FD24P00133 - [2025] EWHC 2032 (Fam)

Jurisdiction Following Abbasi

The Court in Abbasi considered in detail at para [54] – [82] the circumstances in which the High Court has jurisdiction to make (or continue) injunctions protecting the identities of clinicians and other hospital staff who are involved in the treatment of children when applications come before the Court in proceedings concerning the withdrawal of life sustaining treatment for those children. The jurisdictions arising from the Supreme Court’s consideration may, as is plain from paragraph [100] conveniently be distilled into the following three categories:

Pursuant to the court’s inherent parens patriae powers, and under its inherent jurisdiction to protect the administration of justice, where the injunction is necessary to protect the interests of the child.

Pursuant to the ‘Broadmoor jurisdiction’ (so called because it is established in the caseBroadmoor Special Hospital Authority v Robinson [2000] QB 775), where the injunction is necessary in order to prevent interference with hospital trusts’ performance of their statutory functions.

Where an injunction is necessary in order to protect the rights of clinicians and other hospital staff in tort, in proceedings brought or continued by those individuals in reliance on their rights. In principle, such proceedings can (in an appropriate case) be brought in a representative capacity.

The Court contemplated four distinct situations in which proceedings in relation to life sustaining treatment might come to an end, and the extent to which in each situation the court retains jurisdiction to make or continue injunctive relief:

[101.] As we have explained, proceedings of the present kind may end on the death of the child, if that occurs before the court has given its decision. Alternatively, the proceedings may end with a decision to grant the declaration sought, in which event the death of the child is likely to follow within a short time. A third possibility is that the proceedings may end with a decision to refuse the declaration sought, in which event the child will continue to receive life-sustaining treatment. A fourth possibility, albeit remote, is that the child may continue to live even if the declaration is granted and life-sustaining treatment is withdrawn. Accordingly, there are in broad terms two situations in which the question of jurisdiction may arise after the proceedings have ended: first, where the child has died, and secondly, where the child continues to live. We will consider each of those situations in turn, but devote more attention to the former situation, both because it is likely to be more common, and because it was the situation which arose in the cases before us.

In circumstances where the subject child dies, then beyond what the Supreme Court characterised as a ‘cooling off period’ jurisdiction is no longer available under the parens partriae jurisdiction. Since an injunction albeit made for the protection of the child, would have the effect of conferring protection also on the interests of the clinicians, the extension of the injunction for the cooling off period is justified on an equitable basis permitting clinicians to take, should they wish, their own steps to apply for continued protection - see para [66].

In Fatima’s circumstances the parens partriae jurisdiction remains available, since she continues to live, and falls within the third of the situations contemplated at [101]. Importantly she is also continuing to be treated by the Trust, and it is that which permits the applicants here to invoke the jurisdiction. See paragraph [111]: ‘Where the child continues to live after the proceedings have ended, the court retains its parens patriae jurisdiction. However, it could only be invoked by NHS trusts in order to justify the continuation in force of orders such as the Abbasi and Haastrup injunctions, or the grant of fresh injunctions, if they were continuing to care for the child.’ [emphasis added]

Whilst this Court is not considering a ‘cooling off’ period after a child’s death. the point of wider application made at [66] as to the desirability of having a fixed duration for the injunction remains. Within that context a ‘fixed’ duration must carry with it a quality of being an ‘identifiable’ period since the purpose of it is to allow those who may need to take action to know the time within which they have the opportunity to take it. It follows that in this case where there is no dispute as between the parties that the parens patriae jurisdiction is available, it is nevertheless important, as developed by Mr Davy KC in his oral submissions, to have an eye on the fact that, although all agree that there should be a continuance of injunctive relief until four weeks after Fatima is fully discharged, the date when that may happen is uncertain, dependant as it is on the progress of treatment and training. How then are those who are bound by the injunction to know when the four weeks have expired, and by the same token, those who may seek to apply for further injunctive relief on a different jurisdictional basis, to know the date by which they must do so? I shall return to this below.