HK (Serious Medical Treatment) (No.3) [2017] EWHC 2991 (Fam)

This judgment was delivered in public but it is ordered that in any published version of the judgment no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment shall be identified by name or location and that in particular the anonymity of the child and members of his family must be strictly preserved.

Case No FD17P00312

[2017] EWHC 2991 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

IN THE MATTER OF THE SENIOR COURTS ACT 1981

AND IN THE MATTER OF HK (SERIOUS MEDICAL TREATMENT) (No.3)

Courtroom No. 45

High Court of Justice Family Division

Venue Royal Courts of Justice

Date Friday, 7 th July 2017

Strand

London

WC2A 2LL

Before

THE HONOURABLE MR JUSTICE BAKER

B E T W E E N:

Between

AN NHS HOSPITAL TRUSTApplicant

GM (1)Respondent

DK (2)Respondent

HK (by his children’s guardian) (3)Respondent

Transcript from a recording by Ubiqus

61 Southwark Street, London SE1 0HL

Tel: 020 7269 0370

legal@ubiqus.com

Peter Boyce (solicitor, the NHS Trust) for Applicant

Edward Devereux QC and Edward Bennett (instructed by Dawson Cornwell) for First Respondent mother

Deirdre Fottrell QC and Alev Giz (instructed by Philcox Gray) for Second Respondent father

Melanie Carew (Cafcass Legal) for child, by his children’s guardian

George Thomas (instructed by the Metropolitan Police Solicitor) for police

Hearing Hearing dates: 6 th and 7 th July 2017

JUDGMENT

[1]This is a further judgment in the tragic case concerning H, a 14-week-old baby who has suffered catastrophic brain damage and now lies critically ill in a paediatric intensive care unit in hospital.

[2]Late last Friday night, 30 June, I made an emergency order concerning his medical treatment following a telephone hearing. On Monday this week, 3 July, I made a further order concerning other aspects of his treatment.

[3]The case came back before me yesterday in accordance with case management directions given at the outset of the proceedings to determine the principal issue, namely, whether this Court should authorise the removal of his ventilation tubes, a course of action that will very probably lead to his death.

[4]In addition, there are two other issues which have arisen in recent days which require a decision of this Court - first, the scope and terms of the reporting restrictions order limiting reports in the media of some of the details of this case, in particular the information identifying H and his parents and, secondly, whether this Court should make any order restricting the actions of the police at H’s bedside. The former is an issue which commonly arises in these cases. The latter is an issue which, so far as I am aware, has not been previously considered in family proceedings hitherto. Background

[5]I take my summary of the background largely from the earlier judgment delivered last Friday.

[6]The parents of H come from the Democratic Republic of Congo. Their first language is French and they speak little English.

[7]H was born by caesarean section at 41 weeks. He was a healthy baby who initially gave no cause for concern and was seen regularly by the health visitor. On 25 May, he had his first vaccinations at his eight-week check, as all babies do.

[8]The mother’s case is that, shortly after the vaccination, she became concerned about his condition and took him to the doctors and the health visitor the following day. Then, according to the mother, in the early hours of the morning of 27 May, he woke up crying and became floppy with red fluid coming out of his nose. The mother called an ambulance and the baby was taken to hospital.

[9]On arrival there, he suffered a left-sided seizure which lasted for 50 minutes and was terminated after medication was admitted. H was taken for a CT scan which revealed that he had sustained a significant intracranial bleed, namely a left-sided subdural haematoma with subarachnoid haemorrhage and associated subfalcine herniation with a midline shift to the right, right-sided unilaterally descending transtentorial herniation and partial effacement of the basal cisterns. In the course of the hearing this week, I have had occasion to consider this CT scan during the course of Mr Richards’ evidence which I will turn to later, and it is obvious even to the layman that the injury sustained by the child, as demonstrated on the CT scan, was extremely serious.

[10]After returning from the CT scan and whilst being reviewed by the neurosurgical team, H suffered an acute deterioration with a decrease in his level of consciousness from which he has not really recovered at any stage. He became cardiovascularly unstable with pauses in his breathing and was therefore intubated and ventilated and he has remained intubated ever since.

[11]His pupils remained reactive bilaterally at that stage. A further CT scan revealed further deterioration and it was therefore decided that he should undergo emergency neurosurgery. He underwent a left craniotomy and evacuation of the subdural haematoma. During the course of the surgery, however, severe brain swelling ensued and he became haemodynamically unstable with significant brain herniation through the meninges and at the opening of the skull where the surgeon was operating. He required extensive treatment, particularly blood transfusions and infusions of adrenalin and noradrenaline. At that point, his pupils became fixed and dilated and he was measured as having very high intracranial pressure. Following the surgery, he was transferred back to the paediatric intensive care unit, was again intubated and ventilated and has remained in that unit ever since.

[12]Further investigations revealed extensive damage to his eyes in the form of multi-layered haemorrhages in all four quadrants with other signs of damage. By this stage, it was the view of the doctors that one explanation was that he had sustained an acceleration/deceleration-type injury. Brain tissue continued to herniate through the craniotomy site. Further CT scans revealed ischemia and infarct on both sides with cerebral herniation through the craniotomy. The neurosurgeon responsible for the case, Mr Z, confirmed the extensive nature of the damage. There was no sign of brainstem function. The parents were warned of a very poor prognosis and consideration was then given to the prospect of withdrawing treatment. However, the parents indicated strong opposition to that course. On 1 June, an MRI scan was carried out and it was noted that the left hemispheric craniotomy bone flap, i.e. the flap that had been left following the operation, was lifting and that the brain was herniating through the gap. There was further damage noted to the lateral ventricle and other signs of severe damage.

[13]At this point in my summary of the history, I insert the following information which was irrelevant to the decision made last Friday but is relevant to some of the issues before me today. The injuries sustained by H were thought to be consistent with non-accidental head injury. The mother, who had been the only person present when the child collapsed, came under suspicion. She was arrested on suspicion of attempted murder, interviewed and then released on bail subject to conditions which included a condition that she should have no contact with any child under the age of 18, save under the supervision of the Local Authority.

[14]On 9 June, Mr Z noted some small signs of improvement. H was opening his eyes and moving all four limbs. At that point, he was also breathing. However, as has been the position throughout his admission, there was no sign of the cough or gag reflex save for two very faint coughs observed by one member of the nursing staff. Thus, it seemed at that stage that his position may have stabilised with some small signs of improvement. Overall, however, the picture remained very bleak.

[15]The doctors considered the possibility of withdrawing treatment but at that point they postponed that course. Meanwhile, however, the parents, concerned that the doctors might be wanting to withdraw treatment, had instructed solicitors and on 6 June they applied to this Court for an order under the inherent jurisdiction restraining the doctors from taking a course which would result in the withdrawal of treatment and, in particular, extubation. That application came before me on that day sitting as the urgent applications’ judge on short notice to the hospital Trust. Prior to the hearing, I telephoned Cafcass Legal and spoke to one of the solicitors there, Mr Ford. At the hearing, I made an order making H a ward of the Court and directed the Trust not to withdraw life support or any other sustaining or supporting treatment, including extubation, until the matter had been considered at a full hearing. I made a further direction for a hearing to take place before me on 12 June.

