E (A Child) (Rev 1)

This is an application for permission to appeal, with an appeal to follow if granted, from an order made by Hayden J sitting in Liverpool on 20 February 2018. By his order the judge made a raft of declarations, in particular that Alder Hey Children’s NHS Foundation Trust (“the Trust”) would be acting lawfully and in the best interests of a little boy, Alfie, now 21 months old (born 9 May 2016), by withholding certain medical treatment including all forms of ventilation and that thereafter he receive only palliative care.

The effect of the declaration would be that the ventilator which keeps Alfie alive would be removed and he would die shortly thereafter. The parents, who chose to be unrepresented before the judge, seek to appeal the declarations and accompanying orders. They now have the benefit of leading counsel, Mr Knafler QC, and junior counsel to represent them in relation to their application for permission to appeal.

The Trust and Alfie’s Children’s Guardian, each support the judge’s decision and submit that the challenge to the judge’s order by the applicant is misconceived.

Before embarking upon what is necessarily a somewhat lengthy and detailed judgment in the light of the legal issues raised by Mr Knafler, I think in fairness to the parents waiting anxiously on the other end of a telephone line, I should tell them immediately that their applications for permission to appeal are refused, save in one respect, and insofar as permission to appeal is granted in that respect, the appeal will be dismissed.

Alfie was born on 9 May 2016. The judge described his early days as follows:

This attractive snapshot of a young couple embarking on parenthood was, tragically, destined to be short lived.

The first indications that there were problems began to manifest themselves in July 2016, and by the time Alfie was six months of age there were significant signs of developmental delay. Alfie was referred to the Outpatient Clinic at the Alder Hey Hospital in November 2016. Alder Hey is a tertiary referral centre and one of the country’s leading centres for the assessment and treatment of children suffering from neurodegenerative disorders. The unit has a team of 12 consultant paediatric intensivists and 6 paediatric neurologists, together with a complement of specialist paediatric nursing staff.

Upon examination at referral, it was clear that Alfie, now six months old, was functioning in a range appropriate to a six- to eight-week-old baby. A brain scan was carried out and flagged up abnormalities, including, the possible diagnosis of a mitochondrial disorder. Two weeks later, on 14 December 2016, Alfie was admitted to Alder Hey Accident and Emergency Department with a high fever and seizures. An initial plan to admit Alfie into the High Dependency Unit for non-invasive respiratory support was abandoned when his condition deteriorated significantly, and instead he was transferred to the paediatric Intensive Care Unit.

Throughout December and January Alfie was very unwell with severe bilateral pneumonia, such that the treating clinicians felt that they had no alternative but to broach with the parents the real possibility that Alfie might not survive. In the event, Alfie did not succumb to the pneumonia. The judge found Alfie’s survival became an “absolutely crucial feature of Alfie’s treatment in the father’s mind.” He went on;

One can well understand the father’s position, particularly given that there was, and remains no diagnosis. In his mind, with a diagnosis would come the possibility of treatment and, if not a cure, at least a possibility of halting the inexorable deterioration which was the only alternative.

Whilst Alfie recovered from pneumonia, his EEG and clinical presentation were grim. An EEG in January 2017 showed attenuation, with little in the way of reactive response for much of the time. Changes were seen on the trace only when Alfie had a seizure. Clinically, he showed no response to tactile, visual, auditory or sensory stimulation. Now, a year on, his papillary response is entirely abnormal, with only the most subtle brief dilation to light, without any normal constriction.

As already noted, the MRI performed on 30 November 2017 raised the possibility of either degenerative disorder or a metabolic disorder. A second scan was undertaken in February 2017 and a third on 22 August 2017. This third scan, shockingly, revealed that by now 70% of Alfie’s brain had been destroyed.

Given that by the time the matter came before the judge the most recent scan was nearly six months old, the judge, first having been reassured that it would not be either unsettling or intrusive for Alfie, requested an up-to-date scan. A further scan was therefore undertaken on 2 February 2018. This scan showed the almost total destruction of Alfie’s brain, with fluid identical to water or CSF now present where brain matter should be.

The Trust instructed Professor Helen Cross, the Prince of Wales Chair of Child Epilepsy at UCL and Great Ormond Street Institute of Child Health, to conduct an independent clinical review of Alfie. Professor Cross reviewed the EEGs and the MRIs and examined Alfie at the PICU.

Professor Cross concluded that Alfie has a progressive, ultimately fatal, neurodegenerative condition, most likely a mitochondrial disorder. Professor Cross considered all the evidence, including the dramatic deterioration on the EEG. Professor Cross concluded that Alfie’s brain was now only able to generate seizures, in other words his seizures are not contributing to the neurological degeneration but are a consequence of it.

The judge recorded the way in which Professor Cross, in evidence, explained the situation to the father when she was cross-examined by him in the hearing:

The professor explained in response to one of the father’s questions that the brain can only generate further from existing matter, and therefore there is no possibility that because Alfie’s brain has not yet at his age become fully formed, it might generate as opposed to regenerate, brain matter.

Professor Cross’ sombre conclusion was that, “even if Alfie is able to sustain respiration in the short term, on discontinuing ventilation his respiratory effect will not sustain life.” Further therapy, she said, would not have an impact on the seizures and even if the seizures were reduced it would not change Alfie’s outcome.

In August 2017, in the light of the latest MRI, the Trust had discussions with the father proposing that treatment of Alfie should be limited, including the marking of his notes with “Do Not Resuscitate.” While initially agreeing to this, the parents subsequently withdrew that agreement. In the light of this impasse, at a meeting on 25 August 2017 the parents were asked to provide the clinicians at Alder Hey with a list of those specialists that they would wish Alder Hey to contact with a view to requesting them, or some of them, to conduct further independent reviews of Alfie. Dr M contacted the doctors on the parents’ list, doctors who live and work variously in the United States, Germany, and the United Kingdom. Of those approached, Dr Samuels, a consultant respiratory paediatrician, was the only one who had the necessary expertise and was willing to review Alfie. This he did, at the parents’ request, on 30 August 2017.

Dr Samuels agreed with the diagnosis of the Alder Hey team, and with the futility of treatment. He noted, however, the parents’ inability to accept his advice and recommendations as to withdrawal of treatment.

