Archie Battersbee: Parents submit 11th hour application to ECHR

Just before 9am today (3 August), the parents of Archie Battersbee have dramatically submitted an 11th hour application to the European Court of Human Rights (ECHR).

Refused permission to move to a hospice

The application follows news that Barts Health NHS Trust lawyers last night told Archie family that he cannot be moved to a hospice, and that if an application to the ECHR is not received by 9am, life support would be withdrawn at 11am.

Responding to the news, Archie’s mother Hollie Dance responded: “We are very relieved, we are having to battle every decision with the hospital. We now hope and pray that the ECHR will look favourably on the application. We will not give up on Archie until the end. Heartbreakingly, the hospital Trust have told us that we cannot move Archie to a hospice.” She went on to describe how it was the Trust that was forcing the rush through the courts, saying that an application to the ECHR had to be submitted at 9am, giving Archie’s family’s lawyers “no time to prepare it.” She continued: “They also demand to see a copy of it, which they have no right to see. However if this does not happen, they say they will withdraw treatment at 11am. This is cruel and we are absolutely appalled.”

The family are also receiving offers from doctors abroad to treat Archie.

Health and Social Care Minister claims UN measures ‘not binding’

Yesterday afternoon (2 August) the Supreme Court refused permission for the family to appeal following an intervention from the Secretary of State for Health and Social Care, the Rt. Hon Steve Barclay.

Government lawyers submitted on his behalf to the Supreme Court that the interim measures injunction issued by the United Nations Committee on the Rights of Persons with Disabilities (UN CRPD), which said Archie’s treatment should not be removed, are ‘not binding’ under international law. They argued that “the notion that interim measures are binding has not been accepted as a facet of customary international law. There is no such consensus. On the contrary, the status of the committees’ decisions is a subject of some controversy.”

The government has made these submissions despite the UK having joined the Optional Protocol to the Convention on the rights of persons with disabilities, which enabled the UN CRPD to ask the UK government to delay the withdrawal of life support while a complaint is investigated.

The family argued that stopping treatment would be in breach of the UK’s obligations under Articles 10 and 12 of the UN Convention on the Rights of People with Disabilities, and Article 6 of the UN Convention on the Rights of Children.

The Rt. Hon Steve Barclay’s position has come as a surprise to the mother of Archie, Hollie Dance. On Saturday (31 July) Ms Dance had written an urgent open letter urging him not to allow the withdrawal of Archie’s life-support following the UN CRPD intervention. In response the same day he wrote:

“As a parent myself I cannot begin to imagine the pain and anguish you have been experiencing in recent weeks. I have considered this matter very carefully over the weekend , and I have asked that the Government Legal Department writes to the High Court on my behalf…As you can see this letter requests that the High Court gives the UN CRPD’s letter its full consideration as a matter of urgency.”

The intervention follows a last-minute application from Archie’s parents yesterday to the Supreme Court. Following a Court of Appeal ruling on 1 August, bosses at Barts Health NHS Trust had said that they would begin withdrawing Archie’s life-support from 12pm if an application to the Supreme Court was not made.

Dramatically, on Sunday evening (July 31) the Government Legal Department, following the UN CRPD intervention, had sent Archie’s case back to the High for ‘urgent consideration’. However, the government themselves refused to intervene, which was used against the families’ submissions in the subsequent urgent Court of Appeal hearing before Sir Andrew McFarlane.

On Monday, the President of the Family Division, Sir Andrew McFarlane, rejected the interim measures injunction from the United Nations Committee on the Rights of Persons with Disabilities (UN CRPD) which said Archie’s life-support should not be removed and reinforced that it is in Archie’s ‘best interests’ for treatment to end.

The family argued that stopping treatment would be in breach of the UK’s obligations under Articles 10 and 12 of the UN Convention on the Rights of People with Disabilities, and Article 6 of the UN Convention on the Rights of Children.

No proof that Archie is ‘brain stem dead’

Archie’s family and legal team wish to emphasise that in June, the Court of Appeal overturned the finding that Archie is ‘brain-stem dead’ as no doctor was prepared to diagnose Archie as brain dead.

The original High Court ruling was believed to be the first time that someone had been declared ‘likely’ to be dead based on an MRI test.

Parents and lawyers have always acknowledged the severity of Archie’s injuries, but they have not given up hope and want him to have more time.

Please continue to pray for Archie and his family.