No, we don’t need an Alfie’s law.

I thought I’d experiment with an audio post.

This is closely based on an article that appeared in Quillette yesterday.  Be warned: there are no pictures, there is no music (unless you count dogs barking in the background), no gimmicks and no technical wizadry. It’s just me talking for nearly half an hour.

I hope you’ll find it interesting if you haven’t read the article, or at least a cure for insomnia if you have.

Let me know if you think this is a good or a bad idea.

It seems to work on mobile phones, but I’m having some technical difficultites making it play on an ordinary laptop, especially using Firefox

For anyone who would prefer to read, or who is unable to listen, the piece is set out below.  I’m doing my best to make the audio work but I think at the moment it’s about 50:50!

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Three days after Tom and Kate Evans abandoned their legal fight, their son Alfie died.

Both parents have shown immense courage over the past months and in the final few days they have demonstrated a quiet dignity as Alfie’s death approached.

Inevitably, as he lay dying many have been moved by his plight. There have been denunciations of the doctors, the judges and the legal system. Ill-informed voices from America have blamed his death on secularism, or the NHS or “government death panels.” Voices from this country have called for an “Alfie’s law” to give parents greater rights over the treatment of their children.

It is at times of the greatest emotion that calls for changes in the law can be at their most seductive, and so it is now. Who, after all, would wish for another case like Alfie Evans or Charlie Gard?

The law, and particularly the legal system, is certainly not faultless but calls to give parents more legal rights over these terrible end of life decisions are fundamentally mistaken.

The key to understanding the case is to grasp one very simple but very far-reaching principle of English law. Once a dispute comes before a court over the care of a child, the Children Act 1989 provides that the welfare of the child is the paramount consideration.

It is not an obscure or difficult concept but its very simplicity means its far-reaching implications are sometimes not appreciated.

In ordinary family disputes it means, for example, that if, after a divorce, there is a question about with whom the child should live, fairness towards the parents is – in itself – irrelevant. A parent’s affair might have broken up the marriage, or his violence might have landed him in gaol. Such behaviour is immaterial except insofar as it may touch on the child’s welfare. The only question for the judge is “where do this child’s best interests lie?”

In “end of life” cases such as Alfie’s, or the similarly tragic case of Charlie Gard which came before the court last year, exactly the same principle applies.

Very often, of course, parents and doctors agree. The answer is often not clear. Medicine is an art as well as a science and there is often great uncertainty. Parents are usually happy to be guided by medical advice, and doctors are prepared to be flexible and to accommodate the views of parents as far as they can. Compromises can often be reached.

There are occasions, however, when a doctor’s professional obligations towards a patient and the parents’ wishes are simply incompatible. Devout Jehovah’s Witnesses, for example, may refuse to give consent to their children having a blood transfusion, a theme that formed the subject matter of Ian McEwan’s novel The Children Act. In such cases the need to save a child’s life will usually over-ride the parents’ wishes to adhere to the terms of their religion.

When doctors and parents cannot agree, unless parents are given carte blanche to do anything they like, someone must decide. The role of the Judge is:

… to take over the parents’ duty to give or withhold consent in the best interests of the child. It is the role and duty of the court to do so and to exercise its own independent and objective judgment.” [See eg: Kings College Hospital NHS Trust v. Thomas and Haastrup [2018] EWHC 127 (Fam)]

There are some – almost certainly a tiny minority – who hold the view that no matter how onerous or burdensome a life may be doctors should always strive to preserve it for as long as possible. People and organisations who adhere to such a view have featured in Alfie’s case.

Others take the view that occasionally a life, even that of a child, can be so intolerable, or so futile, that medical attempts to eke it out as long as possible are wrong.

Unless we adopt the ultimately cruel position that all life should be extended as long as possible, whatever its quality, someone eventually has to decide when treatment should stop.

Neither the religious or other beliefs of the parents, nor the depth of their love and devotion alter the fundamental question: “what are the child’s best interests?” The law does not permit active euthanasia – whether it should do so is another question – but it does not always require doctors to continue to provide treatment when its only effect is to extend an intolerable or a futile life. Sometimes the best possible medical treatment is palliative, with the aim simply of reducing pain and discomfort. Patients who are able to make their views known can, and often do, tell their doctors to desist from life-saving treatment. Children too young or too sick to voice a wish do not have that option.

Who should speak for the child? The parents will almost always be the child’s strongest advocate, (although the law also provides for the appointment of a “guardian,” an independent voice in court to argue for what he or she perceives as the child’s interests). But just as parents can sometimes be wrong in demanding that treatments (such as blood transfusions) be shunned, so they can also sometimes be wrong in demanding that futile treatment be continued. Such cases are very rare; but to give parents the final say in law is not to uphold the rights of the child, it is to remove them.

In Alfie’s case the question was whether his best interests were served by continuing with life-sustaining treatment, including the provision of artificial ventilation and feeding by means of a tube into the small intestine, or by withdrawing it and concentrating only on palliative care. The former option could have kept him alive in a “semi-vegetative state” almost indefinitely. The latter, predictably, led to his death within a few days.