On 6 September 2017 a firm of Italian lawyers, instructed by the family. requested that a clinical team from Ospedale Pediatrico Bambino Gesù in Rome assess Alfie. Three specialists from Bambino Gesù in Rome reviewed Alfie’s records and on 11 September 2017 travelled to Alder Hey to examine him. They too agreed that Alfie had a neurodegenerative disease and fitting disorder which was untreatable. They agreed that even if further testing were carried out, it would not provide a cure or, “bring a different treatment plan.” Nowhere in their report was it suggested that it would be in Alfie’s best interests for ventilation to be continued. Bambino Gesù were, however, prepared to treat Alfie at their hospital in Rome. Unfortunately it was not until 27 October 2017, six weeks later, that the Bambino Gesù report was disclosed to the Trust. In the body of the report Bambino Gesù said in respect of the proposal that Alfie be transferred to their care:

Notwithstanding the reports of both Dr Samuels and the Bambino Gesù team, further attempts at mediation between the Trust and the family in November 2017 did not result in agreement. In those circumstances, some 13 months after his referral to the hospital, on 5 December 2017 Alder Hey issued an application in the High Court. In her witness statement in support of the application Dr M noted that Bambino Gesù were not offering any additional investigations or new therapies and described the inherent risks in transferring ventilated patients. Dr R said:

On 11 December 2017, a few days after the Trust had issued their application, a Dr Matthias Hubner, the medical director of an organisation in Germany called Paediatric Air Ambulance which provides paediatric intensive care transports for critically ill and injured children, went to the Alder Hey hospital posing as a friend of the family. He deliberately withheld his professional status from the doctors and staff, and examined Alfie without the knowledge and agreement of the hospital. He neither reviewed the medical notes nor discussed Alfie’s case with the clinical team. Dr Hubner produced a so-called “fit to fly” certificate in December, but it was only during the course of the proceedings in February that a report materialised that he had previously written and sent directly to the father’s then lawyers.

Dr Hubner’s statement began with an assertion that he had seen all of Alfie’s files, whereas in reality he had seen very little. As the judge put it, “most alarmingly” Dr Hubner’s travel plan for Alfie suggested the use of anticonvulsant medication which, on the basis of Alder Hey’s experience with Alfie, would have been both ineffective and inappropriate. It is clear from the statement, and very properly accepted by Mr Knafler during the course of argument, that much of that statement is predicated on a complete misunderstanding of the seriousness of Alfie’s condition; by way of example only, Dr Hubner calculates a Glasgow Coma Scale which is clearly wrong and attributes responsiveness in Alfie and reflexes from him which had lain dormant for many months, and which inaccurate information must have been based upon information that can only have come from the parents, who have been unable to accept that what movements they see in Alfie are not positive responses by him to them. In cross-examination Dr Hubner told Mr Mylonas on behalf of the NHS Trust that he had not in fact used the air ambulance in cases where patients were dying.

In his statement Dr Hubner said, “In my professional opinion the transfer does not present any particular difficulties, and Alfie Evans is fit to travel.” Little wonder, then, that the judge not only found that Dr Hubner’s evidence suggesting that Alfie could be simply transferred by air abroad could not be relied upon, but rather the judge said:

On the back of Dr Hubner’s “fit to fly” certificate the father’s solicitors wrote to Alder Hey Children’s Hospital. Mr Knafler explained to the court that the solicitors did not themselves draft the letter in question, rather it had been drafted by a legally-trained “supporter” of Alfie, and similarly that the covert attendance at the hospital had been arranged by others and not by the solicitors.

The letter of 14 December sent to Alder Hey Children’s Hospital enclosed a copy of the “fit to fly” certificate and indicated that Alfie was to be removed from the hospital forthwith. The letter before claim in judicial review proceedings was attached to cover the situation in the event that Alder Hey refused to facilitate Alfie’s departure. The letter before claim contains a quite extraordinary statement that were Alder Hey to remove mechanical ventilation, it would “constitute the offence of murder or alternatively an offence of manslaughter.” In my view the letter in its entirety was wholly inappropriate and should not have been written.

Upon the advice, or recommendation, of the same unknown supporter, an application was next made for a report prepared by Professor Nikolaus Haas, Medical Director of the Department of Paediatric Cardiology and Paediatric Intensive Care at the University Hospital in Munich. Alder Hey cooperated fully with the preparation of Professor Hass’ report. Professor Hass too shared the view of Alder Hey as to the prognosis in relation to Alfie. He too agreed that no further tests were appropriate or necessary. He did, however, recommend that a tracheostomy and gastrostomy be fitted, which would potentially allow home ventilation for the “short rest of his life.”

The overall medical opinion then was ad idem, namely that Alfie suffers from an untreatable neurodegenerative condition from which he will die.

Given that the vast majority of the white matter of the brain, and a significant degree of the cortex have been wiped out by what the judge described as the “remorseless degenerative condition”, it is no surprise that Alfie is deeply comatose and that for all intents and purposes is unaware of his surroundings. He is entirely dependent on a ventilator, is fed by a nasojejunal tube, is likely to be blind and have a severe hearing impediment even if he is not entirely deaf. He will never make any developmental progress.

The father believed, and continues to believe, that Alfie responds to him. Professor Haas helpfully dealt with this in his report, saying:

Professor Hass’ view, then, ties in with that held by the other experts and the treating physicians. The Bambino Gesù team described Alfie as being in “a semi-vegetative state” and Professor Cross said Alfie’s brain can now “only generate seizures.”

Dr Samuels explained that light and sound can produce physiological changes in Alfie and suggested three possible explanations, those explanations being basic reflex, seizure-related activity, or discomfort on his part. Dr Samuels did not consider they were meaningful responses. His view is also at one with Dr R, who said that [29]:

The judge, at the request of the father, watched a number of videos he had made which he said demonstrated Alfie responding to him. The judge in his judgment said at 57 :

Dr R believes it to be “highly unlikely” that Alfie has any awareness of pain or discomfort and he shows none of the recognised signs that would suggest this to be the case, such as an increase in heart rate and blood pressure or respiratory rate, or to respond to uncomfortable or painful stimuli. However, as Alfie is unable to communicate Dr R sounds this note of caution:

On 20 January 2018 Alfie was visited by his father, who brought with him two women one of whom was Dr Jankowska, a Polish doctor with a speciality in paediatric oncology, also, it is understood, introduced to the family by the “supporter”. Whilst there was no subsequent application to adduce evidence from Dr Jankowska, the nurse who was present at the time identified himself and introduced himself to Dr Jankowska, who did not respond by identifying herself or say that she was either medically trained or that she was there to perform a review on behalf of the parents. This was therefore the second clandestine review which took place on the Paediatric Intensive Care Unit.

