Alfie Evans: Better off dead - The courts know best!

Reading the seven key court decisions in the tragic case of Alfie Evans is profoundly distressing. 

The mysterious illness that struck young Alfie and led to seizures and severe brain damage was never diagnosed. MRIs showed a profound deterioration of his brain that was, on all the evidence, irreversible.

In the circumstances, a choice to remove Alfie from a ventilator could be a legitimate choice to cease a treatment that may be imposing a burden on Alfie (there was some possibility he may be able to experience pain and discomfort) without providing any hope of recovery.

The real issue in this case was who was responsible for making decisions for Alfie.

The court proceedings were initiated by Alder Hey Children’s National Health Service Foundation Trust seeking an order from the Family Division of the High Court of England and Wales authorising the removal of the ventilator from Alfie with the expectation that he would die shortly afterwards.

Alfie’s parents, Tom and Kate, vigorously and adamantly opposed the proposal to withdraw the ventilator. Accepting that Alder Hey did not believe that it was in Alfie’s best interest to continue ventilation, Tom and Kate were working with Bambino Gesu Hospital in Rome to provide alternate care for Alfie.

At no stage did any court suggest that Tom and Kate were incompetent as parents or were likely do anything that would cause Alfie significant harm.

However, the series of court decisions which deprived Tom and Kate of any role in the decision making about Alfie’s medical treatment were ultimately based on two principles now enshrined in English law.

Firstly, “A child, unlike most adults, lacks the capacity to make decisions about future arrangements for themselves. Where there is a dispute, it is for the court to make a decision, as it would in respect of an adult without capacity. This is the gold standard by which most of these decisions are reached. It is an assessment of best interests that has been concluded to be perfectly clear.”[1] (underlining added)

Let’s be clear what this means. Whenever there is any dispute about any matter affecting a child that is brought before an English court, the court can simply disregard the wishes and views of the parents, even when all the evidence is that those parents are both loving and competent, and make its own unilateral decision as to the best interests of the child.

This judicial overreach goes well beyond the traditional and necessary role of the courts in stepping in to protect children from parental decisions or neglect that would cause significant harm to a child. The classic example is a court order for a child of Jehovah’s Witnesses to be a given a lifesaving blood transfusion despite the objection of the parents.

This approach to the best interests of children is profoundly flawed. It directly undermines the natural order in which parents instinctively love and care for their offspring, by subjecting their role as parents to the arbitrary interference of the courts. It assumes the courts have the wisdom  to determine infallibly the best interests of the child when, as every parent knows, this is not always clear.

Secondly, the court decisions were based on the utilitarian, quality of life, ethic that a person is “better off dead” than profoundly disabled.

Lord Justice MacFarlane, in the decision of the Court of Appeal that finally rejected Tom and Kate’s plea to let them transfer Alfie to the Bambino Gesu Hospital, opined:

if the welfare of the child is a primary consideration, when in relation to all the other factors in the case a judge has concluded that it is not in the best interests of that individual to carry on living and it is in the best interests of that individual to be allowed to die, one asks how can it possibly be disproportionate to hold that that person's right to go to a different hospital in a different country to access treatment.[2] (underlining added)

What gnostic, secret knowledge of life and death do judges possess that entitles them to decide that our children are better off dead?

Tom and Kate loved Alfie. They fought for him at great personal cost. English law let them down. It trampled on their role as parents and spat in their faces by telling them that the courts know best and that their Alfie was better off dead.

Alfie Evans rest in peace.

Alfie Evans court decisions

1.     Alder Hey Children's NHS Foundation Trust v Evans & Ors [2018] EWHC 818 (Fam) (11 April 2018) (View without highlighting) [141%] 
([2018] EWHC 818 (Fam); From England and Wales High Court (Family Division) Decisions; 11 KB)

2.     Alder Hey Children's NHS Foundation Trust v Evans & Anor [2018] EWHC 953 (Fam) (24 April 2018) (View without highlighting) [139%] 
([2018] EWHC 953 (Fam); From England and Wales High Court (Family Division) Decisions; 19 KB)

3.     Alder Hey Children's NHS Foundation Trust v Evans & Anor [2018] EWHC 308 (Fam) (20 February 2018) (View without highlighting) [129%] 
([2018] EWHC 308 (Fam); From England and Wales High Court (Family Division) Decisions; 77 KB)

4.     Evans & Anor v Alder Hey Children's NHS Foundation Trust & Ors [2018] EWCA Civ 805 (16 April 2018) (View without highlighting) [119%] 
([2018] EWCA Civ 805; From England and Wales Court of Appeal (Civil Division) Decisions; 49 KB)

5.     Evans & Anor v Alder Hey Children's NHS Foundation Trust & Anor [2018] EWCA Civ 984 (25 April 2018) (View without highlighting) [117%] 
([2018] EWCA Civ 984; From England and Wales Court of Appeal (Civil Division) Decisions; 44 KB)

6.     Evans v. the United Kingdom - 18770/18 [2018] ECHR 357 (23 April 2018) (View without highlighting) [47%] 
([2018] ECHR 357; From European Court of Human Rights; 6 KB)

7.     E (A Child) (Rev 1) [2018] EWCA Civ 550 (06 March 2018) (View without highlighting) [11%] 
([2018] EWCA Civ 550, [2018] WLR(D) 247; From England and Wales Court of Appeal (Civil Division) Decisions; 108 KB)

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[1] Justice Hayden, Alder Hey Children's NHS Foundation Trust v Evans & Ors [2018] EWHC 818 (Fam) (11 April 2018) at 8 citing Lady Hale.

[2] Lord Justice Macfarlane, Evans & Anor v Alder Hey Children's NHS Foundation Trust & Anor (Rev 1) [2018] EWCA Civ 984 (25 April 2018) at 32.