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European Court of Human Rights rejects appeal from Archie Battersbee's parents

Royal London Hospital
A British police officer stands guard at the entrance of the Royal London Hospital on June 2, 2006 in London, England. |

UPDATE: 8:30 a.m. ET Aug. 4: Archie Battersbee's parents submitted an application to a United Kingdom high court seeking to move their 12-year-old son to a hospice so he can receive palliative oxygen. The application was sent before the 9 a.m. Thursday deadline set by the lawyers for Barts Health NHS Trust. A hearing could come as early as Thursday afternoon.

Original:

The European Court of Human Rights (ECHR) rejected an urgent legal application from the parents of 12-year-old Archie Battersbee Wednesday to delay the removal of their son's life support.

The parents' application was filed just before the 9 a.m. Wednesday deadline from the lawyers for Barts Health NHS Trust Tuesday. The trust, which oversees Royal London Hospital, set a deadline of 9 a.m. Thursday for the parents to file a legal bid to have their son moved to hospice. 

Parents Hollie Dance and Paul Battersbee are considering their options after receiving offers from doctors in Japan and Italy to treat their son, according to a Wednesday statement from The Christian Legal Centre.

Battersbee was found unconscious in April with a ligature around his neck, suffering a "catastrophic hypoxic-ischaemic brain injury." He has not regained consciousness. 

CLC has represented the family in their efforts to prevent the Royal London Hospital from discontinuing the boy's treatment.

In a letter to the family and their legal team, ECHR stated that it would not interfere with the decision of previous judges who agreed with the hospital's assessment that removal of care was in Archie's "best interests." 

"We regret to inform you that on 3 August 2022 the President of the Court decided not to indicate to the Government of the United Kingdom, under Rule 39 of the Rules of Court, the interim measure you are seeking," ECHR wrote.

"Therefore the Court will not interfere with the decisions of the national courts to allow the withdrawal of life sustaining treatment from Archie Battersbee to proceed."

Dance said that the news is another "heart-breaking development" in her son's case. The mother questioned why he couldn't be given a chance if doctors in other countries are willing to treat him. 

"In a worst-case scenario, we want to take Archie to a hospice, but the hospital have said that we cannot do that despite previous promises," she said. 

"We have been told all along that this is all about Archie dying with 'dignity,' and yet we are told we cannot take him to a hospice where it is quiet and we can spend time with him as a family without the chaos at the hospital."

"We will fight to end for Archie's right to live," she added. 

Lawyers for Barts Health NHS Trust informed his parents Tuesday that the boy's life support could be withdrawn Wednesday. 

On Tuesday, the U.K. Supreme Court refused the parents' permission to appeal the removal of the child's life support. Dance and Battersbee filed a last-minute application to the court after a Monday Court of Appeal hearing. 

Secretary of State for Health and Social Care Steve Barclay called for the U.K. Supreme Court to refuse the parents' urgent appeal. Government lawyers submitted to the U.K. Supreme Court on his behalf that the interim measures injunction by the United Nations Committee on the Rights of Persons with Disabilities (UN CRPD) is "not binding" under international law. 

The UNCRPD had asked the United Kingdom last week to keep the boy on life support while it considered the case.

Government lawyers wrote that "the notion that interim measures are binding has not been accepted as a facet of customary international law. There is no such consensus. On the contrary, the status of the committees' decisions is a subject of some controversy."

Battersbee's parents argue that such an action breaches the U.N. Convention on the Rights of People with Disabilities and the U.N. Convention on the Rights of Children. 

Last Friday, the UNCRPD said that its special rapporteur on communications "requested the State party to refrain from withdrawing life-preserving medical treatment, including mechanical ventilation and artificial nutrition and hydration, from the alleged victim while the case is under consideration by the Committee."

"[T]his request does not imply that any decision has been reached on the substance of the matter under consideration," the response states. "The Committee may review the necessity of maintaining the request for interim measures once the State party's observations have been received.'"

In June, Justice Emma Arbuthnot ruled that the Royal London Hospital could discontinue Battersbee's life support, writing that the boy is likely dead "on the balance of probabilities."

Arbuthnot granted the parents permission to appeal, and in a July 15 judgment, Justice Anthony Hayden ruled that it is in the child's "best interests" for his life support to be removed.

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