It was and is the father’s wish that Alfie should be permitted to travel to the Bambino Gesù Hospital in Rome, and if necessary be thereafter transferred on to Professor Haas’ Munich hospital. The father is passionate in his views, and through Mr Knafler he told the court that although he would not wish Alfie to die being transported to Italy, he would rather that happened than ventilation being withdrawn. He wanted, he said, to fight on with “Alfie’s army.” Alfie, he says, would be “fighting”, continuing to explore options and fighting the battle which would lead, he believes, to an “heroic death” as compared to a managed death in a hospital.

The father understandably, and as was conceded by Mr Knafler, really has no clear plan. On one level he understands that neither Bambino Gesù nor Professor Hass in Munich are offering Alfie any hope for the future. The most they are offering is surgery in the form of a tracheostomy and gastrostomy, which would allow the possibility of his being ventilated at home, but that is not what the parents are asking for. It is clear and understandable that they have been unable to think through the disadvantages for them as a family to relocating either to Italy or Munich without the support of their extended families and unable to speak either language, in order to be able to spend Alfie’s last weeks or months in what they currently regard as a more empathetic environment. Mr Knafler was unable to help the court to understand why the father’s proposal involved Alfie being transferred to both Italy and Munich.

Professor Hass has, however, a very different view from the UK clinicians and the guidance on which they rely in relation to the withdrawal of treatment, and it is to that which the father clings.

Professor Haas said, in what was regarded by the judge to be “inflammatory and inappropriate” terms, (not least because “the views expressed bear no relationship and do not engage with the facts of this case”):

Professor Haas relies upon the now-discredited evidence of Dr Hubner, who referred to Professor Haas as “his boss”. Therefore proposed that Alfie could be transported “safely around the world at any place without any major risks for him.” The professor proposed therefore that Alfie would be transferred to his hospital where he would spend 14 days in their Paediatric Intensive Care Unit where a tracheostomy and peg insertion would be carried out. There would be EEG monitoring and a further MRI of his brain. The parents, he said, would be trained to manage a home ventilation system and, notwithstanding his express view that no useful tests could be performed to improve Alfie’s condition there would, he said, be neuro-paediatric assessment and potentially additional genetic testing. The cost, he said, would be €65,000 for the 14 days, including surgery but excluding the cost of the air ambulance and transport.

The judge set the views of Professor Haas as to the withdrawal of treatment against the tenets of the Roman Catholic faith, which is the faith of the parents, saying:

The judge went on to set out in full an open letter from His Holiness Pope Francis sent to the president of the Pontifical Academy for Life, dated November 2017. It is not necessary to set out that open letter to any great extent, save to include two brief references:

The judge regarded His Holiness’ open letter as “a comprehensive answer to the tendentious views expressed by Professor Haas.” I agree with the judge. In my judgment there is nothing in the personal views as expressed by Professor Haas which, all other things being equal, could or should impact upon the proper application of a best interests’ evaluation.

The judge, having set out and analysed the evidence, described the legal backdrop and relevant guidance against which he would reach his conclusions. I set them out in full, as, in four short paragraphs ,the judge correctly states the law and outlines the relevant guidance as it currently stands. It is therefore unnecessary for me to elaborate by reference to either earlier or additional authorities, of which there are many:

The judge, whilst rejecting the evidence of Dr Hubner, did not exclude the possibility that travel by air ambulance could be a theoretical option. It required, however, to be considered in the context of Alfie’s present condition and in particular that it was unsafe to discount the possibility that Alfie experiences pain, particularly surrounding his convulsions. Given that whilst the evidence pointing to this would be unlikely, it cannot be excluded.

The judge identified the obvious challenges to transporting Alfie, initially to Italy and possibly thereafter to Munich. He noted that away from intensive care, Alfie would be more vulnerable to infection and the maintenance of his anti-convulsive regime, (already of limited effect) risked being further compromised by the travel. The journey, the judge said, “self-evidently, will be burdensome.” The judge rightly faced up to the worst of all possible outcomes, saying, “Nobody would wish Alfie to die in transit.” The judge even then did not rule this out as an option, considering the potential present risk, and saying in terms that the risk “might be worth taking” if there were any prospect of treatment, but there is none. It was that that the judge found irreconcilable with Alfie’s best interests. The judge therefore held that “All this drives me reluctantly and sadly to one clear conclusion. Properly analysed, Alfie’s need now is for good quality palliative care.”

The judge concluded:

Mr Knafler seeks permission to appeal the order of the judge on three grounds which can be summarised as follows:

It quickly became apparently that Grounds 2 and 3 were of little weight, and the focus of the proposed appeal was and is in relation to ground 1 and in particular:

In those circumstances I will deal briefly with Grounds 2 and 3 prior to moving on to consideration of the Article 14 (inaudible).

Ground 2 has in effect not been pursued by Mr Knafler. The father (and no doubt the mother) is anxious to have adequate time to understand, consider and contribute to any end of life plan for Alfie. The Trust has indicated that they are happy to respect the father’s wishes in this regard and will not, following the dismissal of any appeal, act with unseemly haste. The Trust gave the court that assurance against their continuing concern that this desperate father will do anything to put off the day when ventilation will be withdrawn. Clearly if no compromise or agreement can be reached, the matter will have to be returned to the judge for him to hear argument and to fix a date.

Ground 3 particularises the alleged failure as follows:

In my judgment this ground has no reasonable prospect of success, and permission to appeal has been refused.

Put shortly,:

The Trust and Dr Samuels each expressed the opinion that it was uncertain whether Alfie suffered discomfort or not. Professor Haas agreed that he did not know whether Alfie experienced pain or not. Given the evidence the judge was entitled to conclude as he did that it was “unsafe to discount the possibility that Alfie continues to experience pain” [60].

In relation to the proposed air transport of Alfie to Italy, this was dealt with in written and oral evidence and in the judgment. The judge concluded [45] that the evidence of Dr Hubner could not safely be relied upon. The judge was entitled to take into account the views of Dr Samuels, Dr M and the Bambino Gesù experts all of whom shared the view that Alfie could suffer increased seizures in transit which have the potential to cause further brain damage, together with the evidence as to the possibility of Alfie experiencing pain and discomfort. The judge additionally set out the inherent risks to Alfie of travel outside the hospital.