Since such cases only come before the court when there is an irreconcilable disagreement between parents and hospitals the judge is inevitably being asked by the hospital to do something with which the parents profoundly disagree. Little wonder, then, that parents often feel that their distress over the critical illness of their child is compounded not just by fighting a life and death legal dispute, but also by a growing realisation that their views about their beloved child are accorded no more legal importance than those of the doctors.

In fact, although in principle the judge is not bound by the views of the doctors any more than by those of the parents, in practice the central issues are likely to be matters of medical expertise which the parents will struggle to gainsay. For example, Mr Evans put forward videos of his son yawning as evidence that Alfie still had powers of voluntary movement. The medical explanation was that these yawns were simply reflex actions, consistent with the scans and other evidence that showed that Alfie’s brain had almost entirely wasted away. However kindly and humanely the judge may try to put it, and any fair minded reader studying the judgment of Hayden J will be impressed by the agonised humanity shining through almost every sentence, the views of the parents will in most cases count for less than those of the medical experts.

Many of us will have known close relatives suffering from terminal illness. A few will have endured the unspeakable pain of watching their own children die. To undergo that while simultaneously conducting High Court litigation, with the dawning realisation that the weight of medical expertise favours a course which will hasten your child’s death must be almost unbearable.

They were unrepresented at the original hearing in February. It is not altogether clear why that was so; since the dispute with Alder Hey began they have instructed (according to Hayden J.) “a long succession of lawyers,” but it cannot have made this crucial hearing any easier that they – most of the actual advocacy was done by Mr Evans – represented themselves in court. I have been a barrister for thirty years, and I would still find the prospect of representing a client in a High Court case involving internationally renowned medical experts and opposed by Queen’s Counsel a daunting prospect. For a young couple barely out of their teens to do so in a case of this importance is beyond my imagination. That they did not buckle completely under the pressure is astonishing. In fact the judge was lavish with his praise of how Tom conducted the advocacy:

[His] presentation of his case was extraordinarily impressive. His knowledge of the paperwork and the medical records was prodigious. His understanding of the functioning of the brain and his exploration of competing hypothesis was remarkable. At one point in the evidence when he had asked a question of particular complexity I asked him if somebody had been providing the questions for him. He told me, entirely convincingly, that he had written it out a moment or two before. His uncle, sitting next to him, confirmed it.Alfie could have had no more articulate voice on his behalf than his father’s in this Court room.”

Before the case the parents had had solicitors who commissioned several independent expert opinions, all of whom agreed with the doctors at Alder Hey that Alfie’s medical condition was hopeless. His brain had deteriorated to an extent that all agreed was “catastrophic and untreatable.”

One of the independent experts instructed by the family was a Dr Samuels, a Consultant Respiratory Paediatrician. He was asked in evidence about the fact that Alfie appeared on occasion to demonstrate “physiological changes” in reaction to movement, light and sound. There were three possible explanations for this: basic reflex; seizure related activity; association with discomfort.” It was unclear whether Alfie had sufficient consciousness even to suffer pain, but he certainly lacked any means of demonstrating it if he did.

Another doctor put it this way:

I believe that is it unlikely that Alfie feels pain or has sensation of discomfort but I cannot be completely certain of this since Alfie has no way of communicating if he is in pain or discomfort. I believe that given Alfie’s very poor prognosis with no possible curative treatment and no prospect of recovery the continuation of active intensive care treatment is futile and may well be causing him distress and suffering. It is therefore my opinion that it is not in Alfie’s best interests to further prolong the current invasive treatment. It would, in my opinion, be appropriate to withdraw intensive care support and provide palliative care for Alfie for the remainder of his life.”

A third doctor thought that although it was unlikely that Alfie could be conscious of pain:

“… as [he] is unable to communicate, it is important to consider whether, despite his inability to respond, Alfie may still have some awareness of pain and discomfort and this should therefore be kept to an absolute minimum considering that he might still be able to “feel” uncomfortable sensation I think it is unlikely that Alfie has any ability to be reassured by the voices and touch of his parents.

In short, there was a medical consensus that further treatment would be futile and carried at least a small risk that it would be actively painful.

Alfie’s was not even a case like that of Charlie Gard where there was at least a proposal for experimental treatment. Even his parents accepted that no cure and no improvement was possible. Nor, in the main, did they dispute the medical evidence; indeed their own independent doctors agreed with those at Alder Hey about Alfie’s prognosis.

The only real area of disagreement was about what should be done. The parents’ alternative plan was to transport Alfie first to Italy, where he would be kept at the Vatican Bambino Gesu Hospital and from there, if that did not work, he would be flown to Munich where, for a cost of 65,000 Euros (not including transport) he would be subjected to a tracheostomy and a gastrostomy and kept in the Paediatric Intensive Care Unit for 14 days while the parents were trained to manage a home ventilation system. It is unclear from the judgments whether the plan thereafter (assuming Alfie survived the journey) was to remain in Munich, and in any case, as Lady Justice King put it in the Court of Appeal, “Mr Knafler [leading counsel for Mr Evans in the Court of Appeal] was unable to help the court to understand why the father’s proposal involved Alfie being transferred to both Italy and Munich.”

