Photograph: Hollie Dance/PA
The mother of 12-year-old Archie Battersbee has said his life support treatment will be removed at 11am on Wednesday, hours after a last-minute attempt to postpone the hospital taking action was rejected by the UK’s supreme court “with a heavy heart”.
On Monday, the court of appeal set a deadline of midday on Tuesday beyond which Archie’s treatment could be ceased.
Hollie Dance, 46, and Paul Battersbee, 57, from Southend-on-Sea, Essex, had sought a lengthier postponement but the court of appeal judges had granted only a limited extension to make an application to the supreme court to appeal against their decision.
However, on Tuesday morning, a panel of judges at the UK’s highest court, led by its deputy president, Lord Hodge, refused permission to appeal and Dance said Archie’s life support treatment would be withdrawn at 11am on Wednesday.
In a written decision, the judges said: “The justices have great sympathy with the plight of Archie’s devoted parents who face a circumstance that is every parent’s nightmare – the loss of a much-loved child.
“It is nonetheless the task of the court to apply the law which requires judges to give paramount consideration to Archie’s welfare. The court of appeal in its careful judgment delivered by its president, Sir Andrew McFarlane, yesterday, has exercised its discretion in refusing a stay. This court can overrule that exercise of discretion only if it is satisfied that the court of appeal has made an error of law or principle or has otherwise fallen into error in that exercise.”
They concluded that not only had the lower court “not erred in the sense mentioned above but that it made the correct decision”.
Dance indicated that they were exploring “one more [legal] option” but added “that really is sort of the end”. She said her son had been “let down’’ by the legal system.
She said on Tuesday night that Archie’s life support would be withdrawn on Wednesday at 11am unless the family had submitted an application to the European court of human rights by 9am. Dance later confirmed that they would be submitting an appeal to the court.
She said in a statement: “Our solicitors will be filing to the European court of human rights. They’ve been given a strict timeline of 9am. Again, no time whatsoever.
“Every single court case we’ve had we’ve had no time at all, one or two days to prepare and get the whole case together.”
On 25 July, the parents were granted a stay in the decision to remove life support specifically so they could apply to the European court of human rights but until now had chosen not to do so.
The hospital where Archie is being treated said it would now work with his family to prepare the withdrawal of his life-sustaining treatment after the supreme court ruling, adding: “Our deepest sympathies remain with Archie’s family.”
Archie has been in a coma since suffering a catastrophic brain injury on 7 April. Dance believes it resulted from him choking while taking part in a viral social media challenge.
The application to the supreme court for a stay was made so that the United Nations Committee on the Rights of Persons with Disabilities, which had been approached by Archie’s parents, could consider the case. The committee had sent a request to the UK government that life-preserving treatment be maintained while it considered the parents’ application.
However, the supreme court echoed the court of appeal in saying that the UN convention under which the committee operates is not part of domestic law, adding: “To give effect to the application for a stay in the circumstances of this case would be to act unlawfully, in conflict with the court’s duty under domestic law to treat Archie’s best interests as paramount, as the committee envisages a procedure for its consideration of the application which will extend into 2023.
“According to the law of England and Wales, Archie’s best interests and welfare are the paramount consideration. The panel reaches this conclusion with a heavy heart and wishes to extend its deep sympathy to Archie’s parents at this very sad time.”
A high court judge ruled in May that it was in Archie’s best interests for life support treatment to be withdrawn. His parents successfully appealed against the decision and the case was sent back to the high court to be heard by a different judge but they reached the same conclusion last month.
Permission to appeal against that decision was refused by the court of appeal. A stay applied to the second high court judge’s decision was extended after Archie’s father was taken to hospital with a suspected heart attack or stroke and to allow for further avenues of appeal, both domestically and internationally.
But the supreme court’s decision on Tuesday means Archie’s parents must now prepare themselves for the imminent death of their son, who had an “infectious enthusiasm for life”.