In relation to the tracheostomy and gastrostomy which the parents sought, it was common ground that the provision of either or both could not in any way impact upon the fundamental fact that Alfie’s condition is “catastrophic and untreatable” [19]. Dr M’s evidence was that, if Alfie was able to feel pain, provision of either surgical procedure would cause further discomfort. The judge did not however close his mind to the parents’ proposals taking the view that notwithstanding the risks had there been any prospect of treatment it may yet have been worth subjecting Alfie to the journey [64].

The judge considered all the evidence presented to him and concluded that it was not in Alfie’s best interests to receive continued ventilator support. Given that conclusion, provision of the tracheostomy and gastrostomy as well as the transfer to another country could not possibly be in Alfie’s best interests.

Turning then to Ground 1. Prior to addressing this proposed ground of appeal I wish to deal briefly with Mr Knafler’s submission that the judge failed adequately to take into account the parents’ views. Mr Knafler submitted that those views should have been carefully assessed and given appropriate weight. The judge, he submitted, had failed to highlight this in his self-direction found between paragraphs [47] and [50] of the judgment. Had he taken those views into account, Mr Knafler said, the judge would have focused more on the safety of the proposed air transport and sought additional evidence in that respect (Dr Hubner having been discredited) had he done so, he would have allowed the parents to “prepare their best vision” of taking Alfie to Italy and then Munich.

In my judgment such an allegation is not only without substance, but grossly unfair to a judge who could not have done more to ensure that the father and mother had every opportunity of expressing their views and of having them taken into consideration. The submission does not sit comfortably with the opening remarks made by Mr Knafler to the effect that the judge’s judgment was a “humane judgment” reached with “great professionalism in fraught circumstances” and “the judge made a real effort to see the parents’ point of view.” In this respect Mr Knafler referred the court to the judge’s judgment at paragraph 54, where he had described in gentle and empathetic terms his visit to Alder Hey to see Alfie. The judge in that paragraph was complimentary and insightful in relation to the parents, complimenting them on their devotion to Alfie whilst also recognising the exemplary care Alfie receives from the medical team in the PICU.

Ms Roper, on behalf of Alfie, recognised the fact that simply because a judge is empathetic it does not necessarily mean that in conducting a best interests evaluation he properly took into account all those matters which he should. Mr Mylonas, therefore, highlighted a number of matters in addition to the judge’s gentle, considerate approach to the parents’ views found throughout the judgment.

The case was listed for two days but ran for seven days as the judge assisted the father, who had chosen to represent himself, in putting forward his case.

It was by the judge’s efforts that Dr Hubner, who it was anticipated would give supportive evidence, attended court. At the judge’s behest the court staff also spent several days trying to contact Professor Haas, who was returning from an international conference, as he had not been warned to attend to give evidence by the father. A telephone link was arranged, although at the last minute the father decided he did not wish to challenge Professor Haas’ evidence.

The judge arranged for a further MRI scan to be carried out during the proceedings, and also recalled Dr R to respond to the videos of Alfie that the father had produced.

The judge factored in with care the dilemma in which the father found himself, setting out the father’s plan insofar as he had formulated it, namely that if no solution should be found upon transfer to the Munich hospital, only then should Alfie be allowed home to die “when he decides to.”

It should also be noted that it is common ground that the father on occasion during the course of the trial lost control. The judge, all agreed, responded to what could only have been extreme provocation with calmness, patience and courtesy, and in doing so kept the trial on track and ensured that Alfie’s interest remained the focus of the hearing.

In Gard, MacFarlane LJ said this in relation to the importance of parental views:

In my judgment, to all intents and purposes the whole focus of the judge’s judgment was on the parents’ views. They could not have been given greater respect than that which they were given by this judge. Had that not been the case then, given the unanimous view of all the doctors as to Alfie’s prognosis, the decision to withdraw medical treatment could have been made comfortably within a day rather than the seven days which this judge properly devoted to the case.

Mr Knafler accepts that as far as the law currently stands, the only test properly applied by the court when considering an application under the inherent jurisdiction, whether in relation to serious medical treatment or otherwise, is the best interests of the child. I admit to being less than wholly clear whether he says the “significant harm” test he seeks to import should apply to each and every application under the inherent jurisdiction, or whether his case is that the extreme nature of an application for the withdrawal of treatment of a child necessitates a separate approach and the application of what he would say is a more rigorous test before the wishes of the parents can be undermined by way of court order.

The question of whether a “significant harm” test should govern proceedings of this type was considered by the Court of Appeal and thereafter by the Supreme Court in its permission to appeal judgment, and finally in Strasbourg, in the well-known Charlie Gard case.

Baroness Hale it might thought had laid such a proposition to rest. She said In the matter of Charlie Gard, 8 June 2017:

The European Court of Human Rights considered the matter some days later. In finding the parents’ application to be inadmissible, the court reminded itself that:

The court considered the submissions of the parents that the proper test was not one of “est interests” but one of risk of “significant harm” to the child [118]saying:

The ECHR went on to say that even had the test been one of significant harm there had been a finding that there was a risk of “significant harm”, and that in any event the legal framework in place was “appropriate” [123] and in such cases the margin of appreciation was wide.

Mr Knafler accepts, as he must, that the course proposed by the hospital does not infringe either Article 2, Deprivation of Life, or Article 8, Respect for Family Life, both of which complaints were described by the ECHR as “manifesting ill-founded” in Gard. Rather he says that the courts in the Gard case did not have before them a submission that the making of a declaration for the withdrawal of medical treatment against the wishes of the parents under the inherent jurisdiction is discriminatory under Article 14 of the Human Rights Act 1998. Had he done so, he submits, they would have concluded that Charlie’s parents had been the subject of discrimination for which there is no justification.

Mr Knafler goes on to submit that had the judge applied the proper test, significant harm, his decision may well have been different and the child’s interests would have been found to have been subservient to the wishes of the parents, absent a finding of significant harm attributable to their care. The outcome, he submits, would have been that the parents would have been entitled to arrange for the removal of Alfie from Alder Hey Hospital, notwithstanding any view whether held by the Trust, independent experts or the court, that such a course would be inimical to his best interests.

This may be thought to have been somewhat of a bold submission, given the ECHR’s recent reiteration of the supremacy of the child’s best interests, and further than that as the EHCR had held in Gard at paragraph 124 so too I find that the court at first instance in this case was “meticulous and thorough…heard high-quality expert evidence, and accorded weight to all the arguments raised.”