Applying the “best interests” test the judges decided that to fly Alfie around Europe to various different hospitals, to conduct surgery not for the purposes of effecting a cure, but simply to extend his life was not in his best interests. Transport and surgery of the sort proposed was not without its risks, and if indeed Alfie was capable of pain those risks included subjecting him to unnecessary and pointless pain.

Like the case of Charlie Gard last year, Alfie’s case, and the desperation of his young parents, has been ruthlessly exploited by many with their own axes to grind.

An American based pro-life activist called Christine Broesamle contacted Mr Evans early in the year, after reading one of his Facebook posts. Just as her contacts had offered to fly Charlie Gard to Rome, so she said the same thing could be done for Alfie. She also arranged for German and Italian doctors to visit Alder Hey posing as friends of the family. One of those doctors falsely claimed to have seen Alfie’s medical records, then pronounced Alfie “fit to fly” suggesting that he could be prescribed an anti-convulsant which was “entirely contra-indicated by his medical history”. It was a gross breach of professional ethics, nothing less than a publicity seeking subterfuge which unsurprisingly did more harm than good to Mr Evans’s case.

The Evans family were also put in touch with an organisation called The Christian Legal Centre – described in court as “a campaigning organisation” (it campaigns against abortion and gay rights) – which became publicly involved after the parents lost the first two rounds of argument in the High Court and the Court of Appeal, and once the Supreme Court had ruled that it would not conduct a full hearing (although it did give a brief ruling on the basis of the papers alone). At that stage the parents’ legal options in this country would normally have been exhausted.

Associated with the CLC was a man called Pavel Stroilov, a Russian exile who has worked as an adviser to the current UKIP leader Gerard Batten. He is some sort of law student and wrote a letter which said:

“as a matter of law it is your right to come to (the) hospital with a team of medical professionals with their own life-support equipment and move Alfie to such other place as you consider is best for him. You do not need any permission from (the) Hospital or the court to do so.”

This advice was flatly, unarguably wrong.

One of the many rather mysterious things about the case is quite why the Christian Legal Centre needed to rely upon the legal advice of a law student when its own director, Andrea Minichiello Williams, describes herself to Companies House as a barrister (although for some reason she does not seem to be listed on the Bar Council directory of practising barristers). Even if Ms Minichiello Williams’ own legal knowledge is a little rusty, she had available to her the services of a practising barrister, Paul Diamond who for ten years has been “standing counsel” to the CLC. Indeed, as long ago as 2008 Mr Diamond, a sole practitioner who gives his address as a post office box in Cambridge, was paid £100,000 p.a. for his services, which would appear to be something of a waste of money if they relied on the word of a law student instead.

Mr Evans did what was suggested. He turned up at the hospital equipped with a foreign doctor and the staff of an air ambulance and asked to remove Alfie. There was some sort of confrontation, and the Police were called. Back to court the parents went, now represented by Mr Diamond on a “habeas corpus” application that can only be characterised as legally nonsensical – I suppose we can’t blame the law student for that, it must have been Mr Diamond’s idea – which was struck out by both Hayden J. and the Court of Appeal, as it inevitably would be; with remarkable under-statement they described the application merely as “misconceived.” The only rational explanation for bringing such an obviously misconceived application was that it garnered a great deal of publicity for the Christian Legal Centre.

Far from helping the desperate parents it is impossible to view the involvement of the CLC as anything other than exploitative.

The nadir came with the announcement that summonses had been served on doctors at Alder Hey Hospital, charging them with conspiracy to murder: a pure publicity stunt with not even a veneer of legal respectability. Since it is inconceivable that a barrister such as Mr Diamond could advised on such a course, which could have laid Mr Evans open to being sued for malicious prosecution (although I am sure that the doctors at Alder Hey would not dream of doing so), and any lawyer associated with it to be hauled up before his or her professional regulator, we must assume that the advice to issue the summonses came from the law student.

By now there were angry and intimidating crowds outside the hospital, with no thought given to the parents of other sick children, and even less of the doctors trying to treat them. A vicious social media mob whipped itself into action; and as the legal applications became ever more absurd, so the personal abuse of the judges grew.

Hayden J. was described as a “murderer.” He was accused of torture. His face was posted on social media with a Hitler moustache added. His sexuality was mocked. There was a call for him to be hanged.

Through all this, it should perhaps be noted, there has not been a single word of public support from David Gauke the Lord Chancellor. One of the requirements of his job is that he “defend the independence of the judiciary.”

The Pope became involved and granted Mr Evans an audience in Rome. He is said to have arranged for a “military grade” aircraft to be made available to fly Alfie to Italy. It was oddly inconsistent of the Pontiff because His Holiness had himself written a letter to the Pontifical Academy for Life as recently as November 2017 in which he appeared to disapprove of excessive treatments designed to prolong life:

The growing therapeutic capabilities of medical science have made it possible to eliminate many diseases, to improve health and to prolong people’s life span. While these developments have proved quite positive, it has also become possible nowadays to extend life by means that were inconceivable in the past. Surgery and other medical interventions have become ever more effective, but they are not always beneficial: they can sustain, or even replace, failing vital functions, but that is not the same as promoting health. Greater wisdom is called for today, because of the temptation to insist on treatments that have powerful effects on the body, yet at times do not serve the integral good of the person.”