[16]On that date, when the matter came before me, I had the initial evidence from the hospital, including reports from the treating clinicians and a second opinion from another doctor at another hospital trust, the St George’s University Hospital NHS Trust, namely Mr Gray. At that stage, as I have said, there was a slight improvement or at least a stabilisation in H’s position. I therefore made a further order that the Trust should not withdraw treatment for the time being and I further directed the Trust to remove a ‘do not resuscitate notice’ which had been placed in effect. I listed the matter for a further pre-trial review on 29 June and a final hearing for two days on 6 July and 7 July and gave case management directions for those hearings. In particular, I directed the Trust to file an application setting out the declarations which it sought in the proceedings. It will be recalled that the proceedings had in fact been started, unusually in my experience, by the parents. I further directed that the parties should have permission to instruct an independent expert, namely Mr Peter Richards, consultant neurosurgeon, until recently employed at the John Radcliffe Hospital in Oxford, to provide an independent opinion. I further directed that an application for reporting restrictions orders should be filed and served in accordance with the relevant Practice Direction no later than 29 June with a view to the issue of publicity being considered at the pre-trial hearing on that date.

[17]At the pre-trial review on 29 June, I gave further directions for the final hearing this week. The application for a reporting restriction order had indeed been filed but had not been served in time to give the media sufficient notice. At that stage, I therefore adjourned that issue until the start of the final hearing on 6 July. The hearings up to that point, which had not involved any substantive consideration of the issues, had been held in chambers but it was acknowledged that the final hearing, which would, of course, involve decisions concerning serious medical treatment of a child, should be heard in open court and therefore the issue of the terms of any reporting restriction order would have to be considered, at the latest, at that point.

[18]I was also, at that stage, told of difficulties that had arisen over the parents’ contact with H. In particular, I was told that the police were seeking to supervise that contact themselves; in other words, be present at all points when the mother was with H. I therefore declared that there was no reason why the father should not have unlimited contact with H consistent with his welfare and the requirements of the paediatric intensive care unit.

[19]On the following day H’s condition deteriorated. He suffered a significant drop in his haemoglobin which was thought could be possibly attributed to further intracranial bleeding. The option of further neurosurgical intervention therefore arose for consideration but the surgical team headed by Mr Z considered that it was not in H’s best interests for any such intervention to take place. The parties therefore sought an urgent hearing before me and I agreed to hear the matter by telephone that evening.

[20]Prior to the hearing, the Trust filed the application and a draft order as directed, seeking the following: a declaration that it was in H’s best interests for the current treatment plan to be revised with immediate effect so that it would be lawful and in his best interests for(a) there to be no neurological intervention;

(b) in the event of cardiac arrest, no form of cardiac resuscitation and

(c) no escalation in treatment to that currently provided, i.e. no invasive intervention, including renal replacement and inotropes. The details of what occurred at that hearing are set out in the judgment delivered that evening, now transcribed, reported and available as Re HK (No 1)

[2017] EWHC 1710 (Fam)

[21]At the conclusion of the hearing, after hearing evidence from two treating clinicians, namely Mr Z and Dr D, the clinical lead for the paediatric intensive team at the hospital, and in addition Mr Richards, I made an order in the following terms: ‘1. It is in the best interests of H that the current treatment plan be revised with immediate effect so that it is lawful and in his best interests for(a) no further neurosurgical intervention and

(b) in the event of a cardiac arrest, no form of cardiac resuscitation to be given. 2. The applicant Trust should provide all other care and treatment that is medically appropriate to H, including but not restricted to blood transfusions until further order. 3. The applicant Trust shall, by 12 noon on 3 July, file a witness statement from a member of H’s treating team outlining all other treatment and proposals in the light of his current condition so that the Court can further consider the issue of non-escalation of treatment beyond that currently provided, and after the parents have had an opportunity to consider the Trust proposals. 4. The matter be listed for a further hearing before me sitting at the Royal Courts of Justice on Monday, 3 July at 2.00pm and a further ancillary case management direction in accordance to provide for that hearing’.

[22]Over the weekend, H’s condition continued to deteriorate. He suffered further episodes of a drop in haemoglobin for which he received further blood transfusions. The matter duly came back before me on Monday, 3 July. I heard evidence on that occasion from Dr D, the clinical lead paediatric intensivist. After further submissions, I made an order concerning H’s interim treatment in the following terms - that it was in the best interests of H that his current treatment plan be revised with immediate effect so that, in addition to the orders made in relation to treatment on 30 June remaining in force, it was lawful and in his best interests for the treatment plan created by Dr D to be followed; namely, that H should receive the following care:(a) continued nutrition and hydration;

(b) continued treatment for the brain infection for which two antibiotics were being administered;

(c) if respiratory symptoms deteriorate, considering he is already intubated, the procedures that would make his care even more difficult, such as high-frequency ventilation, would not be in his best interests. However, the course of intravenous antibiotics, oxygen suctioning and physiotherapy already started should be completed;

(d) if H goes into severe sepsis and septic shock with multi-organ failure, blood products should continue to be administered but without any invasive procedures such as a new central line insertion, while starting inotropes/vaso-suppressors;

(e) in the event of kidney failure, supportive renal therapy in the form of appropriate fluids and diuretics should be used as required rather than the insertion of hemofiltration catheters or the commencement of hemofiltration/dialysis;

(f) palliative care team involvement shall be engaged to minimise pain and discomfort. Involving palliative care support would ensure that H has access to symptom relief and the appropriate care and support;

(g) blood transfusions shall continue to be given.

[23]Prior to that hearing, however, the issues involving the police, which had been continuing less visibly, came to the surface again. It was alleged by the parents that the police were failing to comply with the direction I had given at the earlier hearing and were intruding unreasonably into their contact with H. The parents indicated that they would seek an injunction against the police, restraining them from interfering with their contact with H at the hospital. Short notice of that intention to make an application was given to the police and an officer in the case, accompanied by counsel, Mr Thomas, attended the hearing. The police indicated, in broad terms, that they wanted to continue to be present when the parents had contact so as to avoid the risk of any further injury to H and further to ensure that in the period leading up to and after his death, they would be present in the room to avoid contamination of the evidence.

[24]The parents, through counsel, strongly opposed the presence of the police. It was submitted that this was a wholly unnecessary and inappropriate intrusion into their private grief and an interference with their own and H’s Article 8 rights to a private and family life.

[25]The Trust and the guardian took a neutral position and having heard limited argument at that stage, I made an interim declaration in these terms:

‘On the basis that while the mother’s contact with H before, at the time of and after his death is in the presence of a social worker, nurse or other health professional, it is inappropriate and unnecessary for the police to be present in H’s room during contact with the mother, such declaration being made on an interim basis pending the final hearing on Thursday, 6 July 2017’

. I directed the mother to file an application for an injunction against the police and further directed the police to file submissions and evidence in response. I also gave further directions in respect of the application for a reporting restrictions order, including a direction to the police, anticipating that they would have a position in respect to the lifting of the reporting restrictions order in view of the ongoing investigation.

