Indi Gregory: Judges prevent parents from appealing ruling that blocks transfer to Italy for treatment
4 November 2023 Issued by: Christian ConcernOn a Saturday morning, two Court of Appeal judges, Lady Justice Eleanor King and Lord Justice Peter Jackson, have thrown out the appeal of Indi Gregory’s parents without a hearing.
A stay has now been granted until 2pm on Monday afternoon, 6 November after which Indi will have her life-support removed.
Indi’s family are now planning on holding a peaceful protest outside the Queen’s Medical Centre in Nottingham tomorrow (Nov 5) from 12pm.
Lady Justice King has ruled against families in a number of high-profile end-of-life cases involving children, including Charlie Gard, Alfie Evans and Archie Battersbee.
Lord Justice Peter Jackson also sat on two Court of Appeal panels which rejected repeated appeals by the parents of Archie Battersbee, including the controversial decision to ignore the injunction from the UN Committee on the Rights of Persons with Disabilities not to withdraw life support while the case is considered by the Committee.
In a written order sent to the Hospital this morning, the judges ruled that the parents’ case over wanting to transfer their child for specialist treatment in Italy, rather than dying, was ‘unarguable.’
This is believed to be the first time that a parents’ appeal against an order to withdraw life-sustaining treatment from a child has been rejected by the Court of Appeal without a hearing.
Overriding parent consent
Supported by Christian Legal Centre, the family’s lawyers, Louis Browne KC and Bruno Quintavalle, had appealed the decision earlier this week of Mr Justice Peel on the grounds that he had ‘erred in law’ when ruling that he had jurisdiction to prevent Mr Gregory from exercising his parental rights to move Indi to Italy.
They argued in the application for permission to appeal that despite permission given to a UK hospital to withdraw treatment, the parents can still provide the consent for further treatment to another hospital which is willing to provide it.
They argued that the Judge ‘misdirected himself’ in ruling that the application of Indi’s rights under Article 5 of the European Convention of Human Rights, the right to liberty and security of person, was subject to a: ‘best interests determination and proportionality assessment which was and to a proportionality assessment in circumstances where the deprivation of liberty imposed by the court does not fall into any of the categories for which such restrictions to liberty are permitted under Article 5(1).’
Furthermore, they argued that the Judge erred in law by ruling that there is no compelling new medical evidence to justify revisiting [his] decision’ and by refusing to admit expert evidence backing the family’s case.
The legal argument stated that:
‘The refusal to permit the transfer to Italy – which the parents desire and to which they gave their consent – was made in the absence of any legitimate jurisdictional basis and was therefore unlawful.’
And that:
‘The expedient of making a best interests declaration which then leads, as in the present case, to the court refusing consent to the continuing treatment of the minor cannot prevent the parents, who retain parental responsibilities, from stepping in and supplying the consent in the face of the court’s own refusal to provide it. The mere fact that in a particular case involving a minor no consent to treatment is provided by the court does mean that a power has been exercised which prevents parents from supplying that consent themselves.’
However, Lady Justice King and Lord Justice Peter Jackson blocked the appeal from being heard on the grounds that it had no prospect of success.
The offer from Italy
On November 2, Mr Justice Robert Peel ruled it was in Indi’s ‘best interests’ to die in the UK rather than be given a chance of further treatment at the Bambino Gesù Paediatric Hospital in Rome.
The treatment would be funded by the Italian government with no expense to the NHS or UK taxpayer.
Indi is battling a rare mitochondrial disease and her parents, Dean Gregory and Claire Staniforth, from Ilkeston in Derbyshire, have maintained that despite her disability, she is a happy baby who responds to their touch. They say there is also evidence of improvement in her condition.
At an urgent hearing on 31 October before Justice Peel, lawyers representing the family argued that denying them the right to move their child would be a breach of Indi’s Article 5 rights under the European Convention of Human Rights (ECHR.)
Article 5 of provides that everyone has the right to liberty and security of person.
A specialist Air Ambulance service is prepared to work with the family and clinicians at the Queen’s Medical Centre in Nottingham to facilitate the transfer to Italy. However, in order to undertake the transfer, the ambulance service would need to carry out a risk assessment with full cooperation from the treating clinicians, which the clinicians have refused to do.
Hospital bosses have decided that it is in Indi’s ‘best interests’ to die and to not have the chance of further treatment and will not deviate from that position despite new medical expert evidence, backed by the Italians, that Indi’s condition is treatable.
‘I wouldn’t wish this on anybody’
Father of Indi, Dean Gregory, 37, said: “We don’t see how it’s in Indi’s best interests to be taken to a hospice or home to potentially pass away when we’ve got this truly beautiful offer from Italy and a hospital who are willing to help and treat her.
“We’ve got two experts who both agree it’s in her best interests to have these treatments.”
Mr Gregory said it had been a “stressful” experience which he “wouldn’t wish on anybody”.
He added: “You should have more rights as a parent for your child. Doctors don’t always get it right. You’ve got doctors arguing – specialists in her condition – and it makes you think if it’s in Indi’s best interest or for the trust’s best interests.
“It makes me feel embarrassed to be British, when you have these other countries willing to help and here they won’t even help her.”
Mr Gregory said Indi is “very responsive” when not heavily sedated.
‘Law is there to protect’
Andrea Williams, chief executive of the Christian Legal Centre, said: “The law is there to protect life and the most vulnerable in our society. What is happening in this case sets a very worrying precedent with regard to that principle.
“It is very concerning that a child can be held against the parents’ wishes when they have alternative treatment available. Transferring Indi to Italy involves no cost to the taxpayer or the NHS. What is it at the heart of this case that is preventing Queen’s Medical Centre from allowing Indi to be transferred to Rome?
“We need reform. We need families to be free to appoint alternative doctors and medical experts with equal access to the patient’s records. We need proper mediation at the earliest stage rather than parents being dragged into unfamiliar court settings and facing down taxpayer-funded legal teams.”
