Rejection of the Application for interim measures of the parents who requested that the life support mechanism of their sick child not be interrupted. The Application is inadmissible due to recourse to another international jurisdiction

JUDGMENT

Α.Β. and others v. United Kingdom 03.08.2022 (app. no. 37412/22)

SUMMARY

A 12-year-old child A.B., who suffered catastrophic hypoxic ischaemic brain injury in April 2022. Appeal initially to international jurisdiction of the UN and then to the ECtHR. Request for interim measures.

The case concerned the discontinuation of life support for a 12-year-old boy, AB, who suffered a total hypoxic ischemic brain injury in April 2022.

Doctors had determined that the minor child was essentially brain dead. The High Court, following a medical examination, was asked to consider whether mechanical support and other life-sustaining treatments the child had been receiving should be continued and concluded that “on the most convincing evidence” the continuation of mechanical support was not in his best interest.

The applicant’s parents appealed to the United Nations Committee on the Rights of Persons with Disabilities (UNCRPD), asking the British authorities on 29 July 2022 to “refrain from interrupting his life-sustaining medical treatment”. On August 3, 2022, the parents filed an Application for an interim measure with the ECtHR under Article 39 of the Rules of Court, asking it to issue an interim measure preventing the hospital from withdrawing their child’s life-sustaining treatment.

The Court ruled that the conditions of admissibility provided for in Articles 34 and 35 of the Convention were not met. He further stated that this decision did not constitute an acknowledgment by the Court that, either substantively or legally, it had jurisdiction to hear the case under Article 35 § 2 (b) of the Convention, since the matter had already been submitted to another international proceeding investigating or resolve disputes.

The ECtHR decided not to interfere with the national courts’ decisions to allow the applicant’s life support to be discontinued and did not indicate to the State the requested interim measure.

PROVISIONS

Article 35

Article 39

PRINCIPAL FACTS

The request was made by the parents of A.B., in their own names and on his behalf.

A.B. suffered catastrophic hypoxic ischaemic brain injury on 7 April 2022 and is currently in hospital
in the United Kingdom. His doctors considered that many of the signs and symptoms that they could
see and evaluate clinically pointed strongly towards A.B. having sustained brain stem death. The
Hospital Trust issued proceedings in the Family Division seeking a declaration that it was lawful to
undertake brain stem testing and to withdraw mechanical ventilation.

Brain stem testing was not successfully carried out but on 15 July 2022 the High Court considered
whether mechanical ventilation and other life sustaining treatment should continue. The court
proceeded on the premise that A.B. was alive and that it should consider where his best interests
lay. However, it concluded that, “on the most compelling of evidence”, the continuation of
ventilation was not in A.B.’s best interests. Permission to appeal was subsequently refused by the
Court of Appeal and the Supreme Court.

On 28 July 2022 A.B.’s parents approached the United Nations Committee for the Rights of People
with Disabilities (UNCRPD), which asked the British authorities on 29 July 2022 to “refrain from
withdrawing life-preserving medical treatment”. However, on 30 July 2022 the Hospital Trust
indicated that in the absence of any further stay granted by the domestic courts, it would implement
the plan to withdraw life sustaining treatment on or after 2pm on 1 August 2022.

On 1 August 2022 the Court of Appeal rejected an application by A.B.’s parents for a stay, either
pending the determination by the UNCRPD of the complaint or, in the alternative, until the court
could obtain further information from the UNCRPD as to how long it would need to consider the
complaint. On 2 August 2022 the Supreme Court of the United Kingdom refused an application by
A.B.’s parents for permission to appeal against that decision.

On 3 August 2022 the applicants made a request to the Court under Rule 39, asking it to issue an
interim measure preventing the hospital from withdrawing life-sustaining treatment. They argued,
among other things, that the State’s failure to honour the interim measure given by the UNCRDP
breached Article 2 of the Convention, read alone or together with Article 14 of the Convention.
The applicants also lodged a substantive application with the Court in which they relied on Articles 2
(right to life), 6 (right to a fair trial), 8 (right to respect for private and family life), 9 (freedom of
thought, conscience and religion), 13 (right to an effective remedy), 14 (prohibition of
discrimination) and 34 (right of individual petition).

THE DECISION OF THE COURT…

The Court (the President) decided not to issue the interim measure sought. It also decided to
declare the applicants’ complaints inadmissible. Having regard to all the material in its possession and in so far as it had jurisdiction to examine the allegations made, the Court considered that the conditions of admissibility provided for in Articles 34 and 35 of the Convention were not fulfilled. It further indicated that this decision did not constitute an acknowledgement by the Court that it,
either in fact or in law, had jurisdiction to hear the case under Article 35 § 2 (b) of the Convention
(which provides that the Court shall not deal with any application that is substantially the same as a
matter that has already been submitted to another procedure of international investigation or
settlement).

Therefore the Court will not interfere with the decisions of the national courts to allow the
withdrawal of life-sustaining treatment from A.B. to proceed.