Having said that, Mr Knafler is right in his submission that no court has, to date, examined the issue through the prism of discrimination.

Article 14 says

The ground of discrimination relied on by Mr Knafler is that of “other status”. In Cameron Mathieson, a deceased child (by his father Craig Mathieson) v Secretary of State for Work and Pensions (Mathieson) [2014] EWCA Civ 286; [2015] UKSC 47 [23] it was held that the child in question as a “severely disabled child in need of lengthy in-patient treatment” had a “status case” falling within the grounds of discrimination prohibited by Article 14. Lord Wilson in his judgment put it this way at [23]:

It is accordingly accepted by Mr Mylonas and Ms Roper on behalf of the Children’s Guardian (albeit somewhat reluctantly) that in no circumstance Alfie equally has the necessary status to fall within Article 14, as do the applicants by virtue of being his parents.

Having established status, Mr Knafler’s core submission is that parents in the position of these parents are treated differently depending on whether the application is made under care proceedings (significant harm) or the inherent jurisdiction (best interests). There is no justification for that difference, Mr Knafler says, as each is ultimately doing the same thing, that is to say intervening in the life of the family in order to safeguard or promote the welfare of the child in a manner inconsistent with what the parents are doing or propose to do. It follows, he says, that there is no proportionate justification for the different approach to overriding parental choices under the inherent jurisdiction as compared with care proceedings under the Children Act 1991.

In R v The Secretary of State for Work and Pensions ex parte Carson [2005] UKHL 37, [2006] 1 AC 173 (Carson), the House of Lords considered the proper approach to a discrimination claim under Article 14. Lord Nicholls encapsulated the formulation of the relevant issues in one succinct paragraph:

The House of Lords judgments therefore marked the end to the more formulaic approach to Article 14, known as the Michalak questions, which had been formulated by Brooke LJ in Wandsworth LBC v Michalak [2003] 1 WLR 617.

Carson was subsequently considered in Strasbourg, in Carson and Others v United Kingdom, application number 42184/05, which confirmed the approach of Lord Nicholls.

The task then for the court is to determine whether the parents and Alfie really are in an analogous or relevantly similar situation. If so, is the difference in treatment discriminatory? That is to say, is there objective and reasonable justification, or put another way, is it proportionate and does it pursue a legitimate aim? The court did consider whether there is in fact discrimination in breach of Article 14 will enjoy a wide, although not unlimited, margin of appreciation.

Mr Knafler has to satisfy the court that these parents are in an analogous position to parents faced with State intervention in care proceedings. As a backdrop to deciding whether, as submitted by Mr Knafler, the situation is analogous as between a seriously ill child in care proceedings and a seriously ill child in declaratory proceedings under the inherent jurisdiction, it is helpful to look in a little detail at the comparators upon which Mr Knafler relies and at one on which he does not rely.

Part IV of the Children Act 1989 (CA 1989) carries the title ‘Care and Supervision’. Under section 31.1 the court may on the application of a local authority make a care or supervision order.

Section 31 CA 1989 provides:

Section 31(9) defines ‘harm’ as “ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another.” The component parts of that definition are further defined as follows:

The definition is deliberately widely drawn. Section 31 provides the principal route for child protection in England and Wales and must, insofar as it can be achieved, be capable of capturing all forms of child abuse. Crucially, however, it comes into play in care proceedings only when a child is “suffering, or likely to suffer, significant harm” which is attributable to the care given to the child “not being what it would be reasonable to expect a parent to give to him.” (or the child being beyond parental control). Mr Knafler submits that the requirement of the satisfaction of the threshold criteria is a source of discrimination, as the existence of that threshold means that parents are treated more favourably in care proceedings than under the inherent jurisdiction, when the court can interfere with their exercise of parental responsibility, notwithstanding that their child has not suffered significant harm.

The class of parents to whom this part of the Children Act 1989 applies are those parents in respect of whom there has been a finding by the court (or an admission by the parent(s)), of their having ill-treated or caused the impairment of health or development of their child, (or to have put their child at risk of such harm.) Only then, the “threshold” having been satisfied, can the court make either a care order or supervision order. Which (if either) of those orders is made is determined by conventional best interest evaluation carried out by the court. Further, the court can only make either a care order or a supervision order having approved a care plan put before the court by the local authority. The care plan is not a creation of the judge.

Section 33(3)(b) CA 1989 provides that :

On any view it would be seem inappropriate for a local authority to use s33(3)(b) CA 1989 (giving as it does power to a local authority to overrule the way in which the parents exercise their parental responsibility following the making of a care order) as a means to override the wishes of the parents by consenting to the withdrawal of treatment in circumstances where the parents wish to oppose such a course. As Ms Roper reminds the court, if an issue as to serious medical treatment arose within care proceedings then the relevant NHS Trust, seeking a medical declaration in respect of a child, would issue proceedings under the inherent jurisdiction in the normal way, which application would be heard at the same time as the care proceedings and determined solely by reference to the best interests of the child.

Although Mr Knafler chooses to compare the situation of the parents in inherent jurisdiction proceedings with those of care proceedings, it should not be overlooked that care proceedings are not the only statutory route whereby the court has jurisdiction to interfere with the exercise by a parent of their parental responsibility. Far more common than proceedings under section 31 of the Children Act 1989 are proceedings under section 8 of the Children Act 1989, Child arrangements orders and other orders with respect to children. Section 8.1 provides

Section 8, then, sets out the orders available to the court when resolving disputes between parties where a disagreement has arisen in relation to the exercise of parental responsibility. Such disputes are usually in relation to residence and contact following the breakdown of the relationship between the parents of a child, but also the section covers specific issue and prohibited steps order.

The resolution of every dispute under section 8 Children Act 1989 is determined by reference to the welfare principle enshrined in s.1 CA1989 whereby “the child’s welfare shall be the court’s paramount consideration.” In other words, the decision is made by reference only to the best interests of a child.

It should not be thought that because section 8 applications fall outside s31 CA 1989 they cover only less serious matters than those dealt with by the courts under s31CA 1989 and the inherent jurisdiction. On the contrary, the courts hearing section 8 cases can and often do deal with allegations of the utmost seriousness relating, for example, to allegations of child sex abuse and domestic violence of every type from a verbal abuse up to and including marital rape and attempted murder.