[26]On 6 July, I heard the Trust’s application for orders concerning further treatment; in particular, that it should be lawful and in H’s best interests for the ventilation tube to be removed and thereafter not be reinstated. After hearing the Trust through Mr Boyce, solicitor, further indicating that the Trust sought a declaration that it was lawful and in H’s best interest to receive no further blood transfusions, I considered the written information before the Court for the purposes of determining those applications, which was as follows:(a) medical reports and statements from three treating clinicians, all paediatric intensivists, Dr J, Dr E and Dr D, Dr D being the clinical lead for the department;

(b) a second opinion commissioned by the Trust prepared by Dr Gray, St George’s Hospital;

(d) H’s medical notes;

(e) three statements from H’s mother;

(f) a statement from H’s father; and

(g) the report from the children’s guardian. I heard oral evidence yesterday from Dr E and Mr Richards. Neither parent sought to give oral evidence. I then visited H in hospital. Having returned from the hospital, I heard submissions from counsel and reserved judgement until the following morning.

[27]Let me start with my visit to see H. I attended hospital by myself where I was received by Dr D and taken up to the paediatric intensive care unit. The purpose of my visit was simply to see H, which I had suggested and the parents had supported, and not for the purposes of obtaining evidence. I was shown into the room where H is being treated. It is a room which can accommodate two patients, although at present only H is in the room. H was lying looking relatively peaceful. I noticed immediately that he has a very large swelling on the left side of his temple, now expanding down the side of his face, as I had been warned by Dr E in his oral evidence, which I consider below. I also observed, in the course of my visit, that H’s heart rate and blood pressure were rising when he was touched by the nurses, as again I had been warned would happen by Dr E. H is connected to a ventilation tube and is also being fed by a nasogastric tube.

[28]I was very pleased to have had this opportunity to see H. He is indeed a remarkable child who has endured very great suffering.

[29]I also had the opportunity of meeting a number of the nursing staff. I did not discuss any aspect of the evidence with them but I did take the opportunity to pass on my thanks for all that they had done for H. Everyone in this case, including the parents and Mr Richards, has had nothing but praise for the quality of care and treatment that this little baby has received at the hospital.

[30]If I order H to be extubated, it is possible that he will remain in the present room for the time being. Alternatively, he may be moved to an adjacent, slightly smaller, room designed to take one patient only. At my request, hospital staff also showed me that room.

[31]The Trust proposes that H should be now extubated and thereafter, in the event that his breathing becomes impaired, he should not be re-intubated. Given his overall condition, it is likely that his breathing would be impaired because of his brain damage, in which case he will suffocate through lack of oxygen. Alternatively, given his lack of an effective cough and gag reflex, he may inhale either food, vomit or secretions into his lungs which, in due course, may cause him to suffocate or may lead to infection. The symptoms of all of these conditions can be alleviated to a very considerable extent through medication and well-established and highly-skilled palliative care.

[32]The Trust’s reasons for the proposed extubation were summarised in the original report prepared by Dr J in these proceedings filed at an early stage: ‘Two-month old with traumatic, catastrophic brain injury resulting in bilateral and hemispheric infarction was sparing of the brainstem. Hence, he is able to breath, has pupils that direct light and may well have return of coughing/gag reflexes. However, the overall neurological prognosis remains extremely poor in terms of function with a significant impairment expected in motor ability, control and co-ordination, the ability to feed, manage his own secretions, cognition, vision and the ability to communicate. We cannot predict how long H will survive with extubation because of his abnormal neurological function. However, in the event of a deterioration following extubation, it would not be in his best interests to be placed back on the ventilator as this would not result in any change in his prognosis and would promote continued suffering’.

[33]The second opinion commissioned by the Trust from Dr Gray of St George’s Hospital reached a similar conclusion: ‘My impression is that this is an infant with severe, irreversible brain damage. The damage is so significant that some brainstem function has been lost. The damage is consistent with a significant acceleration/deceleration event, not adequately explained by the history offered by the mother. Non-accidental injury has to be considered. Given the time since the injury, I do not believe that H will progress to tonsillar herniation and become brain-dead. I do believe that there is no likelihood of his residual brain function providing him with the capacity to survive long-term. The two most likely outcomes upon extubation are(a) that H will die from the effects of having no brainstem function, specifically inadequate airway reflexes or

(b) that he will survive with severe permanent brain damage for a period of time. My recommendation is that H is extubated and if his brain damage is so severe that he is unable to protect his airway, he should be palliated. Artificial life support such as intubation and ventilation should not be reinstituted to allow for natural death to take place, which will be as a result of his devastating brain injuries’.

[34]These two reports, as I have said, were filed at an earlier stage in the proceedings and, as I have already described, his condition has deteriorated significantly since that time.

[35]The evidence of Dr E, the treating consultant paediatric intensivist who gave oral evidence before me yesterday, was that H has continued to suffer episodes of a drop in haemoglobin as described above, for which he is receiving blood transfusions on a regular, indeed almost daily, basis. In addition, he has continued to suffer dystonic episodes increasing in scale under which his body, and in particular his limbs, go rigid for up to a minute. His blood pressure rises and his heart rate rises, sometimes dramatically. It is now clear, in a way that it was perhaps not clear last week, that this internal bleeding is indeed intracranial. The evidence for that is the very large swelling on the left side of his head, around the site of the craniotomy wound, and now extending down the left side of his face. This is caused by blood oozing from his brain and the subdural space through the surgery wound into a space underneath the skin.

[36]H is in a minimally conscious state. He does not respond to touch or pain. ‘It is not possible’, said Dr E, ‘to say what exactly he feels. In other words, we cannot exactly analyse how he perceives pain. We simply don't know’. As Dr E explained when cross-examined by Mr Devereux, QC, on behalf of the mother: ‘He senses pain, as is clear from the dystonia, but whether he feels pain as we do, i.e. perceives pain with his brain, is impossible to say. It is impossible for him to be touched without suffering these dystonic episodes. Every time he is given basic care, he suffers a dystonic episode. As he's intubated, the basic care and monitoring tasks have to be undertaken more frequently, so he is being touched more frequently and therefore experiences these dystonic episodes more frequently’.

[37]Dr E advised that, if he is extubated, H would then attempt to breathe. If he does not, he will die of suffocation. If he does breathe, he will survive for a little longer but because he has no cough or gag reflex, he will aspirate food or vomit, (and he is being fed nasogastrically as I have said), and/or he will aspirate secretions and he will either choke as a result or suffer infections.

[38]Throughout the process following extubation, he will continue to receive appropriate medication in accordance with specialist palliative care procedures. If he remains intubated, on the other hand, he will also soon die, in Dr E’s opinion, as a result of his brain infarction or an infection as a result of the continued episodes of bleeding or raised intracranial pressure. Ultimately, he would sustain what Dr E called ‘a catastrophic brain event’. Meanwhile, the swelling in his head and face will continue to enlarge so far as it can, as the liquid finds space to go. Dr E described this as a grim and grotesque situation.

