Strand, London, WC2A 2LL
B e f o r e :
| Alder Hey Children's NHS Foundation Trust
|- and -
|(1) Mr Thomas Evans
(2) Ms Kate James
(3) Alfie Evans
(A Child by his Guardian CAFCASS Legal)
Paul Diamond (instructed by The Christian Legal Centre) for the 1st and 2nd Respondents
Sophia Roper instructed by CAFCASS
Hearing dates: 24 April 2018
Crown Copyright ©
Mr Justice Hayden:
"A child's habitual residence in a state is the internationally recognised threshold to the vesting in the courts of that state of jurisdiction to determine issues in relation to him (or her). Article 8 of Council Regulation (EC) No 2201/2003 ("Regulation B2R") provides that the courts of an EU state shall have jurisdiction in matters of parental responsibility over a child habitually resident there at the time when the court is seised. By way of exception, article 12 confers jurisdiction on a state which has other links with the child but only where the parties have accepted its jurisdiction. Article 13 provides that, where a child's habitual residence cannot be established (which means where the child is not habitually resident in any EU state) and where article 12 does not apply, jurisdiction vests in the courts of the state in which the child is present. Article 14, entitled "Residual jurisdiction" provides that, where no court of a member state has jurisdiction under the preceding articles, jurisdiction shall be determined by the laws of each state."
"Regulation B2R extends beyond the identification of jurisdiction as between EU states themselves. It binds each EU state irrespective of whether the other state with potential jurisdiction is an EU state. Thus the Family Law Act 1986 ("the 1986 Act") now provides, by section 2(1)(a), that an order under section 8 of the 1989 Act may be made only if the court has jurisdiction under Regulation B2R or if other conditions, irrelevant for present purposes, are satisfied. By her application issued on 13 February 2014 the appellant applied for leave to apply for orders under section 8 of the 1989 Act and the result is that the court has jurisdiction to determine her application only if B was habitually resident in England and Wales on the date of its issue."
"Regulation 2201/2003 (B2R)
4. The scope of B2R includes parental responsibility. See:
1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:
(a) divorce, legal separation or marriage annulment;
(b) the attribution, exercise, delegation, restriction or termination of parental responsibility.
5. Parental responsibility is defined in Article 2(7)
"the term 'parental responsibility' shall mean all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access;"
6. General Jurisdiction is provided for in Article 8(1)
The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.
7. By Article 8(2), the effect of Article 8(1) is subject to the provisions of articles 9,10 and 12:
a. Article 9 – provides that where a child moves lawfully from one Member State to another and acquires a new habitual residence, the courts of the original Member State shall retain jurisdiction for three months;
b. Article 10 – deals with child abduction cases
c. Article 12 – addresses issues arising on divorce, legal separation or marriage annulment.
None of those provisions deprive this Court of jurisdiction."
"9. This said, like any patient coming off prolonged ventilatory support, Alfie was coughing and short of oxygen. For some six hours after the extubation, Kate and I begged the Hospital staff to provide some oxygen to him, in accordance with good practice of palliative care. The staff refused to do so for six hours on the grounds that the Court had ordered it was not in Alfie's best interests for his life to be supported. Likewise, the Hospital staff refused to provide hydration.
12. It cannot possibly be in Alfie's best interests now to suffocate or to starve him to death. His treatment must be resumed. This is inhumane and Alfie could continue in this state for weeks; this is distress to Alfie.
13. Further, it is clear that Alder Hey has let Alfie down badly, by incorrectly assessing his condition; persisting in that assessment in the face of inconsistent up to date evidence such as the videos, and our observations; and refusing even to talk to an eminent colleague - the president of Bambino Gisu who urgently came to Liverpool yesterday – for the fear she might contradict their view. We feel that Alder Hey would now rather let Alfie die unnecessarily than admit their mistake. We no longer have any trust in Alder Hey, and that trust cannot be restored. In these circumstances, it is not in Alfie's best interests to continue to be treated or cared for at Alder Hey.
15. With the greatest respect, we make similar criticism of the Courts, who have uncritically accepted the 'consensus' expert view. …
16. We feel that we are trapped in a cruel bureaucracy; and we have not received justice…"
"It is now clear that all orders made by the Court in this matter were based on a false premise. Alfie's condition is significantly better than the Court had thought."