One could hardly put the case for avoiding pointless surgery more clearly, yet here was the Holy Father seemingly advocating just that for Alfie. If it was anyone but the Pope one might almost accuse him of taking up a bad cause in a quest for popularity.

The granting of Italian citizenship to Alfie was yet another legal non-starter: its ostensible purpose was to persuade the Court that he should be able to travel to Italy as a matter of freedom of movement under EU law. More precious time was wasted while Mr Diamond was criticised by Hayden J. for talking “ridiculous emotive nonsense” and “using the court as a platform for platitudes and soundbites” instead of making proper legal submissions. That was polite compared to his description of Mr Stroilov, who he described as a “fanatical and deluded young man.”

The platitudes and soundbites and ridiculous emotive nonsense were never going to win in court, but they were effective nonetheless; they helped to ensure that Alfie became a cause celebre for still less savoury and scruple free characters on both sides of the Atlantic.

Nigel Farage denounced the proceedings as state sponsored euthanasia, although it was not state sponsored and it was not – even by the strict definition of the Catholic Church – euthanasia. No doubt he too thought it was easier to talk in populist platitudes and sound-bites than actually to address the difficult issues.

Polish, Italian and Spanish social media accounts joined in, and keen not to be left out American politicians too decided to exploit Alfie to make a case, extraordinarily, against “socialized medicine,” ignoring the fact that the outcome would have been identical if Alfie had been in a private hospital.

Senator Ted Cruz, at one time a presidential contender, spoke out, and spoke nonsense:

Alfie’s parents, Kate James and Tom Evans, wish to seek experimental treatments for what is thought to be a mitochondrial condition. Italy has granted Alfie citizenship and offered to transport him to a Vatican hospital.”

It was fake news of the first order, or what used to be called a lie. There was no experimental treatment on offer, either in Italy or anywhere else.

Cruz developed his theme:

It is a grim reminder that systems of socialized medicine like the National Health Service (NHS) vest the state with power over human lives, transforming citizens into subjects.”

Again, this was rubbish. Had the Evans family been living in America it is unlikely that Alfie would even have survived as long as he had, unless of course they had had the money to pay for the paediatric intensive care that has kept him alive for months at Alder Hey. And in any case American law, just like English law, permits doctors to go to court for permission to stop providing artificial ventilation to children: just ask the parents of Los Angeles baby Israel Stinson, whose ventilation was removed in 2016 by court order.

The Conservative Review, another American journal exercised about the dangers of socialised medicine, accused the “British Government” of taking Alfie off life support, as though our socialist Prime Minister Theresa May, had simply decided to kill a sick baby for the hell of it, or perhaps because she was left wing.

The tsunami of stupidity from the American right continued after Alfie’s death.

Newt Gingrich tweeted:

The British government’s decisions to allow two critically ill babies to die in two years is a natural reflection of the culture of death and the steady increase in totalitarian tendencies among Western governments.”

Yet amidst the tumult there were still some relatively sensible voices.

UKIP MEP Steven Woolfe called for an “Alfie’s law” which would require:

“ … the parents defending their child´s life before the state as equality of arms, namely a fully funded legal team with access to medical and legal expertise, as the NHS now enjoys without any scrutiny. This independent advocate must not be appointed by Court or the NHS but must be provided at the earliest opportunity, when a hospital is first applying to court.”

In fact all this was available to the Evans family anyway; certainly they were able to instruct six different legal teams, as well as various eminent independent doctors from both Britain and abroad all of whom agreed with Alder Hey about Alfie’s medical condition. On the other hand legal aid isn’t available in such cases unless you are very poor, so yes it is a very good idea and no, it probably won’t happen. Charlie Gard’s parents, for example, could only be represented because their lawyers had agreed to act for free, an obviously disgraceful state of affairs. Surprisingly for a UKIP politician, Mr Woolfe’s point that such cases should be contested with “equality of arms,” is a form of words that seems to have come directly from the jurisprudence of the European Court of Human Rights, an excellent example of how the civilising culture of that court has been able to insinuate its way into the most unexpected places.

Fraser Nelson, the civilised and persuasive editor of the Spectator, also called for an Alfie’s law. His version would give parents the right to take their children abroad for treatment once the NHS has done all it can. It sounds superficially attractive and moderate until you realise that it would mean giving parents the right to take decisions which could be flatly against the interests of the child.

Far from being a fitting memorial such a law would be utterly regressive. Since the middle of the nineteenth century the High Court has been able to exercise an inherent wardship jurisdiction over children, and when it has done so the principle on which it has always acted has been to promote the best interest of the child, as determined by the judge, See Re W [1990] 1 FLR 203 (Incidentally, the ancient jurisdiction of wardship, with its origins in feudalism and its modern usage dating from the days of unrestricted free market capitalism, gives the lie to those historically illiterate American conservatives who see judges being involved in issues about the care of children as being in some way akin to socialism).

