FD25P00518 - [2025] EWHC 2247 (Fam)

The Trust submitted the evidence demonstrates that Baby J would be likely to die if the mechanical ventilation is removed, although this was not certain. The continued mechanical ventilation was futile, as there was no prospect of any recovery from the brain injury. The continued mechanical ventilation was burdensome because of its invasive nature and because it caused pain and discomfort which would increase as Baby J matures. He feels pain and discomfort. He is at significant risk of having no sensory awareness, being blind, deaf and possibly unaware of even the comfort of a cuddle. He finds it painful to receive suctioning which happens frequently, and being handled and receiving blood tests are painful. He will be very profoundly disabled all his life. The burdens far outweigh the benefits. This is the unanimous view of the treating neonatal team. It is the view of the independent second opinion doctor, Dr R. No family member or friend of Baby J or the mother supports continued treatment. Mr Hallin’s position statement concludes:

“The Court will recall the applicant Trust’s position has been (and remains) that long term invasive ventilation is not an option that the applicant is offering in this case, as such treatment would be futile, is not clinically indicated and would in the circumstances be considered unethical. There is now unequivocal and overwhelming evidence from the treating team and the second opinion doctor that it is in Baby J’s best interests to be extubated as soon as is practicable, in a planned way, and to receive palliative care...”

The local authority neither consents to, nor opposes, the relief sought. It’s helpful position statement states:

“There is a strong presumption in favour of trying to preserve life. Yet the medical evidence seems to all point in one direction. Brain function for this child now and in the future is exceedingly limited. We are told that maintaining ventilation is futile. We are told that Baby J is starting to feel pain, and the Local Authority was asked to agree to an increase in morphine. This is an incredibly unhappy and sad case. The Local Authority has debated at all levels what is best for this baby. The Local Authority does not want suffering for Baby J, we are being told that whatever happens this boy’s life is the bleakest.”

The Official Solicitor on behalf of the mother is also neutral on the application and is not able to either consent to or oppose the relief sought. The Official Solicitor accepts Dr N’s evidence that the mother lacks capacity to make a decision how to treat Baby J. It is also accepted there is unlikely to be sufficient improvement in the mother’s functioning. The Official Solicitor recognised there could not be a further adjournment to permit more time for the mother’s functioning to improve. The Official Solicitor accepted that the mother’s views could never be determinative of the application for relief for Baby J. Her solicitor visited her to elicit views on 27 August 2025. Her wishes and feelings remain unclear. I am reminded the evidence is that the mother wanted a baby and did not intend to cause Baby J intentional injury or harm. Mr Howard’s helpful position statement observes the neutrality of the Official Solicitor’s position but he submits as follows:

“[T]he touchstones for the Official Solicitor in this difficult decision for the court are:

a.

Dr R’s 2nd opinion that “In my independent expert opinion, the medical evidence is consistent and overwhelming: Baby J has sustained a catastrophic hypoxic–ischaemic brain injury, leaving him with no realistic prospect of meaningful recovery. The continuation of invasive intensive care would serve only to prolong his suffering. The course most consistent with his best interests is withdrawal of intensive care and provision of palliative comfort-focused support ...”

b.

The neurological examinations on 24 August 2025: “Baby J was unresponsive, with eyes closed and no reaction to voice or pain. He was profoundly hypotonic, lying in a frog-like posture. Deep tendon reflexes were absent, with only distinct ankle clonus on stimulation. Palmar grasp was absent and plantar grasp weak on the right only. He showed no facial movements, no gag or rooting reflex, and no protective responses to suction despite copious secretions. Pupils were small and equal; there was no visual fixation or auditory response. Spontaneous activity was limited to reflex withdrawal and abnormal posturing, with occasional lip-smacking, ET tube sucking, hiccups, and clonus. No seizures were observed.”

c.

That doctor’s opinion, based on the neurological examinations he has undertaken, of the severity and location of Baby J’s brain injury, involving the basal ganglia and brainstem, being associated with very poor prognosis; of there being no realistic possibility of meaningful neurological recovery; and the burdens on Baby J of the interventions that would be necessary to sustain his life, particularly in the context of the opinion that, “Importantly, any survival in this context would not be accompanied by awareness or quality of life, but would represent continued existence in a state of profound neurological injury.”

d.

That 2nd opinion being consistent with the opinion of Dr G (a member of the treating clinical team), who opines that “if Baby J is able to breathe and survive, it is still highly likely that he will survive with severe disabilities. He might not be able to see or hear, he might not be able to swallow or manage his secretions. He might be dependent on gastrostomy feeds for his nutrition. He might not be able to walk or talk, in which case he will be wheelchair dependent. He might have some combination of these disabilities in any combination or all of them.”

e.

The list of burdens of ongoing treatment set out by Dr G.

f.

The opinion of Dr G when considering the relevant RCPCH guidance that Baby J might come under Category 1C or if he survives Category 2C.

g.

Importantly, in the context of that medical evidence, the views of all family members who have been asked by professionals: all say that Baby J should be relieved of his suffering and his treatment ended.”

The Guardian’s position statement filed on the evening before the hearing began sought an adjournment. It was submitted that:

“At the same time, given the exceptional nature of this case, the Guardian is concerned that a fundamental and potentially irreversible decision is about to be made about Baby J in very short order: a week. The Guardian has quite properly sought advice from both her CAFCASS service manager and the Service Manager at the High Court CAFCASS Team. Having done so, she is clear that the usual procedure in cases such as these is for a full welfare analysis, including a balancing exercise in favour and against the course proposed by the applicant, including the proposal for what should happen if Baby J were to survive for longer than hours or days. The Guardian has conscientiously carried out some work already, but given the complex nature of the evidence, the Guardian asks for more time to reflect on the evidence, and the literature provided by the medical witnesses: the article relied on by Dr G was not provided (although obtained via counsel) and what appears to be a lengthy set of articles were served this afternoon. The Guardian has simply not had any time to consider these and her view is that all relevant information should be considered by her in order to provide a balanced analysis and ultimately, to assist the Court.”

On the morning of the hearing Ms Johnson made clear the Guardian no longer sought an adjournment. Her final submission was neither to consent to, nor oppose the relief sought by the Trust.