Nor is section 8 limited to disputes between those parties who have parental responsibility. Third parties without parental responsibilities (for example a grandparent) can, with leave (granted under s10(2)(b) CA 1989) make applications under section 8.

Significant for the purpose of this present matter is that it is common ground that an NHS Trust can (with leave) seek a specific issue order under section 8 in a serious medical treatment case, as an alternative or more usually and preferably in parallel with an application under the inherent jurisdiction.

In Re JM [2015] EWHC 2832, Mostyn J said:

Whether the dispute is with the third party without parental responsibility or the child’s other parent with parental responsibility, the test is the same: “what is in the best interests of the child?” There is no threshold, whether of significant harm or otherwise.

During the course of section 8 proceedings it may become apparent to the court that additional factors are in play which are of more concern than the inevitable distress to a child upon family breakdown or in a medical treatment case, to the understandable chasm which has opened up between clinicians and parents unable to agree a way forward. The Children Act 1989 provides for just such an eventuality through section 37 Children Act 1989:

It follows, therefore, that where an application is made for a specific issue order under section 8 CA 1989, care proceedings - with the threshold of significant harm - provide the court with an additional avenue of intervention, only resorted to when there are concerns in respect of the child in question over and above the inherent difficulties which arise by virtue of the issue before the court.

Turning, then, to the inherent jurisdiction of the court, it is not necessary for the purposes of this judgment to embark on any thesis of the law relating to inherent jurisdiction.

As in section 8 cases, there is no threshold, and it is not necessary for a trust to prove significant harm before a court can make an order which would have the effect of interfering with the exercise of parental responsibility on the part of the parents. Decisions are made only on the basis of the best interests of the child.

Mr Knafler seeks to persuade the court that for parents with the status of these parents, care proceedings and proceedings under the inherent jurisdiction are appropriate comparators and that the situation for parents of children with serious medical issues can therefore be regarded as analogous. I do not agree. In my view, parents in care proceedings are not in an “analogous or relevantly similar situation” to those in medical “best interests” cases under inherent jurisdiction proceedings.

In my judgment care proceedings are part of the picture in medical treatment cases only in exceptional circumstances and as an adjunct of, or precursor to, an application under the inherent jurisdiction. The sort of devastating illness with which this court is concerned can and usually does come out of nowhere, regardless of whether the family is rich or poor, educated or uneducated, reasonable or unreasonable. The one thing these disparate families have in common is that it is “not their fault,” and in my experience, even if their emotion is sometimes expressed inappropriately, they each and every one of them share a fierce devotion and protective instinct towards their vulnerable, often dying, child. These unhappy parents, finding themselves the victims of an appalling twist of fate, are not the type of parents who find themselves the subject of care proceedings.

By contrast, in care proceedings the harm in question comes about as the consequence of the actions or omissions of one or other or both of the parents, even if those parents are not truly culpable (as for example where they are significantly learning disabled and unable through no fault of their own to provide their child with “good enough” parenting).

Mr Knafler submits that care proceedings can be a jurisdictional route to the orders sought by the Trust (or any Trust) and it is this assertion that allows him to use care proceedings as an appropriate comparator. For this to be technically correct, the jurisdictional route would have to be through the use by the local authority of s33(3)(b) CA 1989 (see para [86] above). The withdrawal or treatment would have to come about as a consequence of the local authority consenting to the withdrawal of treatment as part of its care plan (approved by the judge) rather than by the making of a declaration on the application of the NHS Trust.

This use by the local authority of its powers under s33(3)(b) was not argued before the court. With respect to Mr Knafler, he argued the case on the basis that once care proceedings were launched, the court has the power to make such order as it thinks fit whereas the powers of the court are limited to the making only a care or a supervision order with all decisions in relation to parental responsibility thereafter resting with the local authority (together with the parents).

In my judgment in order for the court to be persuaded by Mr Knafler’s jurisdictional argument, significant development of the argument would be necessary including reference to the issues raised in Re C (Children) [2016] EWCA 374 (to which the court was not referred) a case dealing specifically with the limitations on a local authority to use s33(3)(b) in certain cases, including cases of serious medical treatment. This is however largely academic as, in my judgment, the absence of a developed argument in relation to the local authority’s powers under s33(3)(b) does not affect my view that care proceedings are not, in any event, an appropriate comparator with the inherent jurisdiction in serious medical treatment cases.

In my judgment Mr Knafler is wrong to put care proceedings on the same jurisdictional plane as the inherent jurisdiction. Care proceedings are not a route to obtaining declaratory order as to future medical treatment. If a child who may also be the subject of an application for a declaration also becomes the subject of care proceedings, those proceedings will be one step removed in the same way as orders made under section 37 of Children Act 1989 are used in section 8 proceedings. That is to say where there is something more, some form of behaviour on the part of the parents, which necessitates the invoking of the child protection procedure found in section 31 of the Children Act 1989. Any application by a trust for a declaration will be dealt with by way of inherent jurisdiction and not within the care proceedings themselves.

Care proceedings in serious medical treatment cases will, and should, be issued only where there are significant additional issues of concern in respect of the care given by the parents to the child over and above a disagreement with the clinicians as to future care and treatment. Indeed, rightly in my judgment, it has been only in vanishingly rare cases that care proceedings have been issued in serious medical treatments, and I am myself unaware of any case where orders have been made within care proceedings in relation to serious medical treatment. If confirmation were needed, as long ago as 1993 Johnson J said in Re O (a minor) (medical treatment) [1993] 2 FLR 149 and 153:

In Re K (Children with Disabilities: Wardship) [2012] 2 FLR 745, in what Hedley J referred to as a “highly unusual” case, the judge had before him care proceedings in respect of a family with several severely disabled children. The local authority had been involved with the family for many years and it was accepted that their involvement would continue indefinitely. Hedley J, having set out the terms of section 31 CA1989, said:

It follows that in my judgment Mr Knafler is wrong to approach the case on the basis that care proceedings are a first line jurisdictional choice or that these otherwise unimpeachable parents are in a ‘relevantly similar situation’ to parents whose child is the subject of care proceedings.

It was pointed out to Mr Knafler in argument that an essential feature of care proceedings is the so-called “attribution principle”, in other words that the harm or risk of significant harm must be attributed to the care of the parent. Notwithstanding Hedley J’s observation above, Mr Knafler submitted that the “attribution requirement” would not present a particular problem as, if the parents’ proposal for the treatment for their child, rather than being simply sub optimum, was likely to cause significant harm, then the parents’ failure to consent to the commission’s alternative treatment plan would mean that the harm could be attributed to their care.