[39]Cross-examined by Mr Devereux, Dr E acknowledged that H has survived far longer than he originally anticipated and he agreed with Mr Devereux that this was evidence not only the quality of care that he had received but also the strength of the little boy himself. Dr E thought it likely that he would breathe after extubation but that he would, for the reasons explained above, suffer one or more respiratory complications so that he would die within a short period. He acknowledged, however, that H is a strong little boy and that he could last longer.

[40]Cross-examined by Ms Carew on behalf of the guardian, Dr E added that without blood transfusions he would probably die much more quickly, possibly within 24 hours. Dr E described repeated transfusions of the sort that H has received in the last few days as degrading and intrusive. Repeated blood transfusions caused a number of further problems. He therefore recommended the withdrawal of the ventilation tube and the cessation of blood transfusions. He recommended that H should continue to be given palliative care and medicine by the specialist team.

[41]I then heard evidence from Mr Richards, who is an expert witness well known to this Court. He is, as he reminded the Court when cross-examined by Mr Devereux, a vastly experienced neurosurgeon, having been in practice for over 30 years and for much of that time was a consultant in the John Radcliffe Hospital in Oxford. For the last 20 years of his employment, he was purely a specialist paediatric neurosurgeon. He retired at the end of last year.

[42]In his report in these proceedings, he observed that the medical management of H’s illness at the hospital had been excellent. In his oral evidence, he reiterated this observation and said that had he been asked to treat H prior to his retirement, he would have taken exactly the same course as taken by the neurosurgical team in this case and he would have been proud if the patient had received treatment of the standard which H has received in this case. Mr Richards noted that this was a very difficult surgical procedure in which the surgeon was confronted with herniation of the brain through the meninges in the skull. Mr Richards confirmed the very severe extent of the injuries, in particular the significant hypoxic change and the loss of definition of the basal system, and the lake of cerebral spinal fluid in the base of the brain. Mr Richards observed that, when this feature is seen so early after a head injury, it is usually associated with a very poor prognosis. Treatment post-surgery had followed the conventional course but, at the time of his own examination, there had been no progress in terms of his brainstem function. He also noted the absence of any real evidence of a cough or gag reflex.

[43]Accordingly, he concluded the clinical picture was of an infant who had suffered severe irreversible global brain damage affecting both the cerebral hemisphere and the brainstem and that it was unlikely that he would ever be able to clear his own airway. He advised that he had yet to encounter long-term survival from this type of neurological impaired state in circumstances such as in this case. Mr Richards therefore advised in his report that it was appropriate to minimise the baby’s suffering by removing the tube and not replacing it.

[44]In his oral evidence, Mr Richards confirmed his conclusion in an endorsement of Dr E’s evidence which he had heard earlier in the morning. Mr Richards said frankly that it was clear that H is going to die and the question therefore was which course would cause him the least suffering for the rest of his life. He recommended switching the whole emphasis to ensuring that he is comfortable and passes away in what he described as ‘the nicest, kindest way’, both for H and, he added, for his watching parents. He recommended both extubation and also the cessation of blood transfusions and, importantly, applying appropriate palliative care and treatment in order to meet those aims. If no blood transfusions are given, he confirmed, when cross-examined by Ms Fottrell, H would eventually become anaemic and die.

[45]Mr Richards confirmed that H is unlikely to be feeling pain in the way that we do but added that his overall condition is serious, that he is suffering, and the appropriate way is for him to be treated as described given the circumstances.

[46]The parents’ evidence was set out in their statements. They demonstrated in those statements, as they have done throughout these proceedings, including in their attendance at court, that they continue to have love, devotion and dedication to their child.

[47]In her last statement, the mother said that she remained shocked and very upset that H is in this condition. She said she wanted the hospital to take all steps to keep her baby alive and she wanted him to be resuscitated if necessary. She finds it very distressing that she cannot visit him in hospital as freely as she would wish. She still believes he has some strength and he can fight. She thinks there are further tests that should be done and he needs to be given time and a chance. She said she respected the doctor’s opinion not to operate further on his brain but she thinks her son needs a chance to get stronger.

[48]At the conclusion of her statement she added this, in a passage recorded from her specific instructions to Mr Devereux: ‘My son’s everything to me. He is a part of my body, my joy, my friend, my baby, my only family and my strength. If he dies, all those things will die as well. No-one in this situation can accept it. I know it is the law but it is painful and difficult. Everyone who has children understands what I'm talking about’.

[49]In his statement, the father said that he did not believe that all hope is gone. He understands that the doctors have told him that he should let his son go but he does not think it is right. He observed that he had seen H move in hospital and he thinks he has improved slowly and he thought he should be given a chance to keep improving. He does not think his son is gone and he does not think the life support should be turned off. He wants to give him every possible chance to live. He accepted that he may face serious disabilities but he said that he and his mother were ready to face whatever challenges arise. He said that he could not let H’s life slip away while there was a chance he could live. He concluded: ‘I don't understand what has happened to my little boy, or how, but I know we need to give him time to fight, to come back to us. My beautiful son is not a lost cause and I want more than anything for him to be given a chance to show this’.

[50]Neither parent gave evidence before me yesterday, understandably in the circumstances. On behalf of the father, Ms Fottrell said that, whilst her client – and in saying that she spoke, of course, of both parents – was grateful to the staff and the court, they had found the process bewildering and confusing. She also reminded me that the father is a man of faith, who believes that when and how his son dies is a matter for God, not man.

[51]The guardian provided a helpful report in which she reaches the following conclusion in paragraphs 57 to 59: ‘The overall medical consensus is that ongoing life-sustaining treatment is futile and that to continue is not in H’s best interests. It is with sadness that I agree and I appreciate that the parents will be deeply upset at reading this and for this I am sorry. The parents are acting in a way they believe protects the best interests of their child and I believe that the Trust is doing the same. I therefore do not question the Trust’s motives in wishing to remove life support. From all the information available to me, I do not see how it can be in H’s best interests to have to endure the life that he currently leads, absent of any quality and plagued only with the burden of the illness and the pursuit to keep him alive. While it is unlikely that he feels pain in the way that we do, conversely it seems H does not derive any pleasure from or awareness of those around him and if he does so, it is only fleeting. Even if he were to survive, the medical consensus is that he would require medical intervention and nursing care for as long as he lives. He would be at risk of infection and would never be able to leave hospital. He would not be able to feed on his own and there would be significant impairment of his vision and his overall development. I would therefore endorse the provision of palliative care as being in H’s best interests so that when his time comes, he passes away with minimum pain and maximum dignity and in the presence of those who love him dearly’.

[52]I received lengthy written submissions on the law to be applied in these cases, in particular from Mr Devereux and Mr Bennett on behalf of the mother. They refer first to the decision of the Court of Appeal in Re J (A Minor) (Wardship: Medical Treatment [1991] (Fam) 33 and particular the observations of Lord Donaldson, Master of the Rolls at page 41D: ‘The Court, when exercising the parens patriae jurisdiction, takes over the rights and duties of the parents, although this is not to say that the parents would be excluded from the decision making process. Nevertheless, in the end, responsibility for the decision, whether to give or withhold consent, is that of the Court alone’.