If Mr Nelson’s proposal were to be in any way effective, as opposed to a pointless gimmick, it would turn the law back in the direction of the early nineteenth century when children were little more than the chattels of their parents.

It would be absurd, and a victory for the most disreputable religious bigotry, for English law to take such a turn now. We should instead celebrate the fact that we have, on the whole, brave and independent family court judges who follow clear and long-established principles of law. Of course their decisions are not always correct but no good will come from tinkering with the fundamental principle of English law that moral dilemmas about the treatment of children can only be properly resolved – as they have been for over 150 years – by relying on the judiciary to listen to the evidence and then to decide what is best for the particular child involved. That is certainly not unjustifiable government interference in the rights of parents; it is upholding the rights of the child. Nor is it socialism; it is, in fact, the very essence of liberal individualism.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

26 thoughts on “No, we don’t need an Alfie’s law.”

  1. The law should not be used to protect the reputation of British doctors. If British doctors have given up on treatment, then doctors abroad should be allowed to take over and use more cutting-edge science on patients. It seems that British doctors want the courts to protect them as the final arbiters of medicine, when in fact we know that medicine, and specialists can be more advanced in other countries.

    To rely on British doctors alone is wrong, and courts ordering treatment to stop, and allow patients to starve to death when doctors in other countries are willing to take over. Parents should have the right to make decisions about their own children

    British judges are being used to disparage Italian and German doctors and prop up the reputations of British doctors which seems to be wrong, particularly as the judges do not seem to call non-British doctors to speak in court. Had Alfie’s parents been wealthy they may have sent Alfie to Italy, Germany, or the USA before the courts were involved?

    British doctors taking this case to court extended Alfie’s suffering by not allowing him to be treated abroad, simply to promote their own careers, when Alfie could have been receiving treatment abroad as soon as British doctors had given up?

    If doctors offer treatment in other countries the courts should not be allowed to hold up that treatment for any reason, let alone to protect their reputations.

    1. This is self evident nonsense. All acknowledged that there was no new treatment offered by the foreign hospitals. As to the suggestion that parents should have the right to make decisions about their children, as has been clearly expressed in other comments chidren are individual citizens entitled to the protection of the law.

    2. You are arguing on the wrong point. Reading the article, the parents’ plan was to have a tracheostomy and a gastrostomy performed on Alfie, then be trained to manage a home ventilation system. All this is well within the capabilities of British doctors, especially those at a specialist hospital like Alder Hey.
      The question isn’t whether these things can be done, but whether they should be done. There was a risk that carrying on in this way could have caused suffering to Alfie. The parents apparently wanted to have this done, but although it might have made them feel better, that’s not the job of the courts. Their job is to protect the child in the case before them from unnecessary suffering. That’s what they did, and they should be respected for their careful handling of a difficult situation.

  2. Its a sad and tragic case for all concerned. I read with interest an on line commentary from a doctor who explained the medical complexity of the boy’s condition and it seemed clear that nothing further could be done.
    Its every parents wish to protect their child and secure its future, and as medical treatments continue to develop and new treatments discovered, it only sustains the hope that the next treatment will succeed.
    However difficult for the parents, the law is correct and it ultimately has to be about the welfare of the child and what is the best and most compassionate course of action. Of course this will bring emotions to the fore, particularly if third parties are providing hopeful disinformation. Much as I often criticise our archaic laws, judiciary and legal system, which often make a mockery of those involved, here I believe it is the right instrument to bring a resolution here.
    The actions of some on social media leading to demonstrations and threats should be investigated. The ‘Twatterati’ get away with this behaviour to often and its high time the perpetrators were identified and punished.

  3. Matthew

    I wrote a response earlier, but it has obviously got lost in the ether.

    I listened to the audio file over lunch and it played without problem on a Windows 10 PC.

    I thought it an interesting and balanced summary of what was a most tragic case.

    Regards

  4. That was fantastic. I’m a really big fan of Law podcasts. Most of mine come from across the pond, by necessity ( This Week in Law, Popehat, What Trump Can Teach us About Constitutional Law.)

    Matthew Scott on audio is music to my ear holes.

  5. Matthew, thank-you once again for another excellent post. I have just written the below in response to Facebook post and thought I would also share it here. Please delete if you feel it is far too long! It borrows just a little bit from the ideas put forwards in your post and is of course preceded by a link to this page!

    Simply put, I believe that a parents core function is to take care of their child, to do what is best for them. Almost all of the time, this is a role that parents perform.

    I find it inconceivable that anyone could think that, under no circumstances whatsoever, should the state (if by ‘the state’ you mean the independent judiciary – who, on a side note, have no political affiliation/connection, unlike in the States) intervene when it is clearly in the best interests of a child to do so. The situations range from parents who criminally abuse their children (and who wish to do them harm) to parents who are simply (perhaps unfortunately) unfit to look after their children (for instance, those with severe substance addictions who are mentally unwell) and to those parents who are going through the ‘everyday’ occurrence of a divorce and cannot agree who should have custody of their child.