In my judgment, if there is any comparison to be drawn at all between the inherent jurisdiction and the statutory code found in the Children Act 1989 it is as between section 8 Child Arrangement Orders and the inherent jurisdiction, and not as between the inherent jurisdiction and care proceedings. There is in those circumstances a proper analogy, that is to say children and/or their parents in respect of whom medical treatment declarations are sought by NHS trusts. Each are judged by the same criteria, whether under the statutory scheme found in section 8 or under the inherent jurisdiction of the High Court, and there is therefore no discrimination under Article 14.

If I am wrong in my conclusion not only do Alfie and his parents have significant status for the purposes of Article 14, but the two sets of proceedings are in fact comparable and the parents in an analogous situation in both sets of proceedings, the next case would be for the court to consider whether or not there has in fact been discrimination. In my view, there has not.

In order to decide whether there is discrimination, it is necessary to bear in mind the circumstances in which such applications are made. As Lord Rodger said in Carson, courts should “look at the facts of the case as a whole and identify the particular issue or issues which have to be resolved in order to decide whether there has been discrimination or not.” The chronology in this case reveals the strenuous attempts made by the Trust for a period of over 12 months in an attempt to reach a consensus with the parents as to how best to manage Alfie’s inevitable death. To this end they commissioned independent reviews, they welcomed and cooperated with Dr Samuels and Bambino Gesù doctors nominated by the parents. In addition the Trust paid for outside expert mediators to work with the parents and themselves. It did this because the doctors and nurses caring for Alfie, in common with all clinicians in such a situation, aspire to work together with the parents and to support them rather than to be in conflict with them.

Applications for a declaration that the Trust will not be acting unlawfully by withdrawing treatment are made by hospitals in the knowledge that they can only be profoundly damaging to their relationship with the parents. Such applications are distressing, time-consuming, and expensive, and in order to pursue an application clinical staff and scarce resources are inevitably taken away from the children in their care.

Against this backdrop it is, in my judgment, inconceivable that a trust would contemplate withdrawal of treatment of a child leading inevitably to his or her death unless they were of the view that following the guidelines, his life was “futile”.

Following this argument through, McCombe LJ in argument put it to Mr Knafler and to Mr Mylonas that it follows that in withdrawal of medical treatment cases just as much as in care proceedings, the court will not intervene to interfere with the exercise of the parents’ parental responsibility absent the child’s suffering or being likely to suffer significant harm. If attribution of that harm to the parents has been necessary it is to be found in their refusal to consent to the palliative care regime proposed by the Trust.

It will be recollected that in Gard Baroness Hale said,

Mr Mylonas disavowed such an analysis. Expedient though it would be, he says, to adopt McCombe LJ’s exposition, he is unable to do so as the Trust is guided not by “significant harm” but by “futility” as found in the guidelines. In my judgment, much as Mr Mylonas is to be respected for his scrupulous refusal to seize upon what he believes to be a bad point in the name of expediency, such commendable fastidiousness on his part was unnecessary as the absence of a threshold is not, in my view, in any event discriminatory as the proceedings under the inherent jurisdiction have in my view an objective and reasonable justification and pursue a legitimate aim, namely the care and treatment of desperately ill children.

Again it was not argued before the court but, notwithstanding Mr Mylonas’ circumspection, it seems to me that there may be a respectable argument that when it comes down to significant harm in the context put by McCombe LJ to Mr Mylonas when put side by side with “futile” may in this context be different labels but without distinction.

I am satisfied, therefore, that even if the position of the parents in the current care proceedings under the inherent jurisdiction have been analogous there has been no discrimination. What would the position have been had there been, could it be justification?

Mr Knafler argues that whether the State acts under parts IV and V of the Children Act 1989, Care proceedings, or under the inherent jurisdiction, it is ultimately and essentially doing the same thing, namely intervening in the life of the family in order to safeguard and/or promote the welfare of a child in a manner inconsistent with that which the parents would wish. There is, he submits, no proportionate justification for the different approaches for overriding parental choices.

Setting aside for a moment my view that the two procedures are not two sides of the same coin, and therefore comparable, and that even had they been so there is no true discrimination for the reasons set out above, I do not accept the submission that it is not proportionate and that there is no justification for such discrimination in cases of serious medical treatment for children. In In the Matter of M (Children) [2017] EWCA Civ 2164, Sir James Munby, the President of the Family Division, said:

Mr Knafler reminds the court that it is not necessary for the parents to establish a breach of their Article 8 rights in order to make out their case under Article 14, and argues that absent any identifiable policy to justify the alleged discrimination, the difference in treatment is not objectively justifiable but rather represents the subjective attitudes of the doctors in the case in relation to the care of terminally ill children. Such attitudes are, he accepts, held by many, but equally he submits, rejected by many of the general population and by many in respected positions both here and abroad.

Mr Knafler was frank in accepting that a consequence of his approach would be that where a parent did not agree with the hospital’s treatment plan, even where the plan had been endorsed by their own independent experts, the parents could insist on what Mr Knafler has termed “suboptimal” care. In other words, the best interests of the seriously ill child must, he says, take a secondary position to the wishes and feelings of their parents absent attributable significant harm. With respect to Mr Knafler, not only does such an approach feel instinctively wrong, but it must be recollected that not only do the parents have rights, but so does the child, Alfie, and European law has been consistent in saying that the best interests of a child, whether seriously ill or not, must take primacy.

In Gard the ECHR said in relation to the margin of appreciation:

It follows that the State has a wide margin of appreciation as to how the withdrawal of life-sustaining treatment is managed, unaffected by the fact that other states, in this case Professor Hass asserting such an approach is taken in Germany, may have very different approaches or views as to how and if treatment should be withdrawn, and if so in what circumstances. In the United Kingdom such cases are managed within the hospitals in accordance with guidelines, which guidelines operate under the law which states that the best interests of the child are the determining factor. In the event that there is disagreement the matter is referred to the court, where both the parents and the child are parties to the proceedings.

In my judgment the need to place the best interests of a seriously ill child (objectively, and independently assessed) ahead of the wishes of even the most devoted and caring of parents provides objective justification for any difference between care proceedings and the inherent jurisdiction.

In conclusion, then, whilst I would grant permission to appeal in relation to this part of Ground 1 only, I am satisfied that the law as applied to applications under the inherent jurisdiction for declarations that it is lawful to withdraw treatment is not in breach of Article 14.