[53]In Wyatt v Portsmouth NHS Trust & Another

[2005] EWCA Civ 1181

[2006] 1 FLR 554

, at paragraph 87, the Court of Appeal set out what it termed the ‘intellectual milestones’ which the Court had to address when making an assessment of the circumstances: ‘In our judgment, the intellectual milestones for the judge in a case such as the present are, therefore, simple, although the ultimate decision, if reached, may be extremely difficult. A judge must decide what is in the child’s best interests. In making that decision, the welfare of the child is paramount and the Judge must look at the question from the assumed point of view of the patient’ (See Re J [1991] (Fam) 33). ‘There is a strong presumption in favour of a course of action which will prolong life but that presumption is not irreversible (Re J). The term “best interests” encompasses medical, emotional and all other welfare issues’ (Re A (Medical Treatment: Male Sterilisation)

[2000] 1 FLR 549

). ‘The court must conduct a balancing exercise in which all the relevant factors are weighed, Re J, and a helpful role in undertaking these exercises is to clear the balance sheet (Re A)’.

[54]Mr Devereux and Mr Bennett also remind me, as do Ms Fottrell and Ms Giz on behalf of the father, of the judgment of Holman J in An NHS Trust v MB and Others (A Child)

[2006] EWHC 507 (Fam)

at paragraph 16 where the learned Judge set out the following propositions: (i) As a dispute has arisen between the treating doctors and the parents, and one, and now both, parties have asked the court to make a decision, it is the role and duty of the court to do so and to exercise its own independent and objective judgment. ii) The right and power of the court to do so only arises because the patient, in this case because he is a child, lacks the capacity to make a decision for himself. iii) I am not deciding what decision I might make for myself if I was, hypothetically, in the situation of the patient; nor for a child of my own if in that situation; nor whether the respective decisions of the doctors on the one hand or the parents on the other are reasonable decisions. iv) The matter must be decided by the application of an objective approach or test. v) That test is the best interests of the patient. Best interests are used in the widest sense and include every kind of consideration capable of impacting on the decision. These include, non-exhaustively, medical, emotional, sensory (pleasure, pain and suffering) and instinctive (the human instinct to survive) considerations. vi) It is impossible to weigh such considerations mathematically, but the court must do the best it can to balance all the conflicting considerations in a particular case and see where the final balance of the best interests lies. vii) Considerable weight (Lord Donaldson of Lymington MR referred to "a very strong presumption") must be attached to the prolongation of life because the individual human instinct and desire to survive is strong and must be presumed to be strong in the patient. But it is not absolute, nor necessarily decisive; and may be outweighed if the pleasures and the quality of life are sufficiently small and the pain and suffering or other burdens of living are sufficiently great. viii) These considerations remain well expressed in the words as long ago now as 1991 of Lord Donaldson of Lymington in Re J (A Minor) (Wardship: Medical Treatment) [1991] (Fam) 33 at page 46. ix) All these cases are very fact-specific, i.e. they depend entirely on the facts of the individual case. x) The views and opinions of both the doctors and the parents must be carefully considered. Where, as in this case, the parents spend a great deal of time with their child, their views may have particular value because they know the patient and how he reacts so well; although the court needs to be mindful that the views of any parents may, very understandably, be coloured by their own emotion or sentiment. It is important to stress that the reference is to the views and opinions of the parents. Their own wishes, however understandable in human terms, are wholly irrelevant to consideration of the objective best interests of the child save to the extent in any given case that they may illuminate the quality and value to the child of the child/parent relationship’.

[55]I am also reminded by Mr Devereux and Mr Bennett of the observations of Baroness Hale of Richmond in the case of Aintree University Hospital NHS Foundation Trust v James and Others

[2013] UKSC 67

[2013] 3 WLR 1299

. At paragraph 39 of her judgment, she said: ‘The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in a wider sense, not just medical but social and psychological. They must consider the nature of the medical treatment in question, what it involves and its possibilities of success. They must consider what the outcome of that treatment for the patient is likely to be. They must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be and they must consult others who are looking after him or interested in his welfare, in particular for the view of what his attitude would be’.

[56]Mr Devereux and Mr Bennett proceed to set out what they describe as the international dimension and remind me of the relevant provisions as they identify them in the United Nations Convention on the Rights of a Child, the Universal Declaration of Human Rights and Biomedicine 2005, The Council of Europe Convention on Human Rights and Biomedicine 1997, and the European Convention of Human Rights. I mean no disrespect to them in saying that I do not think it necessary on this occasion to refer to those instruments in any detail. As they point out, the current approach of English law to medical treatment for incapable children where parents have legal responsibility, tempered by the intervention of the court where necessary, has been broadly approved by the European Courts of Human Rights. In particular, in the case of Glass v United Kingdom

[2004] 1 FLR 1019

where the court held at paragraph 75:

‘The Court would, however, make two observations in this connection with reference to the facts of this case. Firstly, the regulatory framework in the respondent’s state is firmly predicated on the duty to preserve the life of a patient, save in exceptional circumstances. Secondly, that same framework prioritises the requirement of parental consent and says that emergency situations require doctors to seek the intervention of the Courts in the event of parental objection. It would add that it does not consider that the regulatory framework in place in the United Kingdom is, in any way, inconsistent with the standards laid down in the Council of Europe’s Convention of Human Rights and Biomedicine in the area of consent nor does it accept the view that the many sources formed in its regulations and standards are derived only to contribute to unpredictability and an excess of discretion in this area at the level of application’

. They reminded me finally that this approach, supportive of the English legal principle to be applied in this case, has been recently reaffirmed by the European Court of Human Rights in the case of Charles Gard and Others v the United Kingdom, 28 June 2017. The case of Charlie Gard has indeed attracted attention across the world. It illustrates the extent of the public interest in these difficult decisions. Discussion and Conclusion

[57]In the event that the court concludes that the application should be granted and endorses the extubation and no reintubation as proposed in the application, it is plain that in those circumstances, H is likely to suffer breathing difficulties which will lead to his ultimate death. Equally, it is clear that in the event that the Court authorises the cessation of further blood transfusion in these circumstances, H will suffer further drops in haemoglobin which will lead to a further deterioration and ultimately to anaemia and/or cardiac arrest.

[58]If the court refuses to authorise those measures, that is the removal of the ventilation tubes or the cessation of blood transfusions, in those circumstances intracranial bleeding will continue, the swelling on his face and head will continue to expand and he will, at some point, die as a result of what Dr E described as a catastrophic event, namely the progressive intracranial brain damage and the consequences of that damage.

[59]Thus, the inevitable outcome in this case is that this poor little boy is going to die. The question for this court, in effect, is how he should be treated in the days remaining for him, in his best interests. Since there is, on the medical evidence, no prospect of his survival and since he is, as I am advised, in a minimally conscious state with no awareness of his circumstances, from which he is not going to emerge, there is manifestly no benefit in merely keeping him alive for as long as possible, given the indignity, pain and suffering which he is currently enduring. His best interests, therefore, manifestly require that he be treated in whatever way provides him with the greatest degree of composure, comfort and dignity in the last few days of his life.

