By now, we all know the terrible story of Alfie Evans, who spent 16 months of his two years of life in hospital as his brain turned to water and cerebral spinal fluid and who died following the removal of life sustaining ventilation. I say ‘we all know’, but the reality is that the case has attracted considerable and emotionally charged comment and that comment has often not been informed by verified facts.
In the aftermath of the case – the aftermath of his life – a number of themes can be discerned and among those is the idea that it should not be for doctors or courts to determine life or death but for the parents only.
In this case, the hospital had applied under the inherent jurisdiction for a declaration that withdrawal of ventilation was in Alfie’s best interests. The parents sought to continue ventilation and to take Alfie to Italy where a hospital was offering to continue ventilation, but whose doctors, having examined Alfie, also accepted that there was no treatment.
Hayden J’s initial decision was that it was in Alfie’s best interests for ventilation to be withdrawn. The parents opposed this vigorously, but once the decision as to what was best for Alfie had been made, it is very difficult to successfully appeal such a decision. Appeals must be on a point of law, and it is highly difficult to show that the judge was legally ‘wrong’ in the way he weighed up the relevant factors.
Moreover, the decision that it is not in Alfie’s best interests to continue ventilation meant that it was unlawful to continue ventilation:
‘If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it.’ (Lady Hale in Aintree University Hospital NHS Trust v James UKSC 67, .)
The Court of Appeal in Alfie’s case noted, ‘to act inconsistently with or contrary to the court’s determination and order would be to act without lawful authority.’ The decision therefore was not only that life sustaining treatment was not in his best interests, but that continuation of it would be unlawful.
What about the parents’ rights?
In determining his best interests, Alfie’s parents’ views were not legally relevant except insofar as they may enable the court to work out what the views of the patient would be had they been able to make a decision – something that is a great deal easier where the patient is not a baby. The views of the parents are certainly not determinative. What is best for Alfie is the sole consideration.
As the case proceeded through various appeals and challenges, the parents’ approach changed to one in which they actively argued that Alfie’s best interests should not determine the case. Specifically, they argued that they had ‘an unfettered right to make choices and exercise those rights on Alfie’s behalf’. The Court of Appeal called this ‘a startling proposition’.
In the context of Alfie’s case, there are two ways of reading the parents’ arguments.
One is that they and that they should have an unfettered right to make choices as to what was in Alfie’s best interests and the court should simply accept that they were acting in Alfie’s best interests. This interpretation is that their decision as to what was best for Alfie should prevail.
Another way of reading it is that they believed they had the right to make choices even ifthose choices were not in the best interests of Alfie. In its judgment the Court of Appeal refers to the parents as having argued that Alfie’s best interests were irrelevant, which seems to indicate that this was in fact their argument.
The historical context
Back in the eighteenth century, Sir William Blackstone wrote that parental duties ‘consist in three particulars; their maintenance, their protection, and their education. … The power of parents over their children is derived from the former consideration, their duty; this authority being given them, partly to enable the parent more effectually to perform his duty, and partly as a recompense for his care and trouble in the faithful discharge of it.’ In other words, parental power existed in order to enable the parent to fulfil their parental duties. (And by ‘parent’, in this era we mean the father only.) As long as parents did carry out their parental duties and not abandon their children, how they carried out their duties was not a matter for the court. The view, as per the later case of Re Agar-Ellis (1883), was that “the father knows far better as a rule what is good for his children than a court of justice can.”It was not the role of the state, through the courts, to intervene.
But this doesn’t strike me as a rejection of the idea that we do what is best for children. It simply assumes that the parents know best. It conflates the best interests of the child with what their parents want to such an extent that there is no role for the court in determining whether that is in reality the case.
When the Children Act 1989 was introduced, it introduced the concept of ‘parental responsibility’ rather than explicitly recognising parental rights. Section 3(1) defines parental responsibility as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’. However, in an article about the Children bill, Brenda Hoggett – now Lady Hale, but then the Law Commissioner responsible for it – wrote that:
‘To emphasise the practical reality that bringing up children is a serious responsibility, rather than a matter of legal rights, the conceptual building block used throughout the Bill is “parental responsibility”. This covers the whole bundle of duties towards the child, with their concomitant powers and authority over him, together with some procedural rights for protection, against interference . . . it therefore represents the fundamental status of parents.’
So again we see that the duties come with concomitant (naturally accompanying) powers. This reflects Blackstone’s view two centuries earlier that powers exist to enable duties to children to be performed.
There have been several reiterations of this view since, the most famous of which is in the Gillick case, which concerned whether or not a doctor could lawfully provide contraceptives to someone aged under 16 without telling her parents:
‘parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child, and towards other children in the family’ (Lord Fraser).
In Re D (A Child) EWCA Civ 315, Ryder LJ said that:
‘the concept of parental responsibility describes an adult’s responsibility to secure the welfare of their child which is to be exercised for the benefit of the child not the adult. The all-encompassing nature of the responsibility underpins one of the principles of the Act which is the ‘no order’ principle in section 1(5) CA 1985: the expectation that all other things being equal parents will exercise their responsibility so as to contribute to the welfare of their child without the need for a court order defining or restricting that exercise.’
So for centuries we have accepted that we should do what is best for children – it’s just that we have assumed that parents know and will do what is best and that is why we let them make such decisions.
While many would not agree with Alfie’s parents’ assertion that his interests are irrelevant, more may have sympathy for an assumption that parents are best placed to decide what those interests are and that the state should not intervene without the strongest reasons. But what, then, should the role of the state be if the parents are not exercising their responsibilities or powers or duties – whatever you want to call them – in a way that society deems acceptable? Where should be draw the line between children’s rights and parents’ rights where those rights conflict? And who should draw that line?
Feature Pic courtesy of Abhijit Chendvankar on Flickr (via Creative Commons Licence)