Accordingly, permission to appeal is refused save in respect of Ground 1, paragraph 2. Permission to appeal on that one sub-ground is granted, but the appeal is dismissed.

I agree with my Lady’s judgment and with the order which she proposes.

I agree that permission to appeal should be granted on Ground 1, paragraph 2 only, and that the appeal on that ground should be dismissed for the reasons given by my Lady, Lady Justice King.

The “Postscript” which now follows relates to matters which call for comment from this court, but which have played no part in our determination of this appeal. The remainder of this judgment is the judgment of the court, to which all three members have contributed.

As Lady Justice King has recorded, on two separate occasions Alfie’s father brought doctors whose practice is in a foreign jurisdiction into the Paediatric Intensive Care Unit at Alder Hey hospital for the purpose of conducting a clandestine medical examination of this profoundly ill child. The first such examination was conducted by Dr Matthias Hubner on 11 December, and the second was by Dr Jankowska (and possibly a second doctor) on 20 January 2018.

Last week this court [Lord Justices Patten and McFarlane and Lady Justice King] gave judgment in another case involving a child whose life was entirely dependent upon artificial ventilation, Re Isaiah Haastrup [2018] EWCA Civ 287. Although Isaiah was a patient in King’s College Hospital in London, some 200 miles from Alfie in Liverpool, and although so far as the court is aware, there is no connection between the two children or their families, Isaiah Haastrup was also visited and examined by Dr Jankowska and two other individuals on 20 January 2018, in circumstances which the hospital regarded as wholly clandestine. The court was told that the King’s College Hospital Trust had reported the incident to the police on the basis that a criminal offence under the Medical Act 1983, section 49, may have been committed, and also reported it to the General Medical Council.

A report from Dr Hubner advising that the child was fit to fly had been submitted to the court in Isaiah Haastrup’s case, although it was not clear whether or not Dr Hubner had examined Isaiah at KCH.

Although these two cases have come on for hearing before this court within the same two-week period, we do not regard the similarities in what is reported regarding clandestine medical examinations being conducted on these seriously ill children as being a coincidence. The links between the activities of the foreign doctors and the unnamed “supporters” who have introduced them to the parents in each case are, in our view, plain.

In both cases the purported examination of the two children was conducted without permission of the court and without any consultation with or approval from the medical team caring for the child.

In addition, in each case a number of unidentified yet plainly incomplete notes or records were disclosed to the doctors in question, again without permission.

The unknown supporter who, it is said, introduced Dr Hubner and Dr Jankowska to the families also recommended Dr Haas in each case. In the present case Dr Haas provided an opinion with permission from the court, although in Haastrup the mother’s legal team sought permission to rely upon the report following unauthorised disclosure of the papers to him.

In both cases Dr Haas advanced similar views based on specific issues in German history upon which he rested his different “cultural approach”.

In the Haastrup case the judge found that the mother’s solicitor had been directly involved in providing information to arrange other doctors without the leave of the court.

It is thus the case that this court is now aware of two cases where in recent weeks and in similar circumstances a profoundly ill child at the centre of contested court proceedings has been visited by a doctor or doctors without the knowledge of the other parties, without the authorisation of the court and, most importantly, without the knowledge of the treating clinicians, in a clandestine manner with a view to that doctor conducting a medical examination of the child and thereafter providing evidence for the court proceedings.

For over 25 years the family courts have maintained a tight control on the instruction of experts. The current legislation is contained in an Act of Parliament, the Children and Families Act 2014, section 13, which reads as follows:

In cases such as the present, the judges of the Family Division habitually and rightly extend a very broad tolerance to, and respect for, the position of the parents of a terminally ill child. It is rare for such a parent to be criticised by a judge, no matter what they may say or do in furtherance of their case. Neither MacDonald J nor Hayden J criticised the parents in either the Haastrup case or the present case in relation to the clandestine medical examinations. We do, however, feel driven to observe that, where a doctor is clandestinely introduced to a paediatric intensive care unit for the purposes of conducting a medical examination of a child who is the subject of court proceedings, a line has plainly been crossed, with such behaviour being wholly unacceptable.

We should be clear that we make these comments not from any desire simply to enforce the court rules governing the instruction of medical experts. The issue is, in our view, of an altogether higher level of concern. We draw attention to the following four factors:

How is a parent to know whether a person to whom they are introduced for this purpose is indeed a doctor, as opposed to another individual who may have an altogether more malevolent interest in gaining access to a seriously ill child and purporting to conduct a medical examination upon them in the highly vulnerable circumstances of a PICU? The potential for the child’s safety to be significantly compromised by the parent’s actions is, to our mind, all too plain.

The doctors concerned, together with the parents and their legal advisers, may be exposing themselves to prosecution for criminal offences, disciplinary proceedings or contempt of court by arranging or taking part in a clandestine medical examination of a profoundly sick child, in a specialist hospital unit during the currency of contested court proceedings relating to the child’s treatment.

Evidence gathered in this wholly unacceptable manner is most unlikely to be afforded any weight by the court deciding upon the child’s future medical treatment. As Mr Knafler readily conceded, Dr Hubner’s evidence was, rightly, totally discredited once it had been examined by the court. In the circumstances, it is difficult to understand what of benefit to the parent or to the child is to be gained by involving an outside medical expert in this way.

There should be, and in our experience there is, no need for parents to resort to any form of clandestine activity if they wish to have their child examined by an additional medical expert. The treating hospital will normally welcome the involvement of relevant outside expertise and they will cooperate fully by the provision of full medical notes and facilities for examination, just as Alder Hey did with respect to Dr Samuels and the team from Bambino Gesù. The courts also frequently permit the instruction of additional experts on behalf of the parents (as did Hayden J in relation to Dr Haas in this case).

Now that the unwelcome and, we would say, dangerous development of supporters encouraging parents to arrange for those without authority to conduct secret medical examinations of these very vulnerable children has come to light, we consider that it is appropriate to record our condemnation of this practice. Irrespective of the extreme nature of the issue before the court, in future cases the parents and those representing them should expect the judge to refuse permission for evidence obtained in this clandestine manner to be admitted in the proceedings. In any event, as was the case both in the present proceedings and in Haastrup, the court is unlikely to afford much, if any, weight to a medical examination that is conducted in such circumstances or to the opinion of a doctor who has acted in this wholly unprofessional way.