    To the above examples as to when the state may be warranted to intervene, I would add the polar opposite of the Alfie Evans situation – that is, a situation in which the parents (say, who are Jehovah’s Witnesses) refuse to give consent to potentially life-saving treatment (say, a simple blood transfusion) against all medical advice. In that case, I think that most people would agree that it would be right for the state to intervene despite the parents’ sincere wishes.

    Looking specifically at the situations contrasted of where medical advice is negative versus where it is positive (for instance, Alfie versus the parents who are devout Jehovah’s Witnesses), I do not believe that there is a logical, principled, basis for the law to make a distinction between the two. Both situations involve parental autonomy being interfered with, both involve a moral dilemma, both involve a pitting of love and affection against cold hard science and both involve a decision by an independent and objectively minded judge.

    English law agrees. As a starting point, English law gives a large margin of appreciation to parents – in other words, there is a strong presumption that parents are best placed to decide what is in their child’s best interests. It is therefore rare that a court ever has to intervene. However, there comes a point where everyone should accept a court tasked with a thankless position must “take over the parents’ duty to give or withhold consent in the best interests of the child. It is the role and duty of the court to do so and to exercise its own independent and objective judgment.”

    This is not unique to English law. Any civilised society (especially those which are common law jurisdictions) will have similar laws – the USA included.

    In this case, the medical evidence was clear. There was nothing that could be done for Alfie. For all the doctors knew, he might have been in considerable discomfort and pain, but was unable to express that. Therefore, considering the best interests of Alfie, the judge concluded that it was in Alfie’s best interests to receive only palliative care. As for transporting Alfie to another country for treatment, that was ruled out as being too risky and, more importantly, pointless – the medical evidence which Alfie’s own legal team and parents gathered said that he had no chance of recovery.

    Finally, just some concluding points and matters of clarification–

    1. To anyone who might have been misled into thinking that this case represents some kind of state-sponsored euthanasia – and that this is a product/risk of socialised, state-funded, healthcare – you are wrong. The fact that, for 18 months, Alfie received world-class treatment free of charge on the NHS had nothing to do with the decision. The exact same law would have applied, and the exact same decision would have been reached, had Alfie been receiving private healthcare.

    2. In very general terms , adults with mental capacity can do what they like with themselves and that does not concern me. But to say that an adult who is free to do any manner of stupid and dangerous things to him/herself is also free to inflict that on their child, I consider, is preposterous.

    3. I have seen the judge been called ‘evil’, ‘heartless’ and all manner of things. To me, the judge clearly is none of the terrible things which he has been called. His judgment clearly conveys his heartfelt sorrow at having to make this decision. He was not emotionally detached, he himself went to visit Alfie. Further, he did all he could to try and encourage the parents to just spend some time with their boy and try and find a way in which he could die in peace at home rather than in the hospital. Instead, the parents spent weeks litigating in what turned out to be (wait for it): the High Court; the Court of Appeal; the Supreme Court; the European Court of Human Rights (which rejected the case as being without any merit); before again coming back to the High Court and then the Court of Appeal and the Supreme Court (when the Italian government made a ridiculous attempt to try and subvert the court’s jurisdiction by granting Alfie, in what can only be described as a complete sham, Italian citizenship; and certain (sorry to say mainly American) religious groups with no legal or medical knowledge encouraged Alfie’s parents that there was hope for Alfie’s prognosis (when clearly there was not). I hope that Alfie’s father does not come to regret that precious time which he spent away from his child.

    4. For anyone interested in reading about a similar (if not much more antagonising) moral dilemma, I would encourage them to read up about the case of Re A (conjoined twins) [2001] 2 WLR 480. In that case, the choice was between leaving two conjoined twins connected, whereby they would both die within months, or separating them, leading to the inevitable and fairly quick death of one, Rosie. One of the judge’s in that case, sadly recently deceased, wrote a fantastic blog post about the case many years later. It is a fascinating insight into the decision. As it turns out, the parents – who were at the time staunchly against the separation for medical, religious and cultural reasons – are now eternally grateful that the decision was taking out of their hands. Gracie, the (spoiler alert) surviving twin, is now a perfectly healthy teenager who wishes to study to become a doctor. Blog post here: https://sirhenrybrooke.me/2015/10/12/my-talk-about-the-conjoined-twins-case/

    5. Finally, I don’t particularly want to get into religion, but it has amazed me how far some religious attitudes to medical care have come. Not long ago, people were not exactly happy about death, but they accepted that it was a natural fact of life and, if it occurred, it was God’s intention. I think they would have been horrified at the lengths some of the religious groups in Alfie’s case wanted to go to keep him barely alive – clearly against the natural course of things. I can do no better than quote the words of the pope himself, who wrote to Alfie’s parents with the following words:

