FD25P00518 - [2025] EWHC 2247 (Fam)

As matters have progressed from the hearing on 22 August 2025 to the conclusion of the hearing on 28 August 2025, no party submits that a further adjournment is necessary and no party now seeks to oppose the relief sought by the Trust. I am entirely clear there could be no further delay in decision making for Baby J. What has befallen Baby J and his mother is a tragedy. Whilst it has been necessary to briefly delay decision making for Baby J to permit assessment of his mother’s capacity to decide on her son’s medical treatment, that could only ever be for a short period. As has been made clear in the case law, the views of parents fall to be considered within the analysis of what is in the child’s best interest but they are not determinative.

I do not know what Baby J’s mother’s views are in respect of whether he should continue to receive mechanical ventilation. I have read with interest the helpful evidence gathered from the mother’s family and partner/friend. I need not determine whether what they say is correct about her views. Irrespective of what she may previously have said, she may have had a different view when holding Baby J in her arms. I proceed to determine the best interests analysis not knowing what her views are. There is no violation of her Article 8 ECHR right to respect for family life in circumstances where the court must determine her son’s welfare best interests urgently.

I am satisfied that the evidence demonstrates the wider family agree with the position taken by the applicant Trust. Rightly they do not want Baby J to suffer.

Baby J is only twenty days old. He is a tiny, vulnerable baby. He has met his mother only very briefly. He has not met his father. He has not been with his siblings. He has spent some time with his wider family and his mother’s partner/friend. He has received some cuddles from them and from the nurses. He has been fed by nasogastric tube. His life has been short. His life has been limited by his profound disabilities. Despite this, my starting point is to weigh heavily in the best interests balance his precious life, however short and however limited. I unhesitatingly agree with Baker J (as he then was) that: "The principle of the right to life can be simply stated but of the most profound importance. It needs no further elucidation. It carries very great weight in any balancing exercise.' (Footnote: ¹)

Baby J’s life has been one lived in a noisy and disruptive neonatal intensive care ward. He has been taken between hospitals for necessary examinations and tests. He has an unpleasant nasogastric tube in his nose. He has a painful plastic tube in his delicate, soft chest. It is not clear whether he can see or hear. His awareness is at a very low level.

I am satisfied he feels pain and is regularly in pain or discomfort. I accept Dr G’s careful evidence that his little body arches in pain. That he feels pain when he receives blood tests. He feels discomfort when handled. That when he is gently pinched he feels it and tries to move his leg away. I conclude he finds the one to two minutes of suctioning every two hours a discomfort. I accept Dr G’s evidence that as his body matures, his pain will increase. I accept his morphine doses have had to be doubled already, and he is only twenty days old. Dr G is the treating clinician and observes him regularly. Dr R saw him only once and was mostly guided by Baby J’s facial expression. I also note the evidence of the neonatal nurses’ distress in respect of the burdens on Baby J of continuing to be ventilated and treated in intensive care. They are highly experienced and they are upset and questioning because they sense and feel Baby J’s distress.

I therefore accept the Trust’s evidence that continued mechanical ventilation is a burden to Baby J.

I am also satisfied that the clear evidence from the MRI and EEG combined with the observations over the last twenty days and as interpreted by the two clinical witnesses, points to the fact Baby J will make no improvement in his brain function. His Hypoxic-Ischaemic Encephalopathy (HIE grade 3) has left him with profound disability from which he will not recover. No clinicians gave evidence that there were doubt about this or that further tests or examinations were being necessary before a prognosis could be reached.

Whilst the mechanical ventilation is not entirely futile, because it maintains Baby J’s life, it is futile as a treatment as Baby J’s brain injury cannot improve. The small changes such as opening his eyes, do not represent evidence of improving brain function. They are simply a sign of gestational development. As Dr R put it in oral evidence, Baby J is gaining weight but he cannot gain strength.

The evidence before me, is that there is a high risk he will be blind and deaf and possibly without any sensory awareness. He will be physically profoundly disabled and would need extensive and painful operations. He will most likely have an unsafe swallow and would receive nutrition and hydration by artificial means.

Given the unchallenged evidence and the prognosis that follows, mechanical ventilation traps Baby J in a life without stimulation or pleasure whilst permitting him to languish in pain and discomfort without the means by which loved ones may comfort him. This is a life devoid of quality. I agree with the Trust the treatment is futile and burdensome. I understand why the doctors say the point has been reached that continued mechanical ventilation is unethical.

I have tried hard to apply Aintree to Baby J’s situation. I have tried to “put [myself] in the place of the individual patient and ask what his attitude towards the treatment is or would be likely to be.” That is an almost impossible task. There are no loved ones who have known Baby J and who can tell me about him. Seeking out his best interests in the widest sense and going beyond the medical is difficult. Unquestionably and uncontroversially life with disability is dignified. The question for the court is not whether Baby J’s life with disability is of value; the question is whether the continued ventilation is or is not in his best interests. The determination of the underlying intensely child specific facts must be checked against the key tests of burdensomeness and futility. This plainly leads to the conclusion that continuing to subject Baby J to his current regime is wholly contrary to his best interests. I reach this conclusion, accepting the evidence that the withdrawal of mechanical ventilation is likely to lead to his death. This outcome is not, as explained above, a violation of Baby J’s Article 2 ECHR rights.

Mechanical ventilation is futile as it will not improve his catastrophic brain injury which leaves him devoid of meaningful human functions. Mechanical ventilation is burdensome as the ventilator, NG tube, suctioning, blood tests and the whole apparatus of intensive care visit upon him regular pain and discomfort. I can detect little if any evidence of pleasure, positives, benefits other than continuation of life itself. Whilst I value that highly, taking all the factors in account as widely as I am able and looking at the matter as best I can from Baby J’s perspectives, mechanical ventilation is not in his best interests.

If there was any doubt in my mind, Dr G’s evidence that the Royal College Guidance at Category 1C likely applies to Baby J’s situation, and if not then category 2C applies provides the wider comfort that what is being proposed is entirely consistent with clinical good practice to treat seriously ill babies. This Guidance comes with a foreword from the then President of the Royal College of Paediatrics and Child Health, Hilary Cass. It has been applied by clinicians for ten years and frequently referenced by this court.