[60]I consider, therefore, the balancing exercise in this case. On the one hand, all the medical evidence is unanimous. H is, sadly, tragically, going to die very soon. If he remains intubated and undergoing blood transfusions, the swelling in his head and face will continue to expand, he will continue to suffer episodes of dystonia, and he will die in due course as a result of a catastrophic event, involving brain haemorrhage or the complications associated with his head injury, the infarction, and/or infection, and raised intracranial pressure. I accept that by keeping him intubated, he may survive for a little longer, but I also accept Dr. E’s assessment that such a course would be grim and grotesque.

[61]As Holman J observed in the passage in the judgment An NHS Trust v MBquoted above, whilst the prolongation of life must always be given considerable weight, it is not absolute and may be outweighed if the pleasures and qualities of life are sufficiently small and the pain and suffering or other burdens of living are sufficiently great. In this case, it is manifestly clear that there is absolutely no quality of life for this little boy. On the contrary, the pain and suffering and burdens of living are very severe.

[62]Thus, while it may be possible to keep him alive for a little longer by keeping him intubated, it is not life as anyone would recognise it. His brain is, to all intents and purposes, no longer functioning in the way that any of us would recognise and he has no prospect of recovery. The right to life is, of course, a vitally important consideration and I bear that in mind at all times. The fact is, however, that this little boy will die shortly in any event, will never regain consciousness or experience life in any real sense at all.

[63]The disadvantages of continued intubation are that he will continue to suffer the indignities of his current situation, and endure pain in so far as he feels pain and discomfort for a longer period.

[64]The alternative, of course, is to carry out the extubation with no further re-intubation. The cessation of blood transfusions will also, of course, cause him a degree of pain and discomfort, but it will be in accordance with the course recommended by all the doctors, including Mr Richards. It will be open to the doctors to manage that pain and discomfort on a particular basis in a way which, in the view of all the doctors, ensures the best possible end to H’s life. It will shorten the period of his suffering and it will also shorten the suffering of his parents.

[65]I do take into account his parents’ wishes and feelings. They are, in my view, a relevant and important factor but ultimately, in my judgement, they cannot outweigh the very clear evidence from all the doctors as to where H’s best interests lie. I entirely endorse the analysis of the guardian set out above.

[66]For all these reasons I reach the conclusion, having heard the evidence, as I indicated to the parties earlier today, that I should make a declaration that it is lawful and in H’s best interests for:(1) the ventilation tube to be removed on or after Saturday, 8 July and thereafter there should be no reintubation;

(2) the Trust to cease giving H any further blood transfusions; and

(3) as provided in this order and in the orders of 30 June and 3 July, that he should continue to receive all medical, nursing and palliative care.

[67]I gave my decision on the application earlier this morning, at which point the parents duly left court and returned to H’s bedside.

Reporting restrictions

[68]I turn now to consider, briefly, the two remaining applications. First the application for a reporting restriction order. The current order prohibits the publication of the name and/or address and/or geographic location of the child, any member of the child’s family, the applicant Trust, any doctor or nurse or other health care professional caring or treating H and any institution at which H is treated or cared for, including any picture of any of the above or any other material likely to lead to the identification of the above if, but only if, such publication is likely to lead to identification of the child as being the person receiving life-prolonging treatment or the withholding or withdrawal of the same.

[69]The parents would like me to extend this order in those terms, as does the Trust and the guardian. In a statement filed in support of the application, Mr Boyce, the Trust’s solicitor, stated that the order had been sought and supported by the Trust because of the very real concerns on the part of the Trust’s team that any publicity or reporting of the case was likely to add to the considerable distress of H’s family at this very difficult time. There is nothing particularly newsworthy about the identity of H or his immediate family. They are not public figures or celebrities. He submitted that it was appropriate for the order to be extended to restrict identification of the Trust and the treating clinicians. He submitted that, if the Trust was identified, this would lead to anyone in the unit being able to identify H as the patient. Press interest may also impact on the care being given to H and other patients and relatives, and he contended that intense media interest can sometimes create difficult challenges for staff and relatives, causing them to be concerned about patient security and confidentiality when they should be focusing on the well-being of patients.

[70]At my request, as indicated above, the police were invited to make further submissions in respect of this application. There is an ongoing police investigation as described above. They support the injunction and consider that any restricted publicity naming H or his parents at this stage may lead to some contamination of any criminal proceedings in due course.

[71]I have received written submissions from Mr Mike Dodd of the Press Association supplemented today by further observations by Mr Brian Farmer of the Press Association. They submit that the child’s privacy and personal interests cannot be harmed by publicity in this case. He is not able to understand events around the case and, on the evidence, is unlikely to live much longer. They further contend that anonymity tends to reduce news coverage and interest, and remind me of the observations of the Supreme Court, in particular of Lord Rodger of Earlsferry, in In re Guardian Newspapers Limited

[2010] UKSC 1

[2010] 2 AC 697

. They remind me of the case of Charlie Gard and suggest that it is an example of the importance in the media of being able to identify people and families involved in such tragedies. They say, rightly, that it is quite clear that that case has aroused widespread support for the family and has been a matter of great public concern and interest. They suggest that the public might well have the impression that the Charlie Gard case is exceptional when, in fact, it is not. These cases occur not infrequently. The unusual thing about the Charlie Gard case is that he and his parents have been named in the press reports and have therefore attracted a great deal of coverage. They submit that such coverage is in the public interest.

[72]They contend that the argument put forward by Mr Boyce on behalf of the Trust, as quoted above, is unrealistic. They contend that journalists are, as a matter of common sense, not likely to invade the paediatric intensive care unit and point out that newspapers and broadcasters only report such cases with sensitivity, as their editors and journalists are aware of the stresses placed on those involved, and in addition are aware of the protection offered by the Editors’ Code of Practice overseen by IPSO.

[73]In short, they submit, the issues raised by this case are important. It is important, they say, for the public to be informed about all matters, including which hospitals are making applications for permission to withdraw treatment in these cases. They submit that the possibility of criminal proceedings is not something which should carry particular weight at this stage. Even if there were to be criminal proceedings, the child would be named, any adult charged in connection with the child’s injury would be named, as would any treating clinicians or expert witnesses. Accordingly, they contend, there is nothing which would be covered in any reports of these proceedings or this judgment so as to identify H which would jeopardise any such criminal proceedings.

[74]In deciding an application of a reporting restriction order, I apply the well-established legal principles. Such applications are determined by analysing and balancing the competing rights under European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular Articles 8 and 10. I have regard to the principles as identified by the case law and particularly the decision of the House of Lords in Campbell v MGN Limited

[2004] UKHL 22

and Re S

[2004] UKHL 47

. In that latter case, Lord Steyn identified a number of propositions about the analysis of the human rights involved which he succinctly summarised at paragraph 17 as emerging from the opinions of the House of Lords in the earlier Campbell case: ‘First, neither article as such has precedent over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justification for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience, I will call this the argument balancing test.”