    “The growing therapeutic capabilities of medical science have made it possible to eliminate many diseases, to improve health and to prolong people’s life span. While these developments have proved quite positive, it has also become possible nowadays to extend life by means that were inconceivable in the past. Surgery and other medical interventions have become ever more effective, but they are not always beneficial: they can sustain, or even replace, failing vital functions, but that is not the same as promoting health. Greater wisdom is called for today, because of the temptation to insist on treatments that have powerful effects on the body, yet at times do not serve the integral good of the person. Some sixty years ago, Pope Pius XII, in a memorable address to anaesthesiologists and intensive care specialists, stated that there is no obligation to have recourse in all circumstances to every possible remedy and that, in some specific cases, it is permissible to refrain from their use (cf. AAS XLIX [1957], 1027-1033). Consequently, it is morally licit to decide not to adopt therapeutic measures, or to discontinue them, when their use does not meet that ethical and humanistic standard that would later be called “due proportion in the use of remedies” (cf. CONGREGATION FOR THE DOCTRINE OF THE FAITH, Declaration on Euthanasia, 5 May 1980, IV: AAS LXXII [1980], 542-552). The specific element of this criterion is that it considers “the result that can be expected, taking into account the state of the sick person and his or her physical and moral resources” (ibid.). It thus makes possible a decision that is morally qualified as withdrawal of “overzealous treatment. Such a decision responsibly acknowledges the limitations of our mortality, once it becomes clear that opposition to it is futile. “Here one does not will to cause death; one’s inability to impede it is merely accepted” …Catechism of the Catholic Church, No. 2278). This difference of perspective restores humanity to the accompaniment of the dying, while not attempting to justify the suppression of the living. It is clear that not adopting, or else suspending, disproportionate measures, means avoiding overzealous treatment; from an ethical standpoint, it is completely different from euthanasia, which is always wrong, in that the intent of euthanasia is to end life and cause death…”

    1. Excellent link to the conjoined twins case: thank you. It does, alas, make me despise even more everything I’ve read by Americans on the Alfie Evans and Charlie Gard cases. The politicians may simply have been dishonest, of course, but the laymen seem to me often to be advocating downright wickedness. To prevent my becoming anti-American in my old age, would anyone care to direct me to any intelligent American discussions of such cases.

  6. “Ill-informed voices from America …”: sadly, the usual sort – shoutily ignorant, foolishly arrogant, and forever on the edge of hysteria. The decline of the US since, say, the time of Eisenhower is awful to behold.

  7. On a legal note: I saw an article somewhere that said that the right of the English courts to interfere between father and child goes back to the 17th century. Is that right, do you happen to know?

    1. Yes, it is right, although I don’t think the Wardship jurisdiction in the seventeenth century was really about the welfare of the child. That said, I am no expert on legal history, certainly not that far back!

  8. Dear Matthew

    Why were the trials Tommy Robinson and the SAS were covering restricted from reporting? Why are these trials never covered by the MSM when trials of celebrities, for example, on similar charges, are very fully covered? (Though not as fully as the Thorpe trial.) What was the exact nature of his contempt? Why was he arrested for breach of the peace rather than contempt? Why weren’t the SAS prosecuted in the same way? And why was his own trial and imprisonment also secret? (In what way did it prejudice the other trials?)

    I would be grateful if you can answer these. There is no hope of getting this information from journalists or reporters.

  9. Dear Matthew

    Why was Tommy Robinson arrested for breach of the peace and then convicted of contempt of court? Doesn’t this suggest he was wanted on any count? Why weren’t the SAS who were also livestreaming outside the court and giving names and faces, also prosecuted? Why are only some people prosecuted for contempt? Lady Hale, for example, went to Kuala Lumpur and lectured on the details of the Miller case before she had heard it. She not only failed to recuse herself but was rewarded with the Presidency of the Supreme Court. Why, for that matter, was Lord Mandelson not given a prison sentence for mortgage fraud? What was the exact nature of the Robinson contempt? Why are these particular trials being held in secrecy when celebrities, for example, are charged and tried in the full glare of publicity (though none so fully reported as the Thorpe trial)? Why didn’t one policeman caution him instead of seven arresting him? He was already asking for guidance and getting the answer that it was OK. This again suggests premeditated behaviour on the part of the authorities.

    I would be grateful if you could answer these nagging questions as there is no hope of the MSM doing it.

  10. An excellent article, well-argued and comprehensive.

    I don’t think it works very well as a podcast. Your delivery is too monotonous and the text doesn’t suit being read aloud.

    I wonder how you might make the same points in a trial’s closing speech, and whether that might be a better way to approach audio essays, rather than straight readings of articles.

