Abstract
AbstractIn Raqeeb v Barts NHS Foundation Trust, the latest of a number of cases concerning whether a child can travel abroad for treatment that doctors in the UK do not consider to be in their best interests, the High Court held that the hospital had acted unlawfully by failing to consider the child's rights under EU law when refusing to allow her to travel. Although this derogation could be justified on public policy grounds, as such treatment was, on the facts, in her best interests, no further interference with her rights was justified. In making this finding, the court recognised the ‘stress’ that such a case placed on the best interests test, lending weight to the argument for moving instead to a risk of significant harm threshold for judicial intervention in parental decisions, which better accounts for legitimate differences of value and strikes a better balance under Article 8 ECHR.
Highlights
Raqeeb v Barts NHS Foundation Trust & Anors1 (Raqeeb) is the latest in a line of cases in which parents and a hospital have disagreed over whether or not a child ought to be permitted to travel abroad for treatment that doctors in the United Kingdom do not consider to be in the child’s best interests
Having dealt with this aspect of the case, MacDonald J went on to conclude that, on the facts, further treatment would be in Tafida’s best interests and he authorised her transfer to Italy. He recognised the ‘stress’ that cases such as this placed on the best interests test, in the absence of the child experiencing pain or suffering. We agree that such cases challenge the current best interests approach, revealing its limitations, and argue that they demonstrate the need to move away from a best interests threshold for judicial intervention in parental decisions, and to adopt instead a risk of significant harm test
As well as better accounting for legitimate differences of value in disputes of this kind, and striking a better balance under Article 8 of the European Convention on Human Rights (ECHR), this would better reflect the fact that in this case, as in Gard4 and Evans,5 it was the potential harm to the child that dominated the assessment of whether further treatment was in their best interests
Summary
Raqeeb v Barts NHS Foundation Trust & Anors (Raqeeb) is the latest in a line of cases in which parents and a hospital have disagreed over whether or not a child ought to be permitted to travel abroad for treatment that doctors in the United Kingdom do not consider to be in the child’s best interests. It concluded that even had the hospital done so, it would have found such a derogation from her rights to be justified, and so no remedy was necessary Having dealt with this aspect of the case, MacDonald J went on to conclude that, on the facts, further treatment (in the form of a tracheotomy and continued ventilation) would be in Tafida’s best interests and he authorised her transfer to Italy. As well as better accounting for legitimate differences of value in disputes of this kind, and striking a better balance under Article 8 of the European Convention on Human Rights (ECHR), this would better reflect the fact that in this case, as in Gard and Evans, it was the potential harm to the child that dominated the assessment of whether further treatment was in their best interests
Sign-in/Register to view highlights & summary Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
