This afternoon, the Secretary of State for Health and Social Care, the Rt. Hon Steve Barclay, has intervened in the case of 12-year-old Archie Battersbee calling on the families’ urgent permission to appeal to the Supreme Court to be refused.
Government lawyers have 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.
Government lawyers say 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 at 12pm today to the Supreme Court. Following a Court of Appeal ruling yesterday (August 1), 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.
Yesterday, 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 Court of Appeal ruling was made despite the UK having joined the Optional Protocol to the Convention on the rights of persons with disabilities, which enabled the UNRPD 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.
Responding to the news of the government intervention, Archie’s mum, Hollie Dance said: “At first, we were relieved to hear that the government was going to intervene but having seen what they have had to say we feel so let down, even betrayed.
“No authorities, other than the UN CRPD have shown any compassion or understanding to us as a family.
“We want to say clearly, despite reports that Archie is ‘brain-stem dead’, that no medical professional has ever been able to prove that this is so.
“We as a family will keep fighting and want to say thank you for all the prayers and support we have received.”
Andrea Williams, chief executive of the Christian Legal Centre, said: “When there are international protocols in place on issues as important as a person’s right to life, we would expect the government to consider very carefully its obligations. Its response appears to simply fall in line with its domestic courts rather than to address its international obligations and the serious legal and moral issues raised in this case.”
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.