAFCASS as Guardian Ad Litem) [2006] EWHC 507 (Fam); [2006] 2 FLR 319). The court has no power to require doctors to carry out a medical procedure against their own professional judgment.

57.

As I have observed in previous cases, the legal framework that the court must apply in cases concerning the provision of medical treatment to children who are not “Gillick” competent is well settled. The following key principles can be drawn from the authorities, in particular In re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33 , R (Burke) v General Medical Council (Official Solicitor intervening) [2005] EWCA 1003; [2006] QB 273 , An NHS Trust v MB, Portsmouth Hospitals NHS Trust v Wyatt [2005] EWCA Civ 1181; [2005] 1 WLR 3995 , Kirklees Council v RE [2014] EWHC 3182 (Fam); [2015] 1 FLR 1316 and In re Gard (A Child) (Child on Life Support: Withdrawal of Treatment) [2017] EWCA Civ 410; [2018] 4 WLR 5 :

i.

The paramount consideration is the best interests of the child. The role of the court when exercising its jurisdiction is to take over the parents’ duty to give or withhold consent in the best interests of the child. It is the role and duty of the court to do so and to exercise its own independent and objective judgment.

ii.

The starting point is to consider the matter from the assumed point of view of the patient. The court must ask itself what the patient's attitude to treatment is or would be likely to be.

iii.

The question for the court is whether, in the best interests of the child patient, a particular decision as to medical treatment should be taken. The term “best interests” is used in its widest sense, to include every kind of consideration capable of bearing on the decision, this will include, but is not limited to, medical, emotional, sensory and instinctive considerations. The test is not a mathematical one, the court must do the best it can to balance all of the conflicting considerations in a particular case with a view to determining where the final balance lies. Within this context the wise words of Hedley J in Portsmouth NHS Trust v Wyatt (Southampton NHS Trust intervening) [2004] EWHC 2247 (Fam); [2005] 1 FLR 21 at [21] should be recalled:

“This case evokes some of the fundamental principles that undergird our humanity. They are not to be found in Acts of Parliament or decisions of the courts but in the deep recesses of the common psyche of humanity whether they be attributed to humanity being created in the image of God or whether it be simply a self-defining ethic of a generally acknowledged humanism.”

iv.

In reaching its decision the court is not bound to follow the clinical assessment of the doctors but must form its own view as to the child's best interests.

v.

There is a strong presumption in favour of taking all steps to preserve life because the individual human instinct to survive is strong and must be presumed to be strong in the patient. The presumption however is not irrebuttable. It may be outweighed if the pleasures and the quality of life are sufficiently small and the pain and suffering and other burdens are sufficiently great.

vi.

Within this context, the court must consider the nature of the medical treatment in question, what it involves and its prospects of success, including the likely outcome for the patient of that treatment.

vii.

There will be cases where it is not in the best interests of the child to subject him or her to treatment that will cause increased suffering and produce no commensurate benefit, giving the fullest possible weight to the child's and mankind's desire to survive.

viii.

Each case is fact specific and will turn entirely on the facts of the particular case.

ix.

The views and opinions of both the doctors and the parents should be considered. The views of the parents may have particular value in circumstances where they know well their own child. However, the court must also be mindful that the views of the parents may, understandably, be coloured by emotion or sentiment. There is no requirement for the court to evaluate the reasonableness of the parents’ case before it embarks upon deciding what is in the child's best interests. In this context, in An NHS Trust v MB Holman J, in a passage endorsed by the Court of Appeal in In re A (A Child) [2016] EWCA Civ 759; [2016] Med LR 427 at [34] , said as follows:

“The views and opinions of both the doctors and the parents must be carefully considered. Where, as in this case, the parents spend a great deal of time with their child, their views may have particular value because they know the patient and how he reacts so well; although the court needs to be mindful that the views of any parents may, very understandably, be coloured by their own emotion or sentiment. It is important to stress that the reference is to the views and opinions of the parents. Their own wishes, however understandable in human terms, are wholly irrelevant to consideration of the objective best interests of the child save to the extent in any given case that they may illuminate the quality and value to the child of the child/parent relationship.”

x.

The views of the child must be considered and be given appropriate weight in light of the child's age and understanding.”

These principles have been reiterated at appellate level. In In re A (A Child) [2016] EWCA Civ 759; [2016] Med LR 427 the Court of Appeal confirmed once again that, whilst requiring great sensitivity and care of the highest order, the task of the court in cases concerning disputes in respect of the medical treatment of children can be summed up by reference to two paragraphs from the speech of Baroness Hale in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67; [2014] AC 591 at para 22 , namely:

“Hence the focus is on whether it is in the patient's best interests to give the treatment rather than whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course they have acted reasonably and without negligence) the clinical team will not be in breach of any duty toward the patient if they withhold or withdraw it.”

And at para 39:

“The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude towards the treatment is or would be likely to be; and they must consult others who are looking after him or are interested in his welfare, in particular for their view of what his attitude would be.”

In the case of Gard, McFarlane LJ (as he then was) reiterated at para 112 that:

“As the authorities to which I have already made reference underline again and again, the sole principle is that the best interests of the child must prevail and that must apply even to cases where parents, for the best of motives, hold on to some alternative view.”

Whilst Article 2 of the ECHR is plainly engaged where life and death medical decisions are in question, there is no obligation to provide treatment that is assessed as being futile. In An NHS Trust A v Mrs M and An NHS Trust B v Mrs H [2001] 1 All ER 801, it was held by Dame Elizabeth Butler-Sloss, then President of the Family Division, that:

“Article 2… imposes a positive obligation to give life-sustaining treatment in circumstances where, according to responsible medical opinion, such treatment is in the best interests of the patient but does not impose an absolute obligation to treat if such treatment would be futile.”

Given the religious beliefs of Child Q’s parents, it is also necessary to reference paragraphs 81 – 82 of Fixsler v Manchester University NHS Foundation Trust and another [2021] EWCA Civ 1018 where Baker LJ (with the agreement of Carr LJ (as she then was) and Elisabeth Laing LJ) held:

“The family’s religion and culture are fundamental aspects of this child’s background. The fact that she has been born into a devout religious family in which children are brought up to follow the tenets of their faith is plainly a highly relevant characteristic of hers. Under s.1(3)(d), the court is required to have regard to the fact that Alta is from a devout Hasidic family which has very clear beliefs and practices by which they lead their lives and that, if she had sufficient understanding, she too would very probably choose to follow the tenets of the family religion. I agree with Mr Simblet that this is a central part of her identity – of “who she is”. It is unquestionably an important factor to be taken into consideration. But it does not carry pre-eminent weight. It must be balanced against all the other relevant factors.

None of the factors in the checklist has any presumption of precedence. The weight to be attached to each factor depends on the circumstances of the case and the final decision is that of the court. Whilst in an individual case the child’s wishes and feelings, and her background and characteristics, including the religious and cultural values of the family of which she is a member, may attract particular weight, in all cases they start with an equal value to that of all the other relevant factors.”

And lastly I note that at paragraph 85 of Fixsler it was said: “When considering the child’s assumed point of view, it is difficult if not impossible to attribute any views, including religious beliefs, to a very young child who has never had, nor will have, any cognitive understanding.”