Private Law
September 2022

Summary:

Moor J granted permission to appeal the decision of HHJ Gibbons on the basis that the court utilised the wrong test for disagreeing with an expert but concluded, upon granting permission, that the appeal should be dismissed.

Background:

F is a national of country E and Z, M is a national of country Z and F. Both parties met in London in 2010 and were married in March 2012. The parties have two twin girls, A and B; A was diagnosed with a very rare disease in 2016 for which she received specialist treatment. A is presently in remission but the prognosis of long-term survival is rare and so A may need further treatment in the future.

The marriage between F and M experienced some difficulties – in October 2020 M began a relationship in country Z with TT. F applied for divorce and applied for a joint lives with order; the court refused F’s application for equal shared care.

On 27 May 2021, M applied for permission to permanently remove the children to country Z – a report was directed from an independent social worker to consider the allegations of domestic abuse and coercive control raised by the mother within the previous children act proceedings, the parenting capacity of both parents and the wishes and feelings of the children. The ISW recommended that M should be allowed to relocate if findings were made of coercive and controlling behaviour.

HHJ Gibbons found that the ISW’s report strayed across the line and accepted much of what M said, despite that much of what was said was in dispute but did not accept that the ISW failed to weigh in the impact on F of a disruption in his relationship with the children. The children’s wishes veered towards relocating to country Z but they feared that they would not see F as much; the ISW stated that the court should not attach much weight to their views as the children had no real concept of the consequences of relocating.

When reaching her determination, HHJ Gibbons stated that she would need compelling reasons to depart from the recommendations of the ISW and stated that the balance fell narrowly in favour of granting permission to M to relocate to country Z with the children as that is where the children’s welfare would be best met.

F appealed on five grounds:

1. It was procedurally and substantially unjust, as well as wrong, for the judge to place any weight on the ISW’s assessment and recommendation due to significant flaws with her approach to the case, given a perceived bias towards M, pre-judging the issue of domestic abuse and failing to conduct a holistic welfare evaluation;
2. That the court was wrong to follow the recommendation of the ISW having accepted that her welfare evaluation had been wrongly dominated by the issue of bias and domestic abuse;
3. That the court erred and was wrong in the holistic analysis of the children’s welfare in that: excessive weight was placed on the impact of M of a refusal of permission and the recommendations of the ISW; insufficient weight was placed on the impact of F if permission was given, the emotional harm to the children on being deprived of time with F and the change of circumstances; the assessment that F could spend time with the children in country Z during term-time was wrong; and it was wrong to trust M to promote a healthy and positive image of F if a move to country Z was made;
4. That the court was wrong to rely on the ISW’s recommendations which had not applied the new circumstances of the case; and
5. That the court was wrong to determine that the children were to be removed permanently to country Z and have contact with F once per month in term-time and for half of school holidays, and also wrong to change her mind about the need for a mirror order in country Z as a precondition of permanent removal to country Z.

Decision:

Moor J considered the law on appeals, the skeleton arguments filed on behalf of the parties and assessed the judgement of HHJ Gibbons. Moor J considered that the judgement was an extremely careful and thorough documents produced by a very experienced judge and that, save for one possible exception, there are no errors of law. It was also confirmed that the test for permanent relocation was set down correctly and the court did undertake a fair and adequate assessment of the evidence and that the court did not place undue reliance on the evidence and recommendations of the ISW. Moor J concluded that the conclusion that HHJ Gibbons arrived at in paragraph 125 could not be challenged.

When considering the individual grounds of appeal, Moor J confirmed that HHJ Gibbons was critical of the ISW, accepting that the ISW’s report would appear biased to F, but then also setting out a number of counter balancing factors; Moor J was clear that HHJ Gibbons had addressed the allegation of bias and determined that the test for bias was not and could not be satisfied.

Moor J went on to accept that HHJ Gibbons was wrong to say that she could only disagree with the ISW if there were compelling reasons to do so and that, as per Re C, it is clear that only ‘reasons’ are required to disagree with the recommendations of an expert; however, the court was clear that this error did not have a material impact on the outcome as HHJ Gibbons made entirely proper findings and considered the ISW’s evidence from every perspective.

Moor J then went on to consider grounds 2 to 5 of F’s grounds of appeal and confirmed that all of those grounds should be dismissed and that it was unfair to criticise HHJ Gibbons on the findings made as she was entitled to make those findings on the evidence available.

