FD24P00611 - [2025] EWHC 1042 (Fam)

I turn now to the legal framework for my decision. This has not been an area of dispute between the parties. Mr Mylonas is content to accept the account of the law set out by Mr Mant in his position statement. Mr Mant has referred me to a number of authorities but I will set out here the five point ‘milestones’ listed in paragraph 78 of Re Fixler [2021] EWCA Civ 1018 (to which Mr Osborne took me). These milestones, as that judgment makes clear, derive from another decision of that court, Wyatt v Portsmouth Hospital NHS Trust [2025] EWCA Civ 1181 (which was cited by Mr Mant).

“The approach to be followed by a judge determining an application for an order authorising the withdrawal of life-sustaining treatment of a child is well established in the case law. The “intellectual milestones”, as characterised by this Court in Wyatt v Portsmouth Hospital NHS Trust are as stated above:

1)

The judge must decide what is in the child’s best interests.

2)

In making that decision, the child’s welfare is the paramount consideration. The term “best interests” encompasses all welfare issues.

3)

The judge must look at the question from the child’s assumed point of view.

4)

There is a strong presumption in favour of the course of action which prolongs life, but that presumption is not irrebuttable.

5)

The judge must conduct a balancing exercise in which all the relevant welfare factors are weighed.”

Further, given the arguments in this case it is appropriate for me to highlight two other decisions Mr Mant drew to my attention, one a case decided by the House of Lords and one decided by the Supreme Court. The House of Lords case is Airedale NHS Trust v Bland [1993] UKHL 17, [1993] A.C. 789, and I have been referred to the speech of Lord Goff at 869:

“medical treatment or care may be provided for a number of different purposes. It may be provided, for example, as an aid to diagnosis; for the treatment of physical or mental injury or illness; to alleviate pain or distress, or to make the patient's condition more tolerable. Such purposes may include prolonging the patient's life, for example to enable him to survive during diagnosis and treatment. But for my part I cannot see that medical treatment is appropriate or requisite simply to prolong a patient's life, when such treatment has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition. It is reasonable also that account should be taken of the invasiveness of the treatment and of the indignity to which, as the present case shows, a person has to be subjected if his life is prolonged by artificial means, which must cause considerable distress to his family — a distress which reflects not only their own feelings but their perception of the situation of their relative who is being kept alive. But in the end, in a case such as the present, it is the futility of the treatment which justifies its termination.”

I acknowledge that in considering the context of these words it should be held in mind that Anthony Bland’s family supported the application for declarations.

The Supreme Court case is Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67, and I have been referred to it through Re A (A Child) [2016] EWCA Civ 759 by the words of King LJ at paragraph 31:

“Whilst its application requires sensitivity and care of the highest order, the law relating to applications to withdraw life sustaining treatment is now clear and well established. It can be summed up with economy by reference to two paragraphs from the speech of Baroness Hale in what is generally regarded as the leading case on the topic, notwithstanding that it related to an adult, against the backdrop of the Mental Capacity Act 2005. In Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67; [2014] AC 591 Baroness Hale said at paragraph 22:-

‘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 from paragraph 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 his closing Mr Mant returned to the law and in response to questions from me as to whether the observations of Lord Goff set out above fitted into balancing exercise or whether futility of treatment and lack of consciousness were sufficient of themselves to warrant withdrawal of treatment, he made clear that a balancing exercise was required. A balancing exercise is clearly consistent with the requirement of a ‘best interest’ test and as all counsel adopted this approach I shall not consider the law further, and shall adopt ‘balanced best interest’ as the test I must apply.