[75]In considering Article 8, I bear in mind, as explained by Tugendhat J in Goodwin v NGN Limited and Others

[2011] EWHC 1437

, paragraph 85, that the right to respect for private and family life involves more than one concept. The right to privacy comprises two core components which may be described as ‘unwanted access to private information and unwanted access to or intrusion into one’s personal space,’ labelled more succinctly by Tugendhat J as ‘confidentiality and intrusion’. Manifestly, the intrusive component of the right includes unwarranted interference into the lives of the family as well as the private life of the individual.

[76]When considering Article 10, I, of course, have regard to the provisions of s.12 of the 1998 Act which, under sub-section 4, requires the court to have particular regard to the importance of the conventional right to freedom of expression.

[77]In my judgement, carrying out the balance of the exercise in this case, I am satisfied that the importance of preserving the confidentiality of H and his parents at this extremely sensitive time, as he nears the end of his life, outweighs any public interest in allowing the media to publish the names either of H or of his parents. I also conclude that it is necessary, given the particular sensitivities of this case at this particular time, with the acute pressure on the parents, the great difficulties for the hospital staff and the ongoing possibility of criminal proceedings, for the order to extend at this point to include protecting the identification of the hospital and the doctors involved.

[78]The judgment, as I have delivered it today, and the earlier judgments delivered on 30 June and 3 July, can be freely reported when available, subject to anonymisation, so that the issues arising in the case can be available for public consideration without naming the child or identifying his parents or the Trust or the medical professionals. I do acknowledge that the publicity of the name of the child may increase the amount of publicity generated in any individual case. The Charlie Gard case is but one example of that, as is the case of Ashya King, but those were cases in which the parents wanted publicity and the judgment in those cases was that the publicity would not be contrary to the child’s interest or article 8 rights. Neither of those factors apply here. In practice, in most cases of this sort, both in the Family Division and in the Court of Protection, when the Court is considering applications for orders concerning serious medical treatment, the identity of the child in the family jurisdiction, or of the incapacitated adult in proceedings in the Court of Protection, and of his or her relatives is protected. In my judgement, it is important in this case that the identity of this child, his parents, the Trust and the medical staff are, at this stage, protected and kept confidential, at least during the life of the child. I consider that to be manifestly a proportionate decision.

[79]Accordingly, despite the submissions made by Mr Dodd eloquently endorsed and expanded upon by Mr Farmer today, I conclude that the current order should remain in force for the time being.

[80]I stress those last words ‘for the time being’. After H passes away, the question of whether the reporting restriction order should remain in place will have to be reconsidered. Recent cases in the Court of Protection have established a pattern under which such orders last until a short period after the death of P. In this case, therefore, it may be appropriate for the reporting restriction order to be lifted shortly after H’s death. That will require a different balancing exercise and I do not propose to anticipate where the balance will then fall. Police Presence

[81]Relations between the parents and the hospital have, as I have indicated, been as good as can be expected in very difficult circumstances but there have, unfortunately, been increasing tensions between the parents and the police. On the one hand, the police are conducting an important investigation into the cause of H’s injuries. If H dies, that may become a murder enquiry. On the other hand, the parents are grieving for their son, wishing to spend as much time as possible with him, and they find the police restrictions unreasonable, unnecessary and intrusive.

[82]As I have described above, the mother is subject to bail conditions which prevent her having any contact with any child under the age of 18, save as supervised by the Local Authority. In addition, the police have indicated in earlier correspondence that they wished for an officer to be present at all times when the mother is with H, including at the moment of his death. At one point, they suggested that they wished to record H’s death by video camera.

[83]Accordingly, on Tuesday of this week, 4 July, an application was made on behalf of the mother for an order that no police officer should be in the presence of H or in the room that H is in and that no police officer would film or cause to be filmed either H and/or his parents during his life or at his end of life.

[84]The police, in response, have served a statement by a senior officer objecting to the application, in which she states that she has reviewed the necessity of having a police officer at the hospital if the officer is not permitted access to the room when H’s mother is spending time with him. She says that, having weighed the resources needed to keep an officer at the hospital against the necessity of safeguarding H and the integrity of the investigation, she has decided to remove the police presence entirely from the hospital at this time. It remains the position that the police will be notified of any deterioration of H or any concerns or difficulty the hospital has in supervising contact between H and his mother so that they can return to the ward if necessary.

[85]She then deals with the views of the police as to what should happen in the event of the withdrawal of medical intervention or the terminal decline of the child. She stated that it is her belief that it is necessary for an officer to be present at the bedside in the event that his life support is turned off and/or his death is anticipated. She acknowledges that the parents have a right to private and family life but says that that has to be balanced against H’s own right to life and his interests in ensuring that there is a full and effective investigation into his injuries, which are likely to lead to his death.

[86]She contends that the police owe a duty to H to ensure a full and effective investigation. She stresses that it is imperative the police are not hindered in this aspect of the investigation, and that police officers need to be present at the time of death to record significant statements and demeanour, preserve evidence and ensure continuity.

[87]She continues:

‘At this time, H is both a victim and, in effect, a crime scene and the integrity of this needs to be preserved. Actions taken around the time of, or immediately after, his death have the potential to have a serious impact on the integrity or continuity of the evidence. In order to negate any claims that injuries were caused during transportation of the child to the mortuary, as was raised by defence counsel in a recently published case, I have directed that the body will need to be photographed in situ and a child-sized neck brace be used to secure the head and spindle column when H is moved after his death’

. She also alludes to another case in which, at or around the time of death, the baby’s mother made a significant statement in the presence of a doctor and police officer, which was subsequently used in court, which led to a conviction.

[88]The police today filed a statement from another senior police officer answering a series of questions about the police conduct. In answer to the question, ‘How frequently this police force seeks to be at or near the bedside of a child who is on the point of passing away as a result of suspected non-accidental injuries,’ the second officer said, ‘This is not a question that can be answered easily or quickly. Such cases are rare and when they do occur, mostly they go very quickly’. ‘There is’, he said, in answer to a further question, ‘no policy or guidance for when the police would seek to attend’. The key features which the police would consider when deciding whether they wanted to be present was whether or not there were suspicious circumstances and whether there is a suspect or a person with care or control of the child likely to be present when the machine is switched off.

[89]In this case, asked why this particular case required the attendance of police at the bedside at the point of H’s death, he said that, ‘The primary focus is to maintain the integrity of the baby in order that forensic evidence obtained at the post-mortem can be reliably used in evidence in future proceedings’. Like the other officer in the passage I referred to above, he drew attention to a recent case, the case of R v Butler & Gray (2016) in which difficulties had occurred. He said that, following that case, it had been the policy for a senior investigating officer to recommend that the bodies of children who have died in suspicious circumstances are transported on a flat surface with the head upright and secured to prevent movement and that, further, a police officer be present in the room to ensure integrity of the body.