Permission to appeal was granted in relation to ground 1, solely on the basis that the test for disagreeing with an expert witness was not correctly applied, but then Moor J dismissed F’s appeal. Moor J also refused permission to appeal on grounds 2 to 5.

Summary:

Poole J concluded that it would not be in A’s best interests to continue to receive mechanical ventilation following the conclusions of brain stem death, even though A made some attempts to breath following the medical professionals reaching that conclusion.

Background:

A was born in April 2022. On 10 June 2022, he was found in a floppy and limp condition at home; an ambulance was called but A had suffered from a cardiac arrest and was starved of oxygen for 32 minutes. Following various medical tests, it was confirmed that A had suffered a primary injury of intracranial bleeding and severe hypoxic ischaemia; further investigations also revealed multiple fractures and retinal haemorrhages.

Brain stem testing was performed on 17 to 19 June 2022 and death was declared on 19 June 2922. A’s parents would not consent to the discontinuation of mechanical ventilation and requested a second opinion. Two further doctors from a different NHS Trust performed brain stem tests on 22 June 2022 and confirmed the declaration of death. A’s parents still refused to consent to the withdrawal of ventilation and so the Trust made an application for a declaration that A was dead.

An initial directions hearing was held on 28 June 2022. A few days later on 1 to 3 July 2022, A was seen to attempt to breathe – the Trust rescinded the determination of brain stem death and applied to amend the application to seek a declaration that it was in A’s best interests to withdraw treatment. The Trust continue to seek a declaration that it is in A’s best interests to withdraw mechanical ventilation; this is supported by the guardian but opposed by the parents.

Poole J explained that there were three unusual features of this case:

1. That A was found to have met the tests for brain stem death but then following that was found to intermittently breathe;
2. That legal proceedings had been protracted by the amendment of the application and then the appeal; and
3. That investigations into A’s injuries raised concerns that they may have been inflicted non-accidentally – the police interviewed and bailed both parents and an interim care order was made in favour of the local authority, who were invited to intervene within these proceedings.

Decision:

Poole J confirmed that the reliability of brain stem death testing was not an issue for determination by this court but that the history of determination of brain stem death followed by rescindment of that determination may be relevant to the court’s assessment. It was also confirmed that concerns that A’s injuries were inflicted non-accidentally would not affect the determination of what is in A’s best interests.

The court heard evidence about A’s deterioration since being admitted to hospital due to the reduction in living brain tissue. It was confirmed that the correct tests were performed regarding brain stem death and that there were no errors made within those tests; it was also confirmed that A would not meet the criteria for brain stem death now. Poole J explained that there were few case studies reported worldwide in which breathing followed a determination of brain stem death in both adults and children and that the onset of breathing did not herald good recovery for those patients.

The court heard evidence from the treating clinicians, the clinicians who gave the second opinion and the independent expert. It was agreed by all clinicians and the expert that A was not capable of recovery and that it was not conceivable that A would regain consciousness, given the extensive and irreversible brain tissue loss. The court heard moving evidence from the parents and also heard evidence from the guardian.

Poole J clearly set out the applicable legal principles for children of A’s age and the balancing act required between article 8 rights and human dignity. The court confirmed that the court had a duty to make this decision and needed to assess what is in A’s best interests in light of all of the evidence and views before the court.

Poole J concluded that treatment is futile in the sense that it will not bring about an improvement in A’s condition and that continued intervention would only make a difference to the quantity of A’s life and not the quality of A’s life. The court made a finding that A probably does not feel pain and so needed to consider whether the burdens of treatment should be taken into account due them not causing pain/discomfort to A. Poole J also confirmed that the evidence overwhelming confirmed that A does not and will not experience pleasure. Poole J concluded that the burdens of A’s current life outweigh the benefits to A. Poole J also confirmed that as A is in fact living, the rebuttable presumption that steps should be taken to preserve life should apply.

The court explained that as long as A is kept alive that he will suffer more burdens than benefits and so the choice the court is required to make is between prolonging the burdens of A being kept alive against the withdrawal of mechanical ventilation, which will bring an end to his burdens. Poole J concluded that it would not be in A’s best interests to continue to receive mechanical ventilation and so made the declarations as sought by the Trust and approved the agreed palliative care plan.