    Joe

  11. I did not read this article of Matthew’s until 8th June. If I’d read it on 30th April, I’d have agreed with it, without demur, except perhaps for the title.
    It crossed my mind, before Alfie died, that a slight change in the law might be needed. What I had had in mind was that in future something like a damning judicial review finding ought to precede a state court order to substitute the state’s value judgment as to what was in the best interests of a child, for that of the child’s parents. Rather than the state making its own value judgment on the balance of probabilities, and then simply substituting its value judgment for that of the parents, perhaps the state ought to have to find that the parent’s value judgment was such that no reasonable parent, properly informed, could possibly make the value judgment as to the child’s best interests that the parents had made, and which the court was being asked to overrule.
    With this idea in the back of my mind, and with so much ill-informed comment flying about, I resolved to bide my time, and wait for more facts to emerge. Not least because of conspiracy theories which I have since learnt are far from unevidenced, and demonstrations by Alfie’s “army” that used rhetoric reminiscent of demands for the “release” of political prisoners, who had been detained by decree of the state, despite not having been convicted of any offences.
    When Alfie eventually died, I wrote to the coroner, and asked him please to let me have information about the inquest. I was interested in attending it, learning about it, writing about it, and its verdict. That correspondence of mine with the coroner, which is very telling, is published on my JohnAllman.UK blog (q.v.).
    I resolved to seek judicial review of the coroner’s decision not to hold an inquest, and therefore to keep secret all the information that had informed hs decision, the very information I’d hoped to learn from the inquest I had expected.
    I therefore wrote to the Christian Legal Centre, asking them kindly to obtain the instructions of their client, and to communicate them to me, as regards my suggestion that, since I was going to apply for judicial review of the coroner’s refusal to hold an inquest, Alfie’s parents ought not to bury or cremate Alfie’s remains the following Monday, lest that destroyed evidence that might inform any future inquest. I’ve had a lot of correspondence with the Christian Legal Centre. My most recent, and most formal email is also published on my blog.
    Having received no formal reply from Alfie’s parents, via their lawyers (i.e. the Christian Legal Centre), on the day of Alfie’s funeral, 14th May 2018, I was in Court 37 at the RCJ, first thing in the morning, attempting to obtain, ex parte, an emergency injunction preventing (at least) the cremation of Alfie’s body, that day.
    I admire Matthew’s blog, which I find scholarly and readable. For example, this post, written before I got embroilled in the whole Alfie thing myself, is exemplary, from the point of view of anybody convinced that the official version of what happened to Alfie is true. My purpose is not to challenge the official version. It is merely to challenge the coroner’s decision not to challenge the official version himself, which strikes me as wrong.
    The British state, through its courts, including the Supreme Court, placed Alfie in an intendedly lifelong de facto detention at Alder Hey hospital, as far as the ordinary, dictionary meanings of words “state” and “detention” go. Reportedly, Her Majesty’s courts found that the state had detained Alfie lawfully (if at all, that is – they weren’t sure enough about that to blurt it out). So Mr Diamond failed to get his writ of habeas corpus.
    Concerning Alfie’s detention, or at least his dictionary-meaning detention that wasn’t necessarily “detention” legally-speaking in the opinion of the clever judges; out-of-touch as those judges were with mobs of common people like “Alfie’s army”; judges who wavered on this very question we already know the answer to this question: Why was that detention (or quasi-detention as the case may be) lawful?
    Alfie’s detention (or quasi-detention), as Matthew has explained, was lawful because it was in Alfie’s own best interests. As the courts found Alfie’s interests to be, that is, informed only by the evidence available when Alfie’s best interests were judged. This evidence naturally only amounted to prognoses made by experts, predicting the eventual cause of Alfie’s death, and his prospects of recovery, and so on.
    In contrast, a post-mortem and a coroner’s jury inquest, informed by the evidence of a pathologist who had performed an official post-mortem examination, potentially revealing, far more scientifically, the actual cause of death, might allow the world to discover how good or bad had been the expert evidence that had sealed Alfie’s fate, when Hayden J heard it, and believed it.
    To put it simply, Hayden J had made a finding of fact that most of Alfie’s brain had somehow disappeared, and that nobody on earth knew why. A pathologist, conducting a post-mortem examination, ordered by a coroner, who was intending to empanel a jury, to deliver the common people’s verdict, as to the cause of Alfie’s death, would have sawn of the top of Alfie’s skull, and weighed whatever was left of his poor little brain, an admittedly macabre brutality which would have hurt nobody. We’d all then have found out how accurate, or inaccurate, had been Hayden J’s findings, that Alfie’s brain had shrunk, based upon the evidence of NHS experts that that had actually happened. The pathologist’s post-mortem report would have enabled a jury of ordinary people to calibrate the pessimistic predictions of experts, about which Matthew has reminded his readers, against the patholgist’s hard facts, obtained with the benefit of hindsight and sharp instruments.
    Why any coroner would want to go down in history as the principle actor in the Alfie Evans cover-up, I don’t know. But cover-up there is, always, when a coroner decides not to hold an inquest. If there hasn’t been an inquest, the general public cannot find out upon what information the coroner based his decision not to hold an inquest. Ensuring that the public is unable to find something out, is the essence of what a cover-up is.
    Matthew, I’d be grateful if you’d take another look at the Alfie Evans case, from my point of view. I risk my solvency, because I want a coroner’s jury to revisit the then certainties of Hayden J and the expert witnesses whose predictions he believed, with the benefit of hindsight and with the common touch that Mr Justices lack. I think that an inquest is the least the state ought to offer, when it substitutes its own value judgments of a child’s best interests for those of the child’s parents, intending a child therefore to die soon and while literally detained in a particular location by the state, as Alfie was, in his own best interests, as Hayden perceived them to be, at the time, on the evidence then available to him.

    1. I’m no expert on inquests, and I’m not sure what criteria a coroner applies to decide if there should be one. Presumably they are set out in a statute?

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