[90]Counsel for the parents have shown me a copy of guidance produced by the Association of Chief Police Officers (“ACPO”) headed ‘A Guide to Investigating Child Deaths’ and drew attention in particular to paragraphs 5.9 to 5.12 of the document which reads as follows: ‘5.9; “If the death occurs in a hospital setting, consideration should be given to securing all relevant medical equipment”. ‘5.10; “It is entirely natural for parents or a carer to want to hold or touch the dead child. Provided this is done with a professional, such as a police officer, nurse or social worker present, it should be allowed in most cases and it is highly unlikely that forensic evidence will be lost. If, however, the death has, by this time, been considered suspicious, the SIO must, where possible, be consulted before a parent/carer is allowed to hold the child. If the carer wishes to hold the child during the process of taking an account, the welfare of the police investigator is to be considered as it can be very distracting and therefore less conducive to a careful and detailed conversation”. ‘5.11; “If the parent/carers wish to accompany their child to the mortuary then this should normally be facilitated, ensuring that they are accompanied by a police officer. A family liaison officer or coroner’s officer may be appropriate for this role”. ‘5.12; “Hospitals often wish to supply bereaved parents with a lock of hair or foot or handprints. Police should only refuse these considerations if there is good reason to believe it would jeopardise the investigation and it is highly unlikely that this would be the case. This is often best completed after the post-mortem”’.

[91]At my request, Mr Richards returned to Court this morning to give his opinion on these matters, drawing on his vast experience. He described the process which usually occurs in the very sad circumstances of the death of a child. Usually, if a child is extubated, that takes place where the child is either in the mother’s arms or possibly the father’s arms or in the cot. If it happens in the cot, the child is then usually given to the mother or father. There is always a nurse and doctor present when extubation takes place. If the child is then passing away, the nurse and doctor are usually present. At the point when the child passes, the nurse and doctor may leave the child with the parents for a short period and then return before declaring the child has died. In cases where there is suspicion as to the cause of death or cause of the injuries sustained by the child, the nurse and/or doctor will remain present at all times.

[92]In Mr Richards’ experience, the parents usually leave at this point to enable the nurse to prepare the body for transfer to the mortuary. Most parents choose not to accompany the baby to the mortuary. Indeed, Mr Richards has never had experience, so far as he can recall, of parents who go with the nurse to the mortuary.

[93]It was in cross-examination on behalf of the Trust that Mr Boyce drew Mr Richards’ attention to those paragraphs from the ACPO guidance to which I have referred. Mr Richards frankly observed that it would never be his practice to consult a police officer as suggested in the guidance before giving the parents the baby in these circumstances. He rejected the suggestion that the circumstances as described should be seen as a scene of crime. Furthermore, he thought it neither necessary nor appropriate for a neck brace to be fitted before removal of the body to the mortuary, as proposed by the senior police officer in this case.

[94]He was then cross-examined by Mr Thomas and in a helpful exchange he was able to assist Mr Thomas and the police in evaluating the issues in this particular case. He confirmed that there had been a CT scan and an MRI scan in this case. He confirmed then the examination of the child’s eyes referred to above. No skeletal survey had been carried out because of the serious condition of the child but he anticipated that, in the event of a post-mortem examination, such a skeletal survey would be carried out. Importantly, he confirmed that such a skeletal survey would provide an indication of whether bone injuries had been sustained by the child. He confirmed that the survey would demonstrate any injuries and, furthermore, when approximately they were sustained. In particular, it would be possible from the survey to demonstrate whether a bone injury had been sustained prior to the child’s admission to hospital or at any later point. In those circumstances, he could not envisage that anything could be done to the child’s body so as to contaminate the situation by handing the child to the mother after extubation both before and after death provided, of course, that the child and parents were in the presence of a nurse or a member of staff. Accordingly, he did not consider that the measures proposed by the police in this case were necessary in order to ensure the integrity of the investigation.

[95]Following that evidence, Mr Thomas took instructions and there then ensued negotiations between the parties. Happily, they were able to reach a complete agreement as to how the police would act hereafter. The agreement was reduced to the following nine provisions:(1) The current arrangement is to remain pending extubation, namely, the parents will have the opportunity to spend as much time with H as they wish provided that, at all times, there is a healthcare professional present in the room.

(2) During the extubation process, there will be at least two members of clinical staff present but no police officer.

(3) Following extubation, and up to the moment of certification of death, either parent will be allowed to hold H, provided there is a member of clinical staff present but again no police officer would be in the room.

(4) Following certification of death, the parents will then withdraw, although there will be no time limit imposed by the police.

(5) Impressions of H’s hands and feet may be taken at that point.

(6) As the parents withdraw, a member of the clinical staff will stay with H.

(7) After the parents have withdrawn, a plain-clothes police officer will arrive in the room. It is intended there should be no more than two plain-clothes police officers present on the ward in total.

(8) The police officer will witness any samples taken.

(9) A paediatric nurse will carry H to the mortuary accompanied by the police officer in plain clothes. The parents will be offered the opportunity to accompany the nurse taking H to the mortuary.

[96]In addition, the police have indicated that they may wish to take police statements from members of staff that day but, save for unforeseen developments, they will not speak to either parent at the hospital after the point of extubation.

[97]I was happy to endorse this agreement and am very grateful to the parties and to the police for this sensible compromise. It is very much in line with what I would have directed had I been asked to give a ruling on those issues. Whilst recognising that all cases are different, I consider that the arrangement set out above, agreed after careful negotiation, is the sort of arrangement that should normally be followed in similar circumstances in future. That is one possible lesson to be learnt from this tragic case.

[98]In their written submissions, Mr Devereux and Mr Bennett identified a number of others and of those I endorse the following in particular:(1) Where there is a likely dispute between medical professionals and parents about medical treatment, it is incumbent on the relevant hospital trust to bring that matter speedily to the attention of the court. It should not be left to the parents to do so, as happened in this case.

(2) Where there are language barriers or other difficulties with understanding, it must be a priority for the hospital trust to engage interpreters and, where necessary, other relevant professionals so that medical information, which is often highly technical, can be passed on quickly and effectively to parents in circumstances where the medical position of the individual child is rapidly evolving.

(3) The court is able to convene emergency hearings, even at unusual hours, where necessary and justified by telephone as occurred in this case.

(4) Where a court convenes an emergency hearing for an order in respect of serious medical treatment of a child, steps should be normally be taken to inform the press and, if appropriate, a representative of the press should be given the opportunity to attend the hearing.

(5) The reporting of the case must be considered at the earliest possible stage but that should not deflect the court from its primary purpose, in urgent circumstances, in addressing issues concerning the best interests of the child.

(6) The orders of the court made in these cases should be transmitted, as soon as possible, to all relevant parties and endorsed on the relevant child’s medical notes so that there can be no confusion about the terms of the court’s intervention and order.

(7) Finally, in the event that a declaration is sought concerning the withdrawal of life support, it is important for there to be a clear and detailed treatment plan available as quickly as possible so that the parties can understand the relevant steps and approach for the end of a particular child’s life.

[99]I would like to conclude by thanking all those involved in this case, in particular, the doctors and nurses to whom I have already extended my thanks; the lawyers who have acted on behalf of all the parties; the police officer for attending court, in particular today, and Mr Farmer of the Press Association who has attended all hearings and contributed as I have described above.

[100]Finally, I conclude by expressing the hope that the last period of H’s life can pass peacefully and comfortably for H and his parents in these very difficult and tragic circumstances. End of Judgment